Summary of a Recent
Judicial Development in
Environmental Law

Diligent Ongoing Government Prosecution of CWA Violation
Bars CWA Citizen Suits

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Piney Run Preservation Association v. County Commissioners of Carroll County, Maryland, 523 F.3d 453 (4th Cir. 2008), the United States Fourth Circuit Court of Appeals affirmed the district court's ruling, which had granted the county's motion to dismiss. An association alleged that the county violated the Clean Water Act (CWA) by discharging treated wastewater without a permit. The instant court held that the Maryland Department of the Environment's (MDE) pending action against the county barred the association's suit because the association failed to meet its high burden of establishing that the MDE enforcement action was not being diligently prosecuted.

Background

The Piney Run Preservation Association filed a citizen suit, pursuant to the CWA, alleging that Carroll County was violating the CWA by discharging treated wastewater into Piney Run without a pollution discharge permit. Id. at 454. Specifically, the association claimed that the temperature of the wastewater "exceeded the thermal limitation set forth in the [c]ounty's National Pollutant Discharge Elimination System (NPDES) permit." Id. At trial, the district court granted the county's motion to dismiss because the MDE was already prosecuting the county for violating the CWA. Id. The district court held that "the [a]ssociation was barred by 33 U.S.C. § 1365(b)(1)(B) from maintaining [their] suit." Id. The association appealed. Id.

Arguments

On appeal, the association argued that the district court erred in dismissing its diligent prosecution claim. Id.

Analysis and Holdings

Section 1365(b)(1)(B) of the CWA "provides that a citizen suit may not be maintained if the government enforcement agency 'has commenced and is diligently prosecuting a civil or criminal action in a court of the United States . . . .'" Id. The instant court had previously stated that the "statutory bar [in Section 1365(b)(1)(B)] is an exception to the [citizen suit] jurisdiction granted in subsection (a) of § 1365 . . . ." Id. (quoting Chesapeake Bay Found. v. Am. Recovery Co., 769 F.2d 207, 208 (4th Cir.1985)). Although the MDE had not prosecuted the county with the zeal that the association would have preferred, the court held that Section 1365(b)(1)(B) did not require the MDE's prosecution to be "far-reaching or zealous"; it only required diligence. Id. at 459. Therefore, the association could not "overcome the presumption of diligence merely by showing that the agency's prosecution strategy [was] less aggressive than [it] would like or that it did not produce a completely satisfactory result." Id. For this reason, the court affirmed county's motion to dismiss. Id.

The case was decided on April 23, 2008.