Intent-to-sue letter without violation dates is adequate under Clean Water Act to put defendant on notice of plaintiff's claims

Law Reporter, Nov 2004

WaterKeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913 (9thCir. 2004).

An intent-to-sue letter is adequate notice under the Clean Water Act, 33U.S.C.§1251, even where it does not list the specific dates of the violations alleged, the Ninth Circuit Court of Appeals held.

Here, a nonprofit environmental protection group sent a letter to a farm equipment company announcing its intent to sue the company for violations of the act. The group sued more than 60 days later, and the trial court dismissed, holding that the intent-to-sue letter provided insufficient notice of plaintiff's claims.

Reversing in part, the Ninth Circuit noted that the act requires citizen plaintiffs to notify alleged violators of their intent to sue at least 60 days before filing a complaint. The intent-to-sue notification must include sufficient information to allow the recipient to identify the activity alleged to be a violation; what standard, limitation, or order the recipient is allegedly violating; and the date on which the alleged violation took place. The trial court dismissed because plaintiff's allegation that the company discharges contaminated storm water during "every rain event over 0.1 inches" did not provide sufficiently specific dates. Citing its holding in San Francisco BayKeeper, Inc. v. Tosco Corp., 309 RSd 1153 (9th Cir. 2002), 46 ATLA L. Rep. 134 (May 2003), the court noted that it has held intent-to-sue notice to be sufficient even where no specific dates are provided for the alleged violations. The intent-to-sue letter here was as specific as that in San Francisco BayKeeper, the court said. For the same reason, the court rejected defendant's contention that plaintiff's notice regarding nonstorm water discharges the company produces when it washes down its facilities was not sufficiently specific.

Accordingly, the court remanded.

Plaintiff's Counsel

Andrew L. Packard,

Eric Wildgrube,

Katharine Essick,

Leo O'Brien, and

Shana Lazerow, all of San Francisco, Cal.