The Department of Justice (DOJ) recently issued guidance clarifying when the agency will pursue enforcement actions under the Clean Water Act (CWA).  The policy, “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” provides that the agency will strongly disfavor pursuing enforcement in civil CWA cases when a State has previously instituted a civil penalty proceeding under an analogous state law arising from the same operative facts. According to the DOJ, the new CWA enforcement policy aims to ensure that the federal government does not “pile on” when state, local, or other federal enforcement actions are sufficient.

The DOJ guidance is the latest significant CWA development in recent months. While the federal government has been attempting to limit the reach of the environmental law, the U.S. Supreme Court held in County of Maui, Hawaii v. Hawaii Wildlife Fund et al. that permits are required under CWA when there’s a “functional equivalent of a direct discharge.” In so ruling, the Court rejected the narrow interpretation of the CWA advanced by the Trump Administration.

CWA Enforcement Discretion

The DOJ guidance, authored by Assistant Attorney General Jeffrey Bossert Clark, notes that the CWA provides clarity for states but not the federal government, particularly with regard to judicial actions. Going forward, federal civil judicial enforcement under the CWA can proceed only with the express written approval of the Assistant Attorney General for Environmental & Natural Resources Division. "I have come to the conclusion that as a matter of enforcement discretion, civil enforcement actions seeking penalties under the CWA will henceforward be strongly disfavored if a State has already initiated or concluded its own civil administrative proceeding for penalties under an analogous state law arising from the same operative facts," Clark wrote.

According to the DOJ, its new enforcement policy ensures “healthy respect for federalism, and it defers to Congress’s manifest policy judgement against double recovery.” Clark also notes that the approach is consistent with recent additions to the Justice Manual warning against piling on.  As stated in the Justice Manual, “piling on” can deprive a company of the benefits of certainty and finality ordinarily available through a full and final settlement.

Under the new guidance, the DOJ will consider requests to bring a subsequent federal civil action in the clean water area on a case-by-case basis using the following touchstones:

  • Going forward, if, prior to any federal civil penalty action, a State has already initiated or concluded a civil enforcement action for penalties under an analogous state law for the same conduct, no federal civil judicial enforcement matter may be pursued without my prior written approval;
  • Pre-approval requests should be made in the form of a privileged memorandum submitted to the ENRD front office through the normal chain of command (i.e., through the appropriate Assistant Chief, Chief, and Deputy Assistant Attorney General;
  • Approval will be granted only if:
    Standing on the prior state enforcement action would amount to an unfair windfall to the would be defendant;
    • The State is not diligently prosecuting an initiated civil enforcement action;
    • The State has requested in writing, citing reasons for doing so, that the federal government pursue a separate enforcement action and that request, in light of all circumstances, would not amount to unfair “piling” on;
    • The State has been unable to collect its penalty and asks in writing for federal assistance;
    • A federal action is necessary to protect an important federal interest not adequately addressed already or to be addressed by the state action;
    • The federal action would seek only appropriate injunctive relief to fill a discernible gap in the prior state relief; or
    • There are other exceptional circumstances justifying federal involvement; and
  • Requests to pursue a subsequent enforcement action where the State sought a penalty and the relevant tribunal denied that request will ordinarily be disfavored, though exceptions may be granted with my express authorization.

"Multiple factors may bear on the decision in each case and the factors are not intended to be applied mechanically but to inform my exercise of discretion," the memo further states. It adds that “nothing in this guidance should be understood as narrowing federal enforcement options.” Notably, the DOJ memo does not apply to criminal matters.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.