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

• Author: Foster, David S.

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.

1. 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)

   If the continuing violations doctrine is not applied to certain claims brought under the CWA, many government and private suits will fall before the merits of the claims are reached. Unfortunately, because continuing violations are not contemplated expressly by the Act, they must be imputed by judicial fiat. (21) Such a result leads to disparate interpretations of the continuing violations doctrine, and differences of opinion as to the validity of the approach. Only by amending the statute to incorporate a continuing violations doctrine can the CWA be consistently applied and fulfill its purposes.

   Part II of this chapter discusses the importance of wetlands and wetlands protection. Part III provides a cursory history of the CWA, its antecedents, and subsequent wetlands-related government actions. Relevant legislative and factual history demonstrate that the drafters of the CWA did not contemplate an express incorporation of the continuing violations doctrine into its statutory scheme. Part IV briefly analyzes language of the Act pertinent to the continuing violations doctrine. Part V analyzes contemporary treatments of the CWA in the wetlands context with an eye towards the continuing violations doctrine. Part VI briefly examines how courts have approached issues of citizen suit jurisdiction under the CWA, and explores an alternative approach to extending the limitations period--namely, the due diligence discovery doctrine. (22) Part VII concludes that while some courts have chosen to interpret the CWA limitations period liberally, recent rulings do not bode well for future applications of the due diligence discovery doctrine, and thus Congress should ensure no court can ignore the continuing violations doctrine by amending the CWA to authorize it expressly.

   This amendment would recognize that a violation exists not only when a discharge occurs, but also that the violation continues every day that the discharged material remains in the wetland. By recognizing that the continuing presence of illegally dumped fill in a wetland constitutes a new violation for each day it remains, Congress would close a loophole that currently lets violators who manage to evade detection for five years (the current statute of limitations for CWA suits) off the hook. Such an amendment also would provide extended citizen suit jurisdiction in federal court and increase available total penalties. This amendment thus would arm the CWA with the tools necessary to give effect to the Act's purpose and provide a strong deterrent against future violations.

2. CHARACTERISTICS AND FUNCTIONS OF WETLANDS

   It would be difficult to overstate the importance, both practically and aesthetically, of wetlands. While the more tangible qualities of wetlands are memorialized in literature, (23) music, (24) film, (25) and art, (26) their scientific value increases as we continue to understand their functions.

   1. Classifications

      The term wetlands refers to many distinct ecological and hydrological systems. (27) Common systems in this classification include freshwater emergent marshes, wet prairies, sedge meadows, shrub swamps, forested wetlands, salt marshes, vernal pools, fens, and bogs. (28) The different types of wetlands have differing characteristics and functions. For example, sedge meadows are seasonal shallow pools supporting a host of invertebrate and plant species for brief periods of time, while oceanside and estuary saltwater marshes are inhabited perennially by avian and marine life. (29)

   2. Environmental and Aesthetic Value

      Nearly one half of migratory birds depend on wetlands as they pass through the United States. (30) While wetlands are primarily noted for the species of birds they support, wetlands also provide habitat for numerous fauna, such as frogs, turtles, fish, snakes, and otters. (31) Many wetlands are designated National Wildlife Refuges; (32) visits often reveal substantial human affinity for these systems, as demonstrated by bird watchers, waterfowl hunters, and others witnessing the variety of wildlife on display. (33) A visit to a wetland may also provide an opportunity to observe uncommon and unusual animals: "A majority of the nation's rare and endangered species" depend on wetlands for survival. (34)

   3. Hydrological Functions

      Once maligned as useless areas meriting federal funding to eliminate, (35) wetlands are now recognized for many of the essential functions they provide in the ecosystem. (36) These functions include absorption and slow release...