Amicus Curiae Brief — Dakota Finance LLC, dba Arabella Farm, et al., Petitioners v. Naturaland Trust, et al.

No. 22-720

IN THE

Supreme Court of the United States

___________

DAKOTA FINANCE LLC, D/B/A ARABELLA FARM; KEN

SMITH; SHARON SMITH; WILLARED R. LAMNECK, JR.,

Petitioners,

v.

NATURALAND TRUST; SOUTH CAROLINA TROUT

UNLIMITED; UPSTATE FOREVER,

Respondents.

___________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

___________

BRIEF OF AMICI CURIAE TRADE

ORGANIZATIONS IN SUPPORT OF

PETITIONERS

___________

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS OF

THE U.S.

1201 15th Street, N.W.

Washington, D.C. 2005

(202) 266-8200

GORDON D. TODD*

ALEXANDRA T. MUSHKA

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

gtodd@sidley.com

Counsel for Amici Curiae

[Additional counsel listed on inside cover]

March 3, 2023

* Counsel of Record

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Ave S.W.

Suite 1000W

Washington, D.C. 20024

AYIESHA BEVERLY

NATIONAL APARTMENT

ASSOCIATION

4300 Wilson Boulevard

Suite 800

Arlington, VA 22203

(703) 797-0684

ELIZABETH MILITO

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER

555 12th Street, N.W.

Suite 1001

Washington, D.C. 20004

LEAH PILCONS

ASSOCIATED GENERAL

CONTRACTORS OF

AMERICA, INC.

2300 Wilson Blvd.

Suite 300

Arlington, VA 22201

(703) 837-5332

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICI CURIAE ..........................

1

SUMMARY OF ARGUMENT ..............................

6

ARGUMENT .........................................................

7

I. THE TEXT AND STRUCTURE OF THE

CLEAN WATER ACT SUPPORT BROAD

DEFERENCE TO STATE LAW ...................

7

A. The plain meaning of the Clean Water

Act does not require rigid congruity

between a state enforcement scheme and

its federal counterpart. ...........................

10

B. At its core, the Clean Water Act sets

forth a strategy of cooperative federalism

that risks being upended by rigid

comparability standards. ........................

13

II. A NARROW READING OF THE DILIGENT

PROSECUTION BAR RISKS GREAT

HARM TO SMALL BUSINESSES. ..............

16

CONCLUSION .....................................................

22

(i)

ii

TABLE OF AUTHORITIES

CASES

Page

Arkansas v. Oklahoma, 503 U.S. 91

(1992) .........................................................

13

Ark. Wildlife Fed’n v. ICI Ams., Inc., 29 F.3d

376 (8th Cir. 1994) ....................................

9

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) ...................................

10

Barnhart v. Sigmon Coal Co., 534 U.S. 438

(2002) .........................................................

10

EPA v. Cal. ex rel. State Water Res. Control

Bd., 426 U.S. 200 (1976) ...........................

14

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) ...................................

11

Gwaltney of Smithfield, Ltd. v. Chesapeake

Bay Found., Inc., 484 U.S. 49 (1987) ........ 8, 19

Hodel v. Va. Surface Mining & Reclamation

Ass’n, 452 U.S. 264 (1981) ........................

13

Int’l Paper Co. v. Ouellette, 479 U.S. 481

(1987) ......................................................... 12, 16

Iowa League of Cities v. EPA, 711 F.3d 844

(8th Cir. 2013) ...........................................

18

Middlesex Cnty. Sewerage Auth. v. Nat’l Sea

Clammers Ass’n, 453 U.S. 1 (1981) ..........

14

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

Scituate, 949 F.2d 552 (1st Cir. 1991),

overruled by Blackstone Headwaters

Coal., Inc. v. Gallo Builders, Inc., 32 F.4th

99 (1st Cir. 2022) ....................................... 9, 12

Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644 (2007) ....................

14

Naturaland Tr. v. Dakota Fin. LLC, 41

F.4th 342 (4th Cir. 2022), petition for cert.

filed, No. 22-720 (U.S. Feb. 1,

2023) .......................................... 9, 10, 15, 17, 20

iii

TABLE OF AUTHORITIES – continued

New York v. United States, 505 U.S. 144

(1992) .........................................................

Paper, Allied-Indus., Chem. & Energy

Workers Int’l Union v. Cont’l Carbon Co.,

428 F.3d 1285 (10th Cir. 2005) .................

Ross v. Blake, 578 U.S. 632 (2016) ..............

Sebelius v. Cloer, 569 U.S. 369 (2013) .........

State of N.Y. v. Shore Realty Corp., 759 F.2d

1032 (2d Cir. 1985) ....................................

U.S. Dep’t of Energy v. Ohio, 503 U.S. 607

(1992) .........................................................

Wis. Dep’t of Health & Fam. Servs. v.

Blumer, 534 U.S. 473 (2002) .....................

Page

13

11

10

10

19

11

13

STATUTES AND REGULATIONS

5 U.S.C § 801(b)(2) ........................................

12

33 U.S.C. § 1251(a) ........................................ 7, 11

33 U.S.C. § 1251(b) ........................................ 8, 12

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

7

33 U.S.C. § 1319(g)(6) ................................. 6, 9, 10

33 U.S.C. § 1342 ............................................

8

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

14

33 U.S.C. § 1365(a) ........................................ 7, 9

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

18

33 C.F.R. § 328.3(a) .......................................

3

40 C.F.R. § 122.2 ...........................................

3

40 C.F.R. § 123.1 ...........................................

8

40 C.F.R. § 123.27(d) .....................................

15

65 Fed. Reg. 19,630 (Apr. 11, 2000) ..............

19

LEGISLATIVE HISTORY

S. Rep. No. 92-414 (1971) ..................... 8, 9, 14, 18

iv

TABLE OF AUTHORITIES – continued

SCHOLARLY AUTHORITIES

David Adelman & Jori Reilly-Diakun,

Environmental Citizen Suits and the

Inequities of Races to the Top, 92 U. Colo.

L. Rev. 377 (2021) ......................................

Barry Boyer & Errol Meidinger, Privatizing

Regulatory Enforcement: A Preliminary

Assessment of Citizen Suits Under Federal

Environmental Laws, 34 Buffalo L. Rev.

833 (1985) ...................................................

Michael S. Greve, The Private Enforcement

of Environmental Law, 65 Tul. L. Rev. 339

(1990) ..........................................................

Page

18

19

20

OTHER AUTHORITIES

Comparable,

Webster’s

Third

New

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

EPA, NPDES State Program Authority,

https://www.epa.gov/npdes/npdes-stateprogram-authority (last visited Mar. 2,

2023) ...........................................................

EPA, NPDES State Program Authorization

Information,

https://www.epa.gov/npdes/npdes-stateprogram-authorization-information (last

visited Mar. 2, 2023) ..................................

Carmel Ford, NAHB Econs. & Hous. Pol’y

Grp., Cost of Constructing a Home (Jan 2,

2020)

https://www.nahb.org//media/8F04D7F6EAA34DBF8867D7C33

85D2977.ashx .............................................

Shambie Singer, 3C Sutherland Statutory

Construction (8th ed. 2022) .......................

10

15

8

2

11

INTEREST OF AMICI CURIAE 1

Amici curiae, the National Association of Home

Builders, American Farm Bureau Federation,

National Federation of Independent Business Small

Business Legal Center, Inc., National Apartment

Association, and Associated General Contractors of

America, are trade associations and affiliated public

interest organizations whose members engage in a

broad range of economic activities that support the

American economy. Their members develop housing;

build schools, laboratories, and roads; and produce

agricultural goods. Foundationally, amici and their

members develop American land for productive use

and for the public good.

Amici’s members’ economic endeavors invariably,

and in various ways, interact with the land, air, and

waters of the United States. As such, they are obliged

routinely to assess and apply the myriad technical

requirements of a wide variety of federal, state, and

local environmental laws and regulations, including

the Clean Water Act (“CWA”).

Amici devote

significant time and resources to tracking

environmental laws, analyzing their procedural and

substantive requirements, assessing their impacts,

and developing strategies for compliance. This alone

is no simple or straightforward task. But the burdens

imposed by legal uncertainty in complex regulatory

1 Pursuant to Supreme Court Rule 37, amici state that no

counsel for any party authored this brief in whole or in part, and

that no entity or person other than amici and their counsel made

any monetary contribution toward the preparation and

submission of this brief. Counsel of record for all parties received

notice at least 10 days prior to the due date of amici curiae’s

intention to file this brief.

2

environments fall most heavily on Amicis’ members,

including many small businesses that lack the

sophisticated resources necessary to navigate these

typical labyrinthian obligations, or to defend robustly

against lawsuits that may be brought in the face of

even good-faith violations.

Amici therefore maintain an interest in advocating

for clarity and efficiency in the enforcement of federal

environmental statutes on behalf of their members’

enterprise.

1. The National Association of Home Builders

(“NAHB”) is a Washington, D.C.-based trade

association whose mission is to enhance the climate for

housing and the building industry. Chief among

NAHB’s goals are providing and expanding

opportunities for all people to have safe, decent, and

affordable housing. Founded in 1942, NAHB is a

federation of more than 700 state and local

associations.

About one-third of NAHB’s

approximately 120,000 members are home builders or

remodelers and are responsible for the construction of

80% of all new homes in the United States. The

remaining members are associates working in closely

related fields within the housing industry, such as

environmental consulting, mortgage finance and

building products and services. NAHB frequently

participates as a party litigant and amicus curiae to

safeguard the rights and economic interests of its

members and those similarly situated.

A large part of building and selling homes consists of

obtaining and preparing land for construction. 2 That

land often contains CWA “waters of the United

2 Carmel Ford, NAHB Econs. & Hous. Pol’y Grp., Cost of

Constructing a Home (Jan 2. 2020) https://www.nahb.org//media/8F04D7F6EAA34DBF8867D7C3385D2977.ashx.

3

States,” as the federal government has defined and

interpreted that term. See 33 C.F.R. § 328.3(a); 40

C.F.R. § 122.2. Often land developers must alter those

“waters” to ensure that their community makes the

best use of the land in accordance with local and state

zoning and land use requirements. Moreover, the

CWA requires a stormwater permit for any land

disturbance that impacts more than one acre.

2. The American Farm Bureau Federation

(“AFBF”) was formed in 1919 and is the largest

nonprofit general farm organization in the United

States.

Representing about six million member

families in all fifty states and Puerto Rico, AFBF’s

members grow and raise every type of agricultural

crop and commodity produced in the United States. Its

mission is to protect, promote, and represent the

business, economic, social, and educational interests of

American farmers and ranchers. To that end, AFBF

regularly participates in litigation, including as

amicus curiae in this and other courts.

3. The National Federation of Independent

Business Small Business Legal Center, Inc.

(“NFIB Legal Center”) is a nonprofit, public interest

law firm established to provide legal resources and be

the voice for small businesses in the nation’s courts

through representation on issues of public interest

affecting small businesses. It is an affiliate of the

National Federation of Independent Business, Inc.

(NFIB), which is the nation's leading small business

association. NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

D.C., and all 50 state capitals, the interests of its

members.

4. The National Apartment Association

(“NAA”) is a trade association for owners and

4

managers of rental housing. NAA is a federation

comprised of 141 state and local affiliated apartment

associations. NAA encompasses over 95,000 members

representing more than 11.6 million apartment homes

globally. NAA, which is the leading national advocate

for quality rental housing, is also the largest trade

organization dedicated solely to rental housing. NAA

provides its members with the most comprehensive

range of strategic, educational, operational,

networking, and advocacy resources they need to

learn, to lead and to succeed. As part of its business,

NAA advocates for fair treatment of rental housing

businesses nationwide, including advocating the

interests of the rental housing business community at

large in legal cases of national concern. There is a

national rental housing shortage. The provision

allowing citizen suits under the Clean Water Act has

created unintended consequences that are harmful to

developers of rental housing. Citizen suits can be

extremely costly for businesses to defend against, even

if they are in full compliance with the law. These

barriers create higher construction costs making it

extremely difficult to build affordable housing.

Barriers that exist to delay the much-needed

development of rental housing should be discouraged,

not encouraged.

5. Associated

General

Contractors

of

America, Inc. (“AGC”) is the nation’s leading

construction trade association. AGC provides a full

range of services satisfying the needs and concerns of

its members, thereby improving the quality of

construction and protecting the public interest. More

than 27,000 firms, including 7,000 of America’s

leading general contractors, nearly 9,000 specialty

contracting firms, and more than 11,000 service

providers and suppliers belong to the association

5

through its nationwide network of chapters. AGC

members are engaged in building, heavy, civil,

industrial, utility, and other construction for both

public and private property owners and developers.

AGC members conduct construction activities at

project sites nationwide and are required to obtain and

comply with the National Pollutant Discharge

Elimination System (NPDES) permit program,

created by the CWA, on nearly all projects disturbing

one or more acres of land (and smaller sites part of a

larger common plan of development or sale). These

permits address “stormwater associated with

construction activity,” as defined by the relevant

federal regulations. The manner in which the federal

and delegated state NPDES permitting authorities

craft and enforce permits directly affects AGC

members. The regulated community is also impacted

by citizen suits that may seek injunctive relief, civil

penalties, and reimbursement of legal costs and

attorneys’ fees.

Amici write to underscore the serious legal and

practical implications of the decision below and the

disharmony among the Courts of Appeals, and to urge

the Court to grant the petition. The “diligent

prosecution bar” serves an important function in the

CWA’s scheme of cooperative federalism: it facilitates

local enforcement and relieves regulated entities of the

additional burdens of defending against duplicative

legal actions. Construction of the bar has, however,

become unsettled, with some courts construing it to

afford little to no deference to state enforcement.

Amici respectfully urge the Court to grant the petition,

reverse the decision below, and clarify the proper

application of the diligent prosecution bar.

6

SUMMARY OF ARGUMENT

The CWA vests a set of overlapping private and

public enforcers with the authority to prosecute

damages suits: the Environmental Protection Agency

(“EPA”), the primary federal regulator; the several

states; and private citizens may bring actions and

collect significant damages awards for CWA

violations. As with other cooperative federalism

schemes, by diffusing enforcement authority widely,

Congress sought to ensure robust enforcement of the

underlying statute, which incorporates local and

national

interests—commensurate

with

the

environmental harms the CWA seeks to deter and

redress.

The CWA’s multi-tiered enforcement scheme was

crafted to ensure some enforcement; it was also

tempered, however, to ward against too much or overenforcement.

Whereas appropriate enforcement

protects the environment, over-enforcement threatens

productive industry. Recognizing these risks, both the

statutory text and its accompanying legislative history

delineate a clear prioritization of enforcers:

government first, with private enforcement only where

government fails.

To implement this approach,

Congress specifically constrained its grant of a private

action right: CWA citizen suits are preempted

whenever a State has “commenced” and is “diligently

prosecuting” an “action under a State law comparable

to” the enforcement subsection of the CWA. 33 U.S.C.

§ 1319(g)(6)(A)(ii).

The diligent prosecution bar evidences a

solicitousness for state enforcement. Yet the Fourth

Circuit’s cramped and atextual reading risks upsetting

Congress’s carefully crafted balance. In reading

“comparable to” to require near-congruity between

federal and state enforcement mechanisms, the

7

Fourth Circuit ignored both the plain meaning of the

text and clear indicia of Congressional intent. Rather

than the largely toothless barrier to redundant suits

the Fourth Circuit found, Congress intended to—and

clearly did—enact more sweeping guardrails against

citizen suits duplicating already extant State

enforcement proceedings.

Amici and their members are concerned that this

erroneous reading risks costly and abusive duplicative

private litigation by rent-seeking plaintiffs, with no

added environmental benefit. If the citizen suit

provision is rarely preempted by State enforcement

actions—because the plaintiffs will rely upon the

Fourth Circuit’s exceedingly narrow definition of

“comparable” to cherry pick minor differences in state

schemes—plaintiffs will be incentivized to piggyback

on most State enforcement action, seeking lucrative

damages awards in the wake of the State’s work. In

turn, CWA defendants will be subject to private claims

in addition to any state enforcement action, which will

disincentivize cooperation with the State in the first

place. The Fourth Circuit’s approach threatens to

unnecessarily undermine the principle role of the

States in CWA enforcement and should be rejected.

ARGUMENT

I. THE TEXT AND STRUCTURE OF THE

CLEAN WATER ACT SUPPORT BROAD

DEFERENCE TO STATE LAW.

The CWA pursues a broad objective: to “restore” and

“maintain” the “integrity of the Nation’s waters.” 33

U.S.C. § 1251(a). To achieve this goal, the Act’s overall

structure imbues federal, state, and citizen actors with

the authority to enforce violations. Id. § 1319; id.

§ 1365(a).

8

Congress has made it clear that this system of

cooperative federalism, supplemented by citizen

participation, is an essential element of the Act. Id.

§ 1251(b) (“It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and

rights of the States” to, inter alia “prevent, reduce, and

eliminate pollution.”); Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Found., Inc., 484 U.S. 49, 60 (1987)

(“[t]he 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”); S. Rep. No. 92-414,

at 64 (1971) (the right to citizen suits triggers only “if

the Federal, State, and local agencies fail to exercise

their enforcement responsibility.”).

But this wide-ranging effort, enforceable by a variety

of actors with diverse interests, naturally comes with

certain risks: inefficiencies and overenforcement,

duplicative penalties, slower regulatory approvals,

and delayed remediation and development. The risks

associated with overenforcement naturally impact

most those small businesses that are least able to bear

the costs of lengthy regulatory disputes.

Appreciating these risks, Congress designed some

aspects of the CWA to alleviate redundant and

unnecessary enforcement. For example, under the

National Pollutant Discharge Elimination System

(“NPDES”) program at issue in this case, see 33 U.S.C.

§ 1342; 40 C.F.R. § 123.1, the EPA cedes primary

regulatory authority when it authorizes states to

administer their own programs. See, e.g., EPA,

NPDES State Program Authorization Information,

https://www.epa.gov/npdes/npdes-state-programauthorization-information (last visited Mar. 2, 2023)

(“if EPA approves the [state NPDES] program, the

state

assumes

permitting

authority.”).

This

9

bifurcation helps reduce regulatory overlap and

conflict—though State NPDES enforcement may still

be supplemented by citizen suits. See 33 U.S.C.

§ 1365(a).

The CWA’s drafters anticipated that citizen suits

might lead to “frivolous” and “harassing” actions. S.

Rep. No. 92-414, at 81. Therefore, the CWA preempts

citizen suits when a State has already “commenced”

and is “diligently prosecuting” an “action under a State

law comparable to” the CWA’s enforcement subsection.

33 U.S.C. § 1319(g)(6)(A)(ii). Congress recognized that

no proper public or environmental purpose was served

by private litigants simply piggybacking off state

proceedings.

Lower courts are now split over how to enforce the

diligent prosecution bar, with some courts ignoring

Congress’s intent in adopting the bar. The majority

decision below, requiring exact “comparability”

between state programs and § 1319(g) in both features

and timing, see Naturaland Tr. v. Dakota Fin. LLC, 41

F.4th 342, 349–50 (4th Cir. 2022), petition for cert.

filed, No. 22-720 (U.S. Feb. 1, 2023), is particularly out

of step. See Pet. App. 11–15 (reciting relevant facts).

The Court should grant the petition to clarify that

the text and structure of the CWA is better served by

a more deferential approach, such as adopted by the

First Circuit, see N. & S. Rivers Watershed Ass’n v.

Town of Scituate, 949 F.2d 552 (1st Cir. 1991),

overruled by Blackstone Headwaters Coal., Inc. v.

Gallo Builders, Inc., 32 F.4th 99 (1st Cir. 2022) and the

Eighth Circuit, see Ark. Wildlife Fed’n v. ICI Ams.,

Inc., 29 F.3d 376, 381 (8th Cir. 1994).

10

A. The plain meaning of the Clean Water

Act does not require rigid congruity

between a state enforcement scheme and

its federal counterpart.

As in all matters of statutory interpretation, the

Court begins with the text. Ross v. Blake, 578 U.S.

632, 638 (2016); Barnhart v. Sigmon Coal Co., 534 U.S.

438, 450 (2002). “Unless otherwise defined, statutory

terms are generally interpreted in accordance with

their ordinary meaning,” Sebelius v. Cloer, 569 U.S.

369, 376 (2013) (cleaned up) (citation omitted), and

court-supplied meanings that defy the best reading of

Congressional instructions cannot be justified. See

e.g., Armstrong v. Exceptional Child Ctr., Inc., 575

U.S. 320, 329 (2015).

The CWA on its face precludes citizen suits when “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)(A)(ii) (emphasis

added). The threshold question is therefore whether

the Fourth Circuit’s test—which required exact

comparability in both features and timing, and

proceeds without regard for whether the State

enforcement regime as a whole effectuates the goals of

its federal counterpart—can be squared with the

express language of the CWA. It cannot.

By its plain meaning, the phrase “comparable to”

does not demand precise substantive and procedural

congruity between § 1319(g) and State analogues. See

Naturaland Trust, 41 F.4th at 359 (Quattlebaum, J.,

dissenting) (“[C]omparable cannot mean identical.”

(cited sources omitted)).

Rather, “comparable” simply means “capable of

being compared.” Comparable, Webster’s Third New

International Dictionary 461 (1986).

11

This definition captures a wide range of possibilities.

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

Int’l Union v. Cont’l Carbon Co., 428 F.3d 1285, 1293

(10th Cir. 2005) (“the plain meaning of the word

‘comparable’ in the statute does not suggest a rigid

standard.”). 3 The key to the analysis is which

parameters are most relevant for the comparison.

And, as the rest of the CWA makes clear, that focus

should be on outcomes—not process.

This Court has long encouraged harmonization

between related statutory provisions, see e.g., FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133

(2000), and harmonization is a tool frequently

employed by courts when interpreting the CWA. See

U.S. Dep’t of Energy v. Ohio, 503 U.S. 607, 630 (1992)

(White, J., concurring) (“It is axiomatic that [the CWA]

should be read as a whole.”); see also Shambie Singer,

3C Sutherland Statutory Construction, § 77:4 (8th ed.

2022) (collecting lower court cases that give effect to

the language of the CWA as a “harmonious whole.”).

The CWA’s tiered enforcement scheme is clear: “The

objective of this chapter is to restore and maintain the

chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). “In order to

achieve this objective it is hereby declared that,” id.,

3 Indeed, there are many different parameters along which one

might find that one thing is comparable to another. For example,

one might find that a red apple is comparable to a green apple on

the basis that they are both the same species of fruit.

Additionally, one might find that a red apple is comparable to an

orange on the basis of their relative sugar content, or the fact that

they are both grown above ground on trees. Finally, one might

find that a red apple is comparable to a red snapper because they

are both red. The parameters one could use to unlock the ability

for comparison are broad—as is the meaning of the unmodified

statutory phrase, “comparable to.”

12

inter alia, Congress will “recognize, preserve, and

protect the primary responsibility and rights of the

States to prevent, reduce, and eliminate pollution, to

plan the development and use … of land and water

resources.” Id. § 1251(b); see also Int’l Paper Co. v.

Ouellette, 479 U.S. 481, 489 (1987) (“The [CWA]

amendments also recognize that the States should

have a significant role in protecting their own natural

resources.”).

Therefore, as the First Circuit held, “[i]t is enough …

that the overall scheme of the two acts is aimed at

correcting the same violations, thereby achieving the

same goals.” Scituate, 949 F.2d at 556 (emphasis

added). The CWA intends to restore the Nation’s

waters—not to enforce the stringent punishment of

violators by exposing them to swift and harsh

adversarial processes at the expense of cooperation

with State agencies and long-term remediation.

If Congress had wanted to impose greater uniformity

in the enforcement of water pollution violations, it had

ample tools at its disposal to do so. The CWA does not

require commencement of an action under State law

that is “substantially comparable to” the enforcement

mechanism of the Act—but merely “comparable.” This

stands in contrast to other statutes, such as the

Congressional Review Act, which bar the issuance of

rules that are “substantially the same” as disapproved

rules. 5 U.S.C § 801(b)(2) (emphasis added). The

Fourth Circuit’s exact comparability test therefore

defies the purpose so plainly reflected in the text of §

1319(g).

13

B. At its core, the Clean Water Act sets forth

a strategy of cooperative federalism that

risks

being

upended

by

rigid

comparability standards.

This Court has also recognized that the CWA

facilitates a system of cooperative federalism. New

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

foundational structure, like the plain meaning of the

phrase “comparable to,” is distorted by the Fourth

Circuit’s narrow reading of the diligent prosecution

bar.

Cooperative federalism encourages state-driven

innovation towards common goals.

Arkansas v.

Oklahoma, 503 U.S. 91, 101 (1992) (the CWA

“anticipates a partnership between the States and the

Federal Government, animated by a shared

objective.”). Statutes that adhere to a program of

cooperative federalism “allow[] the States … to enact

and administer their own regulatory programs,

structured to meet their own particular needs.” Hodel

v. Va. Surface Mining & Reclamation Ass’n, 452 U.S.

264, 289 (1981). When “interpreting other statutes so

structured,” this Court “has left a range of permissible

choices to the States.” Wis. Dep’t of Health & Fam.

Servs. v. Blumer, 534 U.S. 473, 476 (2002).

A narrow reading of the diligent prosecution bar that

limits the ability of states to make choices about their

own enforcement programs cannot be justified by the

structure of the CWA—particularly in cases, like this

one, where those choices have no discernable impact

on whether the state is able to effectively protect the

Nation’s waters.

The Senate Report on the CWA illustrates that the

Committee fundamentally “intend[ed] the great

volume of enforcement actions to be brought by the

14

State.” S. Rep. No. 92-414, at 64. Furthermore, the

citizen suit provisions of the Act are “modeled on the

provision enacted in the Clean Air Amendments of

1970,” id. at 79, which this Court has recognized as

containing an “explicit indication[]” that citizen suits

are to be “rare” and “limited.” Middlesex Cnty.

Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S.,

1, 17 n. 27 (1981). The CWA’s cooperative federalism

approach cuts against the Fourth Circuit’s rigid

comparability analysis.

The NPDES permitting program exemplifies

cooperative federalism under the CWA. See EPA v.

Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200,

206–08 (1976).

(“Consonant with its policy ‘to

recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce,

and eliminate pollution,’ Congress also provided that

a State may issue NPDES permits for discharges into

navigable waters within its jurisdiction”). This Court

has recognized that “[i]f authority is transferred, then

state officials—not the federal EPA—have the primary

responsibility for reviewing and approving NPDES

discharge permits, albeit with continuing EPA

oversight.” Nat’l Ass’n of Home Builders v. Defs. of

Wildlife, 551 U.S. 644, 650 (2007).

The EPA authorization process is no mere rubber

stamp—it is robust. A State may obtain permitting

authority only by submitting “a full and complete

description of the program it proposes to establish and

administer under State law.” 33 U.S.C. § 1342(b). The

EPA authorization process includes a public review

period, a comment period, and a public hearing, and

the EPA retains the right to withdraw its approval at

any time. See generally EPA v. Cal. ex rel. State Water

Res. Control Bd., 426 U.S. at 205–08 (discussing the

NPDES system).

15

Because State NPDES permitting authority,

including associated enforcement mechanisms, are

authorized and monitored by the EPA, it makes little

sense to minimize the deference they receive under the

diligent prosecution bar. As Judge Quattlebaum’s

dissent pointed out below, the Fourth Circuit’s

standard erroneously overlooks the fact that South

Carolina’s enforcement program has been upheld by

the EPA for the past thirty years. Naturaland Trust

41 F.4th at 361 (Quattlebaum, J., dissenting). Thus,

the EPA has already confirmed that programs like

South Carolina’s contain sufficient procedures to

“abate violations of the permit or the permit program,

including civil and criminal penalties and other ways

and means of enforcement.” 33 U.S.C. § 1342(b)(7).

The majority ruled that the State’s Notice of

Violation in this case did not preempt citizen action

because it did not coincide with any “public notice.”

Naturaland Trust, 41 F.4th at 349. But the EPA,

under its own NPDES regulations, already vets state

programs for public participation. See 40 C.F.R.

§ 123.27(d) (“Any State administering a program shall

provide for public participation in the State

enforcement process by providing:” public intervention

authority, a commitment to investigate and provide

written responses to citizen complaints, and a

commitment to publish a notice and comment period

on any proposed settlement.). Thus, the EPA has

already determined that the state procedures are

sufficient to implement the purposes of the CWA,

making the Fourth Circuit’s rigid inquiry redundant.

South Carolina, like forty-six other States, has

completed the authorization process and received

NPDES permitting authority from the EPA. EPA,

NPDES

State

Program

Authority,

https://www.epa.gov/npdes/npdes-state-program-

16

authority (last visited Mar. 2, 2023). The Fourth

Circuit’s restrictive standard disrespects this review

and approval process and reduces many State

enforcement schemes to irrelevance with respect to

duplicative citizen suits. The Fourth Circuit’s test,

therefore, risks upending the system of cooperative

federalism that sits at the very core of the CWA and

should be rejected.

II. A NARROW READING OF THE DILIGENT

PROSECUTION BAR RISKS GREAT HARM

TO SMALL BUSINESSES.

As reflected in the CWA, the benefits of any

enforcement regime must be weighed against the risks

of overenforcement. Indeed, this Court has recognized

that the interests of regulated entities should be

considered in CWA cases: the Act “carefully defines the

role of both the source and affected States, and

specifically provides for a process whereby their

interests will be considered and balanced by the source

State and the EPA.” Int’l Paper Co., 479 U.S. at 497.

Redundant suits, encouraged by the Fourth Circuit’s

test, will disproportionality impact small businesses

that lack robust resources. And overzealous advocates

will not only delay or halt critical infrastructure and

development projects, but also delay implementation

of remedial measures, all of which is to the public’s

loss. Allowing plaintiffs to piggyback on existing State

enforcement, and citizen suits to proceed even when

those actions have been settled has plenty of

drawbacks and little value.

The Fourth Circuit’s test threatens to expose

businesses to increased costs and burdens in a variety

of ways:

First, as discussed, for a State action to preempt a

citizen suit, the Fourth Circuit’s opinion requires a

17

significant degree of public participation at the

earliest stages of enforcement proceedings, regardless

of whether the overall degree of public participation in

the State enforcement scheme was sufficient to earn

approval from the EPA. See Naturaland Trust, 41

F.4th at 348–49 (“the diligent prosecution bar would

not be triggered until a state agency has begun a

comparable formal process that entails public notice.”).

This outsized public participation requirement will

increase the time it takes to resolve violations and

result in project delays. These types of delays increase

costs, impact the ability to secure the necessary

environmental approvals for projects, and impede

critical improvements to our nation’s infrastructure

and productive land development.

Second, a broad reading of the diligent prosecution

bar increases the opportunity for regulatory conflicts

and overlap. Regulated entities benefit from the

diligent prosecution bar because they are not required

to negotiate simultaneously with multiple parties.

Nonetheless, as Judge Quattlebaum noted in dissent,

the Notice of Violation here was publicly available. Id.

at 354–55. The Fourth Circuit’s approach will strongly

incentivize diligent plaintiffs to file parallel CWA

citizen suits at the first whiff of any State inquiry. The

less deference given to State enforcement actions, the

more exposed regulated entities will be to duplicative

litigation costs and burdensome project delays.

To illustrate the impact of these costs, it is worth

noting that many businesses, like construction, invest

millions of dollars upfront on property, technology,

personnel, and machinery.

Opponents of these

projects may seek preliminary injunctions against

continued construction while the project is being

assessed, and even short delays can impose significant

consequences, like the loss of an entire construction

18

season in areas where weather conditions or other

regulatory restrictions limit the time that contractors

can work. During any delay, overhead costs continue

to accumulate; workers are idled; economic benefits

are postponed. And project contractors can face

liquidated or other penalties for the consequential

damages that result from not completing a project on

time. The negative consequences of introducing

redundancies in environmental enforcement have

wide-ranging consequences.

The costs associated with overenforcement are

compounded by the fact the CWA awards attorneys’

fees. 33 U.S.C. § 1365(d). Under the CWA, such fees

may be rewarded “to any prevailing or substantially

prevailing party, whenever the court determines such

award is appropriate.” Id. These fees can be

significant, ranging from the tens to hundreds of

thousands of dollars on average. See David Adelman

& Jori Reilly-Diakun, Environmental Citizen Suits

and the Inequities of Races to the Top, 92 U. Colo. L.

Rev. 377, 424 (2021).

Attorneys’ fees are meant to encourage citizens to

participate in remediation efforts and support public

interests. S. Rep. No. 92-414, at 81 (fee shifting is

designed to incentivize citizens to “perform[] a public

service” by “bringing legitimate actions”); see also Iowa

League of Cities v. EPA, 711 F.3d 844, 878 n.20 (8th

Cir. 2013) (declining to award fees because plaintiff

“was largely vindicating its own rights, rather than

the purposes of the CWA.”). But the public does not

benefit from citizen suits when the State is already

engaging in enforcement.

The Fourth Circuit’s

decision incentivizes lawsuits that piggyback off of

low-hanging fruit to the detriment of important

economic activity and the public good.

19

Third, the adversarial nature of citizen suits renders

them particularly ill-suited to address instances where

the State is already taking action. Government actors

retain and routinely exercise some measure of

enforcement discretion under the CWA. See e.g.,

Gwaltney, 484 U.S. at 61 (noting the importance of

upholding the discretionary ability of State

enforcement authorities to the CWA’s statutory

scheme). This discretion is particularly significant

because, under the CWA, even innocent violations are

subject to liability. See e.g., State of N.Y. v. Shore

Realty Corp., 759 F.2d 1032, 1042 (2d Cir. 1985)

(recognizing that liability under the CWA is “strict

liability.”). As such, federal and state agencies have

adopted policies to ease these rigid costs. See e.g.,

EPA, Small Business Compliance Policy, 65 Fed. Reg.

19,630, 19,630 (Apr. 11, 2000) (recognizing that "goodfaith" efforts towards compliance may reduce

penalties).

Citizen suits bring entirely different economic

incentives.

Private plaintiffs seeking fees and

damages may not engage in the same equitable or

wholistic balancing analysis that government

enforcers will undertake. Indeed, commentators have

observed that citizen suit damage figures may run ten

to one hundred times higher than the typical amounts

received by the agencies like the EPA. Barry Boyer &

Errol Meidinger, Privatizing Regulatory Enforcement:

A Preliminary Assessment of Citizen Suits Under

Federal Environmental Laws, 34 Buffalo L. Rev. 833,

924 (1985).

Fourth, the threat of intervening citizen suits

undermines productive settlements between States

and regulated bodies. State enforcement schemes are

often more efficient and foster the development of

long-term solutions. For example, the government

20

often requires opposing parties to construct water

treatment plants upon settlement. In this case, in

addition to imposing a penalty, the Consent Order

between Arabella Farm and the Department required

the farm to submit a stormwater plan and site

stabilization plan, and conduct a stream assessment

and any recommended remediation. Naturaland

Trust, 41 F.4th at 345–46. On the other hand,

settlements

between

regulated

bodies

and

environmental groups often result in direct payments

to the environmental groups themselves. Michael S.

Greve, The Private Enforcement of Environmental

Law, 65 Tul. L. Rev. 339, 356 (1990). Checks issued to

environmental organizations have far less tangible

benefit to local communities than State settlements

centered around direct remediation. State settlements

that require water plans are therefore better suited to

furthering the Congressional purpose and ultimate

goals of the CWA.

Furthermore, businesses will be less likely to settle

with State agencies if they fear that private actions are

lurking just around the corner. In some cases, citizen

suits may even undermine environmental protection

by interfering with more effective State and local

environmental actions, or at the very least by

complicating proceedings and delaying any effective

relief. Lawsuits can bring an active construction

project to a stop, which may result in open Stormwater

Pollution Prevention Plans with only temporary

stabilization measures in place. Given the burdens of

litigation, project owners are not likely to authorize

additional payment for additional stormwater controls

and ongoing maintenance due to the fact the outcome

of the project remains uncertain.

Fifth, the Fourth Circuit approach hampers judicial

efficiency and will further load court dockets. A

21

narrow reading of the diligent prosecution bar

encourages citizen plaintiffs to litigate disputes that

would otherwise be enforced through more efficient

State administrative proceedings. And, due to the

availability of attorney’s fees, citizen groups are more

likely to draw out litigation in court at the expense of

productive settlements.

The Fourth Circuit’s

approach will therefore burden busy court dockets,

and increase the period of time from the discovery of

an alleged violation to a dispute’s ultimate resolution,

to the detriment of small business and the public alike.

The Fourth Circuit’s diligent prosecution bar

standard, which allows citizen suits to proceed even

after the State has issued an adversarial, publicly

available notice, and even after the State and a small

business have entered into an agreement, spells dire

consequences for regulated entities. It guarantees

duplicative enforcement, increases uncertainty in

wastewater permitting, and will drive up costs

through project delays and lost investments—all

without furthering the Congressional aim of the CWA.

Because the lower courts are split over the proper

application of the diligent prosecution bar, the Court’s

guidance is necessary and appropriate.

22

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for writ of certiorari.

Respectfully submitted,

THOMAS J. WARD

NATIONAL ASSOCIATION

OF HOME BUILDERS OF

THE U.S.

1201 15th Street, N.W.

Washington, D.C. 2005

(202) 266-8200

GORDON D. TODD*

ALEXANDRA T. MUSHKA

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

gtodd@sidley.com

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

600 Maryland Ave S.W.

Suite 1000W

Washington, D.C. 20024

AYIESHA BEVERLY

NATIONAL APARTMENT

ASSOCIATION

4300 Wilson Boulevard

Suite 800

Arlington, VA 22203

(703) 797-0684

ELIZABETH MILITO

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER

555 12th Street, N.W.

Suite 1001

Washington, D.C. 20004

LEAH PILCONS

ASSOCIATED GENERAL

CONTRACTORS OF

AMERICA, INC.

2300 Wilson Blvd.

Suite 300

Arlington, VA 22201

(703) 837-5332

Counsel for Amici Curiae

March 3, 2023

* Counsel of Record