March 22, 2023

Discretion is the Better Part of Valor; Court Dismisses Clean Water Act Citizen Suit Challenging POTW’s Enforcement Discretion

Posted on March 22, 2023 by Jonathan Ettinger

The scope of suits available to private citizens under the Clean Water Act is not unlimited.  A Federal District Court in Massachusetts recently made that clear in dismissing a citizen suit filed by the Conservation Law Foundation against the Massachusetts Water Resources Authority, which operates Boston’s Deer Island Sewage Treatment Plant, the second largest treatment plant in the country.  (Full disclosure: I represented the MWRA in that suit.) The Court rejected CLF’s claims that the MWRA was required to take enforcement action against every industrial user that discharged to the MWRA’s sewer system in violation of pretreatment regulations.

The Court rejected the Complaint on two grounds, but the first is likely to be more interesting and to potentially have broader effect nationwide.   The Court ruled, on an issue of first impression, that only EPA and not private citizens can seek redress for alleged deficiencies in the way a POTW enforces its pretreatment regulations.  This resulted from a careful analysis of the interplay between 33 U.S.C. §1365, which authorizes citizen suits, and 33 U.S.C. §1319(f), which specifically gives EPA the authority to take action if the POTW is not sufficiently enforcing its pretreatment regulations.  Looking at the language of the statute and the policy considerations, the Court held:

“Thus, while the role of the citizen as an adjunct to EPA’s primary enforcement power is estimable, it does not supplant the discretionary authority of the EPA Administrator, particularly in areas like the enforcement of an [Enforcement Response Plan], where consistency of purpose and predictability of result are the desirable outcomes.”

As to the other ground, the Court found that the MWRA’s Enforcement Response Plan was discretionary and did not create mandatory obligations for enforcement.  As a result, the Court found that the MWRA’s NPDES Permit did not require it to take enforcement action in each instance of noncompliance by an industrial user.  The Court further found that the applicable pretreatment regulations “cannot be plausibly read to require a POTW to impose a sanction in every instance of a violation.”

Boston Harbor is now one of the cleanest urban harbors in the country, and we are proud of it. Sitting on a dock, one can see whales and porpoises and, of course, watch the ships roll in and then watch them roll away again.