Can plaintiffs in a citizen suit piggyback on existing governmental enforcement action and enforce the same alleged violation under the Clean Water Act (“CWA”)? Yes, as long as the citizen suit does not seek civil penalties, according to the First Circuit in The Blackstone Headwaters Coalition, Inc. v. Gallo Builders, No. 19-2095, __ F. 4th __ (1st Cir. 2022). The First Circuit, sitting en banc, held that under the CWA, administrative enforcement action by the government precludes only a citizen’s “civil penalty action,” which the Court interpreted to mean an action seeking civil penalties. A citizen suit seeking other forms of relief, i.e. injunctive or declaratory, however, could proceed notwithstanding the government’s action.

The case arose from stormwater discharges from the defendant’s development project. Massachusetts DEP had entered into an administrative settlement with the defendant in the form of an Administrative Consent Order with Penalty that required the defendant to pay a civil penalty, to undertake certain remedial measures at the site, and to pay stipulated penalties for further discharges of turbid stormwater from the site. Three years later, the plaintiff (an environmental group) filed a citizen suit under the CWA seeking civil penalties and declaratory and injunctive relief against the defendant relating to the same stormwater discharges that had allegedly continued to be discharged from the site.

The defendant argued that the citizen suit was barred by section 1319(g)(6)(A) of the CWA because the violations were subject to an ongoing “diligent prosecution” by MassDEP under the Administrative Consent Order and Penalty, relying on the First Circuit’s decision in North & South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991). There, the First Circuit had held that private citizens could not maintain a citizen suit to enjoin the same violation that was already subject to administrative enforcement, reasoning that duplicative enforcement actions, one by the government and one by citizens, would be inconsistent with the CWA’s statutory scheme that entrusts the government with primary enforcement authority.

The First Circuit, now sitting en banc, rejected defendant’s argument and overruled its prior decision in Scituate. The First Circuit explained that the policy rationale upon which Scituate was based did not square with the plain language of section 1319(g)(6)(A), which by its express terms, precludes only a duplicative “civil penalty action” by a citizen in the face of ongoing government enforcement. The First Circuit interpreted “civil penalty action” narrowly to mean an action in which civil penalties are sought. Thus, under the First Circuit’s new reading, section 1319(g)(6)(A) does not preclude a duplicative citizen suit seeking injunctive or declaratory relief.

In so holding and overruling Scituate, the First Circuit switched sides in a lingering circuit split over whether administrative enforcement action precludes all citizen suits under the CWA or only those that seek civil penalties, now joining the Tenth Circuit. See Paper, Allied-Industrial, Chem. & Energy Workers Intern. Union v. Continental Carbon Co., 428 F.3d 1285 (10th Cir. 2005). The Eighth Circuit is now the lone circuit that has held that ongoing enforcement action precludes all forms of relief in any citizen suit under the CWA. Ark. Wildlife Fed. v. ICI Americas, Inc., 29 F.3d 376 (8th Cir. 1994).

While the First Circuit’s reevaluation of the limitation in section 1319(g)(6)(A) is based on what is likely a more faithful reading of the statutory text, it does not satisfactorily resolve the concerns raised in Scituate regarding duplicative enforcement actions. As the First Circuit had once lamented, “[d]uplicative enforcement actions add little or nothing to compliance actions already underway, but do divert State resources away from remedying violations in order to focus on the duplicative effort.” Scituate, 949 F.2d at 556. Nevertheless, the First Circuit has now held that duplicative enforcement is precisely what Congress must have intended.