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EPA Announces New Clean Water Act Enforcement Plan

Environmental Law Update Thomas P. McElligott

The Environmental Protection Agency ("EPA") recently signaled that it will increase both civil and criminal enforcement of the Clean Water Act to address what it sees is as widespread violation and uneven state enforcement of the Act. In its new "Clean Water Act Enforcement Plan," EPA emphasized three primary goals of its revamped strategy. Each goal will be supported by short-term and long-term implementation steps.

First, EPA plans to better target its enforcement efforts to the most significant water pollution problems. One part of this effort will be an increased focus on nonpoint sources posing threats to water quality, while continuing to enforce against more traditional "end-of-pipe" sources. This will involve two immediate steps and one long-term step. In the near term, EPA will intensify enforcement against concentrated animal feeding operations ("CAFOs"), especially those near impaired waters. EPA will also immediately begin information gathering (such as water quality status and permit compliance data). In the longer term, EPA plans to link these different types of information to determine significant point and nonpoint source violations, and then work with state agencies to initiate federal and state enforcement actions.

Second, EPA plans to strengthen oversight of the states with delegated authority to manage National Pollutant Discharge Elimination System ("NPDES") permit programs because it believes that state agencies are not consistently enforcing the Act. EPA believes that its "Memoranda of Agreements" with individual states are "outdated, inconsistent and sometimes problematic" because they were separately negotiated over a 30-year period, and each contains different provisions. In the short term, EPA plans to disapprove permits that are not adequately protective and pursue federal enforcement when state efforts fall short. EPA also will immediately begin to compare results from permit quality and enforcement reviews to determine if states are meeting minimum expectations for NPDES program performance. EPA will work with the states to address violations already known to be serious. As a longer term project, EPA will develop clear expectations for state performance and how it will be measured. EPA then will negotiate consistent enforcement agreements with each state in conformance with the new performance metrics. 

Third, EPA plans to improve transparency and accountability by providing more accurate and timely information to the public. EPA will aggressively press facilities to shift to electronic reporting via EPA's new Internet-based reporting tool, NetDMR.

Please contact Tom McElligott at 414-277-5531 / thomas.mcelligott@quarles.com or your Quarles & Brady attorney for further information.