55 RI Bar J., No. 5, Pg. 5 (March-April 2007). Clean Water Act: A Citizen's Right to Litigate.

• Author: Christopher A. D'Ovidio, Esq.

Rhode Island Bar Journal

Volume 55.

55 RI Bar J., No. 5, Pg. 5 (March-April 2007).

Clean Water Act: A Citizen's Right to Litigate

Rhode Island Bar Journal55 RI Bar J., No. 5, Pg. 5March-April 2007 Clean Water Act: A Citizen's Right to LitigateChristopher A. D'Ovidio, Esq.Christopher A. D'Ovidio is an environmental scientist and attorney, and an adjunct professor at Roger Williams University School of Law. Christopher is of counsel with Merolla & Accetturo in Warwick.Congress identified public participation rights as a critical means of advancing the goals of the Clean Water Act in its primary statement of the Act's approach and philosophy. (fn1) The United States Environmental Protection Agency (EPA) has acknowledged that "technical issues relating to the issuance of NPDES (National Pollution Discharge Elimination System) permits should be decided in "the most open, accessible forum possible, and at a stage where the permitting authority has the greatest flexibility to make appropriate modifications to the permit." (fn2) On a practical level, public participation yields better environmental decisions because the public often provides valuable information that EPA, the Rhode Island Department of Environmental Management (DEM) or the applicant is unaware of and/or does not have access to. Moreover, the public has a right to know how pollution is being regulated in their communities, and what steps are being taken to improve their quality of life.

This article presents a summary of the Clean Water Act, describing the essence of the statute, and brings into focus the Citizen Suit Provision of the Act and its role in allowing citizens to participate in restoring Rhode Island's waters.

Clean Water Act History

The Federal Water Pollution Control Act, popularly known as the Clean Water Act (CWA or Act), is a comprehensive statute designed to restore the nation's waters. Enacted originally in 1948, the Act was amended several times until it was restructured and expanded in 1972. Congress made amendments in 1977, revised sections of the law in 1981, and enacted additional amendments in 1987. Prior to the 1987 amendments, programs in the Clean Water Act primarily targeted point source pollution, (fn3) i.e., wastes discharged from discrete and identifiable sources, such as pipes and other outfalls. In contrast, except for general planning activities, little focus had been given to nonpoint source pollution (stormwater runoff from agricultural lands, forests, construction sites, and urban areas) despite estimates that it represented a significant source of surface water pollution problems. (fn4) As stormwater travels across land surface toward rivers and streams, rainfall and snowmelt runoff pick up pollutants, including sediments, toxic materials, and conventional wastes (e.g., nutrients) that degrade water quality. (fn5) The 1987 amendments authorized measures to address stormwater pollution.

Clean Water Act Goals

The objective of the Act is to restore and maintain the chemical, physical and biological integrity of the nation's waters. (fn6) Two goals were also established by the Act: 1) the elimination of the discharge of pollutants into navigable waters by 1985 and, 2) where attainable, the achievement by 1983 of an interim goal of water quality sufficient to provide for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water (commonly referred to as the fishable and swimmable goal). While those dates have passed, the goals remain, and efforts to attain them continue.

To achieve its objectives, the Act established a two-pronged approach. The first part established the basic structure for regulating discharges of pollutants into the waters of the United States. The Act made it unlawful for any person to discharge pollutants into navigable waters unless the discharge is authorized by, and in compliance with, a National Pollution Discharge Elimination System permit issued by the U.S. Environmental Protection Agency or by a state under a comparable state program. (fn7) Rhode Island is authorized under the Act to issue such permits through the Department of Environmental Management's Rhode Island Pollution Discharge Elimination System (RIPDES) program. The RIPDES program must be administered in conformance with the Act and its implementing regulations, 40 C.F.R. § 122 et al. (fn8) Like a NPDES permit, a RIPDES permit contains effluent standards and limitations, and monitoring and reporting requirements. The NPDES program is the principle means to achieve the elimination of the discharge of pollutants into navigable waters by 1985.

The second part of the Act requires states to establish designated uses for its waters, and then establish water quality standards to achieve and maintain those uses. At a minimum, the standards must provide for fishable and swimmable conditions. Once those standards are complete, states and/or EPA must identify water bodies that are water quality limited; i.e., waterbodies that are not meeting water quality standards for the designated uses. (fn9) The Act then requires states or EPA to develop restoration plans for waterbodies failing to meet water quality standards. These restoration plans are known as Total Maximum Daily Loads (TMDL). States must prioritize and target waterbodies for TMDLs. The TMDL provision of the Act is the principle means to achieve the swimmable and fishable goal by 1983.

The NPDES permit, containing effluent limitations on what may be discharged by a source, is the Act's principal enforcement tool. EPA may issue a compliance order or bring a civil suit in U.S. District Court against persons who violate the terms of a permit. (fn10) The penalty for such a violation can be as much as $25,000 per day. Stiffer penalties are authorized for criminal violations of the Act - for negligent or knowing violations - of as much as $50,000 per day, 3 years' imprisonment, or both. A fine of as much as $250,000, 15 years in prison, or both, is authorized for "knowing endangerment" - violations that knowingly place another person in imminent danger of death or serious bodily injury. Finally, EPA is authorized to assess civil penalties administratively for certain well-documented violations of the law. These civil and criminal enforcement provisions are contained in 33 U.S.C. § 1319 of the Act.

Citizens' right to litigate

In the absence of federal or state enforcement, 33 U.S.C. § 1365(a) of the Act grants "any citizen" the right to commence a civil action on his own behalf against "any person" (including the United States and any other governmental instrumentality) who is alleged to be in violation of, among other things, the conditions of a federal or state NPDES permit or a federal or state order. A...