GAO 

United States Government Accountability Office

Testimony 

Before the Committee on Transportation 

and Infrastructure, U.S. House of 

Representatives

CLEAN WATER ACT

Longstanding Issues 

Impact EPA’s and States’ 

Enforcement Efforts 

Statement of Anu K. Mittal, Director 

Natural Resources and Environment Team 

For Release on Delivery 

Expected at 10:00 a.m. EDT 

October 15, 2009 

GAO-10-165T 
What GAO Found

United States Government Accountability Office

Why GAO Did This Study

Highlights

Accountability Integrity Reliability

October 15, 2009

CLEAN WATER ACT

Longstanding Issues Impact EPA’s and States’ 

Enforcement Efforts

Highlights of GAO-10-165T, a testimony 

before the Committee on Transportation 

and Infrastructure, U.S. House of 

Representatives 

Congress enacted the Clean Water 

Act to help reduce water pollution 

and improve the health of the 

nation’s waterways. The 

Environmental Protection Agency 

(EPA) administers its enforcement 

responsibilities under the act 

through its Office of Enforcement 

and Compliance Assurance 

(OECA), as well as its 10 regional 

offices and the states. 

Over the last 9 years, GAO has 

undertaken a number of reviews of 

EPA’s environmental enforcement 

activities, including for the Clean 

Water Act. For this testimony 

statement, GAO was asked to 

summarize the results of five prior 

reports on the effectiveness of 

EPA’s enforcement program. 

Specifically, this statement 

includes information on the (1) 

factors that cause variations in 

enforcement activities and lead to 

inconsistencies across regions, (2) 

impact that inadequate resources 

and work force planning has had 

on enforcement, (3) efforts EPA 

has taken to improve priority 

planning, and (4) accuracy and 

transparency of measures of 

program effectiveness. 

GAO’s prior recommendations 

have included the need for EPA to 

collect more complete and reliable 

data, develop improved guidance, 

and better performance measures. 

Although EPA has generally agreed 

with these recommendations, its 

implementation has been uneven. 

GAO is not making new 

recommendations in this 

statement. 

In 2000, GAO found variations among EPA’s regional offices in the actions 

they take to enforce environmental requirements. For example, the regions 

varied in the inspection coverage of facilities discharging pollutants, the 

number and type of enforcement actions taken, and the size of the penalties 

assessed and the criteria used in determining penalties. GAO also found that 

variations in the regions’ strategies for overseeing state programs may have 

resulted in more in-depth reviews in some regional programs than in others. 

Several factors contributed to these variations including differences in the 

philosophical approaches among enforcement staff about how best to achieve 

compliance with environmental requirements, differences in state laws and 

enforcement authorities and how the regions respond to these differences, 

variations in resources available to state and regional offices, the flexibility 

afforded by EPA policies and guidance that allow latitude in state 

enforcement programs, and incomplete and inadequate enforcement data that 

hampered EPA’s ability to accurately characterize the extent of variations. In 

2007, GAO reported improvements in EPA’s oversight of state enforcement 

activities with the implementation of a state review framework. However, 

while this framework helped identify several weaknesses in state programs, 

the agency had not developed a plan for how it would uniformly address these 

weaknesses or identify the root causes of these weaknesses. 

In 2005, GAO reported that the scope of EPA’s responsibilities under the 

Clean Water Act along with workload associated with implementing and 

enforcing the act’s requirements had increased significantly. At the same 

time, EPA had authorized states to take on more responsibilities, shifting the 

agency’s workload from direct implementation to oversight. In 2007, GAO 

reported that while overall funding for enforcement activities had increased 

from $288 million in fiscal year 1997 to $322 million in fiscal year 2006, 

resources had not kept pace with inflation or the increased responsibilities. 

Both EPA and state officials told GAO that they found it difficult to respond to 

new requirements while carrying out previous responsibilities and regional 

offices had reduced enforcement staff by about 5 percent. In 2005, GAO also 

reported that EPA’s process for budgeting and allocating resources did not 

fully consider the agency’s workload, either for specific statutory 

requirements such as those included in the Clean Water Act or the broader 

goals and objectives in the agency’s strategic plan. Any efforts made by the 

agency to develop a more systematic process would be hampered by the lack 

of comprehensive and accurate workload data. 

In 2007, GAO reported that EPA had made substantial progress in improving 

priority setting and enforcement planning with states through its system for 

setting national enforcement priorities and this had fostered a more 

cooperative relationship with the states. Finally, in 2008, GAO reported that 

EPA could improve the accuracy and transparency of some of the measures 

that it uses to assess and report on the effectiveness of its civil and criminal 

enforcement programs. GAO identified shortcomings in how EPA calculates 

and reports these data that may prevent the agency from providing Congress 

and the public with a fair assessment of the programs. 

View GAO-10-165T or key components.. 

For more information, contact Anu Mittal, 

(202) 512-3841, mittala@gao.gov. 
Page 1 GAO-10-165T Clean Water Act Enforcement 

Mr. Chairman and Members of the Committee: 

We are pleased to be here today to participate in your hearing on the 37th

anniversary of the Clean Water Act. As you know, the Clean Water Act has 

played a critical role in reducing water pollution and improving the health 

of the nation’s waterways. The Environmental Protection Agency (EPA) 

administers its environmental enforcement responsibilities under the 

Clean Water Act and other environmental statutes, through its 

headquarters Office of Enforcement and Compliance Assurance (OECA). 

OECA monitors the compliance of regulated facilities, identifies national 

enforcement concerns and sets priorities, and provides overall direction 

on enforcement policies. While OECA headquarters occasionally takes 

direct enforcement action, much of EPA’s enforcement responsibilities are 

carried out by its 10 regional offices. These offices are responsible for 

carrying out core program activities under each of the major federal 

environmental statutes, as well as significant involvement in implementing 

EPA’s national enforcement priorities and taking direct enforcement 

action. In addition, the Clean Water Act directs EPA to authorize qualified 

states to implement and enforce environmental programs consistent with 

federal requirements. EPA expects its 10 regional offices to take a 

systematic and generally consistent approach in overseeing the state 

enforcement programs and, in doing so, to follow EPA’s regulations, 

policies, and guidance. 

Over the last 9 years, GAO has reviewed various aspects of EPA’s 

enforcement activities and has made several recommendations to enhance 

its enforcement program. Our testimony today is based on the findings and 

conclusions contained in five of these reports and will specifically focus 

on the following:1

 

1

GAO, Environmental Protection: More Consistency Needed Among EPA Regions in 

Approach to Enforcement, GAO/RCED-00-108 (Washington, D.C.: June 2, 2000); GAO, 

Clean Water Act: Improved Resource Planning Would Help EPA Better Respond to 

Changing Needs and Fiscal Constraints, GAO-05-721 (Washington, D.C.: July 22, 2005); 

GAO, Environmental Protection: EPA-State Enforcement Partnership Has Improved, but 

EPA’s Oversight Needs Further Enhancement, GAO-07-883 (Washington D.C.: July 31, 

2007); GAO, Environmental Enforcement: EPA Needs to Improve the Accuracy and 

Transparency of Measures Used to Report on Program Effectiveness, GAO-08-1111R 

(Washington, D.C.: Sept.18, 2008); GAO, EPA’s Execution of Its Fiscal Year 2007 New 

Budget Authority for the Enforcement and Compliance Assurance Program in the 

Regional Offices, GAO-08-1109R (Washington, D.C.: Sept. 26, 2008). 
• Factors that cause variations in EPA’s enforcement activities and lead to 

inconsistencies across its regional offices, 

• The impact that inadequate resources and workforce planning has had on 

EPA’s ability to meet changing enforcement needs, 

• EPA’s efforts to improve priority planning and enforcement planning as 

well as oversight of state programs, and 

• Improvements that are needed to improve the accuracy and transparency 

of measures of program effectiveness. 

For the reports used to support this testimony statement, we conducted 

our work in accordance with generally accepted government auditing 

standards. Those standards require that we plan and perform the audit to 

obtain sufficient and 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 the findings and 

conclusions in these reports. We discussed the contents of this testimony 

with an EPA official. 

Since EPA was created in 1970, the agency has been responsible for 

enforcing the nation’s environmental laws. This responsibility has 

traditionally involved monitoring compliance by those in the regulated 

community (such as factories or small businesses that release pollutants 

into the environment or use hazardous chemicals), ensuring that violations 

are properly identified and reported, and ensuring that timely and 

appropriate enforcement actions are taken against violators when 

necessary. Most major federal environmental statutes, including the Clean 

Water Act, permit EPA to allow states under certain circumstances to 

implement key programs and to enforce their requirements. EPA 

establishes by regulation the requirements for state enforcement authority, 

such as the authority to seek injunctive relief and civil and criminal 

penalties. 

Background 

EPA also outlines by policy and guidance its views as to the elements of an 

acceptable state enforcement program, such as necessary legislative 

authorities and the type and timing of the action for various violations, and 

tracks how well states comply. Environmental statutes generally provide 

authority for EPA to take appropriate enforcement action against violators 

in states that have been delegated authority for these programs when 

states fail to initiate enforcement action. The statutes also provide that 

Page 2 GAO-10-165T Clean Water Act Enforcement 
EPA may withdraw approval of a state’s program if the program is not 

administered or enforced adequately. 

EPA administers its environmental enforcement responsibilities through 

its headquarters Office of Enforcement and Compliance Assurance 

(OECA). While OECA provides overall direction on enforcement policies, 

and sometimes takes direct enforcement action, it carries out much of its 

enforcement responsibilities through its 10 regional offices. These offices 

are responsible for taking direct enforcement action and for overseeing 

the enforcement programs of state agencies in those instances in which 

the state has been delegated such enforcement authority. 

EPA has established principles for its enforcement and compliance 

program. State guidance, providing the framework for state/EPA 

enforcement agreements, has been in place since 1986. According to EPA, 

this state guidance, together with statute-specific guidance, is the 

blueprint for both EPA and state enforcement and compliance programs 

and serves as the basis for both authorizing and reviewing state programs. 

OECA expects the regions to take a systematic approach to administering 

and overseeing the enforcement programs among delegated and 

nondelegated programs and, in doing so, to follow the policies and 

guidance issued for this purpose. While federal and state enforcement 

officials agree that core enforcement requirements should be generally 

implemented consistently, according to EPA some variation is to be 

expected—and, in some cases, encouraged. For example, EPA expects 

some variation in how regions target resources to the most significant 

compliance issues in different regions and states, the level of enforcement 

activity—which should vary with the severity of the problem, and the level 

of regional oversight of state enforcement programs—with the greater 

oversight provided for weaker programs. 

Page 3 GAO-10-165T Clean Water Act Enforcement 
As we noted in our 2000 report on the consistency of EPA’s regions in 

enforcing environmental requirements, some variation in environmental 

enforcement is necessary to take into account local conditions and local 

concerns.2

 At the same time, EPA enforcement officials readily 

acknowledged that core enforcement requirements must be consistently 

implemented, and to ensure fairness and equitable treatment, similar 

violations should be met with similar enforcement responses, regardless of 

geographic location. However, when we reviewed EPA’s enforcement 

efforts we found that variations among EPA’s regional offices had led to 

inconsistencies in the actions they take to enforce environmental 

requirements. For example, we found that 

Variations in 

Enforcement By EPA’s 

Regions Have 

Resulted in 

Inconsistencies in 

Program 

Implementation 

• inspection coverage by EPA and state enforcement staff varied for 

facilities discharging pollutants within each region, 

• the number and type of enforcement actions taken by EPA’s regions also 

varied, 

• the size of the penalties assessed and the criteria used in determining 

penalties assessed varied by region, and 

• the regions’ overall strategies in overseeing the states within their 

jurisdiction varied, which may have resulted in more in-depth reviews in 

some regional programs than in others. 

EPA headquarters officials responsible for the water program explained 

that such variation was fairly commonplace and has posed problems. The 

director of OECA’s water enforcement division, for example, said that in 

reacting to similar violations, enforcement responses in certain regions 

were weaker than in others, and that such inconsistencies had increased. 

We identified a number of factors that contributed to variations in EPA’s 

enforcement that included the following: 

• differences in the philosophical approaches among enforcement staff 

about how to best achieve compliance with environmental requirements, 

• differences in state laws and enforcement authorities, and in the manner in 

which regions respond to these differences, 

 

2

GAO, Environmental Protection: More Consistency Needed Among EPA Regions in 

Approach to Enforcement, GAO/RCED-00-108 (Washington, D.C.: June 2, 2000). 

Page 4 GAO-10-165T Clean Water Act Enforcement 
• variations in resources available to both state and regional enforcement 

offices, 

• the flexibility afforded by EPA policies and guidance that allow states a 

degree of latitude in their enforcement programs, and 

• incomplete and inadequate enforcement data which, among other things, 

hamper EPA’s ability to accurately characterize the extent of variations. 

We also noted in our 2000 report that EPA headquarters enforcement 

officials were developing performance information that would allow for 

comparisons among both regions and states in their conduct of key 

enforcement responsibilities. Such assessments were expected to highlight 

any major program variations and would be communicated through the 

issuance of periodic status reports. A number of EPA regional offices were 

also developing and applying new audit protocols in their state reviews 

and encouraging more effective communication between and among 

regional and state enforcement staff. But we also concluded that a number 

of factors would continue to challenge EPA’s ability to ensure reasonably 

consistent enforcement across its regions. Among the most important of 

these factors was the absence of reliable data on how both states and 

regions are performing their enforcement responsibilities. 

In 2007, we again examined EPA’s efforts to improve oversight of state 

enforcement activities. At that time, we reported that EPA had improved 

its oversight of state enforcement programs by implementing the State 

Review Framework (SRF). We noted that EPA’s implementation of the 

SRF gave it the potential to provide for the first time a consistent approach 

for overseeing authorized states’ compliance and enforcement programs. 

Nonetheless, we also reported that the SRF had identified several 

significant weaknesses in how states enforce their environmental laws in 

accordance with federal requirements. For example, reviews conducted 

under the framework found that the states were not properly documenting 

inspection findings or how they calculate or assess penalties, as provided 

by EPA’s enforcement policy and guidance, that the states were not 

adequately entering significant violations noted in their inspection reports 

into EPA databases, and that the states lacked adequate or appropriate 

penalty authority or policies. While we recognized the value in EPA’s 

identification and documentation of these findings, we also reported that 

EPA had not developed a plan for how it would uniformly address them in 

a timely manner, nor had the agency identified the root causes of the 

weaknesses, although some EPA and state officials attributed the 

weaknesses to causes such as increased workloads concomitant with 

Page 5 GAO-10-165T Clean Water Act Enforcement 
budgetary reductions. We concluded that, until EPA addressed 

enforcement weaknesses and their causes, it faced limitations in 

determining whether the states are performing timely and appropriate 

enforcement, and whether they are applying penalties to environmental 

violators in a fair and consistent manner within and among the states. 

In 2000 and in 2007, GAO made several recommendations to EPA to 

address the concerns that we identified with the agency’s enforcement 

programs. For example, in 2000, we recommended that EPA develop a 

comprehensive strategy to adequately address problems with the quality of 

the agency’s enforcement data and issue guidance to the regions 

describing the required elements of audit protocols to be used in 

overseeing state enforcement programs. In 2007, we recommended that to 

enhance EPA’s oversight of regional and state enforcement activities 

consistent with federal requirements that the agency should (1) identify 

lessons learned and develop an action plan to address significant issues, 

(2) address resource issues such as state staffing levels and resource 

requirements, (3) publish the results of the SRF reviews so that the public 

and others will know how well state enforcement programs are working, 

and (4) conduct a performance assessment of regional enforcement 

programs similar to the SRF. EPA generally agreed with most of the 

recommendations we made in 2007, but did not specifically comment on 

the recommendations we made in 2000. Although EPA has taken steps to 

address the recommendations in our 2000 report, it has not yet 

implemented the recommendations in our 2007 report. 

Page 6 GAO-10-165T Clean Water Act Enforcement 
In 2005, we reported that the scope of EPA’s responsibilities under the 

Clean Water Act had increased significantly since 1972, along with the 

workload associated with implementing and enforcing the act’s 

requirements.3

 For example, EPA’s implementation of the 1987 

amendments which expanded the scope of the act by regulating storm 

water runoff resulted in (1) increasing the number of regulated industrial 

and municipal facilities by an estimated 186,000 facilities and (2) adding 

hundreds of thousands of construction projects to states’ and regions’ 

workloads for the storm water program. At the same time, EPA had 

authorized states to take on more responsibilities, shifting the agency’s 

workload from direct implementation to oversight. 

In 2007, we reported that while overall funding for carrying out 

enforcement activities to regions and authorized states had increased from 

fiscal years 1997 through 2006, these increases had not kept pace with 

inflation and the growth in enforcement responsibilities.4

 Over the 10-year 

period we reviewed, EPA’s enforcement funding to the regions increased 

from $288 million in fiscal year 1997 to $322 million in fiscal year 2006, but 

declined in real terms by 8 percent. Both EPA and state officials told us 

they found it difficult to respond to new requirements while carrying out 

their previous responsibilities. 

Enforcement 

Resources Have Not 

Kept Pace with 

Increased 

Responsibilities and 

Better Resource 

Planning Would 

Enhance 

Enforcement 

Activities 

In 2007, officials in OECA and EPA’s Office of the Chief Financial Officer 

told us that in recent years OECA headquarters absorbed decreases in 

OECA’s total enforcement funding to prevent further reductions to the 

regions. We determined that enforcement funding for OECA headquarters 

increased from $197 million in fiscal year 2002 to $200 million in fiscal year 

2006—a 9 percent decline in real terms. During the same time, regional 

enforcement funding increased from $279 million to $322 million—a 4 

percent increase in real terms. EPA also reduced the size of the regional 

enforcement workforce by about 5 percent over the 10 year period 

between fiscal years 1997 and 2006. During this 10-year period, the 

regional workforce was reduced from 2,568 full-time equivalent (FTE) 

staff in fiscal year 1997 to 2,434 FTEs in fiscal year 2006. In comparison, 

the OECA headquarters workforce declined 1 percent, and the EPA total 

 

3

GAO, Clean Water Act: Improved Resource Planning Would Help EPA Better Respond to 

Changing Needs and Fiscal Constraints, GAO-05-721 (Washington, D.C.: July 22, 2005). 

4

GAO, Environmental Protection: EPA-State Enforcement Partnership has Improved, but 

EPA’s Oversight Needs Further Enhancement, GAO-07-883 (Washington, D.C.: July 31, 

2007). 

Page 7 GAO-10-165T Clean Water Act Enforcement 
workforce increased 1 percent during the same period. However, the 

change in FTEs was not uniform across the 10 regions over the period. For 

example, two regions—Region 9 (San Francisco) and Region 10 

(Seattle)—experienced increases in their workforce: Region 9 increased 5 

percent, from 229 to 242 FTEs, and Region 10 increased 6 percent, from 

161 to 170 FTEs. In contrast, two regions—Region 1 (Boston) and Region 

2 (New York) experienced the largest declines: Region 1 experienced a 15 

percent decline, from 195 to 166 FTEs, and Region 2 had a 13 percent 

decline, from 291 to 254 FTEs. 

Although we recognized that resources had not kept pace with EPA’s 

responsibilities under the Clean Water Act, we also found that EPA’s 

process for budgeting and allocating resources did not fully consider the 

agency’s current workload, either for specific statutory requirements, such 

as those included in the Clean Water Act, or for the broader goals and 

objectives in the agency’s strategic plan. Instead, EPA made incremental 

adjustments and relied primarily on historical precedent when making 

resource allocations. In 2005, we concluded that changes at the margin 

may not be sufficient because both the nature and distribution of the 

Clean Water Act workload had changed, the scope of activities regulated 

under the act had increased, and EPA had taken on new responsibilities 

while shifting others to the state. 

While we reported in 2005 that EPA had taken some actions to improve 

resource planning, we also found that it faced a number of challenges that 

hindered comprehensive reform in this area. Specifically, we identified 

several efforts that EPA had initiated to improve the agency’s ability to 

strategically plan its workforce and other resources. While some of these 

efforts were not directly related to workforce planning, we found that they 

had the potential to give the agency some of the information it needed to 

support a systematic, data-driven method for budgeting and allocating 

resources. In addition, we identified two initiatives within the Office of 

Water that we believed had the potential to provide relevant and useful 

information for a data-driven approach to budgeting and allocating 

resources. First, beginning in December 1998, EPA and the states 

collaborated on a state resource analysis for water quality management to 

develop an estimate of the resources that states needed to fully implement 

the Clean Water Act. The primary focus of the project was identifying the 

gap between states’ needs and available resources. To develop the 

estimates of the gap, EPA and the states created a detailed model of 

activities associated with implementing the Clean Water Act, the average 

time it took to complete such activities, and the costs of performing them. 

The National Academy of Public Administration subsequently reviewed 

Page 8 GAO-10-165T Clean Water Act Enforcement 
the model and determined that the underlying methodology was sound, 

and recommended that EPA and the states refine the model to support 

data-driven grant allocation decisions. However, as we reported, the 

agency did not implement the recommendation, citing resource 

constraints and reluctance on the part of some states. Second, in 2003, the 

Office of Water implemented an initiative called the Permitting for 

Environmental Results Strategy to respond to circumstances that were 

making it increasingly difficult for EPA and the states to meet their 

responsibilities under the Clean Water Act. According to EPA, in addition 

to the scope and complexity of the act expanding over time, the states 

were also facing an increasing number of lawsuits and petitions to 

withdraw their authorization to administer some Clean Water Act 

programs. As part of its effort to identify and resolve performance 

problems in individual states, EPA and the states were developing profiles 

containing detailed data on the responsibilities, resources, and workload 

demands of each state and region. We concluded that this information 

would be useful to any comprehensive and systematic resource planning 

method adopted by the agency. 

Nonetheless, we also identified a number of larger challenges that EPA 

would face as it tried to adopt a more systematic process for budgeting 

and resource allocation. Specifically, we found that EPA would be 

challenged in obtaining complete and reliable data on key workload 

indicators, which we concluded would be the most significant obstacle to 

developing a systematic, data-driven approach to resource allocation. 

Without comprehensive and reliable data on workload, EPA cannot 

accurately identify where agency resources, such as staff with particular 

skills, are most needed. EPA officials told us that some of the key 

workload factors related to controlling point and nonpoint source 

pollution include the number of point source dischargers, the number of 

wet weather dischargers, and the quantity and quality of water in 

particular areas. However, we reported that for some of this information, 

the relevant databases may not have the comprehensive, accurate, and 

reliable information that is needed by the agency. 

Even with better workload data, we found in 2005 that EPA would also 

find it difficult to implement a systematic, data-driven approach to 

resource allocation without staff support for such a process. Support 

might not be easily forthcoming because, according to EPA officials in 

several offices and regions, staff were reluctant to accept a data-driven 

approach after their experience in using workload models during the 

1980s. At that time, each major program office used a model to allocate 

resources to the agency’s regional offices. When the models were initially 

Page 9 GAO-10-165T Clean Water Act Enforcement 
developed, agency officials believed they were useful because EPA’s 

programs were rapidly expanding as the Congress passed new 

environmental laws. Over time, however, the expansion of EPA’s 

responsibilities leveled off, and its impact on the relative workload of 

regions was not as significant. The change in the rate of the workload 

expansion, combined with increasingly constrained federal resources 

during the late 1980s, meant that the workload models were only being 

used to allocate changes at the margins. The agency stopped using the 

models in the early 1990s because, according to officials, staff spent an 

unreasonable amount of time negotiating relatively minor changes in 

regional resources. 

To address the concerns that we identified with EPA’s resource allocation 

and planning processes for the enforcement programs, in 2005, we made 

several recommendations to the agency. Specifically, we recommended 

that EPA identify relevant workload indicators that drive resource needs, 

ensure that relevant data are complete and reliable, and use the results to 

inform budgeting and resource allocation decisions. In responding to our 

recommendations, EPA voiced concerns that a bottom-up workload 

assessment contrasts with its approach, which links budgeting and 

resource allocation to performance goals and results. However, we 

reiterated our belief that assessing workload and how it drives resources 

was fully compatible with EPA’s approach. In 2008,5

 when we again 

reported on EPA’s resource allocation process, we found that the process 

was essentially the same as we reported in 2005 and that the agency had 

not made progress on implementing our recommendations. 

In 2007, we reported that, despite the interdependence between EPA and 

the states in carrying out enforcement responsibilities, effective working 

relationships have historically been difficult to establish and maintain, 

based on reports by GAO, EPA’s Office of Inspector General, the National 

Academy of Public Administration, and others.6

 We identified the 

following three key issues that have affected EPA and state relationships 

in the past: 

EPA Has Improved Its 

Process for 

Collaborating with 

States to Set Priorities 

 

5

 GAO, EPA’s Execution of Its Fiscal Year 2007 New Budget Authority for the 

Enforcement and Compliance Assurance Program in Regional Offices, GAO-08-1109R 

(Washington, D.C., Sept. 26, 2008). 

6

 GAO, Environmental Protection: EPA-State Enforcement Partnership has Improved, but 

EPA’s Oversight Needs Further Enhancement, GAO-07-883 (Washington, D.C.: July 31, 

2007). 

Page 10 GAO-10-165T Clean Water Act Enforcement 
• EPA’s funding allocations to the states did not fully reflect the differences 

among the states’ enforcement workload and their relative ability to enforce 

state environmental programs consistent with federal requirements. In this 

regard, EPA lacked information on the capacity of both the states and EPA’s 

regions to effectively carry out their enforcement programs, because the 

agency had done little to assess the overall enforcement workload of the 

states and regions and the number and skills of people needed to implement 

enforcement tasks, duties, and responsibilities. Furthermore, the states’ 

capacity continued to evolve as they assumed a greater role in the day-today management of enforcement activities, workload changes occurred as a 

result of new environmental legislation, new technologies were introduced, 

and state populations shifted. 

• Problems in EPA’s enforcement planning and priority setting processes 

resulted in misunderstandings between OECA, regional offices, and the 

states regarding their respective enforcement roles, responsibilities, and 

priorities. States raised concerns that EPA sometimes “micromanaged” 

state programs without explaining its reasons for doing so and often did 

not adequately consult the states before making decisions affecting them. 

• OECA had not established a consistent national strategy for overseeing 

states’ enforcement of EPA programs. Consequently, the regional offices 

were not consistent in how they oversaw the states. Some regional offices 

conducted more in-depth state reviews than others, and states in these 

regions raised concerns that their regulated facilities were being held to 

differing standards of compliance than facilities in states located in other 

regions. 

Our 2007 report acknowledged that EPA had made substantial progress in 

improving priority setting and enforcement planning with states through 

its system for setting national enforcement priorities and the National 

Environmental Performance Partnership System (NEPPS), which was 

designed to give states demonstrating strong environmental performance 

greater flexibility and autonomy in planning and operating their 

environmental programs. We concluded that the NEPPS had fostered a 

more cooperative relationship with the states and that EPA and the states 

had also made some progress in using NEPPS for joint planning and 

resource allocation. State participation in the partnership had grown from 

6 pilot states in fiscal year 1996 to 41 states in fiscal year 2006. 

Page 11 GAO-10-165T Clean Water Act Enforcement 
In 2008, we reported that EPA relies on a variety of measures to assess and 

report on the effectiveness of its civil and criminal enforcement 

programs.7

 For example, EPA relies on assessed penalties that r

enforcement efforts among its long-standing measurable 

accomplishments. The agency uses its discretion to estimate the 

appropriate penalty amount based on individual case circumstances. EPA 

has developed penalty policies as guidance for determining appropriate 

penalties in civil administrative cases and referring civil judicial cases. The 

policies are based on environmental statutes and have an important goal 

of deterring potential polluters from violating environmental laws and 

regulations. The purpose of EPA’s penalties is to eliminate the economic 

benefit a violator gained from noncompliance and to reflect the gravity of 

the alleged harm to the environment or public health. In addition to 

penalties, EPA has also established what it considers two major 

performance measures for its civil enforcement program. These are (1) the 

value of injunctive relief—the monetary value of future investments 

necessary for an alleged violator to come into compliance, and (2) 

pollution reduction––the pounds of pollution to be reduced, treated, or 

eliminated as a result of an enforcement action. EPA relies on these 

measures, among others, in pursuing its national enforcement priorities 

and overall strategy of fewer, but higher impact, cases. However, unless 

these measures are meaningful, the Congress and the public will not be 

able to determine the effectiveness of the enforcement program. 

esult from 

 

Measures Used to 

Report on the 

Effectiveness of 

Enforcement Efforts 

Can Be Improved 

When we reviewed EPA’s assessed penalties data we determined that from 

fiscal years 1998 to 2007 total inflation-adjusted penalties declined when 

excluding major default judgments.8

 When adjusted for inflation, total 

assessed penalties were approximately $240.6 million in fiscal year 1998 

and $137.7 million in 2007. Moreover, we identified three shortcomings in 

how EPA calculates and reports penalty information to the Congress and 

the public that may result in an inaccurate assessment of the program. 

Specifically, we reported that EPA was 

• Overstating the impact of its enforcement programs by reporting penalties 

assessed against violators rather than actual penalties received by the U.S. 

Treasury. 

7

GAO, Environmental Enforcement: EPA Needs to Improve the Accuracy and 

Transparency of Measures Used to Report on Program Effectiveness, GAO-08-1111R 

(Washington, D.C.: Sept. 18, 2008). 

8

A default judgment is a binding judgment in favor of the plaintiff when the defendant has 

not responded to a civil complaint. 

Page 12 GAO-10-165T Clean Water Act Enforcement 
• Reducing the precision of trend analyses by reporting nominal rather than 

inflation-adjusted penalties, thereby understating past accomplishments. 

• Understating the influence of its enforcement programs by excluding the 

portion of penalties awarded to states in federal cases. 

In contrast to penalties, we found that both the value of estimated injunctive 

relief and the amount of pollution reduction reported by EPA generally 

increased. The estimated value of injunctive relief increased from $4.4 

billion in fiscal year 1999 to $10.9 billion in fiscal year 2007, in 2008 dollars. 

In addition, estimated pollution reduction commitments amounted to 714 

million pounds in fiscal year 2000 and increased to 890 million pounds in 

fiscal year 2007. However, we identified several shortcomings in how EPA 

calculates and reports this information as well. We found that generally 

EPA’s reports did not clearly disclose the following: 

• Annual amounts of injunctive relief and pollution reduction have not yet 

been achieved. They are based on estimates of relief and reductions to be 

realized when violators come into compliance. 

• Estimates of the value of injunctive relief are based on case-by-case 

analyses by EPA’s technical experts, and in some cases the estimates 

include information provided by the alleged violator. 

• Pollution reduction estimates are understated because the agency 

calculates pollution reduction for only 1 year at the anticipated time of full 

compliance, though reductions may occur for many years into the future. 

In addition, we identified a number of factors that affected EPA’s process 

for achieving annual results in terms of penalties, estimated value of 

injunctive relief, and amounts of pollution reduction. Some of these 

factors that could affect the outcomes included: 

• The Department of Justice (DOJ), not EPA, is primarily responsible for 

prosecuting and settling civil judicial and criminal enforcement cases. 

• Executive Order 12988 directs DOJ, whenever feasible, to seek settlements 

before pursuing civil judicial actions against alleged violators. 

• Unclear legal standards, as illustrated by the 2006 Supreme Court decision, 

Rapanos v. United States have hindered EPA’s enforcement efforts. This 

case generally made it more difficult for EPA to take enforcement actions 

because the legal standards for determining what is a “water of the United 

States” were not clear. 

Page 13 GAO-10-165T Clean Water Act Enforcement 
In our 2008 report, we recommended that EPA take a number of actions to 

improve the accuracy and transparency of the information that it reports 

to the Congress and the public regarding penalties assessed, value of 

injunctive relief, and estimates of pollution reduction. EPA generally 

agreed with most of our recommendations and stated that it would 

consider making these changes in the future. 

In conclusion, our work over the past 9 years has shown that the Clean 

Water Act has significantly increased EPA’s and the states’ enforcement 

responsibilities, available resources have not kept pace with these 

increased needs, and actions are needed to further strengthen the 

enforcement program. To address these concerns, we have made several 

recommendations to EPA, however, EPA’s implementation of our 

recommendations has been uneven and several of the issues that we have 

identified over the last decade remain unaddressed today. The agency still 

needs 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. The agency still needs better processes 

to plan and allocate resources to ensure that the greatest risks are being 

addressed. Finally, the agency needs 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. 

Mr. Chairman, this concludes our prepared statement, we would be happy to 

respond to any questions that you or other committee Members might have. 

Contact points for our Offices of Congressional Relations and Public 

Affairs may be found on the last page of this statement. For further 

information about this testimony, please contact Anu Mittal at (202) 512-

3841 or mittala@gao.gov. Key contributors to this testimony were Steve 

Elstein, Diane Raynes, Ed Kratzer, Sherry McDonald, Antoinette Capaccio, 

and Alison O’Neill. 

Contact and Staff 

Acknowledgments 

(361140) Page 14 GAO-10-165T Clean Water Act Enforcement 
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