Clean Water Act Citizen Suits: Defense Litigation and Settlement Strategies

Navigating Notice, Standing, and Jurisdiction; Interpleading Third Parties Under the CWA

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Tuesday, March 23, 2021

Recorded event now available

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Course Materials

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 developments that impact citizen suits and provide strategies to manage your clients' expectations and risks when facing citizen suits, including innovative approaches for cost-effective settlement of claims.


The CWA provides authority to citizens to sue to enforce compliance with the CWA (including issuing permits) when they believe governmental agencies have not taken timely action on alleged violations. With tight budgets, some federal and state regulators support citizen suits to alleviate the government's enforcement burdens and allow residents to remedy environmental issues.

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

The breadth of future citizen suits may grow due to recent rulings on groundwater and surface water interaction under the CWA. Some court decisions expand the CWA's jurisdictional reach to regulate discharges of pollutants to groundwater that reach the waters of the U.S.

The most recent citizen suit regarding the CWA was decided by the Supreme Court in 2020. County of Maui, Hawai'i. v. Hawai'i Wildlife Fund set forth a new test under the CWA for when discharges to jurisdictional waters via groundwater require NPDES permits. The decision provided some clarity, though not certainty, regarding how federal CWA permitting requirements apply to discharges that reach surface water via groundwater. The Court declined to follow the standard set forth in the underlying Ninth Circuit opinion, but likewise declined to adopt the position set forth in the EPA's guidance on the issue.

Strategic efforts to encourage settlement become increasingly important. Some parties have interpleaded third parties into CWA citizen suits as a potential defense to encourage cost-sharing and settlement, among other reasons. 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 recent citizen suits under the CWA, focusing on defenses and strategies for litigating and settling these matters. The panel will discuss recent case law developments and provide best practices to minimize the risks of being hit with a citizen suit.



  1. Defenses
    1. Challenges to:
      1. Notice
      2. Standing
      3. Jurisdiction
    2. Interpleading third parties into CWA citizen suits
    3. NPDES permit shield defense
    4. Others
  2. CWA regulation of discharges to groundwater and recent cases
  3. Litigation options
  4. Settlement strategies
    1. Typical settlement terms
    2. Injunction settlement terms
    3. Payment settlement terms
    4. Settlement tips and best practices


The panel will review these and other key issues:

  • Court-tested litigation defense tactics to prevail on notice and standing in CWA citizen suits
  • Effective jurisdictional arguments relying on and differentiating between recent EPA actions and court rulings
  • Preemption of CWA citizen suits through state or federal agency settlements
  • How the CWA handles groundwater/surface water interaction
  • Effective settlement strategies


Boer, J. Tom
J. Tom Boer

Hogan Lovells

With a combined decade of experience working as a trial lawyer at the U.S. Department of Justice (DOJ) Environmental...  |  Read More

Kray, Jeff
Jeff B. Kray

Marten Law

Mr. Kray’s practice focuses on water quality, water resources, and complex environmental litigation, including...  |  Read More

Thompson, Andrew
Andrew M. Thompson

Smith Gambrell & Russell

Mr. Thompson’s practice includes environmental, commercial and insurance-related litigation in state and federal...  |  Read More

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