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Wild Fish Conservancy v. Cooke Aquaculture Pacific, LLC

United States District Court, W.D. Washington, Seattle

April 26, 2019

WILD FISH CONSERVANCY, Plaintiff,
v.
COOKE AQUACULTURE PACIFIC LLC, Defendant.

          OPDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiff's motion for partial summary judgment (Dkt. No. 29). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS in part and DENIES in part the motion for the reasons explained herein.

         I. BACKGROUND

         Defendant Cooke Aquaculture farms Atlantic salmon at net pen facilities located throughout Puget Sound. (See Dkt. No. 15 at 2.) The Clean Water Act (“CWA”) requires any entity that discharges pollutants into the waters of the United States to hold and comply with the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit. 33 U.S.C. § 1342. Pursuant to the CWA, authorized state agencies may issue NPDES permits; in Washington, the Department of Ecology performs the functions necessary to “meet the requirements” of the CWA, including issuing permits. See 33 § U.S.C. 1342(b); Wash. Rev. Code. § 90.48.260. A NPDES permit holder must prepare and implement certain plans to minimize and monitor the release of pollutants. Id. at § 1342(a)(2). Defendant operates its facilities pursuant to NPDES permits, which require, among other things, the preparation of a Pollution Prevention Plan and a Release Prevention and Monitoring Plan (“Release Prevention Plan”) (together, “the plans”) that satisfy the conditions of its permits. (See Dkt. No. 29-2 at 11- 12.)

         Defendant operated eight net pen facilities across Puget Sound until the collapse of its Cypress Site 2 (“Cypress 2”) facility on or about August 20, 2017. (See Dkt. No. 1 at 9-10.) The collapse resulted in the release of thousands of Atlantic salmon into Puget Sound. (Id.) While Cypress 2 is no longer operational, Defendant continues to operate its other seven net pen facilities under its NPDES permits.[1] On August 24, 2017, Plaintiff sent Defendant a “Notice of Intent to Sue Under the Clean Water Act” letter (“notice letter”) and sent a supplemental notice letter on September 6, 2017. (Id. at 22, 30.) On November 13, 2017, Plaintiff filed a complaint against Defendant asserting several CWA violations, including that Defendant's plans are facially noncompliant with their respective permits. (See Id. at 2.) Plaintiff's motion for partial summary judgment asks the Court to find that Defendant's plans violated Conditions S6 and S7 of their NPDES permits. (Dkt. No. 29 at 5-6.)

         II. DISCUSSION

         A. Legal Standards

         1. Summary Judgment

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In making such a determination, the Court must view the facts and justifiable inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly made and supported, the opposing party “must come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Material facts are those that may affect the outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. Ultimately, summary judgment is appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

         2. Clean Water Act

         The CWA's purpose is to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251. Private citizens may initiate actions against alleged violators of the CWA's requirements, including violations of permit conditions. Ass'n to Protect Hammersley, Eld, & Totten Inlets v. Taylor Res., Inc., 299 F.3d 1007, 1012 (9th Cir. 2002). In order to bring a CWA citizen suit, a plaintiff must satisfy the procedural requirement of providing notice to: (1) the alleged violator; (2) the Environmental Protection Agency (“EPA”); and (3) the state agency tasked with enforcing the CWA where the alleged violation occurred. See 33 U.S.C. § 1365(b). The CWA “authorizes citizens to enforce all permit conditions.” Nw. Envtl. Advocates v. City of Portland, 56 F.3d 979, 986 (9th Cir. 1995).

         As a threshold matter, a plaintiff must have statutory and Article III standing to bring a CWA claim. Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 998 (9th Cir. 2000). A citizen has statutory standing to bring an enforcement action under the CWA for “ongoing” violations. Id. A citizen plaintiff can prove ongoing violations by demonstrating that either the violations continue on or after the complaint is filed, or that a reasonable trier of fact “could find a continued likelihood of a recurrence in intermittent or sporadic violations.” Id. To establish Article III standing, a plaintiff must demonstrate that: (1) he or she has suffered a concrete injury; (2) that the injury is fairly traceable to the defendant's conduct; and (3) that the injury can be redressed by prevailing in the case. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).[2]

         B. Sufficiency of Plaintiff's 60-day Notice Letter

         Plaintiff asserts that Defendant's Pollution Prevention Plans violate Conditions S6.F, S6.D, and S6.E of its permits, and that its Release Prevention Plans violate Condition S7.6 and the general requirements of Condition S7 of its permits.[3] (See Dkt. No. 1 at 23-26). Defendant argues that Plaintiff's notice letter was insufficient with respect to alleged violations of Conditions S6.D, S6.E, and S7, such that the Court lacks jurisdiction over the alleged violations. (Dkt. No. 36 at 18.)[4]

         For district courts to have jurisdiction over CWA citizen suits, a plaintiff must provide notice to the alleged violator that contains “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, ” and “the activity alleged to constitute a violation.” U.S.C. § 1365(b); 40 C.F.R. § 135.3(a). The Ninth Circuit requires that a plaintiff's 60-day notice letter includes “reasonably specific” information, so that the alleged violator will be able to “take corrective actions [to] avert a lawsuit.” Sw. Marine, 236 F.3d at 996; San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1158 (9th Cir. 2002). If a plaintiff fails to provide reasonably specific notice of an alleged violation, then the Court lacks jurisdiction over the claim. Sw. Marine, 236 F.3d at 997.

         The Ninth Circuit does not require a citizen plaintiff to “list every specific aspect or detail of every violation” in its notice letter, as long as it “is reasonably specific” and gives an alleged violator the “opportunity to correct the problem.” Waterkeepers N. California v. AG Indus. Mfg., Inc., 375 F.3d 913, 917 (9th Cir. 2004). “The key language in the notice regulation is the phrase ‘sufficient information to permit the recipient to identify' the alleged violations and bring itself ...


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