Enforcement three

Appropriate venue for citizen suits

On day 61, if the regulatory agency has not required compliance or initiated any enforcement action against the alleged violator, or if the EPA has not taken action toward fulfilling its mandatory duty, a lawsuit can be filed. All Clean Water Act citizen enforcement suits — against a permittee for permit violations, against someone for discharging without a permit, or against the EPA for not performing a mandatory duty — must be filed in federal court.

Strategic decisions must be made regarding which case is brought or how a case is brought based on several factors including to which court and to which judge it will be assigned.

Penalties for non-compliance

Civil penalties may be assessed up to $32,500 per day per violation in addition to the plaintiff’s attorney’s fees. Penalties are not awarded to plaintiffs; they go to the U.S. treasury. In lieu of or in addition to penalties, the court may order the violator to undertake certain remediation for the violations.

As part of a settlement agreement, negotiated to avoid a trial, the violator may agree to “supplemental environmental projects.” These projects are often designed to help protect or restore the water body that was the site of the violation as well as other waters in the state or region. For example, a violator may be required to pay a fine and establish a fund that can be used to pay for public acquisition of environmentally sensitive lands along one or more water bodies. Parties are also typically free to be more creative with their solutions when they resolve citizen suits through settlement agreements.

Applying other laws to the situation

See Lesson 10: Other Laws to Protect Your Watershed for brief summaries of other laws such as the National Environmental Policy Act and the Endangered Species Act.

Federal and state Administrative Procedure Acts (APA) are commonly used in conjunction with CWA citizen suits. The federal APA allows citizens to file suit when a federal action (issuance of a permit, approval of state standards, 303(d) list, TMDLs or adoption of a plan, etc.) has been taken in an “arbitrary and capricious” manner (5U.S.C.SS552).

Most NPDES permits, though, are issued by state agencies and must be challenged through state proceedings (agency review, board or commission review, administrative law judge or state court). State Administrative Procedure Acts usually dictate how those cases proceed. You may find additional information on appeals in your state water pollution control law as well, if you have one. Track the state procedures down. They are likely to be a useful tool in your advocacy.