Department of Justice Altering Consent Decree Approach, NACWA Responding

(August 14, 2019) –NACWA has been informed that the US Department of Justice (DOJ) may be pushing back on the use of Supplemental Environmental Projects (SEPs) in federal wet weather consent decrees currently being negotiated.

The impetus for this change is a June 2017 memo released by former Attorney General Jeff Sessions that prohibits DOJ from entering into any agreement on behalf of the United States in settlement of federal claims or charges that directs or provides for a settlement payment to non-governmental, third parties that were not directly harmed by the conduct.

EPA’s Supplemental Environmental Projects Policy allows for a consent decree to include a SEP to mitigate a civil penalty or stipulated penalties. SEPs are an important way for a clean water agency to use funds locally that would otherwise go to the Federal Treasury.

NACWA has been engaged with EPA regarding this development and confirmed that the Agency remains in favor of the use of SEPs.  NACWA is currently gathering additional information to determine next steps.  Please contact Amanda Waters, NACWA’s General Counsel, 202-530-2758, if you have information relating to DOJ’s restrictive interpretation.