February 2026

Matthew Agurto, MJLST Staffer

Introduction

Congress enacted the Clean Water Act (“the Act”) in 1972 to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.[1] The Act included remedies for violations, including citizen suits or a suit brought by a citizen alleging a defendant violates the Act, with all fees payable to the United States Treasury.[2] To show standing, a plaintiff must show injury in fact, causation, and redressability.[3] The injury must be to the plaintiff, not the environment or environmental group.[4] This is a low bar; the injury can be merely impeding the view or a bad smell.[5]

The Act authorizes three types of remedies for citizen suits: (1) injunctive relief, (2) civil penalties, and (3) attorneys’ fees.[6] The Act permits an entity to get a National Pollutant Discharge Elimination System (NPDES) permit, enabling it to discharge waste into navigable waters.[7] NPDES permits are issued by the Environmental Protection Agency or approved state agency.[8]

Before filing suit, a citizen must give the violator sixty days’ notice of their intent to file suit, affording an opportunity for the defendant to remedy the problem.[9] If the defendant remedies the problem before filing, the issue is moot.[10] If the violator comes into compliance post-filing, the case is not moot for purposes of attorney fees and civil damages.[11] In such an instance, injunctive relief fails to be an appropriate remedy. Although courts are divided on this issue, a closer examination of the cases suggests a “good faith” exception to the traditional rule for certain violations.

Friends of Earth v. Laidlaw Environmental Services

Laidlaw held that a suit under the Act was moot for injunctive relief if behavior sought to be remedied could not be expected to recur after remedied in the sixty-day notice period.[12] The U.S. Supreme Court left the civil penalties issue for post notice and filing compliance to the district court on remand.[13] Some suggest that a circuit split emerged, as circuits have ruled differently on whether civil penalties are moot for post-filing compliance.[14]

Circuits ruled on materially different issues. Specifically, the Eighth and Ninth Circuits hold that civil penalties are not distinct in cases where the defendant did not have an NPDES permit.[15] Five other circuits hold that civil penalties are distinct in cases where the defendant violated a valid permit.

The Five Circuits Holding Civil Penalties Distinct from Mootness

The Second, Fourth, Seventh, and Eleventh Circuits hold civil penalties distinct from mootness.[16] However, all these cases involve defendants who violated existing permits.[17]

For example, the Second Circuit, in Atlantic States Legal Foundation, Inc. v. Pan American Tanning Corporation, held civil penalties are not extinguished post compliance, as it diminishes the incentive to file a citizen suit.[18] The Second Circuit affirmed this holding post-Laidlaw on deterrence justifications.[19] The Third, Fourth, Seventh and Eleventh Circuits followed on similar grounds, holding that citizens suits lose their effectiveness and deterrence value without civil penalties being imposed for post-filing compliance.[20] This would create a pervasive incentive for violators to stall litigation as and come into compliance at their convenience, which is entirely against the spirit of the Act.

The Ninth and Eighth Circuits Hold a Violator Remedying the Issue Renders it Moot

The Ninth and Eighth Circuits hold civil penalties as distinct from mootness.[21] In Coastal Environment Rights Foundation v. Naples Restaurant Group, Naples Restaurant Group (“Naples”) hosted its Fourth of July Fireworks show, discharging fireworks over water.[22] Naples failed to pay the entire amount for a permit due to an administrative error and promptly remedied the error once notified.[23] The Ninth Circuit did not impose civil penalties against Naples.[24] Similarly, in the Eighth Circuit, in Mississippi River Revival v. City of Minneapolis, the City of Minneapolis applied for discharge permits for waste from its sewage system.[25] Due to administrative delay, the Minnesota Pollution Control Agency failed to provide its permit within a year to comply with the Water Quality Act of 1987.[26] Due to the “good faith” violations, the respective courts did not impose civil penalties on either defendant.[27]

Despite both cases being post-Laidlaw, the facts of these cases differ from the other circuits’ cases, holding civil penalties distinct from Mootness. In these two instances, neither defendant had a permit initially and came into compliance as soon as possible.[28] Violations were not expected to recur, and there was no deterrence benefit.[29]

The Good Faith Exception

Reading the cases in conjunction, there is no circuit split on this issue. Rather, there is a good-faith exception to the rule of imposing civil penalties on entities complying with NPDES permits in the post-notice period. If a party is actively violating its permit, it will face civil penalties. As it serves as a strong deterrent for future violations, this is within the spirit of the Act. However, in cases such as the City of Minneapolis or Naples, there was no intent to pollute; administrative error and delay impeded their ability to comply. A deterrent civil penalty would do nothing to remedy these good-faith violations. Implicitly, courts adhere to the traditional rule of imposing penalties on violators but making an exception for “good faith” violations.

Notes

[1] Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52 (1987).

[2] 33 U.S.C § 1365; see also Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 173 (2000); 33 U.S.C § 1320(d).

[3] Laidlaw, 528 U.S. at 174.

[4] Id. at 168–69.

[5] Id. at 181–82.

[6] Gwaltney, 484 U.S. at 54.

[7] 33 U.S.C. § 1344.

[8] 33 U.S.C. § 1342; NPDES Permit Basics, Env’t Prot. Agency, https://www.epa.gov/npdes/npdes-permit-basics#:~:text=An%20Operator%20must%20submit%20a,federal%20requirements%20at%20a%20minimum (last visited Jan. 23, 2026).

[9] Laidlaw, 528 U.S. at 174–75.

[10] Id. at 189–90 (discussing compliance within the notice period rendering the issue moot).

[11] Id.

[12] Id. at 193.

[13] Id. at 192–94.

[14] Quinn Wilson & Bernie Pazonowski, U.S. Law Week’s November 2025 Circuit Split Review: Labor Rights, Bloomberg L. (Dec. 4, 2025, 4:00am) https://www.bloomberglaw.com/product/blaw/bloomberglawnews/bloomberg-law-news/XEBP2ATO000000.

[15] Coastal Env’t Rts. Found. v. Naples Rest. Grp., LLC, 158 F.4th 1052, 1064 (9th Cir. 2025); Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1018 (8th Cir. 2003) (discussing plaintiffs were not entitled to an award of civil penalties because the cities violation lacking a permit was unavoidable).

[16] Atl. States Legal Found., Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1021 (2d Cir. 1993) (discussing the weakened deterrent effect and diminished incentives for plaintiffs in civil suits under the Act); Nat. Res. Def. Council, Inc. v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 503 (3d Cir. 1993) (discussing a citizen suit losing its effectiveness and deterrent effect if penalty claims were mooted); Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 697 (4th Cir. 1989); Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir. 1997); Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1143 (11th Cir. 1990).

[17] Pan Am Tanning, 993 F.2d at 1018; Texaco Ref. & Mktg., 2 F.3d at 506; Gwaltney, 890 F.2d at 692; Stroh Die Casting, 116 F.3d at 817; Tyson Foods, 897 F.2d at 1142.

[18] Pan Am Tanning, 993 F.2d at 1021.

[19] Bldg. & Const. Trades Council of Buffalo, New York & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 152 (2nd Cir. 2006).

[20] Pan. Am. Tanning, 993 F.2d at 1021; Texaco Ref. & Mktg., 2 F.3d at 503; Gwaltney, 890 F.2d at 697; Stroh Die Casting, 116 F.3d at 820; Tyson Foods, at 1143.

[21] Coastal Env’t Rts. Found. v. Naples Rest. Grp., LLC, 158 F.4th 1052, 1061 (9th Cir. 2025); Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1014 (8th Cir. 2003).

[22] Naples, 158 F.4th at 1055.

[23] Id. at 1060–61.

[24] Id. at 1061.

[25] City of Minneapolis, 319 F.3d at 1015.

[26] Id. at 1017.

[27] Id. at 1018; Naples, 158 F.4th. at 1064.

[28] Coastal Env’t Rts. Found. v. Naples Rest. Grp., LLC, 158 F.4th 1052, 1061 (9th Cir. 2025); Mississippi River Revival, Inc. v. City of Minneapolis, Minn., 319 F.3d 1013, 1017–18 (8th Cir. 2003).

[29] City of Minneapolis, 319 F.3d at 1017; Naples, 158 F.4th at 1064.