Every Person Has a Stake in Clean Water
As owners and users of our public resources, all community members have a right to legally challenge damages to waters protected under the Clean Water Act.
In recognition that the nation’s waters are a public resource, Congress included a Citizen Lawsuit provision in the Clean Water Act to ensure that there was sufficient oversight.
Congress made clear that communities and individuals 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 people’s access to the courts as a supplemental and effective assurance the Act would be implemented and enforced.
Clean Water Act: Citizen Lawsuit Fundamentals
Any community member 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. To establish standing, the person must allege injury in fact due to defendant’s violations. Community members 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.
Before starting a lawsuit, an individual must give 60 day notice of their 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.) Such notice is provided via a letter commonly referred to as a “60 Day Notice Letter”.
If the dispute has not been settled within the 60 day notice period, they may then file a “complaint”. The Complaint is the formal legal document that constitutes the filing of the lawsuit. The complaint sets out the facts and legal reasons for filing the lawsuit and names the person or group as the “plaintiff” and the polluter as the “defendant”. Complaints are a matter of public record.
The CWA does not confer jurisdiction on federal courts to entertain citizen suits to enforce against “wholly past violations.” Violations must be “ongoing” at time lawsuit is started. Thus, Soundkeeper’s lawsuits are not based on one-time accidental incidents or pollution discharges that have already been corrected or cleaned up.
Resolution of a Lawsuit
Most CWA lawsuits are resolved with a negotiated agreement. A Consent Decree is a stipulated settlement that is signed by both parties, entered with the Court and enforceable as a Court order. A Settlement Agreement is an out-of-court agreement signed by both parties and enforceable as a contract. In these settlements, Soundkeeper seeks three components:
1. Compliance: The main objective of every Soundkeeper CWA lawsuit is to reduce the facility’s discharge of pollutants to Puget Sound. This is accomplished by the facility agreeing to undertake certain onsite improvements called “best management practices” (BMPs). BMPs range from operational and structural changes to the installation of advanced stormwater treatment systems. Source control BMPs include things like regular sweeping, proper storage of hazardous substances and other basic housekeeping measures. When housekeeping measures are not enough, the facility will be required to install a treatment system that removes up to 99% of the pollutants from their stormwater before discharge to local waterways.
2. Penalty: The CWA provides for penalties of up to $37,500 per violation, per day. Penalties that result from a Court judgment go to the U.S. Treasury. However, if a settlement occurs, Courts are willing to allow the parties to send that money to local third party recipients to spend on environmental benefit projects in the affected watershed. In the interest of keeping this money in Puget Sound, all of Soundkeeper’s lawsuits to date have ended in settlement. As part of those settlements, the polluter pays the penalty directly to the third party who, in turn, spends the money on projects that restore and benefit Puget Sound.
In determining civil penalties, the court will consider the following:
- seriousness of the violation
- economic benefit derived as a result of the violations
- good-faith efforts to achieve compliance
- economic impacts on violator
- such other matters as justice may require
3. Attorney’s Fees and Costs: The CWA also provides for the recovery of the costs of litigation. This includes reasonable attorney’s fees and expert witness fees.