Clean Water Act: Longstanding Issues Impact EPA's and States' Enforcement Efforts
Published: 2009-10-15T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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.
section_title: What GAO Found
paragraphs: 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.

section_title: Letter
paragraphs: 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:    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.
subsections: section_title: Background
paragraphs: 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.
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  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.
section_title: Variations in Enforcement By EPA’s Regions Have Resulted in Inconsistencies in Program Implementation
paragraphs: 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. 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  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,    variations in resources available to both state and regional enforcement  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  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.
section_title: Enforcement Resources Have Not Kept Pace with Increased Responsibilities and Better Resource Planning Would Enhance Enforcement Activities
paragraphs: 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. 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. 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.
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  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  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  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, 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.
section_title: EPA Has Improved Its Process for Collaborating with States to Set Priorities
paragraphs: 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. We identified the  following three key issues that have affected EPA and state relationships  in the past:    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-to- day 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.
section_title: Measures Used to Report on the Effectiveness of Enforcement Efforts Can Be Improved
paragraphs: 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. For example, EPA relies on assessed penalties that result from  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.
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. 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.
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.
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.
section_title: Contact and Staff Acknowledgments
paragraphs: 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.
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