§ 1365. — Citizen suits.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 33USC1365]
TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 26--WATER POLLUTION PREVENTION AND CONTROL
SUBCHAPTER V--GENERAL PROVISIONS
Sec. 1365. Citizen suits
(a) Authorization; jurisdiction
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.
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, or such an order, or to order the
Administrator to perform such act or duty, as the case may be, and to
apply any appropriate civil penalties under section 1319(d) of this
title.
(b) Notice
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,
except that such action may be brought immediately after such
notification in the case of an action under this section respecting a
violation of sections 1316 and 1317(a) of this title. Notice under this
subsection shall be given in such manner as the Administrator shall
prescribe by regulation.
(c) Venue; intervention by Administrator; United States interests
protected
(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) Protection of interests of united states.--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) Litigation costs
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) Statutory or common law rights not restricted
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) Effluent standard or limitation
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) 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,.\1\
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\1\ So in original.
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(g) ``Citizen'' defined
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) Civil action by State Governors
A Governor of a State may commence a civil action under subsection
(a) of this section, 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.
(June 30, 1948, ch. 758, title V, Sec. 505, as added Pub. L. 92-500,
Sec. 2, Oct. 18, 1972, 86 Stat. 888; amended Pub. L. 100-4, title III,
Sec. 314(c), title IV, Sec. 406(d)(2), title V, Secs. 504, 505(c), Feb.
4, 1987, 101 Stat. 49, 73, 75, 76.)
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
1987--Subsec. (a). Pub. L. 100-4, Sec. 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, Sec. 504, added par. (3).
Subsec. (d). Pub. L. 100-4, Sec. 505(c), inserted ``prevailing or
substantially prevailing'' before ``party''.
Subsec. (f). Pub. L. 100-4, Sec. 406(d)(2), added cl. (7).
Section Referred to in Other Sections
This section is referred to in sections 1319, 1321, 1329, 1342, 1344
of this title.
