Citing delegated States as the primary enforcers of the Clean Water Act (CWA) and the promotion of federalism, Assistant Attorney General for the U.S. Department of Justice’s (DOJ) Environmental and Natural Resources Division (ENRD) Jeffrey Bossert Clark recently issued a memorandum promoting the use of enforcement discretion for certain civil CWA matters where a state proceeding has been initiated or concluded.

The memo memorializes and expands DOJ’s existing informal procedures and provides that civil enforcement actions seeking penalties under the CWA will 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. Mr. Clark notes recent updates to the DOJ’s Justice Manual that require additional coordination with state and local authorities to ensure the federal government does not “pile on” when State, local or other federal enforcement actions are sufficient.

The memo includes a number of “touchstones” to consider in evaluating whether to bring a subsequent federal civil action, such as whether the State is diligently prosecuting an initiated civil enforcement action, whether the State has been able to recover the penalties it sought, or whether a federal action is necessary to protect an important federal interest not adequately addressed in the State action. Further, States must have requested the DOJ’s help in writing and cite reasons for such a request. These factors set a high bar for initiating a subsequent federal action, which includes a formal request process under which requests are subject to Mr. Clark’s approval.

Please contact Brooks M. Smith, Gregory W. Blount, Fitzgerald E. Veira, Byron W. Kirkpatrick, Patrick J. Fanning, Houston Shaner, or Buck Dixon with questions regarding the memo.