PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN CANOE ASSOCIATION, 

INCORPORATED; PROFESSIONAL

PADDLESPORTS ASSOCIATION; THE

CONSERVATION COUNCIL OF NORTH

CAROLINA, INCORPORATED,

Plaintiffs-Appellees,

and  No. 04-2052 UNITED STATES OF AMERICA,

Plaintiff,

v.

MURPHY FARMS, INCORPORATED, d/b/a

Murphy Family Farms; D.M. FARMS

OF ROSE HILL,

Defendants-Appellants. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Senior District Judge.

(CA-98-4-7-F; CA-98-19-7-F; CA-98-209-5-F)

Argued: May 26, 2005

Decided: June 21, 2005

Before WIDENER, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judge Widener and Judge Niemeyer joined. 
COUNSEL

ARGUED: Richard Edward Schwartz, CROWELL & MORING,

Washington, D.C., for Appellants. Carolyn Smith Pravlik, TERRIS,

PRAVLIK & MILLIAN, Washington, D.C., for Appellees. ON

BRIEF: Kirsten L. Nathanson, CROWELL & MORING, Washington, D.C.; Reef C. Ivey, II, SHANAHAN LAW GROUP, Raleigh,

North Carolina, for Appellants. Bruce J. Terris, TERRIS, PRAVLIK

& MILLIAN, Washington, D.C., for Appellees.

OPINION

LUTTIG, Circuit Judge: 

Defendants-appellants Murphy Farms, Inc., and D.M. Farms of

Rose Hill (collectively, "the Farms") appeal from the district court’s

order finding subject matter jurisdiction of a citizen suit brought

under the Clean Water Act by plaintiffs-appellees American Canoe

Association, Inc., Professional Paddlesports Association, and The

Conservation Council of North Carolina, Inc. (collectively, "the citizen groups"). Because we conclude that the district court correctly

held that the citizen groups satisfied the jurisdictional requirements

for a citizen suit under section 505(a) of the Clean Water Act

("CWA"), we affirm the judgment of the district court. 

I.

The facts and procedural history of this case are detailed at length

in our prior published opinion in this case, Am. Canoe Ass’n, Inc. v.

Murphy Farms, Inc., 362 F.3d 505, 509-12 (4th Cir. 2003) ("Murphy

Farms II"), and we summarize them only briefly here. The citizen

groups that are parties to this appeal filed suit against the Farms in

January 1998, alleging that the Farms violated the CWA by spilling

swine wastewater into North Carolina rivers without a National Pollution Discharge Elimination System ("NPDES") permit. Id. at 510.

Subsequent litigation with the United States as intervenor resulted in

a consent decree. Id. at 510-11. However, the citizen groups’ participation in the consent decree, and thus their eligibility for an award of

2 AMERICAN CANOE ASS’N v. MURPHY FARMS
attorneys’ fees, was made contingent on their ability to show that, at

the time that they filed their complaint in January 1998, they both

possessed Article III standing and satisfied the jurisdictional requirements for bringing a citizen suit that are imposed by section 505(a)

of the CWA, 33 U.S.C. § 1365(a). Id. at 511. The district court initially ruled for the citizen groups on both issues. Id. at 512. On

appeal, we affirmed the district court’s decision on the issue of Article

III standing, see id. at 517, but we remanded for factual findings on

the issue of jurisdiction under section 505(a), see id. at 520-22. 

On remand, the district court made detailed factual findings, focusing on five spill events in which the Farms discharged or nearly discharged swine wastewater into nearby Six Runs Creek while spraying

the wastewater onto agricultural fields as irrigation and fertilizer. J.A.

1159-66. Two of these spill events occurred prior to the filing of the

citizen groups’ complaint on January 18, 1998, and three occurred

after the filing of the complaint. In the first event, in November 1996,

wastewater flowed off two heavily sloped sprayfields into the creek

while the spraying equipment was operating without supervision. The

operators had carelessly placed the spraying equipment at the lower

end of the sloped fields, permitting the spill in violation of the CWA.

J.A. 1159. Second, in July 1997, wastewater spilled from a sprayfield

into the creek because an operator had incorrectly set the pump timer

so that the spraying equipment continued to pump after completion of

spraying, causing ponding in the field; this incident also resulted in

a violation of the CWA. J.A. 1160. 

Third, after the filing of the complaint, in the spring of 1999, a

careless operator allowed his spraying equipment to run without

supervision, causing a discharge of wastewater into the creek in violation of the CWA. J.A. 1161. Fourth, in October 1999, the same careless operator incorrectly set the pump timer so that the spray gun

continued to pump after the spraying reel was fully retracted (much

like the July 1997 event), causing ponded wastewater in the adjacent

woods. J.A. 1162-63. And fifth, on February 5, 2000, one of the land

technicians did not show up for work, forcing one man to supervise

two spraying events several miles apart; as a result, wastewater

ponded on one of the sprayfields and spilled off in the direction of the

creek. J.A. 1164-65. For the fourth and fifth events, the evidence was

AMERICAN CANOE ASS’N v. MURPHY FARMS 3
inconclusive as to whether the wastewater actually flowed into the

creek in violation of the CWA. J.A. 1163, 1165. 

For each of these five events, the district court held that "there were

fewer responsible and competent land techs employed and/or on duty

than were required to operate the hog waste management system in

compliance with the Clean Water Act," J.A. 1167, and that this shortage "both before and after the filing of the complaint, was a common

causal factor contributing to the pre- and post-complaint discharges,"

J.A. 1168. The district court thus concluded that, despite the Farms’

numerous good-faith efforts to control their waste spillage problem,

"there was a continuing risk of recurrence in intermittent or sporadic

violations at the time [the citizen groups] filed [their] complaint

because the Farms’ land tech personnel management practices and

policies at that time were inadequate in both quantity and quality."

J.A. 1168-69. On these grounds, the district court held that the citizen

groups had satisfied the jurisdictional requirements for citizen suits in

section 505(a).

II.

On appeal, we uphold the district court’s findings of fact unless

they are clearly erroneous, but we review its legal conclusions de

novo. Mackey v. Shalala, 360 F.3d 463, 469 (4th Cir. 2004). 

Section 505(a) of the CWA provides that "any citizen may commence a civil action on his own behalf against any person . . . who

is alleged to be in violation of" the standards of the Act. 33 U.S.C.

§ 1365(a) & (1) (internal division omitted). The Supreme Court has

held that a citizen suit under section 505(a) may not be premised

solely on past violations of the Act. Rather, "[t]he most natural reading of ‘to be in violation’ is a requirement that citizen-plaintiffs allege

a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the

future." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,

Inc., 484 U.S. 49, 57 (1987) ("Gwaltney I"). On remand from Gwaltney I, we elaborated that, in order to establish jurisdiction, a citizenplaintiff must prove at trial an "ongoing violation" that had been

occurring when the complaint was filed:

4 AMERICAN CANOE ASS’N v. MURPHY FARMS
Citizen-plaintiffs may accomplish this [proof of an ongoing

violation] either (1) by proving violations that continue on

or after the date the complaint is filed, or (2) by adducing

evidence from which a reasonable trier of fact could find a

continuing likelihood of a recurrence in intermittent or sporadic violations. Intermittent or sporadic violations do not

cease to be ongoing until the date when there is no real likelihood of repetition.

Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844

F.2d 170, 171-72 (4th Cir. 1988) ("Gwaltney II"). See also Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 890 F.2d

690, 694 (4th Cir. 1989) ("Gwaltney III"). 

The district court was correct in concluding that the citizen groups

had satisfied their burden under the second prong of the Gwaltney II

test.* The occurrence of the three sporadic, post-complaint spill

events demonstrated that the Farms had not eliminated the "real likelihood of repetition" of CWA violations as required by the second

prong of Gwaltney II. As the district court found, these repeated spills

were not freak occurrences, but all resulted from the potential for

spraying equipment to malfunction during unsupervised or undersupervised operation. In the face of this risk, despite its good-faith

efforts to eliminate equipment problems, the Farms had evidently

failed to adopt adequate policies and employ sufficient personnel for

the supervision of the spraying equipment as it operated. J.A. 1167.

As evidenced by the recurring spills, in January 1998 the Farms were

guilty of ongoing "intermittent or sporadic violations" with a "continuing likelihood of recurrence," Gwaltney II, 844 F.2d at 171-72, and

were thus "in violation of" the Act at the time of the complaint. 33

U.S.C. § 1365(a). 

*In the alternative, the citizen groups argue that the single postcomplaint CWA violation that they proved on remand, namely the spring

1999 spill event, is sufficient to establish jurisdiction under the first

prong of Gwaltney II. We need not decide whether a single postcomplaint violation can constitute "violations that continue on or after

the date the complaint is filed" under the first prong of the Gwaltney II

test, however, because the citizen groups here prevail under the second

prong. Gwaltney II, 844 F.2d at 171 (emphasis added). 

AMERICAN CANOE ASS’N v. MURPHY FARMS 5
On appeal, the Farms contend that the district court imposed an

unfair burden on them by finding them to be "in violation of" the Act

at the time of the complaint despite their admittedly extensive goodfaith efforts to correct equipment malfunctions and to reduce the risk

of future violations. See J.A. 1175 ("[T]here is no doubt that the

Farms consistently implemented genuine and timely remedial measures."). Essentially, the Farms propose that we graft an exemption

onto the jurisdictional requirements of section 505(a) to shield from

suit those past violators who have undertaken good-faith remedial

efforts at the time of the complaint. Otherwise, the Farms argue,

Gwaltney II imposes on defendants the impossible burden of eliminating all human error in their operations. But, contrary to the Farms’

argument, it is plainly possible for those undertaking good-faith

remediation, such as the Farms, nevertheless "to be in violation" of

the Act within the meaning of section 505(a), because the CWA

creates a regime of strict liability for violations of its standards. See

33 U.S.C. § 1311(a) ("Except as in compliance with [inapplicable

exemptions], the discharge of any pollutant by any person shall be

unlawful."); Stoddard v. Western Carolina Regional Sewer Auth., 784

F.2d 1200, 1208 (4th Cir. 1986) ("Liability under the Clean Water

Act is a form of strict liability."). For this reason, the Supreme Court

directed in Gwaltney I that past violators such as the Farms continue

to be "in violation of" the Act while there exists an actual likelihood

of recurring violations, regardless of the defendant’s bona fides or

current subjective culpability for that risk. See Gwaltney I, 484 U.S.

at 56. Therefore, the fact that the defendants had undertaken remedial

efforts prior to the complaint does not ipso facto establish the absence

of federal jurisdiction over a citizen suit, so long as such remedial

efforts were insufficient to eliminate the "real likelihood of repetition"

of past violations. Gwaltney II, 844 F.2d at 172. Moreover, even if the

feasibility of compliance with the Act were relevant to our inquiry

into whether the Farms were actually "in violation" in January 1998

(which it is not), the citizen groups point out that, after the February

2000 spill event, the Farms undertook staffing reforms that have successfully forestalled any subsequent spills — suggesting both that the

district court’s determination of the cause of the spills was correct and

that the strict-liability burden of Gwaltney II was not then as impossibly onerous as the Farms now contend. We thus reject the Farms’

argument that its good-faith remedial efforts were alone sufficient to

6 AMERICAN CANOE ASS’N v. MURPHY FARMS
establish the absence of jurisdiction under section 505(a) over the

plaintiffs’ citizen suit against the Farms. 

III.

For the above-recited reasons, the judgment of the district court is

affirmed. 

AFFIRMED

AMERICAN CANOE ASS’N v. MURPHY FARMS 7