RECENT FEDERAL DECISIONS

January 2010

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District Court Holds Notices of Violation and Agency Investigations are Insufficient to Trigger Clean Water Act Provisions Barring Citizen Suits
Gulf Restoration Network v. Hancock County Development, LLC, ___F.Supp.2d___

The District Court for the Southern District of Mississippi has reaffirmed that the litigation bar in the citizen suit provision of the Clean Water Act (CWA) is triggered only when the U.S. Environmental Protection Agency (EPA) or a state files a civil or criminal action against the alleged violator in federal or state court, and that action relates to the same violations as those addressed in the citizen suit. Similarly, the litigation bar in a civil penalty provision of the CWA applies only when EPA, the U.S. Army Corps of Engineers (Corps), or a state initiates litigation seeking civil penalties from the alleged violator in federal or state court or when one of those entities issues a final, non-appealable order imposing civil penalties and the defendant has paid those penalties. Either the action or order must also address the same violations targeted in the citizen suit. The court held neither provision bars citizen suits when a regulatory agency is merely investigating alleged violations or has issued a notice of violation (NOV). Accordingly, it dismissed the defendant’s converted motion for summary judgment, which argued these provisions barred the plaintiff’s citizen suit against it.