## Facts

- Kim McAbee owned riparian property along a tributary of Big Wills Creek near the City of Fort Payne’s wastewater treatment plant.
- The City discharged treated effluent under an NPDES permit but repeatedly violated permit effluent limits.
- Alabama’s environmental agency (ADEM) commenced an administrative enforcement action under state law and issued an administrative/consent order assessing a civil penalty and requiring remedial measures.
- State law required public notice of the proposed consent order; the City published notice in a local newspaper.
- The published notice did not state that a person had 15 days to file an administrative appeal and did not clearly describe the right to contest the order, instead providing only a mailing address for more information.
- McAbee later filed a federal Clean Water Act (CWA) citizen suit alleging the City’s permit violations harmed her interests as a downstream landowner.
- The City asserted the CWA’s diligent-prosecution bar, arguing ADEM’s administrative penalty action under “comparable” state law precluded the citizen suit.

## Issues

1. Whether Alabama’s administrative penalty enforcement scheme is “State law comparable to” CWA § 309(g), such that ADEM’s administrative penalty action triggers the citizen-suit bar in 33 U.S.C. § 1319(g)(6).
2. Whether Alabama’s scheme, as implemented here, provided public notice and an opportunity for public participation comparable to the procedural protections required by CWA § 309(g).

## Decision

- The Eleventh Circuit affirmed the district court’s denial of the City’s summary judgment motion.
- The court held Alabama’s statutory and procedural scheme, as applied, was not comparable to CWA § 309(g).
- Because the state action was not under comparable law, 33 U.S.C. § 1319(g)(6) did not bar McAbee’s federal CWA citizen suit.

## Legal Principles

- The CWA’s diligent-prosecution bar applies only when the state has commenced and is diligently prosecuting an administrative penalty action under state law comparable to CWA § 309(g).
- “Comparable” does not require identical state provisions, but requires similarity in overall structure and function, including meaningful public notice, participation opportunities, and mechanisms for review.
- In assessing comparability, courts may consider not only statutory text but also how the state procedures operated in the конкрет enforcement action, including the content and clarity of public notice.
- State processes that do not provide a meaningful chance for the public to learn of, comment on, or contest proposed administrative penalties may fail comparability and therefore cannot preclude CWA citizen enforcement.

## Conclusion

The Eleventh Circuit allowed the CWA citizen suit to proceed because Alabama’s administrative penalty process, particularly its notice and participation mechanisms as used in the case, was not sufficiently comparable to the procedural safeguards required for federal administrative penalties under CWA § 309(g).


McAbee v. City of Fort Payne, 318 F.3d 1248 (11th Cir. 2003)