dissenting.
Briefly summarized, this is a case initiated by Rudolph Jones, Jr., Susan Jones, and Tandy Jones Gilliand (collectively “the plaintiffs”), riparian land owners in fee simple along Oliver Creek, a natural water course that traverses their real property within the city of Lakeland, Tennessee (“the City”), according them “standing” to commence this legal action seeking redress against the City for its continuing practice of discharging hazardous pollutants into Oliver Creek, exceeding the amount permitted by its National Pollutant Discharge Elimination System Permit (NPDES permit), in violation of the Water Pollution Control Act (“the Clean Water Act”), 33 U.S.C. §§ 1254-1376, and the Tennessee Water Control Act (“the Tennessee Water Act”), Tenn.Code Ann. §§ 69-3-101 to 131.
The district court dismissed the plaintiffs’ complaint concluding that it lacked subject matter jurisdiction over the plaintiffs’ claim. The panel majority of this court has affirmed the trial court’s disposition for jurisdictional reasons other than those articulated by the district court.
As distinguished from a Rule 56 motion (Fed.R.Civ.P.) for summary judgment,1 judicial review of the defendant’s instant Rule 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction and 12(b)(6) Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted, considered by both the district and this court, must be confined to the four corners of the factual allegations in the complaint, which must be accepted as true and construed in the light most favorable to the plaintiff. Dismissal is proper if, and only if, the factual allegations of the complaint, after having been accepted as true and construed most favorably on behalf of the plaintiffs, would not constitute a cognizable claim and would not entitle the plaintiffs to the relief they seek Stated differently, if the factual allegations of the complaint, after having been accepted as true and construed most favorably on behalf of the plaintiffs, present a cognizable claim if proved by a preponderance of the evidence, the court’s review need not continue. It is concluded. It is at an end.
Mindful of the de novo reviewing authority of this court in considering Rule 12(b)(1) & (6) motions to dismiss for lack of jurisdiction and plaintiffs’ burden of proving jurisdiction, I must nevertheless respectfully dissent because:
1. the panel majority has strayed beyond the four corners of the complaint by considering factual responses and conclusions advanced by the defendant; and
2. the panel majority has not accepted the allegations of the complaint, when considered in their entirety and in context, as true; and
3. the panel majority has not construed the allegations of the complaint, when considered in their entirety and in context, in a light most favorable to the plaintiffs; instead
(a) it has erroneously considered only selected pleaded allegations, and ignored other equally well-pleaded allegations- of the complaint in resolving that of official administra*418tive action implemented by the Tennessee Department of Environment and Conservation (TDEC) against the City, constituted “diligent prosecution as contemplated by the statute [33 U.S.C. § 1365(b) ],” majority opinion p. 414; and
(b) it refused to accept as true, and to construe in a light most beneficial to the plaintiffs their allegations of collusive, dilatory, wilfully negligent, and other bad faith activity implemented by the defendant and the TDEC, as demonstrated by its Commissioner, Justin P. Wilson, to pursue “an internal administrative policy not to aggressively enforce the provisions of the TWQCA”; and
4. the panel majority has relied upon Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376, 381-82 (8th Cir.1994), without recognizing how it is distinguished from the instant case, erroneously concluding that the Tennessee Water Quality Control Act and the Clean Water Act are comparable; and
5. the panel majority has denied the plaintiffs effective relief delegated to them by the Clean Water Act; and
6. the panel majority has denied the plaintiffs access to both the state and federal courts.
Before considering the panel majority’s misconceptions and erroneous conclusions, it is noted that it correctly observed that “[njeither the Administrator nor the TDEC have initiated an action in any court [Federal or State] in order to alleviate the discharge of waste into Oliver Creek.” Majority opinion p. 414.
It also correctly noted that the only enforcement action undertaken by the state against the city has been by the TDEC. “The enforcement actions taken by the TDEC against the city prior to the filing of this lawsuit amount simply to an exercise by the TDEC of its power as a state administrative agency charged by the state legislature to regulate water quality.” Majority opinion p. 414.
The panel majority also rightly observed that:
While the term “court” may be susceptible to a number of interpretations, administrative proceedings involving the state’s Water Quality Control Board or the TDEC in seeking to enforce the TWQCA against a suspected polluter unquestionably are not actions taken in court as contemplated by Congress when it enacted § 1365(b). See Friends of Earth v. Consolidated Rail Corp., 768 F.2d 57 (2d Cir.1985) (holding that an administrative board is not the equivalent of a court as defined by Congress in the Clean Water Act; rather a “court” is a state or federal court, and nothing else.)
Majority opinion p. 414 (emphasis added).
Accordingly, the panel majority properly concluded that “we cannot ignore the statute’s unambiguous language that requires that an action be prosecuted in ‘a court’ in order for the statute to apply.” Majority opinion p. 414. The referenced statute is § 1365(b)(1)(B), which incidentally is the statute that the TDEC and the city have manipulated to systematically erect an impregnable procedural barrier to deny the plaintiffs access to the courts to seek judicial relief from their grievances as intended by Congress. They have adroitly projected an illusion of diligently prosecuting an ongoing parallel state action against the City under a comparable state legislative enactment, namely, the Tennessee Water Quality Control Act whereas, in reality, the administrative action of the TDEC over the ten years embraced by the complaint constituted a calculated charade, as hereinafter more fully discussed.
The statute in issue provides:
No action may be commenced—
(1) under subsection (a)(1) of this section—
*419(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
33 U.S.C. § 1365(b)(1)(B) (emphasis added).
Pursuant to the directive of the statute, absent enforcement action initiated by the Administrator or a State, in this case, the TDEC and/or the Tennessee Water Quality Control Board, in a court, either state or federal, this appellate review must determine in the first instance if the factual allegation of the complaint when accepted as true and construed in a light most favorable to the plaintiffs, invokes federal court jurisdiction under circumstances where a parallel state action has been commenced under a state legislative enactment that is purportedly comparable to the Federal Clean Water Act more specifically, for purposes of the instant case, § 1365 et seq., and is being diligently prosecuted.2
Facially, ¶¶ 5 through 31 of the complaint provide an official ten-year history of a relationship that originated as a conflict between the Lakeland Development Corp. (LDC), a privately owned and operated company, and the Tennessee Department of Conservation (TDC), the predecessor of the TDEC, which arose from inspections conducted by the TDC monitoring the discharge of noxious, human, toxic, and other hazardous waste water into Oliver Creek pursuant to a National Pollution Discharge Elimination System (NPDES) permit originally issued by the City of Lakeland to its predecessor in interest, the Lakewood Development Corp., on March 31, 1987 to compel the enforcement of the Clean Water Act and the State Water Act. A relationship continued between the TDEC and the City of Lakeland after the City acquired the operation of the Lakeland Development Corp. on April 25, 1992. The plaintiffs have never been, nor are they presently a party to, nor have they been permitted to intervene or participate in, the ongoing purported administrative enforcement proceedings between the City and the TDEC, because of the “citizen participation” limitations imposed by 33 U.S.C. § 1319(g)(6) and invoked by the defendant in the instant case.
Relying upon the district court’s conclusions that four non-compliance orders issued by the TDEC during the more than ten years of its administrative enforcement oversight of the continuing pollution of Oliver Creek, the latest dated August 26, 1996, mandating the City’s full compliance by July 7, 1997 with the NPDES permit it issued ten years earlier on March 31,1987, and relying upon selected allegations, taken out of context of the complaint when viewed in its entirety, and by ignoring equally well-pleaded factual overt acts of the complaint, which alleges that the TDEC had (1) “adopted [an] internal administrative policy not to aggressively enforce the provisions of the State Water Act.” (Complaint ¶49, see also attached Exhibits G & H); (2) extended its enforcement activity over an inordinately long ten-year period by non-productive, superficial, cursory enforcement activity; (3) issued innumerable compliance deadline extensions; (4) condoned the discharge of existing volumes of contaminated sewage, sludge, and other toxic, noxious, and hazardous substances that constitute an imminent risk to human health and wildlife in *420and about Oliver Creek, and permitted in its fourth and latest order, dated August 26,1996, the “Respondent [the City] ... to increase the volume of the waste water flow into the stabilizing lagoon [that feeds Oliver Creek] by continuing to make connections and/or line extensions to its wastewater collection system” (Complaint ¶47 & attached Exhibit “F”); (5) issued countless never-enforced violation notices; (6) imposed and collected total monetary penalties of $18,000.00 in lieu of punitive civil penalties of $10,000.00 per violation day, intended as the escalating economically feasible incentive to ensure timely compliance to correct the city’s ongoing violations; 3 and (7) failed to enforce any of the four orders of compliance identified and relied upon by the district court, and accepted by the panel majority to support its conclusion that “the TDEC[’s] continued enforcement represents ‘diligent prosecution,’ as contemplated by the statute.” Majority opinion p. 414.
Awareness of accepted evidentiary precedent that the term “diligent prosecution” is a factual concept to be supported by the weight of developed evidence, and sensitivity to the procedural legal barriers that have precluded the plaintiffs the opportunity to develop any evidence to support its well-pleaded allegations when accepted as true and construed in a light most favorable to the plaintiffs, disclose a ten-year course of conduct pursued by the defendant City and the TDEC, the State’s administrative agency charged with enforcing the TWQCA, which if proved by the weight of evidence, constitutes a cognizable claim that warrants exploring the issue of “diligent prosecution” by the parties before the district court. I would, accordingly, remand the issue of diligent prosecution to the district court for further proceedings not inconsistent with the hereinabove observations.
Basieally, the panel majority’s comparative analysis correctly concludes that the Clean Water Act and the Tennessee Water Quality Act are comparable, with one material exception. Unlike the Clean Water Act, the state TWQCA does not afford mandated citizen participation in an enforcement proceeding as a matter of right.
No action may be commenced ... if the Administrator [of the U.S. Environmental Protection Agency] or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intemene as a matter of right.
33 U.S.C. § 1365(b)(1)(b) (emphasis added). The significance of this material element of the Clean Water Act was emphasized by the Eighth Circuit when it decided that:
The common thread running through these cases is a finding that the overall regulatory scheme affords significant citizen participation, even if the state law does not contain precisely the same public notice and comment provisions as those found in the federal CWA.... [T]he comparability requirement may be satisfied so long as the state law contains comparable penalty provisions which the state is authorized to enforce, has the same overall enforcement goals as the federal CWA, provides interested citizens a meaningful opportunity to participate at significant states of the decision-making process, and adequately safeguards their legitimate substantive interests. Under those circumstances, the state statute should be presumed comparable unless the facts of the specific case demonstrate that the state denied an interested party a meaningful oppor*421tunity to participate in the administrative enforcement process.
Arkansas Wildlife Federation v. ICI Americas, 29 F.3d 376, 381 (8th Cir.1994) (internal citations omitted) (emphasis added). The TWQCA requires no public notice of hearings, nor does it require the State to extend third-parties an opportunity to join mandatory controversial issues seeking justiciable resolution such as the enforcement proceeding and consent orders similar to those unilaterally considered and decided by the TDEC. Nor does the Tennessee Open Meetings Act, Tenn. Code Ann. § 8-4-101 to 201 (1997), mandate procedures for public participation in an ongoing enforcement prosecution under the TWQCA by TDEC or before the Water Quality Control Board. By artfully invoking the jurisdictional rule of “diligent prosecution” in an ongoing enforcement action and the discretionary authority of the TDEC to declare citizen or public participation as “duplicitous or frivolous,” Tenn.Code Ann. § 69 — 3—118—(a)(1), the plaintiffs have been frozen out of commencing an original action of their own, or intervening in the purported ongoing State enforcement action.
The only window for redress available to the plaintiffs in the instant case, as observed by the panel majority, occurs “when an administrative action by the TDEC is ongoing, with the [Water Quality Control] Board overseeing the final action, Tennessee law requires that before a consent judgment is entered between the TDEC and an offending party [the City defendant], any citizen, within forty-five days, may intervene before the chancery court enters a final order.” TenmCode Ann. § 69-3-115(e)(2) (Emphasis added). See majority opinion p. 416.4
The precise language of Tennessee Code. § 69-3-115(e)(2) presupposes that a final order of the TDEC has been filed with the chancery court as a condition precedent to invoking its jurisdiction. Apparent from Tennessee public records, not one of the four orders issued by the TDEC and/or Water Quality Control Board, relied upon by the district court and the panel majority in arriving at their respective decisions, were filed with the chancery court by the State or any of its agencies during the ten or more years of this ongoing enforcement proceeding. (J.A. at 100).
Patently obvious from the record in the instant case, depending upon plaintiffs’ ability to develop persuasive evidence to support their allegations, which they have been thus far precluded from doing, is a ten-year calculated pattern of conduct that could be considered as dilatory, collusive, or otherwise implemented in bad faith. See Connecticut Fund for the Environment v. Contract Plating Co., 631 F.Supp. 1291, 1293 (D.Conn.1986). That the concerted course of conduct' between the state and the defendant City has been implemented under color of law deliberately reflects a bad faith effort to deny the plaintiffs “a meaningful opportunity to participate in the administrative enforcement of process.” Arkansas Wildlife Federation, 29 F.3d at 382 (emphasis added).
Accordingly, I would reverse the district court’s decision, and remand this case for further proceedings not inconsistent with this dissent because the Tennessee Water Quality Control Act and the Federal Clean Water Act are not comparable for the reasons hereinbefore discussed, and to provide the plaintiffs a judicial forum be*422fore which to develop evidence of whether or not the State’s enforcement action has been “diligently prosecuted.” Otherwise, the nonproductive enforcement efforts of the TDEC, which may continue into perpetuity, will unjustly prevent the plaintiffs from petitioning for judicial relief as long as the subject state administrative action continues.
. It is highly questionable if this case, in its present posture, could support consideration of a Rule 56 motion for summary judgment.
. The issue of "diligent prosecution” is a factual one that has not been explored or developed by discovery or other evidentiary proceedings in the instant case. The panel majority’s conclusion "that the TDEC's continued enforcement represents diligent prosecution as contemplated by the statute,” majority opinion p. 414, is a conclusion derived from its erroneous interpretation of selected allegations taken out of context when the complaint is considered in its entirety.
. Exhibits attached to the complaint disclose that, during ten years of noncompliance, the TDEC had levied approximately $50,000.00 in various token increments of which only $18,-000.00 has been collected. In contrast, approximately $1,940,000.00 in penalties could have been levied against the city for violations that occurred during the 194 days between March 29 and November 30, 1996. (See Exhibit D at J.A. 48, 50, Exhibit E-2 at J.A. 54).
. If, as also noted by the panel majority, "when an action is being overseen by the Board [Water Quality Control] Board rather than the TDEC, Tennessee’s Open Meetings Act requires that the public be allowed to attend proceedings, including meetings over final actions.” Tennessee Code Ann. § 8-44-101-201 (1997) (Emphasis added). Compliance with said sections is also vested in the chancery courts. Public attendance is, however, limited to commentary without an opportunity to invoke adversary, mandatory consequences. These sections provide no jus-ticiable relief for these plaintiffs. Reference to these sections in the panel majority's opinion is, accordingly, redundant, and of no legal significance. Majority opinion p. 416.