Petition for Writ of Certiorari — Dakota Finance LLC, dba Arabella Farm, et al., Petitioners v. Naturaland Trust, et al.

No. ____________

In The

Supreme Court of the United States

____________________

DAKOTA FINANCE LLC, d/b/a Arabella Farm;

KEN SMITH; SHARON SMITH;

WILLARD R. LAMNECK, JR.,

Petitioners,

v.

NATURALAND TRUST; SOUTH CAROLINA

TROUT UNLIMITED; UPSTATE FOREVER,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

FRANK D. GARRISON

Counsel of Record

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

FGarrison@pacificlegal.org

ELIZABETH B. PARTLOW

Law Offices of Elizabeth B.

Partlow, LLC

1800 Platt Springs Rd.

West Columbia, SC 29169

Telephone: (803) 814-0868

beth@partlowlaw.com

Damien M. Schiff

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

DSchiff@pacificlegal.org

Adam B. Lambert

Acker Lambert Hinton, P.A.

859 Pendleton St.

P.O. Box 9

Pickens, SC 29671

Telephone: (864) 878-1184

adam@alhfirm.com

Counsel for Petitioners

i

QUESTION PRESENTED

The Clean Water Act allows citizens to sue any

person alleged to be in violation of an “effluent

standard or limitation” under the Act. 33 U.S.C.

§ 1365(a). Because these “citizen suits” are meant to

“supplement” not “supplant” the States’ primary role

in regulating water quality, Gwaltney of Smithfield,

Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60

(1987), Congress has barred them when a State has

“commenced” and is “diligently prosecuting” an

administrative penalty action “under a State law

comparable to” the Clean Water Act’s administrative

penalty provisions. 33 U.S.C. § 1319(g)(6)(A)(ii)

(“diligent prosecution bar”). Over the last several

decades, the Courts of Appeals have issued conflicting

rules on how “comparable” a State’s law must be to

trigger the bar. For example, the First and Eighth

Circuits apply a deferential “overall comparability”

test, while the Tenth and Eleventh Circuits employ a

stricter “rough comparability” test, with still other

Circuits applying variants of the two.

Here, a divided panel of the Fourth Circuit

adopted a third and even more demanding standard,

according to which the diligent prosecution bar does

not preclude citizen suits unless a State’s enforcement

regime exactly follows the Clean Water Act’s

administrative penalty provisions and implementing

regulations.

The question presented is:

What is the proper test for determining whether

the “diligent prosecution bar” under 33 U.S.C.

§ 1319(g)(6)(A)(ii) precludes citizen suits brought

under 33 U.S.C. § 1365(a)?

ii

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioners are Dakota Finance, LLC d/b/a

Arabella Farm, Ken Smith, Sharon Smith, and

Willard R. Lamneck, Jr. Respondents are Naturaland

Trust, South Carolina Trout Unlimited, and Upstate

Forever.

Petitioner Dakota Finance, LLC, has no parent

corporation, and no publicly held company owns 10%

or more of its stock.

STATEMENT OF RELATED PROCEEDINGS

The proceedings identified below are directly

related to the above-captioned case in this Court.

Naturaland Trust, et al. v. Dakota Fin., LLC,

et al., No. 6:20-cv-01299-JD, 531 F. Supp. 3d 953

(D.S.C. Mar. 31, 2021). Judgment entered March 31,

2021.

Naturaland Trust, et al. v. Dakota Fin., LLC,

et al., No. 21-1517, 41 F.4th 342 (4th Cir. July 20,

2022). Judgment entered July 20, 2022 (rehearing en

banc denied September 2, 2022).

iii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT ............ ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ....................................... v

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS AT ISSUE.................... 1

INTRODUCTION ....................................................... 4

STATEMENT OF THE CASE .................................. 10

A. The Clean Water Act .................................... 10

B. Facts and procedural history ....................... 12

REASONS FOR GRANTING CERTIORARI........... 19

A. The Court should grant certiorari because the

Circuit Courts are at odds over the meaning of

the Clean Water Act’s diligent prosecution

bar ................................................................. 21

B. Resolving the conflict over the diligent

prosecution bar’s scope is exceptionally

important ...................................................... 30

C. The Petition presents a good vehicle for this

Court to provide a uniform, clear, and

administrable test for determining when the

diligent prosecution bar applies ................... 36

CONCLUSION.......................................................... 38

iv

APPENDIX

Opinion (4th Cir. July 20, 2022)..............................A-1

Order (D.S.C. Mar. 31, 2021)...................................B-1

Order denying petition for rehearing en banc

(4th Cir. Sept. 2, 2022).........................................C-1

v

TABLE OF AUTHORITIES

Cases

Ark. Wildlife Fed’n v. ICI Americas, Inc.,

29 F.3d 376 (8th Cir. 1994) ................. 5, 22–24, 32

Bond v. United States,

564 U.S. 211 (2011) ............................................. 30

Citizens for a Better Env’t-California v.

Union Oil Co. of Cal.,

83 F.3d 1111 (9th Cir. 1996) ............................... 26

Cnty. of Maui v. Hawaii Wildlife Fund,

140 S. Ct. 1462 (2020) ......................................... 33

Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs., Inc.,

528 U.S. 167 (2000) ............................................. 34

Friends of Milwaukee’s Rivers v.

Milwaukee Metro. Sewerage Dist.,

382 F.3d 743 (7th Cir. 2004) ......................... 27–28

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc.,

484 U.S. 49 (1987) ....................4, 11, 17, 22, 25, 29

Jones v. City of Lakeland,

224 F.3d 518 (6th Cir. 2000) ......................... 26–27

Lockett v. EPA,

319 F.3d 678 (5th Cir. 2003) ............................... 27

McAbee v. City of Fort Payne,

318 F.3d 1248 (11th Cir. 2003) ......6, 15, 18, 24–26

N. & S. Rivers Watershed Ass’n, Inc. v.

Town of Scituate,

949 F.2d 552 (1st Cir. 1991) ...........5, 21–22, 24, 35

vi

New York v. United States,

505 U.S. 144 (1992) ......................................... 4, 30

Paper, Allied-Indus., Chem. & Energy Workers

Int’l Union v. Cont’l Carbon Co.,

428 F.3d 1285 (10th Cir. 2005) ................. 6, 25–26

Sackett v. EPA,

566 U.S. 120 (2012) ............................................. 33

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) ............................................. 33

Statutes

28 U.S.C. § 1254(1) ..................................................... 1

33 U.S.C. § 1251(a) ................................................... 10

33 U.S.C. § 1251(b) ........................4, 10, 22, 24, 29–30

33 U.S.C. § 1311(a) ................................................... 10

33 U.S.C. § 1319 .......................................................... 2

33 U.S.C. § 1319(a)–(d) ............................................. 11

33 U.S.C. § 1319(c) .................................................... 11

33 U.S.C. § 1319(d) ................................................... 11

33 U.S.C. § 1319(g) ........................................... 2, 5, 11

33 U.S.C. § 1319(g)(2) ............................................... 25

33 U.S.C. § 1319(g)(4) ............................................... 25

33 U.S.C. § 1319(g)(6) ................................................. 2

33 U.S.C.

§ 1319(g)(6)(A)(ii) ............ 3, 5, 12, 17, 24, 26, 36–37

33 U.S.C. § 1319(g)(8) ............................................... 25

33 U.S.C. § 1342(a) ................................................... 10

33 U.S.C. § 1342(b) ............................................. 11, 13

vii

33 U.S.C. § 1342(b)(7) ............................................... 11

33 U.S.C. § 1344(a) ................................................... 10

33 U.S.C. § 1362(12) ................................................. 10

33 U.S.C. § 1362(14) ....................................... 7, 12–13

33 U.S.C. § 1365 .......................................................... 1

33 U.S.C. § 1365(a) ................................... 1–2, 4, 7, 11

33 U.S.C. § 1365(b) ................................................... 12

33 U.S.C. § 1365(b)(1)(A) .................................... 13–14

33 U.S.C. § 1365(d) ................................................... 11

Water Quality Act of 1987,

Pub. L. No. 100-4, 101 Stat. 7 (1987) .................... 5

25 Pa. Code § 92a.103 ............................................... 32

Alaska Stat. Ann. § 46.03.761 .................................. 32

Ark. Code Ann. § 014.08.1-8.402(B), et seq. ............. 32

Cal. Code Regs. tit. 27, § 25903 ................................ 32

Colo. Rev. Stat. Ann. § 25-8-602, et seq.................... 32

Del. Code Ann. tit. 7, § 6005(b)(3) ............................ 32

Fla. Stat. Ann. § 376.16 ............................................ 32

Haw. Rev. Stat. Ann. § 342D-9 ................................ 32

Idaho Code Ann. § 39-108(3)(a)(i) ............................ 32

Ill. Comp. Stat. Ann. 5/31 ......................................... 32

Iowa Admin. Code r. 567-17.2(455B) ....................... 32

Ind. Code Ann. § 13-30-3-3, et seq. ........................... 32

Ky. Rev. Stat. Ann. § 151.182(1) .............................. 32

Mass. Regs. Code tit. 310, § 5.12 .............................. 32

viii

Me. Rev. Stat. Ann. tit. 38, § 347-A(1)(B) ................ 32

Minn. Stat. Ann. § 116.072 ....................................... 32

N.C. Gen. Stat. Ann. § 143-215.6A(d) ...................... 32

Or. Rev. Stat. Ann. § 468.126(1) .............................. 32

R.I. Gen. Laws Ann. § 42-17.6-3(a) .......................... 32

R.I. Gen. Laws Ann. § 46-12-9.................................. 32

S.C. Code Ann. § 48-1-10, et seq. .............................. 13

S.C. Code Ann. § 48-1-90(A) ..................................... 13

Vt. Stat. Ann. tit. 10, § 8006(b) ................................ 32

W. Va. Code St. R. § 47-1-4....................................... 32

Wyo. Stat. Ann. § 35-11-701(c)(i) ............................. 32

Regulations

40 C.F.R. § 19.4 tbl. 1 ............................................... 11

40 C.F.R. § 123.27 ..................................................... 11

Other Authorities

40 Fed. Reg. 28,130 (July 3, 1975) ........................... 13

Adler, Jonathan H., Conservative Principles

for Environmental Reform,

23 Duke Envtl. L. & Pol’y F. 253 (2013) ............. 31

Adler, Jonathan H., Stand or Deliver:

Citizen Suits, Standing, and

Environmental Protection,

12 Duke Envtl. L. & Pol’y F. 39 (2001) ............... 35

ix

Amicus Curiae Brief of South Carolina

Department of Health and Environmental

Control in Support of Appellees’

Petition for Rehearing En Banc,

Naturaland Trust v. Dakota Finance,

Dkt. 66-1 (4th Cir. Aug. 10, 2022)....................... 32

Commence, Webster’s Third New

International Dictionary (1986) .......................... 18

Comparable, Webster’s Third New

International Dictionary 461 (1986) ............. 25–26

Cross, Frank B.,

Rethinking Environmental Citizen Suits,

8 Temp. Envtl. L. & Tech. J. 55 (1989) ............... 35

Fla. Dep’t of Envtl. Prot., “Enforcement

Manual,” Office of General Counsel,

Chapter 5: The Administrative Process

and Remedies (Sept. 15, 2022),

https://floridadep.gov/sites/default/files/ch

apter_5_Sept2022.pdf .......................................... 32

EPA, National Pollutant Discharge

Elimination System (NPDES),

https://www.epa.gov/npdes/aboutnpdes (last visited Jan. 26, 2022) ....................... 31

Robertson, Marc, Environmental Ambulance

Chasing: DOJ Urges Court To Scrutinize

Clean Water Citizen-Suit Settlements,

Forbes (June 16, 2018),

https://bit.ly/3R0xFIW ......................................... 34

1

PETITION FOR WRIT OF CERTIORARI

Petitioners Dakota Finance, LLC d/b/a Arabella

Farm, Ken Smith, Sharon Smith, and Willard R.

Lamneck, Jr., respectfully petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Fourth Circuit.

OPINIONS BELOW

The Fourth Circuit’s panel opinion is reported at

41 F.4th 342 (4th Cir. 2022) and is reproduced in the

Appendix beginning at A-1. The opinion of the United

States District Court for the District of South Carolina

is reported at 531 F. Supp. 3d 953 (D.S.C. 2021) and

is reproduced in the Appendix beginning at B-1. The

Fourth Circuit’s denial of rehearing en banc is

unreported but is reproduced in the Appendix

beginning at C-1.

JURISDICTION

The date of the decision sought to be reviewed is

July 20, 2022. The Fourth Circuit denied rehearing en

banc on September 2, 2022. On October 18, 2022, the

Chief Justice granted Petitioners’ request for an

extension of time to petition for a writ of certiorari,

through January 30, 2023. Dkt. No. 22A325.

Jurisdiction is conferred under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AT ISSUE



33 U.S.C. § 1365 – Citizen suits

(a) Authorization; Jurisdiction

Except as provided in subsection (b) of

this section and section 1319(g)(6) of this

title, any citizen may commence a civil

action on his own behalf—

2

(1) against any person (including (i) the

United States, and (ii) any other

governmental instrumentality or agency

to the extent permitted by the eleventh

amendment to the Constitution) who is

alleged to be in violation of (A) an

effluent standard or limitation under

this chapter or (B) an order issued by the

Administrator or a State with respect to

such a standard or limitation, or

(2) against the Administrator where

there is alleged a failure of the

Administrator to perform any act or duty

under this chapter which is not

discretionary with the Administrator.

The

district

courts

shall

have

jurisdiction, without regard to the

amount in controversy or the citizenship

of the parties, to enforce such an effluent

standard or limitation, or such an order,

or to order the Administrator to perform

such act or duty, as the case may be, and

to apply any appropriate civil penalties

under section 1319(d) of this title.



33 U.S.C. § 1319 – Enforcement

*

*

*

*

*

(g) Administrative penalties

*

*

*

*

*

(6) Effect of order

(A) Limitation on actions under other

sections

3

Action taken by the Administrator or

the Secretary, as the case may be,

under this subsection shall not affect

or limit the Administrator’s or

Secretary’s authority to enforce any

provision of this chapter; except that

any violation—

*

*

*

*

*

(ii) with respect to which a State has

commenced

and

is

diligently

prosecuting an action under a State

law comparable to this subsection . . .

*

*

*

*

*

shall not be the subject of a civil

penalty action under subsection (d) of

this section or section 1321(b) of this

title or section 1365 of this title.

4

INTRODUCTION

This case presents the Court with the opportunity

to resolve a conflict among the Courts of Appeals

about the scope of the Clean Water Act’s authorization

for citizen suits, 33 U.S.C. § 1365(a), and to clarify the

meaning of a critical limitation that Congress has

placed on these suits. The Fourth Circuit’s divided

decision below deepens a conflict among the Circuits

while also flouting the Clean Water Act’s text and

structure, as well as this Court’s precedent. The

decision also threatens the States’ ability to

implement their environmental laws, exposes small

businesses and property owners to duplicative

penalties and regulatory burdens, and impedes the

Act’s goal to protect the Nation’s waters.

Congress designed the Clean Water Act based on

a “cooperative federalism” framework in which the

Federal and State Governments share enforcement

authority to protect the Nation’s waters. See New York

v. United States, 505 U.S. 144, 167 (1992). But

Congress did not envision an equal balance of

enforcement authority under the statute. Rather, the

Act makes it the policy of Congress to “recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

[water] pollution.” 33 U.S.C. § 1251(b) (emphasis

added).

Congress has sought to preserve the States’

primary role by, among other things, limiting citizen

suits. These suits are an exception to the Clean Water

Act’s framework and are intended to “supplement,”

not “supplant,” governmental enforcement. Gwaltney

of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

484 U.S. 49, 60 (1987). One limitation on these suits

5

is 33 U.S.C. § 1319(g)(6)(A)(ii), which Congress added

as part of its 1987 amendments to the Act. See Water

Quality Act of 1987, Pub. L. No. 100-4, § 314(a), 101

Stat. 7, 46–49 (1987). This provision of the statute

precludes citizen suits when a State has “commenced”

and is “diligently prosecuting” an administrative

penalty action “under a State law comparable to” the

Clean Water Act’s administrative penalty provisions,

33 U.S.C. § 1319(g).

The Act does not separately define the elements

that comprise this diligent prosecution bar. Thus, a

proper analysis of whether the bar is triggered should

begin by identifying the ordinary meaning of

“commenced,”

“diligently

prosecuting,”

and

“comparable.” Yet, since Congress added the bar, the

lower courts have struggled to articulate its meaning,

applying conflicting tests to determine when the bar

applies. And each new test has become less and less

deferential to the States’ primary role in regulating

water resources under the Act.

This conflict is most marked in how the lower

courts have determined whether a “State law” is

“comparable to” § 1319(g)’s enforcement scheme. At

least two Circuits—the First and Eighth—apply an

“overall comparability” test. See N. & S. Rivers

Watershed Ass’n, Inc. v. Town of Scituate, 949 F.2d

552, 556 (1st Cir. 1991); Ark. Wildlife Fed’n v. ICI

Americas, Inc., 29 F.3d 376 (8th Cir. 1994). Broadly

deferring to the States’ primary enforcement

authority under the Clean Water Act, this standard

requires only that a State’s overall regulatory scheme

have comparable civil penalties, comparable

enforcement goals, and comparable opportunities for

6

citizens to participate at significant stages of the

decision-making process.

Other Circuits, however, have developed stricter,

less deferential tests. For example, the Tenth and

Eleventh Circuits apply the “rough comparability”

test. McAbee v. City of Fort Payne, 318 F.3d 1248,

1249, 1256 (11th Cir. 2003); Paper, Allied-Indus.,

Chem. & Energy Workers Int’l Union v. Cont’l Carbon

Co., 428 F.3d 1285, 1293–94 (10th Cir. 2005). Under

this standard, a court compares a State’s enforcement

scheme against each category of § 1319(g)’s pertinent

provisions—civil penalties, public participation, and

judicial review. To trigger the diligent prosecution bar

under this standard, a State’s law must be roughly

comparable to each corresponding class of federal

provisions; a State could not, for example, make up for

a deficiency in public participation by authorizing a

superabundance of judicial review.

The Fourth Circuit’s decision below did not adopt

either of these tests. Rather, it applied a new

heightened standard—even more demanding than the

rough comparability test—that is best characterized

as the “exactly comparable test.” In doing so, the panel

majority managed not only to deepen the longstanding

conflict over comparability, but also to depart even

further from Congress’s cooperative federalism design

for the Clean Water Act.

Petitioners Dakota Finance LLC, d/b/a Arabella

Farm, et al. (Arabella), bought land in South Carolina

and started a small working farm that would include

a vineyard, orchard, and event barn for weddings and

other gatherings. In clearing land for the farm,

Arabella believed that its project fell under the Act’s

agricultural stormwater exemption. App.A-3–4. See

7

33 U.S.C. § 1362(14). The State of South Carolina

disagreed and commenced, through its Department of

Health and Environmental Control, an enforcement

action under South Carolina’s water pollution law.

That action resulted in a Consent Order requiring

that Arabella, among other things, obtain a Clean

Water Act stormwater permit, remediate any damage

its prior discharges might have caused, and pay a civil

penalty to the State. App.B-4.

During these state proceedings, Respondents

Naturaland Trust, et al. (Naturaland), sued Arabella

in federal court under the Act’s citizen suit provision.

See 33 U.S.C. § 1365(a). Naturaland alleged, among

other things, that Arabella had violated the Act by

discharging pollutants into federally regulated

waters—the same discharges for which South

Carolina was already seeking relief in its

administrative enforcement action. App.A-6, B-6.

Naturaland’s complaint sought an injunction, civil

penalties that could result in up to tens of thousands

of dollars a day, and attorneys’ fees. App.A-6, B-12–

13.

The District Court applied the diligent

prosecution bar to dismiss, App.B-1–21, but a divided

panel of the Fourth Circuit reversed. The panel

majority did not separately address whether South

Carolina had “commenced” an action and was

“diligently prosecuting” that action under a “State law

comparable to” the Clean Water Act’s administrative

penalty provisions. Nor did the panel majority apply

either the “overall comparability” test or the “rough

comparability” test. Instead, relying on dicta from an

outlier Seventh Circuit decision, the panel majority

concluded that the Notice of Violation was inadequate

8

to trigger the diligent prosecution bar because South

Carolina law does not afford entities like Naturaland

the same rights in the same manner and at the same

time as under § 1319(g). App. A-11–16. In so holding,

the panel majority employed a doubly flawed and

conflicting method. Not only did it apply a standard

for comparability that no other Circuit has endorsed,

it allowed that same flawed standard to deform the

otherwise plain meaning of what should suffice to

“commence” a citizen-suit-barring state proceeding—

and this also contrary to the approach of other

Circuits. App.A-13–14, 21–22.

The Court should grant certiorari and reverse the

Fourth Circuit’s decision, for three reasons.

First, the Fourth Circuit’s exactly comparable

standard expands the conflict among the Courts of

Appeals over how to apply the diligent prosecution

bar. This Court can resolve that conflict by providing

a uniform, textually based analysis for the lower

courts to apply. See infra Part A.

Second, the Fourth Circuit’s heightened standard

limiting when the diligent prosecution bar applies

inverts the Clean Water Act’s structure and defies this

Court’s precedent by “elevat[ing] citizen suits above

their supplemental role” under the Act. App.A-18

(Quattlebaum, J., dissenting). In the process, the

decision substantially limits the ability of States like

South Carolina to develop their own schemes for

protecting the Nation’s waters as Congress intended.

Congress’s cooperative federalism framework allows

these States to experiment with different enforcement

procedures tailored to protect water quality, while

also providing for fair and administrable enforcement

proceedings for their citizens. But the Fourth Circuit’s

9

exactly comparable standard paradoxically compels

States to adopt a one-size-fits-all standard to preserve

their ability to control water quality enforcement

within their jurisdictions. See infra Part B.1.

The decision also contributes to the ever-growing

uncertainty for small businesses and property owners

over the Clean Water Act’s impact. Without the

diligent prosecution bar, these small business and

property owners might face not only state

enforcement proceedings but also duplicative federal

lawsuits through sometimes abusive citizen suits—

exposing them to excessive penalties and attorneys’

fees—even after they have already complied with the

statute and paid civil penalties to a State. Indeed,

individuals and small businesses like Arabella who,

because of a good-faith mistake, illegally discharge

pollutants without a permit cannot know under the

currently fractured state of the law whether they will

be able definitively to settle their disputes on

reasonable terms. See infra Part B.2.

Moreover, the Fourth Circuit’s decision limiting

the diligent prosecution bar’s scope will undermine

Congress’ goal to protect the Nation’s waters. A broad

diligent prosecution bar prevents property owners

from being regulated on the front end by the States

and then being sued on the back end by private

enforcers. Duplicative enforcement actions dissuade

these citizens from working with their state and local

governments to remediate environmental harm

because they know that they may be subject to

secondary liability even after they have paid fines and

are working to comply with the law. See infra Part

B.3.

10

Finally, this case is a good vehicle to resolve the

conflict among the Circuits, to clarify the diligent

prosecution bar’s meaning, and to ensure that lower

courts, as well as citizen suit plaintiffs, adhere to

Congress’s cooperative federalism framework. See

infra Part C.

STATEMENT OF THE CASE

A. The Clean Water Act

1. Congress enacted the Clean Water Act to

“restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). In doing so, Congress designed a regulatory

scheme respecting our federal structure by dividing

the authority to regulate water pollution between the

Federal Government and the States. The Act thus

“protect[s] the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution,

[and] to plan the development and use . . . of land and

water resources,” id. § 1251(b), while also providing

for direct federal regulation when necessary.

That regulation is found principally in the Act’s

prohibition of most discharges of “pollutants” from

“point sources” to “navigable waters.” See 33 U.S.C.

§§ 1311(a), 1362(12). Nonexempt discharges to

regulated waters therefore require a permit from

either the Environmental Protection Agency (called a

National Pollutant Discharge Elimination Program,

or NPDES, permit) or, if the discharge involves

“dredged or fill material,” from the Army Corps of

Engineers (commonly called a Section 404 permit).

See id. §§ 1342(a), 1344(a). Discharging pollutants

without a required permit, or violating permit

conditions, risks significant civil and even criminal

11

liability. See 33 U.S.C. § 1319(c), (d). See also 40 C.F.R.

§ 19.4 tbl. 1 (authorizing a civil penalty of over

$60,000 per day per violation).

Consistent with the Act’s cooperative federalism

framework, each State may establish and administer

its own permitting program, including for NPDES

permits, if the program conforms with certain

guidelines and is approved by EPA. See 33 U.S.C.

§ 1342(b); 40 C.F.R. § 123.27.

2. The principal authority to enforce the Clean

Water Act rests first with EPA, which can seek

administrative, civil, and criminal sanctions for past

or ongoing discharges covered by the statute. See 33

U.S.C. § 1319(a)–(d), (g). But States that have been

delegated permitting authority can also seek such

penalties for past or ongoing violations. Id.

§ 1342(b)(7).

In addition, the Act delegates some enforcement

authority to private parties: “any citizen” may bring a

civil action against any person who is alleged “to be in

violation” of specified provisions of the Act, including

its NPDES permitting requirement. See id. § 1365(a).

Private enforcers can seek injunctive relief, as well as

civil penalties payable to the United States Treasury.

Id. They can also recover attorney fees, expert witness

fees, and other litigation costs for successful suits. Id.

§ 1365(d). But as this Court has recognized, these

suits are meant to play a limited role in enforcing the

Act’s requirements. In this way, citizen suits

“supplement” and do not “supplant” the States’

primary role in regulating water quality. Gwaltney,

484 U.S. at 60.

12

3. To ensure that citizen suits remain limited to a

supplementary role under the Act, Congress bars such

suits when governments are enforcing the Act’s

requirements. First, citizen suits are precluded if the

Federal Government or a State sues or prosecutes an

alleged violator in federal or state court. See 33 U.S.C.

§ 1365(b) (“No [citizen suit] may be commenced . . .

(B) if the Administrator or State has commenced and

is diligently prosecuting a civil or criminal action in a

court of the United States, or a State . . . .”). Second,

citizen suits are barred if a State has brought an

administrative action under a State law that is

comparable to the Clean Water Act’s administrative

penalty provisions. Specifically, “any violation . . .

with respect to which a State has commenced and is

diligently prosecuting an action under a State law

comparable to [§1319(g)] . . . shall not be the subject of

a civil penalty action under . . . [the citizen suit

provisions].” Id. § 1319(g)(6)(A)(ii).

B. Facts and procedural history

1. Arabella is a small, family-owned business that

owns land in Pickens County, South Carolina.

Arabella’s property is bordered by three bodies of

water—Clearwater Branch, Peach Orchard Branch,

and an unnamed tributary of the Eastatoe River.

App.A-3.

In 2017, Arabella began converting its land into a

working farm that would include an orchard,

vineyard, and event barn for weddings and other

festivities. Id. Arabella did not seek a permit for

stormwater runoff before starting work on its property

because it believed that its construction fell within the

Clean Water Act’s exemption for “agricultural

stormwater discharges and return flows from

13

irrigated agriculture,” 33 U.S.C. § 1362(14). See

App.A-3–4. But Pickens County and the South

Carolina Department of Health and Environmental

Control thought otherwise, and in 2018 began an

investigation of Arabella’s construction activities for

illegal stormwater discharges into the neighboring

waters, including the Eastatoe River. App.A-4.1 Over

the next year, Arabella, the County, and the

Department engaged in several informal interactions.

Id.

2. These interactions resulted in the Department

issuing Arabella, in September 2019, a “Notice of

Alleged Violation/Notice of Enforcement Conference”

under South Carolina’s Pollution Control Act, S.C.

Code Ann. § 48-1-90(A). See App.B-4. This type of

document is the first step in the Department’s

administrative enforcement procedure for all of the

state environmental programs that it administers.

App.B-4; App.A-21–22. The Notice of Violation

alleged, as relevant, that Arabella had discharged

pollutants into waters regulated by the Clean Water

Act without the required permit. App.A-25. It warned

that if Arabella failed to attend the enforcement

conference, Arabella would face an assessment of

monetary penalties and other sanctions. Id.

In November 2019—after the Department had

sent the Notice of Violation—Naturaland sent

Arabella a notice of intent to sue, alleging violations

of the Clean Water Act. See App.A-5. Cf. 33 U.S.C.

South Carolina has administered its own NPDES permitting

program under 33 U.S.C. § 1342(b) since 1975. See 40 Fed. Reg.

28,130 (July 3, 1975). The State delegates enforcement authority

to the Department. S.C. Code Ann. § 48-1-10, et seq.

1

14

§ 1365(b)(1)(A) (requiring such notice before the filing

of a citizen suit). In April 2020—six months after the

Department had sent its Notice of Violation—

Naturaland sued Arabella in the United States

District Court for the District of South Carolina.

App.A-5–6. The complaint alleged, among other

claims, that Arabella was in violation of the Clean

Water Act, and sought relief in the form of an

injunction along with civil penalties payable to the

United States Treasury.2 See App.A-6.

Shortly after Naturaland filed the complaint,

Arabella and the Department agreed to a Consent

Order. Among other things, the Consent Order

required Arabella to: (1) obtain coverage under a

NPDES stormwater discharge permit (which permit

Arabella obtained on May 22, 2020); (2) pay the State

a civil penalty; (3) submit a stormwater management

plan and site stabilization plan; and (4) conduct a

stream assessment with recommended remediation

efforts. App.A-6, A-32; B-4. The Consent Order also

contemplated further Department involvement to

review and approve plans for the stabilization of

Arabella’s property, for an assessment of adjacent

streams, and potentially for any further remediation

that such assessment might find necessary. Id.

Finally, the Consent Order preserved the

Department’s authority to take further enforcement

action if Arabella violated the order. Id.

3. Arabella then moved to dismiss the suit based

on § 1319(g)’s diligent prosecution bar. App.B-5. It

argued that, at the time Naturaland initiated the

The complaint also alleged claims under South Carolina

common law. App.A-5–6.

2

15

action, the Department’s notice had already

commenced an administrative enforcement action, the

Department was diligently prosecuting that action,

and South Carolina law is comparable to § 1319(g).

App.B-8

In deciding the motion to dismiss, the District

Court applied a straightforward three-step statutory

analysis to determine whether South Carolina’s

enforcement proceeding triggered the diligent

prosecution bar under § 1319(g). To begin, it

determined that South Carolina had “commenced” an

administrative action through the Department’s

issuance of the Notice of Violation—which occurred

months before Naturaland filed suit. App.B-10. Then

it determined that the Department was “diligently

prosecuting” that enforcement action. Id. Finally,

with respect to comparability, the District Court

began its analysis with the premise that the “text of

the [Act] and Supreme Court precedent suggest a

broad interpretation of the phrase comparable State

Law.” Id. (citing McAbee, 318 F.3d at 1252).

Accordingly, “the term comparable means that the

state law need only be sufficiently similar to the

federal law, not identical.” App.B-11 (emphasis in

original). Noting the split among the Circuits as to

how to assess comparability, the District Court settled

upon the rough comparability test which, as noted

above, compares each part of the federal

administrative enforcement scheme in § 1319(g)—

civil penalties, public participation, and judicial

review—to the corresponding provisions of state law.

App.B-12. Applying this test, the court held that

South Carolina’s law is roughly comparable to

§ 1319(g). App.B-12–17. First, it determined that

16

South Carolina’s law has civil penalty provisions

roughly comparable to § 1319(g)(1)–(3) App.B.12–13.

Second, it determined that South Carolina law

provides public participation rights that are roughly

comparable to those found in § 1319(g)(4). App.B.13–

16. And last, it determined that South Carolina law

provides rights of judicial review roughly comparable

to those made available in § 1319(g)(8).3 App.B-16.

4. A divided panel of the Fourth Circuit reversed.

App.A-1–17. Unlike the District Court and the panel

dissent, the panel majority did not apply a three-step

framework separately analyzing commencement,

diligent prosecution, and comparability. Nor did it

apply the overall or rough comparability tests adopted

by other Circuits. Instead, the panel lumped the

inquiries together, looking to whether the Notice of

Violation commenced an “action” that, in terms of

substance, procedure, and timing, was exactly like an

EPA proceeding under § 1319(g). See App.A-11–15.

To be sure, the panel majority seemingly started

off on the right foot in recognizing that, to understand

what “commenced” means, one should understand

what “action” means, and that the “essential

character of an ‘action’” is “an adversarial proceeding

initiated by a formal, public document[.]” App.A-12.

3 The District Court dismissed the barred Clean Water Act claim

for lack of subject matter jurisdiction, which the Fourth Circuit

sua sponte held to be error. App.A-7–11. See App.A-20 n.1

(Quattlebaum, J., dissenting). Naturaland’s complaint also had

alleged violations of the Act’s dredged-and-fill permitting

requirements, but the District Court held that the Act’s citizen

suit provision did not extend to such claims, App. B-18–19, and

Naturaland did not press them in its appeal, see Appellants’

Opening Brief 20 n.2, Dkt. 21.

17

But then the panel majority’s analysis went quickly

awry. In the majority’s estimation, because South

Carolina’s Notice of Violation did not initiate an

enforcement proceeding just like the one outlined in

EPA regulations—i.e., an administrative complaint in

EPA format that triggers a proceeding for which

public participation and judicial review are made

available before EPA may settle or assess civil

penalties—the notice could not “commence” a

qualifying “action” under § 1319(g)(6)(A)(ii). App.A11–15. See App.A-13 (“[A]lthough . . . public

participation and judicial review of the Department’s

consent orders [are authorized] under South Carolina

law . . ., neither of these features is available until

after the issuance of a departmental consent order.”).

(emphasis in original).4

5. Judge Quattlebaum dissented. App.A-17–49.

Unlike the panel majority, he began his analysis by

emphasizing that, under the Clean Water Act, States

hold the primary responsibility to manage the

Nation’s water resources; thus, citizen suits serve only

to

supplement,

not

supplant,

government

enforcement. App.A-17 (citing Gwaltney, 484 U.S. at

60). And unlike the majority’s “questionable” analysis

combining the commencement and comparability

prongs, Judge Quattlebaum properly broke up his

analysis into three separate inquiries. App.A-27.

Because the panel majority determined that the diligent

prosecution bar had not been triggered, it did not address

whether the bar would preclude only a claim for civil penalties,

or instead would also preclude a request for injunctive relief. The

panel did, however, reject Arabella’s objection to the sufficiency

of Naturaland’s notice letter. App.A-16–17. Arabella does not

press that objection here.

4

18

First, he addressed whether the Department’s

Notice of Violation “commenced” an enforcement

action. A.20–31. To resolve that issue, he looked to the

ordinary meaning of “commenced,” which is to “begin

or start” or, in the legal context, to “initiate formally

by performing the first act of a legal proceeding.”

App.A-21 (citing Commence, Webster’s Third New

International Dictionary (1986)). Because the Notice

of Violation under South Carolina law is the

Department’s first step in enforcing its environmental

laws and is more than just an “informal” inquiry, he

determined that it would meet either definition.

App.A-21–22.

Second, he inquired whether the Department was

diligently prosecuting the administrative action, and

readily determined that it was. App.A-31–32.

Third, he addressed whether the Department’s

administrative proceeding was “an action under a

state law comparable to [CWA § 1319(g)].” App.A-32–

43. Although acknowledging the conflict among the

Circuits between the overall and rough comparability

tests, App.A-34–35, he avoided choosing between

them because he concluded, like the District Court,

that South Carolina’s enforcement regime is roughly

comparable to § 1319(g) and thus necessarily would

satisfy the overall comparability standard. In

determining that South Carolina law is comparable,

he emphasized that “comparable cannot mean

identical.” App.A-36 (citing McAbee, 318 F.3d at 1252).

He then explained how South Carolina law provides

rights for interested parties and public participation

that, although not mirror images of EPA’s regulations,

are nevertheless comparable. App.A37–38. Similarly,

he concluded that South Carolina law provides for

19

comparable civil penalties and judicial review. A.38–

39. He thus would have affirmed the application of the

diligent prosecution bar. The majority’s contrary

conclusion, he warned, promised to “elevate[] citizen

suits above their supplemental role,” App.A-18,

thereby “overriding the delicate balance that

Congress established under the Act,” App.A-49.5

Arabella then petitioned for rehearing en banc,

which the Fourth Circuit denied without opinion.

App.C-1–2.

REASONS FOR GRANTING CERTIORARI

For several reasons, this Court should grant

certiorari to review the Fourth Circuit’s flawed

decision.

First, the panel majority opinion contributes to a

conflict among the lower courts over the meaning of

§ 1319(g)’s diligent prosecution bar. In the 35 years

since Congress amended the Clean Water Act to

expand the diligent prosecution bar to include state

administrative penalty actions, the Courts of Appeals

have developed different tests and standards. With

each new ruling, culminating in the Fourth Circuit’s

exactly comparable standard, these decisions have

become less deferential to the States and have moved

farther away from Congress’s explicit policy that the

Judge Quattlebaum went on to conclude, contrary to the

District Court, that the diligent prosecution bar did not preclude

Naturaland’s request for injunctive relief, but he also thought it

unlikely that the request was still live, given that Arabella has

already obtained the needed NPDES permit. See App.A-43–49.

See also infra Part C.

5

20

States should retain primary

regulate water pollution.

responsibility

to

Second, the question presented is significant for

the States, their citizens, and the environment. The

Fourth Circuit’s analytically flawed analysis applying

an exactly comparable standard undermines

Congress’s cooperative federalism framework and

defies this Court’s precedent by allowing citizen suits

to trump a State’s preferred enforcement approach.

These errors will undermine the States’ ability to

develop their own regulatory frameworks and to work

cooperatively with their citizens to resolve disputes.

The Fourth Circuit’s decision also expands the ability

of private enforcers to sue for financially crushing

penalties and to collect gargantuan attorneys’ fees,

even after property owners have begun working with

their state and local governments to remediate any

environmental harm that they may have caused.

But it is not just small businesses and property

owners who are threatened by the Fourth Circuit’s

wrongheaded narrowing of the diligent prosecution

bar. The environment itself will be harmed. By

making it easier for private parties to bring lawsuits

that seek duplicative penalties and remediation,

property owners will have less incentive to work with

their States to repair environmental harm. There is

simply no incentive to settle a dispute on the front end

when alleged violators know that they will face

subsequent draconian penalties and staggering

attorneys’ fees on the back end.

Finally, this case presents a good vehicle for the

Court to resolve the conflict among the Circuits and to

bring uniformity and clarity to the law. The conflict

over the diligent prosecution bar’s meaning is clearly

21

presented, and by resolving that conflict, the Court

would provide substantial relief to Arabella.

Moreover, now is the right time for the Court to weigh

in. Nearly every Court of Appeals has addressed to

some extent the scope of the diligent prosecution bar,

and the full range of potential standards—overall to

rough to exact comparability—has been tried. There

is thus little reason to delay review for further

percolation.

A. The Court should grant certiorari

because the Circuit Courts are at odds

over the meaning of the Clean Water

Act’s diligent prosecution bar

At least nine Courts of Appeals have weighed in

on § 1319(g)’s diligent prosecution bar since Congress

added the provision in 1987. But those courts have not

reached a consensus over the bar’s scope. Far from it.

Two courts have expressly adopted the “overall

comparability” test, two have expressly adopted a

stricter “rough comparability” test, three are a “mixed

bag,” App.A-35 n.8, employing variations or

combinations of those tests, and two others—

including the Fourth Circuit—have adopted a

uniquely confused approach which in practice

converts “comparable” into “carbon copy” and

“commenced . . . an action under a State law” into

“commenced an EPA-style suit.”

1. The “overall comparability test.” The First

Circuit was the first Court of Appeals to address

§ 1319(g)’s diligent prosecution bar. In Scituate, the

court had to decide whether the Massachusetts Clean

Waters Act was comparable. 949 F.2d at 553. In

setting up its comparability analysis, the court

recognized that Congress expressly preserved the

22

States’ primary authority to regulate water pollution.

See id. at 555 (citing 33 U.S.C. § 1251(b)). It also

emphasized that a Clean Water Act “citizen suit is

meant to supplement rather than to supplant

governmental [enforcement] action.” Id. (citing

Gwaltney, 484 U.S. at 60).

Scituate

then

held

that,

to

establish

comparability, “it is enough” that a State’s law, “under

which the State is diligently proceeding, contains

penalty assessment provisions comparable to” the

Clean Water Act, the “State is authorized to assess

those penalties,” and the “overall scheme of the [State

law and the Clean Water Act] is aimed at correcting

the same violations, thereby achieving the same

goals.” Id. at 556. Such an “overall” standard, the

court observed, was necessary to avoid undercutting

Congress’s intent to protect the Nation’s waters by

enabling “[d]uplicative actions aimed at exacting

financial penalties in the name of environmental

protection at a time when remedial measures are well

underway.” Id. Indeed, such duplicative actions would

not only undermine Congress’s goal but would be

“impediments to environmental remedy efforts.” Id.

A few years later, the Eighth Circuit followed the

First Circuit in Arkansas Wildlife Federation, 29 F.3d

at 376, 379. The court analyzed whether the diligent

prosecution bar applied by dividing its analysis into

three parts.

First, the court held that Arkansas had

“commenced” an action by issuing a “Consent

Administrative Order.” Id. at 379–80. It found that

the order commenced an administrative action even

though, under Arkansas law, such an order does not

follow the “usual notice and hearing procedures

23

designed to protect and give access to the public and

interested parties.” Id. In reaching that conclusion,

the court recognized that “states are afforded some

latitude in selecting the specific mechanisms of their

enforcement program,” and that Arkansas law

classifies a consent administrative order as

commencing an administrative action. Id. at 380.

Second, the court held that Arkansas was

“diligently prosecuting” its enforcement action. Id.

(observing that citizen suits “should not considerably

curtail the governing agency’s discretion to act in the

public interest”) (citing Gwaltney).

Third, the court held that Arkansas’s law was

“comparable to” § 1319(g). The citizen suit plaintiffs

had argued, as Naturaland did below, that Arkansas

law was not comparable because the “public notice

and comment provisions of § 1319(g)(4)(A)” come

before an order issuing civil penalties is final, but in

Arkansas, they are provided only afterward. Id. at

381. In rejecting that distinction, the Eight Circuit

emphasized that “comparable” means “similar,” not

“identical.” Id. It adopted the Scituate standard,

according to which courts should look to whether the

“overall regulatory scheme affords significant citizen

participation, even if the state law does not contain

precisely the same public notice and comment

provisions as those found in the federal [Clean Water

Act].” Id. Thus, comparability is satisfied so long as

the state law (i) “contains comparable penalty

provisions which the state is authorized to enforce,”

(ii) “has the same overall enforcement goals as the

federal [Clean Water Act],” (iii) “provides interested

citizens a meaningful opportunity to participate at

significant stages of the decision-making process,” and

24

(iv) “adequately

safeguards

their

legitimate

substantive interests.” Id. at 381–82 (citing Scituate

949 F.2d at 556 & n.7).

2. The “rough comparability standard.” Around a

decade after the Eight Circuit decided Arkansas

Wildlife Federation, the Eleventh Circuit adopted a

different test that, while more rigorous than the

overall comparability standard, still respects the

States’ primary regulatory authority over water

resources. In McAbee, the Eleventh Circuit addressed

whether the Alabama Water Pollution Control Act

was sufficiently comparable. 318 F.3d at 1249.

Following the Eighth Circuit’s ruling in Arkansas

Wildlife Federation, the Eleventh Circuit embarked

upon its § 1319(g)(6)(A)(ii) analysis as a three-part

framework: whether a State has (i) “commenced” and

(ii) is “diligently prosecuting” an administrative

enforcement action under a State law (iii) “comparable

to” § 1319(g).6

McAbee began its comparability analysis by

acknowledging, along with the First and Eighth

Circuits, that (i) States have the primary

responsibility to prevent, reduce, and eliminate water

pollution, id. at 1252 (citing 33 U.S.C. § 1251(b)),

(ii) “comparable” as used in § 1319(g)(6)(A)(ii) “means

that the state law need only be sufficiently similar to

the federal law, not identical,” id. (quoting Arkansas

Wildlife Federation, 29 F.3d at 381), and (iii) citizen

suits play only a “supplemental role” and thus are not

6 Although the court adopted a tripartite approach, it did not

analyze the first two parts. See id. at 1251 n.6 (“The

requirements of ‘commencement’ and ‘diligent prosecution’ are

not at issue in this appeal.”).

25

meant to “change[] the nature of the citizen’s role from

interstitial to potentially intrusive,” id. (quoting

Gwaltney, 484 U.S. at 61).

Nevertheless, the court rejected the overall

comparability test adopted by the First and Eighth

Circuits. In the Eleventh Circuit’s view, a comparison

based on each class of federal provision—penalty

amounts, rights of interested parties, and availability

of judicial review—would be more consistent with the

Clean Water Act’s text, which separately details these

categories. Id. See 33 U.S.C. § 1319(g)(2), (4), (8). This

category-by-category approach would also, the court

concluded, be more administrable because courts

would not need to weigh the incommensurables of, for

example, more public participation versus less judicial

review. See id. Similarly, the court noted that a rough

comparability standard would reduce uncertainty for

litigants and state actors. See McAbee, 318 F.3d at

1255.7

The Tenth Circuit followed the Eleventh Circuit’s

lead in Paper, Allied-Indus., Chem. & Energy Workers

Int’l Union, 428 F.3d 1285. Like McAbee, the Tenth

Circuit upfront acknowledged Congress’s intent that

the States retain primary responsibility to control

water quality and that citizen suits are meant only to

supplement the States’ enforcement role. Id. at 1288–

89. The court also recognized that the plain meaning

of “comparable” does not suggest an exacting

standard. Id. at 1293 (citing Webster’s Third New

The Eleventh Circuit then went on to hold that Alabama’s law

was not comparable, principally because it did not afford the

general public any right to participate. See id. at 1257; App.A-40

n.9.

7

26

International Dictionary 461 (1986) (defining

“comparable” as “capable of being compared; . . .

having enough like characteristics or qualities to

make comparison appropriate”). It nevertheless

concluded, like the Eleventh Circuit, that the “rough

comparability test” is more faithful to the Clean Water

Act’s text. Thus, for a “state law to be ‘comparable,’

under 33 U.S.C. § 1319(g)(6)(A)(ii), each category of

state-law provisions—penalty assessment, public

participation, and judicial review—must be roughly

comparable to the corresponding class of federal

provisions.” Id. at 1294.8

3. The other Circuits’ “mixed bag.” Several other

Circuits have weighed in on the diligent prosecution

bar’s meaning with varying results. The Ninth Circuit

“implicitly” adopted the “rough comparability” test in

Citizens for a Better Env’t-California v. Union Oil Co.

of Cal., 83 F.3d 1111, 1117–18 (9th Cir. 1996). See

McAbee, 318 F.3d at 1253 (observing that the Ninth

Circuit “used a test for comparability that is arguably

more demanding than the standards adopted by the

First and Eighth Circuits” and that the Ninth Circuit

rejected the “overall comparability test”). The Sixth

Circuit, without specifically adopting either overall or

rough comparability, has declared that “if the overall

State regulatory scheme affords interested and/or

adversely affected citizens the safeguard of a

But unlike McAbee, the Tenth Circuit held that the state law

at issue—Oklahoma’s—was comparable. The court reached that

conclusion despite the fact that, unlike the Clean Water Act,

Oklahoma’s administrative penalty law did not “require notice of

an assessment to anyone other than the violator;” what mattered

was that the State’s “open meetings Act” required public notice

of all regular and special meetings. Id. at 1295.

8

27

meaningful opportunity to participate in the

administrative enforcement process,” then the State

law is comparable. Jones v. City of Lakeland, 224 F.3d

518, 523 (6th Cir. 2000). Similarly, the Fifth Circuit

has not expressly adopted either overall or rough

comparability but has cited in full the overall

comparability test adopted by Arkansas Wildlife

Federation. Lockett v. EPA, 319 F.3d 678, 683–85 (5th

Cir. 2003).

4. The exactly comparable test. The Seventh

Circuit construed the diligent prosecution bar but did

not affirmatively adopt a test in Friends of

Milwaukee’s Rivers v. Milwaukee Metro. Sewerage

Dist., 382 F.3d 743 (7th Cir. 2004). Initially, the court

appeared to embrace McAbee’s rough comparability

standard, see id. at 755, but then it made the

analytical mistake that McAbee specifically warned

against. Rather than construe the three textual

components of the diligent prosecution bar

independently, the court “discerned” from previous

cases and “the contours of the law” that, with “respect

to

administrative

enforcement

actions,

the

‘commencement’ of the action is tied in with the

‘comparability’ of the state statute to the federal

provisions.” Id. at 756. The court then concluded that

the bar had not been triggered because none of

Wisconsin’s administrative actions allowed for public

notice or participation, and thus none could have

“commenced” a qualifying “action” under § 1319(g).

See id. at 757. In employing this analytically flawed

approach, the Seventh Circuit suggested that what

matters is not just comparability solely in terms of

substance—e.g., does State law provide for public

participation and judicial review?—but also

28

comparability in terms of timing and procedure. Id. at

756 (“[F]or the purposes of § 1319(g), an

administrative action ‘commences’ at the point when

notice and public participation protections become

available to the public and interested parties.”).

The Fourth Circuit’s decision below latched on to

the Seventh Circuit’s embryonic analytical mistake to

give birth to its new exactly comparable standard.

Like the Seventh Circuit, the panel majority declined

to employ a textually informed, tripartite analysis for

applying the diligent prosecution bar’s requirements,

and instead crudely collapsed them. See, e.g., App.A13 (discounting “the availability of public

participation and judicial review of the Department’s

consent orders under South Carolina law as support

for application of the diligent prosecution bar here”

because “neither of these features is available until

after the issuance of a departmental consent order,”

and thus “no comparable action had yet commenced”).

And just as the Seventh Circuit’s analysis intimated,

the panel majority below required both substantive

and procedural parity to establish comparability.

As for substance, it did not matter to the panel

majority that the Department’s Notice of Violation

commenced “adversarial” enforcement proceedings

which, if ignored by Arabella, “would have risked an

assessment of monetary penalties and other

sanctions,” or that the contents of the Notice of

Violation would satisfy federal pleading standards for

complaints, or that the Notice of Violation is a public

document subject to public disclosure. See App.A-25

(Quattlebaum, J., dissenting). Rather, per the panel

majority, the Notice of Violation was irremediably

inadequate because it was not the equivalent of what

29

EPA would produce to commence a Clean Water Act

administrative penalty proceeding. See App.A-12

(observing that the notice was the equivalent of

neither a “complaint” nor a “consent agreement and

final order” under EPA’s regulations).

And as for timing, it did not matter to the panel

majority that the Notice of Violation “may have been

an important and even necessary step in the

Department’s

process,”

App.A-15,

because

“comparable” rights of public participation and

judicial review do not become available under South

Carolina law “until after the issuance of a

departmental consent order.” App.A-13 (emphasis in

original). Thus, under the panel majority’s reasoning,

unless a State gives the same opportunities for public

participation and judicial review and at precisely the

same time as EPA does, then a State has no ability to

control the who, when, or how of enforcement of water

quality regulation in its jurisdiction. And that is true

even if, as the dissent observed, the State

substantively affords greater protections under its

law. App.A-42 (Quattlebaum, J., dissenting) (noting

that “South Carolina’s right to judicial review is

broader than the Clean Water Act’s corollary”).

It should therefore come as no surprise that such

an anti-federalism ruling makes no effort to reconcile

its exactly comparable standard with Congress’s

desire to preserve the States’ traditional authority

over water resources, 33 U.S.C. § 1251(b), or to limit

citizen suits to an “interstitial” role in Clean Water

Act enforcement, Gwaltney, 484 U.S. at 61; App.A-49

(Quattlebaum, J., dissenting).

* * *

30

In sum, the Circuit Courts are in entrenched

conflict over the diligent prosecution bar’s scope. Nine

have construed the bar, but the result has been a

mishmash of conflicting standards and analytical

approaches, with the Fourth Circuit’s the most

recent—yet also the least faithful to the Clean Water

Act’s text and structure, and this Court’s precedent.

B. Resolving the conflict over the diligent

prosecution bar’s scope is exceptionally

important

The question presented has grave implications far

beyond this case, for the States, their citizens, and the

Nation’s waters. It is thus critical that the Court step

in and bring clarity to the Clean Water Act and uphold

the cooperative federalism framework that Congress

designed.

1. A fundamental principle of our constitutional

structure is that “federalism secures to citizens the

liberties that derive from the diffusion of sovereign

power.” Bond v. United States, 564 U.S. 211, 221

(2011) (quoting New York, 505 U.S. at 181). Indeed,

the “federal structure allows local policies more

sensitive to the diverse needs of a heterogeneous

society, permits innovation and experimentation,

enables greater citizen involvement in democratic

processes[.]” Id. (quotation marks & citation omitted).

Following this fundamental principle, Congress

structured the Clean Water Act to ensure that the

Nation’s waters are protected by allowing the States,

with federal oversight, to retain the primary

responsibility and right to regulate water pollution. 33

U.S.C. § 1251(b). In turn, States can develop different

approaches to guard the Nation’s waters. See App.A-

31

23 (Quattlebaum, J., dissenting) (“[T]he Clean Water

Act’s cooperative federalism framework encourages

states to experiment with different regulatory

approaches.”)). But they can also protect their citizens

from onerous procedures by having administrative

processes to resolve conflicts without formal lawsuits

and burdensome, uniform remedial measures. See

Jonathan H. Adler, Conservative Principles for

Environmental Reform, 23 Duke Envtl. L. & Pol’y F.

253, 278–80 (2013). Indeed, state administrative

schemes are often used to deal with lower-priority

violations committed by property owners such as

Arabella, which did not know that its event barn

project violated the law but wanted to make things

right as soon as it learned of the violation. See App.A3–4.

Almost every State has implemented these

administrative enforcement programs. Forty-seven—

including South Carolina—have assumed NPDES

permitting responsibilities.9 These States have

developed programs to issue permits and have

enacted administrative enforcement regimes—all of

which EPA has approved.10 And many of these States,

including States within the Fourth Circuit, have

enforcement schemes like South Carolina’s that

See https://www.epa.gov/npdes/about-npdes (“Currently 47

states and one territory are authorized to implement the NPDES

program.”).

9

10

Id.

32

commence through a Notice of Violation or similar

document.11

To be sure, Congress authorized a role for citizen

suits when federal or state agencies fail to guard

adequately against water pollution. But contrary to

the thrust of the panel majority opinion below, citizen

suits were never meant to play an equal—much less

elevated—role under the Act’s enforcement structure.

See Arkansas Wildlife Federation, 29 F.3d at 380.

The diligent prosecution bar plays an important

role under this framework. It allows States to enforce

their administrative schemes without interference

from private parties and to encourage alleged

violators to work expeditiously with state and local

governments to correct environmental harms.12 Yet

See Alaska Stat. Ann. § 46.03.761; Ark. Code Ann. § 014.08.18.402(B), et seq.; Cal. Code Regs. tit. 27, § 25903; Colo. Rev. Stat.

Ann. § 25-8-602, et seq.; Del. Code Ann. tit. 7, § 6005(b)(3); Fla.

Stat. Ann. § 376.16; Fla. Dep’t of Envtl. Prot., “Enforcement

Manual,” Office of General Counsel, Chapter 5: The

Administrative Process and Remedies, pg. 61 (Sept. 15,

2022), https://floridadep.gov/sites/default/files/chapter_5_Sept20

22.pdf; Haw. Rev. Stat. Ann. § 342D-9; Idaho Code Ann. § 39108(3)(a)(i); 415 Ill. Comp. Stat. Ann. 5/31; Ind. Code Ann. § 1330-3-3, et seq.; Iowa Admin. Code r. 567-17.2(455B); Ky. Rev.

Stat. Ann. § 151.182(1); Mass. Regs. Code tit. 310, § 5.12; Me.

Rev. Stat. Ann. tit. 38, § 347-A(1)(B); Minn. Stat. Ann. § 116.072;

N.C. Gen. Stat. Ann. § 143-215.6A(d); Or. Rev. Stat. Ann.

§ 468.126(1); 25 Pa. Code § 92a.103; R.I. Gen. Laws Ann. § 46-129; R.I. Gen. Laws Ann. § 42-17.6-3(a); Vt. Stat. Ann. tit. 10,

§ 8006(b); W. Va. Code St. R. § 47-1-4; Wyo. Stat. Ann. § 35-11701(c)(i).

11

See Amicus Curiae Brief of South Carolina Department of

Health and Environmental Control in Support of Appellees’

Petition for Rehearing En Banc at 5, Naturaland Trust v. Dakota

Finance, Dkt. 66-1 (4th Cir. Aug. 10, 2022).

12

33

the Fourth Circuit’s decision did not show any

deference to South Carolina’s enforcement scheme. It

did not examine the Clean Water Act’s cooperative

federalism framework. It didn’t even cite Gwaltney. It

is no wonder then that its decision subverts

Congress’s purposes and this Court’s precedent by

elevating “citizen suits above their supplemental

role,” App.A-18, and forcing States to mimic EPA’s

regulatory requirements as the price for retaining

some measure of water quality control within their

jurisdictions. See App.A-11–15.

2. The Fourth Circuit’s flawed decision narrowing

the diligent prosecution bar not only undermines the

Clean Water Act’s structure but also threatens great

harm to small businesses and property owners like

Arabella. Because the Act’s reach is “notoriously

unclear,” Sackett v. EPA, 566 U.S. 120, 132 (2012)

(Alito, J., concurring), it is unfortunately all too easy

even for property owners acting in good faith to run

afoul of the Act’s “regime of strict liability,” Cnty. of

Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462, 1489

(2020) (Alito, J., dissenting). And once a property

owner is found to be in violation of the Act, the

penalties can be “crushing.” U.S. Army Corps of Eng’rs

v. Hawkes Co., 578 U.S. 590, 602 (2016) (Kennedy, J.,

concurring).

By narrowing the diligent prosecution bar, the

Fourth Circuit expands the ability of groups to sue in

federal court for often innocent violations, collect

money for the United States Treasury, and obtain

attorneys’ fees for doing so. Arabella’s plight is a

fitting example. As noted above, Arabella did not seek

a permit for stormwater runoff because it believed

that its construction fell within the Act’s agricultural

34

exemption. App.A-3–4. Arabella did not learn of any

wrongdoing until the government, one might say,

came knocking on the barn door. And at that point,

Arabella cooperatively worked with the Department—

and continues to do so to this day—agreeing to obtain

an NPDES permit, to pay a fine, and to remediate any

harm that it may have caused. Yet despite these good

efforts, Arabella still must defend against a federal

lawsuit in which it faces financially ruinous civil

penalties and attorneys’ fees.

Lamentably, this quandary is not unique to

Arabella. Citizen suits, with their threat of lifechanging liabilities, are common. And these suits are

often leveraged by private enforcers to strong-arm

property owners into settlements. See Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.

167, 209–10 (2000) (Scalia, J., dissenting) (observing

how citizen plaintiffs’ “massive bargaining power . . .

is often used to achieve settlements requiring the

defendant to support environmental projects of the

plaintiffs’ choosing”). See also Marc Robertson,

Environmental Ambulance Chasing: DOJ Urges Court

To Scrutinize Clean Water Citizen-Suit Settlements,

Forbes (June 26, 2018) (describing a Department of

Justice court filing raising concerns about a law firm’s

abusive use of Clean Water Act citizen suits).13

Simply put, small businesses and property owners

should not face ruinous federal lawsuits after they

have already been subject to state enforcement

actions and are working with the authorities to

comply with the law. But the Fourth Circuit’s decision

13 Available at https://bit.ly/3R0xFIW.

35

restricting the diligent prosecution bar makes that

situation much more likely.

3. By limiting the diligent prosecution bar, the

Fourth

Circuit’s

decision

also

undermines

environmental protection. Indeed, the overenforcement of environmental laws through

duplicative actions like unbarred citizen suits can

“discourage voluntary environmental improvements,

such as those which can result from cooperative

compliance efforts.” Jonathan H. Adler, Stand or

Deliver: Citizen Suits, Standing, and Environmental

Protection, 12 Duke Envtl. L. & Pol’y F. 39, 69 (2001).

In this way, the “adversarial approach” to

environmental protection “precludes opportunities for

creative solutions that a more collaborative system

might encourage.” Id. (citation omitted). The Fourth

Circuit’s decision will make this problem worse.

Narrowing the diligent prosecution bar—thus

increasing the prospect of citizen suits after State

administrative proceedings have commenced—will

discourage small businesses and property owners

from working with their States to remediate

environmental harm. See Frank B. Cross, Rethinking

Environmental Citizen Suits, 8 Temp. Envtl. L. &

Tech. J. 55, 67–68 (1989).

There is little incentive for States, small

businesses, and property owners to cooperate and

settle disputes when they know that a duplicative

federal lawsuit is just around the corner. This will

invariably lead to delays in environmental

remediation

and

undermine

environmental

protection. Cf. Scituate, 949 F.2d at 556 (noting

duplicative actions would be “impediments to

environmental remedy efforts”).

36

C. The Petition presents a good vehicle for this

Court to provide a uniform, clear, and

administrable test for determining when the

diligent prosecution bar applies

The question presented—what is the proper test

for when the Clean Water Act’s diligent prosecution

bar applies?—has befuddled the lower courts,

resulting in entrenched conflict. Resolution of this

conflict is important, given how common

administrative penalty procedures like South

Carolina’s are, as well as the great threats to

federalism and to property owners that are posed by

citizen suits that cease being “interstitial” and instead

become “intrusive.” In short, the question presented

merits review. For several reasons, this Petition

provides the Court with a good vehicle for that review.

First, the pertinent conflicts are squarely

presented. The Fourth Circuit issued a published

decision expressly holding that Naturaland’s citizen

suit can continue because the Department’s Notice of

Violation against Arabella did not meet the diligent

prosecution bar’s requirements under 33 U.S.C.

§ 1319(g)(6)(A)(ii).

App.A-11–15.

As

Judge

Quattlebaum’s dissent explains, critical to that

holding was the panel majority’s conclusion that the

Notice of Violation could not trigger the diligent

prosecution bar because “a proceeding commenced by

a Notice of Violation is not comparable to the federal

proceedings.” App.A-27. See also App.A-21–22

(explaining that South Carolina’s Notice of Violation

would qualify under any plausible interpretation of

“commence” that is not infected by the majority’s

erroneous analysis). Yet, as the dissent also explains,

the panel’s collapsing of commencement with

37

comparability—and its employment of a hyperexacting standard for the latter—cannot be reconciled

with either the “overall” or the “rough” comparability

case law. App.A-27–30.

Second, a ruling reversing the Fourth Circuit’s

decision and adopting a version of either the overall or

roughly comparable standard would provide Arabella

with substantial relief. As Judge Quattlebaum’s

dissent cogently explains, employment of either of

those comparability standards, coupled with a

normal, uncondensed textual analysis of the

remaining elements of the diligent prosecution bar,

would mean that Naturaland’s civil penalty action

against Arabella would be barred. It is also likely that

on remand Naturaland’s request for injunctive relief

would come to naught. See App.A-46–49. (“[S]atisfying

33 U.S.C. § 1319(g)(6)(A)(ii) necessarily implies the

state’s prosecution was ‘diligent’ and ‘comparable’ to

the federal standard. If that is the case, I do not see

how an injunction—which by its nature is telling the

agency it was not doing enough—would be justified.”).

And with the dismissal of all of Naturaland’s federal

claims, it is likely that the District Court would again

decline to exercise supplemental jurisdiction over

Naturaland’s state-law claims. App.B-21.

Third, now is the right time for the Court to

resolve the conflict. Over the last thirty-plus years,

almost every Court of Appeals has weighed in on the

diligent prosecution bar’s meaning, yet the result has

been nothing but growing conflict among the Circuits,

increased threats to Congress’s design for cooperative

federalism, and sharply decreasing solace for hapless

property owners like Arabella. Moreover, with the

Fourth Circuit’s adoption of an exactly comparable

38

standard, the gamut of interpretive choices has been

run, thus undercutting any argument for awaiting

further percolation.

CONCLUSION

The petition for writ of certiorari should be

granted.

DATED: January 2023.

Respectfully submitted,

FRANK D. GARRISON

Counsel of Record

Pacific Legal Foundation

3100 Clarendon Blvd., Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

FGarrison@pacificlegal.org

ELIZABETH B. PARTLOW

Law Offices of Elizabeth B.

Partlow, LLC

1800 Platt Springs Rd.

West Columbia, SC 29169

Telephone: (803) 814-0868

beth@partlowlaw.com

Damien M. Schiff

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

DSchiff@pacificlegal.org

Adam B. Lambert

Acker Lambert Hinton, P.A.

859 Pendleton St.

P.O. Box 9

Pickens, SC 29671

Telephone: (864) 878-1184

adam@alhfirm.com

Counsel for Petitioners