A group of environmental organizations represented by the Democracy Forward Foundation has petitioned the U.S. Department of Justice (DOJ) to initiate a rulemaking process to clarify that DOJ can use Supplemental Environmental Projects (SEPs) when settling civil enforcement actions brought under environmental statutes, including the Clean Water Act.

SEPs are projects which are voluntarily undertaken by defendants in enforcement actions that provide environmental benefits to local communities and can help offset the penalties imposed by DOJ. SEPs have long enjoyed widespread support from prosecutors, environmental groups, and permittees, including the clean water community and industry, so DOJ’s abrupt end of their use as an environmental enforcement tool under the previous administration based on assertions that they violate the Miscellaneous Receipts Act came as a surprise to many stakeholders. 

While the Biden administration quickly moved to scrap the memorandum underlying the SEPs ban as “inconsistent with longstanding Division policy and practice,” it has not yet addressed the rule amending DOJ’s internal regulations which strongly discourages federal prosecutors from considering SEPs during civil enforcement proceedings, including those involving clean water utilities. That rule was quickly issued by DOJ in December 2020 without a notice and comment period.

The environmental groups’ petition lays out a strong defense for the legality of SEPs and the benefits they provide to local communities, including low-income and minority communities. In doing so, the petition asks DOJ to withdraw the anti-SEP rule and initiate a notice-and-comment rulemaking establishing clear standards for the future use of SEPs.

SEPs enjoy strong support from the clean water community, and NACWA will continue to advocate for both regulatory and legislative efforts aimed at solidifying their use as a critical tool to provide environmental benefits to local communities and enforcement discretion to federal prosecutors.

NACWA will continue to keep you apprised of any developments as they occur. Please contact Amanda Aspatore, NACWA’s Chief Legal Counsel, with any questions.