California Sportfishing Protection Alliance v. Chico Scrap Metal, Inc.

The Federal Water Pollution Control Act, or Clean Water Act (“the Act”), 33 U.S.C. § 1365 (a)(1), allows a citizen to sue to enforce the Act’s prohibition against discharging water pollutants without a National Pollutant Discharge Elimination System (“NPDES”) permit. In this citizen suit, Plaintiff, California Sportfishing Protection Alliance, a conservationist organization, alleges that Defendants, Chico Scrap Metal, Inc.; George Scott, Sr.; George Scott, Jr.; and George W. Scott, Sr., Revocable Inter Vivos Trust, have violated an NPDES permit that governs industrial storm water discharges at three scrap metal recycling facilities that Defendants operate.

The district court dismissed this action after ruling that 33 U.S.C. § 1365 (b)(1)(B) bars Plaintiffs claims. On appeal, Defendants argue that another statutory bar, 33 U.S.C. § 1319 (g)(6)(A)(ii), also applies. We hold that § 1365(b)(1)(B) does not apply because the state has commenced no action in court “to require compliance” with the storm water permit and that § 1319(g)(6)(A)(ii) does not apply because the state has commenced no administrative penalty action comparable to one under the Act. We therefore reverse…