Enforcement one

Now that we have learned how Clean Water Act tools are supposed to work, it’s time to talk about reality. Many water quality standards, permits and program requirements are violated every day. Ideally, state agencies would have sufficient staff and financial resources to monitor and inspect every activity, every facility and every water body. Realistically, state agencies are underfunded and political challenges keep them from fully enforcing the Clean Water Act.

The Clean Water Act grants private citizens the right to take independent enforcement actions. Under the Clean Water Act, any person or entity that is or may be adversely affected may bring suit in federal court (a) against anyone who is in violation of permit limitations or discharging without a permit or (b) against the EPA for not performing a mandatory duty. These lawsuits are called “citizen enforcement actions” or “citizen suits” but should not be confused with other lawsuits often filed by citizens or citizen groups challenging the issuance of a permit. (See specific lessons of this course for more information on appealing water quality standards, NPDES permits, TMDLs, 401 and 404 wetland dredge and fill permits.)

Allowable citizen suit situations

Section 505 of the Clean Water Act authorizes citizens to bring a lawsuit to enforce the CWA under two situations:

1) If there are ongoing violations of a NPDES permit or a 401 certification (or discharges without a permit) and no administrative enforcement action (involving penalties, public notice and a chance to comment) has been taken by the state or federal agency in charge of the permit or

2) If the EPA is not performing mandatory, or otherwise known as non-discretionary, duties. Keep in mind that general NPDES permits can be enforced by citizens as well. While the general permits usually do not have numeric limits and might not require monitoring, there likely will be narrative requirements that are enforceable. Given the dramatic increase in the number of stormwater general permits, in particular, and the inadequate state inspection and monitoring of these permits, citizen enforcement may be the only way to ensure the municipal, industrial and construction stormwater programs are being fully and properly implemented.

Defining "ongoing violation"

In order for citizens or citizen groups to successfully file a lawsuit over a permit violation, they must prove either that:

1) the violations are ongoing, not just in the past, or

2) that there is at least a reasonable likelihood that violations will occur again (Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, 108 S. Ct. 376 (1987)).

In contrast, state and federal authorities can take enforcement actions for past violations for purposes of remediation or restoration. They may also do this to send a message about the cost of violating the law.

Defining "non-discretionary duties"

Non-discretionary duties are those that EPA is required by statute and/or regulation to perform, usually by a specific date or within a particular time period. For example, EPA must approve or disapprove state water quality standards within 60 and 90 days, respectively, of state submittal, and approve or disapprove 303(d) lists and TMDLs within 30 days of state submittal. U.S. Army Corps of Engineers must require a 401 certification or a waiver for every 404 permit.