The case is therefore ordered submitted without oral argument. Thereafter, the parties entered into a consent decree. The consent decree provided that, in settlement of the plaintiffs' claim for civil penalties, defendant would carry out and pay the costs of the treatment plan that was attached. Defendant also agreed not to discharge any pollutants except as authorized by a permit and to implement any mitigation or restoration requirements imposed by the permitting agency as a condition of receiving the permit. Defendant agrees to pay attorney fees awarded to Plaintiffs by the Court.
Defendant appeals the award.
I. Defendant contends that plaintiffs are not entitled to fees because they were not prevailing parties and the attorney fee language in the consent decree was not a stipulation conceding that status. A review of the brief it filed in the district court reveals that defendant never made this particular argument. Therefore, we will not consider this point on appeal. See Farmers Ins. Defendant argues, on a separate ground, that the Pueblo is not entitled to attorney fees because it failed to give the notice required under the Clean Water Act before commencing suit.