(October 16, 2019) – NACWA met last week with Jeffrey Bossert Clark, Assistant Attorney General (AG) for the Environment and Natural Resources Division of the U.S. Department of Justice (DOJ). Assistant AG Clark authored the recent policy memo that significantly restricts the use of Supplemental Environmental Projects (SEPs) in settlement agreements with state and local governments, including wet weather consent decrees.
The memo states that the prohibition on SEPs is consistent with a November 2018 directive from then Attorney General Jeff Sessions which, among other things, limits the ability of the federal government to achieve policy goals or relief through settlement agreements that could not be obtained through litigation. There is a limited exception to the ban on SEPs, but this exception requires the personal approval of Clark and will only be available in very limited circumstances.
During the meeting, Clark reiterated his position that SEPs are generally illegal despite his agreement that, as a policy matter, these projects can be very beneficial. Clark indicated that he will be issuing a “Supplemental Memo on Supplemental Environmental Projects” that applies the restriction on the use of SEPs in federal negotiated settlement agreements with the private sector. The memo will also likely provide detail about how certain clean water projects currently characterized as SEPs could be categorized as “injunctive relief” or “remediation” to allow them to pass proceed.
EPA has strongly pushed back on limiting the use of SEPs. NACWA will be engaging with the Agency to discuss the potential to recharacterize these beneficial projects to attempt to ensure their continued availability. NACWA will also engage key congressional committees to discuss our concerns with this new approach.
In a related issue, NACWA has heard anecdotal information that DOJ is demanding even higher penalties than usual in wet weather negotiations. The Association is trying to determine if this is a trend or an isolated situation. Members with information are encouraged to contact Amanda Waters, NACWA’s General Counsel.