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.

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.

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.