484 F.Supp.3d 1353
N.D. Ga.2020Background
- Plaintiffs South River Watershed Alliance and member Jacqueline Echols challenge repeated discharges of untreated sewage from DeKalb County’s Water Collection and Transmission System (WCTS) into local waterways and seek relief under the Clean Water Act (CWA).
- The United States and Georgia sued DeKalb in 2010; that case settled in a 2011 Consent Decree requiring rehabilitation programs (CMOM, PASARP), stipulated penalties, and deadlines (e.g., priority-area rehabilitation within 8.5 years; integration of dynamic hydraulic models by Dec. 20, 2017).
- Plaintiffs allege hundreds of overflows since entry of the Consent Decree (over 800 reported spills since July 2014) and contend DeKalb missed the dynamic-model deadline and the priority-area deadline, and that many non-priority areas lack any timetable.
- Plaintiffs gave pre-suit notice in July 2019 and filed a citizen suit in Sept. 2019. DeKalb moved to dismiss, arguing the EPA’s and Georgia EPD’s prior enforcement (2010 suit and ongoing enforcement under the Consent Decree) means the CWA’s “diligent prosecution” bar prevents the citizen suit.
- The court denied DeKalb’s motion to strike certain expert materials (treating it as an evidentiary objection) but granted DeKalb’s motion to dismiss: it held the citizen suit is barred because the government has been diligently prosecuting enforcement of the same standards addressed in the Consent Decree.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the CWA’s "diligent prosecution" bar prevents the citizen suit | The Consent Decree and government enforcement are insufficient; EPA/EPD are not diligently prosecuting DeKalb’s ongoing violations | The 2010 suit, 2011 Consent Decree, and subsequent enforcement/fines show the government has commenced and is diligently prosecuting enforcement | Held: The citizen suit is barred — plaintiffs failed to plausibly allege that the government is not diligently prosecuting enforcement of the same standards |
| Whether the diligent-prosecution bar is jurisdictional (12(b)(1)) or a merits/claim-processing limitation (12(b)(6)) | Treat as jurisdictional prerequisite to suit | Treat as non-jurisdictional; analyze as an element/limitation on the citizen suit | Held: Non-jurisdictional; Rule 12(b)(6) standard applies (court follows Fifth Circuit reasoning) |
| Whether the 2011 Consent Decree alone immunizes DeKalb from citizen suits | Consent Decree does not bind third parties and thus cannot automatically bar citizen suits | Consent Decree and related enforcement show government enforcement that bars citizen suits | Held: A consent decree alone does not automatically bar suits; court must assess whether government is diligently prosecuting — here the government’s ongoing enforcement sufficed |
| Whether DeKalb’s motion to strike expert materials should be granted | Plaintiffs: materials are within authors’ knowledge and relevant | DeKalb: the materials are speculation and irrelevant | Held: Motion to strike denied; court treated it as an evidentiary objection and considered probative value without converting the motion to summary judgment |
Key Cases Cited
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (framework for CWA citizen suits and limits)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishing jurisdictional rules from claim-processing rules)
- La. Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737 (5th Cir. 2012) (diligent-prosecution bar is nonjurisdictional)
- Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., 523 F.3d 453 (4th Cir. 2008) (diligence presumed; government action is judged deferentially)
- Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist., 382 F.3d 743 (7th Cir. 2004) (courts should probe agency assertions but defer to government enforcement strategy)
- City of Dallas v. Envtl. Conservation Org., 529 F.3d 519 (5th Cir. 2008) (consent decrees do not automatically preclude citizen suits where violations may continue)
- Karr v. Hefner, 475 F.3d 1192 (10th Cir. 2007) (high burden for citizen-plaintiffs to show non-diligence; defer to agency expertise)