The Clean Water Act and Citizen Litigation

February 7, 2019
By Brian Schefke

Here in the Pacific Northwest, it’s easy to take our abundance of water for granted. Our region is fortunate to have numerous streams, rivers, and lakes that we depend upon for drinking water, for recreation, and for ecological sustainability. In recent years, greater attention has been paid to understanding the impact that stormwater runoff has had on surface waters, and this interest will continue to grow as the region’s population continues to grow.

An increase in population leads to increased development, so more impervious surfaces are built, over which stormwater flows and picks up pollutants. More people also means more vehicles on the roads, which leads to pollutants such as zinc (from tire dust) and copper (from brakes) being deposited on the roads’ surfaces in greater amounts. Pollutants on roads or other impervious surfaces are then washed away by stormwater runoff into nearby bodies of water like Puget Sound or Lake Washington.

Stormwater runoff is regulated under the EPA’s National Pollutant Discharge Elimination System (NPDES), the enforcement of which is generally delegated to state agencies, such as Washington’s Department of Ecology. The NPDES was created by the EPA using the authority granted to it by the Clean Water Act (CWA), which is the primary federal law establishing the regulatory structure for managing the water quality of the surface waters of the United States.

Under the NPDES, industrial and municipal entities must receive permits to discharge stormwater runoff into surface waters. This runoff must be monitored periodically to ensure that pollutant levels in the runoff do not rise above those allowed by the permit.

Enforcement of NPDES requirements is generally performed by state regulatory agencies or, in some cases, the EPA. The CWA, however, also contains a provision that allows for citizen lawsuits against entities suspected of being in violation of the CWA:

“…any citizen may commence a civil action on his own behalf—
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation…”

Citizens and citizen groups have been active in filing lawsuits to enforce compliance with stormwater regulations. Businesses in industrial sectors that discharge stormwater to surface waters need to be aware of the potential for a citizen lawsuit and ensure that they are in compliance. Compliance is necessary both for reasons of environmental stewardship and to avoid the considerable costs that a lawsuit can incur.

Freer Consulting has assisted many customers facing the challenges of industrial stormwater management. We have turnkey experience to provide litigation support to aid a client in achieving compliance during an active lawsuit. We can also provide engineering support for technical corrective actions, such as the installation of a stormwater treatment system, even on tight deadlines. If you would like to know more about how Freer can help you with stormwater regulatory compliance, contact us at 206-285-9044 or info@freerconsulting.com