`
`
`
`PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`No. 21-1517
`
`
`NATURALAND TRUST; SOUTH CAROLINA TROUT UNLIMITED;
`UPSTATE FOREVER,
`
`
`Plaintiffs - Appellants,
`
`
`
`v.
`
`
`DAKOTA FINANCE LLC, d/b/a Arabella Farm; KEN SMITH; SHARON SMITH;
`WILLARD R. LAMNECK, JR.,
`
`Defendants - Appellees.
`
`------------------------------
`
`SOUTH CAROLINA COASTAL CONSERVATION LEAGUE; CHARLESTON
`WATERKEEPER,
`
` Amici Supporting Appellants.
`
`
`SOUTH CAROLINA CHAMBER OF COMMERCE,
`
` Amicus Supporting Appellee.
`
`
`
`Appeal from the United States District Court for the District of South Carolina, at
`Greenville. Joseph Dawson, III, District Judge. (6:20-cv-01299-JD)
`
`
`
`Argued: May 5, 2022
`
`
` Decided: July 20, 2022
`
`
`
`Before MOTZ, QUATTLEBAUM, and HEYTENS, Circuit Judges.
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`

`

`
`Reversed and remanded by published opinion. Judge Heytens wrote the opinion, in which
`Judge Motz joined. Judge Quattlebaum wrote a dissenting opinion.
`
`
`
`
`
`
`ARGUED: Michael George Martinez, SOUTH CAROLINA ENVIRONMENTAL LAW
`PROJECT, Greenville, South Carolina, for Appellants. Elizabeth Bartlett Partlow, LAW
`OFFICES OF ELIZABETH B. PARTLOW, LLC, West Columbia, South Carolina, for
`Appellees. ON BRIEF: Amy Armstrong, Lauren M. Milton, SOUTH CAROLINA
`ENVIRONMENTAL LAW PROJECT, Georgetown, South Carolina, for Appellants.
`Adam B. Lambert, ACKER LAMBERT HINTON, P.A., Pickens, South Carolina, for
`Appellees. Geoffrey R. Gisler, Alex J. Hardee, SOUTHERN ENVIRONMENTAL LAW
`CENTER, Chapel Hill, North Carolina, for Amici South Carolina Coastal Conservation
`League and Charleston Waterkeeper. Karen Aldridge Crawford, KLAC LAW LLC,
`Columbia, South Carolina; Michael S. Traynham, NEXSEN PRUET, LLC, Columbia,
`South Carolina, for Amicus South Carolina Chamber of Commerce.
`
`
`
`2
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`

`

`TOBY HEYTENS, Circuit Judge:
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`The Clean Water Act contains a citizen-suit provision allowing adversely affected
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`persons to sue polluters in federal court. 33 U.S.C. § 1365(a)(1). The Act also contains a
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`provision stating that a violation of its requirements “shall not be the subject of a civil
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`penalty action under . . . section 1365” if a State “has commenced and is diligently
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`prosecuting an action under a State law comparable to” the federal scheme for assessing
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`civil penalties. § 1319(g)(6)(A)(ii). The main question here is whether a state agency’s
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`notice of an alleged violation for failure to obtain a required permit, without more,
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`“commence[s] . . . an action” within the meaning of that provision. Because we conclude
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`it does not, we reverse the district court’s judgment and remand for further proceedings.
`
`I.
`
`Intending to operate “a working farm with an orchard and vineyard, and later an
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`event barn for weddings and other celebrations,” Ken and Sharon Smith formed Arabella
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`Farm, LLC. Farm Br. 2. The farm was built on property purchased by another Smith vehicle
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`called Dakota Finance, LLC, and abutted land owned by the Smiths’ son-in-law, Willard
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`Lamneck, Jr. Like the parties, we refer to the Smiths, Lamneck, and the two LLCs
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`collectively as Arabella Farm.
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`Arabella Farm’s site borders South Carolina’s Jocassee Gorges area and is bounded
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`by three bodies of water—Clearwater Branch, Peach Orchard Branch, and an unnamed
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`tributary of the Eastatoe River. In 2017, Arabella Farm began clearing 20 acres of land to
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`create its venue. The clearing process dramatically altered the steep, mountainous
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`landscape and exposed the underlying granular soil. Although such an extensive land
`
`3
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`

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`disturbance ordinarily would require obtaining stormwater permits and adhering to other
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`regulations, see 40 C.F.R. § 122.26(a)(1)(ii), (9)(i)(B), (c)(1), Arabella Farm claimed its
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`work fell within an agricultural exemption to the Clean Water Act’s requirements. Before
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`starting work, Arabella Farm did not seek any permits or install sediment or stormwater
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`control measures, which allegedly resulted in significant discharges of sediment-laden
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`stormwater onto nearby property and caused widespread erosion and other detrimental
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`impacts.
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`Arabella Farm’s activities eventually caught the attention of government regulators.
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`In April 2019, the South Carolina Department of Health and Environmental Control
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`(Department) conducted an inspection to evaluate the farm’s compliance with the National
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`Pollutant Discharge Elimination System (NPDES) program. The Clean Water Act
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`regulates “point sources” that discharge pollutants and authorizes States to issue NPDES
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`permits for such discharges. 33 U.S.C. § 1342. The permit program is administered through
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`a scheme of cooperative federalism—the Environmental Protection Agency allows South
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`Carolina to administer its own permit program in lieu of the federal one, see § 1342(b); 40
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`Fed. Reg. 28,130 (July 3, 1975), and the Department enforces the State’s requirements, see
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`S.C. Code §§ 48-1-10 et seq.
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`Subsequent site inspections revealed inadequate stormwater controls, significant
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`erosion, and off-site impacts. In August 2019, the Department sent a letter advising
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`Arabella Farm that it was required to obtain an NPDES permit and instructing the farm “to
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`cease and desist any activity at the [s]ite other than the installation and maintenance of
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`storm water, sediment and erosion control measures as directed by its design engineer.” JA
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`4
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`

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`57–58. In September 2019, the Department sent the farm a “Notice of Alleged
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`Violation/Notice of Enforcement Conference” and informed the farm of a voluntary
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`“informal” enforcement conference scheduled for the end of that month. JA 54, 58–59. The
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`conference would be “closed to the public and media.” JA 59.
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`In November of the same year, Naturaland Trust and Trout Unlimited—non-profit
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`organizations dedicated to conserving land, water, and natural resources—sent a notice of
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`intent to sue letter to the Smiths, Lamneck, and the registered agent of Dakota Finance. As
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`the statute requires, the letter detailed the alleged violations of the Clean Water Act. See
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`33 U.S.C. § 1365(b)(1)(A).
`
`EPA regulations also require such notices to include “sufficient information to
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`permit the recipient to identify . . . the full name, address, and telephone number of the
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`person giving notice.” 40 C.F.R. § 135.3(a). The letter described Trout Unlimited as a
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`“national non-profit” with “two local chapters in the Upstate of South Carolina” and “many
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`members who regularly utilize the Eastatoe River and Little Eastatoe Creek in the vicinity
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`of the [Smiths’] properties,” and listed its name and address as: “Trout Unlimited, C/O
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`Greg Placone, P.O. Box 27172, Greenville, S.C[.] 29616.” JA 63–64, 76. At the bottom,
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`the letter suggested contacting counsel—Michael Corley of the South Carolina
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`Environmental Law Project—and provided Corley’s address and phone number.
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`After the required 60-day notice period elapsed, see 33 U.S.C. § 1365(b)(1)(A),
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`Naturaland Trust and South Carolina Trout Unlimited (together, the conservationists) sued
`
`5
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`

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`Arabella Farm in federal court. JA 21–48.1 The complaint was signed by Michael Corley
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`of the South Carolina Environmental Law Project with the same contact information
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`provided in the notice of intent to sue letter. It identified South Carolina Trout Unlimited
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`as “our state’s affiliate of Trout Unlimited, a national non-profit group,” and explained that
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`South Carolina Trout Unlimited “has dozens of members who utilize the waters
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`downstream of Defendants’ properties”—including the “Eastatoe River and Little Eastatoe
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`Creek”—“for trout fishing and other recreational opportunities.” JA 24–25. The complaint
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`alleged that Arabella Farm’s unpermitted land-clearing project violated the Clean Water
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`Act and resulted in various state law torts. As relief, the conservationists sought an
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`injunction and civil penalties to be paid to the United States Treasury under federal law
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`and injunctive relief and damages under state law.
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`A month after the conservationists filed their complaint, Arabella Farm and the
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`Department entered into a consent order. The order imposed a $6,000 penalty and required
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`the farm to obtain an NPDES permit, submit a stormwater plan and site stabilization plan,
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`and conduct a stream assessment and any recommended remediation.
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`The district court dismissed the conservationists’ complaint. As relevant here, the
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`court concluded that: (1) it lacked subject matter jurisdiction over the conservationists’
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`Clean Water Act claims because the Department had commenced and was diligently
`
`prosecuting an action for the same violations; (2) even if the Clean Water Act claims were
`
`
`1 Another entity, Upstate Forever, also was listed on the complaint but has not
`appealed its dismissal from this suit.
`
`6
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`

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`otherwise valid, South Carolina Trout Unlimited was not a proper party because it failed
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`to correctly identify itself in line with the Act’s notice requirements; and (3) having
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`dismissed the federal claims, it would not exercise supplemental jurisdiction over the state
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`law claims.
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`II.
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`The district court erred in concluding that the diligent prosecution bar precluded the
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`conservationists’ federal claims.
`
`A.
`
`A few introductory words about terminology. The Clean Water Act provides that
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`“any citizen may commence a civil action on his own behalf against any person . . . who is
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`alleged to be in violation of an effluent standard or limitation.” 33 U.S.C. § 1365(a)(1)(A).
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`The Act further states that “[t]he district courts shall have jurisdiction . . . to enforce such
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`an effluent standard or limitation . . . and to apply any appropriate civil penalties.”
`
`§ 1365(a). As noted earlier, however, the Act contains a carve-out—which we will call the
`
`diligent prosecution bar—providing that a “violation . . . shall not be the subject of a civil
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`penalty action under . . . section 1365” if “a State has commenced and is diligently
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`prosecuting an action” with respect to that same violation “under a State law comparable”
`
`to the federal scheme for assessing civil penalties. § 1319(g)(6)(A)(ii). The Act also
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`includes an analogous provision—which we will call the judicial proceeding bar—that
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`precludes a private action if a State or the EPA is diligently prosecuting a civil or criminal
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`case in court (as opposed to in an administrative proceeding). § 1365(b)(1)(B).
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`7
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`

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`This Court has previously stated that the judicial proceeding bar contained in
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`Section 1365(b)(1)(B) is “an exception to the jurisdiction granted in subsection (a) of
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`§ 1365” and affirmed dismissals under Rule 12(b)(1) for lack of subject matter jurisdiction
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`in situations where that bar applied. Piney Run Pres. Ass’n v. Commissioners of Carroll
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`County, 523 F.3d 453, 456 (4th Cir. 2008) (quoting Chesapeake Bay Found. v. American
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`Recovery Co., 769 F.2d 207, 208 (4th Cir. 1985) (per curiam)). Quoting that same
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`language, the district court concluded it lacked subject matter jurisdiction over the federal
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`claims in this case because of the diligent prosecution bar in Section 1319(g)(6)(A)(ii).
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`Given our existing precedent, the district court’s statement that—when it applies—
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`the diligent prosecution
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`implicates a federal court’s
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`jurisdiction was entirely
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`understandable. In our view, however, such an approach is untenable given the Supreme
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`Court’s current approach to such matters.
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`As the Supreme Court has repeatedly emphasized in recent years, “jurisdiction” “is
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`a word of many, too many, meanings.” Fort Bend County v. Davis, 139 S. Ct. 1843, 1848
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`(2019) (quoting Kontrick v. Ryan, 540 U.S. 443, 454 (2004), in turn quoting Steel Co. v.
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`Citizens for Better Env’t, 523 U.S. 83, 90 (1998)). Although courts—including this one—
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`have “sometimes been profligate in [their] use of the term,” Arbaugh v. Y&H Corp., 546
`
`U.S. 500, 510 (2006), the Supreme Court has “tried in recent cases to bring some discipline
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`to the use of ” the label “jurisdictional,” Henderson v. Shinseki, 562 U.S. 428, 435 (2011).
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`Under the Supreme Court’s current approach, the threshold question is whether “there is
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`any ‘clear’ indication that Congress wanted [a particular] rule to be ‘jurisdictional.’” Id. at
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`436. If not, the rule is almost never properly labeled jurisdictional “unless it governs a
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`8
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`

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`court’s adjudicatory capacity.” Id. at 435. This is so even when the rule in question is
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`“mandatory” or constitutes a “precondition[ ] to relief.” Fort Bend County, 139 S. Ct. at
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`1849; see id. at 1849–50 (collecting cases holding such rules are non-jurisdictional).
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`Under those standards, the diligent prosecution bar does not implicate a court’s
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`jurisdiction. The diligent prosecution bar “is not clearly labeled jurisdictional” and “is not
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`located in a jurisdiction-granting provision.” Reed Elsevier, Inc. v. Muchnick, 559 U.S.
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`154, 166 (2010). Instead, it merely prohibits certain violations from being “the subject of
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`a civil penalty action.” 33 U.S.C. § 1319(g)(6)(A)(ii). Nor is there any indication that the
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`diligent prosecution bar is meant to “govern[ ] [the] court’s adjudicatory capacity.”
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`Henderson, 562 U.S. at 435. To the contrary, the relevant provision references the citizen-
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`plaintiff bringing suit, not the court. Cf. Friends of the Earth, Inc. v. Laidlaw Env’t Servs.,
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`Inc., 528 U.S. 167, 175 (2000) (noting that the Clean Water Act “bars a citizen from suing
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`if the EPA or the State has already commenced, and is diligently prosecuting, an
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`enforcement action” (quotation marks omitted, emphasis added)).2
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`The notion that the judicial proceeding bar implicates subject matter jurisdiction
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`appears to have originated from our 1985 decision in Chesapeake Bay Foundation. Having
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`reviewed that decision, however, we conclude it was “the kind of drive-by jurisdictional
`
`
`2 Section 1365(a) does use the word “jurisdiction” at one point. See 33 U.S.C.
`§ 1365(a) (“The district courts shall have jurisdiction, without regard to the amount in
`controversy or the citizenship of the parties, to enforce such an effluent standard or
`limitation . . . and to apply any appropriate civil penalties . . . .”). But the diligent
`prosecution bar is neither contained in nor references that portion of the statute. Instead,
`the diligent prosecution bar is framed as an exception to the entirely separate authorization
`to “commence a civil action” in the subsection’s first provision.
`
`9
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`ruling of the sort that was more common before Supreme Court decisions like Steel
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`Company made clear” the need for greater precision in the use of that term. B.R. v. F.C.S.B.,
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`17 F.4th 485, 496 (4th Cir. 2021) (quotation marks and alterations omitted). And because
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`our later decision in Piney Run had no occasion to independently consider whether the
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`judicial proceeding bar was properly understood as truly jurisdictional—in particular,
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`because that case involved no issues of waiver or forfeiture, cf. Miranda v. Garland, 34
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`F.4th 338, 350 (4th Cir. 2022)—it appears that Piney Run echoed Chesapeake Bay
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`Foundation’s drive-by jurisdictional ruling without independent consideration. See Piney
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`Run, 523 F.3d at 456.
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`
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`At any rate, this case involves the diligent prosecution bar contained in Section
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`1319(g)(6)(A)(ii) rather than the judicial proceeding bar at issue in Chesapeake Bay
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`Foundation and Piney Run. So, although there may well be reason for skepticism about
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`whether the judicial proceeding bar is properly labeled jurisdictional under the Supreme
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`Court’s current approach,3 we need not resolve that issue here. Instead, we clarify that the
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`diligent prosecution bar does not implicate an Article III court’s subject matter jurisdiction.
`
`
`3 Like the diligent prosecution bar, the judicial proceeding bar “is not clearly labeled
`jurisdictional” and “is not located in a jurisdiction-granting provision.” Reed Elsevier, 559
`U.S. at 166. Instead, it provides that “[n]o action may be commenced” if a State or the EPA
`has already sued in federal or state court. 33 U.S.C. § 1365(b)(1)(B). Indeed, the judicial
`proceeding bar appears in the same subsection as a mandatory 60-day notice provision, see
`33 U.S.C. § 1365(b)—precisely the kind of “time prescriptions for procedural steps in
`judicial . . . forums” that have been repeatedly deemed non-jurisdictional, Fort Bend
`County, 139 S. Ct. at 1850 (collecting cases).
`
`10
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`B.
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`We turn next to why the diligent prosecution bar does not preclude this suit.
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`We start, as always, with the text. The diligent prosecution bar is triggered by the
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`State’s “commence[ment]” of “an action under a State law” that is “comparable to” the
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`federal statute addressing “administrative penalties” that the government may assess for
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`violations of the Clean Water Act. 33 U.S.C. § 1319(g)(6)(A)(ii). In contrast, the diligent
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`prosecution bar “shall not apply” to citizen suits “filed prior to commencement of ” such
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`an action. § 1319(g)(6)(B)(i).
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`Whatever else the Department’s notice of alleged violation may have started, it
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`seems odd to describe it as commencing “an action.” 33 U.S.C. § 1319(g)(6)(A)(ii). In the
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`legal context, the term “action” typically refers to “an entire case or suit,” an understanding
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`that is “grounded in the Federal Rules of Civil Procedure.” Tolbert v. Stevenson, 635 F.3d
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`646, 650 (4th Cir. 2011). True, the provision before us references “an action under a State
`
`law” that is “comparable to” a federal administrative enforcement proceeding rather than
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`one filed in court. 33 U.S.C. § 1319(g)(6)(A)(ii). But the essential character of an
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`“action”—an adversarial proceeding initiated by a formal, public document—remains. Cf.
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`1 Oxford English Dictionary 128 (J.A. Simpson & E.S.C. Weiner, eds., 1989) (defining
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`“action” as “[t]he taking of legal steps to establish a claim or obtain judicial remedy”).
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`Examining the features of a Section 1319(g) proceeding—which a state action must
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`be “comparable” to for the diligent prosecution bar to apply—further supports our view of
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`when an “action” has been “commenced.” 33 U.S.C. § 1319(g)(6)(A)(ii). In particular,
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`Section 1319(g)(4) provides for certain “rights of interested persons,” including rights to
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`11
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`public notice and judicial review. In addition, the rules of practice governing Section
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`1319(g) proceedings state that a proceeding “is commenced” by filing a complaint or the
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`simultaneous issuance of a consent agreement and final order. 40 C.F.R. §§ 22.13, 22.38.
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`The same regulations further specify that, “before assessing a civil penalty,” a complainant
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`“shall notify the public” either “within 30 days following proof of service of the complaint
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`on the respondent,” or “no less than 40 days before the issuance of ” a consent agreement
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`and final order assessing a civil penalty. § 22.45.
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`When asked about these regulations at oral argument, Arabella Farm correctly
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`pointed out that they govern the EPA’s own proceedings rather than those conducted under
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`state law. Oral Arg. 18:50–21:00. But these regulations help to inform our understanding
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`of when a “State has commenced” an action that is “comparable” to the one set forth in
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`33 U.S.C. § 1319(g). And both Section 1319(g) and its accompanying regulations suggest
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`the diligent prosecution bar would not be triggered until a state agency has begun a
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`comparable formal process that entails public notice.
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`This understanding of what it means to commence the relevant sort of action is only
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`bolstered by the comparability analysis that the district court employed to assess whether
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`the diligent prosecution bar applied. The rough comparability analysis employed by most
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`of our sister circuits looks to whether the state law provides similar opportunities for public
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`participation and availability of judicial review. See, e.g., McAbee v. City of Fort Payne,
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`318 F.3d 1248, 1251–56 (11th Cir. 2003). And although Arabella Farm and the district
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`court pointed to the availability of public participation and judicial review of the
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`Department’s consent orders under South Carolina law as support for application of the
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`12
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`diligent prosecution bar here, see S.C. Code § 48-1-200; JA 84, neither of these features is
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`available until after the issuance of a departmental consent order. In other words, the
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`comparable features were not yet available at the time this suit was filed because no
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`comparable action had yet commenced.
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`Our sister circuits have looked to similar features in determining whether the Clean
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`Water Act’s diligent prosecution bar precludes a particular suit. The Seventh Circuit has
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`held that, “for the purposes of § 1319(g), an administrative action ‘commences’ at the point
`
`when notice and public participation protections become available to the public and
`
`interested parties.” Friends of Milwaukee’s Rivers v. Milwaukee Metro. Sewerage Dist.,
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`382 F.3d 743, 756 (7th Cir. 2004). The Eighth Circuit similarly concluded that an action
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`had “commenced” at the time the State filed a consent administrative order, explaining that
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`once the order was issued, “interested third parties had a right to intervene, and certain
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`notice and hearing procedures became available to interested third parties.” Arkansas
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`Wildlife Fed’n v. ICI Americas, Inc., 29 F.3d 376, 380 (8th Cir. 1994).4
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`In response, Arabella Farm insists the practices of the EPA and the States—the
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`“primary enforcer[s]” of the Clean Water Act, Piney Run, 523 F.3d at 459—take a more
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`flexible view of what constitutes “commencement.” For instance, Arabella Farm contends
`
`that the Department considers a notice of violation to be “the first step in the administrative
`
`
`4 The court recognized that States should be “afforded some latitude in selecting the
`specific mechanisms of their enforcement program” but never suggested that a process
`without any of these features would be comparable under § 1319(g). Arkansas Wildlife, 29
`F.3d at 380.
`
`13
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`

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`enforcement process,” JA 59, and quotes an EPA publication that generally describes a
`
`notice of violation as a “form of ” administrative enforcement action, Farm Br. 23
`
`(quotation marks omitted). But the handful of public statements Arabella Farm cites—none
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`of which were made in the context of defining commencement under the diligent
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`prosecution bar—cannot overcome the text of the Act, which makes clear that 33 U.S.C.
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`§ 1319(g) is the relevant comparator.
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`On the facts of this case, we do not think the Department’s notice of alleged
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`violation was enough to commence an action that was comparable to one brought under
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`federal law. That notice invited Arabella Farm to an informal, voluntary, private conference
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`with the Department to discuss allegedly unauthorized discharges. The notice mentioned
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`no penalties or sanctions that would flow specifically from the failure to attend the
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`conference. Of course, it was possible that the Department would determine Arabella Farm
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`had violated the relevant provisions and issue a unilateral administrative order or (as it
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`ultimately did) enter a consent order with Arabella Farm that included a civil penalty. But
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`the only question here is whether the notice itself “commenced . . . an action” of the
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`relevant sort. 33 U.S.C. § 1319(g)(6)(A)(ii). Although the notice may have been an
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`important and even necessary step in the Department’s process—like a demand letter
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`before civil litigation—it did not commence an action within the common understanding
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`of those terms. And because the Department had not yet commenced an action when the
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`conservationists filed their citizen suit, the diligent prosecution bar does not preclude them
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`from pursuing a civil penalty action. See 33 U.S.C. § 1319(g)(6)(B)(i) (providing that the
`
`14
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`diligent prosecution bar does not apply if a citizen suit was “filed prior to commencement
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`of an action” by the EPA or a State).5
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`III.
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`We also hold that the district court erred in concluding that South Carolina Trout
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`Unlimited was not permitted to sue under the Clean Water Act.
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`The Act declares that no citizen suit “may be commenced . . . prior to sixty days
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`after the plaintiff has given notice of the alleged violation . . . to any alleged violator.”
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`33 U.S.C. § 1365(b)(1)(A). EPA regulations, in turn, state that the relevant notice “shall
`
`include sufficient information to permit the recipient to identify . . . the full name, address,
`
`and telephone number of the person giving notice.” 40 C.F.R. § 135.3(a). The district court
`
`concluded that South Carolina Trout Unlimited failed to satisfy those requirements because
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`the notice of intent to sue letter referenced only “Trout Unlimited” and contained “no
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`mention of ” South Carolina Trout Unlimited. JA 19–20.
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`We disagree. Although the letter did not contain the specific words “South Carolina
`
`Trout Unlimited” in that order, it described Trout Unlimited as a “national non-profit” with
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`“two local chapters in the Upstate of South Carolina” and explained the same basis for
`
`
`5 Although Pickens County also conducted a separate investigation into whether
`Arabella Farm should have obtained a county-issued stormwater permit before starting its
`land-clearing project, Arabella Farm has disclaimed reliance on those enforcement efforts.
`Indeed, the diligent prosecution bar precludes citizen suits only when a “State has
`commenced and is diligently prosecuting” an action, 33 U.S.C. § 1319(g)(6)(A)(ii)
`(emphasis added), and counties generally are not treated as States for purposes of federal
`law, see, e.g., Lincoln County v. Luning, 133 U.S. 529, 530 (1890). Nor is there any claim
`that the State delegated its own enforcement authority to Pickens County.
`
`15
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`associational standing ultimately described in the complaint (its members who use the
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`Eastatoe River and Little Eastatoe Creek to fish trout). Compare JA 63–64, 76, with JA
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`24–25. Those details gave Arabella Farm “sufficient information” to identify the full name,
`
`address, and telephone number of South Carolina Trout Unlimited, 40 C.F.R. § 135.3(a)—
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`the entity that eventually filed this suit. Accord Friends of the Earth, Inc. v. Gaston Copper
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`Recycling Corp., 629 F.3d 387, 400 (4th Cir. 2011) (cautioning against “overly technical
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`application of regulatory notice requirements”).
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`We emphasize that plaintiffs can easily avoid imprecision with names, addresses,
`
`and telephone numbers and that more serious discrepancies that make it cumbersome for a
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`defendant to identify the potential plaintiff may lead to dismissal under the applicable law
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`and regulations. Here, however, there is no argument that Arabella Farm suffered any harm
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`or had any difficulty ascertaining the identity or contact information of the party that would
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`sue. Accordingly, we reverse the district court’s ruling on this point and direct that, on
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`remand, South Carolina Trout Unlimited be reinstated as a party.
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`* * *
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`The judgment of the district court is reversed, and the case is remanded for further
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`proceedings consistent with this opinion.
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`SO ORDERED
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`16
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`QUATTLEBAUM, Circuit Judge, dissenting:
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`This appeal involves the scope of citizen suits under the Clean Water Act. States
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`hold “the primary responsibilities and rights” in managing our nation’s water resources.
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`See 33 U.S.C. § 1251(b). In contrast, citizen suits are intended to “supplement rather than
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`to supplant governmental action.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,
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`Inc., 484 U.S. 49, 60 (1987). They are permissible if, but only if, “the government cannot
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`or will not command compliance.” See id. at 62.
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`By permitting the citizen suit here to proceed despite the measures South Carolina
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`had already taken, the majority’s decision elevates citizen suits above their supplemental
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`role. In my view, the South Carolina Department of Health and Environmental Control
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`(“DHEC”) had commenced and was diligently prosecuting an administrative penalty action
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`under state law comparable to 33 U.S.C. § 1319(g). Thus, I would affirm the district court’s
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`decision that § 1319(g)(6)(A) bars the claim for monetary penalties in the citizen suit here.
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`My disagreement with the majority leaves open Plaintiffs’ contention that their
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`claims for injunctive relief should have been preserved. On this issue, the district court
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`erred in concluding that the § 1319(g) citizen suit bar automatically includes a bar on
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`injunctions. So, I would vacate the district court’s dismissal of Plaintiffs’ injunction claims.
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`And while I am skeptical that the elements of an injunction could be met when DHEC has
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`commenced and is diligently prosecuting an administrative penalty action under a
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`regulatory regime comparable to § 1319(g), I would let the district court consider the merits
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`of such claims on remand.
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`
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`17
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`I.
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`The Clean Water Act permits citizen suits against any person who violated the Act’s
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`water quality standards. See 33 U.S.C. § 1365(a). But the principal means of effectuating
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`water quality standards is through government enforcement. See Gwaltney, 484 U.S. at 60
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`(“The bar on citizen suits when governmental enforcement action is under way suggests
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`that the citizen suit is meant to supplement rather than to supplant governmental action.”);
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`see also Ohio Valley Env’t Coal. v. Fola Coal Co., LLC, 845 F.3d 133, 145 (4th Cir. 2017)
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`(“Congress enacted the citizen suit provision of the Clean Water Act to address situations
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`. . . in which the traditional enforcement agency declines to act.”).
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`
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`The government agency responsible for enforcement can be the U.S. Environmental
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`Protection Agency or the U.S. Army Corps of Engineers. See, e.g., 33 U.S.C. §§ 1319,
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`1344(s). But the Clean Water Act’s cooperative federalism framework makes clear that
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`states and their enforcement bodies are primarily in charge of enforcement. See id.
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`§ 1251(b) (declaring Congress’s policy that states hold “the primary responsibilities and
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`rights” to manage the nation’s water resources and to consult with the EPA accordingly);
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`see also New York v. United States, 505 U.S. 144, 167 (1992); Arkansas v. Oklahoma, 503
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`U.S. 91, 101 (1992).
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`And citizen suits may be barred when the state is in fact enforcing the Clean Water
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`Act. This can happen in two ways. First, if a state brought a lawsuit in court similar to the
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`citizen suit, the citizen suit may be barred. See 33 U.S.C. § 1365(b) (“No action may be
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`commenced-- . . . (B) if the Administrator or State has commenced and is diligently
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`prosecuting a civil or criminal action in a court of the United States, or a State . . . .”).
`18
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`

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`Second, if a state has commenced and is diligently pursuing an administrative
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`penalty action instead of any formal lawsuit, the citizen suit may also be barred. The Act
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`states: “any violation-- (ii) with respect to which a State has commenced and is diligently
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`prosecuting an action under a State law comparable to this subsection . . . shall not be the
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`subject of a civil penalty action under . . . [the citizen suit provisions].” Id. § 1319(g)(6)(A);
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`see also McAbee v. City of Fort Payne, 318 F.3d 1248, 1249 (11th Cir. 2003) (discussing
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`how the 1987 amendments to the Clean Water Act “extended the bar on citizen suits,
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`instructing that an administrative penalty action is enough to preclude a citizen suit”).
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`These provisions make good sense. If citizen suits are permitted when the
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`government cannot or does not act, they should not be allowed when the government is
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`enforcing the Clean Water Act through a lawsuit or administrative proceedings.
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`
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`
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`The question before us is whether, at the time of Plaintiffs’ citizen suit, DHEC
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`II.
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`“[had] commenced and [was] diligently prosecuting an action under a State law
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`comparable” to the federal statute addressing administrative penalties.1 33 U.S.C.
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`§ 1319(g)(6)(A)(ii). For me, the answer is yes. Therefore, I would affirm the district court’s
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`dismissal of the citizen suit to the extent that Plaintiffs seek monetary penalties.
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`1 Before that, the majority also concludes that the diligent prosecution bar does not
`implicate subject matter jurisdiction, and that our decisions to the contrary are “untenable”
`given recent Supreme Court decisions on the matter. While I do not disagree that some
`tension exists, this issue was not raised below, was not briefed in front of us and is not a
`sufficient conditio