According to an Arkansas news source, NACWA recently learned that a community got unanticipated relief on over $120,000 in stipulated penalties for sanitary sewer overflows (SSOs) that had been assessed pursuant to the city’s federal wet weather consent decree. The EPA, under the Obama Administration, assessed the penalties. The city filed formal dispute resolution against EPA in February 2017 to push back on the amount being levied. On April 10, the city received notice from the Federal Government that the SSO violations were waived without prejudice. While the assessment of stipulated penalties under decrees is always subject to enforcement discretion, it is unique for an assessment to be made and then later waived in its entirety.
NACWA has met with EPA, the US Department of Justice (DOJ), and the White House to discuss such issues as penalties, affordability challenges, and much-needed flexibility in the municipal enforcement context (NACWA letter to DOJ). During these meetings, NACWA has pushed EPA and DOJ to minimize penalties. Local community resources that are diverted to the US Treasury via assessment of civil and stipulated penalties reduce the funds available for local water quality investments that result in actual environmental improvements.
The Association is advocating a shift in the Federal Government’s enforcement mindset to see the public clean water sector as co-regulators, working in partnership with regulators to achieve net environmental benefits in a responsible and sustainable manner. Across the board, the administration has been very receptive to NACWA’s suggestions. NACWA was pleased to learn of the Fort Smith stipulated penalties waiver as a concrete manifestation of the shift in attitude and NACWA will continue to advocate for this approach across the country.
Association staff stand ready to assist members on consent decree issues through the Legal Affairs Committee, network of top clean water attorneys, staff expertise, and resources such as the Consent Decree Handbook and the Consent Decree e-library.
This topic will be the main discussion item during the next Legal Affairs Committee meeting on July 23 from 3:30 pm -5:00 pm CT, during NACWA's 2017 Utility Leadership Conference & 47th Annual Meeting July 23 – 26, 2017 in St. Louis, MO.