## Facts

- DeKalb County, Georgia owned and operated a wastewater collection and transmission system subject to Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permits.
- In 2010, the U.S. Environmental Protection Agency (EPA) and the Georgia Department of Natural Resources (GDNR) sued DeKalb for CWA and state-law violations based on repeated sanitary sewer overflows discharging untreated sewage into the South River and Chattahoochee watersheds.
- In 2011, the federal court entered a consent decree resolving the government action, requiring DeKalb to use best efforts toward full CWA compliance, implement extensive remediation, pay civil penalties, fund specified remedial measures, and accept stipulated penalties for missed deadlines or noncompliance.
- EPA and GDNR retained ongoing oversight and enforcement roles under the decree, including monitoring compliance and assessing stipulated penalties.
- In 2019, South River Watershed Alliance, Inc. and a member, Jacqueline Echols, filed a CWA citizen suit alleging continuing NPDES permit violations from ongoing wastewater spills and sought civil penalties and injunctive relief.
- DeKalb moved to dismiss under Rule 12(b)(6), arguing the suit was barred by the CWA diligent-prosecution bar because the government action and consent decree were being enforced.
- The district court dismissed the citizen suit, and plaintiffs appealed.

## Issues

1. Whether the CWA diligent-prosecution bar, 33 U.S.C. § 1365(b)(1)(B), precludes a citizen suit when EPA and a state agency have an earlier enforcement case resolved by a consent decree that is actively overseen and enforced.
2. Whether a consent decree qualifies as an action “to require compliance” when it phases remediation and does not mandate immediate full compliance across all portions of the sewer system.

## Decision

- The Eleventh Circuit affirmed dismissal of the citizen suit.
- The court held that the earlier EPA/GDNR enforcement action and the 2011 consent decree constituted a civil action “to require compliance” with the CWA.
- The court held that EPA and GDNR were “diligently prosecuting” the matter through ongoing oversight and enforcement of the consent decree.
- Because the government action satisfied § 1365(b)(1)(B), the citizen suit was barred, including requests for injunctive relief that would effectively add to or alter the remedial scheme set by the decree.

## Legal Principles

- A CWA citizen suit is barred when the Administrator or a state has commenced and is diligently prosecuting a civil or criminal action “to require compliance” with the relevant standard, limitation, or order. 33 U.S.C. § 1365(b)(1)(B).
- A consent decree entered in a prior government enforcement action can qualify as an action “to require compliance” where it imposes remedial obligations, penalties, and enforceable deadlines, and where agencies continue to monitor and enforce compliance.
- Courts apply a deferential approach to the diligence inquiry; the statute does not require the government to pursue the precise enforcement strategy or timing preferred by private plaintiffs.
- The diligent-prosecution bar can preclude citizen-suit remedies that would functionally override, expand, or reconfigure the government’s ongoing enforcement plan embodied in a consent decree.

## Conclusion

The Eleventh Circuit held that EPA and GDNR’s ongoing enforcement of a consent decree aimed at bringing DeKalb’s sewer system into CWA compliance constituted diligent prosecution under § 1365(b)(1)(B), thereby barring overlapping citizen-suit enforcement seeking additional penalties or injunctive measures.


South River Watershed Alliance, Inc. v. DeKalb County, 69 F.4th 809 (11th Cir. 2023)