U.S. ENVIRONMENTAL PROTECTION AGENCY 

OFFICE OF INSPECTOR GENERAL 

Catalyst for Improving the Environment 

 Evaluation Report 

EPA Should Revise 

Outdated or Inconsistent 

EPA-State Clean Water Act 

Memoranda of Agreement 

Report No. 10-P-0224 

 September 14, 2010 
Report Contributors: Dan Engelberg 

Kathlene Butler 

Charles Brunton 

 Anthony Chirigotis 

 Julie Hamann 

 Melba Reed 

Abbreviations 

CFR Code of Federal Regulations 

CWA Clean Water Act 

EPA U.S. Environmental Protection Agency 

GAO U.S. Government Accountability Office 

MOA Memorandum of Agreement 

NPDES National Pollutant Discharge Elimination System 

OECA Office of Enforcement and Compliance Assurance 

OIG Office of Inspector General 

OW Office of Water 
 

 

 

U.S. Environmental Protection Agency 10-P-0224 

September 14, 2010 Office of Inspector General 

At a Glance 

Catalyst for Improving the Environment 

Why We Did This Review 

This review is part of a series the 

Office of Inspector General is 

conducting of U.S. 

Environmental Protection 

Agency (EPA) oversight of State 

enforcement programs. We 

assessed whether EPA’s 

memoranda of agreement 

(MOAs) with States related to the 

National Pollutant Discharge 

Elimination System (NPDES) 

program impede consistent EPAState enforcement and to what 

degree MOAs comply with 

federal requirements under the 

Clean Water Act (CWA). 

Background 

The CWA allows EPA to 

authorize States to operate the 

NPDES program if States meet 

certain criteria. States cannot 

operate NPDES programs on 

behalf of EPA without an 

authorizing MOA. MOAs should 

establish the foundation for EPA 

management control and 

oversight, ensure that CWA goals 

are being met, and ensure 

national consistency of State 

NPDES programs. 

For further information, 

contact our Office of 

Congressional, Public Affairs and 

Management at (202) 566-2391. 

To view the full report, 

click on the following link: 

www.epa.gov/oig/reports/2010/ 

20100914-10-P-0224.pdf 

EPA Should Revise Outdated or 

Inconsistent EPA-State Clean Water Act 

Memoranda of Agreement 

What We Found 

NPDES MOAs between EPA and States do not ensure Agency management 

control and effective oversight over a national program administered by States 

that is capable of providing equal protection to all Americans. EPA 

Headquarters does not hold EPA regional or State offices accountable for 

updating their MOAs when necessary and relies on other planning and 

management mechanisms to exercise control over State programs. However, 

MOAs are critical because they are the common denominator for Stateauthorized programs and should represent a common baseline. Outdated 

MOAs or MOAs that are not adhered to reduce EPA’s ability to maintain a 

uniform program across States that meets the goals of CWA sections 101 and 

402. An effective national program must maintain consistent management 

control and oversight of State programs. 

What We Recommend 

We recommend that EPA ensure that all NPDES MOAs contain essential 

elements for a nationally consistent enforcement program, including CWA, 

Code of Federal Regulations, and State Review Framework criteria. We 

recommend that EPA develop and provide a national template and/or guidance 

for a model MOA; direct EPA regions to revise outdated or inconsistent MOAs 

to meet the national template and standards; and establish a process for 

periodic review and revision of MOAs, including when the CWA or Code of 

Federal Regulations are revised or when State programs change. Finally, we 

recommend that EPA establish a national, public clearinghouse of all current 

MOAs so that EPA, States, and the public have access to these documents. 

EPA generally agreed with our recommendations, saying it would coordinate 

assessment and revision of NPDES MOAs with implementation of the CWA 

Action Plan. Three recommendations are open and one recommendation is 

listed as undecided. In its final response to this report, EPA should provide 

estimated or actual completion dates for all recommendations. 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

THE INSPECTOR GENERAL 

September 14, 2010 

MEMORANDUM 

SUBJECT: EPA Should Revise Outdated or Inconsistent EPA-State 

Clean Water Act Memoranda of Agreement 

Report No. 10-P-0224 

FROM: Arthur A. Elkins, Jr. 

Inspector General 

TO: Bob Perciasepe 

Deputy Administrator 

This is our report on the subject evaluation conducted by the Office of Inspector General (OIG) 

of the U.S. Environmental Protection Agency (EPA). This report contains findings that describe 

the problems the OIG has identified and corrective actions the OIG recommends. This report 

represents the opinion of the OIG and does not necessarily represent the final EPA position. 

Final determinations on matters in this report will be made by EPA managers in accordance with 

established audit resolution procedures. 

The estimated cost of this report – calculated by multiplying the project’s staff days by the 

applicable daily full cost billing rates in effect at the time and adding travel costs – is 

$660,519. 

Action Required 

In accordance with EPA Manual 2750, you are required to provide a written response to this 

report within 90 calendar days. You should include a corrective actions plan for agreed-upon 

actions, including milestone dates. Your response will be posted on the OIG’s public Website, 

along with our comments on your response. Your response should be provided in an Adobe 

PDF file that complies with the accessibility requirements of section 508 of the Rehabilitation 

Act of 1973, as amended. If your response contains data that you do not want to be released to 

the public, you should identify the data for redaction. We have no objections to the further 

release of this report to the public. This report will be available at http://www.epa.gov/oig. 

If you or your staff have any questions regarding this report, please contact Wade Najjum 

at (202) 566-0832 or najjum.wade@epa.gov, or Dan Engelberg at (202) 566-0830 or 

engelberg.dan@epa.gov. 
 

 

 

 

 

 

 

 

 

EPA Should Revise Outdated or Inconsistent 10-P-0224 

EPA-State Clean Water Act Memoranda of Agreement 

Table of Contents 

Chapters 

1 Introduction ........................................................................................................ 1 

Purpose ....................................................................................................... 1 

Background ................................................................................................. 1 

 Scope and Methodology.............................................................................. 4 

2 Outdated or Inconsistent MOAs Impede Enforcement................................... 6 

MOAs Are Missing Key Regulatory Requirements...................................... 6 

Most MOAs Are Outdated ........................................................................... 8 

MOAs Are Inconsistent across Regions and States.................................... 11 

Some MOAs Contain Provisions that Are Inconsistent with the CWA......... 12 

Some EPA Regions Do Not Use MOAs to Manage State 

 Enforcement Programs........................................................................... 12 

EPA Could Establish a National Baseline for CWA Implementation 

 with an MOA Template........................................................................... 14 

Conclusion................................................................................................... 15 

 Recommendations ...................................................................................... 15 

Agency Response and OIG Comment ........................................................ 16 

Status of Recommendations and Potential Monetary Benefits.............................. 17 

Appendices 

A List of CFR Criteria for MOA Assessment ....................................................... 18 

B Detailed Methodology........................................................................................ 21 

C OIG Analysis of MOAs by CFR Section ........................................................... 24 

D Agency Response and OIG Comment ............................................................. 26 

E Distribution ........................................................................................................ 30 
 10-P-0224 

Chapter 1

Introduction 

Purpose 

We sought to determine the degree to which Clean Water Act (CWA) National 

Pollutant Discharge Elimination System (NPDES) memoranda of agreement 

(MOAs) between the U.S. Environmental Protection Agency (EPA) and States 

comply with federal requirements, and whether MOAs impede EPA’s ability to 

exercise consistent management controls and oversight of State enforcement 

activities. Past reviews by the EPA Office of Inspector General (OIG) and others 

identified widespread enforcement problems. Although there are many causes for 

this common pattern of noncompliance, the EPA Office of Enforcement and 

Compliance Assurance (OECA) identified poor quality MOAs between EPA and 

States as one impediment to consistent enforcement. OECA requested that the 

EPA OIG evaluate the issue. This evaluation is part of a series of OIG reviews of 

EPA oversight of State enforcement programs. 

Background 

EPA is the responsible agency for implementing the 1972 CWA. Congress 

designed the CWA to restore and maintain the chemical, physical, and biological 

integrity of the Nation’s waters. As part of the CWA, the NPDES program 

regulates pollution to waterbodies. The CWA allows EPA to authorize States, 

tribes, and territories to operate the NPDES program if these entities demonstrate 

they have the authority and capability to run the program, and if their 

environmental enforcement authorities are at least as stringent as federal law. 

Both the U.S. Government Accountability Office (GAO) and the EPA OIG have 

frequently reported on problems with EPA-State enforcement. 

MOAs, which are part of the States’ application for NPDES authorization, are 

required, foundational documents between EPA and States. They define baselines 

and set collaborative expectations for program characteristics, permitting, 

monitoring, inspections, and enforcement, and are required by a unique set of 

federal regulations. Title 40 Code of Federal Regulations (CFR) Part 123, 

designed for the NPDES program, sets out MOAs as an instrument for ensuring 

that EPA and States adhere to the CWA. EPA’s Deputy Administrator has overall 

authority for directing regional offices to revise MOAs. 

1 
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CWA Enforcement Is Principally Implemented by States, but EPA 

Retains Authority 

EPA has a vital role in ensuring that States, which largely implement the CWA, 

implement nationally consistent programs that offer equal protection from 

pollution to all Americans. EPA has given NPDES authority to 46 States and the 

U.S. Virgin Islands, beginning with California in May 1973 and most recently 

giving authority to Alaska in October 2008. As envisioned by Congress in the 

CWA, States form the first line of environmental defense: States take the 

majority of inspection and enforcement actions in the programs they implement. 

However, EPA does not forfeit its authority to independently review and overrule 

permits, conduct compliance inspections, issue violations, or take enforcement 

actions when it authorizes a State program. EPA remains responsible for ensuring 

that States operate NPDES programs in a manner that achieves national 

enforcement goals, protects public health and the environment, and is consistent 

with the CWA and the CFR. 

EPA is the primary entity that can ensure national consistency. National 

consistency offers equal protection from pollution to all Americans, and is also 

vital to establishing a level playing field for regulated facilities so that no State 

has an economic advantage. 

Authorization MOAs Establish the Foundation for Consistent 

Management Control 

Office of Management and Budget guidance directs government agencies to 

operate programs using adequate management controls to ensure effective 

program operation. Management controls involve planning, oversight, and 

reporting systems. As part of a system of national management controls, the CFR 

requires authorization MOAs between EPA and every State operating an NPDES 

enforcement program. NPDES authorization MOAs (hereafter referred to as 

MOAs) must contain and meet relevant regulatory provisions. The CFR outlines 

a national baseline and expectations for the roles and responsibilities of EPA and 

States for the NPDES program. MOAs provide a foundation for national 

consistency for NPDES program enforcement. For example, MOAs must not 

contain any provisions restricting EPA’s statutory oversight responsibility. In 

addition, renegotiation of MOAs can occur at any time to accommodate changes 

in federal and State laws and EPA-State agreements. The CFR states that no 

EPA-State agreement may override the MOA and requires the MOA, the annual 

program grant, and other EPA-State agreements should be consistent. See 

Appendix A for a list of CFR criteria for MOAs. 

Although the foundations of the EPA-State enforcement relationship are built 

upon authorization agreements and the accompanying MOAs, EPA and States 

also use other annual and multiyear planning tools to set short-term expectations, 

establish measures, and set performance goals. The annual and multiyear 

2 
 

 

 10-P-0224 

planning documents used by EPA regions and States vary by region and by State 

and are not required by regulation. A senior EPA official described the EPAState NPDES relationship as a “layer cake,” with several layers of documents and 

agreements. The official said that EPA plans to address the multilayered EPAState structure by simplifying the State-EPA enforcement process and 

accompanying document requirements. 

EPA’s Enforcement Performance Has Been Questioned 

In 2005, EPA initiated the State Review Framework, a formal process using 

standardized criteria, collaboratively developed by OECA, EPA regions, States, 

and the Environmental Council of the States, to gauge State performance in 

compliance assurance and enforcement. EPA wanted to increase its oversight 

inspections and other direct actions in the States. EPA reviewed State data, 

inspection and enforcement files, negotiated commitments, management 

discussions with the State, and other existing assessments. Through its reviews, 

EPA identified four programmatic deficiencies in State enforcement: data 

quality, identification of significant violations, the timeliness of enforcement 

actions, and penalties. 

In October 2009, the EPA Administrator testified before the House Transportation 

and Infrastructure Committee that EPA was falling short of expectations for 

effective and fair enforcement of the CWA: 

Data available to EPA shows that, in many parts of the country, 

the level of significant non-compliance with permitting 

requirements is unacceptably high and the level of enforcement 

activity is unacceptably low. For example, one out of every four 

of the largest Clean Water Act dischargers had significant 

violations in 2008. Many of these violations were serious 

effluent violations or failure to comply with enforcement orders. 

The government’s enforcement response to these violations is 

uneven across the country. For example, a violation in one State 

results in the assessment of mandatory minimum penalties, while 

in another State, no enforcement action is taken for the same 

violation. This situation creates a competitive disadvantage for 

States that are enforcing the law. We need to change this. Strong 

and fair compliance and enforcement across the country is vital 

to establishing a level playing field for industrial facilities, 

preventing some regions from attempting to achieve an economic 

advantage over others.1 

1

 Testimony of Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency, Before the Committee on 

Transportation and Infrastructure, U.S. House of Representatives, October 15, 2009. 

http://www.epa.gov/ocir/hearings/testimony/111_2009_2010/2009_1015_lpj.pdf. 

3 
 

 

 

 

 

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Both GAO and the EPA OIG have frequently reported on problems with the EPAState enforcement relationship, noting key issues such as data quality, 

identification of violations, issuing enforcement penalties and other enforcement 

actions in a timely and appropriate manner, and general oversight issues. See 

Appendix B for a list of reports on these issues. 

In its October 2009 testimony before the House Transportation and Infrastructure 

Committee, GAO reported that longstanding issues impact EPA and State 

enforcement efforts.2

 For example, findings from a GAO enforcement report in 

2000 demonstrated that local variations among EPA’s regional offices led to 

inconsistencies in the actions they take to enforce environmental requirements.3 

In 2004, the EPA OIG responded to a congressional request to review the Region 

3 NPDES program.4 In part, the OIG found that the MOAs between the States 

and Region 3 were all more than 10 years old at the time and included outdated 

requirements. These MOAs had not been revised as of the date of this report. 

Scope and Methodology 

EPA provided the OIG with the 46 State MOAs that were in force at the time we 

began this evaluation, as well as South Carolina’s draft revised MOA. 

The OIG identified 46 regulatory requirements that apply to State NPDES 

enforcement programs. These requirements are contained in Title 40 CFR 

Sections 123.24, 123.26, and 123.27 and were the criteria by which we reviewed 

the 46 MOAs. See Appendix A for the list of criteria. 

The criteria fall into two categories. The first category consists of requirements 

for MOA documents themselves (Title 40 CFR 123.24), and the second category 

consists of criteria that while not required to be contained within MOA 

documents, are required for NPDES programs themselves (Title 40 CFR 123.26 

and 123.27). We excluded two CFR criteria in these sections because they 

pertained specifically to States with federally recognized Indian tribes.5 

The OIG rated each of the 46 MOAs for inclusion of statements addressing each 

regulation. For each of the 46 criteria, the OIG rated the MOA as a “0” (does not 

address this element), “1” (addresses the element in some way), or “2” (addresses 

2

 Testimony of Anu K. Mittal, Director, Natural Resources and Environment Team, U.S. Government 

Accountability Office, Before the Committee on Transportation and Infrastructure, U.S. House of Representatives, 

“Clean Water Act: Longstanding Issues Impact EPA and States’ Enforcement Efforts,” October 15, 2009. 3

 GAO, Longstanding Issues Impact EPA’s and States’ Enforcement Efforts, GAO-10-165T, October 15, 2009. 4

 EPA-OIG, Congressionally Requested Review of EPA Region 3's Oversight of State National Pollutant Discharge 

Elimination System Permit Programs, Report No. 2005-S-0002, October 29, 2004. 5 Title 40 CFR 123.24(b)(1)(ii) says that where a State is authorized to issue permits on the Federal Indian 

reservation of the Indian tribal seeking approval, MOAs should include provisions for transferring relevant 

information if the Indian Tribe does not already have the documents. We excluded this criterion from the 46-State 

analysis. Title 40 CFR 123.27(e) is intended for inclusion in joint State-tribe-EPA MOAs or tribal-EPA MOAs. We 

excluded it as well based on the rationale above. 

4 
 10-P-0224 

the element verbatim or in synonymous language). Each MOA thus received an 

overall score in our analysis based on a maximum of 92 points. The OIG does not 

deem this evaluation system comprehensive of all CFR and other requirements. 

However, the system serves as one indicator of MOA comprehensiveness. The 

OIG did not evaluate other EPA-State agreements for their inclusion of criteria 

not contained in MOAs. 

The OIG also gathered evidence from interviews with EPA and external 

environmental groups. EPA interviews included the Deputy Administrator; 

OECA officials; and EPA personnel in Regions 1, 4, 8, and 10. Environmental 

groups interviewed were the Association of State and Interstate Water Pollution 

Control Administrators, the Environmental Council of the States, and the 

Environmental Integrity Project. These groups were selected for OIG interviews 

because they are key stakeholders and liaisons for State-EPA enforcement issues. 

The OIG conducted this evaluation in accordance with generally accepted 

government auditing standards. Those standards require that we plan and perform 

our work to obtain sufficient, appropriate evidence to provide a reasonable basis 

for our findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our evaluation objective. We conducted our evaluation 

from October 2009 through June 2010. 

For additional information about our methodology, see Appendix B. 

5 
 10-P-0224 

Chapter 2

Outdated or Inconsistent MOAs 

Impede Enforcement 

MOAs between EPA and States that are out of date or inconsistent hinder Agency 

management control and effective oversight over a national program administered 

by States that is capable of providing equal protection to all Americans. EPA 

does not hold regional or State offices accountable for updating their MOAs when 

necessary and relies on other planning and management mechanisms to exercise 

control over State programs. However, MOAs are critical because they are the 

common denominator for State-authorized programs and should represent a 

common baseline. MOAs that are outdated MOAs or not adhered to reduce 

EPA’s ability to maintain a uniform program across States that meets the goals of 

CWA sections 101 and 402. 

MOAs Are Missing Key Regulatory Requirements 

MOAs were missing key requirements of Title 40 CFR 123.24. MOA documents 

also lacked MOA-specific program regulations contained in Title 40 CFR 123.26 

and 123.27. For each of the 46 criteria, OIG rated the MOA as a “0” (does not 

address this element), “1” (addresses the element in some way), or “2” (addresses 

the element verbatim or in synonymous language). Figure 2-1 shows that across 

all regulatory criteria, MOAs did not contain 39 percent of the criteria, and that 61 

percent of regulatory criteria are either not addressed or only partially addressed. 

EPA should define the requirements for management control of a nationally 

consistent enforcement program, and then review each State MOA to determine 

which MOAs are adequate and which MOAs need to be revised. 

Figure 2-1: Degree to Which MOAs Meet Regulatory Requirements 

37% 39% 

Number of 0s 

Number of 1s 

Number of 2s 

24%
 

Source: OIG assessment of NPDES MOAs. 

6 
 10-P-0224 

MOAs did not address key regulatory requirements for MOA documents. For 

example, the CFR requires that States establish data management systems to 

support their compliance evaluation activities. Twenty percent of the MOAs did 

not contain any language about a data management system. This does not mean 

the State does not have such a system or that the system is not discussed in 

another document. However, because the primary, required document, the MOA, 

does not mention it, EPA cannot readily determine whether there is nationwide 

uniformity in data management systems. 

MOAs also did not include a number of the additional regulatory program 

requirements contained in Title 40 CFR 123.26 and 123.27. These additional 

requirements correspond to the programmatic deficiencies that OECA identified 

in its first-round State Review Framework evaluations (data quality, identification 

of significant violations, the timeliness of enforcement actions, and penalties). 

For example, the CFR requires that States establish minimum civil penalty 

policies, such as the ability to assess at least a $5,000 penalty per day for each 

NPDES violation. The State Review Framework identified penalty calculation as 

a comprehensive weakness. Fifty-four percent of MOAs did not include any 

language about minimum civil penalty standards (i.e., received a score of “0” for 

this element). Only 1 of the 46 MOAs specified that the minimum penalty per 

day, per violation, would be $5,000 (a score of “2”). 

MOAs most comprehensively addressed the MOA-specific regulations (CFR 

123.24), containing these requirements 77 percent of the time. MOAs contained 

fewer requirements in the non-MOA-specific monitoring and inspections section 

(65 percent for CFR 123.26) and fewest in the enforcement section (36 percent for 

CFR 123.27). For example, 63 percent of the MOAs did not include language 

verifying that no other State enforcement agreement could override the MOA, as 

required by CFR 123.24(c). Eighty percent of MOAs did not note whether the 

State had the authority to enter any permitted facility (123.26(c)). Figure 2-2 

shows how the percentage of missing regulations varied according to the CFR 

section under review. 

7 
 

 

 

 

 

 

 

 10-P-0224 

Figure 2-2: Distribution of Scores by CFR Section 

Title 40 CFR 123.24 Title 40 CFR 123.26 Title 40 CFR 123.27 

12% 

23%
 

40%
 

56%
 

21% 

35%
 

24%
 

25%
 

64% 

Source: OIG assessment of NPDES MOAs. 

Although the regulations listed in CFR 123.26 and 123.27 are not required to be 

included in MOA documents, the confluence of the overarching State Review 

Framework issues and the missing regulations in MOAs leads us to believe that 

State enforcement programs would be improved by standardizing and 

renegotiating authorization MOAs to include language addressing these 

regulations.6 

Most MOAs Are Outdated 

The CFR provides that EPA and States can revise MOAs at any time, and 

89 percent of the MOAs that we reviewed contained a statement to that effect. 

However, existing MOAs do not contain any time-set periodic reevaluation 

clauses. EPA Headquarters has not advised regions to revisit MOAs to ensure 

that they are relevant, nor has it developed a periodic review process to ensure 

that MOAs remain up to date. As a result, most initial MOAs have not been 

revised. EPA should establish a process for regularly reviewing the adequacy of 

existing MOAs and ensuring that MOAs keep up with changing regulations. 

6

 Title 40 CFR 123.24(b)(1)(ii) says that where a State is authorized to issue permits on the Federal Indian 

reservation of the Indian tribal seeking approval, MOAs should include provisions for transferring relevant 

information if the Indian Tribe does not already have the documents. Our MOA assessment excluded this criterion 

from the 46-State analysis. Nonetheless, of the 31 States with both federally recognized Indian tribes and delegated 

NPDES programs, only 10 contained the necessary information pertaining to the possible transfer of the relevant 

program information and permit files for Indian tribes. Title 40 CFR 123.27(e) is intended for inclusion in joint 

State-tribe-EPA MOAs or tribal-EPA MOAs. We excluded it as well based on the rationale above. Five of the 

State MOAs that we reviewed contained language pertinent to this CFR criterion. 

8 
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Few MOAs have been updated to address increasing State responsibilities under 

the CWA, new NPDES programs, and the expanding CWA regulated universe, 

which now includes the Storm Water Phase II implementation, concentrated 

animal feeding operations, and concentrated aquatic animal production program 

implementations. Further, many MOAs do not address how States should adapt 

to the increasing number of regulated entities. MOAs should be written to 

accommodate for program changes to avoid becoming invalid over time. 

MOA quality increases with more recently negotiated MOAs because newer 

MOAs more closely adhere to the most recent CFR requirements. One of the 

earliest MOAs received the lowest overall score of 8.3 points (out of a possible 

92), whereas the most recently negotiated MOA (Alaska, signed in 2008) received 

an overall score of 75.3 points. Alaska’s MOA was generally modeled after the 

current CFR requirements. The MOA earning 8.3 points in our scale, Kansas’s, 

was signed in 1973 and has not been revised. 

We found that 74 percent of active MOAs were authorized more than 10 years 

ago (prior to 2000). Thirty-five percent of authorized States’ active MOAs were 

signed in the 1970s, years before the CWA’s Storm Water, Sanitary Sewer 

Overflow, and Combined Sewer Overflow provisions were established. These 

MOAs have not been revised to include these newer CWA programs. See 

Appendix C for State MOA authorization years and scores for MOAs by CFR 

section. Figure 2-3 shows the general trend of improved adherence to CFR 

requirements over time for all MOAs reviewed. 

Figure 2-3: MOA Total Score by Year Signed 

90 

80 

70 

60 

50 

40 

30 

20 

10 

0 

MOA Score 

1970 1975 1980 1985 1990 1995 2000 2005 2010 

Year Signed 

Source: OIG assessment of NPDES MOAs. 

9 
 10-P-0224 

Because our analysis shows that older MOAs were more likely than newer MOAs 

to be deficient, EPA should consider MOA age to prioritize MOA renegotiations. 

Figure 2-4 shows that average MOA age varies by region, and suggests using age 

as an indicator of renegotiation priority. 

Figure 2-4: MOA Average Signing Year by Region 

Source: OIG assessment of NPDES MOAs. 

1950 

1960 

1970 

1980 

1990 

2000 

2010 

R1 R2 R3 R4 R5 R6 R7 R8 R9 R10 

Most or all MOAs 

are outdated and 

require updating 

Some MOAs are 

outdated and require 

updating 

All MOAs 

are updated 

Noting that the MOAs were outdated and contained language that limited EPA 

oversight, Region 4 independently updated and renegotiated the MOAs with all of 

its States. The renegotiated MOAs included several significant changes such as 

changing the definition for when EPA would initiate enforcement actions, adding 

new enforcement initiatives like the State Review Framework, changing data 

reporting requirements, and changing the method for tracking significant 

compliance issues. The Region uses the updated MOAs as foundational 

documents and the CWA section 106 plans for more detailed program 

information. The new MOAs clearly delineate roles and responsibilities and may 

improve EPA-State relationships. 

Region 4 did not seek Office of Water (OW) and OECA approval of these MOAs. 

According to an OW attorney, OW considered these revisions to be minor and the 

Region did not need approval. This determination was not documented. EPA 

does not have a policy that governs what sorts of changes require approval by OW 

and OECA and a process for documenting decisions. This reduces EPA’s 

management control over the content of these MOAs. To maintain nationally 

consistent control over all State NPDES programs, EPA needs a policy that 

governs Headquarters approval of revised MOAs and maintains control over 

10 
 

 

 10-P-0224 

changes in MOAs. On July 27, 2010, EPA’s response to this draft report 

indicated that OW has initiated efforts to clarify the delegation process as 

described in EPA Delegation 2-34. 

MOAs Are Inconsistent across Regions and States 

MOAs vary among regions, creating differences in State enforcement programs. 

This variance can lead to differences in how the NPDES program is implemented 

throughout the country. 

Figure 2-5 shows that certain regions (regions are outlined in black) have higherscoring MOAs than others, based on selected CFR criteria. For example, Region 

8 MOAs generally scored higher than Region 3 MOAs. Interregional variability 

stems from differing regional priorities that influence MOA negotiation and MOA 

age. Region 4’s recently renegotiated MOAs all scored between 50 and 70 points 

on our scale, whereas Region 3’s generally older MOAs all scored between 25 

and 44 points. 

Figure 2-5: MOA Scores by State and EPA Region 

Source: OIG assessment of NPDES MOAs. 

The figure also demonstrates interstate variability in MOA alignment with 

regulations. Similar to regional differences, interstate variability stems from State 

priorities as well as MOA age. Updated MOAs typically score over 50 points. 

11 
 10-P-0224 

For example, in Region 10 the highest-scoring MOA (Alaska) was the most 

recently updated MOA (2008), whereas the outdated MOAs in Oregon and 

Washington scored lowest. Oregon’s MOA, signed in 1973, scored 27.3 points, 

and Washington’s MOA, signed in 1989, scored 48.0 points. 

Some MOAs Contain Provisions that Are Inconsistent with the CWA 

In addition to missing many regulatory requirements, a number of MOAs contain 

other language that is inconsistent with the CWA. Under the CWA, EPA retains 

responsibility and authority over CWA implementation and outcomes even when 

a State has received authorization. However, 17 percent of MOAs contain 

language that is worded to limit EPA’s authority to conduct inspection and 

enforcement activities in States. In a number of cases, this type of language has 

led to disagreements between EPA and States. 

For example, although the CFR states, “The Regional Administrator will normally 

notify the State at least 7 days before any such inspection,” South Carolina’s 1994 

MOA states, “EPA shall provide to the State at least thirty (30) days notice before 

a joint or independent inspection.” A Region 4 enforcement manager stated that 

this provision limited EPA’s enforcement authority. As a result, Region 4 

reduced this notice period in the proposed revision. In the draft South Carolina 

MOA, this provision was revised to state, “EPA will normally provide DHEC [the 

State Department of Health and Environmental Control] at least seven (7) 

calendar days notice before a joint or independent inspection is conducted.” 

Through the State Review Framework process, OECA found that some States 

believe that their MOAs preclude EPA enforcement action. OECA officials told 

us that when OECA has an unfavorable relationship with a State, the State 

sometimes uses its MOA as a justification to avoid taking the enforcement actions 

EPA feels are needed. In the face of inappropriate clauses in MOAs, EPA could 

take action in States based on its authority under the CWA. However, in some 

cases, EPA did not act; sensitive relationships between EPA regions and States 

led regions to look for other solutions. 

Some EPA Regions Do Not Use MOAs to Manage State Enforcement 

Programs 

Rather than establishing a consistent national approach to meet CWA goals, EPA 

has largely deferred control to regional offices. States and regions frequently do 

not use MOAs to manage or oversee State enforcement programs. MOAs should 

be foundational enforcement documents that regions and States use on a regular 

basis to clarify basic roles and responsibilities, and the CFR states that no other 

EPA-State documents can take precedence over MOAs. 

Managers in three of the four EPA regions we interviewed told us that they do not 

routinely refer to the MOAs to manage their State programs. In these regions, 

12 
 10-P-0224 

EPA managers used other types of agreements such as Performance Partnership 

Agreements, Performance Partnership Grants, annual inspection and monitoring 

plans, and National Program Guidance for State program oversight. 

Some regional managers note MOA shortcomings. In Region 1, enforcement 

program managers told us that MOAs do not guide State program management, 

and regional personnel did not refer to MOAs. Managers see the original MOAs 

as documents that defined the roles and responsibilities at the time of the 

authorization and also laid out some basic expectations for the transfer of 

documents. However, they used Performance Partnership Agreements and 

periodic meetings instead of MOAs to manage State programs. Region 1 

managers stated that they use other documents because program management 

requires flexibility. The Region’s original MOAs were not updated to reflect 

changes to the CWA throughout the years. However, the Region 1 manager 

stated that MOAs are the basic underpinning of State authorization to run the 

program. The manager said a strong, vibrant MOA should include clear 

expectations, clear definition of roles/responsibilities, and clear descriptions of 

accountability. 

An EPA Region 8 enforcement official reported that MOAs were rarely used for 

enforcement as compared with other agreements. An enforcement manager from 

the Region reported that although all MOAs have standard statements that declare 

that MOAs preclude other agreements, in practice, Performance Partnership 

Agreements trump all other enforcement documents. 

However, Region 8 and its States experienced conflicts over enforcement 

authority. In one case, Region 8 did not hold Colorado accountable to its MOA. 

During our interview, regional personnel reported that while they were 

negotiating an ancillary enforcement agreement, Colorado asserted that EPA 

relinquished the right to perform NPDES inspections and enforcement actions 

once State authorization occurred. Even though this was programmatically 

inaccurate and the MOA supported EPA’s position, regional personnel found it 

was easier to “give up” on the agreement negotiations rather than to reiterate 

EPA’s rights and authorities. One manager from the Region noted that MOAs 

should have clearer delineations for EPA and State expectations for issuance of 

notices of violation, and another said MOAs should contain provisions that better 

delineate EPA and State facility inspections. 

A Region 8 enforcement official also stated that many of its MOAs are more than 

10 years old and should be renegotiated. The official added that although the 

Region uses other documents, it would be beneficial to have a single, overarching 

document to provide the basic agreement with additional documents providing the 

necessary details on annual performance and operations. Moreover, a regional 

enforcement manager suggested that MOAs should be periodically modified to 

accommodate changes in the program. 

13 
 10-P-0224 

Although Region 10 NPDES managers did use the MOA for permitting, they did 

not use MOAs for enforcement program management. Instead, they used 

Performance Partnership Agreements, Performance Partnership Grants, and the 

National Program Guidance. 

When OECA began assessing MOAs, some were not available to EPA 

Headquarters. Therefore, these documents, which show how EPA and States 

manage enforcement, were also not readily available to the public for review or 

comparison. EPA could improve transparency and accountability by maintaining 

a publicly available MOA repository where all States, EPA regions, and the 

public can access the documents. 

The problem with MOAs is cyclical: one reason regional enforcement managers 

do not use MOAs is that they are not updated to reflect current CWA amendments 

pertinent to new NPDES program requirements and subsequent CFR additions, 

and MOAs are outdated because regions have not used them regularly enough to 

target them for improvement. 

EPA Could Establish a National Baseline for CWA Implementation 

with an MOA Template 

EPA faces a significant challenge: to implement a nationally consistent 

enforcement program that offers equal protection from pollution to all Americans. 

By renegotiating outdated or inconsistent MOAs according to a national template, 

EPA can establish a current baseline for national consistency. A national 

template could also ease the MOA negotiation process. EPA should identify the 

key requirements that should be delineated in MOAs, including the other 

programmatic concerns disclosed through the CFR and issues uncovered during 

OECA’s State Review Framework, and incorporate them into a national template. 

The officials of OECA, EPA regions, and State organizations we spoke with agree 

that MOAs are out of date and should be renegotiated, but OECA also pointed out 

that the process could face State resistance because it might require considerable 

resources. Enforcement managers and officials in two of the four regions we 

spoke with indicated that MOA renegotiation would be a low priority for them 

and would require them to remove resources from other enforcement activities. 

However, in our opinion, the management control benefit justifies the resource 

requirement. For example, as a result of renegotiating MOAs, Region 4 

enforcement staff reported that they improved baseline management control over 

EPA-State enforcement relationships. In the face of a disagreement over 

responsibilities, regional staff said they show State program staff where an 

enhanced requirement is written in the updated MOA, and the State program staff 

then carry out the requirement. 

Staff from each region we interviewed and other stakeholders agreed that an EPA 

Headquarters model MOA would be beneficial in determining MOA adequacy. 

14 
 10-P-0224 

Region 4 developed a regional template for use in its MOA renegotiations. 

Regional enforcement officials reported that the template did not change much 

between the beginning and end of negotiations. A Region 10 enforcement 

program manager suggested that a model MOA that would serve as a foundational 

reference document could help to clarify the core oversight responsibilities. 

Region 10 staff stated that a model MOA could identify EPA and State 

expectations with respect to inspection, timely follow-up, data quality, 

transparency, and adequate response. In addition, the Environmental Council of 

the States said its member States would be interested in discussing a model MOA. 

Conclusion 

The current state of the MOAs means that EPA cannot assure it has effective 

management control over State programs that assures the public that CWA 

objectives are being achieved. EPA has not established a national template 

defining the key requirements necessary for current, robust MOAs. In addition, 

EPA has not developed a periodic review system to determine which MOAs 

remain adequate and which need to be revised to remain current with changing 

regulations. MOAs should establish the foundations for nationally consistent 

enforcement, defining the baseline roles and responsibilities for EPA and States. 

MOAs should also be the basis for assessing States’ ability and commitment to 

administer EPA’s NPDES program in accordance with the CWA. The CFR 

requires MOAs to outline the basic parameters of the EPA-State relationship and 

ensure CWA goals are being met through State-authorized programs. To ensure 

that MOAs fulfill their intended function, EPA must put in place a system that 

maintains and oversees consistent management controls over State programs. To 

ensure transparency and accountability, EPA should maintain a publicly available 

MOA repository, making these documents available to all States, EPA regions, 

and the public. 

Recommendations 

We recommend that the Deputy Administrator: 

2-1	 Develop a national MOA template including essential 

requirements derived from the updated CWA, CFR requirements, 

and State Review Framework findings. 

2-2	 Develop a systematic approach to identify which States have 

outdated or inconsistent MOAs; renegotiate and update those 

MOAs using the MOA template; and secure the active 

involvement and final, documented concurrence of Headquarters to 

ensure national consistency. 

15 
 10-P-0224 

2-3	 Establish a process for reviewing MOAs on a regular basis, taking 

into account legislative and management changes that affect the 

adequacy of the MOA. 

2-4 Maintain a publicly available repository of MOAs. 

Agency Response and OIG Comment 

EPA’s Deputy Administrator provided the Agency response, coordinating 

comments from OECA and OW. The Deputy Administrator generally agreed 

with these recommendations and provided an outline of corrective actions that he 

would take in response to the recommendations. 

The Deputy Administrator agreed with recommendations 2-1, 2-3, and 2-4. 

In response to recommendation 2-2, the Deputy Administrator stated that 

renegotiating MOAs with States can be time consuming and may not be always 

be the best use of EPA resources. Deficiencies in State enforcement programs 

may be better addressed through other solutions and approaches. The Deputy 

Administrator proposed that OECA and OW integrate MOA assessment into a 

coordinated State program review process to identify and correct MOAs that 

present the greatest barriers to State program performance. 

The OIG responds by noting that the draft report and the final report both make 

mention of the other mechanisms EPA uses to manage programs, even noting that 

there is a layered system of management controls (see page 2, for example). 

However, the report emphasizes that while EPA uses other mechanisms, the only 

required mechanism is the authorization MOA. The way in which EPA regions 

and States use other mechanisms varies, but the MOA is the only document that 

each State must have. For this reason, it is important that authorization MOAs be 

up to date and compliant with the CFR. 

While acknowledging EPA’s need to maintain flexibility, the OIG believes that 

MOAs are a critical building block of State enforcement programs. Depending on 

how it is constructed, a systematic State program review process that contains a 

strategy for updating outdated or inconsistent MOAs could address our 

recommendation. We will list the status of recommendation 2-2 as “undecided,” 

and list the other recommendations as “open.” We look forward to a detailed 

strategy and timeline for implementation in the Agency’s 90-day response to this 

final report. 

16 
 

 

 

 

 

 

 

 

 10-P-0224 

Status of Recommendations and 

Potential Monetary Benefits 

POTENTIAL MONETARY 

RECOMMENDATIONS BENEFITS (in $000s) 

Rec. 

No. 

Page 

No. Subject Status1 Action Official 

Planned 

Completion 

Date 

Claimed 

Amount 

Agreed To 

Amount 

2-1 

2-2 

2-3 

15 

15 

16 

Develop a national MOA template including 

essential requirements derived from the updated 

CWA, CFR requirements, and State Review 

Framework findings. 

Develop a systematic approach to identify which 

States have outdated or inconsistent MOAs; 

renegotiate and update those MOAs using the 

MOA template; and secure the active involvement 

and final, documented concurrence of 

Headquarters to ensure national consistency. 

Establish a process for reviewing MOAs on a 

regular basis, taking into account legislative and 

management changes that affect the adequacy of 

the MOA. 

O 

U 

O 

Deputy Administrator 

Deputy Administrator 

Deputy Administrator 

2-4 16 Maintain a publicly available repository of MOAs. O Deputy Administrator 

O = recommendation is open with agreed-to corrective actions pending 

C = recommendation is closed with all agreed-to actions completed 

U = recommendation is undecided with resolution efforts in progress 

17 

1 
 

 

 10-P-0224 

Appendix A 

List of CFR Criteria for MOA Assessment1 

CFR Criterion 

1 123.24(a) MOA executed by the State Director and the Regional Administrator and approved by 

Administrator 

2 MOA meets all requirements of paragraph (b) 

3 MOA has no provisions restricting EPA’s statutory oversight responsibility 

4 123.24(b) Provisions for prompt transfer from EPA to the State of pending permit applications and 

any other relevant program operation information 

5 MOA contain procedure for transfer of any existing permits for administration 

6 MOA contain specific procedure for transfer of administration if a State lacks 

administration authority for permits issued by Federal government 

7 MOA contain provisions specifying classes and categories of permit applications, draft 

permits, and proposed permits for Regional Administrator review 

8 MOA contain provisions specifying the frequency and content of reports, documents and 

other information which the State is required to submit to EPA 

9 MOA contain provisions allowing EPA to routinely review State records, reports, and files 

relevant to the administration and enforcement of the approved program 

10 MOA contain provisions for coordination of compliance monitoring activities by the State 

and by EPA and EPA inspection of select facilities or activities within State 

11 MOA contain procedures to assure coordination of enforcement activities 

12 MOA contain provisions, when appropriate, for joint processing of permits by the State 

and EPA for facilities or activities which require permits from both EPA and the State 

under different programs per § 124.4 

13 MOA contain provisions for modification of the MOA in accordance with this part 

14 123.24(c) MOA, the annual program grant and the State/EPA Agreement should be consistent. If 

the State/EPA Agreement indicates that a change is needed in the Memorandum of 

Agreement, the Memorandum of Agreement may be amended through the procedures 

set forth in this part. 

15 State/EPA Agreement cannot override MOA 

16 123.24(d) MOA specify the extent to which EPA will waive its right to review, object to, or comment 

upon State-issued permits under section 402(d)(3), (e) or (f) of CWA 

17 123.26(a) State programs shall have procedures for receipt, evaluation, retention and investigation 

for possible enforcement of all notices and reports required of permittees and other 

regulated persons (and for investigation for possible enforcement of failure to submit 

these notices and reports). 

18 123.26(b) State programs shall have inspection and surveillance procedures to determine, 

independent of information supplied by regulated persons, compliance or noncompliance 

with applicable program requirements. 

19 The State shall maintain a program which is capable of making comprehensive surveys 

of all facilities and activities subject to the State Director's authority to identify persons 

subject to regulation who have failed to comply with permit application or other program 

requirements. Any compilation, index or inventory of such facilities and activities shall be 

made available to the Regional Administrator upon request; 

20 The State shall maintain a program for periodic inspections of the facilities and activities 

subject to regulation. 

1

 MOA assessment excludes the review of 123.24(b)(ii) and 123.27(e) as noted within the Scope and Methodology. 

18 
 10-P-0224 

CFR Criterion 

21 These inspections shall be conducted in a manner designed to: Determine compliance or 

noncompliance with issued permit conditions and other program requirements; 

22 These inspections shall be conducted in a manner designed to: Verify the accuracy of 

information submitted by permittees and other regulated persons in reporting forms and 

other forms supplying monitoring data; and 

23 These inspections shall be conducted in a manner designed to: Verify the adequacy of 

sampling, monitoring, and other methods used by permittees and other regulated 

persons to develop that information; 

24 The State shall maintain a program for investigating information obtained regarding 

violations of applicable program and permit requirements; and 

25 The State shall maintain procedures for receiving and ensuring proper consideration of 

information submitted by the Public about violations. Public effort in reporting violations 

shall be encouraged, and the State Director shall make available information on reporting 

procedures. 

26 123.26(c) The State Director and State officers engaged in compliance evaluation shall have 

authority to enter any site or premises subject to regulation or in which records relevant to 

program operation are kept in order to copy any records, inspect, monitor or otherwise 

investigate compliance with the State program including compliance with permit 

conditions and other program requirements. States whose law requires a search warrant 

before entry conform with this requirement. 

27 123.26(d) Investigatory inspections shall be conducted, samples shall be taken and other 

information shall be gathered in a manner (e.g., using proper “chain of custody” 

procedures) that will produce evidence admissible in an enforcement proceeding or in 

court. 

28 123.26(e) Maintaining a comprehensive inventory of all sources covered by NPDES permits and a 

schedule of reports required to be submitted by permittees to the State agency; 

29 Initial screening (i.e., pre-enforcement evaluation) of all permit or grant-related 

compliance information to identify violations and to establish priorities for further 

substantive technical evaluation; 

30 When warranted, conducting a substantive technical evaluation following the initial 

screening of all permit or grant-related compliance information to determine the 

appropriate agency response; 

31 Maintaining a management information system which supports the compliance evaluation 

activities of this part; and 

32 Inspecting the facilities of all major dischargers at least annually. 

33 123.27(a) To restrain immediately and effectively any person by order or by suit in State court from 

engaging in any unauthorized activity which is endangering or causing damage to public 

health or the environment; 

34 Note: This paragraph (a)(1) requires that States have a mechanism (e.g., an 

administrative cease and desist order or the ability to seek a temporary restraining order) 

to stop any unauthorized activity endangering public health or the environment. 

35 To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation 

of any program requirement, including permit conditions, without the necessity of a prior 

revocation of the permit; 

36 To assess or sue to recover in court civil penalties and to seek criminal remedies, 

including fines, as follows: 

37 Civil penalties shall be recoverable for the violation of any NPDES permit condition; any 

NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring 

activities; or, any regulation or orders issued by the State Director. These penalties shall 

be assessable in at least the amount of $5,000 a day for each violation. 

19 
 10-P-0224 

CFR Criterion 

38 Criminal fines shall be recoverable against any person who willfully or negligently violates 

any applicable standards or limitations; any NPDES permit condition; or any NPDES filing 

requirement. These fines shall be assessable in at least the amount of $10,000 a day for 

each violation. 

39 Criminal fines shall be recoverable against any person who knowingly makes any false 

statement, representation or certification in any NPDES form, in any notice or report 

required by an NPDES permit, or who knowingly renders inaccurate any monitoring 

device or method required to be maintained by the Director. These fines shall be 

recoverable in at least the amount of $5,000 for each instance of violation. 

40 123.27(b) The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this 

section) shall be assessable for each instance of violation and, if the violation is 

continuous, shall be assessable up to the maximum amount for each day of violation. 

41 The burden of proof and degree of knowledge or intent required under State law for 

establishing violations under paragraph (a)(3) of this section, shall be no greater than the 

burden of proof or degree of knowledge or intent EPA must provide when it brings an 

action under the appropriate Act; 

42 123.27(c) A civil penalty assessed, sought, or agreed upon by the State Director under paragraph 

(a)(3) of this section shall be appropriate to the violation. 

43 Procedures for assessment by the State of the cost of investigations, inspections, or 

monitoring surveys which lead to the establishment of violations; 

44 In addition to the requirements of this paragraph, the State may have other enforcement 

remedies. The following enforcement options, while not mandatory, are highly 

recommended: 

45 123.27(d) Any State administering a program shall provide for public participation in the State 

enforcement process by providing either: 

46 Authority which allows intervention as of right in any civil or administrative action to obtain 

remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an 

interest which is or may be adversely affected; or (2) Assurance that the State agency or 

enforcement authority will: (i) Investigate and provide written responses to all citizen 

complaints submitted pursuant to the procedures specified in §123.26(b)(4); (ii) Not 

oppose intervention by any citizen when permissive intervention may be authorized by 

statute, rule, or regulation; and (iii) Publish notice of and provide at least 30 days for 

public comment on any proposed settlement of a State enforcement action. 

20 
 

 

 10-P-0224 

 Appendix B 

Detailed Methodology 

The OIG initially received 45 State MOAs from OECA. OECA collected the MOAs in 2009 by 

contacting EPA’s Water Permitting Division. OECA confirmed that it received current, 

executed MOAs by contacting regional staff. MOAs were not collected for Connecticut and 

South Carolina, though OECA later received Connecticut’s current MOA. Region 1 was unable 

to confirm whether the MOAs that had been collected were the most current executed 

documents. OECA attributed this to the fact that MOAs are rarely used, and the people who 

originally developed and worked on them are no longer with the Region. When the OIG later 

interviewed Region 1 water enforcement staff and officials, they reported that they had all of 

their current MOAs. We received the 1994 South Carolina MOA directly from Region 4, where 

enforcement officials were still negotiating revisions to the document. OIG reviewed both the 

1994 and newly revised unapproved MOA but only used the 1994 approved MOA for our 

quantitative analysis. 

The OIG selected 46 criteria from three Title 40 CFR sections (123.24, 123.26, and 123.27). The 

OIG chose these sections because they represent state NPDES program requirements: agreement 

with the regional administrator, compliance requirements, and enforcement authority 

requirements for States that have been authorized NPDES programs. The OIG did not evaluate 

other annual or multiyear EPA-State agreements. 

We excluded two CFR criteria from Title 40 CFR sections 123.24 and 123.27 from our MOA 

Assessment to reflect the fact that not all States have federally recognized Indian tribes and thus 

create parity across all States. Title 40 123.24(b)(1)(ii) says that where a State is authorized to 

issue permits on the Federal Indian reservation of the Indian tribal seeking approval, MOAs 

should include provisions for transferring relevant information if the Indian Tribe does not 

already have the documents. Title 40 CFR 123.27(e) says that where Indian tribes cannot satisfy 

the criminal enforcement authority requirements in section 123.27 of the CFR, they may still 

receive program authority from EPA if they meet other enforcement authority criteria (See 40 

CFR 123.34). 

The requirements included in CFR sections 123.24, 123.26, and 123.27 indicate the requirements 

for States to receive the CWA enforcement authorization. CFR section 123.24 indicates the 

requirements MOA content for NPDES program approval and management, 123.26 indicates the 

regulations States must follow to demonstrate an adequate compliance inspection and monitoring 

program, and 123.27 indicates the regulations States must follow to demonstrate that they can 

take timely and appropriate enforcement actions. Because each EPA regional office negotiated 

MOAs differently, OIG believes that the extent to which required language from these three 

sections is included in MOAs may vary. 

The selected CFR sections define the scope of the OIG review by focusing analysis on MOA 

requirements and also addressing the issues raised in OECA’s State Review Framework: data, 

identification of significant violations, penalty assessment, and timely and appropriate 

enforcement actions. By confirming and qualifying whether each MOA contained adequate 

21 
 10-P-0224 

provisions addressing each requirement, OIG addressed the completeness of MOAs and also 

assessed deficiencies related to four key issues OECA uncovered in its State Review Framework 

process: penalty calculation, identification of significant violations, data quality, and taking 

timely and appropriate enforcement actions. 

The OIG selected the 46 criteria to provide a broad indication of how current MOAs address 

issues that OECA has identified as lacking in State enforcement programs. Although all of the 

criteria included in CFR sections 123.24, 123.26, and 123.27 may not have been required at the 

time MOAs were initially negotiated between EPA regions and States, these sections represent 

the key criteria for determining whether States with NPDES authority have demonstrated to EPA 

that they can address permitting requirements, compliance reviews and inspections, and 

enforcement actions. Our criteria included Title 40 CFR 123.26 and 123.27, even though those 

regulations are not required of MOAs, because they are related to the four programmatic 

deficiencies that OECA identified through its State Review Framework assessments (listed in 

Chapter 1). 

OIG rated each of the 46 EPA-provided MOAs for its inclusion of statements addressing each 

regulation. For each of the 46 criteria included in a spreadsheet guide (shown in Appendix A), 

team members rated the MOA as a “0” (does not address this element), “1” (addresses the 

element in some way), or “2” (addresses the element verbatim, or in synonymous language). 

Each MOA thus received an overall score in our analysis that could be a maximum of 92 points. 

The OIG evaluation team did not deem this system comprehensive; rather, it is an indicator of 

MOA completeness. 

Prior GAO and OIG Work 

OIG staff reviewed past oversight reports from the EPA OIG and GAO relating to EPA oversight 

of State enforcement issues. In particular, we reviewed those reports that cite MOAs or other 

EPA-State agreements as a root cause of enforcement deficiencies. These reports informed our 

evaluation design and background. 

GAO 

Longstanding Issues Impact EPA’s and States’ Enforcement Efforts. GAO-10-165T, 

October 15, 2009. 

Environmental Enforcement: EPA Needs to Improve the Accuracy and Transparency of 

Measures Used to Report on Program Effectiveness. GAO-08-1111R, September 18, 2008. 

Collaborative EPA State Effort Needed to Improve Performance Partnership System. GAO/TRCED-00-163, May 2, 2000. 

Environmental Protection: More Consistency Needed Among EPA Regions in Approach to 

Enforcement. GAO/RCED-00-108, June 2000. 

22 
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Environmental Protection: EPA’s and States’ Efforts to Focus State Enforcement Programs on 

Results. RCED-98-113, May 27, 1998. 

Water Pollution: Many Violations Have Not Received Appropriate Enforcement Attention. 

GAO/RCED-96-23, March 20, 1996. 

EPA OIG 

Better Enforcement Oversight Needed for Major Facilities with Water Discharge Permits in 

Long-Term Significant Noncompliance. Report No. 2007-P-00023, May 14, 2007. 

EPA Region 6 Needs to Improve Oversight of Louisiana's Environmental Programs. 

Report No. 2003-P-00005, February 3, 2003. 

State Enforcement of Clean Water Act Dischargers Can Be More Effective. 

Report No. 2001-P-00013, August 14, 2001. 

North Carolina NPDES Enforcement and EPA Region 4 Oversight. Report No. 2000-P-00025, 

September 28, 2000. 

23 
 

 

 

 

 

 

 

 

 

 

 

 

 10-P-0224 

Appendix C 

OIG Analysis of MOAs by CFR Section 

MOA 

Date 

CFR General 

Program 

Requirements 

Avg. Score 

(Scale: 0 – 2) 

CFR 

Compliance 

Evaluation 

Requirements 

Avg. Score 

(Scale: 0 – 2) 

CFR 

Enforcement 

Requirements 

Avg. Score 

(Scale: 0 – 2) 

Overall 

Avg. Score 

(Scale: 0 – 

2) 

Total Score 

(Scale: 0 – 

92) 

Alabama 2008 1.40 1.19 0.64 1.09 50.3 

Alaska 2008 1.71 1.81 1.36 1.64 75.3 

Arizona 2002 1.94 1.88 0.57 1.50 69.0 

Arkansas 1995 1.81 1.69 0.93 1.50 69.0 

California 1973 0.98 0.31 0.43 0.58 26.7 

Colorado 1974 1.02 1.25 0.50 0.94 43.3 

Connecticut1 

1980 1.06 1.31 0.36 0.93 43.0 

Delaware 1983 1.17 0.44 0.36 0.67 30.7 

Florida 2007 1.75 1.13 0.71 1.22 56.0 

Georgia 2007 1.63 1.35 0.32 1.13 52.2 

Hawaii 1985 0.69 1.25 0.79 0.91 42.0 

Illinois1 

1977 0.31 1.50 1.71 1.15 53.0 

Indiana 1977 1.06 0.69 0.00 0.61 28.0 

Iowa 1978 1.38 0.88 0.57 0.96 44.0 

Kansas 1973 0.52 0.00 0.00 0.18 8.3 

Kentucky 2008 1.88 1.50 1.14 1.52 70.0 

Louisiana 2004 1.69 1.38 0.57 1.24 57.0 

Maine1 

2000 1.88 1.94 1.36 1.74 80.0 

Maryland 1998 1.10 1.00 0.21 0.80 36.7 

Michigan 1973 0.85 0.56 0.07 0.51 23.7 

Minnesota 1974 0.92 0.19 0.07 0.41 18.7 

Mississippi 2008 1.71 1.19 0.50 1.16 53.3 

Missouri 1974 1.25 0.44 0.07 0.61 28.0 

Montana1 

2000 1.35 1.38 0.79 1.19 54.7 

Nebraska 1974 0.48 0.38 0.00 0.30 13.7 

Nevada 1994 1.31 1.44 0.50 1.11 51.0 

New Jersey 1981 1.58 1.75 1.21 1.53 70.3 

New York 1975 0.81 0.06 0.00 0.30 14.0 

North Carolina 2007 1.58 1.19 0.50 1.12 51.3 

North Dakota 1989 1.75 1.50 0.86 1.39 64.0 

Ohio 1974 1.50 0.63 0.00 0.74 34.0 

Oklahoma 1997 1.88 1.44 0.43 1.28 59.0 

Oregon 1973 1.21 0.50 0.00 0.59 27.3 

Pennsylvania 1991 1.33 1.44 0.00 0.96 44.3 

Rhode Island 1984 1.48 0.63 0.57 0.91 41.7 

South Carolina 1994 1.44 1.13 0.64 1.09 50.0 

South Dakota 1993 1.40 0.75 0.29 0.83 38.3 

24 
 

 

 

 10-P-0224 

MOA 

Date 

CFR General 

Program 

Requirements 

Avg. Score 

(Scale: 0 – 2) 

CFR 

Compliance 

Evaluation 

Requirements 

Avg. Score 

(Scale: 0 – 2) 

CFR 

Enforcement 

Requirements 

Avg. Score 

(Scale: 0 – 2) 

Overall 

Avg. Score 

(Scale: 0 – 

2) 

Total Score 

(Scale: 0 – 

92) 

Tennessee 2007 1.81 1.31 1.14 1.43 66.0 

Texas 1998 1.27 1.63 0.14 1.05 48.3 

Utah 1987 1.38 1.13 0.43 1.00 46.0 

Vermont 1984 0.56 0.88 0.14 0.54 25.0 

Virginia 1975 1.27 0.31 0.00 0.55 25.3 

Washington 1989 1.06 1.63 0.36 1.04 48.0 

West Virginia 1982 1.40 0.44 0.36 0.75 34.3 

Wisconsin 1974 1.33 0.44 0.00 0.62 28.3 

Wyoming 1975 1.46 1.69 0.93 1.38 63.3 

Source: OIG analysis of data obtained from State MOAs reviewed. 

1 The OIG did not receive signed and dated MOAs. The OIG estimated these dates based on the OECA
 

documentation provided. 

2

 South Carolina still operated under a 1994 MOA, but Region 4 and South Carolina were working on a 

revised MOA at the time this report was issued. 

25 
 10-P-0224 

Appendix D 

Agency Response and OIG Comment 

July 27, 2010 

MEMORANDUM 

SUBJECT: Response to the Office of Inspector General Draft Report, EPA Should Revise 

EPA-State Clean Water Act Agreements, No. 2010-1033, June 9, 2010 

TO: Arthur Elkins Jr. 

Inspector General 

I am transmitting our response to the draft report, EPA Should Revise EPA-State Clean 

Water Act Agreements, No. 2010-1033, June 9, 2010, which focuses on assessing the 

effectiveness of memoranda of agreement between the U.S. Environmental Protection 

Agency and states pursuant to the National Pollutant Discharge Elimination System program. 

We thank your office for undertaking this review; we believe it will help us in achieving our 

goals of improving the quality of our oversight of state environmental programs and 

ultimately the level of state performance in administering NPDES programs. While we 

generally agree with the analysis and recommendations of the report, we offer the following 

comments. 

MOAs are not the sole mechanism for management control of the NPDES program 

On the first page of the report in the "What We Found" section and elsewhere throughout 

the document, the report finds that "NPDES MOAs between EPA and States do not ensure 

Agency management control and effective oversight over a national program administered 

by States that is capable of providing equal protection to all Americans." The analysis in this 

report is incomplete in supporting this statement. While we agree that inadequate MOAs 

may not support our efforts to ensure an effective state program, there are multiple layers of 

management controls and oversight programs that address the implementation and 

performance of the NPDES program but were not included in this review. These layers of 

controls and reviews, which include compliance and enforcement, also are relied upon to 

ensure an effective state program. For example, the Office of Water ensures adequate 

implementation of the NPDES permitting program through Performance Partnership 

Agreements, CWA Section 106 grant-work plans and associated measures, and program and 

permit-quality reviews and associated action items. The Office of Enforcement and 

Compliance Assurance uses enforcement agreements, Performance Partnership Agreements, 

grant-work plans, biannual regional reviews and the State Review Framework. Thus, while 

MOAs are one tool used by the EPA to ensure management control and effective oversight 

over state NPDES programs, they are not the only tool used to determine the health of a state 

program. Deficiencies in MOAs can be offset by or addressed through other management 

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tools. We ask that the report be modified to reflect the multiple layers of management 

controls, with MOAs as just one of those layers, albeit an important one. 

OIG Response: The OIG believes the report adequately characterizes the 

multiple layers of management controls. More specifically, the report notes, 

“As part of a system of national management controls, the CFR requires 

authorization MOAs between EPA and every State operating an NPDES 

enforcement program.” The report also indicates that the MOAs are part of a 

layered system: “Although the foundations of the EPA-State enforcement 

relationship are built upon authorization agreements and the accompanying 

MOAs, EPA and States also use other annual and multiyear planning tools to 

set short-term expectations, establish measures, and set performance goals. The 

annual and multiyear planning documents used by EPA regions and States vary 

by region and by State, and are not required by regulation. A senior EPA 

official described the EPA-State NPDES relationship as a ‘layer cake,’ with 

several layers of documents and agreements. The official said that EPA plans 

to address the multilayered EPA-State structure by simplifying the State-EPA 

enforcement process and accompanying document requirements.” 

Methodology 

To conduct its analysis, the OIG identified 48 regulatory requirements contained in 40 

CFR Sections 123.24, 123.26, and 123.27, which apply to the enforcement component of 

NPDES programs. The requirements used by the OIG include some that apply to the MOA 

documents themselves (40 CFR Section123.24), but nearly two-thirds are NPDES program 

requirements not explicitly required in the MOAs (40 CFR Sections 123.26 and 123.27). 

This approach was helpful in that it demonstrates how many enforcement-related provisions 

are included in the MOAs. However, this analysis may not necessarily result in the 

identification of those MOAs with the most significant deficiencies because it gives equal 

weight to all requirements. For example, the provision in 40 CFR Section 124.24(a) requiring 

that an "MOA [have] no provisions restricting EPA’s statutory oversight authority" is 

weighted the same as the provisions in 40 CFR Section 123.24(b)(l .l-1.3), which require the 

transfer of permits from the EPA to the state. The former is crucially important for program 

oversight, whereas the latter is likely moot at this time as all relevant permits have been 

transferred from the EPA to states, with the exception of some permits EPA Region 10 has 

issued in Alaska2

. Moreover, the methodology does not identify which elements are most 

important to ensuring program performance, may not be related to actual program 

performance or are covered by other agreements or guidance. We ask that the report be 

modified to acknowledge that some requirements are more important than others in terms of 

ensuring program performance. 

2

 On October 31, 2008, EPA authorized Alaska to assume responsibility for the NPDES program in phases, pursuant 

to section 402(n) (4) of the Clean Water Action. 73 Fed. Reg. 66243, 66244 (November 7, 2008). EPA expects to 

transfer all relevant permits to the State by October 31, 2011. Id. 

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OIG Response: The OIG analysis was intended as an objective assessment of 

MOA compliance with the CFR. The OIG assessment does not address State 

program performance, only MOA completeness. The report notes that the OIG 

included additional elements (in 40 CFR 123.26 and 123.27) based on OECA’s 

findings from the State Review Framework process. The OIG presents one 

method for assessing MOA quality, and report recommendation 2-2 directs the 

Deputy Administrator to “develop a systematic approach to identify which 

States have outdated or inconsistent MOAs, renegotiate and update those 

MOAs using the MOA template, and secure the active involvement and final, 

documented concurrence of Headquarters to ensure national consistency.” In 

developing this approach, the Deputy Administrator can choose to assign 

weights to those aspects of NPDES MOAs that he deems most important. 

Recommendations 

2-1 We agree that a national MOA template is a useful tool in establishing nationally 

consistent MOAs. We have an existing template from 1986, but we agree that it could be 

updated to be more useful. We note that the EPA is in the midst of implementing the Clean 

Water Act Action Plan, which will result in new approaches for improving compliance and 

water quality. We suggest that any action to refine the existing MOA template take place in 

coordination with the development of new approaches identified through this process. 

OIG Response: The OIG agrees with the Agency’s proposed actions in 

response to recommendation 2-1. The recommendation is open with agreed-to 

actions pending. In its final response to this report, EPA should provide 

estimated or actual completion dates for this recommendation. 

2-2 We agree that a systematic effort to identify and review problematic MOAs and 

update them, as appropriate, could assist in improving program performance and should be 

incorporated into existing periodic reviews of state programs. We do not agree, however, that 

renegotiating MOAs is the only way to address an inadequate state program. MOAs are twoparty agreements and willingness to make certain modifications will vary from state to state. 

Therefore, renegotiating MOAs can be time-consuming and unpredictable and, in light of our 

preceding comments about the variety of tools used to exercise management control over 

state NPDES programs, may not be the most timely or effective mechanism. It is important 

that the EPA maintain flexibility to develop and use these other types of mechanisms such as 

enforcement agreements that supplement an MOA in cases where renegotiating an MOA 

proves impracticable or would do little to substantially improve a state's program. This 

approach was suggested in the Clean Water Act Action Plan. 

In responding to Recommendation 2-2, we propose that the Office of Enforcement and 

Compliance Assurance and the Office of Water work together to integrate more closely our 

existing program-review processes and specifically to include the review of existing MOAs 

based on the new template as part of this process. Our goal in this effort would be to identify 

and correct those MOAs that present the greatest barriers to state program performance, 

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implement other solutions and approaches to achieve the maximum environmental and 

public health benefits in light of any deficiencies identified or both. 

OIG Response: The response does not mention MOAs that are outdated by the 

current CWA. To maintain consistent, effective management control, MOAs 

must be current so as to take into account the most up-to-date CWA 

requirements, as reflected in the CFR. The OIG commends both OECA and 

OW for proposing to work together to integrate more closely their existing 

program-reviews processes. The recommendation is undecided with agreed-to 

actions pending. In its final response to this report, EPA should provide 

estimated or actual completion dates for this recommendation. 

2-3 We agree that establishing processes, as discussed above, for reviewing MOAs as 

part of our ongoing program reviews would be useful and would assist in ensuring nationally 

consistent program performance over time. 

OIG Response: The OIG agrees with the Agency’s proposed actions in 

response to recommendation 2-3. The recommendation is open with agreed-to 

actions pending. In its final response to this report, EPA should provide 

estimated or actual completion dates for this recommendation. 

2-4 We agree that maintaining a publicly available repository of MOAs would improve 

transparency and accountability. 

OIG Response: The OIG agrees with the Agency’s proposed actions in 

response to recommendation 2-4. The recommendation is open with agreed-to 

actions pending. In its final response to this report, EPA should provide 

estimated or actual completion dates for this recommendation. 

Please see the attachment for specific technical corrections and comments. Should you 

have any questions or concerns about this response, please contact Nena Shaw at (202) 564-

5106. 

Bob Perciasepe /s/ 

Attachment 

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Appendix E 

Distribution 

Office of the Administrator 

Deputy Administrator 

Assistant Administrator for Enforcement and Compliance Assurance 

Assistant Administrator for Water 

Director, Office of Regional Operations 

Agency Follow-up Official (the CFO) 

Agency Follow-up Coordinator 

General Counsel 

Associate Administrator for Congressional and Intergovernmental Relations 

Associate Administrator for External Affairs and Environmental Education 

Audit Follow-up Coordinator, Office of Enforcement and Compliance Assurance 

Inspector General 

30