## Facts

- Rudolph Jones, Jr., Susan Jones, and Tandy Jones Gilliland owned riparian property along Oliver Creek in Lakeland, Tennessee.
- The City of Lakeland operated a sewage treatment system regulated by a state-issued NPDES permit under the Clean Water Act (CWA).
- Plaintiffs alleged the City, for years, discharged contaminated and untreated sewage, sludge, and other hazardous substances into Oliver Creek in excess of permit limits.
- About a decade before the federal suit, Tennessee commenced an enforcement effort against the City to secure NPDES compliance.
- Over that period, Tennessee and the City entered a sequence of four administrative and/or judicial orders requiring remedial measures, compliance deadlines, and at least one civil penalty.
- Plaintiffs alleged that despite these orders the City continued to violate the permit and that the State repeatedly extended or waived deadlines, overlooked violation notices, and imposed only minimal penalties.
- Plaintiffs filed a CWA citizen suit seeking relief for ongoing permit violations and alleging the State’s enforcement was not “diligent” under 33 U.S.C. § 1365(b)(1)(B).

## Issues

1. Whether the CWA citizen-suit “diligent prosecution” bar, 33 U.S.C. § 1365(b)(1)(B), required dismissal because Tennessee had commenced and was diligently prosecuting an enforcement action in a court.
2. Whether the complaint sufficiently alleged ongoing or continuing NPDES permit violations to support CWA citizen-suit jurisdiction rather than “wholly past” violations.

## Decision

- The en banc Sixth Circuit reversed the district court’s dismissal under Rules 12(b)(1) and 12(b)(6) and remanded.
- The court held the citizen suit was not barred on the pleadings by § 1365(b)(1)(B) because, accepting the allegations as true, the State’s enforcement could not be deemed “diligent” as a matter of law at the motion-to-dismiss stage.
- The court held plaintiffs adequately alleged ongoing (continuous or intermittent) permit violations, supporting federal jurisdiction under the CWA citizen-suit provision.

## Legal Principles

- The CWA’s diligent-prosecution bar is construed narrowly; citizen suits function as a supplemental enforcement mechanism when governmental enforcement is alleged to be ineffective.
- “Diligent prosecution” turns on the actual rigor and good-faith effectiveness of enforcement in bringing a violator into compliance, not merely the existence of prior orders or proceedings.
- Whether a State’s prosecution is “diligent” is generally fact-dependent and may not be resolvable on the pleadings when the complaint plausibly alleges repeated extensions, waived violations, minimal penalties, and continued noncompliance.
- For CWA citizen-suit jurisdiction, plaintiffs must allege ongoing violations—i.e., a state of continuous or intermittent violation—rather than exclusively past violations.

## Conclusion

The Sixth Circuit allowed the CWA citizen suit to proceed because plaintiffs plausibly alleged ongoing NPDES permit violations and alleged facts from which a court could infer that Tennessee’s long-running enforcement was not diligently prosecuting compliance, making dismissal at the pleading stage improper.


Jones v. City of Lakeland, 224 F.3d 518 (6th Cir. 2000)