DeFazio, Napolitano Ask for GAO Investigation Into EPA’s Enforcement of Clean Water Protections
Washington, D.C. -- Today, on the 46th anniversary of enactment of the Clean Water Act, House Committee on Transportation and Infrastructure Ranking Member Peter DeFazio (D-OR) and Ranking Member of the House Subcommittee on Water Resources and the Environment Grace F. Napolitano (D-CA) sent a letter to the U.S. Government Accountability Office (GAO) requesting an investigation into the U.S. Environmental Protection Agency’s (EPA) implementation and enforcement of the Clean Water Act, including its oversight of State programs. The letter is in response to recent reports on a significant decline in Clean Water Act enforcement efforts undertaken by EPA under President Trump.
“We are concerned that the Trump EPA is actively dismantling effective enforcement of the Clean Water Act, both within EPA itself and through reduced oversight of approved State programs. First, we are concerned that the Trump EPA is significantly underfunding those Federal programs responsible for oversight and enforcement of our Nation’s environmental laws, including the Clean Water Act…In addition, in December 2017, we received reports that several EPA regional offices were announcing efforts to lessen their oversight of State programs, including Clean Water Act programs,” the Members wrote.
In June, DeFazio and Senator Tom Carper, Ranking Member of the Senate Environment and Public Works Committee sent a similar letter to the Department of Justice and EPA expressing concern that EPA is slowing and in some cases ending enforcement of the Clean Water Act. However, to date, no response has been received from the Trump administration.
In this letter, DeFazio and Napolitano request that the GAO independently review a number of critical concerns they have about the EPA’s current environmental site-inspection and enforcement responsibilities, including staffing shortages, inadequate inspections, and shifting enforcement priorities that could jeopardize water quality and public health.
The full letter can be found below.
October 18, 2018
The Honorable Gene L. Dodaro
U.S. Government Accountability Office
441 G Street, N.W.
Washington, D.C. 20548
Dear Comptroller General Dodaro:
We write to request that the U.S. Government Accountability Office (GAO) investigate the U.S. Environmental Protection Agency’s (EPA) implementation and enforcement of the Clean Water Act, including its oversight of approved State programs. We are concerned with recent reports on a significant decline in Clean Water Act enforcement efforts undertaken by EPA under President Trump as well as on a shift away from demonstrable enforcement of our Nation’s environmental laws by EPA’s Office of Enforcement and Compliance Assistance (OECA).
Today marks the 46th anniversary of enactment of the Clean Water Act. This landmark environmental law has played a critical role in reducing water pollution and improving the health of the Nation’s waterways, and in turn, the protection of human health and the environment. Congress vested EPA with primary Federal responsibility for implementation of the Clean Water Act, and authorized approved States to co-administer the program with sufficient Federal oversight. EPA administers its environmental enforcement responsibilities through OECA. While OECA provides overall direction on enforcement policies, and occasionally takes direct enforcement action, much of its enforcement responsibilities are carried out by its 10 regional offices. These regional offices, in addition to taking direct enforcement action, oversee the enforcement programs of State agencies that have been delegated authority for enforcing Federal environmental protection requirements.
Over the years, GAO has undertaken several investigations of EPA’s oversight and enforcement of the Clean Water Act. The GAO has previously highlighted how inadequate enforcement prioritization and resources have a negative effect on EPA’s ability to ensure efficient and effective implementation of the Clean Water Act, and its obligation to ensure safe water. As GAO has previously noted, “compliance with the nation's environmental laws is the goal, and enforcement is a vital part of the effort to encourage State and local governments, companies, and others who are regulated to meet their environmental obligations. Enforcement deters those who might otherwise seek to profit from violating the law, and levels the playing field for environmentally compliant companies.”
We are concerned that the Trump EPA is actively dismantling effective enforcement of the Clean Water Act, both within EPA itself and through reduced oversight of approved State programs.
First, we are concerned that the Trump EPA is significantly underfunding those Federal programs responsible for oversight and enforcement of our Nation’s environmental laws, including the Clean Water Act. For example, in its fiscal year 2019 budget request, the Trump administration proposed to cut the budget of EPA by more than 23 percent and to promote greater State implementation and enforcement of environmental laws in an effort to “rebalance the power between Washington and the states”. We are concerned that this effort is a loosely-veiled attempt to weaken effective enforcement of the Clean Water Act, and are equally concerned that States will not have sufficient resources to adequately fill in those areas formerly addressed by EPA.
In addition, in December 2017, we received reports that several EPA regional offices were announcing efforts to lessen their oversight of State programs, including Clean Water Act programs. Soon afterward, in a March 2018 memo, the political head of OECA imposed new procedural hurdles on how future enforcement cases would be referred from regional offices to EPA headquarters, including a requirement for specific sign-off by agency political appointees. We have received information that this new political-process has significantly curtailed the Federal inspection responsibilities and the number of enforcement referrals made to EPA staff. What staff described as normally being a steady stream of Federal inspection-led enforcement referrals from regional offices to EPA headquarters during prior administrations has all but stopped under Trump’s EPA.
Similarly, in August 2018, EPA quietly initiated an effort to weaken EPA’s national enforcement activities and turn towards an undefined “national compliance initiative”. While the exact implications of this effort are not clear, in the context of other actions by Trump’s EPA to weaken Federal oversight and enforcement of the Clean Water Act, we are concerned that this effort will further fail to hold polluters accountable for their actions, fail to provide any effective deterrent against other potential polluters, and fail to ensure the health of the public or our Nation’s waters and environment.
Finally, several watchdog groups have issued reports highlighting President Trump’s failing Clean Water Act enforcement program. For example, one recent report highlighted how, over a 21-month period ending September 2017, “major industrial facilities released pollution that exceeded the levels allowed under their Clean Water Act permits more than 8,100 times . . . [and, often], these polluters faced no fines or penalties.” Similarly, two separate reports highlighted how the Trump EPA finalized fewer civil enforcement actions in its first year, including actions under the Clean Water Act, than the previous three administrations during a similar timeframe. Further, for those enforcement actions actually taken by Trump’s EPA, many were actually initiated during the Obama administration, so we believe that the disparity on EPA enforcement will only worsen as additional data becomes available.
We recognize the importance of an effective partnership between the EPA and approved States in implementing the Clean Water Act. However, we believe, as GAO has noted in the past, that protection of public health, local water quality, and the environment depends on effective and predictable oversight and enforcement by both Federal and State agencies, and that is possible only through a robust presence by both parties.
As part of GAO’s review of EPA’s implementation and enforcement of the Clean Water Act, including its oversight of approved State programs, we request your review provide information to address the following questions:
- What are EPA’s current environmental site-inspection and enforcement responsibilities and practices for implementation of the Clean Water Act, both at EPA headquarters and at the EPA regional offices? How have these responsibilities and practices changed during the current administration, when compared to the previous administration? For example, are the number and nature of inspections undertake by EPA regional staff or enforcement referrals from regional offices to EPA headquarters significantly different from the previous administration?
- Describe whether the number (including budget allocation and FTEs) and responsibilities of EPA enforcement staff (both at EPA headquarters and regional offices) have changed since the prior administration. Please describe any consequence of these changes.
- Describe whether there has been a significant change in EPA’s oversight of approved State Clean Water Act programs during the current administration (since January 2017). Please include quantitative data on the number of site inspections or enforcement referrals or actions taken by regional offices prior to and after January 2017. Please include specific examples of instances where EPA regional offices have undertaken enforcement actions (including periodic inspections) of Clean Water Act permit holders since January 2017, and any notable differences in the types or number of such actions when compared to previous administrations.
- In its August 2018 memorandum on the national compliance initiative, EPA announced proposed changes to the current national enforcement priorities under the Clean Water Act, dropping priorities related to combined and sanitary sewer overflows, stormwater, and animal feeding operations. Please describe the progress EPA has made to date in addressing these priorities, and whether such progress justifies diminished EPA attention to these water quality threats in the future. Also, please provide your analysis of EPA’s potential shift from enforcement priorities to compliance assistance, and any safeguards that GAO would recommend to ensure effective Federal implementation of the Clean Water Act.
- Has there been a demonstrable difference between the Clean Water Act enforcement efforts during Trump administration and prior administrations, as suggested by the reports referenced in this letter? Have the enforcement efforts initiated by this administration changed from those initiated by the prior administration? Please describe.
- In prior GAO reports, you noted that EPA's implementation of GAO recommendations has been uneven and several of the issues GAO identified over the last decade remain unaddressed today. For example, GAO noted that EPA needs: (1) comprehensive, accurate, and reliable data that would allow it to better target limited resources to those regions and potential pollution problems of the greatest concern; (2) better processes to plan and allocate resources to ensure that the greatest risks are being addressed; and (3) accurate and transparent measures to report on whether the Clean Water Act is being consistently implemented across the country in all regions and that like violations are being addressed in the same manner. Please provide an update of EPA efforts to address these previous GAO recommendations.
We thank you for your prompt attention to this matter. Please contact Ryan C. Seiger or Mike Brain of the Subcommittee on Water Resources and Environment at (202) 225-0060 to discuss the specific scope of work and a timeline for completing this request.
PETER DeFAZIO GRACE F. NAPOLITANO
Ranking Member Ranking Member
Committee on Transportation Subcommittee on Water Resources
and Infrastructure and Environment
 See “Under Trump, E.P.A. Has Slowed Actions Against Polluters, and Put Limits on Enforcement Officers”, The New York Times (December 10, 2017); see also Environment America and Frontier Group, Troubled Waters: Industrial Pollution Still Threatens American Waterways, March 15, 2018 (https://environmentamerica.org/reports/amc/troubled-waters); Environmental Integrity Project, Paying Less to Pollute: A Year of Environmental Enforcement Under the Trump Administration, February 15, 2018 (https://www.environmentalintegrity.org/reports/paying-less-to-pollute/); and Public Citizen, Corporate Impunity: “Tough on Crime” Trump Is Weak on Corporate Crime and Wrongdoing”, July 25, 2018 (https://www.citizen.org/sites/default/files/corporate-enforcement-public-citizen-report-july-2018.pdf).
 See U.S. General Accounting Office, Observations un EPA and State Enforcement Under the Clean Water Act, GAO T-RECD-91-53 (May 14, 1991); U.S. General Accounting Office, Environmental Protection: More Consistency Needed Among EPA Regions in Approach to Enforcement, GAO RCED-00-108 (June 2, 2000); U.S. Government Accountability Office, Environmental Compliance and Enforcement: EPA’s Effort to Improve and Make More Consistent Its Compliance and Enforcement Activities, GAO-06-840T (June 28, 2006); and U.S. Government Accountability Office, Clean Water Act: Longstanding Issues Impact EPA’s and States’ Enforcement Efforts, GAO-10-165T (October 15, 2009).
 U.S. Government Accountability Office, Environmental Compliance and Enforcement: EPA’s Effort to Improve and Make More Consistent Its Compliance and Enforcement Activities, GAO-06-840T (June 28, 2006).
 See Institute for Policy Integrity, “Irreplaceable: Why States Can’t and Won’t Make Up for Inadequate Federal Enforcement of Environmental Laws”, https://policyintegrity.org/publications/detail/epa_enforcement.
 See “EPA Enforcement Letter May Signal Weaker Oversight of States’ Programs”, InsideEPA (December 5, 2017).
 See “The Energy 202: Trump appointee at EPA to scrutinize which pollution cases may go do court”, The Washington Post (June 15, 2018).
 See Troubled Waters Note 1.
 See Paying Less to Pollute, Note 1, and Corporate Impunity, Note 1.
 See Corporate Immunity Note 1, at 74. Ironically, when the Trump EPA issued an assessment of its fiscal year 2017 annual enforcement results, a significant number of the Clean Water Act enforcement accomplishments were initiated under the Obama administration. See https://www.epa.gov/newsreleases/epa-announces-2017-annual-environmental-enforcement-results.
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