For these reasons, Congress prohibited would-be private attorney generals from filing a citizen suit until 60 days after providing notice of the alleged violations to EPA, the state, and the alleged violator. 33 U.S.C. § 1365(b)(1)(A). The point of the notice requirement is two-fold: (1) to allow the discharger to cure any violations and (2) to allow EPA and the state to step in and resolve the non-compliance.

N. & S. Rivers Watershed Ass'n v. Scituate, 949 F.2d 552, 557 (1st Cir.1991). The court should not interpret § 1365 of the CWA in a manner that would undermine the EPA's ability to reach voluntary settlements with defendants. Case 3:19-cv-01412-CCC Document 10 Filed 06/20/19 Page 15 of 17 16 of 17 A Consent Decree accorded and lodged in Court does divest citizens of their role in helping to bring about remedies for CWA violations.

See e.g., El Paso Gold Mines, 421 F.3d at 1146 (emphasis added). Consequently, ACAT has properly pled violations of Section 301(a) and 402, 33 U.S.C. §§ 1311(a) and 1342, and has properly brought these claims under the citizen suit provision, 33 U.S.C. § 1365(a). D. ACAT’s Citizen Suit In No Way Undermines the Intent of the CWA.

The CWA citizen suit provision authorizes, among other actions, suits against any person alleged to be in violation of a § 401 Certification. 33 U.S.C. § 1365(f)(5). Neither PGE nor the Tribe explain how any of these resource agencies—who serve in an advisory role on the Project’s Fish Committee—could be deemed to be in violation of the Project’s § 401 Certification.

Furthermore, exclusion of the Corps from jurisdiction under the CWA conflicts with the purpose of the citizen suit provision—to encourage citizens to act as private attorneys general and provide them with reasonable attorney’s fees when successful. 33 U.S.C. § 1365(d); Hanson, 859 F.2d at 316-17 (4th Cir. 1988) (“The legislative history of the fee shifting provisions indicates that they were enacted to encourage litigation to ensure proper administrative implementation of the environmental statutes.”).

To the extent that either party seeks to proceed against the Corps under the Clean Water Act itself, however, they again step beyond the Court’s jurisdiction. Section 505(a)(2) of the Act authorizes suits against “the Administrator,” 33 U.S.C. § 1365(a)(2), which has consistently been held to extend only to EPA and exclude suits against the Corps. See 33 U.S.C. § 1251(d) (specifying that Administrator of EPA is referred to as “Administrator”); Preserve Endangered Areas of Cobb’s History v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1249 (11th Cir. 1996); Northwest Environmental Defense Center v. United States Army Corps of Engineers, 118 F. Supp. 2d 1115, 1119-20 (D. Or. 2000); Cascade Conservation League v. M.A. Segale Inc., 921 F. Supp. 692, 696-97 (W.D. Wash. 1996).

The CWA authorizes the EPA Administrator to prescribe the manner of the notice. 33 U.S.C. § 1365(b). Regulations promulgated under that authorization instruct that the notice: [s]hall include sufficient information to permit the recipient to identify [1] the specific standard, limitation, or order alleged to have been violated, [2] the activity alleged to constitute a violation, [3] the person or persons responsible for the alleged violation, [4] the location of the alleged violation, [5] the date or dates of such Case 3:17-cv-00425-BAS-JMA Document 7 Filed 04/24/17 PageID.64 Page 14 of 35 - 12 - DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS PLAINTIFF’S COMPLAINT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violation, and [6] the full name, address, and telephone number of the person giving notice.

The Clean Water Act’s and RCRA’s fee-shifting provisions specifically allow for recovery of “costs of litigation” that include expert witness fees. See 33 U.S.C. § 1365(d); 42 U.S.C. § 6972(e). An attorney’s compensable costs also “include reasonable out-of-pocket litigation expenses that would normally be charged to a fee paying client,” and court costs.

Section 505(a)(2) allows a citizen suit against EPA where EPA has failed “to perform any act or duty under this chapter which is not discretionary.” 33 U.S.C. § 1365(a)(2). There is no dispute that EPA possesses certain authorities under the Clean Water Act.

To the extent that either party seeks to proceed against the Corps under the Clean Water Act itself, however, they again step beyond the Court’s jurisdiction. Section 505(a)(2) of the Act authorizes suits against “the Administrator,” 33 U.S.C. § 1365(a)(2), which has consistently been held to extend only to EPA and exclude suits against the Corps. See 33 U.S.C. § 1251(d) (specifying that Administrator of EPA is referred to as “Administrator”); Preserve Endangered Areas of Cobb’s History v. U.S. Army Corps of Engineers, 87 F.3d 1242, 1249 (11th Cir. 1996); Northwest Environmental Defense Center v. United States Army Corps of Engineers, 118 F. Supp. 2d 1115, 1119-20 (D. Or. 2000); Cascade Conservation League v. M.A. Segale Inc., 921 F. Supp. 692, 696-97 (W.D. Wash. 1996).