§1365 — Title 33 Navigation and Navigable Waters | U.S. Code

Summary

Anyone can sue in court to stop illegal discharges of pollutants or to enforce a water pollution limit or an order that applies to those limits. A person can also sue the Administrator for failing to do a non-discretionary duty under the law. Before suing, the person must wait 60 days after giving written notice to the Administrator, the State where the violation happens, and the alleged violator. A citizen suit cannot go forward if the Administrator or the State has already started and is actively pursuing a federal or state enforcement case, but anyone can join a federal enforcement case automatically. Lawsuits about a particular polluting source must be filed in the federal district where that source is located. When a federal suit is filed, the plaintiff must send the complaint to the Attorney General and the Administrator, and a proposed consent judgment cannot be entered until 45 days after they get it. The court can order the losing side to pay litigation costs, including reasonable lawyer and expert fees, and can require a bond if a quick emergency order is requested. The law does not take away any other ways people can try to enforce pollution limits. “Effluent standard or limitation” covers eight types of limits, permits, certifications, and related rules under the listed sections of the law. “Citizen” means a person or group with an interest that may be harmed. A State Governor may sue the Administrator without waiting the 60 days if pollution in another State is harming his State’s public health, welfare, or water quality.

Title 33, §1365

Navigation and Navigable Waters — Source: USLM XML via OLRC

(a)Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf—

(1)against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2)against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

(b)No action may be commenced—

(1)under subsection (a)(1) of this section—

(A)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, or

(B)if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.

(2)under subsection (a)(2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator,

(c)(1)Any action respecting a violation by a discharge source of an effluent standard or limitation or an order respecting such standard or limitation may be brought under this section only in the judicial district in which such source is located.

(2)In such action under this section, the Administrator, if not a party, may intervene as a matter of right.

(3)Whenever any action is brought under this section in a court of the United States, the plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. No consent judgment shall be entered in an action in which the United States is not a party prior to 45 days following the receipt of a copy of the proposed consent judgment by the Attorney General and the Administrator.

(d)The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.

(e)Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency).

(f)For purposes of this section, the term “effluent standard or limitation under this chapter” means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) a standard of performance or requirement under section 1322(p) of this title; (6) a certification under section 1341 of this title; (7) a permit or condition of a permit issued under section 1342 of this title that is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (8) a regulation under section 1345(d) of this title.

(g)For the purposes of this section the term “citizen” means a person or persons having an interest which is or may be adversely affected.

(h)A Governor of a State may commence a civil action under subsection (a), without regard to the limitations of subsection (b) of this section, against the Administrator where there is alleged a failure of the Administrator to enforce an effluent standard or limitation under this chapter the violation of which is occurring in another State and is causing an adverse effect on the public health or welfare in his State, or is causing a violation of any water quality requirement in his State.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Federal Rules of Civil Procedure, referred to in subsec. (d), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.

Amendments

2018—Subsec. (f). Pub. L. 115–282 substituted “(5) a standard of performance or requirement under section 1322(p) of this title; (6) a certification under section 1341 of this title; (7) a permit or condition of a permit issued under section 1342 of this title that is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (8) a regulation under section 1345(d) of this title.” for “(5) certification under section 1341 of this title; (6) a permit or condition thereof issued under section 1342 of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (7) a regulation under section 1345(d) of this title,.” 1987—Subsec. (a). Pub. L. 100–4, § 314(c), inserted “and section 1319(g)(6) of this title” after “subsection (b) of this section” in introductory text. Subsec. (c)(3). Pub. L. 100–4, § 504, added par. (3). Subsec. (d). Pub. L. 100–4, § 505(c), inserted “prevailing or substantially prevailing” before “party”. Subsec. (f). Pub. L. 100–4, § 406(d)(2), added cl. (7).

§1365 Citizen Suits