Citizen Suits and Stormwater Pollution Prevention Plans
Enforcement by the USEPA is down by just about any metric measuring the enforcement of environmental laws. This has left an enforcement void. But that void is being partially filled.
Environmental groups and enterprising plaintiffs’ firms are now using the citizen suit provisions of the Clean Water Act as a business model. And it seems that California is leading the way. Numerous sixty-day notices have been served on businesses. In one instance, the requested damages of $200,000,000.00 are being sought. See Lunsford v. Arrowhead Brass Plumbing (No. 16-cv-08373, N.D. CA).
The Clean Water Act authorizes citizens to hold regulated entities accountable through private actions in federal court for violations of the Clean Water Act. Any penalties assessed against the defendant must be paid into the United States; however, the Court can also order a losing party to pay attorneys’ fees to the plaintiff’s firm that brought the case. In a lot of instances, it is nothing more than a form of legalized extortion (settlement pressure is high when there is a possibility of penalty amounts up to $51,570.00 per day).
The latest iteration of these Clean Water Act citizen suits target rain-induced discharges that are alleged to be in violation of “general permits” that regulate a broad range of conduct contributing to stormwater runoff rather than activities unique to a specific facility. They also include allegations of deficient Stormwater Pollution Prevention Plans or SWPPPs which are generally required by the general permits.
If you receive a sixty-day citizen suit notice, I would welcome the opportunity to discuss strategies for responding to the threatened litigation.
As always, feel free to contact me at firstname.lastname@example.org