Piney Run Preservation v. Carroll County, Md, No. 07-1348.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: Shedd
• Citation: 523 F.3d 453
• Parties: THE PINEY RUN PRESERVATION ASSOCIATION, Plaintiff-Appellant, v. THE COUNTY COMMISSIONERS OF CARROLL COUNTY, MARYLAND, Defendant-Appellee.
• Docket Number: No. 07-1348.
• Decision Date: 23 April 2008

523 F.3d 453 THE PINEY RUN PRESERVATION ASSOCIATION, Plaintiff-Appellant,
v.
THE COUNTY COMMISSIONERS OF CARROLL COUNTY, MARYLAND, Defendant-Appellee. No. 07-1348. United States Court of Appeals, Fourth Circuit. Argued January 29, 2008. Decided April 23, 2008.

[523 F.3d 454]

Guerdon Macy Nelson, Towson, Maryland, for Appellant. Linda S. Woolf, Goodell,

[523 F.3d 455]

Devries, Leech & Dann, L.L.P., Baltimore, Maryland, for Appellee. Paul N. DeSantis, Towson, Maryland, for Appellant. K. Nichole Nesbitt, Joseph B. Wolf, Goodell, Devries, Leech & Dann, L.L.P., Baltimore, Maryland, for Appellee.

Before GREGORY and SHEDD, Circuit Judges, and Patrick M. DUFFY, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge SHEDD wrote the opinion, in which Judge GREGORY and Judge DUFFY joined.

OPINION

SHEDD, Circuit Judge:

Piney Run is a small stream with its headwaters near the border of Carroll and Baltimore counties in Maryland. For the second time, the Piney Run Preservation Association ("the Association") has filed a citizen suit under the Clean Water Act ("CWA" or "the Act") alleging that the County Commissioners of Carroll County ("the County") are violating the CWA by discharging treated wastewater (i.e., effluent) from the Hampstead Wastewater Treatment Plant ("the Plant") into Piney Run. The Association specifically contends that the temperature of the discharged effluent at times exceeds the thermal limitation set forth in the County's National Pollutant Discharge Elimination System ("NPDES") permit.¹ On the County's motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district court found that the Maryland Department of the Environment ("MDE") was "diligently prosecuting" a CWA enforcement action against the County for violating the Permit; consequently, the court held that the Association was barred by 33 U.S.C. § 1365(b)(1)(B) from maintaining this suit.² The Association now appeals the order of dismissal, arguing that the district court erred in its "diligent prosecution" determination. We affirm.

I

Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251. "To serve those ends, the Act 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 U.S.C. § 1342,

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"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, ___ U.S. ___, 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." Miccosukee Tribe, 541 U.S. at 102, 124 S.Ct. 1537. An NPDES permit "defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the [Act]." EPA v. California ex rel. State Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976). "The Environmental Protection Agency (EPA) initially 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." Nat'l Ass'n of Home Builders, 127 S.Ct. at 2525 (citations omitted). The State of Maryland is authorized to administer the NPDES program and does so through MDE. See Piney Run Pres. Ass'n, 268 F.3d at 265.

"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 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). We have recognized that this citizen suit provision is "critical" to the enforcement of the CWA, see id., as it allows citizens "to abate pollution when the government cannot or will not command compliance," Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 62, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). However, citizen suits are meant "to supplement rather than to supplant governmental action," id. at 60, 108 S.Ct. 376, and 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," Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 175, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). 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." Chesapeake Bay Found. v. American Recovery Co., 769 F.2d 207, 208 (4th Cir. 1985).

II

As we explained in the prior CWA litigation between these parties, MDE has classified Piney Run as a Class III-P stream, meaning that it is protected as a source of public drinking water and as a body capable of supporting a self-sustaining trout population. The Plant is subject to the CWA and since 1975 has operated under a series of NPDES permits granted by MDE, the most recent one having been issued in 1990. That permit contains express limitations on the amount of certain pollutants that the Plant can discharge, but heat—which is a statutory pollutant— was not originally listed in it. See Piney Run Pres. Ass'n, 268 F.3d at 260-61.

523 F.3d 457

In March 2000, as part of ongoing administrative litigation involving the Plant, MDE modified the County's permit to include a thermal limitation for the Plant's discharged effluent and procedures for measuring ambient conditions in Piney Run. The thermal limitation provides that the effluent cannot exceed the higher of 20°C or the ambient temperature of the stream. Following contested proceedings before an administrative law judge, the modified permit became effective in early 2004. Several months later, the County applied to MDE for an alternate effluent level ("AEL")—i.e., a less stringent temperature restriction—and submitted a Study Plan for Alternate Effluent Limitation for MDE's review.³ During the pendency of this application, the County has provided MDE with supplemental reports and appears to have cooperated with MDE. MDE has not yet made a final determination on this application.

Apart from its AEL application, the County petitioned the state circuit court for review of MDE's decision to modify the 1990 permit. The County also moved to stay enforcement of the modified permit pending the outcome of the petition for review. In turn, MDE filed a complaint seeking injunctive relief and civil penalties against the County for, inter alia, violating the thermal limitation in the modified permit ("the MDE enforcement action"). Eventually, the circuit court denied the County's petition for judicial review, but it stayed enforcement of the modified permit until a final decision was rendered on the County's petition for review or November 20, 2005, whichever came first. In light of the circuit court's stay of enforcement of the modified permit and the County's appeal of the denial of its petition for review, MDE and the County jointly moved the circuit court to stay the MDE enforcement action until the stay of the modified permit was lifted. The circuit court granted the joint motion and stayed the MDE enforcement action. On November 20, 2005, the stay of enforcement of the modified permit expired, and that permit again became effective. Subsequently, MDE's final decision modifying the permit was judicially affirmed.⁴

In July 2006, MDE and the County entered into a Consent Judgment in the

523 F.3d 458

MDE enforcement action reflecting their "agreement as to appropriate long-term and interim measures to insure compliance with the Permit." J.A. 373. The circuit court entered the Consent Judgment on July 25, 2006, and its terms became the order of the circuit court. See Long v. State of Md., 371 Md. 72, 807 A.2d 1, 7 (2002) (noting that consent judgments have the same force and effect as other judgments).

The Consent Judgment initially mandates that upon its effective date, the County "shall achieve compliance with the thermal effluent limitations" set forth in the modified permit. J.A. 374. It also provides that in settlement of all violations of the thermal limitation that occurred between November 20, 2005, and July 25, 2006, the County would pay a civil penalty of $500 for each day that a violation occurred. Pursuant to this provision, the County paid penalties in the amount of $13,500.

Prospectively, the Consent Judgment also imposes stipulated civil penalties of $500 for each day...