Clean Water Current

(February 19, 2019) - EPA’s Office of Enforcement and Compliance Assurance (OECA) released its annual report on February 8 covering its initiatives and actions for Fiscal Year (FY) 2018.  The report looks at several different criminal and civil enforcement “outcomes” including enforcement actions initiated and concluded, as well as penalties assessed.

The report reflects the Trump Administration’s embrace of cooperative federalism and a compliance-assistance-first approach. There have been memoranda and other indications of this change in enforcement philosophy over the last year; this annual report demonstrates how that philosophy is playing out.

For civil enforcement, there was a decrease in overall enforcement actions as compared to the previous nine fiscal years. Civil penalties assessed were lower last year than any fiscal year this decade and were drastically lower than the previous two years, but that was in part due to record penalties in the FY17 Volkswagen case and the FY16 BP oil spill settlement.

While enforcement is necessary in certain circumstances, NACWA has long advocated for a compliance-assistance-first approach in dealing with local governments and public utilities, which do not profit from noncompliance.  NAWCA has also advocated for a shift away from penalties as a primary metric of success.

Additional information on this topic includes:

• Pre-publication version of EPA’s proposed Fiscal Year 2020 – 2023 National Compliance Initiatives, which moves away from a focus on addressing sewer overflows via enforcement and encourages them to be addressed via the Clean Water Act permitting process.
• November 7, 2018, US Department of Justice (DOJ) memorandum that limits federal enforcement against state and local governments.
• March 23, 2018, OECA memo to Regional Offices- Interim Procedures for Providing Early Notice of Civil Judicial Referrals – requiring early notice and case collaboration on cases recommended for referral to the DOJ.
• January 22, 2018, OECA memo to EPA regional offices - Interim OECA Guidance on Enhancing Regional-State Planning and Communication on Compliance Assurance Work in Authorized States  - “to immediately begin the movement toward a more collaborative partnership between the EPA and authorized States.”

Members with any questions can contact Amanda Waters, NACWA’s General Counsel.