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Clean Water Act Litigation Defense

Federal Defense Counsel for EPA Litigation Under the Clean Water Act

Carlton S. Patton
Carlton S. Patton
EPA Clean Water Act Litigation Team Lead
Former EPA CID Special Agent
Nick Oberheiden
Attorney Nick Oberheiden
EPA Clean Water Act Litigation Team Lead
envelope iconContact Nick

The U.S. Environmental Protection Agency (EPA) vigorously enforces the requirements and prohibitions established under the Clean Water Act. Along with conducting investigations and inspections, the EPA also pursues enforcement litigation against companies, municipalities, and other organizations suspected of violating the Clean Water Act’s requirements. This litigation can present substantial risks for the organizations that are targeted—not only in terms of potential liability, but also in terms of the risk of having their projects shut down.

As a result, when facing EPA litigation under the Clean Water Act, an effective defense is critical. At Oberheiden P.C., we have extensive experience representing private and public organizations in all types of environmental litigation with the EPA. If the EPA is targeting your organization for Clean Water Act enforcement, we can use our experience to help you efficiently target a favorable resolution. Depending on the circumstances, this may mean working to negotiate a settlement with the EPA that helps your organization move forward, or it may mean fully litigating the EPA’s misguided allegations in federal court.

Common Issues in Clean Water Act Litigation Involving the EPA

Due to the breadth of the Clean Water Act, litigation under the statute can involve an extraordinarily wide range of allegations. For targeted organizations, this presents one of the first key challenges for executing a strategic defense. To defend themselves effectively, targeted companies, municipalities, and other organizations need to know what they need to defend against.

In many cases, the scope of EPA litigation under the Clean Water Act will be apparent as the result of an investigation or inspection preceding the litigation. But, this isn’t always the case, and organizations that are being targeted by the EPA must be extremely careful to avoid making assumptions about the scope of the EPA’s enforcement efforts. Effectively mitigating liability requires a comprehensive defense, while conserving resources requires a clear understanding of the specific issues underlying the EPA’s lawsuit.

Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd
Lynette S. Byrd

Former DOJ Trial Attorney

Partner

Brian J. Kuester
Brian J. Kuester

Former U.S. Attorney

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney

Local Counsel

John W. Sellers
John W. Sellers

Former Senior DOJ Trial Attorney

Linda Julin McNamara
Linda Julin McNamara

Federal Appeals Attorney

Aaron L. Wiley
Aaron L. Wiley

Former DOJ attorney

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (DOJ)

Chris Quick
Chris J. Quick

Former Special Agent (FBI & IRS-CI)

Michael S. Koslow
Michael S. Koslow

Former Supervisory Special Agent (DOD-OIG)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

With this in mind, some examples of common issues in Clean Water Act litigation involving the EPA include:

Wastewater Management Violations

The Clean Water Act gives the EPA substantial authority to regulate the discharge of pollutants from municipal and industrial wastewater treatment plans and other facilities. From failure to obtain National Pollutant Discharge Elimination System (NPDES) permits to non-compliance with NPDES permits and a multitude of other issues, litigation involving alleged wastewater management violations is among the most common types of EPA litigation we see in our environmental litigation practice. In many cases, litigation involving alleged wastewater management violations will involve allegations of pretreatment and wetlands violations as well.

Pretreatment Violations

The Clean Water Act imposes requirements for companies, municipalities, and other organizations to pretreat various waste pollutants before these pollutants are released into wastewater streams. When targeting alleged pretreatment violations, the EPA examines not only the environmental impacts of releasing untreated pollutants, but the infrastructure impacts as well. The EPA enforces three types of pretreatment standards under the Clean Water Act: (i) general and specific prohibitions; (ii) categorical pretreatment standards; and, (iii) local limits. All industrial users must comply with all applicable standards—and they must be prepared to affirmatively demonstrate compliance when targeted by the EPA.

Stormwater Pollution

Stormwater pollution is a top enforcement priority for the EPA, and it is an area that is gaining enhanced scrutiny as increasing storm activity threatens to discharge pollutants and other contaminants into the environment. Chemicals, debris, sediment, and other commercial and industrial pollutants are all subject to stormwater pollution restrictions under the Clean Water Act, and construction companies, industrial companies, municipalities, and others can all face EPA inspections and investigations that lead to litigation. In particular, the EPA focuses on stormwater pollution cases that have the potential to compromise its ongoing efforts to protect wetlands and aquatic ecosystems, conserve water resources, protect public health, and minimize the risks of flooding.

Concentrated Animal Feeding Operation (CAFO) Violations

The EPA also specifically targets concentrated animal feeding operations (CAFOs) in compliance litigation under the Clean Water Act. The EPA takes the position that, “CAFOs that are not controlling their animal wastes and illegally discharging pollutants to water bodies are a serious threat to water quality and human health,” and it pursues enforcement action in cases that involve the alleged release of nitrogen, phosphorus, organic matter, sediments, pathogens, hormones, antibiotics, and other pollutants into the environment.

Wetlands Violations

The EPA also vigorously enforces the Clean Water Act’s protections for natural wetlands. Discharge of pollutants, untreated wastewater, polluted stormwater, and dredge and fill material all can—and frequently do—lead to litigation with the EPA. Alleged violations of the nation’s wetlands protections often receive significant media attention as well; and, as a result, the EPA often devotes substantial resources to holding companies, municipalities, and other organizations accountable for both statutory and regulatory violations.

Clean Water Act Compliance Program Deficiencies and Failures

Along with these specific types of Clean Water Act violations, the EPA targets organizations for various other violations as well. In many cases, it pursues litigation based on apparent Clean Water Act compliance program deficiencies and failures. All organizations that are subject to the Clean Water Act must develop and implement effective compliance programs—and, if they don’t, they can expect to face scrutiny from the EPA sooner or later. The EPA expects all organizations to devote adequate time, financial resources, and personnel to managing Clean Water Act compliance, and apparent compliance program deficiencies and failures will trigger further inquiry in many cases.

This includes deficiencies and failures such as:

  • Failure to maintain NPDES permit compliance
  • Failure to maintain adequate combined sewer overflow (CSO) controls
  • Failure to direct overflows away from sensitive areas
  • Failure to take steps to minimize discharges during storms and overflow events
  • Failure to implement an effective compliance monitoring plan
  • Failure to promptly address identified Clean Water Act compliance violations
  • Failure to address specific aspects of Clean Water Act compliance in an organization’s policies and procedures

But, even these are just examples. Clean Water Act litigation can target numerous alleged compliance deficiencies and failures—and, in many cases, the EPA will target multiple alleged violations in a single proceeding. Once again, an informed and strategic defense is critical, and this starts with gaining a clear understanding of the litigation risks at hand.

FAQs: Defending Against EPA Clean Water Act Litigation

What triggers EPA Clean Water Act litigation?

In most cases, EPA enforcement litigation under the Clean Water Act is triggered by an EPA inspection or investigation. Targeted organizations can—and should—engage counsel to defend them during EPA inspections and investigations, and this will facilitate a favorable pre-litigation resolution in many cases. If the EPA is allowed to investigate a suspected violation or inspect an organization’s operations unchecked, this can present a much higher risk for litigation. Whistleblower complaints trigger EPA litigation under the Clean Water Act in some cases as well.

What are some of the most common Clean Water Act violations?

Clean Water Act violations can take many different forms, and the EPA targets companies, municipalities, and other organizations for all types of statutory violations. With that said, some of the most common Clean Water Act violations include inadequate pretreatment, failure to prevent stormwater runoff, failure to inadequately manage wastewater, and failure to adequately protect the nation’s wetlands. All of these violations—among many others—have the potential to lead to litigation involving the EPA.

What penalties can companies and municipalities face in Clean Water Act litigation involving the EPA?

Most Clean Water Act litigation is civil in nature; and, in these cases, targeted organizations can face fines in excess of $30,000 per day for past and ongoing violations. However, the EPA can pursue criminal enforcement actions under the EPA as well. In criminal cases, the potential penalties vary depending on the nature of the allegations involved, and can be as high as $100,000 per day in some cases. Corporate executives and other individuals can face prison time in criminal Clean Water Act litigation as well.

How does the Supreme Court’s ruling in Sackett v. EPA affect Clean Water Act litigation?

The Supreme Court’s ruling in Sackett v. EPA significantly curtailed the EPA’s enforcement authority under the Clean Water Act in wetlands cases. With that said, the EPA still has broad authority to pursue civil and criminal enforcement actions, and executives and administrators should not take Sackett to mean that their organizations are now free from EPA scrutiny.

What are effective defense strategies in Clean Water Act litigation?

While there are several ways to successfully defend against Clean Water Act litigation, the specific strategy (or strategies) available in any particular case depend on the specific facts, allegations, and circumstances involved. When we represent clients in litigation with the EPA under the Clean Water Act, we take a comprehensive and custom-tailored approach focused on identifying all viable defenses and efficiently executing a cohesive defense strategy focused on minimizing our client’s risk to the greatest extent possible.


Speak with a Clean Water Act Litigation Attorney at Oberheiden P.C.

If you would like to know more about our firm’s Clean Water Act litigation practice, we invite you to get in touch. To speak with a senior attorney at Oberheiden P.C. in confidence, please call 888-680-1745 or request a complimentary consultation online today.

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