EPA Issues New Clean Water Act Enforcement Action Plan

The U.S. Environmental Protection Agency (“EPA”) has issued a Clean Water Act Enforcement Action Plan (“CWA Action Plan”), which promises to overhaul and increase federal and state water quality enforcement, particularly against concentrated animal feeding operations, industrial and construction sites, and municipal separate stormwater systems. The CWA Action Plan proposes (1) targeted enforcement at the most important water pollution problems, including both point and non-point pollution sources; (2) strengthened oversight of state water quality compliance and enforcement, including possible direct EPA action where state enforcement is perceived as lacking; and (3) improved transparency and accountability, including mandatory nationwide electronic reporting of water quality permit data and reports. EPA has not settled on particular targets, but is expected to focus on mining companies, large livestock farms, municipal wastewater treatment plants, and construction companies.[1]

Background

The CWA’s primary objective is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters.”[2] To achieve this express statutory objective, the CWA strictly prohibits discharging pollutants into the “navigable waters of the United States” without a permit from the Corps, EPA, or an authorized state environmental authority.[3] Chief among the permitted discharges are those that occur in compliance with permits under the National Pollutant Discharge Elimination System (“NPDES”) in Section 402 of the CWA, which includes stormwater discharge permits.[4]

EPA has authorized states to implement and enforce these programs across the country. EPA retains independent enforcement authority in authorized states and has responsibility to ensure that state programs are nationally consistent in writing quality permits and enforcing them.[5] Where delegated, state agencies develop and administer NPDES stormwater permits. Thus, a stormwater permit issued by a state is both an NPDES permit under the CWA and a state waste discharge permit. Many states have strong NPDES programs; some do not. EPA has determined that it needs to take prompt actions where a state is not acting to issue protective permits or taking effective enforcement. EPA’s stated goal in taking these actions will be to “ensure equal protection, to strengthen those state programs, and hold states accountable for needed improvements.”[6]

While EPA and states have made notable improvements to water quality in the CWA’s 37-year history, EPA also acknowledges in the CWA Action Plan that “challenges remain as we strive to meet the CWA’s goal of providing fishable and swimmable waters and protecting the sources of our nation’s drinking water.”[7] Among the problems the EPA has identified are “expanding universes of diffuse pollution sources, many which are not effectively regulated by the CWA; and … significant limitations that affect EPA’s ability to identify serious problems quickly and take prompt action to correct them. Among these limitations are two Supreme Court decisions – its 2001 decision in Solid Waste Agcy. of Northern Cook Cty. v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”) and its 2006 decision in Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”) – that added layers of confusion regarding which water bodies are covered by the CWA in many parts of the country.”[8]

Some pollution sources are point sources regulated by the NPDES permit program, including concentrated animal feeding operations (CAFOs), industrial sites (including construction sites), and municipal separate storm sewer systems (MS4s). Many other pollution sources are non-point sources and are not regulated by the CWA. There are hundreds of thousands of point and non-point sources including industrial and municipal storm water runoff, agricultural runoff, mining wastes and sewage spills from aging sewer system infrastructure, such as suburban storm water or agricultural farm runoff. The NPDES program universe has itself expanded from roughly 100,000 traditional point sources recognized when the CWA was enacted in 1972 to nearly a million sources – 95 percent of which are covered by general permits.[9]

EPA’s oversight of state NPDES programs has focused primarily on how well states are addressing the largest direct discharge facilities that have continuing problems. EPA estimates that the rate of “significant noncompliance” at these facilities is approximately 24 percent, meaning that one out of every four had significant violations.[10] State and EPA data indicate that formal enforcement action was taken against approximately 26 percent of the facilities in “significant noncompliance” in 2008.[11]

EPA’s CWA Action Plan – Three Elements

EPA’s Office of Enforcement and Compliance Assurance (“OECA”) developed the CWA Action Plan in response to a July 2, 2009 memorandum from EPA Administrator Lisa Jackson. She called for EPA to improve transparency, “raise the bar for clean water enforcement performance,” and modernize EPA’s use of technology. In developing the CWA Action Plan, OECA consulted with other EPA offices, states, industry and trade associations, environmental advocacy groups, and the general public. The CWA Action Plan has three main elements, each discussed in further detail below.

1. Target Enforcement to the Most Important Water Pollution Problems

EPA plans to revamp its enforcement program to tackle violations of existing law by pollution sources posing the biggest threats to water quality and public health. EPA contrasts this new approach to a former approach of focusing on major facilities with individual permits.[12] Specific actions include:

• Establishing an EPA/State Work Group to analyze regulated business sectors and determine whether problems related to water quality are due to regulatory issues, inadequate permits, or compliance related issues. EPA will use the Work Group’s data to tailor responses to specific sectors and specific water quality challenges. Responses might include enforcement actions, fixes to unclear or problematic regulations, or permit modification or reissuance to be more protective of water quality. Associated with this analysis, EPA will review the cumulative effects clusters of permitted facilities have on water quality. EPA plans to create new tools to integrate information and assist in targeting dischargers for compliance monitoring and enforcement, establish clear and transparent expectations for state programs in implementing this new approach, and design regulatory changes to implement the new approach.
• EPA’s first and immediate step will be to link environmental information to compliance data to target compliance and enforcement efforts. EPA will incorporate data about water quality standards, existing water quality status (including information developed in conjunction with establishing Total Maximum Daily Loads for impaired water bodies), permit limits, and effluent violations to evaluate where violations contribute to water quality impairment. These data currently reside in different systems and have not been routinely used together to help target serious problems. EPA plans to compare newly available information on pollutant loadings and toxicity against compliance history and watershed impairment information to identify facilities that require additional compliance monitoring or civil or criminal enforcement attention.[14]

As noted above, EPA is expected to focus on mining companies, large livestock farms, municipal wastewater treatment plants, and construction companies. Once EPA has identified significant point source violations across the spectrum of regulated facilities that adversely affect water quality, it will work with state programs to commence appropriate federal and state civil and criminal enforcement actions. As it develops its new approach, EPA plans to make “timely, easily accessible and understandable information” available to the public concerning violations/violators, actions EPA and states are taking to address them, and effects on water quality. This public information will likely increase the possibility of citizen suits.

2. Strengthen Oversight of Clean Water Enforcement Performance

EPA has authorized 46 states to run the NPDES program, including CWA and NPDES permit enforcement. EPA retains primary enforcement responsibility in four states, the U.S. territories, and Indian Country. Whether through direct or indirect enforcement, EPA remains responsible for ensuring that the states actions and its own are protecting water quality and that the law is consistently applied to ensure such protections.

EPA has reviewed state and regional permit and enforcement programs, identified program weaknesses, and prescribed steps to improve performance.[15] EPA’s Office of Water’s Permitting for Environmental Results and Regional Permit Quality Reviews have evaluated performance in permit issuance and quality. EPA has also used OECA’s State Review Framework to evaluate enforcement programs. EPA’s goal is to achieve equitable protection to the public, a level playing field for competing businesses, and fairness across states in how our the CWA is enforced. [16]

EPA has identified the following specific action items to strengthen oversight of state permitting and enforcement programs:

• Set clear expectations for acceptable state CWA performance and how EPA will measure state performance.
• Develop and use a standard set of expectations as a basis for negotiating consistent enforcement agreements with each state. Such expectations are intended to remedy the outdated, inconsistent, and sometimes problematic Memoranda of Agreement that were developed over time for state program authorizations.
• Conduct planning discussions between EPA and state senior management about water quality standards, permitting, and enforcement, including discussions about appropriate goals, performance expectations, permitting and enforcement program improvements identified in program reviews, inspection and enforcement targeting, roles and responsibilities, work sharing and the avoidance of duplication of effort.
• Gather results from permit quality and enforcement reviews to determine if states are meeting minimum expectations for NPDES program performance.

Where a state does not effectively enforce the CWA, EPA may disapprove permits or take direct enforcement action, sidestepping the states. One EPA official has said that “if states are falling down on the job, we’re going to reverse the permits they’ve issued, and if they’re not enforcing the law, we’ll step in and do it ourselves.”[17]

Finally, EPA may also impair a recognized defense to citizen suits. EPA intends to explore citizen groups’ concerns that in some cases when they provided a state notice of intent to file suit, the states responded by issuing administrative orders that cut-off the citizen suit but did not bring about compliance. To examine this issue, EPA will look into places where this practice is alleged to be widespread and determine if federal action is necessary.

3. Improve Accountability and Transparency

EPA is concerned that the water quality data it exchanges with the states on the facilities, permits, pollutant discharges and compliance status of most NPDES-regulated facilities is poor quality, inaccurate, and incomplete.[18] This data gap limits EPA’s and states’ ability to identify violations, target their actions, connect violations to water quality impacts, and share information with the public. EPA is, therefore, exploring new uses of technology to collect, analyze, use, and make information about Discharge Monitoring Reports (“DMRs”) and other water quality data available to the public in a cost efficient and effective way.

EPA has identified the following specific action items to improve accountability and transparency:

• Implement electronic reporting from facilities that are required to submit reports to a regulatory agency. EPA recently initiated NetDMR (www.epa.gov/netdmr), a new electronic reporting tool that enables regulated facilities to submit their DMRs electronically to the national data system or to a state system. Net DMR also allows state and federal systems to immediately share electronic DMR information through EPA’s National Environmental Information Exchange Network. EPA plans to encourage the use of NetDMR and also initiate an aggressive marketing campaign to the regulated community to promote electronic reporting.
• OECA will develop a rule to require NPDES permittees to provide DMRs electronically to EPA or states, using either NetDMR or an equivalent state electronic DMR system, phasing out paper DMR forms. EPA’s goal is close to 100 percent electronic reporting. EPA estimates that the conversion may save EPA, states, and the regulated sources more than $50 million per year when fully implemented.

Short Term Actions

While EPA works to revamp water enforcement it also plans to take immediate actions to address known compliance and water quality issues.

First, EPA will pursue new strategies to enforce existing rules limiting pollution from concentrated animal feeding operations (CAFOs), especially where they occur in areas close to imperiled waters.[19] EPA plans to review its existing enforcement tools to find ways to reduce violations and water pollution from these facilities, while it develops additional solutions for reducing pollution from CAFOs.

Second, EPA will revisit the division of work with states, many of which are facing near-term serious resource problems.[20] It will review with each state how best to target joint federal/state resources to address the most serious water pollution violations.
Third, EPA will press aggressively for immediate electronic reporting.[21] NetDMR is available now for facilities to use to electronically report their DMRs. EPA will urge facilities to shift to electronic reporting right away, to reduce data entry costs and increase the accuracy and timeliness of the information it makes available to the public.

Preventive Actions for Permitted and Potentially Permitted Facilities

The EPA’s CWA Action Plan portends an increase in CWA enforcement actions by regulators and, through citizen actions, environmental groups. Unpermitted facilities should review whether their activities require permit coverage to ensure CWA compliance and avoid enforcement. Obtaining permit coverage prior to an EPA or state investigation can avoid or substantially reduce possible penalties for past non-compliance.

The start of a new year is also a good time for permittees to plan for future compliance. Operators of permitted facilities should promptly review their existing permit compliance plans and update internal water quality procedures and documents, such as Stormwater Pollution Prevention Plans. Missed paperwork or monitoring reporting frequently triggers regulatory and citizen group investigations. Although it will likely be a year or more before EPA establishes an effective electronic reporting program, permittees with lapsed reporting can take the opportunity to cure past non-compliance.

Given the stakes involved, many permittees and potentially covered facilities should consider seeking professional engineering and legal guidance on CWA compliance. This is particularly true for municipalities and those in the agricultural, industrial, and construction industries that the EPA has identified as potential CWA Action Plan compliance targets.

For more information on stormwater and water quality issues please contact Jeff Kray at Marten Law Group.