Happy Birthday, Clean Water Act!: Permits to Pollute and Citizen Suits

Today, October 18, 2017, is the 45th anniversary of the passing of the Clean Water Act.  Hurray for that moment when our legislators came together (thanks to plenty of pushing by citizens suffering the ill effects of water pollution) and decided they needed to do something to protect our precious water resources!

The Clean Water Act is a powerful piece of legislation. Its stated goal is to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a).  

This post looks at just two portions of the Clean Water Act, what are known as 1) the National Pollutant Discharge Elimination System; and 2) the Citizen Suit provision.  

The National Pollutant Discharge Elimination System

The Clean Water Act established a very important prohibition against the "discharge of any pollutant by any person" from a point source into the waters of the United States, unless that discharge is permitted under one of six sections under Title 33 of the U.S. Code.  33 U.S.C. §1311(a).  The act defines “pollutant” broadly, and included in that definition is “chemical wastes, biological materials, radioactive materials…and industrial, municipal and agricultural waste discharged into water.” 33 U.S.C. §1362(6).

This is a pretty big deal.  Basically it says, "if you're not permitted to dump things into our nation's waters, then you can't."  This was not necessarily the case before the passing of the CWA.

Importantly, the CWA does allow folks with a permit to pollute to discharge pollutants into our waterbodies.  The National Pollutant Discharge Elimination System ("NPDES" for short) is one such means through which the U.S. EPA (or the state agency to which it has delegated authority to administer this part of the CWA) distributes permits to pollute to polluters.  The idea here is that the environmental regulatory agency is able to establish water quality standards for its waters and from those it can determine how much a single discharger can pollute without without causing a violation of those water quality standards.  The agency then issues a NPDES permit to an individual discharger that contains pollutant limits for those pollutants it is allowed to discharge.  Generally, the discharger is not allowed to discharge pollutants not contemplated by the agency in issuing the NPDES permit.

What happens if a polluter violates the terms of its NPDES permit?

Generally, the environmental regulatory agency can enforce against the polluter.  This may mean it can require it to come into compliance with its NPDES permit or cease operations, among other possibilities.

If the environmental regulatory agency is not diligently prosecuting a polluter for violations of its NPDES permit, a citizen can step into the shoes of the environmental agency and bring a civil action against the polluter under the citizen suit provision of the Clean Water Act.

The Citizen Suit Provision of the Clean Water Act

Located at 33 U.S.C. § 1365(a), the citizen suit provision of the Clean Water Act allows "any citizen" to bring a civil action against "any person" alleged to be in violation of "an effluent standard or limitation" of the CWA.  The provision defines "an effluent standard or limitation" to include many provisions of the CWA, including a permit issued under the NPDES program or a condition of such a permit.  Importantly, the provision also defines "citizen" broadly, "as a person or persons having an interest which is or may be adversely affected," and defines "person" to include corporations, business associations and partnerships, municipalities, the State, and other political bodies.

The U.S. Supreme Court has stated the Citizen Suit provision of the Clean Water Act has the “central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance.”  Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 62, 108 S. Ct. 376, 384 (1987).  A legislative history of the Clean Water Act suggests legislators were eager to draw upon the direct experience of everyday citizens dealing with environmental pollution as a means of enforcing critical environmental regulations.  Legislators who designed and enacted the provision, described the citizen suit as “a very useful additional tool in enforcing environmental protection laws.” Id. at 383.  To make it more likely that a citizen might be able to bring such an action, the citizen suit provision also allows citizens to recover attorneys fees and court costs in the instance that they substantially prevail in their suit.

Congress at the time recognized it was every day citizens who knew their lived environment best.  They also recognized that administrative agencies were often overtaxed and under resourced to tackle the breadth and nature of environmental contamination.  As a result, the Clean Water Act contains this powerful provision that allows us to act to protect our water resources when government agencies are not and when polluters aren't abiding by the law.


The above paragraphs are intended for general educational purposes and are a brief introduction into some aspects of the Clean Water Act.  If you are looking for legal advice regarding water pollution or other environmental matters you should contact an attorney who can provide advice tailored to your specific circumstances.  The attorneys at Hunter & Hunter LLC have experience in citizen suits and other environmental matters and can be reached through the means listed on the contact portion of this website.