Waterkeepers No. Cal. v. Ag Industrial Mfg., 03-15023.

• Decision Date: 16 July 2004
• Docket Number: No. 03-15023.,No. 03-15631.,03-15023.,03-15631.
• Citation: 375 F.3d 913
• Parties: WATERKEEPERS NORTHERN CALIFORNIA, a non-profit corporation dba Deltakeeper; Bill Jennings, Plaintiffs-Appellants, v. AG INDUSTRIAL MANUFACTURING INC.; Claude E. Brown, Defendants-Appellees. Waterkeepers Northern California, a non-profit corporation dba Deltakeeper; Bill Jennings, Plaintiffs-Appellees, v. AG Industrial Manufacturing Inc.; Claude E. Brown, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

375 F.3d 913

WATERKEEPERS NORTHERN CALIFORNIA, a non-profit corporation dba Deltakeeper; Bill Jennings, Plaintiffs-Appellants, v. AG INDUSTRIAL MANUFACTURING INC.; Claude E. Brown, Defendants-Appellees.

Waterkeepers Northern California, a non-profit corporation dba Deltakeeper; Bill Jennings, Plaintiffs-Appellees, v. AG Industrial Manufacturing Inc.; Claude E. Brown, Defendants-Appellants.

No. 03-15023.

No. 03-15631.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2004.

Filed July 16, 2004.

Andrew L. Packard, Eric Wildgrube and Katharine Essick, Law Offices of Andrew L. Packard, and Leo O'Brien and Shana Lazerow, WaterKeepers Northern California, San Francisco, CA, for the plaintiffs-appellants.

Dennis M. Hauser, Hauser & Mouzes, Woodbridge, CA, for the defendants-appellees.

Dennis M. Hauser, Hauser & Mouzes, Woodbridge, CA, for the defendants-appellants.

Robert S. Perlmutter and Erin Ryan, Shute, Mihaly & Weinberger LLP, Andrew L. Packard, and Leo O'Brien and Shana Lazerow, WaterKeepers Northern California, San Francisco, CA, for the plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of California; Morrison C. England, District Judge, Presiding. D.C. No. CV-00-01967-MCE(PAN).

Before: B. FLETCHER, REINHARDT, Circuit Judges, and RESTANI, Chief IT Judge.^*

BETTY B. FLETCHER, Circuit Judge.

Plaintiffs WaterKeepers Northern California and Bill Jennings (collectively, "WaterKeepers") appeal the district court's dismissal of their Clean Water Act suit for lack of jurisdiction. Defendants AG Industrial Manufacturing and Claude E. Brown (collectively, "AG Industrial") cross-appeal the district court's denial of their motion as prevailing parties for attorney's fees. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse the district court's dismissal in part, affirm in part, and affirm the district court's denial of attorney's fees.

I.

WaterKeepers Northern California is a non-profit corporation dedicated to protecting wildlife and preserving natural resources in the San Francisco Bay and the Sacramento-San Joaquin Delta ("the Delta"). Bill Jennings is the director of DeltaKeeper a WaterKeepers Northern California project focused specifically on the Delta. AG Industrial Manufacturing is a California company that produces farm machinery and equipment for the wine grape industry. The company was formed in 1980 and now employs approximately forty people at its Lodi facility. Claude E. Brown is the company's CEO and one of its two shareholders.

On June 28, 2000, WaterKeepers sent AG Industrial notice of its intent to sue for violations of the Clean Water Act ("the Act"). More than sixty days later, WaterKeepers filed this suit, alleging numerous continuing or recurring violations of the Act at AG Industrial's Lodi facility. The parties briefed the merits of WaterKeepers' claims in the district court, and each side submitted a motion for summary judgment. Without reaching the merits, however, the district court concluded that the suit had to be dismissed because WaterKeepers' intent-to sue letter provided insufficient notice of its claims. In a second order, the district court denied AG Industrial's motion for prevailing party attorney's fees. Although the district court found AG Industrial to be a prevailing party, it declined to award fees because it could not say that WaterKeepers' claims were "frivolous, unreasonable, or without foundation." See Razore v. Tulalip Tribes, 66 F.3d 236, 240 (9th Cir.1995) (adopting this standard for attorney's fees motions under the Clean Water Act).

We address the notice letter and attorney's fees issues in turn, but we begin with an explanation of the relevant statutory and regulatory background.

II.

Congress enacted the Clean Water Act in 1972 in order to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251; S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians, ___ U.S. ___, ___, 124 S.Ct. 1537, 1541, 158 L.Ed.2d 264 (2004). The Act prohibits the discharge of pollutants into United States waters except as authorized by the statute. 33 U.S.C. § 1311; San Francisco BayKeeper, Inc. v. Tosco Corp., 309 F.3d 1153, 1156 (9th Cir.2002), cert. dismissed, 539 U.S. 924, 123 S.Ct. 2296, 156 L.Ed.2d 147 (2003). The Act is administered largely through the National Pollution Discharge Elimination System ("NPDES") permit program. 33 U.S.C. § 1342. In 1987, the Act was amended to establish a framework for regulating storm water discharges through the NPDES system. Water Quality Act of 1987, Pub.L. 100-4, § 405, 101 Stat. 7, 69 (1987) (codified at 33 U.S.C. § 1342(p)); see also Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 840-41 (9th Cir. 2003) (describing the problem of storm water runoff and summarizing the Clean Water Act's permitting scheme), cert. denied, 72 U.S.L.W. 3513 (U.S. June 7, 2004). The discharge of pollutants without an NPDES permit, or in violation of a permit, is illegal. Ecological Rights Found. v. Pacific Lumber Co., 230 F.3d 1141, 1145 (9th Cir.2000).

Much of the responsibility for administering the NPDES permitting system has been delegated to the states. See 33 U.S.C. § 1342(b); see also Cal. Water Code § 13370 (expressing California's intent to implement its own NPDES permit program). States may issue individual permits to industrial dischargers or may cover many dischargers under the terms of one general permit. See 40 C.F.R. § 122.26(c); Envtl. Def. Ctr., 344 F.3d at 853 (describing the general permit model). California has issued a general permit to cover industrial dischargers. State Water Resources Control Board, Water Quality Order No. 97-03-DWQ: NPDES General Permit No. CAS000001 (the "General Permit" or "Permit"); Ecological Rights Found., 230 F.3d at 1145. In order to be covered under California's General Permit, individual dischargers must file a notice of intent with the state. General Permit at 1-2 ¶ 3.

The parties to this case agree that AG Industrial falls within an industrial classification under the Act and General Permit for which no specific pollutant effluent limitations have been set. Nonetheless, California's General Permit requires AG Industrial to identify and implement "best management practices" ("BMPs"),¹ id. at 4 ¶ B.3, and generally prohibits all non-storm water discharges, with a few exceptions for activities such as fire hydrant flushing and landscape watering. Id. at 3 ¶ A.1, 5 ¶ D.1. The Permit also requires dischargers to develop and implement an effective Storm Water Pollution Prevention Plan ("SWPPP"), id. at 11-23 ¶ A.1-A.10, and to develop and implement a comprehensive monitoring and reporting program. Id. at 24-35 ¶¶ B.1-B.15.

Private citizens may sue under the Clean Water Act to enforce the specific provisions of California's General Permit. 33 U.S.C. § 1365(a)(1), (f)(6); Russian River Watershed Prot. Comm. v. City of Santa Rosa, 142 F.3d 1136, 1139 (9th Cir. 1998). In this case, WaterKeepers contends that AG Industrial has violated the Permit by discharging contaminated storm and non-storm water; by failing to develop and implement adequate BMPs; by failing to develop and implement an adequate SWPPP; and by failing to develop and implement an adequate monitoring and reporting program.

III.

The Clean Water Act requires citizen plaintiffs to notify alleged violators of their intent to sue at least sixty days before filing a complaint. 33 U.S.C. § 1365(b)(1)(A). In our circuit, compliance with this notice provision is required for jurisdiction. See Natural Res. Def. Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000); cf. Hallstrom v. Tillamook County, 493 U.S. 20, 31, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989) (holding that notice is a mandatory prerequisite to suit under the Resource Conservation and Recovery Act but declining to decide whether the notice requirement "is jurisdictional in the strict sense of the term"). In order to comply, a citizen plaintiff must send an intent-to-sue letter that includes

sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, ... [and] the date or dates of such violation.

40 C.F.R. § 135.3(a).

"The key language in the notice regulation is the phrase `sufficient information to permit the recipient to identify' the alleged violations and bring itself into compliance." Cmty.Ass'n for Restoration of the Env't v. Henry Bosma Dairy, 305 F.3d 943, 951 (9th Cir.2002) [hereinafter Bosma Dairy]. Notice is sufficient if it is reasonably specific and if it gives "the accused company the opportunity to correct the problem." San Francisco BayKeeper, 309 F.3d at 1158 (quoting Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir.1997)). Although the Act's notice requirement is "strictly construed," Southwest Marine, 236 F.3d at 998, plaintiffs are not required to "list every specific aspect or detail of every alleged violation." Bosma Dairy, 305 F.3d at 951 (quoting Pub. Interest Research Group v. Hercules, Inc., 50 F.3d 1239, 1248 (3d Cir.1995)). We review the adequacy of pre-suit notice de novo. San Francisco BayKeeper, 309 F.3d at 1157.

A.

WaterKeepers sent AG Industrial a ten-page notice letter that is significantly longer and more detailed than the notice letter we held sufficient in Southwest Marine. 236 F.3d at 1003-08. WaterKeepers' letter describes the problem of storm water pollution in the Mokelumne River, which is a tributary to the San Joaquin River and the Delta. It specifically identifies pollutants associated with AG Industrial's operations; describes in detail the sources and practices that lead to the discharge of contaminated storm water from AG Industrial's site; and explains that non-storm water, contaminated by washing or hosing down dirty machinery or...