On July 27, 2020, the Assistant Attorney General in charge of the U.S. Department of Justice’s Environment and Natural Resources Division announced that the federal government will not, as a general policy, seek civil penalties in Clean Water Act (CWA) cases where states have already taken action to enforce analogous state laws.
The memorandum introducing the policy argues that federalism principles and the prosecutorial policy against “piling on” support restraining federal enforcement when CWA violations have been addressed by state civil enforcement actions.
Pursuant to the new policy, if a state has already brought a similar action for civil penalties under the same operative facts, a subsequent federal enforcement action can only proceed if approved by the head of the Environment and Natural Resources Division. Requests to file such actions will only be approved if at least one of the following factors applies:
The policy does not apply to criminal cases or to civil cases where the penalty is sought based on new conduct post-dating the prior state proceeding.
The policy will not effect a dramatic change in federal CWA enforcement, as duplicative enforcement actions are generally uncommon, but the new policy does provide welcome assurance and certainty to the regulated community that they will remain so.
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Julio N. Colomba is an Associate at Harrison, Temblador, Hungerford & Johnson LLP in Sacramento, California.
© 2020 – Harrison, Temblador, Hungerford & Johnson LLP. All rights reserved. The information in this article has been prepared by Harrison, Temblador, Hungerford & Johnson LLP for informational purposes only and does not constitute legal advice.