[DJC]

[Protecting the Environment 97]

Citizen suits put teeth in Clean Water Act

By RICHARD A. SMITH
Smith & Lowney

The goals of the Clean Water Act's citizen enforcers are no less than the goals of the Act itself -- the elimination of the discharge of pollutants to our nation's waters and the attainment of water quality sufficient for safe swimming and the propagation of fish, shellfish and wildlife.

To achieve these high-minded goals, Congress required dischargers to implement the best technology and equipped every person with a potent tool for progress: the citizen suit.

Despite a quarter century of effort and substantial improvement since the 1972 passage of the Clean Water Act, its goals have yet to be achieved. Most controllable sources of pollution have been brought within the Act's National Pollutant Discharge Elimination System permit program.

Evident from its name is the intent of this system to gradually raise discharge standards while reducing the amount of pollution. As the primary issuer of discharge elimination permits in Washington, implementation here lies with our Department of Ecology.

Richard Smith

Attorney Richard Smith represents environmental watchdog groups in citizen lawsuits against violators of water-quality permits.
Photo by Laura T. Coffey



Of course permit standards mean little without enforcement. Enter public supplementation of agency enforcement efforts. Enforcement should be firm and efficient. Enforcement actions must result in costs higher for those violating the law than costs of compliance for those who abide by the law.

For a variety of reasons -- the foremost being resource limitations and political pressures -- Ecology is not up to carrying out this important enforcement function on its own.

Individuals impacted by water pollution and the public interest groups that champion their interests, such as Waste Action Project and the Puget Soundkeeper Alliance, take up the slack and put the citizen suit provision to work to further the Clean Water Act's goals.

Citizen enforcers are entitled to measures sufficient to ensure compliance, the imposition of civil penalties of up to $27,500 per violation per day and costs of litigation, including reasonable attorneys fees.

Liability is strict. Violators of discharge elimination permits and unpermitted dischargers will often find themselves judged liable for what could be millions of dollars in civil penalties even before getting to trial. Citizen enforcement is potent stuff.

For the sake of efficiency and the opportunity to fashion a resolution that best serves the zero discharge and fishable, swimmable Clean Water Act goals, citizen plaintiffs often choose to settle enforcement actions prior to final judgment.

Citizens insist on full compliance with the law and applicable standards, usually negotiating with violators for reasonable timetables for the implementation of fixes. Instead of directing penalty money to the federal treasury for general use as would the court, citizens strive to use the penalty component of their available relief to directly enhance water quality.

Penalties in settlements take two primary forms. Penalty funds are often directed to non-party environmental benefit projects having a nexus with the violations or impacted water body. The amount of money funneled by citizen enforcers in Washington in the past few years to creek and wetland restoration, public water quality monitoring and education, scientific research, enforcement and similar projects approaches $1 million.

Alternatively, dischargers can be given a credit against assessed penalty amounts for environmental improvement measures taken at their own facilities. Citizen plaintiffs require that these projects be above and beyond any required by law or otherwise planned by the violator and that environmental benefits be tangible. Numerous improvement projects such as pollution prevention planning efforts, water conservation programs, and the replacement of chlorine-based disinfection with non-toxic systems have been instigated through this mechanism.

A recently settled case involving the city of Anacortes municipal water treatment plant shows how this can work.

After several years of failed attempts to have Anacortes install treatment for the tons of chlorine- and alum-laden silt discharged by the water treatment plan to the Skagit River, Ecology apparently just gave up in the late 1980s.

Waste Action Project, a Seattle-based non-profit environmental group, learned of the situation last year and seized an opportunity to advance the Clean Water Act's goals by bringing suit against Anacortes for permit violations. Faced with almost certain liability and the possibility of a huge civil penalty, Anacortes sat down with the conservationists to find resolution.

The city agreed to eliminate its discharge to the river altogether by the Fall of 1997 and to pay almost $100,000 to a variety of non-party organizations, including the North Cascades Institute, Shannon Point Marine Center of Western Washington University, and the Skagit Conservation District for a citizen water monitoring programs on the Skagit, research on seagrass beds off Fidalgo Island as habitat for Dungeness crab, and a riparian restoration effort on a tributary to the Skagit. Waste Action Project also recovered the costs of its action.

Citizen enforcement is dreaded by the regulated community. It generally carries a higher price than agency enforcement, where penalties are often less than the economic benefit of non-compliance and there is no liability for the other side's attorneys fees. There are also fewer defenses to citizen suits.

This dread works in favor of our national policy as set out in the Clean Water Act, so long as Ecology keeps the Act's goals firmly in mind as it does permitting. Under the citizen enforcement specter, dischargers put a premium on permit compliance. Elimination of the discharge becomes a target for avoiding the need for Clean Water Act regulation, as it was for Anacortes.

The late Justice Brennan wrote that "enforcement of the law is what really counts." The Clean Water Act has proven to be the most effective environmental law in history due in large part to the heightened levels of enforcement achieved through the citizen suit provision.

In most other cases, the substance of our various environmental protection laws is diluted in practice by erratic or nonexistent agency enforcement. Those who find compliance with these other laws objectionable can often just sneak by, as overwhelmed or neutered agencies look on.

In contrast, the Clean Water Act, powered by the citizen enforcement mechanism, means what it says, or at least to a much greater degree than most other conservation statutes.

Someone who dislikes the policy set by the Clean Water Act must engage in debate of the merits of the law's substance largely because of the role played by citizens. Should our national goal be zero discharge? For the past 25 years, Congress has seen fit to answer this worthy question with a resounding yes.

Perhaps citizen enforcement mechanisms similar to that of the Clean Water Act should be included in all of our laws for protection of public health and the natural environment. Better enforcement would lead these laws to actually mean what they say.


Richard A. Smith is an attorney with the Seattle law firm of Smith & Lowney. He has represented environmental watchdog groups in more than 50 citizen lawsuits against private industrial facilities, cities, ports and sewage treatment plants.

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