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California Sportfishing Protection Alliance v. Chico Scrap Metal, LLC

ELR Citation: 43 ELR 20161
Nos. 11-16959, (9th Cir., 07/22/2013)

The Ninth Circuit reversed a lower court decision dismissing a conservation group's CWA citizen suit alleging that a scrap metal company violated California's general NPDES permit for industrial stormwater at three of its scrap recycling facilities. The lower court dismissed the case, holding that CWA §505(b)(1)(B) barred the group's claims because a district attorney had filed prior criminal and civil actions against it. But the earlier proceedings aimed to enforce only laws other than the CWA. Accordingly, the diligent prosecution bar set forth in §505(b)(1)(B) does not apply because the state had commenced no action in court "to require compliance" with the storm water permit. Similarly, the diligent prosecution bar set forth in §309(g)(6)(A)(ii) does not apply because the state had commenced no administrative penalty action comparable to one under the CWA. The lower court's dismissal of the case was therefore reversed and remanded.