Clean Water Act Citizen Suits: Defense Litigation and Settlement Strategies

This CLE course will guide counsel on procedural and strategic challenges in defending citizen suits under the Clean Water Act (CWA). The panel will explain recent case law and regulatory developments that impact citizen suits and provide strategies to manage your clients' expectations and risks when facing citizen suits, including innovative approaches for the cost-effective settlement of claims.

The CWA provides authority to citizens to sue to enforce compliance with the CWA when they believe governmental agencies have not taken timely or sufficient action on alleged violations. With tight budgets, some regulators support citizen suits to compliment the government's enforcement effort and allow residents to remedy environmental issues.

Conversely, some industry stakeholders have raised concerns about abuse of the citizen suit provisions due to suits over minor environmental infractions to generate attorneys' fees (which can be demanded in settlement or awarded in a successful citizen suit action).

Emergent areas of CWA litigation currently include cases involving: (1) allegations related to whether discharges that travel through groundwater require NPDES coverage under the Supreme Court's "functional equivalent" framework, and (2) identification of whether waters and wetlands qualify as "waters of the United States" following the Supreme Court's most recent decision. These developments have created jurisdictional uncertainty and a regulatory patchwork, which may directly impact threshold defenses and strategy.

Strategic efforts to encourage settlement have become increasingly important. Counsel may evaluate third-party practice and other allocation strategies, where available, to manage cost-sharing and enhance settlement leverage. Statutory fee-shifting provisions allow prevailing plaintiffs to recover their costs and attorney fees, which can result in costly damages, which is why savvy counsel should always consider the benefits of strategic settlement.

Listen as our panel examines the most significant recent citizen suits under the CWA, focusing on defenses and strategies for litigating and settling these matters. The panel will discuss key case law developments and regulatory changes, providing best practices to minimize the risks of being hit with a citizen suit and effectively resolve such suits if they arise.