Summary
This Second Circuit opinion addresses whether the Clean Water Act’s sixty-day pre-suit notice requirement is a jurisdictional prerequisite or merely a condition precedent to filing a citizen suit. The court holds that the notice provision is non-jurisdictional under Supreme Court precedent requiring a clear congressional statement. Additionally, the court finds that the plaintiffs’ notice letter provided sufficient information to identify the alleged violations and remands the case for further proceedings after vacating the district court’s dismissal.
Topics
Practice areas
Questions Presented
- Whether the Clean Water Act's 60-day pre-suit notice requirement under 33 U.S.C. § 1365(b) is a jurisdictional limitation on federal subject matter jurisdiction.
- Whether plaintiffs' pre-suit notice sufficiently identified the alleged pollutant, violative activity, applicable standards, dates, responsible party, and location under 40 C.F.R. § 135.3(a).
Holdings
- The notice requirement in 33 U.S.C. § 1365(b) is not jurisdictional; it affects whether a plaintiff has properly stated a claim or satisfied a condition precedent to suit, but a defect in notice does not eliminate the district court's subject matter jurisdiction.
- The notice was sufficient because it reasonably informed Dragon Springs of the allegedly unlawful discharge, the fecal-coliform pollutant, the applicable standards and permit limits, the dates and testing results, the responsible entity, and the location of the alleged violations.
Key quotations
“In sum, we hold that the CWA’s notice requirement bears only on whether a plaintiff has properly stated a claim, and that a district court has subject matter jurisdiction over an action even in the absence of sufficient notice.” (22)
“Under the CWA, the pre-suit notice required before a citizen-initiated enforcement action must reasonably inform a defendant of the basis of a plaintiff’s claims and include the information set forth in 40 C.F.R. § 135.3(a).” (32)
Factual background
Dragon Springs operates a large compound in Deerpark, New York, containing residential, educational, religious, performance, and wastewater-treatment facilities. Plaintiffs, nearby residents and property owners and their environmental organization, alleged that Dragon Springs discharged stormwater and wastewater containing fecal coliform through point sources into the Basher Kill and Neversink River. Their January 2023 notice of intent identified the pollutant, alleged discharge levels exceeding applicable limits, described the property and discharge locations, identified construction activity and wastewater-treatment failures, and included dated water-testing results.
Procedural history
Plaintiffs previously filed a Clean Water Act action after providing a 2021 notice of intent to sue; the district court dismissed that action without prejudice for lack of subject matter jurisdiction based on deficient notice. Plaintiffs then issued a new notice in January 2023 and filed this action asserting Clean Water Act and New York private-nuisance claims. The district court dismissed the second action with prejudice under Rule 12(b)(6), concluding that the notice did not adequately identify the alleged violations or point source. The Second Circuit vacated and remanded.
Remand instructions
Remand for further proceedings consistent with the opinion, including consideration in the first instance of any argument that the complaint fails to state a Clean Water Act violation.