South River Watershed Alliance v. DeKalb County, Georgia ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13651
____________________
SOUTH RIVER WATERSHED ALLIANCE, INC.,
JACQUELINE ECHOLS,
Plaintiffs-Appellants,
versus
DEKALB COUNTY, GEORGIA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-04299-SDG
____________________
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2 Opinion of the Court 20-13651
Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.
BRANCH, Circuit Judge:
In 2010, the United States Environmental Protection Agency
(“EPA”) and Georgia Department of Natural Resources (“GDNR”)
sued DeKalb County for violating the Clean Water Act (“CWA”).
To resolve this suit, the parties agreed to—and the court entered—
a consent decree in 2011. Eight years later, South River Watershed
Alliance, Inc. (“South River”) and Jacqueline Echols sued DeKalb
County for failing to follow the decree and violating the CWA.
The CWA authorizes citizen suits for enforcement
purposes, but such suits are not allowed when an “[a]dministrator
or State has commenced and is diligently prosecuting a civil or
criminal action . . . to require compliance with the standard,
limitation, or order[.]” 33 U.S.C. § 1365(b)(1)(B) (emphasis added).
Thus, this case turns on whether the 2011 consent decree—along
with the ongoing efforts of the EPA and GDNR to require
compliance—constitutes diligent prosecution. If so, South River’s
suit is barred; if not, South River’s suit is good to go.
The district court determined that South River’s suit was
barred by the diligent prosecution bar. On appeal, South River
argues for the opposite result and requests injunctive relief to
ensure DeKalb County’s compliance. After careful consideration,
and with the benefit of oral argument, we agree with the district
court that South River’s suit is barred by § 1365(b)(1)(B).
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I. Background
South River is “a non-profit membership organization” that
advocates “to protect and restore the water quality and
biodiversity” of the South River and Chattahoochee River
watersheds. Co-plaintiff Echols is a South River member who
enjoys these watersheds for their “aesthetic, recreational,
ecological, and biological values.”
DeKalb County owns and operates a wastewater collection
and transmission system. According to its National Pollutant
Discharge Elimination System (“NPDES”) permits, DeKalb
County is required to collect, transport, and treat wastewater
before discharging it into surface waters. South River—despite the
presence of a consent decree from an earlier government action
against DeKalb County for its CWA violations—sued DeKalb
County for violating the CWA by repeatedly spilling wastewater,
including untreated sewage, into surface waters.
A. 2010 Litigation and Consent Decree
In December 2010, the EPA and GDNR filed a complaint
against DeKalb County alleging that, since 2006, DeKalb County
had spilled untreated wastewater—in what are called “sanitary
sewer overflows”—on hundreds of occasions. Many of these
overflows resulted in the discharge of untreated sewage into the
South River and Chattahoochee watersheds. In May 2011, the
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district court allowed South River to intervene in the government
action. 1
Over South River’s objections, in December 2011, the
district court approved a consent decree executed by DeKalb
County, the United States, and the State of Georgia. United States
v. DeKalb Cnty., Ga., No. 1:10-cv-4039-WSD, 2011 WL 64022031 DeKalb County argues that South River is barred by res judicata from
asserting its claims in the instant appeal because South River properly
intervened in the 2010 litigation and South River could have raised the present
issues in the prior litigation. “Under res judicata, also known as claim
preclusion, a final judgment on the merits bars the parties to a prior action
from re-litigating a cause of action that was or could have been raised in that
action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). We
have noted that,
[i]n the Eleventh Circuit, a party seeking to invoke the doctrine
[of res judicata] must establish its propriety by satisfying four
initial elements: (1) the prior decision must have been
rendered by a court of competent jurisdiction; (2) there must
have been a final judgment on the merits; (3) both cases must
involve the same parties or their privies; and (4) both cases
must involve the same causes of action.
Id. This case, however, does not involve “the same parties or their
privies,” nor “the same causes of action.” Id. With respect to the third
element, while South River may have intervened, South River was not
a party to the consent decree. See Com. Union Ins. Co. v. Westrope,
730 F.2d 729, 732 (11th Cir. 1984) (“A consent judgment is binding only
upon those parties consenting thereto.” (quoting Botz v. Helvering,
134 F.2d 538, 545 (8th Cir. 1943))). And as to the fourth element, the
claims in the instant suit could not have been raised in the 2010 suit
because the new claims are based on DeKalb County’s CWA
violations after the entry of the 2011 consent decree.
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(N.D. Ga. Dec. 20, 2011). The stated objectives of the consent
decree are for DeKalb County “to use its best efforts to prepare and
implement all plans, measures, reports, and construction,
maintenance, and operational activities . . . to achieve the goals
of: (1) full compliance with the CWA, the [Georgia Water Quality
Control Act], and the regulations promulgated thereunder, and (2)
the elimination of all [sanitary sewer overflows].” The decree
requires DeKalb County to pay a one-time civil penalty of
$453,000: $226,500 to the United States and $226,500 to the State of
Georgia. It also requires DeKalb County to expend at least
$600,000 on remedial measures benefiting areas impacted by prior
discharges.
The consent decree contains numerous provisions requiring
DeKalb County to remediate its wastewater collection and
transmission system. For example, the consent decree requires
DeKalb County to implement a comprehensive program “to
ensure effective [c]apacity, [m]anagement, [o]perations and
[m]aintenance” of the sewer system. The consent decree
establishes timelines for DeKalb County to develop and submit
certain programs and plans to the EPA or GDNR 2 for review and
approval. These programs include an emergency response plan
and a sewer mapping program to provide DeKalb County with
2The consent decree requires submission to “EPA/EPD.” As defined by the
consent decree, EPA, of course, refers to “the United States Environmental
Protection Agency,” and EPD refers to “the [GDNR] Environmental
Protection Division.”
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better information about its sewer system. The sewer
rehabilitation plan requires DeKalb County to identify “priority”
areas 3 requiring immediate improvement, submit to EPA/GDNR
a rehabilitation program for those areas, and rehabilitate those
areas within a specified timeframe. DeKalb County is also required
to identify “non-priority” areas. 4 These areas are subject to
assessment and rehabilitation under a separate program that does
not have a specific deadline for completion.
The consent decree contains other notable provisions, such
as those requiring DeKalb County to develop a “computer-based
dynamic hydraulic model” 5 with a lengthy set of requirements and
3As of 2018, the priority areas for remediation included approximately 838
miles of sewer line, representing 31% of the sewer line in DeKalb County’s
wastewater collection and transmission system. According to South River’s
amended complaint, DeKalb County has acknowledged that it will not meet
the deadline for rehabilitating priority areas, and indeed, the deadline has
passed.
4 The non-priority areas represent the remaining approximately 69% of
DeKalb County’s sewer line. South River alleges that in 2017 and 2018, “there
was a greater volume of sewage spilled in non-[p]riority [a]reas than in
[p]riority [a]reas.”
5 According to the amended complaint, “[a] sewer system hydraulic model is
a mathematical model of a fluid introduced into a wastewater sewer at various
rates and pressures. It is used to provide an understanding of the hydraulic
behavior of the system under variable conditions so utilities can make
informed decisions concerning planning and capital improvements.” A
dynamic hydraulic model is more accurate than a steady-state model, which
holds “certain parameters” constant and uses less data.
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a 2017 deadline. 6 Additionally, it requires that DeKalb County pay
prospective penalties for noncompliance and failure to timely
complete any of the specified remedial actions. For example, for
each day DeKalb County fails to meet the priority area
rehabilitation deadline, it will be charged anywhere from $1,000 to
$3,000 per day.
The consent decree also includes a disclaimer: the United
States and the State of Georgia do not “warrant or aver in any
manner that the County’s compliance with any aspect of this
Consent Decree will result in compliance with provisions of the
CWA.” It also states that it “may be terminated when [DeKalb
County] has satisfactorily completed performance of its
compliance” and “fulfilled all other material obligations of this
Consent Decree.” Finally, the consent decree provides that “[t]he
Court shall retain jurisdiction over this case until termination of
this Consent Decree, for the purpose of resolving disputes . . . or
effectuating or enforcing compliance with the terms of this
Consent Decree.” To date, the consent decree has not been
terminated.
In May 2020, the United States and the State of Georgia
moved to reopen the 2010 litigation. They agreed to certain
6 In2015, DeKalb County proposed (and the EPA approved) the use of a static
model instead of a dynamic one because the static model could be developed
and implemented more quickly. The parties to the consent decree agreed to
this change, but did not seek court permission. However, this change was
memorialized in the court-approved 2021 modifications to the consent decree.
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modifications to the consent decree: an extension of the deadlines
for the priority areas, the implementation of a new dynamic
hydraulic model that DeKalb County will use for better
management of wastewater, the addition of 103 additional priority
work projects, and the payment of additional fines for failure to
meet the original deadlines. The district court approved the
modifications in September 2021. 7
B. Procedural Background
In July 2019, South River mailed DeKalb County a notice
letter, as required under 33 U.S.C. § 1365(b), setting forth its intent
to file a citizen suit under the CWA. 8 Two months later, South
7During the public comment period for the proposed modification, South
River raised the same concerns that it puts forth in this appeal.
8 DeKalb County argues that South River did not provide sufficient pre-suit
notice under 33 U.S.C. § 1365(b)(1)(A) because South River’s notice lacked
specifics about “DeKalb’s alleged system deficiencies; . . . the requirements of
DeKalb’s MS4 Permit; . . . [and] for spills that occurred after the filing of this
lawsuit.” This argument lacks merit. Section 1365 requires pre-suit notice
before a citizen suit under the CWA. See id. The CWA’s pre-suit notice
provision states:
No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff has given notice of the
alleged violation (i) to the Administrator, (ii) to the State in
which the alleged violation occurs, and (iii) to any alleged
violator of the standard, limitation, or order . . . .
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River filed a complaint against DeKalb County in the Northern
District of Georgia asserting one count of CWA violations under
§ 1311, which prohibits the non-compliant discharge of pollutants,
and § 1342, which outlines the requirements for compliant
discharges under the NPDES permit system. South River sought
broad injunctions requiring DeKalb County to “cease the discharge
of wastewater into waters of the United States . . . except in
compliance with NPDES Permits,” “take all actions necessary to
cease the illicit discharge of sewage spills,” and “comply with all
terms and conditions of coverage under its NPDES Permits.” The
complaint also requested monetary relief—civil penalties for
violations of the CWA and litigation costs and reasonable
attorney’s fees for South River.
In March 2020, DeKalb County moved to dismiss South
River’s amended complaint under Federal Rule of Civil Procedure
12(b)(1) for lack of subject matter jurisdiction and, alternatively,
Id. South River sent several DeKalb County officials a notice of its intent to
sue on July 15, 2019, specifying DeKalb County’s violations for discharging
pollutants in violation of the terms of 33 U.S.C. § 1311(a). Under our
precedent and EPA regulations, the notice must include, inter alia, sufficient
information for the recipient to identify “the specific [CWA] standard,
limitation, or order alleged to have been violated, the activity alleged to
constitute a violation, the person or persons responsible for the alleged
violation, the location of the alleged violation, [and] the date or dates of such
violation.” See 40 C.F.R. § 135.3(a); Nat’l Parks & Conservation Ass’n, Inc. v.
Tenn. Valley Auth., 502 F.3d 1316, 1329 (11th Cir. 2007). South River met
these requirements by identifying DeKalb County’s sewage spills by structure,
cause, source, and date.
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under Rule 12(b)(6) for failure to state a claim upon which relief
can be granted. DeKalb County argued that the district court had
no jurisdiction to hear the claim because the consent decree and
the EPA’s enforcement of it establishes “diligent prosecution” that
bars the claim under 33 U.S.C. § 1365(b)(1)(B), which states, “[n]o
action may be commenced . . . if the Administrator or State has
commenced and is diligently prosecuting a civil or criminal action
in a court of the United States . . . to require compliance with the
standard, limitation, or order . . . .” 9 South River argued that its
claim was not barred by the diligent prosecution bar because the
consent decree did not “require compliance” with the CWA. That
is, because the consent decree did not require repairs in non-
priority areas, DeKalb County could comply with the consent
decree while still failing to comply with the CWA. South River
also pointed to DeKalb County’s admission that it would not meet
the consent decree’s deadline for priority-area rehabilitation as
further evidence of non-compliance with the CWA.
The district court determined that the diligent prosecution
bar is not jurisdictional and, therefore, Rule 12(b)(6), rather than
Rule 12(b)(1), governed. The district court then concluded that
9 DeKalb County also argued below that South River lacked standing, failed
to provide sufficient pre-suit notice, was barred by res judicata, and was
unlawfully attempting to sue to enforce the consent decree as a third party.
We address standing in Part A of the discussion section, res judicata in
footnote 1, and pre-suit notice in footnote 8. The unlawful enforcement issue
is not argued on appeal.
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South River’s claims addressed the same CWA violations that
formed the basis of the 2010 government suit that resulted in the
consent decree, and, after affording the government a “heavy
presumption of diligence,” held that the diligent prosecution bar of
§ 1365 applied and granted DeKalb County’s motion to dismiss.
South River appealed.
II. Discussion
“We review de novo the district court’s grant of a motion to
dismiss under Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim,
accepting the factual allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.”
McGroarty v. Swearingen, 977 F.3d 1302, 1306 (11th Cir. 2020)
(quotations omitted). 10 “We also review issues of statutory
interpretation de novo.” United States v. Zuniga-Arteaga, 681 F.3d
1220, 1223 (11th Cir. 2012) (quotations omitted).
A. Standing
10 Because no party disputes either the authenticity or importance of the public
records attached to DeKalb County’s motion to dismiss—including charts
cataloging some of its rehabilitation programs, copies of its correspondence
with EPA regarding the imposition of civil penalties, and copies of annual
reports from the DeKalb County Department of Watershed Management—
we will consider them too. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.
2002) (“[A] document attached to a motion to dismiss may be considered by
the court without converting the motion into one for summary judgment only
if the attached document is: (1) central to the plaintiff’s claim; and (2)
undisputed.”).
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DeKalb County argues that South River and Echols lack
standing to sue. DeKalb County’s main contentions are that South
River has not been injured by DeKalb County’s CWA violations
and that, even if it has been injured, the injury is not redressable.
“The judicial power of the federal courts is limited by Article
III of the U.S. Constitution. We may exercise jurisdiction only over
‘Cases’ and ‘Controversies.’” Greater Birmingham Ministries v.
Sec’y of State for State of Ala., 992 F.3d 1299, 1316 (11th Cir. 2021)
(quoting U.S. Const. art. III, § 2). To satisfy Article III’s case or
controversy requirement, which is “the irreducible constitutional
minimum of standing, a plaintiff must, generally speaking,
demonstrate that he has suffered injury in fact, that the injury is
fairly traceable to the actions of the defendant, and that the injury
will likely be redressed by a favorable decision.” Id. (quotations
omitted). This injury must be concrete. TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2200 (2021).
We turn first to DeKalb County’s challenge to the injury
suffered by South River. 11 An organization has standing to redress
an injury suffered by its members without showing an injury to the
association itself. See Arcia v. Fla. Sec’y of State, 772 F.3d 1335,
1342 (11th Cir. 2014) (“In order to sue on behalf of its
members . . . the rule in this Circuit is that organizational plaintiffs
11 There are two ways to establish standing for organizational plaintiffs—the
diversion-of-resources theory and the associational standing theory. Arcia,
772 F.3d at 1341. In this case, South River argues it has associational standing.
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need only establish that at least one member faces a realistic danger
of suffering an injury.” (quotations omitted)). To establish
standing to enforce the rights of its members, an organization must
show that (1) “its members would otherwise have standing to sue
in their own right,” (2) “the interests at stake are germane to the
organization’s purpose,” and (3) “neither the claim asserted nor the
relief requested requires the participation of individual members in
the lawsuit.” Id. (quoting Friends of the Earth, Inc. v. Laidlaw
Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)).
South River meets the first requirement of associational
standing—i.e., its members would have standing to sue in their
own right—because its members use the South River and
Chattahoochee watersheds for recreation and aesthetic enjoyment
and are injured when those uses are limited due to pollution. See
id.; Glynn Env’t Coal., Inc. v. Sea Island Acquisition, LLC, 26 F.4th
1235, 1241 (11th Cir. 2022) (“An individual can meet her burden of
establishing that injury at the pleading stage by attesting that [s]he
uses . . . an area affected by the alleged violations and that h[er]
aesthetic . . . interests in the area have been harmed.” (quotations
omitted)). Moreover, “the rule in this Circuit is that organizational
plaintiffs need only establish that at least one member faces a
realistic danger of suffering an injury.” Arcia, 772 F.3d at 1342(quotation omitted); see also Summers v. Earth Island Inst., 555
U.S. 488, 498 (2009). Here, South River satisfied our requirement
by identifying one specific member, plaintiff Echols, who has
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suffered a cognizable injury because she has used the South River
and Chattahoochee watersheds less due to pollution.
As to the second requirement of associational standing—i.e.,
the “interests at stake are germane to the organization’s
purpose”—South River’s interests in this litigation qualify because
it is a nonprofit membership organization with the goal of restoring
the water quality of the Chattahoochee and South River
watersheds. Arcia, 772 F.3d at 1342.
Finally, South River meets the third requirement of
associational standing—i.e., that “neither the claim asserted nor the
relief requested requires the participation of individual members in
the lawsuit”—because South River is seeking civil penalties,
injunctive relief, and litigation costs, not damages. 12 Id.; see United
Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517
U.S. 544, 546 (1996) (“‘[I]ndividual participation’ is not normally
necessary when an association seeks prospective or injunctive relief
for its members [however] such participation would be required in
12 In their amended complaint, South River seeks an order requiring DeKalb
County to “pay civil penalties for violations of the CWA.” Civil penalties are
paid to the government unlike damages that would be paid to South River’s
members. Compare Damages, Black’s Law Dictionary (11th ed. 2019)
(“Money claimed by, or ordered to be paid to, a person as compensation for
loss or injury.”), with Penalty, Black’s Law Dictionary (11th ed. 2019)
(“Punishment imposed on a wrongdoer, usually in the form of imprisonment
or fine; especially, a sum of money exacted as punishment for either a wrong
to the state or a civil wrong (as distinguished from compensation for the
injured party’s loss).”).
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an action for damages to an association’s members . . . .”).
Accordingly, South River and Echols have suffered an injury in fact
for purposes of standing.
We next turn to DeKalb County’s redressability argument.
DeKalb County contends that the remedies South River seeks are
already provided for in the consent decree and the court cannot
unilaterally modify its terms. “Redressability is established,
however, when a favorable decision ‘would amount to a significant
increase in the likelihood that the plaintiff would obtain relief that
directly redresses the injury suffered.’” Harrell v. Fla. Bar, 608 F.3d
1241, 1260 n.7 (11th Cir. 2010) (quoting Utah v. Evans, 536 U.S.
452, 464 (2002)). At the motion to dismiss stage, the burden to
prove redressability is “relatively modest.” Bennett v. Spear, 520
U.S. 154, 171 (1997).
The water quality of the Chattahoochee and South Rivers
would likely be improved if the court implemented an injunction
requiring DeKalb County to take additional steps to cease the
discharge of wastewater and comply with its NPDES permits and
the CWA. Although DeKalb County is correct that the court
cannot unilaterally modify the terms of the consent decree, the
court could impose other requirements to deal with the CWA
violations. Accordingly, South River and Echols have adequately
demonstrated for purposes of the motion to dismiss stage that a
favorable decision would redress their injury. Spear, 520 U.S. at
171.
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Because South River has demonstrated injury, causation,13
and redressability, we conclude that South River has Article III
standing.
B. Jurisdiction
We now proceed to a second threshold question—this
Court’s jurisdiction over this suit. The district court held that 33
U.S.C. § 1365(b)(1)(B)’s diligent prosecution bar is not
jurisdictional. DeKalb County argues that the diligent prosecution
bar is jurisdictional and that the district court should have
dismissed the case under Rule 12(b)(1) for lack of subject matter
jurisdiction rather than under Rule 12(b)(6) for failure to state a
claim.
DeKalb County did not file a cross-appeal to raise this issue,
but we “have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge
from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
“We review de novo a district court’s determination of whether it
has subject-matter jurisdiction.” Gupta v. McGahey, 709 F.3d 1062,
1064–65 (11th Cir. 2013).
13Because causation is plainly apparent, it was not contested below or in this
appeal. Nonetheless, we assess causation and conclude that South River’s
injury (i.e., pollution in the South River and Chattahoochee watersheds) is
“fairly traceable” to DeKalb County’s actions (i.e., polluting those rivers in
various ways). Greater Birmingham, 992 F.3d at 1316.
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In examining § 1365(b)(1)(B)’s diligent prosecution bar, “we
must begin, and often should end as well, with the language of the
statute itself.” United States v. Steele, 147 F.3d 1316, 1318 (11th
Cir. 1998) (en banc) (quotation omitted). Courts must look to the
plain meaning of the statute, and “presume that a legislature says
in a statute what it means and means in a statute what it says
there.” Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC,
548 F.3d 986, 990 (11th Cir. 2008) (quoting Conn. Nat’l Bank v.
Germain, 503 U.S. 249, 253–54 (1992)).
Importantly, in the jurisdictional context, the Supreme
Court has warned courts about the ill effects of “drive-by
jurisdictional rulings.” Arbaugh, 546 U.S. at 511–14. The Supreme
Court has “urged that a rule should not be referred to as
jurisdictional unless it governs a court’s adjudicatory capacity, that
is, its subject-matter or personal jurisdiction.” Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Courts such as
ours should not confuse jurisdictional rules with “claim-processing
rules” that “promote the orderly progress of litigation by requiring
that the parties take certain procedural steps at certain specified
times.” Id.; see also Wilkins v. United States, 598 U.S. __, 143 S.
Ct. 870, 876 (2023) (emphasizing the difference between “mundane
claims-processing rule[s]” and “procedural bar[s] with
jurisdictional consequences” (quotation omitted)).
To determine whether a statutory rule is jurisdictional, we
look for a clear statement from the legislature. Arbaugh, 546 U.S.
515–16. “[W]hen Congress does not rank a statutory limitation on
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coverage as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.” Id. at 516; see also Henderson, 562
U.S. at 436 (“[W]e look to see if there is any clear indication that
Congress wanted the rule to be jurisdictional.” (quotations
omitted)). Rather than looking for “magic words,” courts should
look at the provision’s context and the Supreme Court’s
“interpretation of similar provisions.” Henderson, 562 U.S. at 436.
“When a long line of [the Supreme] Court’s decisions left
undisturbed by Congress has treated a similar requirement as
jurisdictional, we will presume that Congress intended to follow
that course.” Id. (quotations and internal citation omitted).
Following the analytical framework laid out in Arbaugh, in
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010), the
Supreme Court evaluated whether a provision “requir[ing]
copyright holders to register their works before suing for copyright
infringement” was jurisdictional. The Court concluded that the
provision was not jurisdictional because (a) it was “not clearly
labeled jurisdictional,” (b) it was “not located in a jurisdiction-
granting provision,” and (c) not all statutory conditions requiring
action before filing a lawsuit are “jurisdictional prerequisite[s].” Id.
at 166.
Similarly, in Henderson, the Supreme Court determined
that a statutory requirement—requiring veterans to “file a notice
of appeal with the Veterans Court within 120 days”—was not
jurisdictional. 562 U.S. at 431. The Court first looked to the
provision for any “jurisdictional terms or refer[ences],” and
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determined that there were none. Id. at 438. Next, the Court noted
that the time limit was located within a subchapter entitled
“Procedure,” which was especially probative because a separate
provision within that same subchapter was captioned “Jurisdiction;
finality of decisions” and did not mention the time limit for appeals.
Id. at 439–40. Accordingly, the Court held that the provision “does
not have jurisdictional attributes.” Id. at 441.
Subsection (b) of § 1365, which is entitled “Notice,” states
that “[n]o action may be commenced” if the EPA administrator or
a state “has commenced and is diligently prosecuting a civil or
criminal action in a court of the United States, or a State to require
compliance with the standard, limitation, or order . . . .” 33 U.S.C.
§ 1365(b)(1)(B). Clearly, the diligent prosecution bar in subsection
(b)—under the “Notice” heading—is not labeled as jurisdictional
which is important because Congress labelled subsection (a)
“Authorization; [j]urisdiction,” but chose not to label the diligent
prosecution bar in the same way. See id. § 1365(a); Henderson, 562
U.S. at 439–40. Accordingly, because Congress deliberately located
§ 1365(b)(1)(B) outside the jurisdiction-granting provision, we
must treat the notice requirement as nonjurisdictional. See 33
U.S.C. § 1365(b); Henderson, 562 U.S. at 439–40; Arbaugh, 546 U.S.
at 516 (“[W]hen Congress does not rank a statutory limitation on
coverage as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.”).
Looking to our sister circuits to see how they have answered
this question, opinions are split. While the First, Third, and Fifth
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20 Opinion of the Court 20-13651
Circuits have expressly held that the diligent prosecution bar is not
jurisdictional, 14 the Fourth, Seventh, and Tenth Circuits have held
that 33 U.S.C. § 1365(b) is jurisdictional. 15 Most of the
jurisdictional-side cases predated Arbaugh, however. See
Chesapeake Bay Found. v. Am. Recovery Co., 769 F.2d 207, 208
(4th Cir. 1985); Friends of Milwaukee’s Rivers v. Milwaukee Metro.
14 See Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 72 (1st
Cir. 2021) (“For these reasons, we agree with the district court that the CWA’s
diligent prosecution bar is a mandatory claims-processing rule that does not
implicate subject matter jurisdiction.”); Grp. Against Smog & Pollution, Inc.
v. Shenango Inc., 810 F.3d 116, 123 (3d Cir. 2016) (“We conclude that the
diligent prosecution bar of the Clean Air Act [which is identical to the CWA’s
diligent prosecution bar] is not a jurisdictional limitation.”); La. Env’t Action
Network v. City of Baton Rouge, 677 F.3d 737, 749 (5th Cir. 2012) (“[W]e hold
that the diligent prosecution bar is a nonjurisdictional limitation on citizen
suits.” (quotation omitted)).
15 Chesapeake Bay Found. v. Am. Recovery Co., 769 F.2d 207, 208 (4th Cir.
1985) (explaining that § 1365(b)(1)(B)’s “statutory bar is an exception to the
jurisdiction granted in subsection (a) of § 1365, and jurisdiction is normally
determined as of the time of the filing of a complaint”); Friends of Milwaukee’s
Rivers & All. for Great Lakes v. Milwaukee Metro. Sewerage Dist. (“Friends
II”), 556 F.3d 603, 606 (7th Cir. 2009) (“The Act strips the courts of subject
matter jurisdiction over citizens’ suits where the State has timely commenced
judicial or administrative enforcement actions.”); Paper, Allied-Indus., Chem.
& Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1298 (10th
Cir. 2005) (referring to § 1365(b)(1)(B) as a “jurisdiction-stripping provision”).
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20-13651 Opinion of the Court 21
Sewerage Dist. (“Friends I”), 382 F.3d 743, 754–55 (7th Cir. 2004); 16
Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v.
Cont’l Carbon Co., 428 F.3d 1285, 1298 (10th Cir. 2005). As such,
and because they align with our text-based inclination above, we
follow the well-reasoned post-Arbaugh opinions of the First, Third,
and Fifth Circuits. See Cebollero-Bertran v. P.R. Aqueduct &
Sewer Auth., 4 F.4th 63, 72 (1st Cir. 2021); Grp. Against Smog &
Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 123 (3d Cir. 2016);
La. Env’t Action Network v. City of Baton Rouge, 677 F.3d 737,
749 (5th Cir. 2012).
Simply put, because Congress has not clearly stated that the
diligent prosecution bar is jurisdictional and other indicators of
meaning also indicate that the provision is nonjurisdictional, we
hold that § 1365(b)(1)(B)’s diligent prosecution bar is not
jurisdictional. Thus, the district court was correct in evaluating the
diligent prosecution bar under Rule 12(b)(6), rather than Rule
12(b)(1).
16 Of note, this case returned to the Seventh Circuit three years after the 2006
Arbaugh decision. 546 U.S. at 500. In Friends II, the Seventh Circuit did not
change its determination that the diligent prosecution bar was jurisdictional in
light of Arbaugh. 556 F.3d at 606. The Seventh Circuit only mentioned the
jurisdictional nature of § 1365(b)(1)(B) in passing because the state’s actions
were commenced after the citizen suit was initiated (i.e., the diligent
prosecution bar would not have been triggered anyway). Id.
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22 Opinion of the Court 20-13651
C. Diligent Prosecution Bar
The district court undertook a “two-part inquiry” to
determine whether South River’s case was barred by the diligent
prosecution bar:
First, a court must determine whether a prosecution
by the state (or the EPA Administrator) to enforce the
same “standard, order, or limitation” was pending on
the date that the citizens’ suit commenced. Second,
if the answer to the previous question is affirmative,
a court must also determine whether the prior
pending action was being “diligently prosecuted” by
the state [or EPA] at the time that the citizens’ suit
was filed.
See, e.g., Ohio Valley Env’t Coal., Inc. v. Maple Coal Co., 808 F.
Supp. 2d 868, 883 (S.D. W. Va. 2011). In answering those
questions, the district court determined that the consent decree
already addressed the “standard, order, or limitation” that South
River sought to enforce with its citizen suit and that the
prosecution of the consent decree was diligent enough to bar South
River’s citizen suit. We have not adopted this two-part framework
before, but because the test stems directly from the statutory
language and proves helpful in breaking the question into its
component parts, we follow suit.
We address the first step of the analysis (i.e., whether there
is prosecution by the government to enforce the CWA) by noting
that South River has not argued that the EPA and GDNR are not
prosecuting. Rather, South River has focused on step two by
arguing that the existing consent decree does not constitute
“diligent prosecution” because the decree’s requirements are too
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20-13651 Opinion of the Court 23
relaxed to qualify as “diligent.” Accordingly, we do not belabor the
point—we think it clear that the EPA and GDNR have been
prosecuting the consent decree to enforce the CWA.17
We now move to step two and consider whether the
government’s prosecution has been “diligent” enough.
We begin step two by answering a threshold question that
affects the rest of our analysis: What level of deference, if any,
should we apply in determining whether the government’s
prosecution has been diligent? South River argues that the level of
deference the district court applied—a “heavy presumption of
diligence”—is contrary to the plain meaning of § 1365(b)(1)(B).
DeKalb County, however, argues that a “heavy presumption of
diligence” is appropriate because of the “intended role of the State
17 Step one also considers whether the government’s prosecution addresses the
same standard or limitation that the citizen suit seeks to remedy. Ohio Valley,
808 F. Supp. 2d at 883 (“First, a court must determine whether a prosecution
by the state (or the EPA Administrator) to enforce the same ‘standard, order,
or limitation’ was pending on the date that the citizens’ suit commenced.”
(emphasis added)). We agree with the district court that the issues South River
raises in its instant suit overlap completely with the issues covered by the
consent decree. That is, South River alleges that DeKalb County is violating
the CWA by continuing to spill sewage at unacceptable rates—which is exactly
what the consent decree seeks to remedy: “The express purpose [of the
consent decree] is for [DeKalb County] to use its best efforts . . . to achieve the
goals of: (1) full compliance with the CWA . . . and (2) the elimination of all
[sanitary sewer overflows].” To the extent that South River argues the
consent decree has been insufficient and that the EPA and GDNR have fallen
short, we consider that argument under step two (whether prosecution has
been “diligent”).
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24 Opinion of the Court 20-13651
as the primary enforcer of the [CWA]” and “the fact that courts are
not in the business of designing, constructing or maintaining
sewage treatment systems.”
The district court, agreeing with DeKalb County, applied a
“heavy presumption of diligence” to find that the government was
“diligently prosecuting” the civil action, such that South River’s
action was barred by § 1365(b)(1)(B). The district court’s “heavy
presumption of diligence” standard originated in a 1986 district
court case from Connecticut involving § 1365, which held that
“[t]he court must presume the diligence of the state’s prosecution
of a defendant absent persuasive evidence that the state has
engaged in a pattern of conduct in its prosecution of the defendant
that could be considered dilatory, collusive or otherwise in bad
faith.” Conn. Fund for Env’t v. Cont. Plating Co., 631 F. Supp.
1291, 1293 (D. Conn. 1986). 18
The First, Second, Third, Fourth, Seventh, and Tenth
Circuits all grant varying degrees of deference, ranging from a low
of “some deference” to a high of “presumed” diligence. See
Cebollero-Bertran, 4 F.4th at 74 (“The CWA’s diligent prosecution
bar emphasizes the primacy of government agencies in enforcing
18 The district court’s decision does not explain the origin of this presumption,
but later courts have attempted to piece together its underpinnings. See, e.g.,
Friends I, 382 F.3d at 760 (“We surmise that this presumption is due not only
to the intended role of the State as the primary enforcer of the [CWA], but
also to the fact that courts are not in the business of designing, constructing or
maintaining sewage treatment systems.” (internal citation omitted)).
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20-13651 Opinion of the Court 25
clean water standards. . . . We grant considerable, although not
unlimited, deference to the agency’s plan of attack.” (quotation and
internal citation omitted)); Atl. States Legal Found., Inc. v.
Eastman Kodak Co., 933 F.2d 124, 128 (2d Cir. 1991) (directing the
district court to grant “some deference to the judgment of the state
authorities”); Grp. Against Smog, 810 F.3d at 130 (“We note that
the government’s prosecution is entitled to great deference.”);
Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 523
F.3d 453, 459 (4th Cir. 2008) (“A CWA enforcement prosecution
will ordinarily be considered diligent if the judicial action is capable
of requiring compliance with the Act and is in good faith calculated
to do so, and as the Association acknowledges in its opening brief,
diligence is presumed.” (quotations omitted)); Friends I, 382 F.3d
at 760 (“We recognize that diligence on the part of the State is
presumed.”); Karr v. Hefner, 475 F.3d 1192, 1198 (10th Cir. 2007)
(“In sum, our evaluation of the EPA’s diligence is quite deferential.
Citizen-plaintiffs must meet a high standard to demonstrate that it
has failed to prosecute a violation diligently.”). We agree with our
sister circuits that some level of deference is appropriate, but our
conclusion is rooted primarily in the Supreme Court’s observations
about the role of citizen suits.
In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay
Foundation, Inc., 484 U.S. 49, 60 (1987), the Supreme Court
instructed that citizen suits are meant to “supplement rather
than . . . supplant governmental action.” In other words,
“[p]ermitting citizen suits for wholly past violations of the [CWA]
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26 Opinion of the Court 20-13651
could undermine the supplementary role envisioned for the citizen
suit.” Id. Accordingly, permitting citizen suits and federal courts
to second-guess the enforcement decisions of the EPA and state
environmental agencies would be improper. See id. Digging in
further, the Supreme Court has explained how citizen suits could
undermine ongoing executive enforcement actions:
Suppose . . . that the Administrator agreed not to
assess or otherwise seek civil penalties on the
condition that the violator take some extreme
corrective action, such as to install particularly
effective but expensive machinery, that it otherwise
would not be obliged to take. If citizens could file
suit, months or years later, in order to seek the civil
penalties that the Administrator chose to forgo, then
the Administrator’s discretion to enforce the [CWA]
in the public interest would be curtailed considerably.
The same might be said of the discretion of state
enforcement authorities. Respondents’
interpretation of the scope of the citizen suit would
change the nature of the citizens’ role from interstitial
to potentially intrusive. We cannot agree that
Congress intended such a result.
Id. at 60–61.
Stated differently, “when the EPA chooses to enforce the
CWA through a consent decree, failure to defer to its judgment
[could] undermine agency strategy.” Karr, 475 F.3d at 1197. For
this reason, “[i]t would be unreasonable and inappropriate to find
failure to diligently prosecute simply because [the defendant]
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20-13651 Opinion of the Court 27
prevailed in some fashion or because a compromise was reached.”
Ark. Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir.
1994). In sum, because we must follow the Supreme Court’s
instruction as to citizen suits and we agree with our sister circuits’
well-reasoned decisions, we analyze “diligence” with at least some
deference to the judgments of the EPA and GDNR.19
With the deference question answered to the extent
necessary, we now determine diligence in this case. As a starting
point, we note that the diligent prosecution bar “does not require
government prosecution to be far-reaching or zealous; ”rather, “[i]t
requires only diligence.” Karr, 475 F.3d at 1197. Accordingly, in
examining diligence, we look to see “whether [the consent decree]
is capable of requiring compliance with [the CWA]” and “is in good
faith calculated to do so.” Friends I, 382 F.3d at 760. And, critically,
diligence is in no way tied to whether the government could have
been more aggressive in its negotiations with the polluter. See
Piney Run Pres. Ass’n, 523 F.3d at 459 (“[A] citizen-plaintiff cannot
overcome the presumption of diligence merely by showing that
the agency’s prosecution strategy is less aggressive than he would
like or that it did not produce a completely satisfactory result.”).
We turn first to the consent decree itself because the terms
of the decree are the building blocks of our analysis. The consent
decree’s express goal is for DeKalb County to achieve “full
compliance with the CWA” and eliminate all its sanitary sewer
19 Because we hold, infra, that the EPA and GDNR are diligently prosecuting
a civil action to require compliance even with the lowest level of deference
recognized by our sister circuits—“some deference”—we need not decide
exactly what level of deference is required under the statute.
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28 Opinion of the Court 20-13651
overflows. The provisions of the consent decree—from the
penalties imposed on DeKalb County to the requirements that it
implement various programs to stop future overflows and
rehabilitate affected areas—support those goals. Indeed, the
district court only approved the consent decree because it was
capable of remedying DeKalb County’s CWA violations: “The
Consent Decree addresses and substantially resolves violations of
the CWA . . . by [DeKalb County] and is calculated to bring
[DeKalb County’s] sewer infrastructure into compliance with the
CWA.”
The consent decree’s goals alone are not enough, however,
and we must also examine whether the EPA and GDNR have been
diligent in overseeing the consent decree and requiring DeKalb
County to live up to its end of the bargain. Ohio Valley, 808 F.
Supp. 2d at 883 (“Second, [at step two,] a court must also determine
whether the prior pending action was being ‘diligently prosecuted’
by the state at the time that the citizens’ suit was filed.”). We
conclude that the EPA and GDNR have done more than enough
to meet the diligence threshold.
First, we conclude that the EPA and GDNR have been
diligent as evidenced by their continued penalization—according
to the terms of the consent decree—of DeKalb County for
noncompliance. See Piney Run Pres. Ass’n, 523 F.3d at 461(considering the fact that a consent decree imposed “a daily fine”
for the county’s failure to comply with certain requirements as part
of its conclusion that there was diligent prosecution). When it
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20-13651 Opinion of the Court 29
initially entered into the consent decree, DeKalb County had to pay
a large civil penalty to the EPA and GDNR.20 More important to
showing the government’s continued diligence, however, is the
fact that each year, from 2012 to 2018, the EPA and GDNR have
assessed penalties totaling nearly one million dollars against
DeKalb County for its reported spills. 21 The EPA and GDNR have
been diligent in monitoring DeKalb County’s progress and
assessing sizeable fines to compel DeKalb County to comply with
the consent decree.
South River disputes that the consent decree’s penalty
mechanism shows diligence because there is an economic
incentive for DeKalb County to avoid remedying its CWA
violations. That is, South River contends that it is cheaper for
DeKalb County to merely pay the fines than invest in sound
infrastructure. This argument is exactly the type of argument
foreclosed by § 1365(b)(1)(B) because it second-guesses the
compromise negotiated by the EPA and GDNR. See Ark. Wildlife,
29 F.3d at 380 (“It would be unreasonable and inappropriate to find
failure to diligently prosecute simply because . . . a compromise
20In addition to its upfront penalty payment, the consent decree required
other large-scale expenditures from DeKalb County including at least $600,000
on a supplemental environmental project.
21 Further, the modifications to the consent decree also include that
“EPA/[GDNR] have determined that it is appropriate to assess, and [DeKalb
County] agrees to pay, an additional civil penalty which addresses [DeKalb
County’s] failure to implement the Consent Decree obligations in accordance
with the original Consent Decree and the Spills from its WCTS through 2019.”
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30 Opinion of the Court 20-13651
was reached.”). Here, for example, the EPA chose to grant lower
penalties in exchange for increased reporting requirements and
other concessions from DeKalb County, and a citizen suit would
interfere with that decision. See Piney Run Pres. Ass’n, 523 F.3d at
461 (“As we have noted, [concessions or exchanges for other
obligations are] precisely the type of discretionary matter to which
we should defer.”). Finally, as we emphasized previously,
“[s]ection 1365(b)(1)(B) does not require government prosecution
to be far-reaching or zealous,” but rather “requires only diligence.”
Karr, 475 F.3d at 1197 (emphasis added). Whether South River
agrees with the amount of the annual fines levied against DeKalb
County is inconsequential because it is clear that the EPA and
GDNR have been diligent in monitoring DeKalb County and
imposing penalties for its noncompliance.
Second, we draw on the consent decree’s terms that provide
for the court to retain jurisdiction 22 and spell out the proper dispute
resolution framework because we have seen the EPA and GDNR
use these terms to diligently modify the consent decree. See Grp.
Against Smog, 810 F.3d at 129–30 (finding diligent prosecution
when a consent decree contained similar provisions—including a
continuing jurisdiction provision and a provision allowing the
22 Specifically, the consent decree provides that: “The Court shall retain
jurisdiction over this case until termination of this Consent Decree, for the
purpose of resolving disputes arising under this Consent Decree or entering
orders modifying this Consent Decree, pursuant to Sections XII and XIX, or
effectuating or enforcing compliance with the terms of this Consent Decree.”
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20-13651 Opinion of the Court 31
government to “seek court intervention in the event of continuing
violations”—because the “principal enforcement mechanism[s]”
were in place so that a citizen suit would have been improperly
duplicitous). While South River argues that the modifications to
the consent decree—specifically the modifications to the hydraulic
modelling requirements—show a lack of diligence, we reach the
opposite conclusion.23 See Piney Run Pres. Ass’n, 523 F.3d at 461(“As we have noted, [concessions or exchanges for other
obligations are] precisely the type of discretionary matter to which
we should defer.”). By engaging with DeKalb County throughout
its pursuit of a better hydraulic model,24 the EPA and GDNR made
23Similarly, further evidence of diligent prosecution arose in 2020, when the
United States and Georgia filed a motion to reopen the case. The government
did so to “apprise the Court of significant developments in this case, in
anticipation of possible actions consistent with the Court’s retained
jurisdiction . . . of the Consent Decree.” The parties agreed to modify the
consent decree to increase the number of projects required of DeKalb County
and the amount of penalties owed. Under the modification, DeKalb County
must pay an “additional civil penalty” for failure to comply with the original
consent decree schedule, complete 103 additional priority work projects, and
implement a new program to ensure the wastewater system has adequate
capacity to manage wastewater flows. These increased penalties and remedial
programs show an ongoing and diligent effort by the EPA and GDNR to
prosecute DeKalb County for its violations of the CWA.
24 Relatedly, South River also argues that the EPA and GDNR are not
diligently prosecuting because they have allowed modifications to the
hydraulic model required under the consent decree so as to “delay [the
modeling process] by a still unknown number of years.” Even if we were to
assume that South River’s argument does not suffer from the same problem
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32 Opinion of the Court 20-13651
certain tradeoffs that it felt were best in order to speed up the repair
process. To the extent that modelling accuracy was a casualty in
the negotiations (as South River argues), we are unable to conclude
that implementing a less accurate system more quickly, on the one
hand, is better than implementing a more accurate system that
would take longer to implement, on the other. And, in any event,
such a technically-dense determination is far outside our bailiwick
as federal judges.
Third, and critically because the burden is on South River to
overcome the deference we afford to the government in this
context, we find the rest of South River’s arguments unpersuasive.
We address them in turn.
According to South River, the consent decree does not
require “compliance” with DeKalb County’s NPDES permits or
the CWA because the consent decree imposes no timeline or
deadline requiring DeKalb County to stop the spills or repair the
sewer system in non-priority areas. 25 But there is no such
as its other arguments (i.e., the EPA and GDNR have discretion—especially
given the technical complexity in this context), this consideration would not
weigh heavily enough in South River’s favor to overcome the combination of
(a) the deference afforded to the government and (b) the numerous examples
of the government’s diligence that we have already considered.
25 The parties agree that non-priority areas encompass most of DeKalb
County’s sewer lines and are subject to a rehabilitation program that does not
have a specific deadline or timeline for completion, unlike the priority areas
that had an initial deadline of eight and one-half years. The consent decree
covers the same non-priority areas at issue here.
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20-13651 Opinion of the Court 33
requirement in statute or case law. A mere lack of a date-certain
compliance deadline is not dispositive because the consent decree
contains other ongoing compliance requirements: DeKalb County
must report all spills quarterly, semi-annually, and annually, and
pay hefty fines for spills in both priority and non-priority areas. See
Piney Run Pres. Ass’n, 523 F.3d at 461 (determining that the
“absence of a final compliance deadline” did not indicate a lack of
diligence in part because the consent decree had other
requirements such as “immediate compliance with the thermal
limitation” and “daily fine[s] for its violations”). The ability to
designate some areas as priority with a deadline and some as non-
priority 26 without a deadline is the type of discretionary decision
that deserves deference.
Finally, South River argues that a consent decree can bar a
citizen suit only when it “is stringent enough to prevent sewage
26 South River also points to boilerplate language in paragraph 95 of the
consent decree as evidence that the EPA did not intend the consent decree to
require DeKalb County’s compliance in non-priority areas. Paragraph 95
states, “The United States and the State do not, by their consent to the entry
of this Consent Decree, warrant or aver in any manner that the County’s
compliance with any aspect of this Consent Decree will result in compliance
with provisions of the CWA . . . .” South River’s argument is not persuasive.
Setting aside the fact that the language is boilerplate language, we cannot
conclude that paragraph 95 is a better indication of the consent decree’s
purpose than the language defining the decree’s purpose to be achieving “full
compliance with the CWA.” At absolute best, the goal provision and
paragraph 95 offset one another which is not enough to move the needle in
South River’s favor.
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34 Opinion of the Court 20-13651
spills and other [CWA] violations.” However, the authority South
River cites for this rule—Friends II—states something different. In
Friends II, the Seventh Circuit explained that “a diligent
prosecution analysis requires more than mere acceptance at face
value of the potentially self-serving statements of a state agency
and the violator with whom it settled regarding their intent with
respect to the effect of the settlement”; instead, courts must
“engage[] in a substantive analysis of whether the [settlement
between the state and violator] was capable of requiring
compliance with the [CWA] and was in good faith calculated to do
so.” 556 F.3d at 606 (emphasis added) (quotations omitted).
Friends II does not state that a consent decree can bar a citizen suit
only if it prevents all future CWA violations. Rather, it stands for
the proposition that the consent decree must be capable of
requiring compliance. The consent decree in the instant case
satisfies this standard because its express goal is “full compliance
with the CWA,” its requirements support that goal, and—as
explained above—it has been diligently prosecuted by the
government.
III. Conclusion
At bottom, South River wants the current consent decree
discarded in favor of a more muscular alternative. The fact that
South River disagrees with the prosecution strategy undertaken by
the EPA and GDNR, however, is not enough to prove that the EPA
and GDNR have failed to diligently prosecute DeKalb County’s
CWA violations. To the contrary, the record shows that the EPA
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20-13651 Opinion of the Court 35
and GDNR have been diligent which means that South River’s suit
is barred under 33 U.S.C. § 1365(b)(1)(B). Accordingly, we affirm
the district court’s grant of DeKalb County’s motion to dismiss.
AFFIRMED.
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20-13651 Newsom, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
I concur in the Court’s judgment and join the majority
opinion. A brief word about the Clean Water Act’s so-called
“diligent-prosecution bar”: In relevant part, that provision states
that “[n]o [citizen-suit] may be commenced . . . if the [EPA]
Administrator or State has commenced and is diligently
prosecuting a civil . . . action in a court of the United States . . . to
require compliance with” any of the Act’s requirements. 33 U.S.C.
§ 1365(b)(1)(B). As the majority opinion explains, the sole basis for
South River’s contention that § 1365(b)(1)(B)’s bar doesn’t apply
here is that the government’s conduct of its civil-enforcement
action hasn’t been “diligent.” South River hasn’t argued that, at
the time it filed its citizen suit, the government was not, in the
statute’s terms, “prosecuting a civil . . . action in a court of the
United States” at all.
Speaking only for myself, I’ll just say that if South River had
made that argument, I think it’d be a close question, at least as a
matter of statutory interpretation. Section 1365(b)(1)(B) is framed
in the present tense: “is diligently prosecuting.” At the time South
River filed its citizen suit in September 2019, the government’s
civil-enforcement action had already gone to judgment, a consent
decree had been entered, and the “[c]ivil [c]ase [had been]
terminated.” Doc. 39, United States v. DeKalb County, No. 1:10-
CV-4039. The threshold § 1365(b)(1)(B) question would then turn
on whether the government’s ongoing enforcement of its consent
decree constituted present “prosecuti[on]” or whether, instead,
USCA11 Case: 20-13651 Document: 47-1 Date Filed: 05/31/2023 Page: 37 of 37
2 Newsom, J., Concurring 20-13651
prosecution and enforcement are different things—i.e., whether,
perhaps, one prosecutes a case in order to obtain a judgment and
then, having gotten it, proceeds to enforce it. I can see reasonable
arguments going both ways.
In any event, it’s neither here nor there because South River
hasn’t made the “is . . . prosecuting” argument, but rather has
focused solely on whether the government’s prosecution has been
“diligent.” The Court correctly concludes that it has been.