Thank you, Mickey and Erica, for that kind introduction and to NACWA [National Association of Clean Water Agencies] for inviting me to kick off your National Water Enforcement workshop. I appreciate the opportunity today to discuss the work of the Justice Department’s Environment and Natural Resources Division or “ENRD.” Having now led ENRD as the Acting Assistant Attorney General for nearly ten months, I have come to even more fully appreciate what a powerful force for good ENRD is in our country—both through our work to protect clean water, clean air, and clean land, and through our defense of the rule of law and good governance by our client agencies. The Division is focused on its unique roles and responsibilities under federal law; implementation of President Trump’s infrastructure, energy, national security, and regulatory reform programs; and the law enforcement agenda of Attorney General Jeff Sessions.
Before turning to our work at the Justice Department, I’d like to take a moment to applaud the work of NACWA and your members. What you do to ensure clean water is vitally important. From advocacy for sound, effective, and smart policies to creative public information efforts like the “Toilets Are Not Trashcans” campaign to investing billions of dollars in clean water infrastructure, you are making positive contributions to our families, communities, and nation. Thank you.
Our Division’s role in clean water is one reason why I am so proud to be at ENRD where our lawyers work every day to support this resource that is essential to my family, your families, and all of us. It is true that we tend to connect with the waterways where we live. I am sure that is the case here where we are meeting today, on the beautiful Savannah River. I just returned from visiting the Columbia River in Oregon where I saw firsthand how that majestic waterway is a centerpiece of the economy, culture, and history of the people living in the Pacific Northwest. And each day, while commuting to the Justice Department, I cross over the Potomac River on which President Washington lived most of his life and built his fortune. Washington loved the Potomac and called it “one of the finest Rivers in the world.”
Recently, when going through some older documents, I came across a poem written in 1958 by my grandfather, John Culver Sample. Born in West Lafayette, Indiana, my grandfather lived his childhood years along the banks of the Wabash River.
His poem was written a few years after he left Indiana in search of new opportunities in Florida. As I read it again a few weeks ago, it occurred to me that he was feeling the same connection so many of us feel for the water around us. He titled his poem, “Reverie in Amber.” In one part of the poem, he wrote:
To the land of my fathers I said ‘goodbye’,
To the river, the hills, and the plain,
And all the memories of green years past
Well up in my heart again . . . .
Though these eyes of mine shall not see again
The Wabash [River] in leisurely flow, my heart holds forever in its secret box
The harvest moon’s amber glow,
As its beams sift down from the hills on the west to the river far below . . . .
The Wabash River had a similar effect on many who have called Indiana home. Indeed, the State song is titled “On the Banks of the Wabash, Far Away.” Undoubtedly, my grandfather thought of this song, published in the late 1890s, when he penned his own poem about the Wabash River. If you’re from Indiana or have ever attended the Indianapolis 500, you may know the words. One part of the State song goes like this:
Oh, the moonlight's fair tonight along the Wabash,
From the fields there comes the breath of new mown hay.
Thro' the sycamores the candle lights are gleaming,
On the banks of the Wabash, far away.
Coincidentally, the State of Florida, where my grandfather would spend the rest of his life, has its own official State song that begins with these words:
Way down upon the Suwannee River,
Far, far away,
There’s where my heart is turning ever,
There’s where the old folks stay.
Indeed, all cultures, throughout the ages, have felt this connection to the rivers or other great waters that run through their lands. Our rivers connect us; bring us together; define our history; set our borders; give us a place to live, to drink, and to play; and provide us with a place to worship and pray.
I have seen this connection myself as a dad. My oldest son’s first word was “fish,” and we spent many hours walking along the Harpeth River in Tennessee, where we lived before moving to Washington, D.C. We would wade in that leisurely flowing river as it winded through middle Tennessee, marveling that the water beneath our feet would flow downstream a couple of dozen miles to the Cumberland River; from there to the Ohio River; and from there to the Mississippi River, before ultimately reaching the Gulf of Mexico. Clean flowing water is vital to us all.
Our Division at the Justice Department has seemingly countless cases involving the nation’s rivers and other great waters: from disputes over salmon in the Columbia River in the Pacific Northwest to cases challenging the precise boundary of Oklahoma and Texas along the Red River to lawsuits you are familiar with involving sewer overflows and stormwater runoff, we see firsthand the central role that these majestic waters play in our country and our cultures.
So, when President Trump declared that clean water is a high priority, we get it. We understand why. And ENRD is proud to embrace that mission and duty. Indeed, it should be recognized that the United States of America, including the federal government, the States, counties, cities, tribes, and the private sector, do more to protect and supply clean water than virtually any other nation now or in the history of the world. Our nation is blessed with abundant water resources and we know we have a responsibility to do our part to make wise use of it.
In his first speech to a Joint Session of Congress on February 28, 2017, the President stated: “My administration wants to work with members of both parties to . . . promote clean air and clean water . . . .” The President’s executive order on energy independence also recognizes the need for agencies “to promote clean air and clean water . . . .” And likewise, the opening words of the President’s executive order addressing the “Waters of the United States” rule states: “It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution . . . .”
At the same time, this Administration is committed to course corrections in key areas within the purview of our Division. President Trump has directed new approaches to reduce regulatory burdens, especially for agriculture, energy development, infrastructure projects, and manufacturing; and to promote development of America’s energy resources, while also protecting the environment. This Administration is undertaking an ambitious agenda of regulatory reform, perhaps to an extent not seen in the history of our Republic. ENRD is—and will continue to be—key to successful implementation of these new directions for America. The Division’s efforts have included managing a number of existing cases challenging agency regulations now under review in this Administration. Notable examples are challenges to the Clean Power Plan and the Clean Water Rule. While EPA or other client agencies review or reconsider their regulations, our aim at ENRD is to avoid unnecessary litigation, support the integrity of the administrative process, and conserve the resources of the courts, the agencies, and other litigants. In doing so, we preserve the rightful prerogative of the new Administration to review the costs and benefits of regulations and to chart a new direction where appropriate.
As we work to support these Administration priorities, the Division has been focused on five key objectives: (1) enforcing the environmental laws of the United States; (2) defending the regulatory agenda of the Trump Administration; (3) implementing the Attorney General’s policies and directives; (4) working cooperatively with States and Indian tribes; and (5) improving ENRD operations.
Let me say a few words about working cooperatively with States and tribes. Many of the Division’s cases, both civil and criminal, involve working with States and tribes as co-plaintiffs, and this is an important component of our programs. Whenever possible, we invite our co-regulators to join us in our enforcement litigation, and at a minimum, we provide notice to the State in every instance before filing suit against a violator in its jurisdiction. And, in civil cases, our State and tribal co-plaintiffs often share in penalty recoveries. In addition to other benefits, we have found that partnering with States leverages our resources.
We aim to keep the important principle at the forefront of our minds that many of the environmental laws we enforce actually give a primary role to the States and tribes. Many environmental violations, including Clean Water Act violations, can be and often are addressed and resolved without federal involvement. When discussing cases, we routinely ask our attorneys a straightforward question: What do the States or tribes have to say about it? That is critically important to us.
Let’s move on to the Division’s enforcement and defensive work under the Clean Water Act. Enforcement remains a high priority for the Trump Administration. This means that an unlawful discharge of pollution is, guess what, still unlawful. Where the law has been broken and environmental harm ensues, the Department of Justice will take action to protect public health and the environment. We will pursue the law and the facts of a case wherever they take us.
We recognize, however, that ENRD’s duty is to enforce the laws of the United States as written, not as we might wish that they were written. The Division begins every analysis with the same starting point: the Constitution and the statutes passed by Congress. It is not our job or our duty to use enforcement to regulate in ways not clearly authorized in law. It is also not our duty to press new, creative theories of liability that are not soundly based in clear statutory text.
The Department’s leaders expect people to follow the law and face consequences when they don’t. In fact, Attorney General Sessions and Deputy Attorney General Rosenstein both served previously as U.S. Attorneys: the Attorney General served in Alabama and the Deputy Attorney General served in Maryland. And during their time in those offices, they both prosecuted cases involving clean water violations. So they understand and appreciate why these cases matter. Our job is, first and foremost, law enforcement. I have heard this commitment to enforcement firsthand from Administrator Pruitt, too.
In all of this, the rule of law is central. Recently, Attorney General Sessions said it this way: “No greater good can be done for the overall health and well-being of our Republic, than preserving and strengthening the impartial rule of law.” From day one, the Attorney General has emphasized, in his words, the “critical role we at the Department play in maintaining and strengthening the rule of law, which forms the foundation for our liberty, our safety, and our prosperity. In this rule of law, we are blessed beyond all nations. And at this Department, we must do all that we can to ensure that it is preserved and advanced. Such ideals transcend politics.”
Deputy Attorney General Rosenstein also said recently, “[I]f we permit the rule of law to erode when it does not directly harm our personal interests, the erosion may eventually consume us as well. The rule of law is not self-executing. If the people lose faith in it, then everyone will suffer.”
The point is that the Department of Justice, under the leadership of Attorney General Sessions, is focused on keeping faith with an impartial set of laws. Environmental laws are important to securing public health and welfare, and the underlying principle of the rule of law is even more important. Prior to joining ENRD, I worked with Attorney General Sessions in the Senate for a number of years and counseled him on environmental issues, and I know, firsthand, how committed he is to those principles.
I would just say, we are going to continue with a strong program of environmental law enforcement, on both the civil and criminal sides. We see a role for modesty in our interpretation of the law to ensure that law enforcement is not stretching beyond the limits of the laws passed by Congress. We also recognize that federal clean water enforcement decisions need to be made in a rational way. That includes looking at the actual environmental benefits that may be gained.
Let me also mention that there are concerns at the leadership level with using guidance, published without the procedural safeguards of rulemaking, as a basis for enforcement. Doing so could, in some contexts, allow agencies to apply their own creativity to the law, when that is properly in the purview of Congress.
At the same time, we also believe that a compliance-based approach can be a win-win-win for the environment, the public, and American workers. At the State and local level in recent years, we have seen initiatives successfully promote a compliance assistance mindset. I believe there is more we can do at the federal level in that respect. As Attorney General Sessions has said, “Our Department would much rather have people and companies obey the law and do the right thing, so we don’t have to see them in court.” I would be interested in your ideas in this regard.
Over the past ten months, the Division has taken civil and criminal enforcement under the Clean Water Act and the Oil Pollution Act where appropriate. Here are some examples.
In June 2017, we entered into a settlement in a New Jersey case involving a defendant who repeatedly ignored the permitting rules aimed at controlling and minimizing pollution from uncontrolled, stormwater runoff at dozens of its construction sites. [United States v. NVR, Inc. (D.N.J.)] The defendant will pay a civil penalty of $425,000 and undertake management, inspection, training, and other efforts to assure future compliance.
In a case in Mississippi, the defendant agreed this past May to pay the United States $1 million to offset the costs incurred by the U.S. government as part of cleaning up an oil spill at the Chickasawhay River and its tributaries. [United States v. Logan Oil, L.L.C. (S.D Miss.)]
In May we also worked with the Mississippi Department of Environmental Quality to secure a guilty plea for criminal violations of the Clean Water Act. [United States v. Singh (S.D. Miss.)] The defendant admitted to discharging water mixed with gasoline from an underground fuel storage tank into a sewage line connected to a city’s wastewater treatment system, creating a fire or explosion hazard to the public and local infrastructure and risking contaminating local water supplies.
In September, we reached an agreement with StarKist to upgrade a tuna processing facility in American Samoa, improve safety measures, and comply with a variety of environmental laws. They also agreed to pay a $6.3 million penalty. After implementing wastewater treatment system upgrades, the plant’s discharges of total nitrogen, phosphorus, oil and grease, and suspended solids will be reduced by more than 13 million pounds annually.
Finally, in September, Tyson Poultry pleaded guilty to violations of the Clean Water Act related to improperly discharging liquid food supplement into a municipal wastewater treatment plant. This illegal discharge killed bacteria used to reduce ammonia in discharges from the treatment plant into a creek in Missouri, and resulted in the death of more than 100,000 fish. Under the terms of the plea agreement, Tyson will pay a $2 million criminal fine, serve two years of probation, restore the creek and adjoining waterways, and implement environmental compliance programs requiring third-party audits of all Tyson poultry facilities nationwide and specified training activities.
The Division also continues to pursue cases to bring municipal wastewater treatment systems into compliance with the Clean Water Act. Over the past 17 years or so, courts have entered 121 such settlements. We lodged three such cases since January, two of which have been entered by courts.
As you know well, wet weather pollution from municipal sewage collection systems contains untreated sewage, which can have high concentrations of bacteria from fecal contamination, as well as disease-causing pathogens and viruses. Because overflows often occur in areas used by the public, including children, these pose a significant threat to public health and remain a leading cause of water quality impairment. Tackling this human health challenge is an area where NACWA is playing such a pivotal role.
As you also know well, enforcement actions involving combined sewer overflows (known as “CSOs”) or sanitary sewer overflows (or “SSOs”) are often highly complex and resource intensive. The best solution is for EPA, the States, and municipalities to work together cooperatively to address these problems, so that compliance with the Clean Water Act is achieved as expeditiously and efficiently as possible. “Rome wasn’t built in a day,” and we understand that fixing water infrastructure problems won’t happen overnight either. ENRD appreciates the commitment of NACWA and its members to achieving the goals and objectives of the Clean Water Act in these cases.
Our principal objective in CSO negotiations is to reach agreement requiring the treatment works to achieve compliance with the Clean Water Act. As with any case in our docket, the Division is prepared to sue to achieve this objective, but often this is at a greater cost to everyone involved.
I recognize that the affordability of CSO and SSO infrastructure improvements is a significant concern to NACWA and its members. EPA and the Division understand that many municipalities across the country are facing tough economic conditions, which can make it difficult to commit the large resources needed to address sewer system overflows on a fixed schedule. You have my commitment that we will consider the unique challenges facing municipalities in reaching appropriate long-term agreements.
EPA and the Division have flexibility under the law and policy to account for the specific circumstances of every community, including their financial situations, as well as the nature of the particular receiving waters and locally relevant engineering construction requirements. Restrictions on a municipality’s ability to raise funds and the costs of improvement relative to the municipality’s current financial conditions are evaluated when negotiating options for control and appropriate compliance schedules. We will consider all relevant information and try to be as flexible as we can for the circumstances presented.
One final case that I’d like to highlight for you is Ohio Valley Environmental Coalition v. Pruitt (or “OVEC”), which is currently pending in the Fourth Circuit. The case presents important issues concerning the Clean Water Act’s structure of cooperative federalism, should the court reach them. I note that NACWA has joined several other organizations in filing an amicus brief in support of the position of the United States. We are grateful for your involvement, as the OVEC case raises significant issues affecting the integrity of the Total Maximum Daily Load (or “TMDL”) program.
As you know, the Clean Water Act requires States to develop TMDLs for pollutants for waterbodies listed as impaired. A TMDL sets the maximum amount of a pollutant that a waterbody can receive from all sources—point and non-point—and still meet its water quality standards. Once a State announces a TMDL, EPA has 30 days to approve or disapprove it. If EPA disapproves a TMDL, it has 30 days from that disapproval to set its own TMDL. The Clean Water Act does not direct States to submit TMDLs on a particular schedule and does not require EPA to act if States fail to submit TMDLs. Yet three Courts of Appeals—the Seventh, Ninth, and Tenth Circuits—have employed or at least considered a doctrine known as “constructive submission,” under which the failure of a State to submit proposed TMDLs for a long period of time would be deemed a “submission” by that State of “no TMDLs,” triggering a purported statutory obligation for EPA to review or disapprove “no TMDLs” and set its own TMDLs on disapproval. Many of us question the basis in law for this concept, and its use by the courts is arguably counter-productive to the goals of the Clean Water Act.
In OVEC, various environmental groups brought suit in district court in West Virginia seeking to compel EPA to establish TMDLs for more than 500 streams in West Virginia. Among other things, plaintiffs argued that the State’s alleged delay in submitting the TMDLs for those streams constituted a constructive submission that now requires EPA to approve or disapprove those “no TMDLs.” In February 2017, the district court granted partial summary judgment to plaintiffs on this claim.
We appealed to the Fourth Circuit, challenging plaintiffs’ standing and the breadth of the injunction issued by the district court. We also argue that the district court misapplied the “constructive submission” doctrine in this case. To support our position, we have emphasized the extensive work of the State regulator. In fact, West Virginia has submitted thousands of TMDLs since 2004, including hundreds of TMDLs for biological impairment; has acknowledged its obligation to establish TMDLs; and has a schedule to complete its remaining TMDLs, including those for ionic toxicity. At the end of last month, the case was fully briefed, but oral argument has not been set.
Finally, I’d like to briefly mention one of Attorney General Sessions’ recent policies. In June 2017, the Attorney General issued a memorandum restricting settlement payments to third parties who are neither victims nor parties to the lawsuit. We began implementing this policy immediately. The memorandum does permit the very limited use of payments in some cases to “directly remedy” environmental harm, but again, those will not be routine.
Well, we’ve nearly come to the end of the lunch break. In closing, let me say that I am honored to be given the opportunity to serve under Attorney General Sessions at the Department of Justice. And I am proud of our talented team at ENRD. They make a vital difference in the lives of Americans every day.
As you may know, Jeff Clark has been nominated to be our Assistant Attorney General. Following a favorable vote in the Senate Judiciary Committee this summer, his nomination is pending consideration by the full Senate. We look forward to welcoming Jeff back to ENRD, where he served as a Deputy Assistant Attorney General from 2001 to 2005. In the front office, I am joined by career deputies whom you know well, Bruce Gelber and Jean Williams; two new deputies, Eric Grant and Jonathan Brightbill; and two counsel, Brandon Middleton and Corinne Snow. Brandon may be familiar to some of you because he previously served as Water Counsel for the Senate Environment and Public Works Committee. Bruce continues to supervise the Environmental Enforcement Section and Jean the Environmental Crimes Section; Jon supervises the Environmental Defense Section and Eric the Appellate Section. I believe we have a great front office team focused on fulfilling the critical mission of ENRD.