US Environmental Protection Agency
Office of Enforcement and Compliance
Assurance (OECA)
Clean Water Act Action Plan
(Prior to February 22, 2010, known as the
Clean Water Act Enforcement Action Plan)
October 15,2009

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Clean Water Act Enforcement Action Plan
EXECUTIVE SUMMARY
Despite progress reducing water pollution from the largest sources, our country still faces
serious pollution challenges. Violations are still too widespread, and enforcement too uneven.
We need to do better controlling pollution from large pipes, while we develop new strategies to
address water quality threats from other sources. To follow through on the commitment of this
Administration to clean and safe water, the Environmental Protection Agency (EPA) is
revamping enforcement of clean water laws.
Target enforcement to the most important water pollution problems
Over the last 30 years, water enforcement focused mostly on pollution from the biggest
individual sources, such as factories and sewage treatment plants. Now we face different
challenges. The regulated universe has expanded from the roughly 100,000 traditional point
sources to nearly one million far more dispersed sources such as animal feeding operations and
storm water runoff. Many of the nation's waters are not meeting water quality standards, and the
threat to drinking water sources is growing. To address these challenges, we must revamp
federal and state enforcement to tackle sources posing the biggest threats to water quality while
we intensify vigorous civil and criminal enforcement against traditional end-of-pipe pollution.
Strengthen oversight of the states
EPA is responsible for assuring that the protections of the Clean Water Act extend to all
citizens. Many states have strong water quality protection and enforcement programs, but state
compliance and enforcement vigor is uneven. Without consistent enforcement by EPA and
states, there exists an unlevel playing field for businesses that do comply with the law, and also
for our citizens who are not provided equal protection under our environmental legal framework.
States labor under different political and resource constraints; nonetheless, EPA must ensure that
states protect water quality and consistently apply the law by issuing protective permits and by
pursuing vigorous enforcement. EPA must clearly articulate where the bar is for acceptable state
programs, and consistently hold states - and EPA where it implements the law - accountable.
Where states are not meeting these expectations, EPA needs to strengthen water quality
protection by disapproving permits that are not protective and by pursuing federal enforcement
against serious violators.
Improve transparency and accountability
The American public has a right to know what the threats are to water quality, where
violations are occurring, and what we are doing about them. Moreover, the vastly increased and
dispersed numbers of pollution sources require us to target enforcement to the biggest problems.
We can work towards both goals by requiring reports to be submitted electronically. Using 21st
century technologies will free up time to tackle pollution problems. At the same time, we can
provide more complete, accurate and timely information to both regulators and the public,
enlisting an informed public as a powerful ally to press for stronger performance and
accountability from the regulated community.

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Clean Water Act Enforcement Action Plan
October 15, 2009
Introduction
On July 2, 2009, EPA Administrator Jackson charged the Office of Enforcement and
Compliance Assurance (OECA) with revamping the clean water enforcement program to ensure
it is protecting and defending our nation's waters. She asked OECA to raise the bar of federal
and state enforcement performance, to inform the public clearly and fully about serious Clean
Water Act violations and actions to address them, and to use 21st Century technology to
transform the collection, use, and availability of EPA data. This Action Plan describes the
challenges we face as a nation in improving our enforcement efforts to improve water quality
and describes the actions we will take to overcome them.
I. Clean Water Act Water Quality and Enforcement Challenges
Much has changed concerning the state of water quality and water pollution control in the
United States since the passage of the Clean Water Act (CWA) 37 years ago. While EPA and
states have made notable improvements to water quality, challenges remain as we strive to meet
the CWA's goal of providing fishable and swimmable waters and protecting the sources of our
nation's drinking water. There are significant water quality problems facing too many
communities; there are expanding universes of diffuse pollution sources, many which are not
effectively regulated by the CWA; and there are significant limitations that affect EPA's ability
to identify serious problems quickly and take prompt action to correct them. Among these
limitations are two Supreme Court decisions - its 2001 decision in Solid Waste Agcy. of Northern
CookCty. v. United States Army Corps of Engineers, 531 U.S. 159 (2001) ("SWANCC") and its
2006 decision in Rapanos v. United States, 547 U.S. 715 (2006) ("Rapanos") - that added layers
of confusion regarding which water bodies are covered by the CWA in many parts of the
country.
Our portfolio of water pollution threats has evolved from the very visible pipes coming
out of factories and sewage treatment plants into rivers and lakes to the hundreds of thousands of
sources of industrial and municipal storm water runoff, agricultural runoff, mining wastes and
sewage spills from aging sewer system infrastructure. Some of these sources of contaminated
runoff are known as point sources and are regulated by the National Pollutant Discharge
Elimination System (NPDES) permit program, including concentrated animal feeding operations
(CAFOs), industrial sites (including construction sites) and municipal separate storm sewer
systems (MS4s). Many others are known as non-point sources and are not regulated by the
CWA. These sources, such as suburban storm water or agricultural farm runoff, require new and
innovative approaches to reduce their impacts on water quality. The sheer magnitude of the
expanding universe of the NPDES program itself, from roughly 100,000 traditional point sources
to nearly a million sources - 95 percent of which are covered by general permits - presents
challenges in how we regulate and enforce the laws of this country.
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National information on significant segments of the NPDES regulated universe, their
violations, their specific impacts to local water bodies, and states' compliance and enforcement
efforts is seriously deficient. States conduct monitoring to identify which waters are passing or
failing state water quality standards, and the causes and sources of impairments, and report this
information biennially to EPA under Section 305(b) and 303(d) of the Clean Water Act. Only 16
percent of the nation's river and stream miles, 39 percent of its lake and reservoir acres, and 29
percent of its bay and estuarine square miles have been monitored, according to the most recent
state-reported assessment findings from 2004. This means we don't know the quality of the vast
majority of the nation's waters. Those limited assessments show that 44 percent, 64 percent, and
30 percent respectively were impaired, meaning they were not clean enough to support their
designated uses, such as swimming or fishing. EPA and states are also encountering significant
impacts to sources of drinking water in many parts of the country due to contamination from
many of these same dischargers (such as CAFOs) to surface waters. This is significant, as
approximately 66 percent of the U.S. gets its drinking water from surface water sources. Thus,
pollution in rivers and streams can make it harder for drinking water suppliers to meet standards
for safe drinking water.
EPA established the NPDES program after the enactment of the CWA in 1972 to control
discharges by establishing permits with discharge limits protective of water quality standards,
and enforcing against those permits. With only a few exceptions, EPA has authorized states to
implement and enforce these programs across the country.1 EPA retains independent
enforcement authority in authorized states and has responsibility to ensure that state programs
are nationally consistent in writing quality permits and enforcing them. To secure the public
health and environmental benefits of our regulations, enforcement programs must consistently
apply the law and pursue vigorous, effective and fair actions to address violations and to protect
water quality. Effective enforcement programs create incentives for compliance by penalizing
those who do not follow the law. They establish a level playing field between those members of
the regulated community who comply and those who do not. Enforcement ensures fair treatment
- companies that compete against each other should not face wide disparities in treatment across
the country, such as mandatory minimum penalties for a violation in one state and no
enforcement in another. Ultimately, enforcement is critical to ensure that the public receives the
services and protections promised by our laws. Unfortunately, data shows us that we are not
getting the compliance envisioned by our laws to protect clean water. While many states have
strong NPDES programs, EPA needs to take prompt actions where a state is not acting to issue
protective permits or taking effective enforcement. EPA's goal in taking these actions is to
ensure equal protection, to strengthen those state programs, and hold states accountable for
needed improvements.
EPA's oversight of state NPDES programs has focused primarily on how well states are
addressing the largest direct discharge facilities that have continuing problems. EPA has fairly
complete information about these biggest facilities, as the facilities are required to submit
monthly reports of their compliance with their permit limits in submissions called Discharge
Monitoring Reports (DMRs). These reports, along with other information about these facilities
and the actions that states take to ensure their compliance, are required to be reported by states to
1 A list of the status of state authorization for the NPDES program can be found at:
http://cfpub2.epa.gov/npdes/statestats.cfm.
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EPA data systems. Even with this focus, the rate of significant noncompliance at these facilities
is approximately 24 percent, meaning that one out of every four had significant violations.
Significant noncompliance (SNC) describes violations that are considered to be more serious and
significant to water quality, although the term only applies to the largest facilities under EPA's
current policy. So, while many serious violations by smaller facilities or other point sources are
not included in the term, it does provide some insight into the serious nature of violations at the
largest facilities.
Most SNC is related to illegal or unpermitted discharges to the environment. Of facilities
designated in SNC in 2008, 46 percent were due to effluent violations - or exceedances for
multiple months of their permit limits, which were set to be protective of water quality. Eleven
per cent of the 2008 SNC were due to violations of a compliance order and thus related to
exceedances of their permit limits as well. Forty-one per cent of the facilities were in SNC
because EPA had not received the required discharge monitoring data. This means that EPA
lacked critical information on whether these facilities were complying with their limits. Some of
these facilities may have submitted their DMRs in a timely manner to the state, but the state did
not provide these data to EPA as required. Reporting violations are important as they are the
only indicator of the compliance level of a facility with its permit. If a facility isn't reporting, we
don't know whether it is violating its permit limits.
Enforcement across states in responding to SNC violations is another important gauge of
performance. Both the Permitting for Environmental Results and the State Review Framework
found that enforcement levels across states varied considerably. Some states rarely take
enforcement action against facilities in significant noncompliance, while other states do pursue
timely and appropriate formal enforcement actions. Still, state and EPA data indicate that formal
enforcement action was taken against only approximately 26 percent of the facilities in SNC in
2008.
For smaller facilities that submit DMRs, EPA has not required the same focus from states
and has not required states to submit data about these facilities to EPA. EPA does not, therefore,
have a national rate for significant noncompliance for these facilities. However, 28 states (and 4
territories and the District of Columbia) have entered some of these data into the national system,
and these data show a rate of serious noncompliance at these facilities of around 45 percent;
states report taking enforcement action against less than six percent of these facilities with a
serious noncompliance problem. As with the larger facilities, there is significant variability
across states, with some pursuing formal enforcement at a much greater rate than others.
State enforcement response to serious violations, whether at large or smaller facilities, is
not what it should be. Without complete and accurate data, it is hard to know how critical the
noncompliance at smaller facilities is to water quality. It is likely that these smaller but more
numerous sources are of critical concern, especially where there are clusters of permitted
facilities around impaired waters. EPA and states need consistent, national data to be able to
formulate appropriate strategies for ensuring compliance from these facilities, and to target
enforcement resources to the sources most affecting water quality.
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Critical information concerning "wet weather" sources - or sources that discharge during
storms or other wet weather events - is also missing. There is an incomplete inventory of
CAFOs, industrial and municipal storm water entities, occurrences of significant sewer
overflows and very limited information concerning actions states are taking to address violations
at these sources. Obtaining data for these sources and for state actions is essential to ensure
adequate oversight and transparency. This Plan is an opportunity to address concerns about high
noncompliance, low enforcement rates, and absence of data across regulated NPDES sources and
states.
EPA must bring together whatever existing data the Agency and states have on water
quality, permitting and violations to help target our enforcement actions to those that will have
the most impact. The Agency has created some important links to other EPA databases, such as
Ask Waters, to improve our ability to show regulated sources with respect to the water bodies
into which they are discharging and whether those bodies are impaired by pollutants discharged
by those sources. These comparisons of water quality and compliance and enforcement
information are important to make sure that an increased focus on enforcement does not create
the incentive to make permit limits easier to comply with. Both protective permits and
enforcement of permit limits should help to attain improved water quality. Linking information
and making information more available and transparent can help engage the public in pressing
businesses to improve compliance and be more accountable. However, much work remains to be
done to create the integrated data set that holistically supports our scientific water quality work
and legal work.
Surface waters that serve as drinking water sources can also be negatively affected by the
permitted facilities, such as CAFOs, whose illegal or unpermitted discharges are impairing our
water bodies. EPA and state tools under the Safe Drinking Water Act (SDWA) also may not be
adequate to address these issues, requiring the need for new approaches. Solving many of these
problems will require further Agency-wide collaborative efforts between OECA, the Office of
Water, EPA regions, states and tribes to strengthen water quality assessment, monitoring,
permitting, and enforcement, and to create an information network vital to all stakeholders.
Solutions to these sources of pollution, whether point sources regulated under the NPDES
program or non-point sources, are paramount to the protection of our waters and their critical
uses.
EPA's challenges in protecting the nation's waters have been increased by recent court
decisions in SWANCC and Rapanos. EPA supports legislative changes to remove the barriers
these decisions have created in clean water enforcement. A May 20, 2009 letter from the EPA
Administrator, along with other members of the Administration, to Senator Boxer, Chair of the
Senate Committee on Environment and Public Works, stated that "enactment of legislation
amending the Clean Water Act that will broadly protect the nation's waters, make the definition
of covered waters predictable and manageable, promote consistency between Clean Water Act
and agricultural wetlands programs, and recognize long-standing practices, would go a long way
toward addressing the substantial confusion and uncertainty arising from those decisions."
These decisions have negatively impacted EPA's ability to enforce by significantly increasing
the amount of time and resources it takes to bring enforcement actions necessary to protect our
waters.
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II. Outreach for Ideas on How to Revamp the NPDES Enforcement Program
To garner a full range of ideas from different perspectives, OECA reached out to other
EPA program offices, the Agency's regional offices, state environmental commissioners and
state water program managers, Indian Tribes and tribal organizations, environmental and
environmental justice community groups, industry representatives, and the academic community.
EPA held face-to-face and telephonic listening sessions with each of these groups of interested
stakeholders, and also received written comments from a number of the participants. EPA also
solicited comments directly from the general public through an EPA blog site. Many of these
ideas have been captured in the Action Plan.
There were common themes that emerged from this outreach. One theme was a common
desire for greater transparency in EPA's enforcement and compliance program through an
increase in the amount, detail and quality of data. Stakeholders expressed an interest in
understanding a holistic picture of environmental conditions and actions that EPA and states are
taking in order to determine how best to engage in helping to protect our water resources.
Suggestions for upgrading EPA's data systems included methods for presenting more
understandable data, and making inspection reports and discharge monitoring reports publicly
available. Environmental organizations and academics advocated posting information about the
frequency of exceedances of CWA permit limits at individual facilities to allow better linkage of
water quality data with compliance information. Industry and the National Association of Clean
Water Agencies were particularly interested in EPA doing a better job of correcting data errors.
States also agreed with the need for transparency, but expressed a desire to find ways to make
sure that data is both accurate and presented in useful context.
Most commenters also endorsed strengthening state and federal enforcement programs,
both in terms of particular changes in program focus and through improved state and federal
program performance overall. Specific activities cited by the public and environmentalists for
increased enforcement were curbing discharges from concentrated animal feeding operations and
addressing construction and industrial storm water violations.
There was extensive and thoughtful input on improving overall program performance,
from revision of EPA enforcement policies to reworking the structure of the state/federal
enforcement relationship and establishing more accountability for underperforming programs.
Ideas were submitted by academics, environmentalists, environmental justice community
organizations, the Environmental Council of States, the Association of State and Interstate Water
Pollution Control Administrators, and others with respect to stronger oversight, improved
coordination, more frequent communication, more joint planning, and the ability to tap into more
federal resources to produce better environmental results. Tribes advocated that EPA do more to
increase tribal enforcement capacity-building while, at the same time, building a greater federal
enforcement presence in Indian Country.
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III. Improvements to the NPDES Compliance and Enforcement Program
New approaches in enforcement can and must play a pivotal role in ensuring that
permitted dischargers comply with their permits, thus achieving the maximum benefits to water
quality from our existing laws and regulations. But enforcement is not the only answer, as many
of the sources contributing to water quality impairments are not covered by current regulations.
Enforcement can play a key role now to better address the expanded NPDES universe and
improve compliance of those sources with their permits, while EPA tackles the hard issues
surrounding the currently unregulated pollution challenges. To begin to address the serious
water quality problems we now face, EPA's enforcement program must work hand-in-hand with
the Office of Water, EPA regions, states, and tribes.
In order to fulfill our responsibilities, we must find new, resource efficient ways of
collecting, using, and making public information about where these sources are, what pollution
they produce, their relationship to water quality, and where violations are most severe. These
sources are vastly greater in number from our traditional focus on the 6,700 biggest industrial
and municipal sources - for example, there are an estimated 19,000 concentrated animal feeding
operations, 89,000 industrial storm water sources and over 200,000 construction storm water
sites. These challenges call for EPA programs and states to work together to ensure that the
limited civil and criminal enforcement resources available to regulatory agencies at all levels are
used effectively to address the most serious water issues. EPA must do everything it can to
support strong state programs and fulfill its oversight responsibilities by taking action where
states underperform.
The input that EPA received from its outreach efforts was surprising in its coalescence
around the following three major themes for action. This Action Plan describes these themes and
identifies key actions to advance the protection of our nation's waters.
A. Target Enforcement to the Most Important Water Pollution Problems
State and Federal water enforcement programs must reshape their efforts to address
significant new threats to water quality. New approaches are needed to revamp our enforcement
program to tackle violations of existing law by the sources of pollution posing the biggest threats
to water quality and public health, while we maintain and improve on the progress we have
already made. The program's existing focus on the biggest facilities and the associated policies
for designating and addressing violations do not consider the full range of the NPDES regulated
universe and may not always allow for responses to be tailored to the type of violation and its
impact. New approaches, policies and procedures to focus enforcement on the most serious
violations adversely affecting water quality are long overdue.
Specific Actions:
To bring about long term change, EPA will develop and implement a new approach for
ensuring appropriate responses to water quality problems and related violations of NPDES
permits across the full universe of regulated facilities. The existing focus on the biggest (or
"major") facilities with individual permits and on enforcement responses to significant
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noncompliance are not easily applied to the expansion of the regulated universe and to the
expanding use of general permits. When these policies were developed in the 1980s, the
universe totaled around 100,000 facilities. Today, the universe has expanded roughly tenfold to
nearly one million facilities, and 95 percent of dischargers are regulated through general permits.
This growth demands new approaches and new tools to focus limited resources toward
addressing these challenges to our water quality.
We will work with states to develop this new approach. We will establish an EPA/State
Work Group to assess the regulated universe and determine appropriate responses. Analysis of
sectors will determine whether problems related to water quality are due to regulatory issues,
inadequate permits, or compliance related issues. Once problems are defined, responses can be
tailored to the specifics of that sector and the specific water quality challenges. Responses might
include enforcement actions, fixes to unclear or problematic regulations, or permit modification
or reissuance to be more protective of water quality. Associated with this review, the effect of
clusters of permitted facilities and their cumulative impact on water quality also needs to be
reviewed.
This new approach will require the creation of new tools to integrate information and
assist in targeting dischargers for compliance monitoring and enforcement, the establishment of
clear and transparent expectations for state programs in implementing this new approach, and the
design of regulatory changes necessary to implement this new approach.
A critical first and immediate step we will take to initiate this new approach is to link
environmental information to compliance data to inform the targeting of our compliance and
enforcement efforts. EPA will incorporate data about water quality standards, existing water
quality status (including information developed in conjunction with establishing Total Maximum
Daily Loads for impaired water bodies), permit limits and effluent violations to evaluate where
violations contribute to water quality impairment. These data currently reside in different
systems and have not been routinely used together to help target serious problems. This effort
would also include analyzing newly available information on pollutant loadings and toxicity
against compliance history and watershed impairment information to identify facilities that
require additional compliance monitoring or civil or criminal enforcement attention. This
analysis 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. Where there are significant information gaps concerning water quality, the locations of
point source discharges, or compliance, EPA will work with states to fill these gaps in order to
make informed decisions on how to deploy limited enforcement resources.
Once we have identified significant point source violations across the spectrum of
regulated facilities that adversely affect water quality, we will work with state programs to
commence appropriate federal and state civil and criminal enforcement actions.
During the process of developing its new approach, EPA commits to making timely,
easily accessible and understandable information available to the public concerning
violations/violators, actions EPA and states are taking to address them, and the effects of our
actions on water quality.
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B. Strengthen Oversight of Clean Water Enforcement Performance
EPA has a responsibility to assure that the protections of the CWA extend to everyone.
Although EPA has authorized 46 states to run the NPDES program, including enforcement of its
requirements, EPA retains the responsibility to ensure that states are protecting water quality and
consistently applying the law through vigorous enforcement. In those states where EPA retains
primary enforcement responsibility, the Agency will set the same expectations for its own
compliance and enforcement programs as those for authorized states. EPA also has direct
implementation responsibilities for territories and Indian Country and must ensure that its
performance meets these same expectations. EPA recognizes that it must be sensitive to the need
to tailor its compliance and enforcement programs for territories and Indian Country to address
the unique challenges faced in these areas.
Many authorized states have strong water quality protection programs. As envisioned by
Congress, states are the first line of environmental defense. States take the lion's share of
inspection and enforcement actions in the programs they implement. States often act as
laboratories where new ideas can be piloted and tested before national deployment. In the
Chesapeake Bay, for example, states and EPA are working together to try new approaches to
dealing with non-point sources that, if successful, might be implemented at the national level.
We can work with and learn from states willing to take a leadership role. However, where states
are not acting to issue protective permits or are not taking enforcement actions to achieve
compliance and remove economic incentives to violate the law, EPA needs to act to strengthen
those programs to protect public health and the environment.
EPA needs to address issues already identified in state performance. Reviews have been
completed of state and regional permit and enforcement programs which have identified program
weaknesses and prescribed steps to improve performance. EPA's Office of Water's Permitting
for Environmental Results and Regional Permit Quality Reviews have evaluated performance in
permit issuance and quality, and OECA's State Review Framework has been used to evaluate
enforcement programs. While none of these reviews offer a definitive determination of the
quality of a state or regional program, they have identified a lack of consistency in performance
across states and highlighted common issues such as permit backlogs, failure to identify
significant noncompliance, or to take timely and appropriate enforcement. EPA must
consistently respond to these issues and press states and ourselves to make the appropriate
improvements in order to achieve equitable protection to the public, a level playing field for
competing businesses, and fairness across states in how our environmental laws are enforced.
Specific Actions:
Much of the regulatory framework, including policies and guidance, driving the CWA
program was developed in the 1980s. Memoranda of Agreement were entered into between EPA
and states when each of the 46 states and the 1 territorial agency received program approval.
Thus, they were negotiated over a 30 year period, each reflecting what was viewed as most
important to include in authorization agreements at the time. These agreements contain different
provisions on a state-by-state and region-by-region basis. As new problems have emerged, as
federal and state programs have matured and as program requirements have broadened, the
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expectations for program implementation have become even more unclear. EPA needs to clearly
articulate where the bar is set for acceptable state clean water programs, and hold states and
ourselves accountable for achieving it. This requires clarity of expectations and more consistent
and clear communications between EPA and states to make sure we are addressing the most
important water quality problems and most serious violations. A formal and consistent planning
and coordination process will help to accomplish this.
EPA needs to set clear expectations for what acceptable performance is and how
performance will be measured. EPA will define and clarify expectations for water permitting
and enforcement programs. Those expectations will be the basis for the development of
performance metrics for permitting and enforcement which will be made public to hold both
EPA and states accountable. EPA will develop these expectations in dialogue with authorized
states.
Once developed, EPA will use the standard set of expectations as a basis for negotiating
consistent enforcement agreements with each state, remedying the outdated, inconsistent and
sometimes problematic Memoranda of Agreement that were developed over time for state
program authorizations. This consistent baseline will do much to assure that states understand
expectations and have the appropriate tools to achieve them.
EPA will also incorporate these new expectations and metrics into a number of formal
planning processes:
•	EPA and state senior management will annually include water quality standards,
permitting and enforcement in planning discussions about appropriate goals,
performance expectations, permitting and enforcement program improvements identified
in program reviews, inspection and enforcement targeting, roles and responsibilities,
work sharing and the avoidance of duplication of effort.
•	Progress will be reviewed periodically throughout the year in meetings between EPA
and states to holistically discuss the attainment of annual water quality, permitting and
enforcement goals and expectations.
•	Water quality, permitting and enforcement expectations should be contributing to the
achievement of the same environmental goals. Enforcement expectations should be a
part of the Water National Program Managers Guidance, which already includes
guidance for the use of CWA §106 grant funds for state water quality monitoring and
permitting. Ensure that the inclusion of performance expectations for the enforcement
program in the grant guidance results in commitments in annual (or biannual) grant work
plans that will achieve both enforcement and water quality goals.
While new approaches and expectations are being designed, ongoing oversight can work
to raise the bar of performance under our current system. Strong enforceable permits are the
cornerstone for effective enforcement, and the two work together to protect the nation's waters.
EPA will pull results together from permit quality and enforcement reviews to determine if states
are meeting minimum expectations for NPDES program performance. In the short term, this will
include the implementation of the State Review Framework and the permit quality reviews
currently being conducted. In the longer term, these tools need to be assessed against the new
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approaches that OECA and the Office of Water are contemplating to ensure alignment with new
directions. Where a state is underperforming, EPA will disapprove permits that are not
protective of water quality and initiate enforcement actions against dischargers to address serious
violations and protect public health and the environment.
EPA will also explore the concerns of citizen groups that some state enforcement actions
have not been effective in achieving compliance. In their input into this Action Plan, some
citizen groups voiced concern that in some cases when they provided a state notice of intent to
file suit, some states would move to block their suit by issuing an administrative order that did
not bring about compliance. To examine this issue, EPA will look into places where this practice
is alleged to be widespread and determine if federal action is necessary.
C. Improve Accountability and Transparency
EPA lacks nationally consistent and complete information on the facilities, permits,
pollutant discharges and compliance status of most NPDES-regulated facilities. This affects the
ability of EPA and states to identify violations, target their actions, connect violations to water
quality impacts, and to share information with the public. Data problems between EPA and
states include data quality, accuracy, and completeness. Responses to these problems are
hindered by the reporting and data processing burden associated with the breadth and expanding
scope of the NPDES regulated universe.
Analyses to identify additional data needs for EPA's permitting and enforcement
program have estimated that, to obtain the level of facility-specific data needed to fully
understand the impact of wet weather discharges and other universes of facilities subject to CWA
requirements (such as biosolids or pretreatment) on our nation's waters, would cost over $100
million/year. Ninety per cent of the burden to enter the needed data is related to the DMRs,
which are provided by permitees to states who then submit the information to EPA. While the
burden can be whittled down considerably by phasing in sources and limiting reporting to when
violations are found or enforcement actions are taken, it is still a considerable investment. In
today's economic situation, where resources are scarce to conduct ongoing work, this state
reporting burden is difficult to justify. EPA needs to explore new ways and new uses of
technology to collect, analyze, use, and make information available to the public in a cost
efficient and effective way.
Transparent information is a powerful self policing tool for reducing pollution and
improving compliance. As we have seen with the advent and use of the Toxics Release
Inventory, sharing information on environmental discharges with the public puts pressure on
regulated facilities to increase compliance, limit environmental damage and be more
accountable. Transparency is not a replacement for regulatory enforcement, but can be an
effective driver for improved performance and accountability.
Specific Actions:
A consensus suggestion across co-regulators and stakeholder groups was to implement
electronic reporting from facilities that are required to submit reports to a regulatory agency.
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Electronic reporting utilizes 21st Century technologies to get information more quickly and
efficiently, enables the real-time use of that information to target serious violations and sources
of water pollution, improves data quality, and provides a more informative and complete picture
to the public. The requirement for permitted facilities to report DMRs monthly results is a huge
reporting burden - for facilities to submit paper DMRs, for states and EPA to manually enter
DMR data into data systems, and for states to then transmit the data to EPA's national database.
EPA and states are constantly dealing with data quality issues and struggling to meet data
timeliness, completeness, and accuracy standards.
In order to ease the reporting burden, increase data accuracy, make real-time data
available to regulators and the public, and allow the more efficient use of limited resources, EPA
recently deployed a new electronic reporting tool called NetDMR (www.epa.gov/netdmr) that
enables regulated facilities to submit their DMRs electronically to the national data system or to
a state system. That information can then be shared immediately between state and federal
systems through EPA's National Environmental Information Exchange Network. OECA can
significantly increase the electronic submission of data by immediately encouraging the
promotion and use of NetDMR or other electronic DMR reporting tools in direct implementation
programs and authorized states. EPA will also initiate an aggressive marketing campaign to the
regulated community to promote electronic reporting. This would include working with small
business to develop capacity and incentives to ensure that they have the ability to electronically
report.
To fully realize the transformation of reporting and data management into the 21st
Century, OECA will develop a rule to require NPDES permittees to provide DMRs
electronically to EPA or states, using either NetDMR or an equivalent state electronic DMR
system, phasing out paper DMR forms. Pilot projects using electronic reporting tools show
limited rates of success unless the tool is mandated. The full benefits of electronic DMR
reporting can only be achieved when implementation is close to 100 percent. EPA estimates that
conversion from hard copy to electronically-submitted DMRs may save EPA, states, and the
regulated sources more than $50 million per year when fully implemented. Real-time
information on discharges and compliance, and their connection to water quality, will increase
accountability for results and enlist the public as allies in the push for better compliance.
EPA will explore other reporting from facilities and authorized states over the next year
to determine if it is feasible and cost effective to implement electronic solutions. Some examples
include: electronic Notices of Intent to Discharge for general permits, non-DMR compliance
reports, inspection results, and electronic permits. Another idea to explore is whether electronic
reporting may provide an opportunity to require a compliance certification by regulated facilities
that currently do not have reporting requirements. This would fill a void by providing regular
data about the discharges and compliance status of those facilities, and better inform regulators
and the public of their status. This will provide a more complete picture of discharges to the
environment and will help to link those discharges to water quality conditions.
Finally, EPA will move immediately toward making additional data that is not
enforcement confidential available to the public, increasing the transparency of its enforcement
program. We will consult users to help simplify EPA's Enforcement and Compliance History
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On-Line (ECHO) public web tool, developing better ways to display data and trends that bring
data to life - including interactive maps and new, simpler reports.
D. Short Term Actions
While we are working to revamp water enforcement to better protect water quality, there
are actions we can take right now to address known compliance and water quality issues.
First, EPA will pursue new strategies to enforce existing rules limiting pollution from
concentrated animal feeding operations (CAFOs), especially where they occur in areas close to
imperiled waters. CAFOs have become larger and more densely located, placing more stress on
waters in proximity to these locations. CAFOs result in a large pollution load to the
environment2 and have been cited as an environmental justice concern in some areas.3 Where
facilities with large numbers of animals are discharging without a permit or in violation of their
permits, they can cause significant pollution problems of concern to communities. Many of the
comments EPA received during its outreach for this Action Plan emphasized the need for EPA to
move now to reduce pollution and address violations by these operations. EPA will review its
existing enforcement tools to find ways to make progress in reducing violations and water
pollution from these facilities, while additional solutions for reducing this pollution are being
developed.
Second, EPA will revisit the division of work with states, many of which are facing near
term serious resource problems. We will review with each state how best to target the resources
we jointly have, so we make sure in the near term that we are addressing the most serious water
pollution violations. As we revamp our enforcement program to more systematically address the
new water pollution challenges, we will work with states now, utilizing the combination of
existing data and targeting tools, to go after the violations we already know are serious problems
for water quality.
Third, EPA will press aggressively for immediate electronic reporting. NetDMR is
available now for facilities to use to electronically report their DMRs. We will urge facilities to
shift to electronic reporting right away, to reduce data entry costs and increase the accuracy and
timeliness of the information we make available to the public.
IV. Resource Issues
The NPDES permitting and enforcement program has expanded its regulated universe
more than tenfold as water quality problems have shifted to smaller, less discrete sources.
Problems have grown more complex, while at the same time court decisions have made our
regulatory authorities less clear. During this expansion, program resources have generally
remained static. Many states are experiencing large reductions in state resources which have
seriously hampered compliance programs. In these tough economic times, it is especially
important to protect responsible businesses that invest in complying with the law by taking
2	An Urgent Call To Action: Report of the State-EPA Nutrient Innovations Task Group, August 2009
3	Environmental Injustice in North Carolina's Hog Industry; Wing et. al.; Environmental Health Perspectives, Vol.
108, March 2000
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enforcement against violators. We know that the existing level of resources at EPA and the
states will not be enough to solve all of our water quality problems. In order to carry out this
Action Plan, EPA and the states will need to engage in serious discussions on directing resources
to the most important water quality problems and most serious violations. We need to ensure
that we utilize the limited resources we do have on the most important sources of pollution and
the most important violations that, if addressed, can result in improvements in water quality and
in people's lives.
V. Conclusion
To help meet this country's expectation that the waters that sustain us are clean and safe,
EPA must revamp its enforcement and compliance program to focus it on the most significant
sources of water pollution and the most significant violations from those facilities. Our water
pollution problems cannot be solved through enforcement alone, as we still do not have effective
rules for many of the threats to clean water. But enforcement can make a significant difference
in improving water quality and upholding our commitments to the rule of law and transparency
in government. Through this Plan, enforcement will work hand-in-hand with water quality
standards and permits to protect the environment and the American public. We will hold states,
and ourselves, to a higher standard of performance. And we will make information about threats
to clean water, violations, and enforcement actions available to the public. This information will
serve as a powerful ally in encouraging businesses to do better, and giving the public the tools to
demand greater compliance and accountability from the regulated community.
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