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The Environmental Protection Agency (EPA) Office of Inspector General (OIG) released a report today titled EPA Needs to Track Whether Its Major Municipal Settlements for Combined Sewer Overflows Benefit Water Quality . This report is the culmination of a year-long investigation  on the effectiveness of EPA municipal wet weather consent decree enforcement efforts, and highlights needed changes in how EPA approaches municipal wet weather enforcement actions. Specifically, the report notes that EPA must improve tracking and reporting on how the results of wet weather enforcement initiatives and consent decrees are leading to fewer sewer overflows and resulting improvements to water quality in receiving waters.

OIG solicited NACWA’s feedback during the investigation. The Association had numerous calls and meetings with OIG and submitted recommendations  in February, which were developed in consultation with a number of Member Agencies. NACWA is pleased that the OIG investigation and resulting report reflect NACWA’s input. In addition, NACWA applauds the OIG for pursuing this investigation and interviewing a broad array of clean water agencies to determine whether EPA’s enforcement efforts are pursuing the most effective approaches – from both a cost and environmental standpoint – to address wet weather-related water quality impacts. NACWA also developed a press release on the report.

Summary of the OIG Report and Recommendations

The report notes that pursuant to consent decrees, “communities are spending more than $32 billion on projects to reduce and manage untreated sewage and contaminated stormwater discharge into water bodies so that communities can come into compliance with water quality standards.” OIG found that “EPA needs improved program controls so that it can assess and track the outcomes resulting from consent decree requirements.” While “evaluating water quality impacts associated with consent decree activities has significant challenges,” OIG believes “it is incumbent on the EPA to attempt this analysis given the large costs associated with consent decree execution, the need to protect water resources, and the need to support public confidence in EPA accountability.”

OIG endorses adaptive management as demonstrated by its recommendation that EPA take a long-term view of monitoring consent decree results that will allow the Agency “to identify opportunities to adapt to changed circumstances and new information.”

OIG also recommends a national tracking system and increased utilization of next generation technologies, noting that:

• A national tracking system and a nationwide region-focused goal of tracking consent decree performance will improve the EPA’s management capabilities, opportunities and efficiency.
• By increasing its reliance on next generation technologies, the EPA will be able to:
  • Provide real-time information on sewage discharge events.
  • Access more information that can be used by the EPA and combined sewer overflow (CSO) communities to prioritize work.
  • Inform and sustain public confidence.

The report concludes with the following recommendations to the Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance (OECA):

1. Report annual results of the CSO enforcement initiative to the public using data collected under consent decrees, including CSO events and volume changes; pollutants emitted; and wherever possible, changes to quality in receiving water.
2. Develop a nationally consistent consent decree tracking and accountability system that includes:
   1. Consent decree milestones.
   2. Consent decree milestones.
   3. Effluent and water quality data collected by states and communities at CSO outfalls.
   4. Wherever possible, water quality improvement of municipal impaired waters attributable to CSO upgrades.
3. Develop an Annual Commitment System (ACS) goal that establishes regional goals for monitoring and reporting outcomes associated with CSO consent decrees, in order to prioritize consent decree tracking in regional offices.
4. Provide information on a public website that links the public to CSO consent decree information, and links to information produced under the recommendation pertaining to progress and results.
   
   

OECA’s Response to the Report

EPA's Office of Enforcement and Compliance Assurance's (OECA) response is included as Appendix C in the report. In its letter to OIG, OECA states “it is incorrect to suggest that we do not know whether the CSO system upgrades that are the subject of this review are benefitting clean water. Rather, the consent decrees will result in reduced discharges of raw sewage and contaminated stormwater.” OECA also notes that it disagrees with OIG’s statement in the report suggesting that there is no clear connection to improved water quality. Based on these statements, it would appear OECA continues be focused on a system of metrics that is based almost exclusively on volumetric reductions, without a broader look at actual water quality improvements.

It is NACWA’s position that regardless of the types of goals set out in a consent decree – volumetric-based or water quality-based – it is critical that the goals be appropriately established using a knee-of-the-curve cost-benefit analysis. This means working with communities to determine projects and expenditures to address wet weather issues in a manner based on meaningful volumetric reductions in overflows, increases in stormwater detention capacity and/or water quality improvements. NACWA is hopeful that the report will move OECA in a direction of more direct analysis as to whether the investments made under enforcement orders are resulting in cost-effective and meaningful environmental improvements.

Utilizing the OIG Report

While disagreements with OECA over enforcement policy will likely remain, the OIG report will allow NACWA to bolster our position in future advocacy with the Agency and Congress over reforming the enforcement system to provide better environmental benefits in more cost-effective ways. NACWA also believes a better tracking system focused on whether enforcement agreements lead to meaningful environmental changes will promote more flexibility in how these agreements are negotiated in the first place. This will empower communities to have more say in how their ratepayer dollars are spent to ensure maximum environmental benefit in the most cost-effective manner. NACWA will work with EPA going forward to ensure the recommendations from the report are implemented in a manner that provides clean water utilities with additional flexibility and does not result in additional costs or burdens.

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