I 

116TH CONGRESS 

1ST SESSION H. R. 892 

To amend the Federal Water Pollution Control Act to limit attorney fees 

and penalties in citizen suits, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 30, 2019 

Mr. HUNTER introduced the following bill; which was referred to the 

Committee on Transportation and Infrastructure 

A BILL 

To amend the Federal Water Pollution Control Act to limit 

attorney fees and penalties in citizen suits, and for other 

purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. LITIGATION COSTS. 

4 Section 505(d) of the Federal Water Pollution Con5 trol Act (33 U.S.C. 1365(d)) is amended to read as fol6 lows: 

7 ‘‘(d) AWARDS.— 

8 ‘‘(1) The court, in issuing any final order in 

9 any action brought under this section, may award 

10 costs of litigation (including reasonable attorney and 


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1 expert witness fees) to any prevailing or substan2 tially prevailing party, whenever the court deter3 mines such award is appropriate. The award— 

4 ‘‘(A) may not exceed an amount that, as 

5 compared to the total amount of attorney and 

6 expert witness fees charged, bears the same 

7 proportion as the number of successful claims 

8 included in the complaint bears to the total 

9 number of claims included in the complaint; 

10 ‘‘(B) may not exceed the amount of mone11 tary penalties awarded; and 

12 ‘‘(C) shall be based upon the prevailing 

13 market rates in the area in which the violation 

14 occurred for the kind and quality of the services 

15 furnished. 

16 ‘‘(2) The court may, if a temporary restraining 

17 order or preliminary injunction is sought, require the 

18 filing of a bond or equivalent security in accordance 

19 with the Federal Rules of Civil Procedure.’’. 

20 SEC. 2. DILIGENT PROSECUTION. 

21 Section 309(g)(6) of the Federal Water Pollution 

22 Control Act (33 U.S.C. 1319(g)(6)) is amended by adding 

23 at the end following new subparagraph: 

24 ‘‘(C) DILIGENT PROSECUTION.— 


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1 ‘‘(i) DILIGENTLY PROSECUTING DE2 FINED.—In this paragraph, the term ‘dili3 gently prosecuting’ includes the issuance of 

4 any order made under this section or a 

5 State law comparable to this section. 

6 ‘‘(ii) COMMENCEMENT OF DILIGENT

7 PROSECUTION.—Diligent prosecution com8 mences on the date the proposed order is 

9 issued. 

10 ‘‘(iii) ISSUANCE OF FINAL ORDER.— 

11 The Administrator or the Secretary shall 

12 be considered to be diligently prosecuting 

13 an action under this subsection if the Ad14 ministrator or the Secretary issues a final 

15 order before the date that is one year after 

16 the date on which such proposed order is 

17 issued.’’. 

18 SEC. 3. AFFIRMATIVE DEFENSES. 

19 Section 309 of the Federal Water Pollution Control 

20 Act (33 U.S.C. 1319) is amended by adding at the end 

21 the following new subsection: 

22 ‘‘(h) AFFIRMATIVE DEFENSES.— 

23 ‘‘(1) IN GENERAL.—There shall be no liability 

24 under this Act for a person otherwise liable for the 

25 unlawful discharge of a pollutant who can establish 


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1 by a preponderance of the evidence that the imme2 diate cause of the unlawful discharge and any dam3 ages was— 

4 ‘‘(A) an act of God; 

5 ‘‘(B) an act of war; 

6 ‘‘(C) an act or omission of a third party 

7 (unless such third party is an employee or 

8 agent of such person, or such third party’s act 

9 or omission occurred in connection with a con10 tractual relationship, existing directly or indi11 rectly, with such person), if such person estab12 lishes by a preponderance of the evidence that 

13 such person— 

14 ‘‘(i) exercised due care in light of all 

15 relevant facts and circumstances; and 

16 ‘‘(ii) took precautions against foresee17 able acts or omissions of any such third 

18 party and the consequences that could 

19 foreseeably result from such acts or omis20 sions; or 

21 ‘‘(D) any combination of subparagraphs 

22 (A), (B), and (C). 

23 ‘‘(2) OTHER AFFIRMATIVE DEFENSES.—All 

24 general defenses, affirmative defenses, and bars to 

25 prosecution that may apply with respect to other 


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1 Federal criminal offenses may apply to a person oth2 erwise liable for the unlawful discharge of a pollut3 ant under this Act and shall be determined by the 

4 courts of the United States according to the prin5 ciples of common law as may be interpreted in light 

6 of reason and experience.’’. 

Æ 


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