EPA Seeks Comments on Proposed Regulation Clarifying That States and Tribes Are Not Required To Include The Same Criminal Intent Standard Under Sections 402 and 404 Of The Clean Water Act
On December 14, 2020, the U.S. Environmental Protection Agency (EPA) issued a Notice of Proposed Regulation and Request for Comment on clarifying that States and Tribes are not required to include the same criminal intent standard under Sections 402 and 404 of the Clean Water Act (CWA) that is applicable to EPA. Under Section 309 of the CWA, enforcement actions brought by EPA require a showing of simple or ordinary negligence. The proposed rule would allow state and tribal programs to establish a different negligence standard such as gross negligence or recklessness for their criminal enforcement actions under the CWA. Written comments on the notice are due by January 13, 2021.