By: Kevin S. Hennessy, Esq.
May 1, 2020
Citizen suits brought under the Clean Water Act[i] (CWA) against public and private entities related to industrial stormwater discharges and the management and operation of public sewer systems have become common place. The rise in this litigation is fueled by several causes: the departure by federal agencies from the “sue and settle” practice of quickly settling citizen suits by imposing heavy burdens on regulated entities; easy access for potential plaintiffs to public records of water quality monitoring of discharges; the availability of the award to plaintiffs of their attorneys’ fees; the lack of government resources dedicated to critically reviewing claims; and the perception among many local governments, businesses or their insurers that these cases are unwinnable or uneconomical to defend and are now a “cost of doing business”. This article discusses the burdens the CWA places on citizen suit plaintiffs and gives facility owners and operators a clearer understanding of available defenses that can stop a CWA claim pre-suit, result in an early dismissal of a suit, or make the suit unprofitable, and therefore, undesirable to a plaintiff.
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