The continuing violations doctrine and the Clean Water Act: untenable solutions and a need for reform

Environmental Law, Summer, 2002 by David S. Foster

The Clean Water Act serves as the primary tool for wetland protection. While the purpose of the Act is to restore the integrity of the nation's waters, illegal wetland fill activities that occurred in the past potentially lie beyond the reach of the statute's authority. Additionally, penalties for discrete illegal fill activities may be insufficient to dissuade potential violators. In response to these shortcomings, many courts have applied the continuing violations doctrine, which extends the statute of limitations, prolongs jurisdiction over citizen suits, and compounds penalties on a dally basis. The continuing violations doctrine is neither expressly nor impliedly authorized by the Clean Water Act, and this chapter posits that its application therefore cannot be supported. Nonetheless, because the Act fails to hold many potential violators accountable for illegal activities, this result is at odds with the purpose of the Act. For this reason, this chapter argues that an amendment incorporating the continuing violations doctrine is necessary to give the Act the tools necessary to accomplish the goals established by Congress.

I. INTRODUCTION

Wetlands, the various hydrologic systems ranging from spring pools to vast saltwater marshes, enjoy certain protections under the Clean Water Act (CWA or the Act). (1) If material is illegally discharged into a wetland, the CWA, a lengthy, comprehensive command-and-control statute, provides the procedures by which actions against responsible parties are brought; limits the parties that may bring those actions; and establishes the civil and criminal penalties available against liable offenders. However, not all elements of a CWA prosecution are well defined. As recent case law makes abundantly clear, when litigants ask the question precisely what constitutes an illegal discharge into a wetland, there is a conspicuous lack of consensus among the courts. (2) While statutes frequently spawn various interpretations, it is unlikely that any other environmental statute has generated such a radical lack of consensus.

In the context of wetlands, the continuing violations doctrine holds that for every day illegally dumped fill remains in a wetland, a new and separate violation accrues. (3) When the Environmental Protection Agency (EPA) or a citizens group brings an action involving the illegal filling of a wetland, the time when that filling, or "discharge," (4) occurred affects three distinct facets of the lawsuit: the total penalties levied against a CWA violator, (5) whether EPA has jurisdiction over a particular CWA citizen suit, (6) and whether a claim may be brought at all. (7) If the illegal discharge occurred as the suit was brought, then these issues fall to the wayside and the suit proceeds. (8) If, however, the discharge was a discrete event that occurred perhaps six years ago, arguments over these issues are likely to center around the doctrine of continuing violations. (9)

The inconsistent interpretations amongst courts results from an irreconcilable clash between the stated objective of the Clean Water Act and the subsequent mechanisms that are supposed to render that objective obtainable. Congress created the CWA to "restore the chemical, physical, and biological integrity of the Nation's waters," and to eliminate pollutant discharge into the nation's waters by 1985. (10) The Act incorporates various sections that allow for criminal and civil prosecution of those entities that violate the terms of the CWA. (11) However, defendants have successfully argued that the Act does not allow for suits when violations do not fall within the limitations period or when violations ended before the suit was filed. (12) The answer to that defense is the continuing violations doctrine, offered by EPA, citizen groups, and--in many instances--various district courts as a legitimate means of rendering the suit live and viable.

The Ninth Circuit recently addressed whether a process known as "deep ripping" constituted a violation of the CWA. (13) After determining that the process indeed violated the Act, the court faced the task of assessing penalties against the defendant. The Ninth Circuit declined to apply the continuing violations doctrine and instead assessed penalties based on each discrete action that constituted a violation of the Act. (14) This resulted in multiple penalties assessed within a single day, but only for that single day. The court did not contemplate penalties for subsequent days during which fill material remained in the wetland. (15)

The Ninth Circuit had previously considered the continuing violations doctrine in a case brought under the Clean Air Act (CAA). (16) Although the court determined that the continuing violations doctrine was inapplicable in United States v. Trident Seafoods Corp., (17) its decision seemed to rest largely on its finding that the CAA did not contain any section that might be interpreted as allowing fines based on a continuing violation, not because of any specific rejection of the continuing violations doctrine. (18) The appellate court's examination of the provisions of the CWA and its indication of the possible use of the continuing violations doctrine in the CWA context is noteworthy. (19) The Ninth Circuit noted that while the CAA language foreclosed the continuing violations doctrine, the CWA penalty provisions left open the possibility of penalties calculated based on the doctrine. (20)