On July 27, 2020, U.S. Department of Justice (DOJ) Assistant Attorney General (AAG) Jeffrey Bossert Clark issued a memorandum setting forth limitations to federal civil enforcement discretion concerning certain Clean Water Act (CWA) matters involving prior state proceedings (CWA Memo).

Specifically, the CWA Memo makes clear that DOJ disfavors federal civil enforcement if an action has already been initiated or concluded by a state and any federal action that might otherwise be considered would arise from the same operative facts. While the guidance does not alter the statutory enforcement authority of the federal government, it provides clear direction on the use of DOJ CWA enforcement discretion in potential state overfiling situations.

This development offers the regulated community greater reassurance that federal overfiling will continue to be rare. The CWA Memo does not address the separate issue of federal oversight of permitting actions delegated under the CWA or other major federal statutes. Such oversight is expected to remain robust.

The CWA Memo is consistent with the U.S. Environmental Protection Agency (EPA)’s 2019 guidance, Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work. In tandem, these DOJ and EPA pronouncements underscore the current Administration’s policy of providing significant deference to states authorized to implement the CWA’s programs under its cooperative federalism framework.

The CWA Memo’s Directive

The CWA Memo cites federalism principles to support DOJ’s new policy, noting that Congress expressly precluded federal CWA civil enforcement actions subsequent to state administrative action in a few specific circumstances. Although Congress did not provide a similar express bar on federal enforcement action in other circumstances, DOJ has concluded that Congress intended the federal government to take an expansive view of the range of circumstances in which the federal government generally should not over-file.

For example, the CWA Memo highlights how, in CWA subsection 309(g)(6), Congress dictated that the federal government cannot bring a civil enforcement action after a state has initiated administrative proceedings similar to federal administrative proceedings. DOJ notes that this CWA provision is silent as to state judicial proceedings, and advances the position that the federal government should refrain from overfiling in the absence of an outcome in a state court case that the federal government views as clearly erroneous under the CWA. CWA Memo, pp. 5-6 (“Strangely, however, nothing in the CWA affords similar preclusive effect to state judicial enforcement actions, even though such civil judicial enforcement actions will inherently include more robust processes to protect the rights of defendants than the § 309(g)-referenced state administrative proceedings.”).

As a result, DOJ’s policy is to avoid federal “piling on” top of state enforcement actions. This is consistent with other policy statements from DOJ made in the Justice Manual and the “Petite Policy” (named after Petite v. United States, 361 U.S. 529 (1960)), both of which discuss the exercise of discretion when bringing subsequent federal enforcement actions.

Under the CWA Memo, DOJ will use a set of criteria to evaluate whether it should bring federal civil CWA actions subsequent to state enforcement. Specifically, if a state has already begun or concluded a civil enforcement action for penalties under analogous state law for the same conduct, no federal civil judicial enforcement is permitted without pre-approval from the AAG.

Pre-approval to proceed with federal enforcement action may be granted based on any of six specific factors, as well as a catch-all:

1. The outcome of the prior state enforcement action would amount to an unfair windfall to the would-be defendant;
2. The State is not diligently prosecuting an initiated civil enforcement action;
3. The State makes a written request for the federal government to pursue separate action, citing a basis for the request, that, in light of all circumstances, DOJ concludes would not amount to unfair “piling on”;
4. The State has been unable to collect its penalty and makes a written request for federal assistance;
5. A federal action is necessary to protect an important federal interest that the state action will not adequately address;
6. The federal action would seek only appropriate injunctive relief to fill a discernible gap in the prior state relief; or
7. There are other exceptional circumstances justifying federal involvement.

Finally, in the event a state brought a civil action but the penalties sought were denied by a state court, the AAG will disfavor granting pre-approval of a related federal civil enforcement action, although exceptions may be allowed. The CWA Memo also clarifies that the detailed factors are not intended to be used mechanically, but that each case needs to be considered on its own merits.

Implications of the Directive

The CWA Memo appears to confirm the long-standing practice of the federal government to pursue overfiling in only a limited set of enforcement circumstances. State and federal agencies often partner to bring a case as co-plaintiffs, and in some cases the CWA requires state involvement in an enforcement action. E.g., 33 U.S.C. § 1319(e) (states must be joined as parties in any civil enforcement action against a municipality). In practice, states have been and will remain in the lead for most enforcement actions taken under delegated programs like the CWA’s NPDES (National Pollution Discharge Elimination System) permit regime.

To the extent there has been the type of duplicative enforcement described in the CWA Memo, DOJ’s written pronouncement is welcome news. We anticipate DOJ will issue additional policy materials on the scope of federal regulatory and enforcement discretion. For example, the CWA Memo indicates DOJ plans to issue a policy statement regarding reliance on legislative history to expand or justify enhanced interpretations of federal environmental laws. Overall, the CWA Memo appears to be part of a series of policy pronouncements by the Trump Administration to reinforce its emphasis on the principle of cooperative federalism in federal environmental laws.