On Monday, July 27, the DOJ issued a memo stating that federal actions seeking penalties under the Clean Water Act (CWA) will be strongly disfavored when a state has already initiated its own enforcement action.  The memo notes that the CWA already precludes federal action when a state is pursuing administrative proceedings against an alleged violator under comparable state law, but that the CWA does not have the same prohibition when a state is pursuing a judicial enforcement action.  The policy applies only to civil actions, not criminal cases, and is designed to respect state authority, and avoid duplicative enforcement actions against companies that are already facing state level enforcement proceedings.  DOJ representatives have stated that the policy is designed focus federal resources where they are most needed, and to allow early acting states to be the final word on enforcement actions for violators of the CWA in those states.

For more information, please contact Phillip Hoover or Andy Thompson.