United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, UNITED STATES DISTRICT JUDGE
THE COURT are Defendant's Motion for Summary
Judgment (Dkt. 54) and Plaintiffs' opposition (Dkt. 67).
Defendant moves for summary judgment, contending that the
Court lacks subject matter jurisdiction because a Florida
Department of Environmental Protection ("FDEP")
enforcement proceeding against Defendant bars Plaintiffs'
citizen suit under the Clean Water Act. Upon consideration,
Defendant's motion is DENIED.
filed a citizen suit against Defendant under section 1365 of
the Clean Water Act, 33 U.S.C. §§ 1251-1388, on
December 2, 2016. (Dkt. 1). They allege Defendant violated
the CWA by discharging pollutants into the waters of the
United States without permit authorization or in excess of
applicable permits. (Second Amended Complaint, Dkt. 87 at
notified the FDEP of a bypass occurring on or about June 7,
2016. See (FDEP June 9, 2016 letter, Dkt. 54-1, Ex.
A). The FDEP responded on June 9, 2016, stating that it
"has observed a pattern between rainfall events and
discharges/bypasses and requests a meeting with you within
the next seven days. The purpose of this meeting will be to
evaluate compliance with the City's permits and to
discuss measures which you have, or need to have, in place to
eliminate the discharges/bypasses that have occurred."
(Id.). A meeting between representatives of
Defendant and the FDEP occurred on June 17, 2016. (Meeting
notes, Dkt. 54-1, Ex. B). The FDEP internally approved a
proposed consent order on August 29, 2016. (FDEP August 29,
2016 e-mail, Dkt. 54-1, Ex. D). On September 16, 2016, the
FDEP provided Defendant a "proposed Consent Order OGC
File No. 16-1280 to address the issues associated with waste
water discharges from the Collection Systems and Water
Reclamation Facilities owned and operated by the City of St.
Petersburg." (FDEP September 16, 2016 letter and
proposed consent order, Dkt. 54-1, Ex. E).
September 28, 2016, Plaintiffs provided notice of
Defendant's alleged violations of the CWA to the EPA
Administrator, the FDEP and Defendant. (Sixty-Day Notice of
Violations of Clean Water Act, Dkt. 1 -1). As noted,
Plaintiffs filed their citizen suit against Defendant on
December 2, 2016. (Complaint, Dkt. 1). Defendant moves for
final summary judgment, contending that the FDEP commenced
and is diligently prosecuting an enforcement proceeding
against it that is comparable a CWA enforcement proceeding
and, therefore, the Court lacks subject matter jurisdiction
over Plaintiffs' citizen suit.
SUMMARY JUDGMENT STANDARD
judgment is appropriate where "there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." FED. R. Civ. P. 56(a).
"A genuine factual dispute exists only if a reasonable
fact-finder' could find by a preponderance of the
evidence that the [non-movant] is entitled to a verdict.'
" Kernel Records Oy v. Mosley, 694 F.3d 1294,
1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). A fact is material if
it may affect the outcome of the suit under governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646(11th
moving party bears the initial burden of showing that there
are no genuine disputes of material fact. Hickson Corp.
v. Northern Crossarm Co., 357 F.3d 1256, 1260 (11th Cir.
2004) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). Once the moving party demonstrates the
absence of a genuine issue of material fact, the nonmoving
party must go beyond the pleadings through the use of
affidavits, depositions, answers to interrogatories, and
admissions on file to designate facts showing a genuine issue
for trial. See Celotex Corp., 477 U.S. at 324.
1319(g)(6)(A)(ii) of the CWA bars citizen suits when "a
State has commenced and is diligently prosecuting an action
under a State law comparable to this subsection." The
"diligent-prosecution bar" has three requirements:
"First, the state must have 'commenced' an
enforcement procedure against the polluter. Second, the state
must be 'diligently prosecuting' the enforcement
proceedings. Finally, the state's statutory enforcement
scheme must be 'comparable5 to the federal scheme
promulgated in33 U.S.C. § 1319(g)." McAbee v.
City of Tort Payne, 318 F.3d 1248, 1251 (11th Cir. 2003)
(citations omitted). A state's enforcement action will
not bar a citizen suit where
notice of an alleged violation of section 1365(a)(1) of this
title has been given in accordance with section 1365(b)(1)(A)
of this title prior to commencement of an action under this
subsection and an action under section 1365(a)(1) of this
title with respect to such alleged violation is filed before
the 120th day after the date on which such notice is given.
33 U.S.C. § 1319(g)(6)(B)(ii).In turn, section
1365(b)(1)(A) provides that a citizen suit may not be
commenced under section 1365(a)(1) "prior to sixty days
after the plaintiff has given notice of the alleged violation
(i) to the Administrator, (ii) to the State in which the
alleged violation occurs, and (iii) to any alleged violator
of the standard, limitation, or order."
is not entitled to summary judgment because Florida's
enforcement procedures are not sufficiently comparable to
those in the CWA. State laws governing enforcement must be
"roughly comparable" to three classes of CWA
provisions: (1) the penalty assessment provisions; (2) the
public participation provisions; and (3) the judicial review
provisions. McAbee, 318 F.3d at 1255-56. Defendant
argues that Florida law is comparable to federal law in all
three respects. (Dkt. 54 at p. 18). Plaintiffs ...