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

Appendix

Table of Appendices

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

Appendix A-1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-1517

___________________

NATURALAND TRUST; SOUTH CAROLINA

TROUT UNLIMITED; UPSTATE FOREVER,

Plaintiffs - Appellants,

v.

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

KEN SMITH; SHARON SMITH; WILLARD R.

LAMNECK, JR.,

Defendants - Appellees.

-----------------------------SOUTH CAROLINA COASTAL CONSERVATION

LEAGUE; CHARLESTON WATERKEEPER,

Amici Supporting Appellants.

SOUTH CAROLINA CHAMBER OF COMMERCE,

Amicus Supporting Appellee.

___________________

Appeal from the United States District Court for the

District of South Carolina, at Greenville. Joseph

Dawson, III, District Judge. (6:20-cv-01299-JD)

___________________

Argued: May 5, 2022

Decided: July 20, 2022

___________________

Appendix A-2

Before MOTZ, QUATTLEBAUM, and HEYTENS,

Circuit Judges.

___________________

Reversed and remanded by published opinion. Judge

Heytens wrote the opinion, in which Judge Motz

joined. Judge Quattlebaum wrote a dissenting

opinion.

___________________

ARGUED: Michael George Martinez, SOUTH

CAROLINA ENVIRONMENTAL LAW PROJECT,

Greenville, South Carolina, for Appellants. Elizabeth

Bartlett Partlow, LAW OFFICES OF ELIZABETH B.

PARTLOW, LLC, West Columbia, South Carolina, for

Appellees. ON BRIEF: Amy Armstrong, Lauren M.

Milton, SOUTH CAROLINA ENVIRONMENTAL

LAW PROJECT, Georgetown, South Carolina, for

Appellants. Adam B. Lambert, ACKER LAMBERT

HINTON, P.A., Pickens, South Carolina, for

Appellees. Geoffrey R. Gisler, Alex J. Hardee,

SOUTHERN ENVIRONMENTAL LAW CENTER,

Chapel Hill, North Carolina, for Amici South Carolina

Coastal Conservation League and Charleston

Waterkeeper. Karen Aldridge Crawford, KLAC LAW

LLC, Columbia, South Carolina; Michael S.

Traynham, NEXSEN PRUET, LLC, Columbia, South

Carolina, for Amicus South Carolina Chamber of

Commerce.

___________________

TOBY HEYTENS, Circuit Judge:

The Clean Water Act contains a citizen-suit

provision allowing adversely affected persons to sue

polluters in federal court. 33 U.S.C. § 1365(a)(1). The

Act also contains a provision stating that a violation

Appendix A-3

of its requirements “shall not be the subject of a civil

penalty action under . . . section 1365” if a State “has

commenced and is diligently prosecuting an action

under a State law comparable to” the federal scheme

for assessing civil penalties. § 1319(g)(6)(A)(ii). The

main question here is whether a state agency’s notice

of an alleged violation for failure to obtain a required

permit, without more, “commence[s] . . . an action”

within the meaning of that provision. Because we

conclude it does not, we reverse the district court’s

judgment and remand for further proceedings.

I.

Intending to operate “a working farm with an

orchard and vineyard, and later an event barn for

weddings and other celebrations,” Ken and Sharon

Smith formed Arabella Farm, LLC. Farm Br. 2. The

farm was built on property purchased by another

Smith vehicle called Dakota Finance, LLC, and

abutted land owned by the Smiths’ son-in-law, Willard

Lamneck, Jr. Like the parties, we refer to the Smiths,

Lamneck, and the two LLCs collectively as Arabella

Farm.

Arabella Farm’s site borders South Carolina’s

Jocassee Gorges area and is bounded by three bodies

of water—Clearwater Branch, Peach Orchard Branch,

and an unnamed tributary of the Eastatoe River. In

2017, Arabella Farm began clearing 20 acres of land

to create its venue. The clearing process dramatically

altered the steep, mountainous landscape and

exposed the underlying granular soil. Although such

an extensive land disturbance ordinarily would

require obtaining stormwater permits and adhering to

other regulations, see 40 C.F.R. § 122.26(a)(1)(ii),

(9)(i)(B), (c)(1), Arabella Farm claimed its work fell

Appendix A-4

within an agricultural exemption to the Clean Water

Act’s requirements. Before starting work, Arabella

Farm did not seek any permits or install sediment or

stormwater control measures, which allegedly

resulted in significant discharges of sediment-laden

stormwater onto nearby property and caused

widespread erosion and other detrimental impacts.

Arabella Farm’s activities eventually caught the

attention of government regulators. In April 2019, the

South Carolina Department of Health and

Environmental Control (Department) conducted an

inspection to evaluate the farm’s compliance with the

National Pollutant Discharge Elimination System

(NPDES) program. The Clean Water Act regulates

“point sources” that discharge pollutants and

authorizes States to issue NPDES permits for such

discharges. 33 U.S.C. § 1342. The permit program is

administered through a scheme of cooperative

federalism—the Environmental Protection Agency

allows South Carolina to administer its own permit

program in lieu of the federal one, see § 1342(b); 40

Fed. Reg. 28,130 (July 3, 1975), and the Department

enforces the State’s requirements, see S.C. Code §§ 481-10 et seq.

Subsequent site inspections revealed inadequate

stormwater controls, significant erosion, and off-site

impacts. In August 2019, the Department sent a letter

advising Arabella Farm that it was required to obtain

an NPDES permit and instructing the farm “to cease

and desist any activity at the [s]ite other than the

installation and maintenance of storm water,

sediment and erosion control measures as directed by

its design engineer.” JA 57–58. In September 2019,

the Department sent the farm a “Notice of Alleged

Appendix A-5

Violation/Notice of Enforcement Conference” and

informed the farm of a voluntary “informal”

enforcement conference scheduled for the end of that

month. JA 54, 58–59. The conference would be “closed

to the public and media.” JA 59.

In November of the same year, Naturaland Trust

and Trout Unlimited—non-profit organizations

dedicated to conserving land, water, and natural

resources—sent a notice of intent to sue letter to the

Smiths, Lamneck, and the registered agent of Dakota

Finance. As the statute requires, the letter detailed

the alleged violations of the Clean Water Act. See 33

U.S.C. § 1365(b)(1)(A).

EPA regulations also require such notices to

include “sufficient information to permit the recipient

to identify . . . the full name, address, and telephone

number of the person giving notice.” 40 C.F.R.

§ 135.3(a). The letter described Trout Unlimited as a

“national non-profit” with “two local chapters in the

Upstate of South Carolina” and “many members who

regularly utilize the Eastatoe River and Little

Eastatoe Creek in the vicinity of the [Smiths’]

properties,” and listed its name and address as: “Trout

Unlimited, C/O Greg Placone, P.O. Box 27172,

Greenville, S.C[.] 29616.” JA 63–64, 76. At the bottom,

the letter suggested contacting counsel—Michael

Corley of the South Carolina Environmental Law

Project—and provided Corley’s address and phone

number.

After the required 60-day notice period elapsed,

see 33 U.S.C. § 1365(b)(1)(A), Naturaland Trust and

South Carolina Trout Unlimited (together, the

conservationists) sued Arabella Farm in federal court.

Appendix A-6

JA 21–48.1 The complaint was signed by Michael

Corley of the South Carolina Environmental Law

Project with the same contact information provided in

the notice of intent to sue letter. It identified South

Carolina Trout Unlimited as “our state’s affiliate of

Trout Unlimited, a national non-profit group,” and

explained that South Carolina Trout Unlimited “has

dozens of members who utilize the waters

downstream of Defendants’ properties”—including

the “Eastatoe River and Little Eastatoe Creek”—“for

trout fishing and other recreational opportunities.” JA

24–25. The complaint alleged that Arabella Farm’s

unpermitted land-clearing project violated the Clean

Water Act and resulted in various state law torts. As

relief, the conservationists sought an injunction and

civil penalties to be paid to the United States Treasury

under federal law and injunctive relief and damages

under state law.

A month after the conservationists filed their

complaint, Arabella Farm and the Department

entered into a consent order. The order imposed a

$6,000 penalty and required the farm to obtain an

NPDES permit, submit a stormwater plan and site

stabilization plan, and conduct a stream assessment

and any recommended remediation.

The district court dismissed the conservationists’

complaint. As relevant here, the court concluded that:

(1) it lacked subject matter jurisdiction over the

conservationists’ Clean Water Act claims because the

Department had commenced and was diligently

prosecuting an action for the same violations; (2) even

if the Clean Water Act claims were otherwise valid,

Another entity, Upstate Forever, also was listed on the

complaint but has not appealed its dismissal from this suit.

1

Appendix A-7

South Carolina Trout Unlimited was not a proper

party because it failed to correctly identify itself in

line with the Act’s notice requirements; and (3) having

dismissed the federal claims, it would not exercise

supplemental jurisdiction over the state law claims.

II.

The district court erred in concluding that the

diligent

prosecution

bar

precluded

the

conservationists’ federal claims.

A.

A few introductory words about terminology. The

Clean Water Act provides that “any citizen may

commence a civil action on his own behalf against any

person . . . who is alleged to be in violation of an

effluent standard or limitation.” 33 U.S.C.

§ 1365(a)(1)(A). The Act further states that “[t]he

district courts shall have jurisdiction . . . to enforce

such an effluent standard or limitation . . . and to

apply any appropriate civil penalties.” § 1365(a). As

noted earlier, however, the Act contains a carve-out—

which we will call the diligent prosecution bar—

providing that a “violation . . . shall not be the subject

of a civil penalty action under . . . section 1365” if “a

State has commenced and is diligently prosecuting an

action” with respect to that same violation “under a

State law comparable” to the federal scheme for

assessing civil penalties. § 1319(g)(6)(A)(ii). The Act

also includes an analogous provision—which we will

call the judicial proceeding bar—that precludes a

private action if a State or the EPA is diligently

prosecuting a civil or criminal case in court (as

opposed to in an administrative proceeding).

§ 1365(b)(1)(B).

Appendix A-8

This Court has previously stated that the judicial

proceeding bar contained in Section 1365(b)(1)(B) is

“an exception to the jurisdiction granted in subsection

(a) of § 1365” and affirmed dismissals under Rule

12(b)(1) for lack of subject matter jurisdiction in

situations where that bar applied. Piney Run Pres.

Ass’n v. Commissioners of Carroll County, 523 F.3d

453, 456 (4th Cir. 2008) (quoting Chesapeake Bay

Found. v. American Recovery Co., 769 F.2d 207, 208

(4th Cir. 1985) (per curiam)). Quoting that same

language, the district court concluded it lacked subject

matter jurisdiction over the federal claims in this case

because of the diligent prosecution bar in Section

1319(g)(6)(A)(ii).

Given our existing precedent, the district court’s

statement that—when it applies—the diligent

prosecution implicates a federal court’s jurisdiction

was entirely understandable. In our view, however,

such an approach is untenable given the Supreme

Court’s current approach to such matters.

As the Supreme Court has repeatedly emphasized

in recent years, “jurisdiction” “is a word of many, too

many, meanings.” Fort Bend County v. Davis, 139 S.

Ct. 1843, 1848 (2019) (quoting Kontrick v. Ryan, 540

U.S. 443, 454 (2004), in turn quoting Steel Co. v.

Citizens for Better Env’t, 523 U.S. 83, 90 (1998)).

Although

courts—including

this

one—have

“sometimes been profligate in [their] use of the term,”

Arbaugh v. Y&H Corp., 546 U.S. 500, 510 (2006), the

Supreme Court has “tried in recent cases to bring

some discipline to the use of” the label “jurisdictional,”

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

Under the Supreme Court’s current approach, the

threshold question is whether “there is any ‘clear’

Appendix A-9

indication that Congress wanted [a particular] rule to

be ‘jurisdictional.’” Id. at 436. If not, the rule is almost

never properly labeled jurisdictional “unless it

governs a court’s adjudicatory capacity.” Id. at 435.

This is so even when the rule in question is

“mandatory” or constitutes a “precondition[ ] to relief.”

Fort Bend County, 139 S. Ct. at 1849; see id. at 1849–

50 (collecting cases holding such rules are nonjurisdictional).

Under those standards, the diligent prosecution

bar does not implicate a court’s jurisdiction. The

diligent prosecution bar “is not clearly labeled

jurisdictional” and “is not located in a jurisdictiongranting provision.” Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154, 166 (2010). Instead, it merely prohibits

certain violations from being “the subject of a civil

penalty action.” 33 U.S.C. § 1319(g)(6)(A)(ii). Nor is

there any indication that the diligent prosecution bar

is meant to “govern[ ] [the] court’s adjudicatory

capacity.” Henderson, 562 U.S. at 435. To the

contrary, the relevant provision references the citizenplaintiff bringing suit, not the court. Cf. Friends of the

Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167,

175 (2000) (noting that the Clean Water Act “bars a

citizen from suing if the EPA or the State has already

commenced, and is diligently prosecuting, an

enforcement action” (quotation marks omitted,

emphasis added)).2

2 Section 1365(a) does use the word “jurisdiction” at one point.

See 33 U.S.C. § 1365(a) (“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 . . . and to apply any appropriate civil penalties . . . .”).

But the diligent prosecution bar is neither contained in nor

Appendix A-10

The notion that the judicial proceeding bar

implicates subject matter jurisdiction appears to have

originated from our 1985 decision in Chesapeake Bay

Foundation. Having reviewed that decision, however,

we conclude it was “the kind of drive-by jurisdictional

ruling of the sort that was more common before

Supreme Court decisions like Steel Company made

clear” the need for greater precision in the use of that

term. B.R. v. F.C.S.B., 17 F.4th 485, 496 (4th Cir.

2021) (quotation marks and alterations omitted). And

because our later decision in Piney Run had no

occasion to independently consider whether the

judicial proceeding bar was properly understood as

truly jurisdictional—in particular, because that case

involved no issues of waiver or forfeiture, cf. Miranda

v. Garland, 34 F.4th 338, 350 (4th Cir. 2022)—it

appears that Piney Run echoed Chesapeake Bay

Foundation’s drive-by jurisdictional ruling without

independent consideration. See Piney Run, 523 F.3d

at 456.

At any rate, this case involves the diligent

prosecution bar contained in Section 1319(g)(6)(A)(ii)

rather than the judicial proceeding bar at issue in

Chesapeake Bay Foundation and Piney Run. So,

although there may well be reason for skepticism

about whether the judicial proceeding bar is properly

labeled jurisdictional under the Supreme Court’s

current approach,3 we need not resolve that issue

references that portion of the statute. Instead, the diligent

prosecution bar is framed as an exception to the entirely separate

authorization to “commence a civil action” in the subsection’s

first provision.

3 Like the diligent prosecution bar, the judicial proceeding bar “is

not clearly labeled jurisdictional” and “is not located in a

Appendix A-11

here. Instead, we clarify that the diligent prosecution

bar does not implicate an Article III court’s subject

matter jurisdiction.

B.

We turn next to why the diligent prosecution bar

does not preclude this suit.

We start, as always, with the text. The diligent

prosecution bar is triggered by the State’s

“commence[ment]” of “an action under a State law”

that is “comparable to” the federal statute addressing

“administrative penalties” that the government may

assess for violations of the Clean Water Act. 33 U.S.C.

§ 1319(g)(6)(A)(ii).

In

contrast,

the

diligent

prosecution bar “shall not apply” to citizen suits “filed

prior to commencement of” such an action.

§ 1319(g)(6)(B)(i).

Whatever else the Department’s notice of alleged

violation may have started, it seems odd to describe it

as

commencing

“an

action.”

33

U.S.C.

§ 1319(g)(6)(A)(ii). In the legal context, the term

“action” typically refers to “an entire case or suit,” an

understanding that is “grounded in the Federal Rules

of Civil Procedure.” Tolbert v. Stevenson, 635 F.3d 646,

650 (4th Cir. 2011). True, the provision before us

references “an action under a State law” that is

jurisdiction-granting provision.” Reed Elsevier, 559 U.S. at 166.

Instead, it provides that “[n]o action may be commenced” if a

State or the EPA has already sued in federal or state court. 33

U.S.C. § 1365(b)(1)(B). Indeed, the judicial proceeding bar

appears in the same subsection as a mandatory 60-day notice

provision, see 33 U.S.C. § 1365(b)—precisely the kind of “time

prescriptions for procedural steps in judicial . . . forums” that

have been repeatedly deemed non-jurisdictional, Fort Bend

County, 139 S. Ct. at 1850 (collecting cases).

Appendix A-12

“comparable to” a federal administrative enforcement

proceeding rather than one filed in court. 33 U.S.C.

§ 1319(g)(6)(A)(ii). But the essential character of an

“action”—an adversarial proceeding initiated by a

formal, public document—remains. Cf. 1 Oxford

English Dictionary 128 (J.A. Simpson & E.S.C.

Weiner, eds., 1989) (defining “action” as “[t]he taking

of legal steps to establish a claim or obtain judicial

remedy”).

Examining the features of a Section 1319(g)

proceeding—which a state action must be

“comparable” to for the diligent prosecution bar to

apply—further supports our view of when an “action”

has been “commenced.” 33 U.S.C. § 1319(g)(6)(A)(ii).

In particular, Section 1319(g)(4) provides for certain

“rights of interested persons,” including rights to

public notice and judicial review. In addition, the rules

of practice governing Section 1319(g) proceedings

state that a proceeding “is commenced” by filing a

complaint or the simultaneous issuance of a consent

agreement and final order. 40 C.F.R. §§ 22.13, 22.38.

The same regulations further specify that, “before

assessing a civil penalty,” a complainant “shall notify

the public” either “within 30 days following proof of

service of the complaint on the respondent,” or “no less

than 40 days before the issuance of” a consent

agreement and final order assessing a civil penalty.

§ 22.45.

When asked about these regulations at oral

argument, Arabella Farm correctly pointed out that

they govern the EPA’s own proceedings rather than

those conducted under state law. Oral Arg. 18:50–

21:00. But these regulations help to inform our

understanding of when a “State has commenced” an

Appendix A-13

action that is “comparable” to the one set forth in 33

U.S.C. § 1319(g). And both Section 1319(g) and its

accompanying regulations suggest the diligent

prosecution bar would not be triggered until a state

agency has begun a comparable formal process that

entails public notice.

This understanding of what it means to commence

the relevant sort of action is only bolstered by the

comparability analysis that the district court

employed to assess whether the diligent prosecution

bar applied. The rough comparability analysis

employed by most of our sister circuits looks to

whether the state law provides similar opportunities

for public participation and availability of judicial

review. See, e.g., McAbee v. City of Fort Payne, 318

F.3d 1248, 1251–56 (11th Cir. 2003). And although

Arabella Farm and the district court pointed to 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, see S.C. Code § 48-1-200; JA 84,

neither of these features is available until after the

issuance of a departmental consent order. In other

words, the comparable features were not yet available

at the time this suit was filed because no comparable

action had yet commenced.

Our sister circuits have looked to similar features

in determining whether the Clean Water Act’s

diligent prosecution bar precludes a particular suit.

The Seventh Circuit has held that, “for 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.” Friends of Milwaukee’s Rivers v.

Appendix A-14

Milwaukee Metro. Sewerage Dist., 382 F.3d 743, 756

(7th Cir. 2004). The Eighth Circuit similarly

concluded that an action had “commenced” at the time

the State filed a consent administrative order,

explaining that once the order was issued, “interested

third parties had a right to intervene, and certain

notice and hearing procedures became available to

interested third parties.” Arkansas Wildlife Fed’n v.

ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir. 1994).4

In response, Arabella Farm insists the practices

of the EPA and the States—the “primary enforcer[s]”

of the Clean Water Act, Piney Run, 523 F.3d at 459—

take a more flexible view of what constitutes

“commencement.” For instance, Arabella Farm

contends that the Department considers a notice of

violation to be “the first step in the administrative

enforcement process,” JA 59, and quotes an EPA

publication that generally describes a notice of

violation as a “form of ” administrative enforcement

action, Farm Br. 23 (quotation marks omitted). But

the handful of public statements Arabella Farm

cites—none of which were made in the context of

defining

commencement

under

the

diligent

prosecution bar—cannot overcome the text of the Act,

which makes clear that 33 U.S.C. § 1319(g) is the

relevant comparator.

On the facts of this case, we do not think the

Department’s notice of alleged violation was enough

to commence an action that was comparable to one

The court recognized that States should be “afforded some

latitude in selecting the specific mechanisms of their

enforcement program” but never suggested that a process

without any of these features would be comparable under

§ 1319(g). Arkansas Wildlife, 29 F.3d at 380.

4

Appendix A-15

brought under federal law. That notice invited

Arabella Farm to an informal, voluntary, private

conference with the Department to discuss allegedly

unauthorized discharges. The notice mentioned no

penalties or sanctions that would flow specifically

from the failure to attend the conference. Of course, it

was possible that the Department would determine

Arabella Farm had violated the relevant provisions

and issue a unilateral administrative order or (as it

ultimately did) enter a consent order with Arabella

Farm that included a civil penalty. But the only

question here is whether the notice itself “commenced

. . . an action” of the relevant sort. 33 U.S.C.

§ 1319(g)(6)(A)(ii). Although the notice may have been

an important and even necessary step in the

Department’s process—like a demand letter before

civil litigation—it did not commence an action within

the common understanding of those terms. And

because the Department had not yet commenced an

action when the conservationists filed their citizen

suit, the diligent prosecution bar does not preclude

them from pursuing a civil penalty action. See 33

U.S.C. § 1319(g)(6)(B)(i) (providing that the diligent

prosecution bar does not apply if a citizen suit was

“filed prior to commencement of an action” by the EPA

or a State).5

Although Pickens County also conducted a separate

investigation into whether Arabella Farm should have obtained

a county-issued stormwater permit before starting its landclearing project, Arabella Farm has disclaimed reliance on those

enforcement efforts. Indeed, the diligent prosecution bar

precludes citizen suits only when a “State has commenced and is

diligently prosecuting” an action, 33 U.S.C. § 1319(g)(6)(A)(ii)

(emphasis added), and counties generally are not treated as

States for purposes of federal law, see, e.g., Lincoln County v.

5

Appendix A-16

III.

We also hold that the district court erred in

concluding that South Carolina Trout Unlimited was

not permitted to sue under the Clean Water Act.

The Act declares that no citizen suit “may be

commenced . . . prior to sixty days after the plaintiff

has given notice of the alleged violation . . . to any

alleged violator.” 33 U.S.C. § 1365(b)(1)(A). EPA

regulations, in turn, state that the relevant notice

“shall include sufficient information to permit the

recipient to identify . . . the full name, address, and

telephone number of the person giving notice.” 40

C.F.R. § 135.3(a). The district court concluded that

South Carolina Trout Unlimited failed to satisfy those

requirements because the notice of intent to sue letter

referenced only “Trout Unlimited” and contained “no

mention of” South Carolina Trout Unlimited. JA 19–

20.

We disagree. Although the letter did not contain

the specific words “South Carolina Trout Unlimited”

in that order, it described Trout Unlimited as a

“national non-profit” with “two local chapters in the

Upstate of South Carolina” and explained the same

basis for associational standing ultimately described

in the complaint (its members who use the Eastatoe

River and Little Eastatoe Creek to fish trout).

Compare JA 63–64, 76, with JA 24–25. Those details

gave Arabella Farm “sufficient information” to

identify the full name, address, and telephone number

of South Carolina Trout Unlimited, 40 C.F.R.

Luning, 133 U.S. 529, 530 (1890). Nor is there any claim that the

State delegated its own enforcement authority to Pickens

County.

Appendix A-17

§ 135.3(a)—the entity that eventually filed this suit.

Accord Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 629 F.3d 387, 400 (4th Cir. 2011)

(cautioning against “overly technical application of

regulatory notice requirements”).

We emphasize that plaintiffs can easily avoid

imprecision with names, addresses, and telephone

numbers and that more serious discrepancies that

make it cumbersome for a defendant to identify the

potential plaintiff may lead to dismissal under the

applicable law and regulations. Here, however, there

is no argument that Arabella Farm suffered any harm

or had any difficulty ascertaining the identity or

contact information of the party that would sue.

Accordingly, we reverse the district court’s ruling on

this point and direct that, on remand, South Carolina

Trout Unlimited be reinstated as a party.

*

*

*

The judgment of the district court is reversed, and

the case is remanded for further proceedings

consistent with this opinion.

SO ORDERED

QUATTLEBAUM, Circuit Judge, dissenting:

This appeal involves the scope of citizen suits

under the Clean Water Act. States hold “the primary

responsibilities and rights” in managing our nation’s

water resources. See 33 U.S.C. § 1251(b). In contrast,

citizen suits are intended to “supplement rather than

to supplant governmental action.” Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484

U.S. 49, 60 (1987). They are permissible if, but only if,

“the government cannot or will not command

compliance.” See id. at 62.

Appendix A-18

By permitting the citizen suit here to proceed

despite the measures South Carolina had already

taken, the majority’s decision elevates citizen suits

above their supplemental role. In my view, the South

Carolina Department of Health and Environmental

Control (“DHEC”) had commenced and was diligently

prosecuting an administrative penalty action under

state law comparable to 33 U.S.C. § 1319(g). Thus, I

would affirm the district court’s decision that

§ 1319(g)(6)(A) bars the claim for monetary penalties

in the citizen suit here.

My disagreement with the majority leaves open

Plaintiffs’ contention that their claims for injunctive

relief should have been preserved. On this issue, the

district court erred in concluding that the § 1319(g)

citizen suit bar automatically includes a bar on

injunctions. So, I would vacate the district court’s

dismissal of Plaintiffs’ injunction claims. And while I

am skeptical that the elements of an injunction could

be met when DHEC has commenced and is diligently

prosecuting an administrative penalty action under a

regulatory regime comparable to § 1319(g), I would let

the district court consider the merits of such claims on

remand.

I.

The Clean Water Act permits citizen suits against

any person who violated the Act’s water quality

standards. See 33 U.S.C. § 1365(a). But the principal

means of effectuating water quality standards is

through government enforcement. See Gwaltney, 484

U.S. at 60 (“The bar on citizen suits when

governmental enforcement action is under way

suggests that the citizen suit is meant to supplement

rather than to supplant governmental action.”); see

Appendix A-19

also Ohio Valley Env’t Coal. v. Fola Coal Co., LLC, 845

F.3d 133, 145 (4th Cir. 2017) (“Congress enacted the

citizen suit provision of the Clean Water Act to

address situations . . . in which the traditional

enforcement agency declines to act.”).

The government agency responsible for

enforcement can be the U.S. Environmental

Protection Agency or the U.S. Army Corps of

Engineers. See, e.g., 33 U.S.C. §§ 1319, 1344(s). But

the Clean Water Act’s cooperative federalism

framework makes clear that states and their

enforcement bodies are primarily in charge of

enforcement. See id. § 1251(b) (declaring Congress’s

policy that states hold “the primary responsibilities

and rights” to manage the nation’s water resources

and to consult with the EPA accordingly); see also New

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

Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992).

And citizen suits may be barred when the state is

in fact enforcing the Clean Water Act. This can

happen in two ways. First, if a state brought a lawsuit

in court similar to the citizen suit, the citizen suit may

be barred. See 33 U.S.C. § 1365(b) (“No action 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, if a state has commenced and is diligently

pursuing an administrative penalty action instead of

any formal lawsuit, the citizen suit may also be

barred. The Act states: “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

Appendix A-20

subject of a civil penalty action under . . . [the citizen

suit provisions].” Id. § 1319(g)(6)(A); see also McAbee

v. City of Fort Payne, 318 F.3d 1248, 1249 (11th Cir.

2003) (discussing how the 1987 amendments to the

Clean Water Act “extended the bar on citizen suits,

instructing that an administrative penalty action is

enough to preclude a citizen suit”).

These provisions make good sense. If citizen suits

are permitted when the government cannot or does

not act, they should not be allowed when the

government is enforcing the Clean Water Act through

a lawsuit or administrative proceedings.

II.

The question before us is whether, at the time of

Plaintiffs’ citizen suit, DHEC “[had] commenced and

[was] diligently prosecuting an action under a

State law comparable” to the federal statute

addressing administrative penalties.1 33 U.S.C.

§ 1319(g)(6)(A)(ii). For me, the answer is yes.

Therefore, I would affirm the district court’s dismissal

of the citizen suit to the extent that Plaintiffs seek

monetary penalties.

A.

Let’s start with whether South Carolina had

“commenced” an action at the time of Plaintiffs’ suit. I

will first explain why DHEC’s Notice of violation did,

Before that, the majority also concludes that the diligent

prosecution bar does not implicate subject matter jurisdiction,

and that our decisions to the contrary are “untenable” given

recent Supreme Court decisions on the matter. While I do not

disagree that some tension exists, this issue was not raised

below, was not briefed in front of us and is not a sufficient

condition to resolve the case. Thus, I would decline to address it.

1

Appendix A-21

in fact, commence an action and then discuss my

disagreement with the majority’s conclusion to the

contrary.

1.

Congress did not define “commence” in the Clean

Water Act. And prior to today, we have not had an

occasion to interpret the term. With no statutory or

precedential definition to rely on, I consider the

ordinary meaning of the word. See, e.g., Asgrow Seed

Co. v. Winterboer, 513 U.S. 179, 187 (1995) (“When

terms used in a statute are undefined, we give them

their ordinary meaning.”); Antonin Scalia & Bryan A.

Garner, Reading Law 69–77 (2012) (“The ordinarymeaning rule is the most fundamental semantic rule

of interpretation.”).

One way to identify the ordinary meaning of a

word is through dictionaries. Webster’s Dictionary

offers two definitions I consider applicable. One is

simple—to begin or to start. Commence, Webster’s

Third New International Dictionary (1986).2 The other

applies more to a legal proceeding like the one we

encounter here—to initiate formally by performing

the first act of a legal proceeding. Id.

But whichever definition we apply, what DHEC

did meets the definition of commencing an action.

Prior to the citizen suit, DHEC issued Arabella Farm

a Notice of Violation. This is the first step the agency

takes in enforcing its environmental laws. See DHEC,

2 Congress added the provision at issue, 33 U.S.C. § 1319(g), on

February 4, 1987. Water Quality Act of 1987, Pub. L. No. 100-4,

§ 314(a), 101 Stat. 7, 46–49. Of course, our modern

understanding of “commencement” remains essentially the

same.

Appendix A-22

Uniform Enforcement Policy for the Office of

Environmental

Quality

Control

(“Uniform

Enforcement Policy”), at § II.1 (1999) (“When, based

upon available information, it is determined that

there is a violation of any applicable statute,

regulation, standard, or permit, and the violation can

be adequately documented, a Notice of Violation will

be forwarded . . . .”).3

Importantly, South Carolina has authorized

DHEC to establish its enforcement procedure, see,

e.g., S.C. Code Ann. § 48-1-50, and, under that

authority, DHEC determined to begin those

procedures with a Notice of Violation. Reflecting this,

DHEC enclosed “An Overview of the Administrative

Enforcement Process” with its Notice to Arabella

Farm which states that DHEC’s Notice “is the first

step in the administrative enforcement process.” J.A.

54, 59 (emphasis added). From South Carolina’s

perspective, the Notice of Violation “began” and/or

“formally initiated” enforcement proceedings.

This Notice of Violation is more than just an

“informal” inquiry that the majority considers the

document to be. The Notice memorialized that DHEC

had investigated the matter, which included multiple

field visits, and that the agency corresponded with

Arabella Farm for almost six months. It accused

Arabella Farm of violating specific provisions of South

3 To be precise, DHEC issued a notice of alleged violation and

enforcement conference. DHEC issues such consolidated notice if

the agency “determines that a response to the Notice of Violation

is nonessential and that a conference to discuss the violation(s)

is desirable.” See DHEC, Uniform Enforcement Policy, supra, at

§ II.2. Of course, this distinction makes no difference in our

commencement analysis here.

Appendix A-23

Carolina’s environmental laws. And the Notice of

Violation demanded Arabella Farm’s presence to

explain its position on such accusations in front of

DHEC. Had Arabella Farm failed to attend the

conference, it would have risked an administrative

ruling requiring it to pay monetary penalties.4

Importantly, the Clean Water Act’s cooperative

federalism

framework

encourages

states

to

experiment with different regulatory approaches. See,

e.g., Sierra Club v. U.S. Army Corps of Eng’rs, 909

F.3d 635, 647 (4th Cir. 2018). Under that framework,

the state’s view of what commences its proceeding

should be respected. The Eighth Circuit recognized

this principle in Arkansas Wildlife Federation v. ICI

Americas, Inc., 29 F.3d 376 (8th Cir. 1994). It held that

“the states are afforded some latitude in selecting the

specific mechanisms of their enforcement program.”

Id. at 380. And because the state agency followed the

procedures as the agency itself outlined in accordance

with its state law, the Eighth Circuit concluded that

The Notice of Violation also discussed Pickens County’s

involvement in the matter. Prior to DHEC’s actions, Pickens

County issued notices of violation which alleged that Arabella

Farm “fail[ed] to obtain the required land disturbance, storm

water and/or sediment and erosion control permits.” See J.A. 55–

56. Eventually Pickens County and Arabella Farm entered into

a consent agreement, which required certain stabilization

measures but no permit. I need not decide whether the county’s

enforcement actions should be considered a part of DHEC’s

enforcement authority. But see, e.g., S.C. Code Ann. § 48-14-60

(allowing DHEC to delegate stormwater regulations to local

governments, in which such delegation may constitute an

activity by the state for purposes of 33 U.S.C. § 1319(g)(6)(A)(ii)).

But at minimum, the Notice of Violation makes clear that DHEC

was aware of Pickens County’s enforcement activities and found

such facts important enough to be included in the document.

4

Appendix A-24

the agency “commenced” an action within the

meaning of 33 U.S.C. § 1319(g)(6)(A)(ii). See id. We

should follow that deferential approach here. To me,

this resolves whether DHEC commenced an action.

2.

The majority reaches a different conclusion on

commencement. It finds that DHEC had not yet

commenced an “action” that is “comparable” to the

federal statute addressing administrative penalties.

For the reasons below, I disagree.

a.

The majority does not address the common

understanding of the word “commence.” Instead, it

begins its analysis by questioning whether the Notice

of Violation commenced an “action” for purposes of

§ 1319(g)(6)(A). Although the majority initially

insinuates that the definition of an “action” must

parallel what occurs in the lawsuit context—an

“entire case or suit”—it recognizes that the

appropriate reference point should be “a federal

administrative enforcement proceeding rather than

one filed in court.” See Maj. Op. 11. Rightfully so.

Everyone agrees that Congress contemplated

administrative penalty actions to be different from

lawsuits. See, e.g., id. at 7 (discussing the distinction

between the “diligent prosecution bar” and the

“judicial proceeding bar”). Thus, “action” must mean

something different from the definition used in a

lawsuit context.

The majority then proclaims that “the essential

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

initiated by a formal, public document.” Id. at 11.

Even assuming this to be the proper test, the majority

Appendix A-25

never applies it to the Notice of Violation or DHEC’s

enforcement proceedings. Doing so reveals that the

Notice meets the standard the majority adopts.

As I just described, DHEC’s enforcement

proceedings were certainly adversarial. In the Notice

of Violation, DHEC accused Arabella Farm of

violating South Carolina’s environmental laws and

required Arabella Farm to respond to such

accusations. Non-attendance would have risked an

assessment of monetary penalties and other

sanctions.

And the Notice of Violation was sufficiently

formal. The Notice outlined DHEC’s investigative

efforts and the laws DHEC accused Arabella Farm of

violating. In reality, aside from the difference in

labeling, the Notice of Violation was comparable to a

complaint in the lawsuit context. Under the Federal

Rules of Civil Procedure, a complaint must include

“(1) . . . grounds for the court’s jurisdiction . . . ; (2) a

short and plain statement of the claim showing that

the pleader is entitled to relief; and (3) a demand for

the relief sought.” Fed. R. Civ. P. 8(a). The Notice of

Violation included all those elements since it

discussed DHEC’s authority to administratively

adjudicate the dispute, the factual findings and the

alleged violation which could result in an

administrative order and monetary penalties.

Finally, the Notice of Violation, being an official

document from DHEC, was publicly available; a

concerned citizen could obtain the document through

a public records request. By its very nature, it is a

public document. S.C. Code Ann. § 48-1-270 (“Any

records, reports or information obtained under any

provision of [the South Carolina Pollution Control Act]

Appendix A-26

shall be available to the public.”); see also id. § 30-410, et seq. (South Carolina’s Freedom of Information

Act).

True, the Notice of Violation might not be as

easily visible as many pleadings filed in federal court.

The citizen must also request the agency documents.

But those issues concern degrees of accessibility, not

whether a document is “public.” After all, many state

court complaints and briefs are equally cumbersome

to detect and procure. Oftentimes such documents are

not readily available online and people must make

formal document requests from the courthouse.

In fact, the complaint makes clear that Plaintiffs

were aware of the various communications made by

DHEC. See J.A. 34–35 (alleging “dozens of

communications with Pickens County, DHEC, the

Corps, and the Department of Transportation”). At

minimum, the DHEC Board as a public body must

give public notice of their regular and special

meetings, specifying the dates, times, places and

agenda of such meetings. See S.C. Code Ann. § 30-480(A), (E). As a result, the public notice of the Board

meeting and the meeting’s agenda would sufficiently

alert interested persons such as Plaintiffs about

DHEC’s enforcement matters, prompting them to

unearth relevant agency documents such as the

Notice of Violation.

In sum, even under the majority’s own standard,

the Notice of Violation commenced an “action.”

b.

Next, the majority explains that federal

enforcement proceedings under § 1319(g) are initiated

by either an administrative complaint or a consent

Appendix A-27

agreement

after

which—based

on

federal

regulations—public notice is required within certain

time periods. The majority appears to reason that,

since South Carolina does not offer public notice until

a consent order is issued, a proceeding commenced by

a Notice of Violation is not comparable to the federal

proceedings. See Maj. Op. 12–13. (“In other words, the

comparable features were not yet available at the time

this suit was filed because no comparable action had

yet commenced.”).

Analytically speaking, the majority’s approach

here seems questionable. The comparability

requirement of § 1319(g)(6)(A) is not part of the

commencement inquiry. The statute provides 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

[§ 1319(g)] . . . shall not be the subject of a civil penalty

action . . . .” 33 U.S.C. § 1319(g)(6)(A). “Comparable”

does not describe or modify “commenced.” Thus, while

a comparison of the state and federal systems’ public

notice features is appropriate in examining whether

the state law is comparable to § 1319(g)—indeed, I do

so in Section II.C of my dissent5—such comparison

has no bearing on whether the Notice of Violation

commenced the proceedings.

In addition, the out-of-circuit cases relied on by

the majority for this point do not provide the support

it suggests. The majority first relies on the Eighth

Circuit’s decision in Arkansas Wildlife, 29 F.3d 376.

As discussed earlier, this decision undermines the

There I conclude that the public notice and participation

provisions under South Carolina law are comparable to those in

§ 1319(g).

5

Appendix A-28

majority’s position because the decision emphasizes

that courts should respect the enforcement procedures

created by the state. See id. at 380. In Arkansas

Wildlife, the plaintiff argued that the state’s issuance

of a consent order had not commenced an action

because it did not contain sufficient public notice and

participation rights. The plaintiff argued that a notice

of violation was required. The Eighth Circuit rejected

this argument. Despite the fact that the Arkansas

regulations provided more third-party notice and

hearing rights to a notice of violation than a consent

order, a consent order still constituted commencement

under Arkansas law. To the Eighth Circuit, courts

must respect Arkansas’ regulatory choice as to when

the state agency’s proceedings commenced. See id. at

379–80. The Arkansas regulation at issue did provide

“certain” third-party notice and hearing procedures

once the agency issued a consent order. But the court’s

decision was based on deference to the state’s

definition of commencement, not the public notice and

participation characteristics of the regulation. See id.

Deference here requires respecting South Carolina’s

decision that the Notice of Violation commenced the

state’s proceedings.

Next, the majority cites to the Eleventh Circuit’s

McAbee decision. But that decision explicitly declined

to address commencement. 318 F.3d at 1251 n.6 (“The

requirements of ‘commencement’ and ‘diligent

prosecution’ are not at issue in this appeal.”). And

while the court suggested administrative consent

orders might satisfy commencement, see id., that

dictum does not help define the outer limits of

commencement.

Appendix A-29

In fact, McAbee warns against the majority’s

conflation of the commencement and comparability

elements.

The

decision

makes

clear

that

“commencement,”

“diligent

prosecution”

and

“comparability” are three separate elements in which

the focus of comparability is state law, not

commencement or action. See id. at 1251 (“If the

AWPCA and the AEMA [the Alabama water pollution

and environmental management statutes] are

comparable to the federal CWA, then the district court

should have granted summary judgment for the City

if § 1319(g)(6)(A)(ii)’s commencement and diligentprosecution requirements were both satisfied.”).

Last, the majority points to the Seventh Circuit’s

decision in Friends of Milwaukee’s Rivers v.

Milwaukee Metropolitan Sewerage District, 382 F.3d

743 (7th Cir. 2004). In this case, before the citizen suit

was filed, the state agency negotiated a corrective

action plan, formally referred the matter to the

Wisconsin Department of Justice and filed

stipulations. Despite that, the court determined that

such actions “do not themselves qualify as the

commencement of an administrative enforcement

action that would serve to bar the plaintiffs’ suit.” See

id. at 755–57. Instead, it “h[e]ld that for 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.” Id. at 756.

While this case is the most helpful to the

majority’s analysis, important differences between

South Carolina’s and Wisconsin’s environmental laws

diminish that case’s persuasive value. Essential to the

Friends of Milwaukee’s Rivers decision was the fact

Appendix A-30

that the Wisconsin law lacked an administrative

penalty proceeding “comparable” to § 1319(g) in the

Clean Water Act; the state agency could only

prosecute the case through courts. See id. at 756–57.

Not South Carolina. Unlike in Wisconsin, not all

Clean Water Act violations in South Carolina must go

through court. South Carolina allows both lawsuits

and administrative penalty proceedings. See DHEC,

Uniform Enforcement Policy, supra, at § II.3 (“If the

party fails . . . to respond adequately to the Notice of

Violation, the Department may: (a) Seek relief

through the courts by referral of the matter to the

Legal Office; or, (b) Pursue the matter

administratively.”); S.C. Code Ann. § 48-1-50 (“The

Department may: . . . (3) Make, revoke or modify

orders requiring the discontinuance of the discharge

. . . (4) Institute or cause to be instituted, in a court of

competent jurisdiction, legal proceedings . . . .”).

This difference matters. Because Wisconsin’s law

did not have administrative penalty proceedings, the

Seventh Circuit could only analyze the state’s

enforcement policies by looking at when a lawsuit in

court commenced. And of course, lawsuits formally

start by filing a complaint. Because it is

distinguishable from the facts here, Friends of

Milwaukee’s Rivers does not provide the support that

the majority suggests.

c.

After discussing the characteristics of an action

and comparing the public notice and participation

features of South Carolina and federal law, the

majority holds that DHEC’s Notice of Violation did not

bar Plaintiffs’ citizen suit. It states that “we do not

think [DHEC’s] notice of alleged violation was enough

Appendix A-31

to commence an action that was comparable to one

brought under federal law.” Maj. Op. 14. But its only

real analysis here is to liken the Notice of Violation to

an invitation or “a demand letter before civil

litigation.” Id.

Respectfully, those comparisons are unfair. No

reasonable inquiry would view the Notice as a casual

offer to engage in a voluntary discussion. As noted

above, the Notice of Violation, at the risk of penalties,

compelled Arabella Farm to attend the conference and

address the specific accusations of violating South

Carolina’s environmental laws identified in the

document. And DHEC’s Notice of Violation is nothing

like a demand letter. A demand letter is not required

to commence civil litigation. In fact, many suits begin

without

any

demand

letter

or

advanced

communication between parties. In contrast, Notices

of Violation are, by virtue of DHEC’s official policies,

the first step in its enforcement process.

In short, the majority seems to brush aside the

statutory authority under which DHEC issued the

Notice, as well as the document’s adversarial nature

and substantive content. In doing so, the majority

improperly concludes that DHEC had not yet

“commenced” an “action” that is “comparable” to the

federal statute addressing administrative penalties.

B.

Next, I turn to the issue of diligent prosecution. “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 . . . diligence is presumed.”

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

Appendix A-32

Cnty., 523 F.3d 453, 459 (4th Cir. 2008). “This

presumption ‘is due not only to the intended role of the

[government] 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.’” Id. (alterations in original)

(quoting Friends of Milwaukee’s Rivers, 382 F.3d at

760).

There is no serious argument that DHEC failed to

diligently prosecute the enforcement proceedings. As

Arabella Farm rightfully points out, DHEC “achieved

the same results Plaintiffs allegedly seek,” such as

requiring Arabella Farm to obtain a stormwater

permit, assessing impacts from any discharge and

imposing civil penalties. See Resp. Br. 25. Further,

under the consent order DHEC negotiated, DHEC will

review Arabella Farm’s various plans and reports

pertaining to stormwater management, site

stabilization

and

stream

assessment

with

enforcement authority should Arabella Farm fail to

comply. See id. at 25–26.6

C.

Last, I consider whether DHEC’s administrative

proceeding against Arabella Farm was “an action

under a State law comparable to [§ 1319(g)].”

Plaintiffs do not even argue to the contrary. Instead, they

contend diligent prosecution, like commencement, requires

public notice and participation. This position muddles the

distinct requirements of § 1319(g)(6)(A)(ii), as I have addressed

in Section II.A.2. There is nothing in the provision suggesting

that a diligent prosecution must involve public notice and

participation.

6

Appendix A-33

1.

To begin this analysis, we confront a tricky

question of statutory interpretation. The statute says,

“any violation . . . (ii) 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.” 33 U.S.C.

§ 1319(g)(6)(A). This language raises the question of

whether “comparable” modifies “action” or “State

law.”

In my view, it is the state law that must be

comparable.7 Concluding otherwise would violate the

nearest reasonable referent canon. See Scalia &

Garner, supra, at 144–46 (“A pronoun, relative

pronoun, or demonstrative adjective generally refers

to the nearest reasonable antecedent.”). Consistent

with that, our prior decisions indicate “comparable”

describes “State law,” not “action.” See, e.g., United

States v. Smithfield Foods, Inc., 191 F.3d 516, 525–26

(4th Cir. 1999) (finding that “Virginia’s enforcement

scheme is not sufficiently comparable to [§ 1319(g)]”

and then declining “to address the issue of whether

the Commonwealth was diligently prosecuting an

administrative action” (emphasis added)); Sierra

Club, 909 F.3d at 654 (discussing what would be

required “for a state law to be comparable to

[§ 1319(g)]” (emphasis added)).

7 But even if it is the “action” that must be comparable, I do not

see how that leads to a different result here. Whether one is

comparing South Carolina law to § 1319(g) or an action under

South Carolina law to an action under § 1319(g), the same factors

outlined below would need to be considered.

Appendix A-34

2.

Having established that it is the state law that

must be comparable to its federal counterpart, how do

we analyze comparability? The Clean Water Act does

not provide a standard for determining what would

make a state law comparable to § 1319(g). But two

approaches have emerged from our sister circuits.

One approach is the “overall comparability” test,

adopted by the First and Eighth Circuits. Under this

test, courts assess whether the “the overall regulatory

scheme” is comparable, “even if the state law does not

contain precisely the same” provision that would be

found in the Clean Water Act. The state regulation is

comparable “so long as the state law contains

comparable penalty provisions which the state is

authorized to enforce, has the same overall

enforcement goals as the [Act], provides interested

citizens a meaningful opportunity to participate at

significant stages of the decision-making process, and

adequately safeguards their legitimate substantive

interests.” See Ark. Wildlife, 29 F.3d at 381–82; see

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

Scituate, 949 F.2d 552, 556 (1st Cir. 1991) (“It is

enough that the [state’s scheme] . . . contains penalty

assessment provisions comparable to the Federal Act,

that the State is authorized to assess those penalties,

and that the overall scheme of the two acts is aimed

at correcting the same violations, thereby achieving

the same goals.”), overruled on other grounds by

Blackstone Headwaters Coal., Inc. v. Gallo Builders,

Inc., 32 F.4th 99 (1st Cir. 2022) (en banc).

The alternative approach is the “rough

comparability” test, explicitly adopted by the Tenth

and Eleventh Circuits and implicitly adopted by the

Appendix A-35

Ninth Circuit. Under this test, “each category of

state-law provisions—penalty assessment, public

participation, and judicial review—must be roughly

comparable to the corresponding class of federal

provisions.” Paper, Allied-Indus., Chem. & Energy

Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d

1285, 1294 (10th Cir. 2005); see also McAbee, 318 F.3d

at 1255–56 (discussing how this approach is

preferable); Citizens for a Better Env’t-California v.

Union Oil Co. of California, 83 F.3d 1111, 1117–18

(9th Cir. 1996) (rejecting the First Circuit’s decision of

comparing “the state statutory enforcement scheme as

a whole”).

Our Circuit has not taken a position on this issue.

The most relevant precedent, Smithfield Foods, found

a Virginia enforcement scheme to not be sufficiently

comparable to § 1319(g) by affirming the district

court’s reasoning that the state law “did not give the

Commonwealth authority to assess administrative

penalties without the violator’s consent,[] and did not

provide adequate procedures for notice and public

participation.” See 191 F.3d at 525–26. But the court

did not specifically adopt one test over another.8

8 The Fifth and Sixth Circuit cases also present a mixed bag. The

Sixth Circuit framed the comparability issue as “if the overall

State regulatory scheme afford[ed] . . . a meaningful opportunity

to participate in the administrative enforcement process.” Jones

v. City of Lakeland, 224 F.3d 518, 523 (6th Cir. 2000). The Fifth

Circuit found the notice and comment provisions of the Louisiana

statute to be comparable to its Clean Water Act corollary, which

arguably is a focused approach echoing the rough comparability

analysis. But in doing so, the court cited to the First, Sixth and

Eighth Circuit decisions. See Lockett v. EPA, 319 F.3d 678, 683–

85 (5th Cir. 2003).

Appendix A-36

3.

But even under the more rigorous “rough

comparability”

approach—comparing

South

Carolina’s penalty assessment, public participation

and judicial review provisions with the corresponding

class of federal provisions—South Carolina’s

enforcement mechanism is comparable to § 1319(g).

To explain why, I begin with two guiding

principles in this analysis. First, comparable cannot

mean identical. See McAbee, 318 F.3d at 1252 (“[T]he

term ‘comparable’ means that the state law need only

be sufficiently similar to the federal law, not

identical.” (emphasis in original) (quoting Ark.

Wildlife, 29 F.3d at 381)). Second, the Clean Water

Act’s cooperative federalism framework welcomes

different regulatory practices developed by the states.

See, e.g., Sierra Club, 909 F.3d at 647. And under such

arrangement, citizen suits should not get in the way

of the state’s initiatives. See Gwaltney, 484 U.S. at 60;

33 U.S.C. § 1251(b) (“It is the policy of the Congress to

recognize, preserve, and protect the primary

responsibilities and rights of States to prevent,

reduce, and eliminate [water] pollution . . . .”).

With these principles in mind, I first look at South

Carolina’s public notice and participation provisions,

which is the main contention presented by Plaintiffs.

As an initial matter, South Carolina’s administrative

penalty enforcement process provides for public notice

and participation. See, e.g., S.C. Code Ann. §§ 30-4-80,

44-1-60, 48-1-150, 48-1-270 (discussing, respectively,

“Notice of meetings of public bodies,” “Appeals from

department decisions giving rise to contested case,”

“Situations in which public hearing is required or

Appendix A-37

authorized,” and “Availability of records, reports, and

information to the public”).

Plaintiffs maintain, however, that public notice

and opportunities for public participation must come

before any civil penalty order. They point out that,

assuming DHEC and Arabella Farm strike a deal

during the enforcement conference, DHEC may issue

a consent order. See DHEC, Uniform Enforcement

Policy, supra, at § IV.4.(b) (“If a determination is made

as a result of the conference that a Consent Order can

be mutually agreed to, the Department may issue

such order.”). And at least up to this point, there is no

obvious public notice. From Plaintiffs’ perspective,

aside from the hypervigilant watchdogs who follow

DHEC’s every move (and could accordingly make any

state FOIA requests to track documents, such as a

Notice of Violation, in advance), the first time an

average citizen would likely hear about the consent

order will be when those orders are briefed at the

DHEC Board meeting.

The problem with Plaintiffs’ position is that

§ 1319(g)(4)(A), the relevant section of the Clean

Water Act that addresses public notice and comment,

and is thus the basis for our comparability analysis,

does not impose a rigid requirement. It states that

“[b]efore issuing an order assessing a civil penalty

under this subsection the Administrator or Secretary,

as the case may be, shall provide public notice of and

reasonable opportunity to comment on the proposed

issuance of such order.” 33 U.S.C. § 1319(g)(4)(A)

(emphases added).

Considering § 1319(g)(4)(A)’s text, DHEC’s

procedures are comparable. As discussed above, the

Notice of Violation and other DHEC enforcement

Appendix A-38

documents are publicly available by request, and the

DHEC Board must notify the public of all their

meetings, including those that address administrative

enforcements. These meetings are open to the public.

S.C. Code Ann. § 30-4-60. But if that were not enough,

South Carolina provides additional opportunities for

public input. All administrative enforcement orders

are summarily published in the DHEC Board’s

meeting minutes. See DHEC, Uniform Enforcement

Policy, supra, at § IV.3 (“Reports on Consent and

Administrative Orders issued each month by the

Office of Environmental Quality Control shall be

made to the Board.”). Any interested party may

request the DHEC Board to review an action the party

disagrees with, which in turn could eventually lead to

a South Carolina administrative law court proceeding.

See S.C. Code Ann. § 44-1-60(B) to (G).

Thus, under South Carolina law, the opportunity

for an interested party to request the Board to

challenge the terms of the order—before a defendant

must comply with it—exists. Even if this procedure is

not what Plaintiffs view as optimal, South Carolina

law provides a “reasonable opportunity” to comment

on a consent order which is what § 1319(g)(4)(A)

requires. The public is notified of such consent orders

and has an opportunity to challenge them before the

order truly affects the regulatory subject.

My conclusion is similar to the Tenth Circuit

decision reached in Paper, 428 F.3d 1285. The Tenth

Circuit held that Oklahoma’s enforcement structure

was comparable to EPA’s—even though the laws did

not “require notice of an assessment to anyone other

than the violator.” See id. at 1295. The Tenth Circuit

ruled so because of the state’s laws that guaranteed a

Appendix A-39

right to an administrative hearing and the state’s

“Open Meetings Act” which required public notice of

all regular and special meetings. See id. at 1295–97.

South

Carolina’s

public

notice/participation

provisions are at least as robust as Oklahoma’s.

The Tenth Circuit also relied on the fact that the

EPA delegated to Oklahoma the authority to enforce

the National Pollutant Discharge Elimination System

(“NPDES”), since such delegation is permissible only

if the state has adequate public participation

procedures. See id. at 1296–97 (“Oklahoma’s publicparticipation provisions are comparable enough to

permit a delegation of CWA enforcement authority,

and we conclude they should also be deemed

comparable for the purposes of imposing the

jurisdictional bar . . . .”); see also 40 C.F.R. § 123.27(d)

(requiring the states to provide “intervention as of

right in any civil or administrative action” and to

“[p]ublish notice of and provide at least 30 days for

public comment on any proposed settlement”).

Just like in the Tenth Circuit’s case, the EPA also

approved South Carolina’s enforcement mechanism.

For a state to administer its own NPDES program, the

state must have its program approved by the EPA. See

33 U.S.C. § 1342(b). This approval is no rubber stamp.

The state must meet various requirements that are no

less stringent than the federal program, such as the

state having “adequate authority” to “abate violations

of the permit or the permit program, including civil

and criminal penalties and other ways and means of

enforcement.” Id. § 1342(b)(7). And should the EPA

decide upon periodic review that the state fails to meet

the federal standard, the Agency “shall withdraw

approval of such program.” See id. § 1342(c)(3).

Appendix A-40

In the case of South Carolina, the EPA approved

the state’s program thirty years ago. See 40 Fed. Reg.

28,130 (July 3, 1975) (NPDES program); 57 Fed. Reg.

43,733 (Sept. 22, 1992) (general permits). That

approval has survived periodic review as well. See,

e.g., EPA Region 4, State Review Framework: South

Carolina (Dec. 11, 2019). Thus, like in Paper, the

EPA’s approval of South Carolina’s standards bolsters

Arabella Farm’s argument that the South Carolina

law

is

comparable

to the EPA’s

public

notice/participation procedures when it comes to

administrative penalty actions.9

It may be true, as the majority points out, that the

EPA’s own regulations provide public notice and

participation opportunities a bit earlier than what

DHEC does. But the majority’s reliance on these

regulations is misplaced. Under the statute, we must

compare the state law to “this subsection.” 33 U.S.C.

§ 1319(g)(6)(A)(ii). “This subsection” refers to

§ 1319(g)—not a regulation made pursuant to

9 The cases cited by Plaintiffs do not lead to a different result.

Our Circuit’s Smithfield Foods decision is distinguishable

because that decision affirmed the district court’s finding that

the particular Virginia enforcement scheme at issue (“Special

Orders”) failed to provide public notice and participation

opportunities at all. See 191 F.3d at 524–25 (citing 965 F. Supp.

769, 795 (E.D. Va. 1997)). And South Carolina’s public notice and

participation laws are more robust than those addressed by the

Fifth, Sixth and Eleventh Circuits. Cf. Stringer v. Town of

Jonesboro, 986 F.3d 502, 508 (5th Cir. 2021) (discussing the lack

of periodic notice and right to an adjudicatory hearing in

Louisiana); Jones, 224 F.3d at 523–24 (discussing Tennessee’s

laws, which do not include regular publication of the Board’s

meeting minutes or an opportunity for the Board to reconsider);

McAbee, 318 F.3d at 1256 (discussing the inability for the public

to participate at all in Alabama).

Appendix A-41

§ 1319(g). And the EPA regulations are not

interpretive regulations that attempt to further define

or clarify what § 1319(g) means. “[T]hey govern the

EPA’s own proceedings rather than those conducted

under state law.” Maj. Op. 12.

Ironically, the EPA’s regulations would still not

bar Plaintiffs’ citizen suits because the advanced

public notice does not occur soon enough. Under the

EPA’s regulations, assessment of civil penalties

pursuant to § 1319(g) could “commence” by filing an

administrative “complaint.” See 40 C.F.R. § 22.13(a);

see also id. §§ 22.1(a)(6) (class II penalties), 22.50

(class I penalties).10 And with respect to an

administrative complaint, public notice is required

“within 30 days following proof of service of the

complaint.” See id. § 22.45(b)(1). Thus, although the

EPA’s regulations say the Agency commences an

action with the filing of the administrative complaint,

the public notice that the majority and Plaintiffs insist

is necessary to commence an action is not required

until 30 days after service of that complaint.

According to the majority’s reasoning and Plaintiffs’

theory, a citizen suit initiated after the EPA has filed

an administrative complaint but prior to public notice

would not be barred.

Having concluded that the public notice and

participation opportunities that DHEC provides is

comparable to § 1319(g), I also conclude that the other

10 Alternatively, if the parties agree to settle before the filing of

such complaint, “a proceeding may be simultaneously

commenced and concluded by the issuance of a consent

agreement and final order” (the final order being issued by either

EPA’s regional office or the Environmental Appeals Board). See

40 C.F.R. §§ 22.13(b), 22.18(b)(2), (3).

Appendix A-42

aspects of South Carolina’s enforcement proceedings

are likewise comparable. As for penalties, there is

very little difference between the federal and state

requirements concerning the penalty amounts and

what the agencies must consider. Compare 33 U.S.C.

§ 1319(g)(2), (3) (amount and factors to consider), with

S.C. Code Ann. § 48-1-330 (amount), and DHEC,

Uniform Enforcement Policy, supra, at § III.A (factors

to consider).

Finally, South Carolina’s right to judicial review

is broader than the Clean Water Act’s corollary.

Compare 33 U.S.C. § 1319(g)(8) (providing judicial

review to “[a]ny person against whom a civil penalty

is assessed under this subsection or who commented

on the proposed assessment of such penalty”), with

S.C. Code Ann. § 48-1-200 (“Any person may appeal

from any order of the Department within thirty days

after the filing of the order, to the court of common

pleas of any county in which the pollution occurs.”),

and S.C. Code Ann. § 1-23-380 (providing judicial

review to those “who ha[ve] exhausted all

administrative remedies available within the agency

and who is aggrieved by a final decision in a contested

case”).

For these reasons, even under the more rigorous

rough comparability test, DHEC’s administrative

penalty proceedings are comparable to § 1319(g).

D.

By issuing the Notice of Violation, DHEC

commenced and was diligently prosecuting an action

under state law comparable to § 1319(g). On that

Appendix A-43

ground, I would affirm the district court’s dismissal of

Plaintiffs’ claims for monetary penalties.11

III.

My conclusion on the citizen suit bar leaves open

one additional point raised by Plaintiffs. They claim

that even if South Carolina “has commenced and is

diligently prosecuting an action under a State law

comparable to [§ 1319(g)],” such action does not bar

the part of the citizen suit that seeks injunctive relief.

This is because, according to Plaintiffs, § 1319(g)(6)(A)

specifically bars only “civil penalty action[s],” not civil

actions generally. As argued by Plaintiffs, the former

is limited to a proceeding seeking monetary penalties

and does not include claims for injunctive relief. And

since Plaintiffs also seek injunctive relief, they insist

the injunctive portion of the lawsuit should survive.

A.

Our sister circuits are split as to whether 33

U.S.C. § 1319(g)(6)(A)’s citizen suit bar includes a bar

on actions that seek injunctions. The Eighth Circuit in

Arkansas Wildlife concluded that any bifurcation in

the citizen suit bar would be “unreasonable” since a

11 The majority also concludes that Plaintiffs satisfied the citizen

suit notice requirements under 33 U.S.C. § 1365(b)(1)(A), even

though “Trout Unlimited,” the entity listed in the notice letter, is

distinct from “South Carolina Trout Unlimited,” one of the

named Plaintiffs. See J.A. 63. I am not so sure. While the

individual responsible for contact may have been the same, these

two entities are legally distinct organizations, not just

interchangeable names. Making things less clear, there is more

than one chapter of Trout Unlimited in the upstate of South

Carolina. But since I consider 33 U.S.C. § 1319(g)(6) to bar all

Plaintiffs’ monetary penalty claims, I need not decide on the

notice issue.

Appendix A-44

citizen suit “could result in undue interference with,

or unnecessary duplication of, the legitimate efforts of

the state agency.” 29 F.3d at 383. The Tenth Circuit

in Paper disagreed, focusing on the text of the statute

and holding that 33 U.S.C. § 1319(g)(6)(A) has no

bearing on injunctions. 428 F.3d at 1299. The First

Circuit has recently spoken too. In Blackstone

Headwaters, 32 F.4th 99, the First Circuit reached the

same result as the Tenth Circuit. In doing so, the First

Circuit overruled its prior decision in Scituate, 949

F.2d at 558, which had held that the preservation of

injunctive relief notwithstanding 33 U.S.C.

§ 1319(g)(6) would be “absurd.”

While the Eighth Circuit’s reasoning may have

some logical appeal, the text of the Clean Water Act

itself supports the First and Tenth Circuits’ position.

The main statute governing citizen suits, § 1365(a),

permits a “civil action” “[e]xcept as provided in”

§ 1365(b) (notice requirements) and § 1319(g)(6). See

33 U.S.C. § 1365(a). And when one looks at

§ 1319(g)(6), that provision only refers to “civil penalty

action.” See id. § 1319(g)(6). In statutory

interpretation, we have a “duty to give each word

some operative effect where possible.” Duncan v.

Walker, 533 U.S. 167, 175 (2001) (internal quotation

omitted); see also Scalia & Garner, supra, at 170–74

(“A word or phrase is presumed to bear the same

meaning throughout a text; a material variation in

terms suggests a variation in meaning.”).

A deeper inquiry into § 1365(a) also makes a

distinction between penalties and an injunction clear.

“The district courts shall have jurisdiction . . . to

enforce such an effluent standard or limitation, or

such an order, or to order the Administrator to

Appendix A-45

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. § 1365(a). Breaking

this text down into the various orders that the district

court has jurisdiction over, on the one hand there are

orders to enforce an effluent standard or limitation

and relatedly to perform such acts/duties. These types

of orders are akin to an injunction. On the other hand,

there are orders to apply any appropriate civil

penalties. These types of orders primarily concern

damages. Since § 1365(a) allows for orders for

injunctive relief and for civil penalties, and

§ 1319(g)(6) only mentions civil penalties, I would not

broaden the scope of the citizen suit bar beyond the

text.

33 U.S.C. § 1319 bolsters the above distinction.

Under § 1319(b), “[t]he Administrator is authorized to

commence a civil action for appropriate relief,

including a permanent or temporary injunction, for

any violation for which he is authorized to issue a

compliance order under subsection (a) of this section.”

Id. § 1319(b) (emphases added). In contrast, § 1319(d)

separately authorizes “civil penalties.” Then,

§ 1319(g)(6)(A) bars civil penalty actions “under

subsection (d) of this section,” without reference to

§ 1319(b)’s authorization of injunctive relief. Any way

you slice it, the text goes against Arabella Farm.

Accordingly, a state administrative penalty action

does not bar a citizen suit to the extent it seeks an

injunction. Cf. Paper, 428 F.3d at 1300 (“[T]he

jurisdictional bar in 33 U.S.C. § 1319(g)(6)(A)(ii) does

not apply to equitable relief . . . .”). I would vacate the

district court’s dismissal of Plaintiffs’ injunctive

claims.

Appendix A-46

B.

Even so, an injunctive relief seems questionable

in a citizen suit when a state has commenced, and is

diligently prosecuting, an action under state law

comparable to § 1319(g). “An injunction is an

equitable remedy that ‘does not follow from success on

the merits as a matter of course.’” SAS Inst., Inc. v.

World Programming Ltd., 874 F.3d 370, 385 (4th Cir.

2017) (quoting Winter v. NRDC, 555 U.S. 7, 32 (2008)).

To prevail on the merits of an injunction, the plaintiff

must meet the four factors below:

(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as

monetary damages, are inadequate to

compensate for that injury; (3) that,

considering the balance of hardships between

the plaintiff and defendant, a remedy in

equity is warranted; and (4) that the public

interest would not be disserved by a

permanent injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391

(2006). “Satisfying these four factors is a high bar, as

it should be.” SAS, 874 F.3d at 385. Because “[a]n

injunction is a drastic and extraordinary remedy”

which “risks awarding more relief than is merited,” a

plaintiff must “meet a heavy burden before being

granted injunctive relief.” See id. (alteration in

original) (quoting Monsanto Co. v. Geertson Seed

Farms, 561 U.S. 139, 165 (2010)).

That burden is even greater when a state agency,

like DHEC here, has stepped in and diligently

prosecuted the matter. State enforcement efforts

inevitably tradeoff between environmental protection

Appendix A-47

and other state government priorities. As just one

example, states often must consider conservation

along with economic development. When a state

agency is the delegated authority to enforce the Clean

Water Act through the state’s laws and regulations

and has—after weighing the various interests and

hardships involved—decided to take particular

measures to address the harms caused by the violator,

we must defer to that decision. Failing to do so upsets

the balance of interests that states must strike.

As we said in Piney Run, state agencies are the

primary enforcers of the Clean Water Act, not the

courts. 523 F.3d at 459–60. And if courts grant

injunctive relief in citizen suits when a state agency is

diligently prosecuting environmental law violations,

“the public interest would be curtailed considerably.”

Id.; cf. Paolino v. JF Realty, LLC, 830 F.3d 8, 16 (1st

Cir. 2016) (concluding that the Rhode Island agency’s

ongoing involvement of the property, responsiveness

to the complaints/concerns, and resolution of the issue

“vitiat[e] the premise that a citizen suit is necessary

at all”).

The Supreme Court’s Gwaltney decision is

consistent with this view. After emphasizing that

citizen suits are “meant to supplement rather than to

supplant” government enforcements, the Supreme

Court discussed the negative consequences should

this maxim not be followed:

Suppose that the [EPA] Administrator

identified a violator of the Act and issued a

compliance order under [§ 1319(a)]. Suppose

further that the Administrator agreed not to

assess or otherwise seek civil penalties on the

condition that the violator take some extreme

Appendix A-48

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 Act 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.

484 U.S. at 60–61. I agree. In fact, granting injunctive

relief in citizen suits under circumstances like those

here and in Gwaltney would permit the tail—citizen

suits—to wag the dog—state enforcement of

environmental laws.

None of this is to say that citizen suits do not have

a proper role in the enforcement of environmental

laws. Congress has made clear that they do. But that

role exists when the state or federal agency is not

doing enough. See id. at 62. In contrast, satisfying 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.

Because I would vacate the portion of the district

court’s order that concludes 33 U.S.C. § 1319(6)(A)(ii)

bars claims for injunctive relief, I would remand that

Appendix A-49

issue to the district court to consider the merits of the

injunction claim.

IV.

Environmental law has been, and always will be,

a delicate balance between various competing

interests.12 The Clean Water Act is no exception.

Thus, while citizen suits play an integral role in

protecting our nation’s waters, the Act also sets clear

limits on when private citizens can step in instead of

the government. By determining that DHEC had not

commenced an administrative penalty action prior to

the citizen suit, the majority broadens the scope of

when citizen suits are permissible, overriding the

delicate balance that Congress established under the

Act.

I respectfully dissent.

See generally Richard J. Lazarus,

Environmental Law 24–42 (2004).

12

The

Making

of

Appendix B-1

Filed March 31, 2021

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

) Civil Action

) No. 6:20-cv-01299-JD

)

)

ORDER

)

Plaintiffs,

)

vs.

)

)

Dakota Finance, LLC

)

dba Arabella Farm, Ken

)

Smith, Sharon Smith,

and Willard R. Lamneck, )

)

Jr.,

)

Defendants. )

Naturaland Trust,

South Carolina Trout

Unlimited, and Upstate

Forever,

This matter is before the Court on Dakota

Finance, LLC dba Arabella Farm1 (“Dakota”), Ken

Smith, Sharon Smith, and Willard R. Lamneck, Jr.’s

(“Lamneck”) collectively (“Defendants”) motion to

dismiss Naturaland Trust (“Naturaland”), South

Carolina Trout Unlimited (“SCTU”), and Upstate

Although Plaintiff’s complaint refers to Dakota as “doing

business as” Arabella Farm, the Defendants assert in their

Response that Arabella Farm is a separate and distinct legal

entity known as Arabella Farm Event Center, LLC (“Arabella”).

(DE 9-1, p. 6, n. 2.) Ken Smith and Sharon Smith are members

of Dakota and Arabella. (DE 9, p. 2, n. 2.)

1

Appendix B-2

Forever’s (“Upstate”) (collectively the “Plaintiffs”)2

complaint for lack of subject-matter jurisdiction

pursuant to Rule 12(b)(1), Fed. R. Civ. P. (DE 9.)

Defendants contend this Court lacks subject matter

jurisdiction because (1) Plaintiffs’ citizen-suit claim

brought pursuant to the Clean Water Act (“CWA”)

fails to state a claim under the Act, (2) when a permit

has been issued, section 505 of the CWA does not

authorize citizens’ suits to challenge violations of the

404 permit, and (3) Upstate and SCTU’s claims are

barred because they failed to comply with the CWA’s

notice requirements.3 (DE 9, p. 1.) The parties have

filed responses and replies to the motion to dismiss.

(DE 13, 14.)

For the reasons set forth herein, the Court grants

the Defendants’ motion to dismiss for lack of subject

matter jurisdiction, pursuant to Rules 12(b)(1), Fed.

R. Civ. P.

BACKGROUND

Dakota is a limited liability company that holds

land and operates a farm/event center in Pickens

County, South Carolina. (DE 9, p. 3.) In 2015, Dakota

purchased a 72-acre parcel of land located at 125 Buck

Ridge Road, Pickens County, South Carolina

2 Naturaland and Upstate are non-profit organizations focused

on the protection of South Carolina’s land and waters. (DE 1, ¶ 618.) Naturaland also owns property adjacent to the subject

property. (DE 1, ¶ 38.) SCTU is South Carolina’s affiliate of Trout

Unlimited, a national non-profit group whose mission is to

conserve, protect and restore South Carolina’s coldwater

fisheries and watersheds. (DE 1, ¶ 6.)

Defendants also contend that without a basis for federal

jurisdiction, Plaintiffs’ remaining common-law claims in their

complaint should be dismissed. (DE 9, p. 1.)

3

Appendix B-3

(“Arabella Farm”). Defendants Ken Smith and Sharon

Smith are members of Dakota. (DE 1, ¶ 18.)

Defendant Lamneck owns a 5-acre parcel of land

located near Arabella Farm.4 (DE 1, ¶ 17.) (DE 9, p. 3.)

Arabella Farm is bounded by three bodies of water:

Clearwater Branch, Peach Orchard Branch, and an

unnamed tributary of the Eastatoe River (the

“Unnamed Tributary”). (DE 1, ¶ 38.) Plaintiffs

contend each of these waterbodies receives

stormwater discharges from Arabella Farm during

rain events, but the bulk of those discharges have

been into the Unnamed Tributary. (DE 1, ¶ 38.) The

Unnamed Tributary crosses from Arabella Farm onto

Naturaland’s property, then to property owned by the

South Carolina Department of Natural Resources,

and eventually into the Eastatoe River. (DE 1, ¶ 38.)

These water bodies are continuously flowing and

navigable waters of the United States, pursuant to the

CWA. (DE 1, ¶ 38.)

In 2017, Ken Smith and Sharon Smith formed

Arabella to operate the Event Barn and grounds on

Arabella Farm. (DE 9, p. 3.) During that time, Ken

Smith approached Pickens County with his proposal

to construct an event barn and to develop fruit

orchards and vineyards. (DE 9, p. 4.) As negotiations

with Pickens County progressed, the county informed

Dakota that it should have had a land disturbance

(stormwater) permit from the county. (DE 9, p. 4.)

Dakota hired a registered professional engineer and

4 Plaintiffs contend the construction project underlying this CWA

action consists of property owned by Dakota and Lamneck. (DE

9-10, p. 1, n. 1.) Plaintiffs contend the Smiths and Lamnecks are

related and have jointly undertaken the activities alleged in the

complaint. (DE 9-10, p. 1, n. 1.)

Appendix B-4

applied for the permit; however, the county rejected

several iterations of the permit application. (DE 9,

p. 4.) In April 2019, Dakota and the county entered a

Consent Agreement. (DE 9-1, p. 4.) The Consent

Agreement required stabilization of disturbed areas of

Arabella Farm but did not require Dakota to obtain a

stormwater permit. (DE 9-1, p. 4.)

On September 13, 2019, South Carolina

Department of Health and Environmental Control

(“DHEC”) issued Dakota a Notice of Alleged

Violation/Notice of Enforcement Conference.5 (DE 9-2,

p. 5.) Following a period of negotiation, DHEC and

Dakota finalized on May 6, 2020, a Consent Order

requiring Dakota to take several actions. (DE 9, p. 5.)

The Consent Order required Dakota to inter alia:

(1) Complete the process of obtaining coverage under

the National Pollutant Discharge Elimination System

(“NPDES”)

General

Permit

for

Stormwater

Discharges from Construction Activities with the

Pickens County Office of Stormwater Management

and (2) Pay to the Department a civil penalty. (DE 9,

p. 5-6.) As required by the Consent Order, Dakota

obtained coverage under the NPDES General Permit

for Stormwater Discharges from Construction

Activities on May 22, 2020. (DE 9-6, p. 6.)

Plaintiffs bring this action based on alleged

violations of the CWA pursuant to the Act’s citizen

suit provision, as well as several common-law claims

The Notice of Alleged Violation/Notice of Enforcement

Conference is the first step in DHEC’s enforcement process for

violations in all the environmental programs DHEC administers.

(DE 9, p. 5.) DHEC alleged Defendants violated various sections

of the Pollution Control Act pursuant to S.C. Code Ann § 48-190(A). (DE 9-2, p. 4.)

5

Appendix B-5

for damage to property interests. (DE 13, p. 1.)

Plaintiffs seek damages and injunctive relief as a

result of actions taken by Defendants. Plaintiffs

contend “even with the intervention of these [sic]

agencies, major unresolved damage persists in the

waterbodies surrounding the Defendants’ properties.”

(DE 13, p. 4.) On the other hand, Defendants argue

Plaintiffs are barred from bringing a citizens’ action

due to statutory limitations of the CWA and because

Defendants have already entered into consent

agreements with Pickens County and DHEC. (DE 9,

p. 6, 10.)

LEGAL STANDARD

Federal district courts are courts of limited

subject matter jurisdiction. “They possess only the

jurisdiction authorized them by the United States

Constitution and by federal statute.” United States v.

ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir.

2009). As such, “there is no presumption that the court

has jurisdiction.” Pinkley, Inc. v. City of Frederick, 191

F.3d 394, 399 (4th Cir. 1999) (citing Lehigh Mining &

Mfg. Co. v. Kelly, 160 U.S. 327, 327, 16 S. Ct. 307, 40

L. Ed. 444 (1895)). Indeed, when the existence of

subject matter jurisdiction over a claim is challenged

under Fed. R. Civ. P. 12(b)(1), “[t]he plaintiff has the

burden of proving that subject matter jurisdiction

exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647

(4th Cir. 1999); see also Richmond, Fredericksburg &

Potomac R.R. Co. v. United States, 945 F.2d 765, 768

(4th Cir. 1991). If subject matter jurisdiction is

lacking, the claim must be dismissed. See Arbaugh v.

Y & H Corp., 546 U.S. 500, 506, 126 S. Ct. 1235, 163

L. Ed. 2d 1097 (2006).

Appendix B-6

To determine whether jurisdiction exists, the

district court is to regard the pleadings’ allegations as

mere evidence on the issue and may consider evidence

outside the pleadings without converting the

proceeding to one for summary judgment. Richmond,

Fredericksburg & Potomac R. Co. v. U.S., 945 F.2d

765, 768 (4th Cir. 1991). The court may dismiss a case

for lack of subject matter jurisdiction for any of the

following bases: (1) the complaint alone; (2) the

complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint

supplemented by undisputed facts plus the court’s

resolution of disputed facts. Cosby v. S.C. Prob. Parole

& Pardon Servs., 2020 WL 1878193, 2020 U.S. Dist.

LEXIS 67026 (D.S.C. 2020) (citations omitted).

DISCUSSION

In this action, Plaintiffs present claims inter alia

under Section 402 of the CWA, 33 USC § 1342 alleging

unpermitted discharges from a construction site and

claims under Section 404 of the CWA, 33 U.S.C.

§ 1344(c) alleging placement of fill material without a

valid permit and in violation of a permit.6 (DE 1, p. 1619.) The CWA “prohibits ‘the discharge of any

pollutant by any person’ unless done in compliance

with some provision of the Act.” S. Fla. Water Mgmt.

Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95, 102,

124 S. Ct. 1537, 158 L. Ed. 2d 264 (2004) (quoting 33

U.S.C. § 1311(a)). One such provision, codified at 33

6 Section 402 of the CWA regulates pollutant discharges from a

“point source” into “waters of the United States” pursuant to a

NPDES permit issued by the EPA, or by a state that has received

approval to issue such a permit pursuant to CWA. Section 404 of

the CWA regulates the discharge of dredged or fill material into

waters of the United States, including wetlands.

Appendix B-7

U.S.C. § 1342, “established a National Pollution

Discharge Elimination System . . . that is designed to

prevent harmful discharges into the Nation’s waters.”

Nat’l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 127 S. Ct. 2518, 2525, 168 L. Ed. 2d 467

(2007). “Generally speaking, the NPDES requires

dischargers to obtain permits that place limits on the

type and quantity of pollutants that can be released

into the Nation’s waters.” The Piney Run Pres. Ass’n

v. The Cty. Comm’rs Of Carroll Cty., MD, 523 F.3d

453, 455–456 (4th Cir. 2008). “[A] NPDES permit

‘defines, and facilitates compliance with, and

enforcement of, a preponderance of a discharger’s

obligations under the [Act].” Id. Initially, “[t]he

Environmental Protection Agency (EPA) . . .

administers the NPDES permitting system for each

State, but a State may apply for a transfer of

permitting authority to state officials. If authority is

transferred, then state officials . . . have the primary

responsibility for reviewing and approving NPDES

discharge permits, albeit with continuing EPA

oversight.” Id. The EPA has delegated CWA

enforcement to South Carolina. 40 Fed. Reg. 28130

(July 3, 1975) (NPDES program); 57 Fed. Reg. 43733

(Sept. 22, 1992) (general permits program).7

“Although the primary responsibility for

enforcement rests with the state and federal

governments, private citizens provide a second level of

enforcement and can serve as a check to ensure the

7 “In order for the EPA to delegate enforcement authority under

the CWA to a state, the state must meet certain public

participation requirements, pursuant to 40 C.F.R. 123.27(d)”

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

Cont’l Carbon Co., 428 F.3d 1285, 1296 (11th Cir. 2005).

Appendix B-8

state and federal governments are diligent in

prosecuting Clean Water Act violations.” Sierra Club

v. Hamilton Cty. Bd. of Cty. Comm’rs, 504 F.3d 634,

637 (6th Cir. 2007). Specifically, § 505(a) of the CWA,

33 U.S.C. § 1365(a), authorizes citizens “to bring suit

against any NPDES permit holder who has allegedly

violated its permit.” Friends of the Earth, Inc. v.

Gaston Copper Recycling Corp., 204 F.3d 149, 152 (4th

Cir. 2000) (en banc). The Fourth Circuit has

recognized that citizen suits are critical to the

enforcement of the CWA, as it allows citizens “to abate

pollution when the government cannot or will not

command compliance . . . . However, citizen suits are

meant ‘to supplement rather than to supplant

governmental action,’ . . . .” Piney Run Pres. Ass’n, 523

F.3d at 456. Conversely, the CWA, specifically

§ 1365(b)(1)(B), “bars a citizen from suing if the EPA

or the State has already commenced, and is ‘diligently

prosecuting,’ an enforcement action. This 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.”

Id. (internal citations omitted).

1. Enforcement action

Defendants contend that the CWA bars citizen

suits in cases in which the EPA or the 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). (DE 91, p. 1.) The Defendants allege that “[a]t the time

Plaintiffs sent the 60-day notice letter required by the

Act, both Pickens County . . . and DHEC itself had

commenced enforcement actions against Defendants

Appendix B-9

for failure to obtain a stormwater permit and were

diligently pursuing them.” (DE 9-1, p. 3-4.)

In determining if a citizen’s suit is barred under

this section, courts will conduct a two-step inquiry.

The first inquiry is whether the agency suit seeks to

enforce the same standard, limitation, or order as the

citizen suit. See Connecticut Fund For Env’t v. Cont.

Plating Co., 631 F. Supp. 1291, 1293 (D. Conn. 1986).

The second inquiry is whether the government action

is being diligently prosecuted in court. See id. Plaintiff

bears the burden of proving an action is not diligently

being prosecuted. See Piney Run Pres. Ass’n, 523 F.3d

at 459. An 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.” Id. Courts have held that in

order to comply with this inquiry, an action must

proceed in court. See Kendall v. Thaxton Rd. LLC, No.

1:09-CV-3520-TWT, 2013 WL 210892, at *6 (N.D. Ga.

Jan. 18, 2013) (holding “[a]s no civil or criminal action

has been filed by the EPD against any Defendant in a

court, section 1365(b)(1)(B) does not preclude the

citizen suit here”). Since no civil action was pending,

Defendants’ motion to dismiss for lack of subject

matter jurisdiction must fail.

However,

Congress

has

adopted

an

administrative enforcement exception to the “in-court

prosecution” requirement of the CWA, which provides

in pertinent part:

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

Appendix B-10

that any violation . . . with respect to which a

State has commenced and is diligently

prosecuting an action under a State law

comparable to this subsection . . . .

33 U.S.C. § 1319(g)(6)(ii).

In other words, a citizens’ suit may also be pursued

through an administrative enforcement action.

“Courts that have addressed § 1319(g)(6)(A)(ii)—the

diligent-prosecution bar—have interpreted the

statute to bar citizen suits when three requirements

are satisfied.” McAbee v. City of Fort Payne, 318 F.3d

1248, 1251 (11th Cir. 2003) (internal quotations and

citations omitted). “First, the state must have

commenced an enforcement procedure against the

polluter. Second, the state must be “diligently

prosecuting the enforcement proceedings. Finally, the

state’s statutory enforcement scheme must be

comparable to the federal scheme promulgated in 33

U.S.C. § 1319(g).” Id.

In this case, the county’s Consent Agreement was

issued in April 2019, the DHEC administrative

enforcement action commenced with the Notice of

Alleged Violation issued on September 13, 2019, and

the complaint was filed on April 6, 2020. Thus, this

Court holds the state had commenced an enforcement

procedure and was diligently prosecuting the

enforcement proceeding. Therefore, the only

remaining consideration is the comparability

analysis.

“The text of the CWA and Supreme Court

precedent suggest a broad interpretation of the phrase

comparable State law.” McAbee, 318 F.3d at 1252. “In

the declaration of goals and policy under the CWA,

Appendix B-11

Congress expressly states that “[i]t is the policy of the

Congress to recognize, preserve, and protect the

primary responsibility and rights of the States to

prevent, reduce, and eliminate pollution....” Id. (citing

33 U.S.C. § 1251(b)) (emphasis added). Thus, “the

term comparable means that the state law need only

be sufficiently similar to the federal law, not

identical.” Id. (emphasis added).

The Federal Circuits have differed in how they

apply the comparability prong. Courts have either

followed the rough comparability standard or the

overall comparability standard.8 The McAbee Court

noted that requiring “rough comparability between

each class of provisions . . . reduces uncertainty not

only for courts but also for potential litigants, state

administrative agencies, and state legislatures.” Id.

Finally, while admitting that the most reliable

indicator of congressional intent is the language of the

statute, the court found the legislative history of the

1987 amendments to the CWA to be supportive of

“requiring rough comparability between each class of

provisions.” Id. at 1255–56. Thus, the court held “that

for state law to be ‘comparable,’ each class of state law

provisions must be roughly comparable to the

corresponding class of federal provisions.” Id. at 1256;

8 “As a rationale for applying an overall comparability test, the

First Circuit suggested that the correct legal standard should be

concerned primarily with whether corrective action already

taken and diligently pursued by the [state] government seeks to

remedy the same violations as duplicative civilian action. The

First and Eighth Circuits also highlighted the secondary nature

of citizens suits and the deference that should be afforded state

agencies.” McAbee, 318 F.3d at 1255 (internal citations and

quotations omitted). However, this is a less vigorous standard

than the rough comparability standard.” Id.

Appendix B-12

see also Paper, Allied-Industrial, Chem. & Energy

Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d

1285, 1294 (10th Cir. 2005) (“Therefore, we hold that

for 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.”).

Although the Fourth Circuit has not addressed

the appropriate standard, the rough comparability

standard imposes a more rigorous comparability

requirement, and therefore affords states less

deference. Accordingly, this Court will apply the

rough comparability standard, and thus, “must

compare each class of state-law provisions to its

federal analogue, at least until one class of provisions

fails the comparability test.” McAbee, 318 F.3d at

1256.

First, the penalty assessment provision of

§ 1319(g) is roughly comparable to South Carolina’s

civil penalties provision. See S.C. Code Ann. § 48-1330 (“Any person violating any of the provisions of this

chapter, or any rule or regulation, permit or permit

condition, final determination or order of the

Department, shall be subject to a civil penalty not to

exceed ten thousand dollars per day of such

violation.”) Under 33 U.S.C. § 1319(g)(2), the

administrator or the EPA may assess penalties for

Class I violations of $10,000 per violation up to an

aggregate penalty of $25,000. The EPA may also

assess penalties for Class II violations of $10,000 per

day up to an aggregate penalty of $125,000. Therefore,

South Carolina’s civil penalty of $10,000 per day for

Appendix B-13

violations with no cap is roughly comparable to the

CWA.9

Next, the Rights of Interested Persons provision

of the Federal statute is roughly comparable to

analogous South Carolina laws. The CWA “provides

for public participation in three ways: (1) a reasonable

notice and opportunity to comment before the

issuance of the proposed order assessing a civil

penalty; (2) the right to present evidence if a hearing

is held; and (3) the right to petition for a hearing if one

is not held.” Paper, Allied-Industrial, Chem. & Energy

Workers Int’l Union v. Cont’l Carbon Co., 428 F.3d

1285, 1295. The public notice provision of § 1319(g)

requires the Administrator or Secretary to provide

public notice and a reasonable opportunity to

comment on a proposed order before issuing that

order. See 33 U.S.C. § 1319(g)(4)(a). In applying this

statute, the EPA has mandated that public notice

must be provided within thirty days after a complaint

is issued but forty days before a penalty is assessed.

See 40 C.F.R. § 22.45(b)(1). Similarly, South Carolina

law provides:

The Department may conduct public hearings

prior to action in the following cases, either of

its own volition or upon the request of affected

persons, (a) an order of determination of the

Department requiring the discontinuance of

discharge of sewage, industrial waste or other

wastes into the waters of the State or air

contaminant into the ambient air, (b) an order

9 See McAbee, 318 F.3d at 1255 (holding the Alabama “penaltyassessment provisions are comparable” when it allows for a civil

penalty not more than $25,000 for each violation with the total

capped at $250,000).

Appendix B-14

issuing, denying, revoking, suspending or

modifying a permit, (c) a determination that a

discharge constitutes pollution of waters of a

marine district and (d) any other proceeding

resulting in a finding of fact or determination

that a discharge of air contaminants into the

ambient air or sewage, industrial waste or

other wastes into the waters of the State

contravenes the standards established for

such air and waters.

S.C. Code Ann. § 48-1-150.

Moreover,

with

regards

to

stormwater

management and sediment reduction, like the CWA’s

public participation provision, South Carolina law

provides for an administrative hearing “following a

timely request, to determine the propriety of [inter

alia]: . . . [a] citizen complaint concerning program

operation; [t]he requirements imposed by the

implementing agency for approval of the stormwater

management and sediment reduction plan; [t]he

issuance of a notice of violation or non-compliance

with the approved stormwater management and

sediment reduction plan; [and t]he issuance of fines by

an implementing agency . . . .” S.C. Code Ann. Regs.

72-313(a). Additionally, hearings “may be requested

by any person”, and “the Commission [sic] shall give

notice to all parties.” S.C. Code Ann. Regs. 72-313(d).

The notice will be given at least thirty days in advance

and will include the time, place, and nature of the

hearing. S.C. Code Ann. Regs. 72-313(d). Further, any

party has twenty days to file an exception to a hearing

officer’s proposal once it has been mailed, to

commence an appeal before the commission. See S.C.

Code Ann. Regs. 72-313.

Appendix B-15

Equally regarding NPDES permits, South

Carolina law provides that “[p]ublic notice of a public

hearing shall be given at least 30 days before the

hearing.” S.C. Code Ann. Regs. 61-9.124.10. Further,

any person can request to be placed on a mailing list

whereby the department must provide a copy of the

notice by mail. See id. at 124.10(c). In addition, “. . .

any interested person may submit written comments

on the draft permit and may request a public hearing,

if no hearing has already been scheduled. A request

for a public hearing shall be in writing and shall state

the nature of the issues proposed to be raised in the

hearing.” S.C. Code Ann. Regs. 61-9.124.11. Finally,

South Carolina law provides that:

A hearing shall be scheduled not less than

four (4) nor more than eight (8) weeks after

the Department determines the necessity of

the hearing in the geographical location of the

applicant or, at the discretion of the

Department, at another appropriate location,

and shall be noticed at least thirty (30) days

before the hearing. The notice of public

hearing shall be transmitted to the applicant

and shall be published in at least one (1)

newspaper of general circulation in the

geographical area of the existing or proposed

discharge identified on the permit application

and shall be mailed to any person or group

upon request therefor.

S.C. Code Ann. Regs. 61-9.124.12.

Appendix B-16

Therefore, the Rights of Interested Persons provision

of the CWA is roughly comparable to analogous South

Carolina public notice laws.10

Lastly, South Carolina also has a comparable

judicial review provision. The CWA provides a judicial

review to “[a]ny person against whom a civil penalty

is assessed under this subsection or who commented

on the proposed assessment of such penalty . . . .” 33

USCS § 1319. On the other hand, South Carolina

provides “[a]ny person may appeal from any order of

the Department within thirty days after the filing of

the order, to the court of common pleas of any county

in which the pollution occurs.” S.C. Code Ann. § 48-1200; see also S.C. Code Ann. § 1-23-380 (“A party who

has exhausted all administrative remedies available

within the agency and who is aggrieved by a final

decision in a contested case is entitled to judicial

review pursuant to this article and Article 1. . . . A

preliminary, procedural, or intermediate agency

action or ruling is immediately reviewable if review of

the final agency decision would not provide an

adequate remedy.”) Therefore, the judicial review

provisions of the CWA and South Carolina law are

roughly comparable.11

10 See McAbee, 318 F.3d at 1256 (holding that Alabama law was

not comparable to § 1319(g) because “[u]nlike the federal

provisions that ensure public notice before issuance of penalty

orders, the AEMA requires only ex post facto notice of

enforcement action”).

11 The Paper, Allied-Indus., Chem. And Energy Workers Int’l

Union Court, in construing the difference between the CWA and

Oklahoma law, found that “[t]he only apparent difference is the

fact that under the federal system, a commenter can seek judicial

review, while Oklahoma limits the right of review to those who

have been harmed. Such a difference does not preclude a

Appendix B-17

Notwithstanding this Court’s analysis, other

courts have relied on the fact that “the EPA’s

delegation of enforcement authority to [the state]

under the Clean Water Act through the National

Pollutant Discharge Elimination System (“NPDES”)

significantly mitigates any concerns that [state] law is

not comparable to subsection 1319(g).” Paper, AlliedIndus., Chem. And Energy Workers Int’l Union, 428

F.3d at 1296. In concluding that § 1365 is roughly

comparable to analogous South Carolina provisions,

this Court holds that although DHEC and Pickens

County did not initiate an action in court, an

administrative action occurred comparable to

provisions outlined under § 1319(g). Thus, because

Defendants were already being prosecuted, § 1319

acts as a bar against Plaintiffs’ suit.12 Therefore,

Plaintiffs first claim must be dismissed.

determination of comparability between Oklahoma law and 33

U.S.C. § 1319 with respect to judicial review.” Paper, AlliedIndus., Chem. And Energy Workers Int’l Union, 428 F.3d at 1295.

The difference in the South Carolina judicial review provision

and the CWA is less distinguishable.

12 Courts have differed in holding § 1319(g) acts as a bar to both

monetary and injunctive relief. The Tenth Circuit has held that

1319 does not apply to injunctive relief. Paper, Allied-Indus.,

Chem. And Energy Workers Int’l Union, 428 F.3d at 1297. The

court reasoned that because the text of § 1319(g) provides that

violators “shall not be the subject of a civil penalty action under

section 1365,” while the text of 1365 provides “any citizen may

commence a civil action,” 1319 “operated only to bar civil-penalty

relief.” Id. (emphasis added) The court specifically noted that

“Congress chose to use the words “civil action” in § 1365

authorizing citizen suits but chose the narrower term “civil

penalty action” in the § 1319 exclusion from the § 1365 grant.”

Id. at 1298. Conversely, the First Circuit held that 1319 bared

both injunctive and monetary relief. N. & S. Rivers Watershed

Ass’n, Inc. v. Town of Scituate, 949 F.2d 552, 557 (1st Cir. 1991).

Appendix B-18

2. 404 Permit

Plaintiffs’ second cause of action claims

“Defendants’ discharge of fill material does not qualify

for NWP #18, and Defendants therefore have violated

the CWA by undertaking such discharge without a

permit.” (DE 1 ¶ 79.) Specifically, Plaintiffs contend

“while the Defendants did receive authorization under

Section 404 to construct an impoundment, Plaintiffs’

claims are based on allegations that the Defendants

have undertaken regulated fill activities beyond that

authorization or, in other words, have violated the

terms of their permit.” (DE 13, p. 17.) Plaintiffs’

second cause of action claims “[t]o the extent

Defendants possess a permit under Section 404 of the

CWA, Defendants’ discharge of fill material into the

Unnamed Tributary is in violation of the terms of that

permit.” (DE 1 ¶ 84.)

Section 404 of the CWA requires a person to

obtain a permit for the discharge of dredged or fill

material into waters of the United States. See 33

U.S.C. § 1344. Citizens suits are permitted under the

CWA pursuant to 33 U.S.C. §1365. Specifically,

§1365 (a), extends to civil action against any person

“who is alleged to be in violation of . . . an effluent

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

The court reasoned that “[b]oth the Congress and the Supreme

Court have recognized: (1) that the primary responsibility for

enforcement of Clean Water Acts rests with the government;

(2) that citizen suits are intended to supplement rather than

supplant this primary responsibility; and (3) that citizen suits

are only proper if the government fails to exercise its

enforcement responsibility.” Id. at 558. Thus, if the “state is

already acting with diligence to remedy the violations,” 1319

must cover all civil actions. Id. This Court agrees with the First

circuit and concludes 1319 applies to all civil actions.

Appendix B-19

§1365(a)(1). Effluent standard or limitation under this

act is further defined under section (f) of the statute.

Notably missing from the list of effluent standards

enforceable in a citizen suit is a standard or limitation

in a 404 permit issued under § 1344 of the CWA. This

list, however, does provide for a citizen’s action for a

permit issued under section 1342. 33 U.S.C. §1365(f).

The Fifth Circuit determined that because the CWA

does not list 404 permits, “the Act does not allow

citizen suits to enforce the conditions of a § 1344

permit.” Atchafalaya Basinkeeper v. Chustz, 682 F.3d

356, 357 (5th Cir. 2012). The court reasoned that if

congress had intended to authorize a citizens suit for

§ 1344 permit “it could have simply added another

subsection to § 1365(f), providing the same right to sue

for § 1344 permit condition violations that it provided

for § 1342 permit condition violations in § 1365(f)(6).”

Id. at 359. “The Corps can enforce § 1344 itself as well

as the conditions of the permits it issues under

§ 1344(s).” Id. at 358. This Court agrees. Enforcement

of a 404 permit is solely within the discretion of the

Army Corp of Engineers. The CWA does not provide

for a citizens’ suit. Therefore, Plaintiffs’ second and

third claims must also be dismissed.

3. Notice

Citizens must comply with certain notice

requirements before initiating a claim under the

CWA. See 33 U.S.C. § 1365(b)(1)(a). Specifically,

§1365 provides that no person may sue a person

alleged to be in violation of the Clean Water Act “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

Appendix B-20

order.” 33 U.S.C. §1365(b)(1)(a). Citizen suit notice

requirements are “mandatory conditions precedent to

commencing suit” and may not be avoided by

employing a “flexible or pragmatic” construction. See

Monongahela Power Co. v. Reilly, 980 F.2d 272, 275

n.2 (4th Cir. 1992) (citing Hallstrom v. Tillamook

County, 493 U.S. 20, 26 (1989)). Courts have

dismissed plaintiffs who were not named in the Notice

of Intent to Sue even when they purport to raise the

same issues raised by other properly noticed

plaintiffs. Assateague Coastkeeper v. Alan & Kristin

Hudson Farm, 727 F. Supp. 2d 433 (D. Md. 2010).

Similarly, a notice letter stating “other interested

parties may join in as plaintiffs” was insufficient to

comply with statutory notice requirements for

individuals not specifically named in the notice letter.

Washington Trout v. McCain Foods, Inc., 45 F.3d 1351

(9th Cir. 1995).

The Notice of Intent to Sue was filed on behalf of

Naturaland and Trout Unlimited. However, this

action is being brought by Naturaland Trust, SCTU

and Upstate. Upstate was not named at all in

Plaintiffs’ notice letter. (DE 9-11.) Upstate has failed

to comply with the statutory notice requirements of

§1365(b)(1)(a). Thus, Upstate is not a proper party to

this action. Additionally, the party identified as

“SCTU” was also not named in the Notice Letter. (DE

9-11.) Trout Unlimited appeared in place of SCTU.

(DE 9-11.) The notice letter indicates “Trout

Unlimited is a national non-profit organization with

300,000 members . . . [and] two local chapters in the

Upstate of South Carolina.” However, there is no

mention of SCTU. Thus, Trout Unlimited is not a

proper party to this action, and none of the claims

Appendix B-21

initiated by SCTU comply with the CWA and are

dismissed.

4. Related Common-law Claims

In addition to claims under the CWA, the

complaint includes closely related common-law claims

arising out of the same alleged conduct by the

Defendants. (DE 1 ¶ 4.) Plaintiffs contend this Court,

therefore, has supplemental subject matter

jurisdiction over these common-law claims pursuant

to 28 U.S.C. § 1367. (DE 1 ¶ 4.) 28 U.S.C. § 1367(a)

provides that if the district court has jurisdiction over

a civil action, then it has supplemental jurisdiction

over all other claims so related to the federal claims

that they form part of the same case or controversy. A

district court, however, may decline to exercise

supplemental jurisdiction if the district court

dismisses all the federal claims. See 28 U.S.C. 1367

(c)(2)(3). In light of this Court’s dismissal of Plaintiffs’

federal claims, this Court declines to exercise

supplemental jurisdiction here.

CONCLUSION

For the foregoing reasons, it is Ordered that the

Defendants’ motion to dismiss for lack of subjectmatter jurisdiction pursuant to Rule 12(b)(1), Fed. R.

Civ. P., is granted.

AND IT IS SO ORDERED.

/s/ Joseph Dawson, III

Joseph Dawson, III

United States District Judge

March 31, 2021

Greenville, South Carolina

Appendix C-1

FILED: September 2, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-1517

(6:20-cv-01299-JD)

___________________

NATURALAND TRUST; SOUTH CAROLINA

TROUT UNLIMITED; UPSTATE FOREVER

Plaintiffs - Appellants

v.

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

KEN SMITH; SHARON SMITH; WILLARD R.

LAMNECK, JR.

Defendants - Appellees

-----------------------------SOUTH CAROLINA COASTAL CONSERVATION

LEAGUE; CHARLESTON WATERKEEPER

Amici Supporting Appellant

SOUTH CAROLINA CHAMBER OF COMMERCE

Amicus Supporting Appellee

___________________

ORDER

___________________

Appellees’ petition for rehearing en banc and

appellants’ response were circulated to the full court.

No judge having requested a poll under Fed. R. App.

Appendix C-2

P. 35, the court denies the petition for rehearing en

banc.

For the Court

/s/ Patricia S. Connor, Clerk