Every Citizen Has a Stake in Clean Water

As owners and users of our public resources, all citizens have a right to legally challenge damages to waters protected under the Clean Water Act (CWA).

In recognition that the nation’s waters are a public resource, Congress included a Citizen Lawsuit provision in the Act to insure that there was sufficient oversight.

Congress made clear that citizens are not to be treated as nuisances or troublemakers but rather as welcomed participants in the vindication of environmental interests. Fearing that administrative enforcement might falter or stall, citizen suit provisions reflected a deliberate choice by Congress to widen citizen access to the courts as a supplemental and effective assurance the Act would be implemented and enforced.

Clean Water Act: Citizen Suit Fundamentals

A. Standing
    1. Any citizen may commence a civil action on his own behalf. “Citizen” means a person or persons having an interest which is or may be adversely affected.
    2. To establish standing, the citizen must allege injury in fact due to defendant’s violations. Citizens usually allege they are being or will be adversely affected by the violating discharges with regard to their health, economic, recreational, aesthetic or environmental interests. It is typical for a plaintiff to regularly use the affected water or to reside near or recreate near
the affected water.

B. Notice
    1. Before starting a lawsuit, citizens must give a 60 day notice of intent to sue to the alleged violator, the U.S. Environmental Protection Agency (EPA) and the local delegated enforcement agency (such as the Washington State Department of Ecology in Washington state.)
    2. Plaintiff must give alleged violator at least sixty (60) days of notice before the lawsuit is started.

C. Lawsuit on 60th Day
    1. CWA does not confer jurisdiction on federal courts to entertain citizen suits to enforce against “wholly past violations.”
    2. Violations must be “ongoing” at time lawsuit is started.
    3. Plaintiff citizen must make a good-faith allegation of continuous or intermittent violation. Heavy burden on alleged violator to demonstrate that it is “absolutely clear” that the alleged wrongful behavior could not reasonably be expected to recur.

    1. Penalties: $32,500/day for a violation. In determining civil penalties, the court will consider:

        (a) seriousness of the violation;

        (b) economic benefit derived as a result of the violations;

        (c) good-faith efforts to achieve compliance;

        (d) economic impacts on violator; and,

        (e) such other matters as justice may require.

    2. Penalties go to U.S. Treasury as a result of court judgment. If a settlement occurs, courts appear willing to accept that some settlement monies can be diverted to environmental projects related to CWA objectives.

    3. Costs: Court may award the costs of litigation to Plaintiff citizen (including reasonable attorney and expert witness fees).

    4. Consent Decree: Most cases are resolved with a consent decree, a stipulated settlement that is entered with the court.

Customary terms include:

        (a) compliance schedule;

        (b) attorney fees and costs.

        (c) penalty

   5. In deciding whether to approve the settlement, courts assess whether consent decree settlement is fair, reasonable, equitable and does not violate public policy.