About the Course
Introduction
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 and regulatory developments that impact citizen suits and provide strategies to manage your clients' expectations and risks when facing citizen suits, including innovative approaches for the cost-effective settlement of claims.
Description
The CWA provides authority to citizens to sue to enforce compliance with the CWA when they believe governmental agencies have not taken timely or sufficient action on alleged violations. With tight budgets, some regulators support citizen suits to compliment the government's enforcement effort and allow residents to remedy environmental issues.
Conversely, some industry stakeholders have raised concerns about abuse of the citizen suit provisions due to suits over minor environmental infractions to generate attorneys' fees (which can be demanded in settlement or awarded in a successful citizen suit action).
Emergent areas of CWA litigation currently include cases involving: (1) allegations related to whether discharges that travel through groundwater require NPDES coverage under the Supreme Court's "functional equivalent" framework, and (2) identification of whether waters and wetlands qualify as "waters of the United States" following the Supreme Court's most recent decision. These developments have created jurisdictional uncertainty and a regulatory patchwork, which may directly impact threshold defenses and strategy.
Strategic efforts to encourage settlement have become increasingly important. Counsel may evaluate third-party practice and other allocation strategies, where available, to manage cost-sharing and enhance settlement leverage. 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 significant recent citizen suits under the CWA, focusing on defenses and strategies for litigating and settling these matters. The panel will discuss key case law developments and regulatory changes, providing best practices to minimize the risks of being hit with a citizen suit and effectively resolve such suits if they arise.
Presented By
As Global Co-Chair of the environmental practice, Mr. Boer works with partners across the firm to find solutions for complex regulatory issues and resolve high-stakes environmental disputes. He also serves on the Firm’s ESG Board, which coordinates cross-boundary and cross-practice solutions to ESG risk and disputes. With a combined decade of experience working as a trial lawyer at the U.S. Department of Justice (DOJ) Environmental Enforcement Section and in the Environmental Protection Agency's (EPA) Office of General Counsel, Mr. Boer uses his government experience to effectively counsel clients as they navigate complex environmental matters. He represents clients in federal and state environmental litigation, in defense of environmental enforcement actions and citizen suits, in response to catastrophic environmental emergencies and chemical releases, and in connection with site cleanup and cost recovery. Mr. Boer has advised clients on the vast array of environmental statutes in the U.S. including the Clean Air Act; Resource Conservation and Recovery Act; the Clean Water Act; the Endangered Species Act; the Oil Pollution Act; the Federal Insecticide, Fungicide, and Rodenticide Act; and the Comprehensive Environmental Response, Compensation, and Liability Act. He routinely represents clients in environmental cases filed in federal district courts and California superior courts.
Mr. Kray’s practice focuses on water quality, water resources, and complex environmental litigation, including CWA permitting and regulatory compliance, and CERCLA site remediation. He has represented public and private clients throughout the west. Mr. Kray is a frequent speaker and writer on water law and policy and holds leadership positions in the Water Resources and Water Quality and Wetlands Committees of the ABA's Section on Environment, Energy and Resources.
Mr. Thompson’s practice includes environmental, commercial and insurance-related litigation in state and federal court, as well as in state administrative court. He has represented and advised clients in connection with a range of environmental and commercial issues, including defending enforcement actions by the EPA and state environmental agencies, toxic tort litigation, CWA permitting and compliance, hazardous waste, groundwater contamination, environmental cleanup and emergency response and other environmental matters. Mr. Thompson serves as an adjunct professor at Emory University School of Law teaching a course in water law and environmental litigation.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Tuesday, July 14, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Defenses
A. Challenges to notice
B. Challenges to standing
C. Jurisdiction/WOTUS scope changes
D. Third parties and allocation in multiparty cases
E. NPDES permit shield defense
F. Enforcing NPDES permit terms (fed vs. state requirements)
G. Other defenses
II. CWA regulation of discharges to groundwater and recent cases
A. Maui "functional equivalent" standard and application
III. Litigation options
IV. Settlement strategies
A. Leveraging existing government enforcement to limit claims
B. Typical settlement terms
C. Injunction settlement terms
D. Payment settlement terms
E. 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, including post-Sackett jurisdictional limits and ongoing regulatory patchwork
- Leveraging "comparable state action" defenses: When agency enforcement or settlements impact a citizen suit
- Enforceable permit conditions, including federal vs. state law-based requirements, circuit splits
- Effective settlement strategies
Related Courses
Clean Water Act Citizen Suits: Defense Litigation and Settlement Strategies
Tuesday, July 14, 2026
1:00 PM ET/10:00 AM PT
