costs of litigation (including reasonable attorney and 
expert witness fees) to any prevailing or substan-
tially prevailing party, whenever the court deter-
mines such award is appropriate. The award— 
‘‘(A) may not exceed an amount that, as 
compared to the total amount of attorney and 
expert witness fees charged, bears the same 
proportion as the number of successful claims 
included in the complaint bears to the total 
number of claims included in the complaint; 
‘‘(B) may not exceed the amount of mone-
tary penalties awarded; and 
‘‘(C) shall be based upon the prevailing 
market rates in the area in which the violation 
occurred for the kind and quality of the services 
furnished. 
‘‘(2) 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.’’. 
SEC. 2. DILIGENT PROSECUTION. 
Section 309(g)(6) of the Federal Water Pollution 
Control Act (33 U.S.C. 1319(g)(6)) is amended by adding 
at the end following new subparagraph: 
‘‘(C) DILIGENT PROSECUTION.— 
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‘‘(i) DILIGENTLY
PROSECUTING
DE-
FINED.—In this paragraph, the term ‘dili-
gently prosecuting’ includes the issuance of 
any order made under this section or a 
State law comparable to this section. 
‘‘(ii) COMMENCEMENT
OF
DILIGENT 
PROSECUTION.—Diligent prosecution com-
mences on the date the proposed order is 
issued. 
‘‘(iii) ISSUANCE OF FINAL ORDER.— 
The Administrator or the Secretary shall 
be considered to be diligently prosecuting 
an action under this subsection if the Ad-
ministrator or the Secretary issues a final 
order before the date that is one year after 
the date on which such proposed order is 
issued.’’. 
SEC. 3. AFFIRMATIVE DEFENSES. 
Section 309 of the Federal Water Pollution Control 
Act (33 U.S.C. 1319) is amended by adding at the end 
the following new subsection: 
‘‘(h) AFFIRMATIVE DEFENSES.— 
‘‘(1) IN GENERAL.—There shall be no liability 
under this Act for a person otherwise liable for the 
unlawful discharge of a pollutant who can establish 
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by a preponderance of the evidence that the imme-
diate cause of the unlawful discharge and any dam-
ages was— 
‘‘(A) an act of God; 
‘‘(B) an act of war; 
‘‘(C) an act or omission of a third party 
(unless such third party is an employee or 
agent of such person, or such third party’s act 
or omission occurred in connection with a con-
tractual relationship, existing directly or indi-
rectly, with such person), if such person estab-
lishes by a preponderance of the evidence that 
such person— 
‘‘(i) exercised due care in light of all 
relevant facts and circumstances; and 
‘‘(ii) took precautions against foresee-
able acts or omissions of any such third 
party and the consequences that could 
foreseeably result from such acts or omis-
sions; or 
‘‘(D) any combination of subparagraphs 
(A), (B), and (C). 
‘‘(2) OTHER
AFFIRMATIVE
DEFENSES.—All 
general defenses, affirmative defenses, and bars to 
prosecution that may apply with respect to other 
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Federal criminal offenses may apply to a person oth-
erwise liable for the unlawful discharge of a pollut-
ant under this Act and shall be determined by the 
courts of the United States according to the prin-
ciples of common law as may be interpreted in light 
of reason and experience.’’. 
Æ 
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