Section 1365 - Citizen suits

28 Analyses of this statute by attorneys

  1. CITIZEN SUIT WATCH: Fifth Circuit Precludes Clean Water Act Citizen Suits To Enforce Section 404 Permit Conditions

    Crowell & Moring LLPKirsten L. NathansonJune 5, 2012

    Jun.05.2012A three judge panel of the U.S. Court of Appeals for the Fifth Circuit held that the Clean Water Act's citizen suit provision (33 U.S.C. § 1365) does not provide for suits to enforce the conditions of a permit issued under section 404 (33 U.S.C. § 1344) of the Act, thereby affirming a lower court's dismissal of a suit, Atchafalaya Basinkeeper v. Chustz, No. 11-30471 (5th Cir. Apr. 25, 2012), brought by two environmental groups. The court recently agreed to publish the opinion, thus solidifying its precedential value.Analyzing the statutory language, the Fifth Circuit concluded that allowing citizen suits to enforce section 404 permit conditions would render portions of the citizen suit provision entirely redundant.

  2. Justices Find That The Clean Water Act Applies To Pollutants Passing Through Groundwater

    Vinson & Elkins LLPMargaret PelosoMay 6, 2020

    31 Slip op. at 1632Id.33Id.34 Dissent Op. at 1.35 33 U.S.C. § 1365(a), (b)(1)(B).36Id. § 1365(a).37Id. § 1365(f)(1) (citing to Section 1311, regarding the illegality of pollutant discharges except in compliance with law).38 Dissent Op. at 12 (citing to 40 C.F.R. § 19.4 on current monetary sanctions and 28 U.S.C. § 2462 as it relates to the applicable statute of limitations period).39Id. at 12-13.

  3. Clean Water Act Citizen Suits – A Postscript – U.S. Supreme Court Denies Certiorari in Fourth Circuit Case.

    Kilpatrick Townsend & Stockton LLPSusan RichardsonMay 23, 2023

    o compliance. The common assumption is that an agreed administrative order is preferable to court action, providing more room for negotiation and creative solutions. The absence of protection from duplicative citizen suits and lack of finality may compel a different conclusion. Further, state governmental agencies may prefer to follow the judicial route if they find that their administrative orders can be undermined by a citizen suit.This decision fails to recognize State primacy in the enforcement of violations of the Clean Water Act. The Supreme Court has held that citizen suits are intended to supplement, to supplant, federal or state enforcement actions. This decision, along with a 2022 First Circuit decision that diligent prosecution only forecloses a citizen suit for penalties but not injunctive relief, raises questions about whether additional courts will follow this expansion of the availability of citizen suits. 41 F. 4th 342 (4th Cir. 2022), petition for cert., Feb. 6, 2023. 33 U.S.C. § 1365(a)(1). A violation of the CWA “shall not be the subject of a civil penalty action under . . . section 1365” if a State “has commenced and is diligently prosecuting an action under a State law comparable to” the federal scheme for assessing civil penalties. § 1319(g)(6)(A)(ii). See N. & S. Rivers Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d 552, 556 (1st Cir. 1991); Ark. Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376 (8th Cir. 1994). See McAbee v. City of Fort Payne, 318 F.3d 1248, 1249, 1256 (11th Cir. 2003); Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1293–94 (10th Cir. 2005). Other circuits apply a hodge podge of analysis but most focus on the cooperative federalism regime and the focus on State primacy. Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 60 (1987).

  4. Citizen Suit Watch: Eleventh Circuit Rejects Novel Clean Water Act Citizen Suit on Notice Grounds

    Crowell & Moring LLPKirsten L. NathansonDecember 19, 2013

    Given the state's enforcement action, the court deemed plaintiffs' citizen suit "a thinly veiled attempt to beat the State of Alabama to the courthouse." Id.12See 33 U.S.C. § 1365(f)(1)-(7).13Id. at §§ 1365(f)(3), (f)(6).14Black Warrior Riverkeeper, Inc., 2013 WL 5998069, at *8.

  5. CITIZEN SUIT WATCH: Ninth Circuit Asserts Citizen Suit Jurisdiction Over Challenge To Longstanding Regulation And Reaffirms Clean Water Act Permitting Requirements For Forest Roads

    Crowell & Moring LLPKirsten L. NathansonMay 31, 2011

    But, the Court included a short discussion on jurisdiction in its revised opinion to address jurisdictional arguments that the United States raised in an amicus brief. In its first amicus brief, filed in November of 2007, the United States argued that because the Silvicultural Rule unambiguously attempts to exempt the discharges at issue in the case, citizen suit jurisdiction under 33 U.S.C. § 1365(a) was improper. The United States contended that the plaintiff's suit was barred because the plaintiff did not timely challenge the Silvicultural Rule under 33 U.S.C. § 1369(b), which mandates that suits seeking judicial review of certain actions by EPA under the CWA be brought within 120 days in circuit court.

  6. Contaminants Compass: March 2024 Edition

    McGuireWoods LLPGregory Hinojosa EvansMarch 19, 2024

    proofing substances containing PFAS materials are “no longer being sold by manufacturers for food contact use in the U.S. market.” The shift is not the result of a formal ban or restriction on food contact surfaces, but through FDA securing from food packaging manufacturers voluntary agreements not to use PFAS substances in packaging. In furtherance of these efforts, FDA states the “announcement marks the fulfillment of a voluntary commitment by manufacturers to not sell food contact substances containing certain PFAS intended for use as grease-proofing agents in the U.S. This FDA-led effort represents a positive step forward as we continue to reevaluate chemicals authorized for use with, and in, food.”II. What’s Happening in PFAS Litigation?PEER and Texas farmers send EPA a notice of intent to file suit.On Feb. 22, 2024, a watchdog group called the (PEER) and five Texas farmers sent the EPA a notice of intent threatening to sue under the citizen suit provision of the Clean Water Act, 33 U.S.C. 1365. The notice of intent alleges that the EPA failed to perform its duties under the Clean Water Act by failing to identify all PFAS that have been found in biosolids and to promulgate regulations for 12 different PFAS: PFBA, PFBS, PFHxA, PFHxS, PFHpA, PFOA, PFOS, PFNA, PFDA, PFUnDA, PFDoDA and HFPODA (GenX).The notice of intent alleges that scientific evidence shows that these PFAS may adversely affect public health and the environment by, among other things, increasing the risks of asthma, disrupting thyroid hormone balances, impairing lung function in children, increasing the risk of autoimmune diseases and impairing liver functions. PEER threatens to file suit in federal district court seeking declaratory relief, injunctive relief and litigation costs if, by April 23, 2025, the EPA does not take immediate steps to (1) adequately identify PFAS in biosolids; and (2) promulgate regulations for PFAS in biosolids for which it has sufficient scientific information, specifically including t

  7. Citizen Suit Enforcement/Clean Water Act: Federal Court Addresses Challenge to U.S. Army Corps of Engineers Approval of Mitigation Bank Instrument

    Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.Walter Wright Jr.January 4, 2024

    ments. The United States District Courts have jurisdiction to enforce the Clean Water Act and apply appropriate civil penalties under Section 309 of the Clean Water Act. In other words, the Clean Water Act provides a supplementary enforcement mechanism that can be utilized by citizens in appropriate circumstances to bring an action alleging violation of certain Clean Water Act provisions.The Clean Water citizen suit provision also allows actions against the Corps or EPA for failure to perform a nondiscretionary duty.The Federal Defendants (Corps and EPA) moved to dismiss the Plaintiffs’ cause of action under the Clean Water Act arguing that they failed to meet certain notice requirements.Plaintiffs responded that their Notice Letter provided adequate notice under the Clean Water Act’s requirements.The Court notes that the Clean Water Act provides that no citizen suit:. . . may be commenced . . . prior to 60 days after the Plaintiff has given notice of such action to the Administrator. 33 U.S.C. § 1365(b).Further, such notice:. . . shall be given in such manner as the Administrator shall prescribe by regulation.The regulation requires that the Notice shall:identify the provision of the Act which requires such act or creates such duty;describe with reasonable specificity the action taken or not taken by the Administrator which is alleged to constitute a failure to perform such act or duty; andstate the full name, address and telephone number of the person giving the notice.Cited by the Court is the Fourth Circuit Court of Appeals in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629 F.3d 387, 399-400 (4th Cir. 2011) which provides:. . . The requirement of adequate notice does not mandate that citizen plaintiffs list every specific aspect or detail of every alleged violation. Instead, “[n]otice given by a citizen plaintiff under the Clean Water Act thus must provide the alleged violator with enough information to attempt to correct the violation and avert the citizen suit.T

  8. Discretion is the Better Part of Valor; Court Dismisses Clean Water Act Citizen Suit Challenging POTW’s Enforcement Discretion

    Foley Hoag LLP - Environmental LawJonathan EttingerMarch 21, 2023

    under the Clean Water Act is not unlimited. A Federal District Court in Massachusetts recently made that clear in dismissing a citizen suit filed by the Conservation Law Foundation against the Massachusetts Water Resources Authority, which operates Boston’s Deer Island Sewage Treatment Plant, the second largest treatment plant in the country. (Full disclosure: I represented the MWRA in that suit.) The Court rejected CLF’s claims that the MWRA was required to take enforcement action against every industrial user that discharged to the MWRA’s sewer system in violation of pretreatment regulations.The Court rejected the Complaint on two grounds, but the first is likely to be more interesting and to potentially have broader effect nationwide. The Court ruled, on an issue of first impression, that only EPA and not private citizens can seek redress for alleged deficiencies in the way a POTW enforces its pretreatment regulations. This resulted from a careful analysis of the interplay between 33 U.S.C. §1365, which authorizes citizen suits, and 33 U.S.C. §1319(f), which specifically gives EPA the authority to take action if the POTW is not sufficiently enforcing its pretreatment regulations. Looking at the language of the statute and the policy considerations, the Court held:“Thus, while the role of the citizen as an adjunct to EPA’s primary enforcement power is estimable, it does not supplant the discretionary authority of the EPA Administrator, particularly in areas like the enforcement of an [Enforcement Response Plan], where consistency of purpose and predictability of result are the desirable outcomes.”As to the other ground, the Court found that the MWRA’s Enforcement Response Plan was discretionary and did not create mandatory obligations for enforcement. As a result, the Court found that the MWRA’s NPDES Permit did not require it to take enforcement action in each instance of noncompliance by an industrial user. The Court further found that the applicable pretreatment regulations

  9. DOJ Defers to States for CWA Enforcement

    Williams MullenEthan WareJanuary 12, 2021

    For the first time, a recent Department of Justice (DOJ) guidance document directs DOJ not to file a federal civil action on behalf of EPA where a state proactively seeks enforcement against a violator.Clean Water ActCongress reserved to the United States the lead role in enforcing water quality standards in the CWA. EPA is granted special oversight in citizen suits, CWA § 505 (c)(d), 33 U.S.C. § 1365 (c)-(d), and the federal government retains emergency authority to sue “any person” to prevent imminent and substantial endangerment to human health and the environment, CWA § 504 (a), 33 U.S.C § 1364 (a).On the other hand, states are the primary enforcement arm for violations of the CWA:It is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use…of land and waste resources, and to consult with [EPA] in the exercise of [its] authority under this chapter.53 U.S.C. § 1251 (b) (emphasis added).

  10. Supreme Court Holds Clean Water Act Does Regulate Some Point Source Discharges to Groundwater

    Nelson Mullins Riley & Scarborough LLPBernard Hawkins, Jr.May 4, 2020

    The discharge is noted to travel about a half mile, through groundwater, to the Pacific Ocean. The Respondent environmental groups filed a citizens suit under 33 U.S.C §1365(a) (§505(a)) of the Clean Water Act claiming that Maui was “‘discharg[ing]’ a ‘pollutant’ to ‘navigable waters,’ namely, the Pacific Ocean, without the permit required by the Clean Water Act.” County of Maui, Slip Op. at 3.