The U.S. Environmental Protection Agency (EPA) today released a Clean Water Act Enforcement Action Plan  (Plan) designed to improve the overall effectiveness and transparency of clean water enforcement actions.  This Plan was developed by EPA after consultation with a variety of stakeholders, including NACWA, and the opportunity for input from the general public.  This Legal Alert provides background on the Plan’s development and summarizes its key elements, including potential impacts that could affect NACWA members.  Additional information on the Plan can also be found on EPA’s clean water enforcement website.  Questions regarding this Legal Alert or the EPA Plan can be directed to Keith Jones, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . 

Background & NACWA Actions

On July 2, EPA Administrator Lisa Jackson sent a memorandum to the Office of Enforcement and Compliance Assurance (OECA) calling for more effective enforcement actions against CWA violators and more transparency in enforcement activities by both EPA and the states.  The memo discussed the need to “raise the bar for clean water enforcement performance,” including an emphasis on problems with the biggest impact on water quality. The memo also stressed the need to improve the transparency of CWA enforcement actions by making information more available and more easily understood by the public.  The memo additionally discussed the importance of enhancing EPA’s information technology as a way to improve the accessibility of CWA enforcement information to the public.

In response to this memo, NACWA sent a letter  to Administrator Jackson on July 29 requesting that the Association and its public clean water utilities be allowed to participate in the development of the Plan.  As a result of this letter, senior members of the OECA staff held a conference call with NACWA on August 24.  The call provided NACWA with an opportunity to comment on OECA’s formation of the Plan and present the important perspective of the clean water community to the development process.   NACWA followed up with written comments  to OECA on August 31, emphasizing a number of key issues, including the need to focus enforcement actions on actual water quality improvements, the need for greater consistency in enforcement actions, and the need for more accurate data relating to enforcement compliance.  NACWA requested that its comments be taken into consideration by EPA during development of the Plan.

Summary of Key Elements of the Action Plan

EPA’s Plan identifies three key areas for improving the overall effectiveness of clean water enforcement: targeting enforcement to the most important water pollution problems, strengthening oversight of clean water enforcement performance by the states, and improving the accountability and transparency of the enforcement process.  Each of these three areas is described in more detail below, including a discussion of how the Plan incorporates many of NACWA’s suggestions and what parts of the Plan may directly impact NACWA members.

A. Target Enforcement to the Most Important Water Pollution Problems

A key element of NACWA’s comments to EPA focused on the need to direct enforcement actions towards the greatest causes of water pollution.  EPA’s Plan acknowledges this need by promising to develop and implement a new approach for carrying out enforcement actions that focuses not only on the biggest permitted facilities (such as clean water utilities) but also looks at the impacts from other sources of water pollution.  Central to this approach will be efforts by EPA to better coordinate the use of environmental information and compliance data to target those enforcement actions that will result in the greatest environmental protection.   EPA states in the Plan that this approach “will identify where good compliance performance at the biggest facilities may allow a shift of enforcement attention on other sources that are causing more significant water quality impacts.”  This statement is a positive development for NACWA members as it suggests that EPA understands the need to shift enforcement focus away from the biggest facilities that are in good compliance, such as publicly owned treatment works (POTWs), and towards those other sources that are larger contributors of water quality impairments.

The Plan also indicates EPA’s intention to focus more closely on the water pollution coming from concentrated animal feeding operations (CAFOs), especially those that occur in areas close to impaired waters.  Additionally, the Plan acknowledges the limited resources at the federal, state, and local level to address water quality problems and recognizes the need to direct these limited resources towards the most significant sources of pollution to ensure the greatest improvements in water quality.  NACWA’s comments to EPA stressed the importance of focusing on agricultural sources of water impairments and the need to direct limited resources to improving the most serious water quality problems, and the Association is pleased to see that these two issues have been addressed by EPA in the Plan.

B. Strengthen Oversight of Clean Water Enforcement Performance

EPA recognizes in the Plan that there has been inconsistent clean water enforcement at the federal and state level, leading to significant problems for the regulated community through unpredictable enforcement actions.  This is also an issue that NACWA identified in its comments to EPA.   To address this problem, EPA is committed to developing clear expectations for what acceptable performance is under the Clean Water Act for regulatory agencies and how such performance will be measured.  These expectations will apply to both water permitting and enforcement programs.  The expectations will also provide the basis for the development of performance metrics for permitting and enforcement, which will be made public to hold both EPA and the states accountable.  EPA will use these metrics to help create a level playing field for clean water enforcement across the nation, ensuring that each state is consistently and uniformly carrying out clean water enforcement actions and that there are not discrepancies in enforcement actions or policies from state to state or Region to Region.  NACWA is supportive of this approach and believes it will help ensure that all NACWA members, regardless of size or geographic location, can rely on consistent and predictable clean water enforcement policies and not be subject to the uncertainly of differing state or Regional policies.

C. Improve Accountability and Transparency

EPA’s Plan recognizes the importance of improving the accountability, accuracy, and transparency of the clean water enforcement process, including ensuring that data from regulated facilities is quickly and accurately reported and made available to the general public in a way that citizens can understand.   To accomplish this goal, EPA’s Plan endorses the use of electronic compliance reporting by regulated entities such as POTWs, including the eventual development of a rule that would require all regulated facilities to submit their clean water compliance data electronically to their regulatory agencies.  EPA believes that electronic reporting will help to improve both the accuracy and the timeliness of compliance data and also reduce the overall burden on regulated facilities to submit compliance data.   Such an approach would also allow key enforcement data to be more available to the public, thus increasing the overall transparency of the enforcement process.  NACWA was supportive of the idea of electronic reporting in its comments to EPA, although stressed the importance of ensuring the accuracy of any such electronic reporting system.  Given the impact that an electronic reporting requirement could have on NACWA members, the Association will work very closely with EPA and its members on development of an electronic reporting rule to ensure that any new requirements do not increase the regulatory burden on POTWs.

Another key concern NACWA expressed in its comments to EPA regarding clean water enforcement data is the large number of errors in the current Enforcement and Compliance History Online (ECHO) database.  In the Plan, EPA is committed to consulting with ECHO users to help simplify the database, improve its data, and make it more accessible to the public.  NACWA looks forward to working with EPA on this effort.

Next Steps

NACWA is pleased with the overall direction outlined by EPA in the Plan with regard to the Agency’s plans for future clean water enforcement and is also pleased with the positive impact the Association’s comments had on development of the Plan.  However, there are additional enforcement issues, such as peak wet weather flow blending, that are of critical importance to NACWA members and were discussed in NACWA’s comments but not addressed in the Plan.  NACWA will continue to advocate aggressively on these issues and make them a priority in future discussions with EPA.  NACWA will also continue to work closely with EPA as the Agency implements the enforcement Plan and will keep the membership updated on any developments.