ELR Citation: 51 ELR 20070
No(s). 19-2095 (1st Cir. Apr 26, 2021)

The First Circuit affirmed in part and reversed in part a ruling in a CWA citizen suit brought against developers of a construction site in Worcester, Massachusetts. An environmental group argued that one developer violated the CWA by failing to obtain a general construction permit, and that both developers failed to prevent sediment-laden stormwater discharges from flowing from the construction site into waters that led to the Blackstone River. The district court found that because one of the developers had the requisite construction permit, the other developer had committed at most a "technical violation" of the CWA in failing to secure a permit itself, and that the Act precluded the other claim because Massachusetts had already brought an enforcement action against one developer based on alleged stormwater discharges at the site. The appellate court found the developers did not identify any authority to support their position that a CWA citizen suit could not be brought against an entity alleged to be an operator of a construction site discharging pollutants into U.S. waters, and that the state's documents regarding the discharges did not indicate that the action was not commenced and prosecuted in part under a comparable law—the Massachusetts Clean Water Act—for purposes of the CWA's preclusion provision. It therefore reversed the district court ruling with respect to the group's permit claim, affirmed as to its stormwater discharge claim, and remanded for further proceedings.