The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
In these consolidated actions, Plaintiffs collectively asserted seven causes of action: (1) Clean Water Act ("CWA") violations; (2) Resource Conservation and Recovery Act ("RCRA") violations; (3) a declaratory judgment that Defendants violated the CWA, the Rivers and Harbors Act of 1899 ("RHA"), and New York Environmental Conservation Law ("ECL"); (4) negligence; (5) trespass; (6) public nuisance; and (7) private nuisance. See Coon v. Willet Dairy, LP, Nos. 5:02-CV-1195 and 5:04-CV-917, 2007 WL 2071746, *1 (N.D.N.Y. July 17, 2007). This Court granted Defendants' motion for summary judgment with respect to Plaintiffs' CWA, RCRA, RHA, and ECL claims as well as their request for a declaratory judgment. See id. at *7. Furthermore, this Court declined to exercise supplemental jurisdiction over Plaintiffs' remaining claims and dismissed those claims without prejudice. See id.
On appeal, the Second Circuit affirmed this Court's decision and noted that the portion of Plaintiffs' CWA claim that dealt with stream diversion required the Circuit to interpret, for the first time in the Second Circuit, 33 U.S.C. § 1344(f)(2) as it relates to the construction of stock ponds. See Coon v. Willet Dairy, LP, 536 F.3d 171, 172 (2d Cir. 2008) (per curiam).
Defendants now move for attorney's fees and costs pursuant to Fed. R. Civ. P. 54(d) and 33 U.S.C. § 1365(d).*fn1 Defendants seek fees at the traditional hourly rates in this District: $210, $150, $120, and $80. Using these rates, Defendants request a total fee award of $557,366.41 and $163,332.33 in costs.
A. Defendant's Entitlement to Attorney's Fees
Under the CWA, a prevailing defendant must meet a stricter standard than a prevailing plaintiff to receive an award of fees.See Atl. States Legal Found., Inc. v. Onondaga Dep't of Drainage & Sanitation, 899 F. Supp. 84, 87 (N.D.N.Y. 1995). "A prevailing defendant can recover fees only when the Court finds that the litigation was 'frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.'" Id. (quoting Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422, 98 S.Ct. 694, 701, 54 L.Ed. 2d 648 (1978)). Since the effect of such a rule is to deter frivolous litigation, "even an entirely successful defendant may not be entitled to an award of fees." Id. at 87-88 (citation omitted).
Initially, the Court finds that its decision not to exercise supplemental jurisdiction over some of Plaintiffs' state-law claims did not contain any evaluation of the merits of those claims; accordingly, the Court's dismissal of those claims without prejudice has no bearing on this analysis. The Court did, however, consider the merits of Plaintiffs' RHA, ECL, RCRA, and CWA claims. Therefore, to determine whether to award Defendants fees in this case, the Court must consider whether these claims -- individually or as a whole -- were frivolous, unreasonable or groundless.
The Court dismissed Plaintiffs' RHA and ECL claims on the basis that there was no private right of action for those claims. See Coon, 2007 WL 2071746, at *6-*7. The Court finds that these are the type of frivolous claims which could lead to an award of attorney's fees.
With respect to Plaintiffs' RCRA claims, the Court found that allowing Plaintiffs to proceed would violate RCRA's non-duplication provision. See id. at *5-*6. The Court finds that Plaintiffs' attempt to avoid the duplication provision was largely unreasonable and groundless.
With respect to Plaintiffs' CWA claims, the Court dismissed these claims for three reasons: (1) the complained of conduct was subject to a consent order; and, furthermore, Plaintiffs presented no evidence of an ongoing violation or that a violation was likely to occur; (2) Plaintiffs' claim regarding diversion of streams was subject to a statutory exception; and (3) Plaintiffs' claims were otherwise barred by a permit shield. See id. at *2-*5. The Court finds that, at some point in the litigation, Plaintiffs should have become aware that they could not show a continuing violation that was not subject to the consent judgment. However, with respect to stream diversion, although this Court and the Second Circuit disagreed with Plaintiffs' proposed statutory construction, the Second Circuit noted that "[t]his is a new issue for our circuit and thus we write to clarify our position." Coon, 536 F.3d at 174. Finally, with regard to the "permit shield," the Court finds that, similar to the consent order, at some point in the litigation, Plaintiffs should have been aware that they could not show any violation not shielded by Defendants' permit.
Although the actual time might have been earlier, the Court concludes that upon receipt of Defendants' Memorandum in Reply April 12, 2006, Plaintiffs' counsel should have realized that, with the possible exception of the stream diversion claim, their claims were "frivolous, unreasonable, or groundless." Atl. States Legal Found., Inc., 899 F. Supp. at 87; see Sierra Club v. Cripple Creek & Victor Gold Mining Co., 509 F. Supp. 2d 943, 951 (D. Colo. 2006)(awarding attorney's fees where the plaintiffs continued to litigate after "[p]laintiffs should have known that they had no evidentiary support to establish an ongoing violation of the existing permits" and "the [p]laintiff's proceeded to trial without evidence to establish essential elements of their ...