The United States Court of Appeals for the Eleventh Circuit recently issued a decision limiting the ability of plaintiffs to recover attorneys’ fees under the Clean Water Act when their trial court victory is mooted by new regulations. In the case before the Eleventh Circuit, Friends of the Everglades v. South Florida Water Management District, No. 11-15053, plaintiffs sued to require the water management district to obtain a NPDES permit before transferring allegedly polluted canal water into Lake Okeechobee. The district court issued an injunction in plaintiffs’ favor, which the water management district appealed. While the appeal was pending, EPA issued a new rule that confirmed NPDES permits are not required for water transfers such as the one at issue here. Also during the pendency of the appeal, one of the plaintiffs filed a motion for attorneys’ fees pursuant to the Clean Water Act.
The district court denied the motion for fees, holding that the plaintiff did not meet the requirement of being a prevailing party. On appeal of that decision, the plaintiff argued that because its lawsuit was a “catalyst” for issuance of new EPA regulations, plaintiffs should be deemed prevailing parties. The Eleventh Circuit rejected this argument, holding that a plaintiff cannot be a catalyst for the issuance of regulations that are contrary to the plaintiff’s litigation position. Accordingly, this decision narrows the scope of the “catalyst” doctrine for recovery of attorneys’ fees and may serve to limit recovery of such fees under the Clean Water Act generally.