In order to bring a citizen suit in federal district court under the Clean Water Act, 33 USC  § 1365(a)(1), the plaintiff must first give “notice of the alleged violation” to the alleged violator, the EPA, and the State at least 60 days prior to commencing suit. In  Shark River Cleanup Coalition v. Township of Wall; Estate of Fred McDowell Jr., (No. 21-2060, 3d Cir. August 24, 2022), the Third Circuit Court of Appeals found that the district court erred in its finding that the notice was inadequate because it had not adequately identified the location of the alleged violation as required by the EPA regulations implementing the statutory notice requirement, but upheld the dismissal of the lawsuit on an alternate ground not reached by the district court – that the notice that was given was inadequate because it did not provide “sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated” also as required by EPA’s regulations. 40 C.F.R. §135.3(a).

As explained by the Court in Shark River, “[t]he sixty-day period following notice gives the alleged violator an opportunity to bring itself into complete compliance with the Act and thus . . .  render unnecessary a citizen suit”. (Citation and quotation marks omitted).  As described below, the fact pattern presented by the case is somewhat unusual and led to disagreement expressed by one panel member with the conclusion of the Court on the adequacy of the location description, although he concurred in the holding as to the inadequacy of the description of the violation. 

The conditions that gave rise to the lawsuit were initially discovered by a hiker strolling on the 485 acre heavily wooded property owned by The Estate of Fred McDowell Jr.  The hiker came across a supposedly underground sewer line that had protruded aboveground along a portion of its length.  The sewer line was constructed by Wall Township along a permanent subterranean easement owned by the Township on the Estate’s property. The hiker reported the condition to the Shark River Cleanup Coalition (Coalition), whose president returned to the property and, after getting lost on his first attempt to find the condition, eventually found the affected area, and took pictures of it on his cell phone.

The Coalition subsequently retained counsel to prepare the notice and file the lawsuit. According to the notice “ ‘historic and continuing’ erosion of the ground surrounding the buried sewer line released ‘large areas of sand’ into nearby Shark River Brook, a tributary of the Shark River.”    Slip Op. p.8. The Coalition’s sixty-day notice claimed that this release violated the Clean Water Act, without citing to any specific section of the Act that had been violated.  It also cited “a full page of references to various New Jersey Statutes and to several provisions of the New Jersey Administrative Code, without explaining how those state statutes and regulations related to its citizen suit.”  Slip Op. p. 9. Finally, it pointed out that according to county deed records the entire sewer line easement was 25 feet wide and ran from Campus Parkway easterly across the Estate’s property to the Garden State Parkway over 3.15 miles and noted that photos of the condition were available upon request.

Repeated requests for the photos by the Township and the Estate to the Coalition’s attorney went unanswered (the attorney later explained that he did not respond to requests from non-attorneys, though did not explain why a non-attorney representative of his client could not respond) and the Township and the Estate were unable to find  the protruding portion of the sewer line purportedly because of the thickly wooded nature o the property.  A year after serving the notice, the Coalition filed suit (the complaint contained the same vague allegations as the notice), the Township located the area of concern a few weeks later and the parties eventually developed and implemented a plan to remediate the sewer line, although the issue of the soils released to the River remained unresolved.

The case was decided on cross motions for summary judgement in the District Court, with the court reaching only the adequacy of the notice, although the Court of Appeals noted that it was construing the dismissal as one pursuant to a Rule 12 Motion to Dismiss because under Third Circuit precedent, the citizen suit notice requirement is deemed jurisdictional.  Also because of the jurisdictional nature of the notice requirement, the Court applied de novo review of the District Court’s decision and weighed the evidence as to the sufficiency of the notice.  This enabled the Court to reach its decision on a basis not relied upon by the District Court, i.e, the inadequacy of the violation description as opposed to the inadequacy of the location description relied upon by the District Court.

On the question of the adequacy of the description of the location, the Court of Appeals found that the “Coalition’s reference to the public records of the easement was ‘enough’ – if just barely” (Slip Op. p. 18) to enable the Township to find the location in question, noting that the Township found the location just weeks after the complaint was filed and citing other appellate and lower court decisions upholding barely adequate descriptions of location.  The Court felt that because the easement belonged to the Township and it had a responsibility to maintain the sewer line, it should have been able to find the location with the information provided in the notice.  They also seemed to have been influenced by the fact that the Township found the area in question only weeks after the complaint was filed.    

An opposing point of view was cited in a concurring opinion, which found the notice an “utter failure” in regard to identifying the location, noting the difficulty incurred by an NJDEP employee, the fact that the president of the Coalition got lost looking for it, multiple failed searches by the Township, the Coalitions failure to supply its photos, despite several requests, and various other deficiencies.  As he noted, the Township and the Estate could have remediated the problem area “years ago” if the Coalition had provided additional location information and the photos and the litigation would have been unnecessary – the apparent objective of the sixty-day notice provision.

The concurring opinion agreed with the Court’s approach to the inadequacy of the violation description, which concluded that “[t]he Notice did little to explain what part of the Clean Water Act was allegedly being violated” (Slip Op. p. 23) and certainly was not enough to give notice of the Coalition’s intention to assert a violation of  33 U.S.C. § 1311(a), as it did later in the litigation. While noting that it had previously held that it would liberally construe a notice filed by a citizen’s group without counsel, here the notice was prepared by counsel.  It also noted the inclusion by counsel of  “a plethora of references to New Jersey statutes and regulations having no relevance to the” Coalition’s case further confused the ascertainment of the violation being alleged. Slip Op. p. 22.

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