On October 20, 2015, a district court held that a state enforcement action brought under the Clean Water Act (CWA) did not bar a citizen suit from proceeding against Duke Energy Carolinas, LLC (Duke Energy). Yadkin Riverkeeper, Inc. v. Duke Energy Carolinas, LLC, Case No. 1:14-cv-753 (M.D.N.C. Oct. 20, 2015).  For regulated industries, Yadkin Riverkeeper is a reminder that the diligent prosecution bar to citizen suits under federal environmental statutes is not absolute, and the existence of a government enforcement action alone may not be enough to bar a citizen suit.

Plaintiffs Waterkeeper Alliance and Yadkin Riverkeeper (collectively, Riverkeepers) sued Duke Energy in September 2015, alleging that the company violated the CWA at its Buck Steam Station power plant.  Riverkeepers claimed that Duke Energy violated the terms of its water discharge permit by, among other things, making unauthorized discharges of pollutants through certain seeps, pipes, and coal ash impoundments.  In August 2013, however, the North Carolina Department of Environment and Natural Resources (DENR”) had brought a state court civil enforcement action against Duke Energy, alleging similar violations of state regulations at the Buck power plant.  After Riverkeepers sued, Duke Energy filed a motion to dismiss and a motion to stay.  The company argued, in part, that DENR’s state enforcement action barred Riverkeepers’ CWA citizen suit because the state was already diligently prosecuting an action against the company for violations of similar standards and limitations.

The district court disagreed and denied Duke Energy’s motion to dismiss and motion to stay.  On most of Riverkeepers’ claims, the court found that DENR sought to require compliance with similar limitations or standards.  Thus, the case turned on whether DENR had diligently prosecuted its state enforcement action.  Courts afford CWA enforcement actions a strong presumption of diligence.  The court held, however, that DENR was not diligently prosecuting its state enforcement action at the time Riverkeepers filed the citizen suit.  When Riverkeepers filed their citizen suit, DENR’s state enforcement action had been pending for over a year.  Yet DENR had not taken any steps to move the case forward: no initial case management order had been set and the agency had not taken a single deposition or filed any motions.  In the year since Riverkeepers’ filing of the suit, DENR had even moved to stay its own enforcement action.  Therefore, the district court held that DENR’s state enforcement action did not bar Riverkeepers’ citizen suit from moving forward.

According to this court, a government enforcement action must not only be brought, but also managed, in good faith, to be a compliance bar to a CWA citizen suit.