ELR Citation: 52 ELR 20052
No(s). 19-2095 (1st Cir. Apr 28, 2022)

In an en banc decision, the First Circuit affirmed in part and reversed in part summary judgment for an environmental group in a CWA citizen suit against developers of a construction site in Massachusetts. The group argued the developers violated the CWA by failing to comply with the construction general permit obtained by one of them. A district court granted summary judgment for the developers on the ground that CWA §1319(g)(6)(A) precluded the group's claim because the record showed that the Massachusetts Department of Environmental Protection was "diligently prosecuting" an enforcement action for the same violation under a state law comparable to the CWA. The appellate court affirmed summary judgment for the developers, rejecting the group's argument that §1319(g)(6)(A)'s limitation on citizen suits had no application to a citizen suit for declaratory and injunctive relief and instead reached only a citizen suit to apply a civil penalty. The court then reconsidered its ruling in North & Rivers Watershed Ass'n v. Scituate en banc, and held that, contrary to Scituate, §1319(g)(6)(A) barred a citizen suit that sought to apply a civil penalty for an ongoing violation, but did not bar a citizen suit for declaratory and prospective injunctive relief to redress an ongoing violation. It reversed the district court's grant of summary judgment for the developers as to the group's request for declaratory and injunctive relief, but affirmed summary judgment as to its request to apply civil penalties to the developers.