South River Watershed Alliance v. DeKalb County, Georgia

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-13651

____________________

SOUTH RIVER WATERSHED ALLIANCE, INC.,

JACQUELINE ECHOLS,

Plaintiffs-Appellants,

versus

DEKALB COUNTY, GEORGIA,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:19-cv-04299-SDG

____________________

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2 Opinion of the Court 20-13651

Before NEWSOM, BRANCH, and BRASHER, Circuit Judges.

BRANCH, Circuit Judge:

In 2010, the United States Environmental Protection Agency

(“EPA”) and Georgia Department of Natural Resources (“GDNR”)

sued DeKalb County for violating the Clean Water Act (“CWA”).

To resolve this suit, the parties agreed to—and the court entered—

a consent decree in 2011. Eight years later, South River Watershed

Alliance, Inc. (“South River”) and Jacqueline Echols sued DeKalb

County for failing to follow the decree and violating the CWA.

The CWA authorizes citizen suits for enforcement

purposes, but such suits are not allowed when an “[a]dministrator

or State has commenced and is diligently prosecuting a civil or

criminal action . . . to require compliance with the standard,

limitation, or order[.]” 33 U.S.C. § 1365(b)(1)(B) (emphasis added).

Thus, this case turns on whether the 2011 consent decree—along

with the ongoing efforts of the EPA and GDNR to require

compliance—constitutes diligent prosecution. If so, South River’s

suit is barred; if not, South River’s suit is good to go.

The district court determined that South River’s suit was

barred by the diligent prosecution bar. On appeal, South River

argues for the opposite result and requests injunctive relief to

ensure DeKalb County’s compliance. After careful consideration,

and with the benefit of oral argument, we agree with the district

court that South River’s suit is barred by § 1365(b)(1)(B).

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I. Background

South River is “a non-profit membership organization” that

advocates “to protect and restore the water quality and

biodiversity” of the South River and Chattahoochee River

watersheds. Co-plaintiff Echols is a South River member who

enjoys these watersheds for their “aesthetic, recreational,

ecological, and biological values.”

DeKalb County owns and operates a wastewater collection

and transmission system. According to its National Pollutant

Discharge Elimination System (“NPDES”) permits, DeKalb

County is required to collect, transport, and treat wastewater

before discharging it into surface waters. South River—despite the

presence of a consent decree from an earlier government action

against DeKalb County for its CWA violations—sued DeKalb

County for violating the CWA by repeatedly spilling wastewater,

including untreated sewage, into surface waters.

A. 2010 Litigation and Consent Decree

In December 2010, the EPA and GDNR filed a complaint

against DeKalb County alleging that, since 2006, DeKalb County

had spilled untreated wastewater—in what are called “sanitary

sewer overflows”—on hundreds of occasions. Many of these

overflows resulted in the discharge of untreated sewage into the

South River and Chattahoochee watersheds. In May 2011, the

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4 Opinion of the Court 20-13651

district court allowed South River to intervene in the government

action. 1

Over South River’s objections, in December 2011, the

district court approved a consent decree executed by DeKalb

County, the United States, and the State of Georgia. United States

v. DeKalb Cnty., Ga., No. 1:10-cv-4039-WSD, 2011 WL 6402203

1 DeKalb County argues that South River is barred by res judicata from

asserting its claims in the instant appeal because South River properly

intervened in the 2010 litigation and South River could have raised the present

issues in the prior litigation. “Under res judicata, also known as claim

preclusion, a final judgment on the merits bars the parties to a prior action

from re-litigating a cause of action that was or could have been raised in that

action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001). We

have noted that,

[i]n the Eleventh Circuit, a party seeking to invoke the doctrine

[of res judicata] must establish its propriety by satisfying four

initial elements: (1) the prior decision must have been

rendered by a court of competent jurisdiction; (2) there must

have been a final judgment on the merits; (3) both cases must

involve the same parties or their privies; and (4) both cases

must involve the same causes of action.

Id. This case, however, does not involve “the same parties or their

privies,” nor “the same causes of action.” Id. With respect to the third

element, while South River may have intervened, South River was not

a party to the consent decree. See Com. Union Ins. Co. v. Westrope,

730 F.2d 729, 732 (11th Cir. 1984) (“A consent judgment is binding only

upon those parties consenting thereto.” (quoting Botz v. Helvering,

134 F.2d 538, 545 (8th Cir. 1943))). And as to the fourth element, the

claims in the instant suit could not have been raised in the 2010 suit

because the new claims are based on DeKalb County’s CWA

violations after the entry of the 2011 consent decree.

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(N.D. Ga. Dec. 20, 2011). The stated objectives of the consent

decree are for DeKalb County “to use its best efforts to prepare and

implement all plans, measures, reports, and construction,

maintenance, and operational activities . . . to achieve the goals

of: (1) full compliance with the CWA, the [Georgia Water Quality

Control Act], and the regulations promulgated thereunder, and (2)

the elimination of all [sanitary sewer overflows].” The decree

requires DeKalb County to pay a one-time civil penalty of

$453,000: $226,500 to the United States and $226,500 to the State of

Georgia. It also requires DeKalb County to expend at least

$600,000 on remedial measures benefiting areas impacted by prior

discharges.

The consent decree contains numerous provisions requiring

DeKalb County to remediate its wastewater collection and

transmission system. For example, the consent decree requires

DeKalb County to implement a comprehensive program “to

ensure effective [c]apacity, [m]anagement, [o]perations and

[m]aintenance” of the sewer system. The consent decree

establishes timelines for DeKalb County to develop and submit

certain programs and plans to the EPA or GDNR 2 for review and

approval. These programs include an emergency response plan

and a sewer mapping program to provide DeKalb County with

2The consent decree requires submission to “EPA/EPD.” As defined by the

consent decree, EPA, of course, refers to “the United States Environmental

Protection Agency,” and EPD refers to “the [GDNR] Environmental

Protection Division.”

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6 Opinion of the Court 20-13651

better information about its sewer system. The sewer

rehabilitation plan requires DeKalb County to identify “priority”

areas 3 requiring immediate improvement, submit to EPA/GDNR

a rehabilitation program for those areas, and rehabilitate those

areas within a specified timeframe. DeKalb County is also required

to identify “non-priority” areas. 4 These areas are subject to

assessment and rehabilitation under a separate program that does

not have a specific deadline for completion.

The consent decree contains other notable provisions, such

as those requiring DeKalb County to develop a “computer-based

dynamic hydraulic model” 5 with a lengthy set of requirements and

3As of 2018, the priority areas for remediation included approximately 838

miles of sewer line, representing 31% of the sewer line in DeKalb County’s

wastewater collection and transmission system. According to South River’s

amended complaint, DeKalb County has acknowledged that it will not meet

the deadline for rehabilitating priority areas, and indeed, the deadline has

passed.

4 The non-priority areas represent the remaining approximately 69% of

DeKalb County’s sewer line. South River alleges that in 2017 and 2018, “there

was a greater volume of sewage spilled in non-[p]riority [a]reas than in

[p]riority [a]reas.”

5 According to the amended complaint, “[a] sewer system hydraulic model is

a mathematical model of a fluid introduced into a wastewater sewer at various

rates and pressures. It is used to provide an understanding of the hydraulic

behavior of the system under variable conditions so utilities can make

informed decisions concerning planning and capital improvements.” A

dynamic hydraulic model is more accurate than a steady-state model, which

holds “certain parameters” constant and uses less data.

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a 2017 deadline. 6 Additionally, it requires that DeKalb County pay

prospective penalties for noncompliance and failure to timely

complete any of the specified remedial actions. For example, for

each day DeKalb County fails to meet the priority area

rehabilitation deadline, it will be charged anywhere from $1,000 to

$3,000 per day.

The consent decree also includes a disclaimer: the United

States and the State of Georgia do not “warrant or aver in any

manner that the County’s compliance with any aspect of this

Consent Decree will result in compliance with provisions of the

CWA.” It also states that it “may be terminated when [DeKalb

County] has satisfactorily completed performance of its

compliance” and “fulfilled all other material obligations of this

Consent Decree.” Finally, the consent decree provides that “[t]he

Court shall retain jurisdiction over this case until termination of

this Consent Decree, for the purpose of resolving disputes . . . or

effectuating or enforcing compliance with the terms of this

Consent Decree.” To date, the consent decree has not been

terminated.

In May 2020, the United States and the State of Georgia

moved to reopen the 2010 litigation. They agreed to certain

6 In2015, DeKalb County proposed (and the EPA approved) the use of a static

model instead of a dynamic one because the static model could be developed

and implemented more quickly. The parties to the consent decree agreed to

this change, but did not seek court permission. However, this change was

memorialized in the court-approved 2021 modifications to the consent decree.

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8 Opinion of the Court 20-13651

modifications to the consent decree: an extension of the deadlines

for the priority areas, the implementation of a new dynamic

hydraulic model that DeKalb County will use for better

management of wastewater, the addition of 103 additional priority

work projects, and the payment of additional fines for failure to

meet the original deadlines. The district court approved the

modifications in September 2021. 7

B. Procedural Background

In July 2019, South River mailed DeKalb County a notice

letter, as required under 33 U.S.C. § 1365(b), setting forth its intent

to file a citizen suit under the CWA. 8 Two months later, South

7During the public comment period for the proposed modification, South

River raised the same concerns that it puts forth in this appeal.

8 DeKalb County argues that South River did not provide sufficient pre-suit

notice under 33 U.S.C. § 1365(b)(1)(A) because South River’s notice lacked

specifics about “DeKalb’s alleged system deficiencies; . . . the requirements of

DeKalb’s MS4 Permit; . . . [and] for spills that occurred after the filing of this

lawsuit.” This argument lacks merit. Section 1365 requires pre-suit notice

before a citizen suit under the CWA. See id. The CWA’s pre-suit notice

provision states:

No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to sixty days after the plaintiff has given notice of the

alleged violation (i) to the Administrator, (ii) to the State in

which the alleged violation occurs, and (iii) to any alleged

violator of the standard, limitation, or order . . . .

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River filed a complaint against DeKalb County in the Northern

District of Georgia asserting one count of CWA violations under

§ 1311, which prohibits the non-compliant discharge of pollutants,

and § 1342, which outlines the requirements for compliant

discharges under the NPDES permit system. South River sought

broad injunctions requiring DeKalb County to “cease the discharge

of wastewater into waters of the United States . . . except in

compliance with NPDES Permits,” “take all actions necessary to

cease the illicit discharge of sewage spills,” and “comply with all

terms and conditions of coverage under its NPDES Permits.” The

complaint also requested monetary relief—civil penalties for

violations of the CWA and litigation costs and reasonable

attorney’s fees for South River.

In March 2020, DeKalb County moved to dismiss South

River’s amended complaint under Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction and, alternatively,

Id. South River sent several DeKalb County officials a notice of its intent to

sue on July 15, 2019, specifying DeKalb County’s violations for discharging

pollutants in violation of the terms of 33 U.S.C. § 1311(a). Under our

precedent and EPA regulations, the notice must include, inter alia, sufficient

information for the recipient to identify “the specific [CWA] standard,

limitation, or order alleged to have been violated, the activity alleged to

constitute a violation, the person or persons responsible for the alleged

violation, the location of the alleged violation, [and] the date or dates of such

violation.” See 40 C.F.R. § 135.3(a); Nat’l Parks & Conservation Ass’n, Inc. v.

Tenn. Valley Auth., 502 F.3d 1316, 1329 (11th Cir. 2007). South River met

these requirements by identifying DeKalb County’s sewage spills by structure,

cause, source, and date.

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10 Opinion of the Court 20-13651

under Rule 12(b)(6) for failure to state a claim upon which relief

can be granted. DeKalb County argued that the district court had

no jurisdiction to hear the claim because the consent decree and

the EPA’s enforcement of it establishes “diligent prosecution” that

bars the claim under 33 U.S.C. § 1365(b)(1)(B), which states, “[n]o

action may be commenced . . . if the Administrator or State has

commenced and is diligently prosecuting a civil or criminal action

in a court of the United States . . . to require compliance with the

standard, limitation, or order . . . .” 9 South River argued that its

claim was not barred by the diligent prosecution bar because the

consent decree did not “require compliance” with the CWA. That

is, because the consent decree did not require repairs in non-

priority areas, DeKalb County could comply with the consent

decree while still failing to comply with the CWA. South River

also pointed to DeKalb County’s admission that it would not meet

the consent decree’s deadline for priority-area rehabilitation as

further evidence of non-compliance with the CWA.

The district court determined that the diligent prosecution

bar is not jurisdictional and, therefore, Rule 12(b)(6), rather than

Rule 12(b)(1), governed. The district court then concluded that

9 DeKalb County also argued below that South River lacked standing, failed

to provide sufficient pre-suit notice, was barred by res judicata, and was

unlawfully attempting to sue to enforce the consent decree as a third party.

We address standing in Part A of the discussion section, res judicata in

footnote 1, and pre-suit notice in footnote 8. The unlawful enforcement issue

is not argued on appeal.

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South River’s claims addressed the same CWA violations that

formed the basis of the 2010 government suit that resulted in the

consent decree, and, after affording the government a “heavy

presumption of diligence,” held that the diligent prosecution bar of

§ 1365 applied and granted DeKalb County’s motion to dismiss.

South River appealed.

II. Discussion

“We review de novo the district court’s grant of a motion to

dismiss under Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim,

accepting the factual allegations in the complaint as true and

construing them in the light most favorable to the plaintiff.”

McGroarty v. Swearingen, 977 F.3d 1302, 1306 (11th Cir. 2020)

(quotations omitted). 10 “We also review issues of statutory

interpretation de novo.” United States v. Zuniga-Arteaga, 681 F.3d

1220, 1223 (11th Cir. 2012) (quotations omitted).

A. Standing

10 Because no party disputes either the authenticity or importance of the public

records attached to DeKalb County’s motion to dismiss—including charts

cataloging some of its rehabilitation programs, copies of its correspondence

with EPA regarding the imposition of civil penalties, and copies of annual

reports from the DeKalb County Department of Watershed Management—

we will consider them too. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.

2002) (“[A] document attached to a motion to dismiss may be considered by

the court without converting the motion into one for summary judgment only

if the attached document is: (1) central to the plaintiff’s claim; and (2)

undisputed.”).

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DeKalb County argues that South River and Echols lack

standing to sue. DeKalb County’s main contentions are that South

River has not been injured by DeKalb County’s CWA violations

and that, even if it has been injured, the injury is not redressable.

“The judicial power of the federal courts is limited by Article

III of the U.S. Constitution. We may exercise jurisdiction only over

‘Cases’ and ‘Controversies.’” Greater Birmingham Ministries v.

Sec’y of State for State of Ala., 992 F.3d 1299, 1316 (11th Cir. 2021)

(quoting U.S. Const. art. III, § 2). To satisfy Article III’s case or

controversy requirement, which is “the irreducible constitutional

minimum of standing, a plaintiff must, generally speaking,

demonstrate that he has suffered injury in fact, that the injury is

fairly traceable to the actions of the defendant, and that the injury

will likely be redressed by a favorable decision.” Id. (quotations

omitted). This injury must be concrete. TransUnion LLC v.

Ramirez, 141 S. Ct. 2190, 2200 (2021).

We turn first to DeKalb County’s challenge to the injury

suffered by South River. 11 An organization has standing to redress

an injury suffered by its members without showing an injury to the

association itself. See Arcia v. Fla. Sec’y of State, 772 F.3d 1335,

1342 (11th Cir. 2014) (“In order to sue on behalf of its

members . . . the rule in this Circuit is that organizational plaintiffs

11 There are two ways to establish standing for organizational plaintiffs—the

diversion-of-resources theory and the associational standing theory. Arcia,

772 F.3d at 1341. In this case, South River argues it has associational standing.

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need only establish that at least one member faces a realistic danger

of suffering an injury.” (quotations omitted)). To establish

standing to enforce the rights of its members, an organization must

show that (1) “its members would otherwise have standing to sue

in their own right,” (2) “the interests at stake are germane to the

organization’s purpose,” and (3) “neither the claim asserted nor the

relief requested requires the participation of individual members in

the lawsuit.” Id. (quoting Friends of the Earth, Inc. v. Laidlaw

Env’t Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)).

South River meets the first requirement of associational

standing—i.e., its members would have standing to sue in their

own right—because its members use the South River and

Chattahoochee watersheds for recreation and aesthetic enjoyment

and are injured when those uses are limited due to pollution. See

id.; Glynn Env’t Coal., Inc. v. Sea Island Acquisition, LLC, 26 F.4th

1235, 1241 (11th Cir. 2022) (“An individual can meet her burden of

establishing that injury at the pleading stage by attesting that [s]he

uses . . . an area affected by the alleged violations and that h[er]

aesthetic . . . interests in the area have been harmed.” (quotations

omitted)). Moreover, “the rule in this Circuit is that organizational

plaintiffs need only establish that at least one member faces a

realistic danger of suffering an injury.” Arcia, 772 F.3d at 1342

(quotation omitted); see also Summers v. Earth Island Inst., 555

U.S. 488, 498 (2009). Here, South River satisfied our requirement

by identifying one specific member, plaintiff Echols, who has

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suffered a cognizable injury because she has used the South River

and Chattahoochee watersheds less due to pollution.

As to the second requirement of associational standing—i.e.,

the “interests at stake are germane to the organization’s

purpose”—South River’s interests in this litigation qualify because

it is a nonprofit membership organization with the goal of restoring

the water quality of the Chattahoochee and South River

watersheds. Arcia, 772 F.3d at 1342.

Finally, South River meets the third requirement of

associational standing—i.e., that “neither the claim asserted nor the

relief requested requires the participation of individual members in

the lawsuit”—because South River is seeking civil penalties,

injunctive relief, and litigation costs, not damages. 12 Id.; see United

Food & Com. Workers Union Loc. 751 v. Brown Grp., Inc., 517

U.S. 544, 546 (1996) (“‘[I]ndividual participation’ is not normally

necessary when an association seeks prospective or injunctive relief

for its members [however] such participation would be required in

12 In their amended complaint, South River seeks an order requiring DeKalb

County to “pay civil penalties for violations of the CWA.” Civil penalties are

paid to the government unlike damages that would be paid to South River’s

members. Compare Damages, Black’s Law Dictionary (11th ed. 2019)

(“Money claimed by, or ordered to be paid to, a person as compensation for

loss or injury.”), with Penalty, Black’s Law Dictionary (11th ed. 2019)

(“Punishment imposed on a wrongdoer, usually in the form of imprisonment

or fine; especially, a sum of money exacted as punishment for either a wrong

to the state or a civil wrong (as distinguished from compensation for the

injured party’s loss).”).

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an action for damages to an association’s members . . . .”).

Accordingly, South River and Echols have suffered an injury in fact

for purposes of standing.

We next turn to DeKalb County’s redressability argument.

DeKalb County contends that the remedies South River seeks are

already provided for in the consent decree and the court cannot

unilaterally modify its terms. “Redressability is established,

however, when a favorable decision ‘would amount to a significant

increase in the likelihood that the plaintiff would obtain relief that

directly redresses the injury suffered.’” Harrell v. Fla. Bar, 608 F.3d

1241, 1260 n.7 (11th Cir. 2010) (quoting Utah v. Evans, 536 U.S.

452, 464 (2002)). At the motion to dismiss stage, the burden to

prove redressability is “relatively modest.” Bennett v. Spear, 520

U.S. 154, 171 (1997).

The water quality of the Chattahoochee and South Rivers

would likely be improved if the court implemented an injunction

requiring DeKalb County to take additional steps to cease the

discharge of wastewater and comply with its NPDES permits and

the CWA. Although DeKalb County is correct that the court

cannot unilaterally modify the terms of the consent decree, the

court could impose other requirements to deal with the CWA

violations. Accordingly, South River and Echols have adequately

demonstrated for purposes of the motion to dismiss stage that a

favorable decision would redress their injury. Spear, 520 U.S. at

171.

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Because South River has demonstrated injury, causation,13

and redressability, we conclude that South River has Article III

standing.

B. Jurisdiction

We now proceed to a second threshold question—this

Court’s jurisdiction over this suit. The district court held that 33

U.S.C. § 1365(b)(1)(B)’s diligent prosecution bar is not

jurisdictional. DeKalb County argues that the diligent prosecution

bar is jurisdictional and that the district court should have

dismissed the case under Rule 12(b)(1) for lack of subject matter

jurisdiction rather than under Rule 12(b)(6) for failure to state a

claim.

DeKalb County did not file a cross-appeal to raise this issue,

but we “have an independent obligation to determine whether

subject-matter jurisdiction exists, even in the absence of a challenge

from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).

“We review de novo a district court’s determination of whether it

has subject-matter jurisdiction.” Gupta v. McGahey, 709 F.3d 1062,

1064–65 (11th Cir. 2013).

13Because causation is plainly apparent, it was not contested below or in this

appeal. Nonetheless, we assess causation and conclude that South River’s

injury (i.e., pollution in the South River and Chattahoochee watersheds) is

“fairly traceable” to DeKalb County’s actions (i.e., polluting those rivers in

various ways). Greater Birmingham, 992 F.3d at 1316.

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In examining § 1365(b)(1)(B)’s diligent prosecution bar, “we

must begin, and often should end as well, with the language of the

statute itself.” United States v. Steele, 147 F.3d 1316, 1318 (11th

Cir. 1998) (en banc) (quotation omitted). Courts must look to the

plain meaning of the statute, and “presume that a legislature says

in a statute what it means and means in a statute what it says

there.” Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC,

548 F.3d 986, 990 (11th Cir. 2008) (quoting Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253–54 (1992)).

Importantly, in the jurisdictional context, the Supreme

Court has warned courts about the ill effects of “drive-by

jurisdictional rulings.” Arbaugh, 546 U.S. at 511–14. The Supreme

Court has “urged that a rule should not be referred to as

jurisdictional unless it governs a court’s adjudicatory capacity, that

is, its subject-matter or personal jurisdiction.” Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Courts such as

ours should not confuse jurisdictional rules with “claim-processing

rules” that “promote the orderly progress of litigation by requiring

that the parties take certain procedural steps at certain specified

times.” Id.; see also Wilkins v. United States, 598 U.S. __, 143 S.

Ct. 870, 876 (2023) (emphasizing the difference between “mundane

claims-processing rule[s]” and “procedural bar[s] with

jurisdictional consequences” (quotation omitted)).

To determine whether a statutory rule is jurisdictional, we

look for a clear statement from the legislature. Arbaugh, 546 U.S.

515–16. “[W]hen Congress does not rank a statutory limitation on

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coverage as jurisdictional, courts should treat the restriction as

nonjurisdictional in character.” Id. at 516; see also Henderson, 562

U.S. at 436 (“[W]e look to see if there is any clear indication that

Congress wanted the rule to be jurisdictional.” (quotations

omitted)). Rather than looking for “magic words,” courts should

look at the provision’s context and the Supreme Court’s

“interpretation of similar provisions.” Henderson, 562 U.S. at 436.

“When a long line of [the Supreme] Court’s decisions left

undisturbed by Congress has treated a similar requirement as

jurisdictional, we will presume that Congress intended to follow

that course.” Id. (quotations and internal citation omitted).

Following the analytical framework laid out in Arbaugh, in

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010), the

Supreme Court evaluated whether a provision “requir[ing]

copyright holders to register their works before suing for copyright

infringement” was jurisdictional. The Court concluded that the

provision was not jurisdictional because (a) it was “not clearly

labeled jurisdictional,” (b) it was “not located in a jurisdiction-

granting provision,” and (c) not all statutory conditions requiring

action before filing a lawsuit are “jurisdictional prerequisite[s].” Id.

at 166.

Similarly, in Henderson, the Supreme Court determined

that a statutory requirement—requiring veterans to “file a notice

of appeal with the Veterans Court within 120 days”—was not

jurisdictional. 562 U.S. at 431. The Court first looked to the

provision for any “jurisdictional terms or refer[ences],” and

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determined that there were none. Id. at 438. Next, the Court noted

that the time limit was located within a subchapter entitled

“Procedure,” which was especially probative because a separate

provision within that same subchapter was captioned “Jurisdiction;

finality of decisions” and did not mention the time limit for appeals.

Id. at 439–40. Accordingly, the Court held that the provision “does

not have jurisdictional attributes.” Id. at 441.

Subsection (b) of § 1365, which is entitled “Notice,” states

that “[n]o action may be commenced” if the EPA administrator or

a state “has commenced and is diligently prosecuting a civil or

criminal action in a court of the United States, or a State to require

compliance with the standard, limitation, or order . . . .” 33 U.S.C.

§ 1365(b)(1)(B). Clearly, the diligent prosecution bar in subsection

(b)—under the “Notice” heading—is not labeled as jurisdictional

which is important because Congress labelled subsection (a)

“Authorization; [j]urisdiction,” but chose not to label the diligent

prosecution bar in the same way. See id. § 1365(a); Henderson, 562

U.S. at 439–40. Accordingly, because Congress deliberately located

§ 1365(b)(1)(B) outside the jurisdiction-granting provision, we

must treat the notice requirement as nonjurisdictional. See 33

U.S.C. § 1365(b); Henderson, 562 U.S. at 439–40; Arbaugh, 546 U.S.

at 516 (“[W]hen Congress does not rank a statutory limitation on

coverage as jurisdictional, courts should treat the restriction as

nonjurisdictional in character.”).

Looking to our sister circuits to see how they have answered

this question, opinions are split. While the First, Third, and Fifth

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20 Opinion of the Court 20-13651

Circuits have expressly held that the diligent prosecution bar is not

jurisdictional, 14 the Fourth, Seventh, and Tenth Circuits have held

that 33 U.S.C. § 1365(b) is jurisdictional. 15 Most of the

jurisdictional-side cases predated Arbaugh, however. See

Chesapeake Bay Found. v. Am. Recovery Co., 769 F.2d 207, 208

(4th Cir. 1985); Friends of Milwaukee’s Rivers v. Milwaukee Metro.

14 See Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 72 (1st

Cir. 2021) (“For these reasons, we agree with the district court that the CWA’s

diligent prosecution bar is a mandatory claims-processing rule that does not

implicate subject matter jurisdiction.”); Grp. Against Smog & Pollution, Inc.

v. Shenango Inc., 810 F.3d 116, 123 (3d Cir. 2016) (“We conclude that the

diligent prosecution bar of the Clean Air Act [which is identical to the CWA’s

diligent prosecution bar] is not a jurisdictional limitation.”); La. Env’t Action

Network v. City of Baton Rouge, 677 F.3d 737, 749 (5th Cir. 2012) (“[W]e hold

that the diligent prosecution bar is a nonjurisdictional limitation on citizen

suits.” (quotation omitted)).

15 Chesapeake Bay Found. v. Am. Recovery Co., 769 F.2d 207, 208 (4th Cir.

1985) (explaining that § 1365(b)(1)(B)’s “statutory bar is an exception to the

jurisdiction granted in subsection (a) of § 1365, and jurisdiction is normally

determined as of the time of the filing of a complaint”); Friends of Milwaukee’s

Rivers & All. for Great Lakes v. Milwaukee Metro. Sewerage Dist. (“Friends

II”), 556 F.3d 603, 606 (7th Cir. 2009) (“The Act strips the courts of subject

matter jurisdiction over citizens’ suits where the State has timely commenced

judicial or administrative enforcement actions.”); Paper, Allied-Indus., Chem.

& Energy Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1298 (10th

Cir. 2005) (referring to § 1365(b)(1)(B) as a “jurisdiction-stripping provision”).

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20-13651 Opinion of the Court 21

Sewerage Dist. (“Friends I”), 382 F.3d 743, 754–55 (7th Cir. 2004); 16

Paper, Allied-Indus., Chem. & Energy Workers Int’l Union v.

Cont’l Carbon Co., 428 F.3d 1285, 1298 (10th Cir. 2005). As such,

and because they align with our text-based inclination above, we

follow the well-reasoned post-Arbaugh opinions of the First, Third,

and Fifth Circuits. See Cebollero-Bertran v. P.R. Aqueduct &

Sewer Auth., 4 F.4th 63, 72 (1st Cir. 2021); Grp. Against Smog &

Pollution, Inc. v. Shenango Inc., 810 F.3d 116, 123 (3d Cir. 2016);

La. Env’t Action Network v. City of Baton Rouge, 677 F.3d 737,

749 (5th Cir. 2012).

Simply put, because Congress has not clearly stated that the

diligent prosecution bar is jurisdictional and other indicators of

meaning also indicate that the provision is nonjurisdictional, we

hold that § 1365(b)(1)(B)’s diligent prosecution bar is not

jurisdictional. Thus, the district court was correct in evaluating the

diligent prosecution bar under Rule 12(b)(6), rather than Rule

12(b)(1).

16 Of note, this case returned to the Seventh Circuit three years after the 2006

Arbaugh decision. 546 U.S. at 500. In Friends II, the Seventh Circuit did not

change its determination that the diligent prosecution bar was jurisdictional in

light of Arbaugh. 556 F.3d at 606. The Seventh Circuit only mentioned the

jurisdictional nature of § 1365(b)(1)(B) in passing because the state’s actions

were commenced after the citizen suit was initiated (i.e., the diligent

prosecution bar would not have been triggered anyway). Id.

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22 Opinion of the Court 20-13651

C. Diligent Prosecution Bar

The district court undertook a “two-part inquiry” to

determine whether South River’s case was barred by the diligent

prosecution bar:

First, a court must determine whether a prosecution

by the state (or the EPA Administrator) to enforce the

same “standard, order, or limitation” was pending on

the date that the citizens’ suit commenced. Second,

if the answer to the previous question is affirmative,

a court must also determine whether the prior

pending action was being “diligently prosecuted” by

the state [or EPA] at the time that the citizens’ suit

was filed.

See, e.g., Ohio Valley Env’t Coal., Inc. v. Maple Coal Co., 808 F.

Supp. 2d 868, 883 (S.D. W. Va. 2011). In answering those

questions, the district court determined that the consent decree

already addressed the “standard, order, or limitation” that South

River sought to enforce with its citizen suit and that the

prosecution of the consent decree was diligent enough to bar South

River’s citizen suit. We have not adopted this two-part framework

before, but because the test stems directly from the statutory

language and proves helpful in breaking the question into its

component parts, we follow suit.

We address the first step of the analysis (i.e., whether there

is prosecution by the government to enforce the CWA) by noting

that South River has not argued that the EPA and GDNR are not

prosecuting. Rather, South River has focused on step two by

arguing that the existing consent decree does not constitute

“diligent prosecution” because the decree’s requirements are too

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20-13651 Opinion of the Court 23

relaxed to qualify as “diligent.” Accordingly, we do not belabor the

point—we think it clear that the EPA and GDNR have been

prosecuting the consent decree to enforce the CWA.17

We now move to step two and consider whether the

government’s prosecution has been “diligent” enough.

We begin step two by answering a threshold question that

affects the rest of our analysis: What level of deference, if any,

should we apply in determining whether the government’s

prosecution has been diligent? South River argues that the level of

deference the district court applied—a “heavy presumption of

diligence”—is contrary to the plain meaning of § 1365(b)(1)(B).

DeKalb County, however, argues that a “heavy presumption of

diligence” is appropriate because of the “intended role of the State

17 Step one also considers whether the government’s prosecution addresses the

same standard or limitation that the citizen suit seeks to remedy. Ohio Valley,

808 F. Supp. 2d at 883 (“First, a court must determine whether a prosecution

by the state (or the EPA Administrator) to enforce the same ‘standard, order,

or limitation’ was pending on the date that the citizens’ suit commenced.”

(emphasis added)). We agree with the district court that the issues South River

raises in its instant suit overlap completely with the issues covered by the

consent decree. That is, South River alleges that DeKalb County is violating

the CWA by continuing to spill sewage at unacceptable rates—which is exactly

what the consent decree seeks to remedy: “The express purpose [of the

consent decree] is for [DeKalb County] to use its best efforts . . . to achieve the

goals of: (1) full compliance with the CWA . . . and (2) the elimination of all

[sanitary sewer overflows].” To the extent that South River argues the

consent decree has been insufficient and that the EPA and GDNR have fallen

short, we consider that argument under step two (whether prosecution has

been “diligent”).

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24 Opinion of the Court 20-13651

as the primary enforcer of the [CWA]” and “the fact that courts are

not in the business of designing, constructing or maintaining

sewage treatment systems.”

The district court, agreeing with DeKalb County, applied a

“heavy presumption of diligence” to find that the government was

“diligently prosecuting” the civil action, such that South River’s

action was barred by § 1365(b)(1)(B). The district court’s “heavy

presumption of diligence” standard originated in a 1986 district

court case from Connecticut involving § 1365, which held that

“[t]he court must presume the diligence of the state’s prosecution

of a defendant absent persuasive evidence that the state has

engaged in a pattern of conduct in its prosecution of the defendant

that could be considered dilatory, collusive or otherwise in bad

faith.” Conn. Fund for Env’t v. Cont. Plating Co., 631 F. Supp.

1291, 1293 (D. Conn. 1986). 18

The First, Second, Third, Fourth, Seventh, and Tenth

Circuits all grant varying degrees of deference, ranging from a low

of “some deference” to a high of “presumed” diligence. See

Cebollero-Bertran, 4 F.4th at 74 (“The CWA’s diligent prosecution

bar emphasizes the primacy of government agencies in enforcing

18 The district court’s decision does not explain the origin of this presumption,

but later courts have attempted to piece together its underpinnings. See, e.g.,

Friends I, 382 F.3d at 760 (“We surmise that this presumption is due not only

to the intended role of the State as the primary enforcer of the [CWA], but

also to the fact that courts are not in the business of designing, constructing or

maintaining sewage treatment systems.” (internal citation omitted)).

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20-13651 Opinion of the Court 25

clean water standards. . . . We grant considerable, although not

unlimited, deference to the agency’s plan of attack.” (quotation and

internal citation omitted)); Atl. States Legal Found., Inc. v.

Eastman Kodak Co., 933 F.2d 124, 128 (2d Cir. 1991) (directing the

district court to grant “some deference to the judgment of the state

authorities”); Grp. Against Smog, 810 F.3d at 130 (“We note that

the government’s prosecution is entitled to great deference.”);

Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., Md., 523

F.3d 453, 459 (4th Cir. 2008) (“A CWA enforcement prosecution

will ordinarily be considered diligent if the judicial action is capable

of requiring compliance with the Act and is in good faith calculated

to do so, and as the Association acknowledges in its opening brief,

diligence is presumed.” (quotations omitted)); Friends I, 382 F.3d

at 760 (“We recognize that diligence on the part of the State is

presumed.”); Karr v. Hefner, 475 F.3d 1192, 1198 (10th Cir. 2007)

(“In sum, our evaluation of the EPA’s diligence is quite deferential.

Citizen-plaintiffs must meet a high standard to demonstrate that it

has failed to prosecute a violation diligently.”). We agree with our

sister circuits that some level of deference is appropriate, but our

conclusion is rooted primarily in the Supreme Court’s observations

about the role of citizen suits.

In Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49, 60 (1987), the Supreme Court

instructed that citizen suits are meant to “supplement rather

than . . . supplant governmental action.” In other words,

“[p]ermitting citizen suits for wholly past violations of the [CWA]

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26 Opinion of the Court 20-13651

could undermine the supplementary role envisioned for the citizen

suit.” Id. Accordingly, permitting citizen suits and federal courts

to second-guess the enforcement decisions of the EPA and state

environmental agencies would be improper. See id. Digging in

further, the Supreme Court has explained how citizen suits could

undermine ongoing executive enforcement actions:

Suppose . . . that the Administrator agreed not to

assess or otherwise seek civil penalties on the

condition that the violator take some extreme

corrective action, such as to install particularly

effective but expensive machinery, that it otherwise

would not be obliged to take. If citizens could file

suit, months or years later, in order to seek the civil

penalties that the Administrator chose to forgo, then

the Administrator’s discretion to enforce the [CWA]

in the public interest would be curtailed considerably.

The same might be said of the discretion of state

enforcement authorities. Respondents’

interpretation of the scope of the citizen suit would

change the nature of the citizens’ role from interstitial

to potentially intrusive. We cannot agree that

Congress intended such a result.

Id. at 60–61.

Stated differently, “when the EPA chooses to enforce the

CWA through a consent decree, failure to defer to its judgment

[could] undermine agency strategy.” Karr, 475 F.3d at 1197. For

this reason, “[i]t would be unreasonable and inappropriate to find

failure to diligently prosecute simply because [the defendant]

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20-13651 Opinion of the Court 27

prevailed in some fashion or because a compromise was reached.”

Ark. Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir.

1994). In sum, because we must follow the Supreme Court’s

instruction as to citizen suits and we agree with our sister circuits’

well-reasoned decisions, we analyze “diligence” with at least some

deference to the judgments of the EPA and GDNR.19

With the deference question answered to the extent

necessary, we now determine diligence in this case. As a starting

point, we note that the diligent prosecution bar “does not require

government prosecution to be far-reaching or zealous; ”rather, “[i]t

requires only diligence.” Karr, 475 F.3d at 1197. Accordingly, in

examining diligence, we look to see “whether [the consent decree]

is capable of requiring compliance with [the CWA]” and “is in good

faith calculated to do so.” Friends I, 382 F.3d at 760. And, critically,

diligence is in no way tied to whether the government could have

been more aggressive in its negotiations with the polluter. See

Piney Run Pres. Ass’n, 523 F.3d at 459 (“[A] citizen-plaintiff cannot

overcome the presumption of diligence merely by showing that

the agency’s prosecution strategy is less aggressive than he would

like or that it did not produce a completely satisfactory result.”).

We turn first to the consent decree itself because the terms

of the decree are the building blocks of our analysis. The consent

decree’s express goal is for DeKalb County to achieve “full

compliance with the CWA” and eliminate all its sanitary sewer

19 Because we hold, infra, that the EPA and GDNR are diligently prosecuting

a civil action to require compliance even with the lowest level of deference

recognized by our sister circuits—“some deference”—we need not decide

exactly what level of deference is required under the statute.

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28 Opinion of the Court 20-13651

overflows. The provisions of the consent decree—from the

penalties imposed on DeKalb County to the requirements that it

implement various programs to stop future overflows and

rehabilitate affected areas—support those goals. Indeed, the

district court only approved the consent decree because it was

capable of remedying DeKalb County’s CWA violations: “The

Consent Decree addresses and substantially resolves violations of

the CWA . . . by [DeKalb County] and is calculated to bring

[DeKalb County’s] sewer infrastructure into compliance with the

CWA.”

The consent decree’s goals alone are not enough, however,

and we must also examine whether the EPA and GDNR have been

diligent in overseeing the consent decree and requiring DeKalb

County to live up to its end of the bargain. Ohio Valley, 808 F.

Supp. 2d at 883 (“Second, [at step two,] a court must also determine

whether the prior pending action was being ‘diligently prosecuted’

by the state at the time that the citizens’ suit was filed.”). We

conclude that the EPA and GDNR have done more than enough

to meet the diligence threshold.

First, we conclude that the EPA and GDNR have been

diligent as evidenced by their continued penalization—according

to the terms of the consent decree—of DeKalb County for

noncompliance. See Piney Run Pres. Ass’n, 523 F.3d at 461

(considering the fact that a consent decree imposed “a daily fine”

for the county’s failure to comply with certain requirements as part

of its conclusion that there was diligent prosecution). When it

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20-13651 Opinion of the Court 29

initially entered into the consent decree, DeKalb County had to pay

a large civil penalty to the EPA and GDNR.20 More important to

showing the government’s continued diligence, however, is the

fact that each year, from 2012 to 2018, the EPA and GDNR have

assessed penalties totaling nearly one million dollars against

DeKalb County for its reported spills. 21 The EPA and GDNR have

been diligent in monitoring DeKalb County’s progress and

assessing sizeable fines to compel DeKalb County to comply with

the consent decree.

South River disputes that the consent decree’s penalty

mechanism shows diligence because there is an economic

incentive for DeKalb County to avoid remedying its CWA

violations. That is, South River contends that it is cheaper for

DeKalb County to merely pay the fines than invest in sound

infrastructure. This argument is exactly the type of argument

foreclosed by § 1365(b)(1)(B) because it second-guesses the

compromise negotiated by the EPA and GDNR. See Ark. Wildlife,

29 F.3d at 380 (“It would be unreasonable and inappropriate to find

failure to diligently prosecute simply because . . . a compromise

20In addition to its upfront penalty payment, the consent decree required

other large-scale expenditures from DeKalb County including at least $600,000

on a supplemental environmental project.

21 Further, the modifications to the consent decree also include that

“EPA/[GDNR] have determined that it is appropriate to assess, and [DeKalb

County] agrees to pay, an additional civil penalty which addresses [DeKalb

County’s] failure to implement the Consent Decree obligations in accordance

with the original Consent Decree and the Spills from its WCTS through 2019.”

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30 Opinion of the Court 20-13651

was reached.”). Here, for example, the EPA chose to grant lower

penalties in exchange for increased reporting requirements and

other concessions from DeKalb County, and a citizen suit would

interfere with that decision. See Piney Run Pres. Ass’n, 523 F.3d at

461 (“As we have noted, [concessions or exchanges for other

obligations are] precisely the type of discretionary matter to which

we should defer.”). Finally, as we emphasized previously,

“[s]ection 1365(b)(1)(B) does not require government prosecution

to be far-reaching or zealous,” but rather “requires only diligence.”

Karr, 475 F.3d at 1197 (emphasis added). Whether South River

agrees with the amount of the annual fines levied against DeKalb

County is inconsequential because it is clear that the EPA and

GDNR have been diligent in monitoring DeKalb County and

imposing penalties for its noncompliance.

Second, we draw on the consent decree’s terms that provide

for the court to retain jurisdiction 22 and spell out the proper dispute

resolution framework because we have seen the EPA and GDNR

use these terms to diligently modify the consent decree. See Grp.

Against Smog, 810 F.3d at 129–30 (finding diligent prosecution

when a consent decree contained similar provisions—including a

continuing jurisdiction provision and a provision allowing the

22 Specifically, the consent decree provides that: “The Court shall retain

jurisdiction over this case until termination of this Consent Decree, for the

purpose of resolving disputes arising under this Consent Decree or entering

orders modifying this Consent Decree, pursuant to Sections XII and XIX, or

effectuating or enforcing compliance with the terms of this Consent Decree.”

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20-13651 Opinion of the Court 31

government to “seek court intervention in the event of continuing

violations”—because the “principal enforcement mechanism[s]”

were in place so that a citizen suit would have been improperly

duplicitous). While South River argues that the modifications to

the consent decree—specifically the modifications to the hydraulic

modelling requirements—show a lack of diligence, we reach the

opposite conclusion.23 See Piney Run Pres. Ass’n, 523 F.3d at 461

(“As we have noted, [concessions or exchanges for other

obligations are] precisely the type of discretionary matter to which

we should defer.”). By engaging with DeKalb County throughout

its pursuit of a better hydraulic model,24 the EPA and GDNR made

23Similarly, further evidence of diligent prosecution arose in 2020, when the

United States and Georgia filed a motion to reopen the case. The government

did so to “apprise the Court of significant developments in this case, in

anticipation of possible actions consistent with the Court’s retained

jurisdiction . . . of the Consent Decree.” The parties agreed to modify the

consent decree to increase the number of projects required of DeKalb County

and the amount of penalties owed. Under the modification, DeKalb County

must pay an “additional civil penalty” for failure to comply with the original

consent decree schedule, complete 103 additional priority work projects, and

implement a new program to ensure the wastewater system has adequate

capacity to manage wastewater flows. These increased penalties and remedial

programs show an ongoing and diligent effort by the EPA and GDNR to

prosecute DeKalb County for its violations of the CWA.

24 Relatedly, South River also argues that the EPA and GDNR are not

diligently prosecuting because they have allowed modifications to the

hydraulic model required under the consent decree so as to “delay [the

modeling process] by a still unknown number of years.” Even if we were to

assume that South River’s argument does not suffer from the same problem

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32 Opinion of the Court 20-13651

certain tradeoffs that it felt were best in order to speed up the repair

process. To the extent that modelling accuracy was a casualty in

the negotiations (as South River argues), we are unable to conclude

that implementing a less accurate system more quickly, on the one

hand, is better than implementing a more accurate system that

would take longer to implement, on the other. And, in any event,

such a technically-dense determination is far outside our bailiwick

as federal judges.

Third, and critically because the burden is on South River to

overcome the deference we afford to the government in this

context, we find the rest of South River’s arguments unpersuasive.

We address them in turn.

According to South River, the consent decree does not

require “compliance” with DeKalb County’s NPDES permits or

the CWA because the consent decree imposes no timeline or

deadline requiring DeKalb County to stop the spills or repair the

sewer system in non-priority areas. 25 But there is no such

as its other arguments (i.e., the EPA and GDNR have discretion—especially

given the technical complexity in this context), this consideration would not

weigh heavily enough in South River’s favor to overcome the combination of

(a) the deference afforded to the government and (b) the numerous examples

of the government’s diligence that we have already considered.

25 The parties agree that non-priority areas encompass most of DeKalb

County’s sewer lines and are subject to a rehabilitation program that does not

have a specific deadline or timeline for completion, unlike the priority areas

that had an initial deadline of eight and one-half years. The consent decree

covers the same non-priority areas at issue here.

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20-13651 Opinion of the Court 33

requirement in statute or case law. A mere lack of a date-certain

compliance deadline is not dispositive because the consent decree

contains other ongoing compliance requirements: DeKalb County

must report all spills quarterly, semi-annually, and annually, and

pay hefty fines for spills in both priority and non-priority areas. See

Piney Run Pres. Ass’n, 523 F.3d at 461 (determining that the

“absence of a final compliance deadline” did not indicate a lack of

diligence in part because the consent decree had other

requirements such as “immediate compliance with the thermal

limitation” and “daily fine[s] for its violations”). The ability to

designate some areas as priority with a deadline and some as non-

priority 26 without a deadline is the type of discretionary decision

that deserves deference.

Finally, South River argues that a consent decree can bar a

citizen suit only when it “is stringent enough to prevent sewage

26 South River also points to boilerplate language in paragraph 95 of the

consent decree as evidence that the EPA did not intend the consent decree to

require DeKalb County’s compliance in non-priority areas. Paragraph 95

states, “The United States and the State do not, by their consent to the entry

of this Consent Decree, warrant or aver in any manner that the County’s

compliance with any aspect of this Consent Decree will result in compliance

with provisions of the CWA . . . .” South River’s argument is not persuasive.

Setting aside the fact that the language is boilerplate language, we cannot

conclude that paragraph 95 is a better indication of the consent decree’s

purpose than the language defining the decree’s purpose to be achieving “full

compliance with the CWA.” At absolute best, the goal provision and

paragraph 95 offset one another which is not enough to move the needle in

South River’s favor.

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34 Opinion of the Court 20-13651

spills and other [CWA] violations.” However, the authority South

River cites for this rule—Friends II—states something different. In

Friends II, the Seventh Circuit explained that “a diligent

prosecution analysis requires more than mere acceptance at face

value of the potentially self-serving statements of a state agency

and the violator with whom it settled regarding their intent with

respect to the effect of the settlement”; instead, courts must

“engage[] in a substantive analysis of whether the [settlement

between the state and violator] was capable of requiring

compliance with the [CWA] and was in good faith calculated to do

so.” 556 F.3d at 606 (emphasis added) (quotations omitted).

Friends II does not state that a consent decree can bar a citizen suit

only if it prevents all future CWA violations. Rather, it stands for

the proposition that the consent decree must be capable of

requiring compliance. The consent decree in the instant case

satisfies this standard because its express goal is “full compliance

with the CWA,” its requirements support that goal, and—as

explained above—it has been diligently prosecuted by the

government.

III. Conclusion

At bottom, South River wants the current consent decree

discarded in favor of a more muscular alternative. The fact that

South River disagrees with the prosecution strategy undertaken by

the EPA and GDNR, however, is not enough to prove that the EPA

and GDNR have failed to diligently prosecute DeKalb County’s

CWA violations. To the contrary, the record shows that the EPA

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20-13651 Opinion of the Court 35

and GDNR have been diligent which means that South River’s suit

is barred under 33 U.S.C. § 1365(b)(1)(B). Accordingly, we affirm

the district court’s grant of DeKalb County’s motion to dismiss.

AFFIRMED.

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20-13651 Newsom, J., Concurring 1

NEWSOM, Circuit Judge, concurring:

I concur in the Court’s judgment and join the majority

opinion. A brief word about the Clean Water Act’s so-called

“diligent-prosecution bar”: In relevant part, that provision states

that “[n]o [citizen-suit] may be commenced . . . if the [EPA]

Administrator or State has commenced and is diligently

prosecuting a civil . . . action in a court of the United States . . . to

require compliance with” any of the Act’s requirements. 33 U.S.C.

§ 1365(b)(1)(B). As the majority opinion explains, the sole basis for

South River’s contention that § 1365(b)(1)(B)’s bar doesn’t apply

here is that the government’s conduct of its civil-enforcement

action hasn’t been “diligent.” South River hasn’t argued that, at

the time it filed its citizen suit, the government was not, in the

statute’s terms, “prosecuting a civil . . . action in a court of the

United States” at all.

Speaking only for myself, I’ll just say that if South River had

made that argument, I think it’d be a close question, at least as a

matter of statutory interpretation. Section 1365(b)(1)(B) is framed

in the present tense: “is diligently prosecuting.” At the time South

River filed its citizen suit in September 2019, the government’s

civil-enforcement action had already gone to judgment, a consent

decree had been entered, and the “[c]ivil [c]ase [had been]

terminated.” Doc. 39, United States v. DeKalb County, No. 1:10-

CV-4039. The threshold § 1365(b)(1)(B) question would then turn

on whether the government’s ongoing enforcement of its consent

decree constituted present “prosecuti[on]” or whether, instead,

USCA11 Case: 20-13651 Document: 47-1 Date Filed: 05/31/2023 Page: 37 of 37

2 Newsom, J., Concurring 20-13651

prosecution and enforcement are different things—i.e., whether,

perhaps, one prosecutes a case in order to obtain a judgment and

then, having gotten it, proceeds to enforce it. I can see reasonable

arguments going both ways.

In any event, it’s neither here nor there because South River

hasn’t made the “is . . . prosecuting” argument, but rather has

focused solely on whether the government’s prosecution has been

“diligent.” The Court correctly concludes that it has been.