IN THE LINITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

THE ENVIRONMENTAL 9 

CONSERVATION ORGANIZATION 9 

9 

Plaintiff, 9 

9 

VS. 9 

9 

THE CITY OF DALLAS, 9 

9 

Defendant. 9 

NO. 3-03-CV-295 1-BD 

MEMORANDUM ORDER 

Plaintiff Environmental Conservation Organization ("ECO") and Defendant City of Dallas 

("the City") both move for attorney's fees and costs as the prevailing party in this citizen enforcement 

action brought under section 505 of the Federal Water Pollution Control Act, also known as the 

Clean Water Act ("CWA"), 33 U.S.C. 5 1251, et seq. In its complaint, ECO alleged that the City 

regularly discharged pollutant-laden water from its various facilities without the proper permits or 

in violation of such permits ("illicit discharge claims"), and failed to develop and implement an 

effective program to monitor and reduce the discharge ofpollutants into its municipal separate storm 

sewer system ("MS4 claims"). The illicit discharge claims were dismissed without prejudice because 

ECO failed to provide adequate notice to the City of the alleged violations as required by the CWA. 

Environmental Conservation Organization v. City of Dallas, No. 3-03-CV-295 1-BD, 2005 WL 

1771289 (N.D. Tex. Jul. 25,2005). TheMS4 claims were dismissed onres judicata grounds because 

the same claims were resolved by a consent decree in a related action brought by the United States 

Environmental Protection Agency ("EPA") against the City. Environmental Conservation 

Organization v. City of Dallas, F.Supp.2d ,2007 WL 1228039 (N.D. Tex. Apr. 26,2007). 
After the court entered its final judgment, the parties filed the instant motions. ECO contends that 

it is entitled to attorney's fees and costs under conventional prevailing party principles or, 

alternatively, under a "catalyst theory." The City seeks litigation costs and court costs because it 

believes the citizen suit brought by ECO was unnecessary, unreasonable, and poorly motivated. 

Both motions have been fully briefed and are ripe for determination. 

Federal law authorizes the recovery of litigation costs to a prevailing party in a citizen 

enforcement action brought under the CWA. The relevant statute, 33 U.S.C. !$ 1365(d), provides: 

The court . . . 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. 

Although neither the Supreme Court nor the Fifth Circuit has addressed what it means to be a 

"prevailing party" or a "substantially prevailing party" under this statute, other courts have held that 

a plaintiff in a citizen suit prevails by obtaining an enforceable judgment, or comparable relief 

through a consent decree or settlement, that "materially alters the legal relationship between the 

parties by modifllng the defendant's behavior in a way that directly benefits the plaintiff." Sierra 

Club v. City of Little Rock, 35 1 F.3d 840, 845 (8th Cir. 2003) (citations omitted); see also United 

States v. Comunidades Unidas Contra La Contaminacion, 204 F.3d 275,282 (1st Cir. 2000) (same). 

By contrast, a prevailing defendant may recover litigation costs under the CWA only if the 

underlying action was frivolous, unreasonable, groundless, or vexatious. See, e.g. Sierra Club, 351 

F.3d at 847; Morris-Smith v. Moulton Niguel WaterDist., 234 F.3d 1277 (Table), 2000 WL 1195538 

at *2 (9th Cir. Aug. 21, 2000); Sierra Club v. Cripple Creek and Victor Gold Mining Co., 509 

F.Supp.2d 943, 950 (D. Colo. 2006); Atlantic States Legal Foundation, Inc. v. Onondaga 

Department of Drainage and Sanitation, 899 F.Supp. 84, 87 (N.D.N.Y. 1995); National Wildlife 
Federation v. Consumers Power Company, 729 F.Supp. 62, 63-64 (W.D. Mich. 1989). Judged 

against these standards, the court determines that neither party is entitled to attorney's fees or costs. 

ECO is not a prevailing party because it did not obtain any actual relief. Rather, the claims 

brought by ECO in the citizen enforcement action were dismissed either for failure to comply with 

the pre-suit notice requirements of the CWA or on res judicata grounds. To the extent ECO seeks 

prevailing party status by virtue of the relief granted against the City in the EPA litigation, such an 

argument fails because ECO was not a party to the consent decree and did not obtain any judicially 

enforceable relief or rights as a result of the decree.' 

Nor is ECO entitled to attorney's fees under the so-called "catalyst theory." Under this 

theory, a plaintiff is considered aprevailing party if it achieves the desired result because of a lawsuit 

that brought about a voluntary change in the defendant's conduct. No judicially sanctioned change 

in the legal relationship of the parties is required. However, in Buckhannon Bd. & Care Home, Inc. 

v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598,12 1 S.Ct. 1835,149 L.Ed.2d 

855 (2001), the Supreme Court rejected the "catalyst theory," making clear that "[a] defendant's 

voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve 

by the lawsuit, lacks the necessary judicial imprimatur on the change" to establish prevailing party 

status. Buckhannon, 121 S.Ct. at 1840; see also Yousuf v. Motiva Enterprises LLC, No. 06-3 1097, 

2007 WL 2538437 at *2 (5th Cir. Sept. 5, 2007) (noting that Buckhannon rejected the "catalyst 

theory" previously applied by manycircuits); Sierra Club, 35 1 F.3d at 845 (holding that Buckhannon 

' The court recognizes that some recent decisions have held that a consent decree between the United States 

government and an alleged polluter confers prevailing party status on a citizen suit plaintiff, even where the citizen suit 

plaintiff was not a formal party to the consent decree. See, e.g. Northeast Iowa Citizens For Clean Water v. 

Agriprocessors, Inc., 489 F.Supp.2d 88 1, 893 (N.D. Iowa 2007); United States v. Board of County Commissioners of 

Hamilton County, No. 1 :02-CV-00 107,2005 WL 2033708 at * 15 (S.D. Ohio Aug. 23,2005). However, in those cases, 

the citizen suit plaintiff had intervened in the government action and secured nominal plaintiff status. Here, ECO never 

intervened in the EPA litigation and has no judicially-enforceable rights under the consent decree entered in that case. 
abrogates the "catalyst theory" in CWA cases); Northeast Iowa Citizens For Clean Water v. 

Agriprocessors, Inc., 489 F.Supp.2d 881,891 (N.D. Iowa 2007) (same); Saint John's Organic Farm 

v. Gem County Mosquito Abatement Dist., No. CV-04-87-S-BLW, 2007 WL 2461990 at *4 (D. 

Idaho Aug. 27,2007) (same). But see Ailor v. City ofMaynardville, 368 F.3d 587,601 n.6 (6th Cir. 

2004) ("It is an open question whether the catalyst theory remains viable in the context of 

environmental statutes like the CWA that limit attorneys' fees to a prevailing party or substantially 

prevailing party.") (emphasis in original). 

Even if the "catalyst theory" survives Buckhannon in citizen suits brought under the CWA, 

the court declines to award attorney's fees and costs to ECO under that theory. The record in this 

case demonstrates that ECO was more of an "opportunist" than a "catalyst" with respect to the 

voluntary change in the City's conduct brought about by the consent decree in the EPA litigation. 

Before ECO sent its pre-suit notice letter, the EPA was well-aware of the alleged MS4 permit 

violations and had notified the City that it would be filing an enforcement action. (See Def. Resp. 

App., Exh. 4 at 3,7 8). Thereafter, the City worked with EPA officials to obtain compliance with 

federal and state environmental regulations. There is absolutely no evidence that the citizen suit 

initiated by ECO had any impact on the ultimate resolution of the EPA litigation. 

The court also denies the City's request for litigation costs under the CWA. There is no basis 

for the court to conclude that the citizen suit brought by ECO was "fiivolous, unreasonable, or 

without foundation." See Sierra Club, 351 F.3d at 847, citing Christiansburg Garment Co. v. 

E.E. 0. C., 434 U.S. 412,421,98 S.Ct. 694,54 L.Ed.2d 648 (1 978). To the contrary, it appears that 

the suit had considerable merit in light of the civil penalties and other relief ordered by the court in 

the EPA litigation. With respect to the City's request for court costs under Fed. R. Civ. P. 54(d), the 

court declines to tax costs against ECO for two reasons. First, this case involved novel and difficult 
legal issues, including whether the rule of res judicata applies to a citizen enforcement action under 

the CWA. Second, even though the court is not convinced that the citizen suit had any impact on 

the resolution of the EPA litigation, it cannot be questioned that the City acquiesced to essentially 

all the relief sought by ECO, resulting in a substantial benefit to the public. Under these unique 

circumstances, the parties should be required to pay their own costs. 

For these reasons, ECO's motion for costs [Doc. #I191 and the City's motion for costs [Doc. 

# 1 181 are denied. 

SO ORDERED. 

DATED: November 2 1,2007.