A federal court in Mississippi has ruled that a city’s prior settlement of sewage management violations with state regulators did not bar a Clean Water Act (CWA) citizen suit seeking additional penalties for the same violations. Gulf Restoration Network v. City of Hattiesburg, No. 12-36 (S.D Miss. 11/6/12). The City of Hattiesburg, Mississippi, apparently failed to upgrade its wastewater treatment systems in time to meet CWA regulatory deadlines. Under a February 2012 consent decree with state regulators, the city agreed to pay penalties for the delayed upgrades. Plaintiffs sued after the settlement was reached, asserting that terms of the consent did not adequately ensure that the city would comply with the CWA.

The city and the state regulators asserted that plaintiffs lacked standing to pursue their citizen suit because the violation had already been addressed through the state enforcement settlement. They contended that allowing the suit would improperly allow the plaintiffs to “supplant [the state’s] enforcement action.” The court, however, determined that because violations continue until upgrades occur, the plaintiffs could pursue their suit, despite the prior enforcement action. The court also found that the plaintiffs’ citizen suit was not rendered moot by the preexisting settlement, distinguishing prior cases in which citizen suits had been rendered moot by enforcement action that occurred after the citizen suit was filed.