New Fifth Circuit Decision

The case below follows a long line of 505(b)/309(g)(6) cases addressing whether the state law is similar enough to the CWA to provide a bar to federal court prosecution. The courts have frequently reached the same conclusion as the 5th Circuit does here, that the state law is not comparable. If you're a defense attorney, and you think the deal you're working out with the state is protecting you, do your homework.

Stringer v. Town of Jonesboro, ___ F.3d ___, 2021 WL 150735 (5th Cir. 2021) (reversing district court in case alleging unauthorized sewage overflows onto plaintiff’s property and into local creeks, held that prior state action did not bar the present action under 309(g)(6)(A)(ii) because the state health department’s enforcement of sanitary code is not comparable to the CWA; where the state code lacked notice and public participation, it did not “provide[] interested citizens a meaningful opportunity to participate at significant stages of the decision-making process”)

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