Strategies for Citizen Suits

The Clean Water Act citizen suit, North Carolina Wildlife Federation v. Tulloch, and its subsequently negotiated, court-approved settlement agreement led to a rule that effectively clarified and arguably expanded the scope of activities regulated under §404. The approach taken in drafting the Tulloch rule differs from both traditional rulemaking processes and more recently accepted regulatory negotiations. Consequently, Tulloch provides an opportunity to examine the drafting of a rule that incorporates a citizen-suit settlement agreement.