Karr v. Hefner

The Clean Water Act (CWA) prohibits private citizens from filing a lawsuit against private entities for violations of the CWA if the Environmental Protection Agency (EPA) or a state has commenced an action, either civil or criminal, and is diligently prosecuting that action in order to enforce CWA requirements. The EPA filed a lawsuit against several GHK defendants in order to enforce CWA standards at GHK well sites. The EPA entered into a consent decree with two specific GHK defendants who could ensure compliance at all GHK sites. Billy Karr, Betty Scott, Gene Handleman, and Rowena Handleman (landowners) (plaintiffs), who were private citizens, later filed a lawsuit against several GHK defendants, asserting violations of the CWA at 37 GHK well sites, including violations of stormwater, wetlands, and point-source-discharge regulations. Prior to filing their lawsuit, the landowners provided notice of their claims to the EPA and pursuant to the CWA were prevented from filing their lawsuit for 60 days after providing notice. The EPA did not file its suit within that 60-day timeframe but did file before the landowners filed their lawsuit. The EPA’s consent decree addressed all stormwater and point-source-discharge violations. With regard to the landowners’ wetlands claims, the EPA found no violations at several sites and required mitigation at several others. The district court ruled that the EPA’s entry of a consent decree against two GHK defendants was a diligent prosecution against all GHK defendants, thus barring the landowners’ claims, and dismissed the landowners’ lawsuit. The landowners appealed.