Title: To amend the Federal Water Pollution Control Act to limit attorney fees and penalties in citizen suits, and for other purposes.
Policy area: Environmental Protection

Summary:
This bill revises requirements for citizen enforcement suits brought under the Clean Water Act.
Specifically, the bill limits the amount that may be awarded for the costs of litigation in citizen suits. An award of litigation costs may not exceed (1) an amount that is proportional to the number of successful claims included in the complaint, or (2) the amount of monetary penalties.
The award of litigation costs must be based on the prevailing rates in the local market area where the violation occurred for the kind and quality of the services furnished.
Citizen suits may not be commenced if the Environmental Protection Agency or a state has commenced and is diligently prosecuting a civil or criminal action through the issuance of a compliance order.
The bill provides for certain affirmative defenses for a person who may be liable for the unlawful discharge of a pollutant.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 892 Introduced in House (IH)]

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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.

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

SECTION 1. LITIGATION COSTS.

    Section 505(d) of the Federal Water Pollution Control Act (33 
U.S.C. 1365(d)) is amended to read as follows:
    ``(d) Awards.--
            ``(1) The court, in issuing any final order in any action 
        brought under this section, 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. 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 monetary 
                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.--
                            ``(i) Diligently prosecuting defined.--In 
                        this paragraph, the term `diligently 
                        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 commences 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 
                        Administrator 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 by a preponderance of the 
        evidence that the immediate cause of the unlawful discharge and 
        any damages 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 contractual relationship, existing 
                directly or indirectly, with such person), if such 
                person establishes 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 foreseeable 
                        acts or omissions of any such third party and 
                        the consequences that could foreseeably result 
                        from such acts or omissions; 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 Federal criminal offenses may apply to a 
        person otherwise liable for the unlawful discharge of a 
        pollutant under this Act and shall be determined by the courts 
        of the United States according to the principles of common law 
        as may be interpreted in light of reason and experience.''.
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