## Facts

- The Town of Scituate, Massachusetts operated a sewage treatment facility that state regulators alleged discharged pollutants into a coastal estuary without a federal permit.
- In 1987, the Massachusetts Department of Environmental Protection (DEP) issued Administrative Order No. 698 under the Massachusetts Clean Waters Act addressing the alleged unpermitted discharges.
- The order required Scituate to (1) immediately prohibit new sewer connections, (2) plan, develop, and construct new wastewater treatment facilities, and (3) upgrade the existing facility under DEP review at interim stages.
- The Massachusetts statute authorized civil penalties up to $25,000 per day; DEP did not immediately assess penalties but reserved the right to do so.
- Scituate worked with an engineering firm and submitted draft upgrade plans to DEP by July 1990.
- In 1989, while DEP’s administrative enforcement process was ongoing, the North and South Rivers Watershed Association (NSRWA) filed a federal citizen suit under the Clean Water Act seeking civil penalties and injunctive relief for the same underlying violations.
- The district court granted summary judgment to Scituate, concluding the citizen suit was barred by 33 U.S.C. § 1319(g)(6)(A) due to the state’s ongoing enforcement; NSRWA appealed.

## Issues

1. Whether 33 U.S.C. § 1319(g)(6)(A) bars a Clean Water Act citizen suit for civil penalties when a state has commenced and is diligently prosecuting an enforcement action under a comparable state law, even if the state has not assessed penalties.
2. Whether DEP’s order-based enforcement approach constituted “diligent prosecution” under § 1319(g)(6)(A).
3. Whether the § 1319(g)(6)(A) bar extends to citizen-suit claims for injunctive relief in addition to civil penalties.

## Decision

- The First Circuit affirmed summary judgment for Scituate.
- The court held NSRWA’s citizen suit for civil penalties was barred because DEP had commenced and was diligently prosecuting an enforcement action under state law comparable to the federal administrative penalty scheme.
- The court concluded DEP’s ongoing enforcement efforts satisfied “diligent prosecution” and declined to second-guess the agency’s chosen remedial strategy.
- The court held the statutory bar also precluded NSRWA’s request for injunctive relief because the state action addressed the same violations and additional federal relief would be duplicative.

## Legal Principles

- Under 33 U.S.C. § 1319(g)(6)(A), a Clean Water Act citizen suit is barred when a state has commenced and is diligently prosecuting an action under state law comparable to the federal administrative penalty provisions.
- A state’s “commenced” action may be an administrative enforcement proceeding, not only a judicial penalty case.
- “Diligent prosecution” does not require that the state has already imposed penalties; substantial, ongoing enforcement through orders and supervision may suffice.
- When the state is diligently pursuing comparable enforcement for the same violations, the citizen-suit bar applies to claims seeking injunctive relief as well as civil penalties to prevent duplicative enforcement.

## Conclusion

The First Circuit held that DEP’s administrative order and continuing oversight under a comparable Massachusetts enforcement scheme constituted commenced and diligent prosecution, thereby barring a federal Clean Water Act citizen suit seeking both civil penalties and injunctive relief for the same alleged violations.


N. & S. Rivers Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991)