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Suncoast Waterkeeper v. City of St. Petersburg

United States District Court, M.D. Florida, Tampa Division

January 19, 2018

SUNCOAST WATERKEEPER, et al., Plaintiffs,
v.
CITY OF ST. PETERSBURG, Defendant.

          ORDER

          JAMES D. WHITTEMORE, UNITED STATES DISTRICT JUDGE

         BEFORE 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.

         I. BACKGROUND

         Plaintiffs 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 ¶ 6).

         Defendant 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).

         On 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.

         II. SUMMARY JUDGMENT STANDARD

         Summary 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 Cir. 1997).

         The 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.

         III. DISCUSSION

         Section 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."

         Defendant is not entitled to summary judgment because Florida's enforcement procedures are not sufficiently comparable to those in the CWA.[1] 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 ...


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