WESTERN STATES WATER COUNCIL NEWSLETTER NO. 1587

LITIGATION/WATER QUALITY
Citizen Suits/Clean Water Act

On September 30, the House Transportation and Infrastructure Committee’s Subcommittee on Water Resources and the Environment held a hearing on the question: “Are Citizen Suit Provisions of the Clean Water Act Being Misused?” The Federal Water Pollution Control Act, or Clean Water Act (CWA), regulates the discharge of pollutants into the navigable waters of the United States through permits issued under the National Pollution Discharge Elimination System (NPDES). Most states have been delegated authority to issue NPDES permits, which typically contain effluent standards and limits, as well as monitoring and reporting requirements. A state or the federal Environmental Protection Agency (EPA) may take enforcement action for any failure to comply with the conditions of a permit, and may impose administrative, civil, or criminal penalties.
Moreover, CWA Section 505 also allows a citizen who has an interest in, or may be adversely affected by the discharge of pollutants, to commence a civil action or “citizen suit” against any person, governmental instrumentality, or even the United States for alleged violations of, among other things, any NPDES permit conditions. While citizen suits appear to have been intended as a “safety net” should regulatory agencies fail to enforce the CWA, there are allegations such suits have been “misused.” Citizen suits are supposedly barred where a state or EPA: (1) is concurrently maintaining an action over the same alleged violations; (2) is “diligently prosecuting” a civil or criminal action regarding the same violations; (3) has commenced an administrative action to assess penalties; or (4) where EPA or a state has issued a final order not subject to further judicial review and the alleged violator has paid a penalty. According to a 1971 Senate Report (92-414), citizen suits are proper only “...if the Federal, State, and local agencies fail to exercise their... responsibility.”
The U.S. Supreme Court, in Gwaltney of Smithfield v. Chesapeake Bay Foundation, stated in 1987 that the CWA’s limitations on citizen suits in Sections 505 and 309 “...suggests that the citizen suit is meant to supplement rather than to supplant governmental action.” Still, a number of federal circuit court of appeals decisions are not uniform on the question of whether or not a state enforcement action and order always bars a citizen suit. Concerns have also been raised that some citizen suits do little or nothing to improve water quality, because the suits involve violations that are already being addressed by a governmental enforcement action, or are brought for violations that can be characterized as minor, sporadic or technical. In California, numerous third party lawsuits have been brought against many communities alleging CWA violations, even though state regulators may have already taken enforcement action. While a state, including California, may institute a timely action to bar such a citizen suit, they have not always done so. The Committee addressed these concerns.
Mr. Christopher Westhoff, Los Angeles Assistant City Attorney and Public Works General Counsel testified on behalf of the Association of Metropolitan Sewerage Agencies (AMSA) and 300 agencies. He said, “Today, permitted dischargers like my City, in California and across the country, routinely suffer the indignity, negative publicity, and substantial financial burden of having to respond to third party lawsuits brought by environmental activist groups for substantially the same violations addressed in prior enforcement actions by our regulators.... No one is asking that citizen suits go away... [but] where Congress’ intended prime Clean Water Act enforcer has done or is doing its job, municipalities need protection from redundant lawsuits.”....