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EPA Announces Plan to “Revamp” CWA Enforcement Approach

Beveridge & Diamond, P.C., October 16, 2009

On October 15, 2009, U.S. Environmental Protection Agency (EPA) Administrator Lisa Jackson announced an EPA plan to intensify enforcement under the Clean Water Act (CWA).  EPA’s Clean Water Act Enforcement Action Plan (“the Action Plan”) describes current enforcement challenges and identifies three action items to “revamp[] enforcement” and address those challenges.  

The Action Plan was developed by the EPA Office of Enforcement and Compliance Assurance (OECA) in response to a July 2, 2009 memorandum from Administrator Jackson that called on EPA to improve transparency, “raise the bar for clean water enforcement performance,” and update EPA’s use of technology.  OECA developed the Action Plan following consultation with other EPA offices, states, industry and trade associations, environmental advocacy groups, and the general public.  

“Enforcement Challenges”

The Action Plan responds to what EPA describes as the “serious regulatory and compliance challenges in attaining the water quality goals of the Clean Water Act.”  In the plan, EPA observes that there are “significant water quality problems” in many of the nation’s water bodies, including those used as drinking water sources.  Further, despite state monitoring undertaken pursuant to §§ 305(b) and 305(d) of the CWA, EPA reports that the water quality in the majority of the country’s water bodies has not been characterized.  EPA observes that solving these water quality problems will require collaboration within EPA and between EPA and states and tribes to “strengthen water quality assessment, monitoring, permitting, and enforcement, and to create an information network vital to all stakeholders.”

EPA identifies a number of enforcement challenges that have contributed to the failure to meet CWA goals.

  • Expanding Universe of Sources - Since the inception of the National Pollution Discharge Elimination System (NPDES), there has been a shift in the nature of regulated sources from approximately 100,000 traditional point sources to nearly a million dispersed sources, most of which are regulated under general permits.  These dispersed pollution sources include combined animal feeding operations (CAFOs), storm water and agricultural runoff, sewage spills, and mining wastes.  According to EPA, the CWA does not effectively regulate non-point sources, and the sheer number of point sources presents challenges for the Agency’s regulation and enforcement efforts. 
  • Oversight Focus on Large Facilities, Inconsistency in Enforcement Across States -  EPA acknowledges that its oversight of state programs has focused on how states address large direct discharge facilities – even though smaller but more numerous sources are likely “of critical concern.”  EPA identifies a need for “consistent, national data to . . . formulate appropriate strategies for ensuring compliance” from smaller sources and expresses disapproval over states’ current enforcement against both small and large facilities.  
  • Wet Weather Sources – EPA describes a need for information from wet weather sources (described in the Action Plan as sources that discharge during storms or other wet weather events, such as CAFOs, industrial and municipal storm water entities, and sewer systems that experience overflows.)  According to EPA, the Action Plan “is an opportunity to address concerns about high noncompliance, low enforcement rates, and absence of data across regulated NPDES sources and states.”
  • Judicial Decisions that Create Confusion Regarding CWA Jurisdiction - Among the limitations that impact its ability to quickly identify and respond to water quality problems, EPA lists two Supreme Court decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos v. United States, 547 U.S. 715 (2006), and the uncertainty they created regarding CWA jurisdiction.  In the Action Plan, EPA voices its support for legislative action that will address the jurisdictional questions left by these cases.   

Actions Proposed

To address the challenges described above, EPA identified three “major themes for action:”

1)      Target enforcement to address pollution sources that present the greatest threats to water quality.

Under this first theme, EPA advises it will “revamp [the] enforcement program to tackle violations of existing law by the sources of pollution posing the biggest threats to water quality and public health,” rather than continuing its focus on only major facilities with individual permits.  Observing that “new approaches, policies, and procedures to focus enforcement on the most serious violations adversely affecting water quality are long overdue,” EPA identified the following specific action items to address this theme: 

  • Develop and implement a new approach for ensuring appropriate responses to water quality problems and violations at all types of regulated facilities. To accomplish this, EPA proposes to work with states to determine whether water quality problems in a given regulated sector are the result of regulatory, permitting, or compliance issues, and then to develop a tailored response.  As part of its review, EPA will consider the cumulative impact of clusters of facilities on water quality.  According to EPA, this new approach will require development of new tools to integrate information and target dischargers for compliance monitoring and enforcement, establishment of clear expectations for state programs, and regulatory changes necessary for implementation. 
  • Link environmental information and compliance data to determine where violations contribute to water quality impairment and target compliance and enforcement efforts.   
  • Work with state programs to bring enforcement actions.

While it develops this approach, EPA commits to providing the public with information concerning CWA violations and EPA and state enforcement actions.   

2)      Strengthen oversight of state permitting and enforcement programs to improve results and ensure consistency

To address inconsistencies and inadequacies in state enforcement of the CWA, EPA intends to “clearly articulate where the bar is for acceptable state programs” and hold states (or EPA where it retains primary authority)[1] accountable for enforcement.  EPA cites the need to make enforcement uniform across states to ensure a level playing field among members of regulated community and equal protection for the public, to strengthen state programs, and to hold states accountable for needed improvements.  Where a state does not issue protective permits or take effective enforcement actions, EPA committed to disapprove permits or pursue federal enforcement.   Under this item, EPA identified the following specific action items: 

  • Identify clear expectations and metrics for enforcement performance.  Citing the 30-year period over which Memoranda of Agreement were signed with states that implement NPDES program (and the resulting variability in state agreements), EPA committed to defining expectations for water permitting and enforcement and developing related performance metrics that would be made public.  
  • Use standard expectations to negotiate consistent enforcement agreements with each state and remedy outdated, inconsistent, or problematic Memoranda of Agreement. 
  • Incorporate the performance metrics into formal planning processes. 

3)      Improve accountability and transparency; Invest in 21st Century technology to provide more accurate and useful information to the public and increase compliance pressure.

In the Action Plan, EPA observes that the lack of nationally consistent and complete information on permitted facilities, water quality, and enforcement not only affects the Agency’s ability to undertake enforcement actions, but also its ability to share information with the public.  EPA observes that public pressure, while not a replacement for enforcement, can drive regulated facilities to maintain or improve compliance.  Under this item, EPA identified the following specific action items: 

  • Implement electronic reporting from facilities that must submit reports.  Through this action item, EPA hopes to obtain information more quickly and efficiently, enable real-time use of the information to respond to target violations, improve data quality, and provide information to the public.
  • Encourage the use of electronic reporting tools, including NetDMR, which allows regulated facilitates to electronically submit discharge monitoring reports (DMRs)  
  • Develop a rule to require permittees to submit DMRs electronically. 
  • Explore whether electronic reporting is feasible and cost-effective for other types of documents (e.g. notices of intent to discharge for general permits; non-DMR compliance reports, inspection results, electronic permits). 

While it pursues these action items, EPA states it will make additional data that is not enforcement confidential available to the public to increase transparency.

Short Term Actions

In addition to the three major themes for action discussed above, the Action Plan identifies several short term measures EPA can take immediately to improve CWA compliance and enforcement:

  • Pursue new strategies to enforce existing rules that limit pollution from CAFOs.
  • Revisit division of work with states, many of which face serious resource limitations. 
  • Press aggressively for immediate electronic reporting via NetDMR.

Implications

EPA’s Action Plan may have several implications for regulated entities.  First, EPA has pledged to shift its oversight focus to address dischargers that most significantly contribute to water quality issues.  Some entities that previously escaped regulatory attention may expect increased scrutiny, while major dischargers who maintain compliance may find that they are the subject of less government attention.

EPA also identifies the need to standardize enforcement efforts across states to ensure a level playing field for regulated entities situated in different jurisdictions and to ensure equal protection of water resources across states.  Permittees located in strict enforcement states may be relieved to see the equalization of enforcement and compliance approaches across states, particularly if competitors currently operate in less stringent states.  Of course, the converse is also true, and the implications for regulated entities will depend in part on the performance metrics EPA selects.  

Finally, permitted facilities can expect changes in how they submit information to the Agency, with a shift towards the use of electronic reporting tools.  This shift may reduce the burden on regulated entities, but widely-available records may make facilities that report violations more easily subject to both government enforcement and citizen actions under the Clean Water Act.   

For further information, please contact Richard Davis at (202) 789-6025, rdavis@bdlaw.com, Karen Hansen at (202) 789-6056, khansen@bdlaw.com, or Jennifer Abdella at (202) 789-6005, jabdella@bdlaw.com.

To read EPA’s Clean Water Act Enforcement Plan, click here.  To read the October 14, 2009 memorandum from OECA Assistant Administrator Cynthia Giles transmitting the Action Plan, click here.  Administrator Jackson’s July 2, 2009 memorandum is available here


[1] EPA has delegated authority to operate NPDES program to 46 states; EPA retains enforcement responsibility in the remaining 4 states, in lands controlled by tribes, and in most U.S. territories.  A map depicting the authority delegated to each state or territory is available here.  

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