(March 12, 2019) - NACWA hosted a Hot Topics in Clean Water Law Webinar on March 6, featuring Susan E. Smith and Eric L. Klein—Principals with NACWA Legal Affiliate, Beveridge & Diamond—who addressed emerging Clean Water Act (CWA) and Safe Drinking Water Act (SDWA) citizen suit legal theories and defense strategies, including the nexus with toxic tort litigation.

Evolving public perception has led to a rise in citizen suits filed under the CWA and SDWA. Matters of concern include the perceived decline of federal and state enforcement and oversight of regulatory programs; the exclusion of emerging contaminants in current regulatory regimes; and legitimate health and safety concerns revealed by advancements in technology that allow detection of chemical substances at minute levels.

Increasingly, these citizen suits aim to create a large-scale impact in which outcomes may affect an entire regulated sector–not just a single defendant. And compliance with permit requirements under the CWA and SDWA is not always enough to avoid such litigation. 

The webinar speakers provided examples of areas of increasing risk for these types of claims, as well as strategies to proactively avoid citizen enforcement and effectively defend once an action has been initiated.

“Citizen enforcement of water laws is evolving from statute-based claims to broader toxic tort grounds using emerging science and evolving big data techniques,” Smith warned.

Klein added: “Citizen groups have spent decades learning to use the citizen-suit provision in the CWA in conjunction with vast publicly available databases on permit compliance.  Now these groups are pushing against the boundaries of the CWA and taking their tactics to the SDWA, which may serve as an eventual bridge to much more costly toxic tort lawsuits.”

In the context of the SDWA, Smith noted the following:

“The legal landscape is shifting. Recent high-profile waterborne disease outbreaks and contamination events have drawn attention to drinking water treatment and distribution systems. Citizens and advocacy groups are taking a closer look at drinking water quality and view SDWA citizen suits as a necessary tool to counter-balance what many perceive to be lax government enforcement of environmental regulations. When a citizen suit puts the spotlight on an alleged compliance issue, toxic tort suits, which are far more expansive than citizen suits, are likely to follow. Drinking water utilities can take steps now to put themselves in a better position when the crisis hits.”

The speakers’ slides are available here. A recording of the webinar is available to NACWA members upon request.

NACWA encourages members interested in these and other legal issues to join the Legal Affairs Committee.  The next Hot Topics in Clean Water Law Webinar is scheduled for September 10, 2019, from 2:00 - 3:30 pm ET.  Members are encouraged to submit potential topics to Amanda Waters, NACWA’s General Counsel.