United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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
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
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. 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
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).
Clean Water Act
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
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).
Sufficiency of Plaintiff's 60-day Notice Letter
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. (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
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.
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 ...