Citizen Law Suits – Do they Build Bridges to Better Water Quality?
Citizen law suits are the new norm in California and are being used to fill the gap when there is no enforcement by the regulatory agency. These are real life consequences, which are based on alleged non-compliance with the Clean Water Act (CWA). Companies finding themselves in this situation are discovering that efforts to comply with the Industrial General Permit are far less expensive and burdensome than settling with a citizen groups. Decide for yourself if this is the most effective approach to achieving CASQA’s vision – Manage stormwater as a vital component of California’s water resources, to support human and ecological needs, to protect water quality, and to restore our waterways.
This presentation is based on the experiences of a number of recent settlement agreements, conversations with non-government organizations, and strategies employed by technical experts and attorneys. This presentation will:
• Overview the authority empowered to citizen groups.
• Review the recent history of citizen suits – where are they taking place, who is being targeted and by whom.
• Prerequisites and pitfalls citizen groups consider before taking action.
• Identify sources of information and the approach being used by citizen groups to support their case.
• How citizens collaborate with attorneys to support their cause.
• Discuss common allegations.
• When citizen groups push litigation over settlement.
• Summarize typical settlement demands.
• Provide strategies for responding to a 60-day Notice of Intent to File Suit.
• Inform what to expect when settling the case.
• Discuss the expenses that will be incurred.
A discussion of the authority and process by which citizen groups are empowered to take legal action is summarized below.
National Pollution Discharge Elimination System permits establish receiving water quality standards, monitoring protocols, and reporting requirements. The United States Environmental Protection Agency (U.S. EPA) and the state’s enforce violations of the CWA through civil enforcement and criminal prosecution. To supplement state and federal enforcement of the CWA, Congress empowered citizens to bring their own lawsuits to stop illegal pollution discharges. The citizen suit authority is found in subchapter V, General Provisions, section 505, of the Clean Water Act (33 U.S.C. § 1365).
If a violator does not comply with the Clean Water Act, or with the regulatory agency’s enforcement actions, then any person or entity that either is, or might be adversely affected by any violation has the right to file a citizen suit against the violator. Citizens can seek injunctive relief (court orders prohibiting the pollution from continuing), civil penalties, and reimbursement of legal costs and attorneys' fees. Section 505(b) of the CWA regulates if and when a citizen can sue a polluter or any regulatory agency for their failure to enforce the CWA. Before a citizen can file a citizen suit against any alleged violator, the CWA requires citizen plaintiffs to send a 60-day Notice of (their) Intent to File Suit to the entity for its alleged violation, and copy the state regulatory agency and the U.S. EPA Administrator. Receipt of this notice initiates the 60-day period in which the violator must come into compliance with its permit or Administrative Order in order to avoid a court case. This “grace period” allows a violator to comply or temporarily comply. Any citizen can file a suit against any violator of the CWA, only after the 60th day of the period of notification of Intent to Sue, and if the following two actions occurred during the 60-day period: (1) the regulatory agency failed to require a violator’s compliance with the Clean Water Act’s effluent standards or limitations, or with an Order requiring compliance with these standards or limitations, and (2) the regulatory agency did not begin, and did not continue, to diligently prosecute a civil or criminal action against the violator.
Ed Othmer is Stantec’s California Stormwater Sector Leader and has over 24 years of engineering experience as a storm water practitioner. He has managed projects for a variety of federal, state, local government, and private clients, including providing technical expertise to address citizen law suits. Ed received his Masters in Civil Engineering from Tufts University. Ed is a registered civil engineer and maintains a variety of other stormwater certifications. He teaches stormwater classes for many organizations including UCSD Extension, and serves on several technical advisory and consultation committees. He also serves as the Vice President of the Industrial Environmental Association.