The Environmental Protection Agency should develop and implement a
Clean Water Act enforcement strategy to better address wetlands,
streams, and other surface waters, the agency's inspector general said
in a report released Oct. 26.
EPA lacks a consistent framework for identifying Section 404
violations, for which it is responsible under a 1989 memorandum of
understanding with the U.S. Army Corps of Engineers, the report said.
Section 404 regulates the discharge of dredge or fill material into
“waters of the United States,” including wetlands and
other surface waters.
“Without an effective framework or strategy, EPA cannot be
assured that it is sufficiently protecting wetlands and other surface
waters from §404 violations involving dredged or fill
activity,” the report said.
The report recommended that EPA create a national tracking system
for complaints and referrals from the corps as well as for repeat and
flagrant violators, improve coordination with the corps, address
barriers to interagency communications, consider leveraging other
resources to identify violations, and develop cross-training
opportunities with other federal agencies and states.
The inspector general also recommended that EPA, in collaboration
with the assistant secretary of the Army for civil works, revise the
agency's 1989 memorandum of agreement.
EPA has the lead enforcement role for flagrant or repeat violations
involving cases in which the violator has not applied for a valid
Section 404 permit through the Corps of Engineers.
Primarily because of a limited field presence, the report said EPA
identifies violations through “a passive, reactive method of
relying on complaints and referrals from external sources.”
EPA relies on external sources, particularly the corps, for
information about violations, and the corps itself takes a reactive
approach to violations, the report said. The corps primarily learns
about Section 404 violations through external sources, often from
citizens, the report said.
National Data Incomplete.
An incomplete national data system and sporadic coordination with
enforcement partners further impair EPA's ability to maintain an
effective Section 404 enforcement program, according to the inspector
general.
The only states that must report their wetlands compliance and
enforcement activities to EPA are those authorized to implement Clean
Water Act Section 404 programs--Michigan and New Jersey. The 29 states
that supplement the program with state enforcement are not authorized
to implement the federal program or obligated to report their program
activities to either EPA or the corps. The remaining 19 states rely on
the federal government for enforcement.
While some states publish annual reports listing wetland violators
by name and providing a list of repeat violations, EPA regional staff
members said they do not use the reports to identify possible Section
404 violations, the inspector general's report said.
EPA's enforcement database does not provide complete Section 404
histories. In addition, EPA staff cannot directly access corps'
enforcement records, the report continued. While the corps' regulatory
database may contain a violator's past history, the history might not
include all state-level enforcement activity, leading to problems in
tracking repeat offenders.
The report cited an “enormous variation” in state
wetlands enforcement programs, which further complicates coordination
efforts.
Although EPA's Office of Enforcement and Compliance Assurance says
EPA should have a process for identifying illegal activities in
wetlands, EPA has no strategy beyond the 1989 memorandum of
understanding with the corps.
The 1989 memorandum provides only general details on cases that
should be referred to EPA, and most EPA regions have not developed a
standard referral process with their corresponding corps' districts,
the report said.
Coordination with federal agencies in developing enforcement cases
also is needed, the inspector general said. For example, the report
said, the Agriculture Department's Natural Resources Conservation
Service prohibits the release of enforcement determinations to
agencies outside the department.
EPA agreed to develop and implement a comprehensive enforcement
strategy, saying it may initially focus or pilot the strategy in a
particular watershed, such as the Chesapeake Bay. The Office of the
Inspector General expressed concern that focusing on a single
watershed will not provide EPA with a comprehensive evaluation.
EPA also said it should gain experience with an enforcement
strategy before revising its 1989 memorandum with the
corps.
Impact of Rapanos Case.
Another issue for EPA is its uncertainty over whether it has the
legal authority to bring enforcement action even when it and its
partners are aware of violations.
Responding to a draft of the inspector general's report, EPA
maintained that the effect of Supreme Court decisions on jurisdiction
over U.S. waters in 2001 and 2006 “cannot be
overstated.”
Following the 2006 Supreme Court split decision in Rapanos v.
United States (
547 U.S. 715, 62 ERC 1481 (2006)), EPA dropped 77 potential Clean
Water Act Section 404 cases between July 2006 and December 2007
because it was uncertain whether it could establish jurisdiction under
the Clean Water Act.
By Linda Roeder
The EPA Office of Inspector General report, EPA Needs a Better
Strategy to Identify Violations of Section 404 of the Clean Water
Act, is available at
http://www.epa.gov/oig/.
Copyright 2009, The Bureau of National Affairs, Inc.