CARS et al v. United States Army Corps of Engineers et al

Filing 39

MEMORANDUM AND ORDER that the motion of 15 NEC, Bella Vista and Opco to dismiss is granted, that the 31 Martzolfs' cross-motion to dismiss is granted, that plaintiffs' cross-motion 37 for judgment on the pleadings as to certain affirmative defenses is dismissed, that NEC, Bella Vista, Opco and John and Carolyn Martzolf are dismissed from this action and the caption of this action shall be changed. Signed by Judge John T. Elfvin on 12/23/05. (RAZ)

CARS et al v. United States Army Corps of Engineers et al

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U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK CARS (CITIZENS AGAINST RETAIL SPRAWL), by George Ciancio, its President, GEORGE J. CIANCIO, GEORGE C. FRANKE, LAWRENCE F. HELMINIAK, DAVID & MARY ALYS KRATZKE, SHARON CRAMER & LESLIE MORRIS, BRIAN & HELEN BORZYNSKI, LUCILLE & DENIS MARSH, CAROLYN L. BAKER, MARY CICH, ROBERT J. SMACZNIAK, JEROME J. KUCHARSKI, JERRY & IDA SAWYER, NANCY PIENIAZEK, TERRENCE & KATHLEEN RICHARD, JAMES P HEISLER, . RONALD J. SZYPAJLO, STEPHEN & LUCILLE STAWICKI, RUTH & NORMAN JOHNSON, CARLEEN BLAKE RYAN, GARY & MARIETA RONALD, JOY THRUN, WALTER & VIRGINIA WOJDYLA, FRANK & ANTOINETTE VOLPE, FRANK & MARLENE TODARO and ENRICO & DOMENICA BENEDETTI, Plaintiffs, -vsTHE UNITED STATES ARMY CORPS OF ENGINEERS, UNITED STATES OF AMERICA, BELLA VISTA GROUP INC., , NEC TRANSIT WILLIAM, LLC, OPCO, INC. and JOHN A. MARTZOLF & CAROLYN M. MARTZOLF, h/w, Defendants. MEMORANDUM and ORDER 1

04-CV-0328E(Sr)

1

This decision may be cited in whole or in any part.

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P la in tiffs -- Citizens Against Retail Sprawl ("CARS") and named individuals -- commenced this action on April 29, 2004 seeking, inter alia, an injunctive e n jo in d e r of a retail development in the Town of Lancaster, N.Y. ("the Site"). P la in tiffs are residents of real property situated in the immediate vicinity of the S it e and have filed suit against the United States Army Corps of Engineers and th e United States of America (collectively "the Federal Defendants") and NEC Tr a n s i t William, LLC ("NEC"), Bella Vista Group, Inc. ("Bella Vista"), Opco, Inc. a n d John and Carolyn Martzolf (collectively "the Non-Federal Defendants"). P la in t iffs allege six causes of action, the first two of which are asserted against th e Non-Federal Defendants under the Clean Water Act ("CWA"), 33 U.S.C. §1251 e t seq., and the remaining four of which are asserted against the Federal D e fe n d a n ts under the Administrative Procedure Act, 5 U.S.C. §706(2)(A). Before th e Court is the Non-Federal Defendants' Motions to Dismiss and plaintiffs' CrossM o tio n for Judgment on the Pleadings as to Certain Affirmative Defenses. P la in tiffs seek injunctive relief and penalties from the Non-Federal D e fe n d a n ts pursuant to the citizen suit provisions set forth in Section 505 of the C WA , 33 U.S.C. §1365. Plaintiffs allege that the Non-Federal Defendants engaged in certain construction-related activities at the Site in violation of the CWA. On D e c e m b e r 17, 2004 NEC, Bella Vista and Opco (collectively "the Developer D e fe n d a n ts " ) moved to dismiss plaintiffs' first two causes of action, in which the M a r tz olfs joined in its entirety on January 25, 2005. The pending motions to

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d is m is s will be addressed jointly. The Non-Federal Defendants, pursuant to Rules 1 2 ( b ) ( 1 ) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), claim that p la in t iffs ' first two causes of action should be dismissed for lack of subject matter ju ris d ic tio n and standing and for failure to state a claim upon which relief can be g r a n te d . On January 31, 2005 plaintiffs, in their response to the Non-Federal D e fe n d a n ts ' motions to dismiss, cross-moved to dismiss several of the NonFe d e r a l Defendants' affirmative defenses. For the reasons set forth below, the N on -Fed er a l Defendants' motions to dismiss will be granted, plaintiffs' first two c a u s e s of action will be dismissed and, because this action as against the NonFe d e r a l Defendants will be closed, plaintiffs' cross-motion to dismiss the NonFe d e r a l Defendants' affirmative defenses will be mooted and thus will be denied. T h e facts are found as follows and are undisputed. At issue in this litigation is the development of the Site, which is a 35-acre commercial development of a re ta il shopping area -- the Gateway Center -- located at the northeast corner of Tr a n sit Road and William Street in the Town of Lancaster, County of Erie, N.Y. N E C currently owns, leases or has options to acquire various parcels comprising th e Site. Opco contracted with the Martzolfs to purchase one of the parcels within th e Site and subsequently assigned the purchase agreement to NEC. Bella Vista s e r v es as NEC's agent and developer of the Gateway Center. The Martzolfs c o n tr a c t e d to sell a parcel of the Site to Opco and Opco, in turn, assigned the p u rc h a se right to NEC.

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T h e Gateway Center was to include a Wal-Mart store in the southeast p o r tio n of the Site ("the Main Parcel") and four smaller retail establishments in the p o r tio n of the Site fronting Transit Road ("the Outparcels"). Wal-Mart has

d e c lin e d to finalize its acquisition of the property during the pendency of this a c tion . The Developer Defendants currently lease or sub-lease the Outparcels to fo u r existing retail establishments. T h e Developer Defendants are not directly involved in the construction of th e buildings at the Gateway Center; rather, they are responsible for obtaining all n e c e s s a r y approvals for the ultimate development of the Gateway Center and for p re p a r in g the Site for construction. Preparation work entails clearing trees, g r a d in g land and constructing access roads. The Developer Defendants began d e v elo p in g the Site in March 1999. They commenced preparation work on the O u tp a rc e ls in August 2000 and completed it in November 2002, which consisted o f two categories of activities -- viz., (1) preliminary clearing activity in 2000 and 2 0 0 1 and (2) grading and road construction on the Outparcels in Fall 2002. The o c c u p a n ts of the Outparcels completed the actual construction of their buildings in December 2003. Thus, all construction-related activities were completed in D e c e m b e r 2003. The construction of the building on the Main Parcel will also be p e r fo r m e d by the future tenant and not by the Developer Defendants. The only re m a in in g work that the Developer Defendants will undertake is filling the e x is tin g wetlands on the Site, performing the associated grading of the Site and

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c o n s tr u c tin g a stormwater detention pond on a portion of the Site currently o c c u p ie d by wetlands, for which the Developer Defendants have a wetland p e r m it . This is not the first proceeding in which plaintiffs have expressed their o b j e c tio n s to the development of the Gateway Center. In 1999 the Town of La n c a s te r Town Board ("the Town Board") approved a rezoning necessary for an in itia l proposal by the Developer Defendants to develop a site plan for the G a te w a y Center. Beginning in March 2000 and continuing through March 2004, p la in tiffs challenged in state court that and subsequent rezoning decisions of the Tow n Board as it pertained to the Site. See CARS v. Giza, 5 A.D.3d 1109, 1109 (4th D e p t . 2004); CARS v. Giza, 280 A.D.2d. 234, 234 (4th Dept. 2001). After a series of state court actions, plaintiffs commenced the instant action. The Developer Defendants move under FRCvP 12(b)(1) that the case be d is m is s e d for want of jurisdiction because plaintiffs' notice-of-intent-to-sue letter ( " N o tic e Letter") was inadequate and a proper notice is a jurisdictional p re re q u is ite for a CWA citizen suit. The Developer Defendants also moved

p u r s u a n t to FRCvP 12(b)(6) that the case be dismissed because plaintiffs lack s ta n d in g and their claims are barred by the doctrine of laches. The Martzolfs h a v e joined all the arguments made by the Developer Defendants. Plaintiffs claim that the motions to dismiss are untimely because the NonFe d e r a l Defendants have already answered. The Developer Defendants answered

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o n June 18, 2004 and the Martzolfs answered on August 16, 2004. FRCvP 12(b) s ta te s that the defense of failure to state a claim "shall be made before pleading if a further pleading is permitted." FRCvP 12(h)(2), however, states that "[a] d e fe n s e of failure to state a claim upon which relief can be granted * * * may be m a d e in any pleading permitted * * * or by motion for judgment on the pleadings, o r at the trial on the merits." "Thus, the defense of failure to state a claim is not w a iv a b le ." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d C ir. 2001). Furthermore, FRCvP 12(h)(3) states that, "[w]henever it appears by s u g g e stio n of the parties or otherwise that the court lacks jurisdiction of the s u b je c t matter, the court shall dismiss the action." Hence, a defense of subject m a tte r jurisdiction also is not waivable. The Second Circuit Court of Appeals, as a result, has held that a "non-waivable defense[] under [FRCvP] 12(h)[] that is s ty le d as arising under [FRCvP] 12(b) but is filed after the close of pleadings, s h o u ld be construed by the district court as a motion for judgment on the p le a d in g s under [FRCvP] 12(c)." Patel, at 126. The standards for granting an F R C v P 12(c) motion for judgment on the pleadings is the same as the standards for granting a motion under FRCvP 12(b). Ibid. In an FRCvP 12(b)(6) motion to dismiss, the standard of review is heavily w e ig h te d in favor of plaintiffs. The Court is required to read a complaint

g e n e ro u s ly, accepting the material facts alleged therein as true and drawing all rea so n a b le inferences from plaintiffs' allegations. California Motor Transp. Co. v.

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Tr u c k in g Unlimited, 404 U.S. 508, 515 (1972); Frasier v. Gen. Elec. Co., 930 F.2d 1 0 0 4 , 1007 (2d Cir. 1991). Defendants are entitled to dismissal pursuant to FRCvP 1 2 ( b ) (6 ) only if the Court finds that "it appears beyond doubt that * * * plaintiff[s] c a n prove no set of facts in support of [their] claim[s] which would entitle [them] t o relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In order to survive

d is m is s a l, plaintiffs must assert cognizable claims and allege facts that, if true, w ou ld support such claims. Boddie v. Schnieder, 105 F.3d 857, 860 (2d Cir. 1997). In an FRCvP 12(b)(1) motion challenging the District Court's subject matter ju ris d ic tio n , the Court may resolve the disputed jurisdictional fact issues by re fe r r in g to evidence outside of the pleadings, such as affidavits, and, if n ec es sa r y, hold an evidentiary hearing. Zappia Middle East Constr. Co. v. Emirate o f Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). However, when matters outside th e pleadings are presented on a FRCvP 12(b)(6) motion to dismiss for failure to s ta te a claim, the Court must either exclude the additional material and decide th e motion on the complaint alone or convert the motion to one for summary ju d g m e n t and afford all parties the opportunity to present supporting material. M o re lli v. Cedel, 141 F.3d 39, 46 (2d Cir. 1998). The Court will address only the N o n - Fe d e r a l Defendants' motions to dismiss pursuant to FRCvP 12(b)(1) for lack o f subject matter jurisdiction because, as the Court will find that it lacks subject m a tte r jurisdiction, it cannot address any other issues presented by the NonFed er a l Defendants or by plaintiffs.

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T h e CWA primarily regulates the discharge of pollutants into navigable w a te r s by creating a regulatory regime requiring "principally that discharges be re g u la t e d by permit, not prohibited outright." Catskill Mountains Chapter of Tr o u t Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 485-486 (2d Cir. 2001). The C WA prohibits the discharge of pollutants except when in compliance with c e r ta in provisions of the statute, one of which establishes a permitting program, th e "National Pollutant Discharge Elimination System" ("NPDES"). 33 U.S.C. §1342. The CWA provides for the issuance of discharge permits ("NPDES

p e r m its " ) -- issued either by the Environmental Protection Agency ("EPA") A d m in is tr a to r or by state agencies authorized by the EPA Administrator -- that a llo w the holder to discharge pollutants at levels below thresholds incorporated in the permit. 33 U.S.C. §1342(a), (b); 40 C.F.R. §122.1 et seq. The CWA

a u th o r iz e s each state to implement its regulations through the state's own permit p ro g r a m as long as the program conforms to federal guidelines approved by the E PA Administrator. 33 U.S.C. §1342(b). In New York State, the NPDES program is administered by the New York State Department of Environmental C o n s e r v a tio n ("NYSDEC") and is referred to as the "State Pollution Discharge E lim in a tio n System" ("SPDES"). See 33 U.S.C. §1342(b); N.Y. Envtl. Conserv. Law § § 1 7 -0 1 0 5 (1 3 ), 17-0701. Accordingly, the NYSDEC issues SPDES general permits fo r routine categories of regulated discharges, including stormwater discharge fro m construction activity. 6 NYCRR §750-1.21. Applicants may obtain coverage

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u n d e r a SPDES general permit by simply filing a Notice of Intent to be covered by th e permit. 6 NYCRR §750-1.21(d) . In New York, NPDES permits pursuant to the C WA are deemed permits issued under the New York SPDES program. 6 NYCRR § 7 5 0 - 1 .4( c ). The holder of a New York SPDES general permit is subject to both sta te and federal enforcement actions for any failure to comply with the permit. 33 U.S.C. §§1319, 1342(b)(7). The CWA provides for enforcement by state agencies and the EPA and a llo w s private parties to file "citizen suits" to enforce the CWA. 33 U.S.C. §1365. A g g r ie v e d plaintiffs may bring a civil action for specific relief -- viz., imposition of particular compliance measures -- or civil penalties and may recover attorney's fee s. 33 U.S.C. §§1319, 1365. At least sixty days prior to filing a citizen suit, p ro s p e c tiv e plaintiffs must provide notice of their claims ("notice letter") to the p o te n tia l defendants, the EPA and the state in which the violations allegedly o c c u r re d . 33 U.S.C. §1365(b)(1)(A). If a competent state or federal enforcement a g e n c y brings a civil enforcement action against the alleged violators prior to the filin g of the citizen suit, or an administrative enforcement proceeding prior to the p la in tiffs ' notice letter, the citizen suit is preempted and must be dismissed. 33 U .S.C . §§1319(g)(6), 1365(b)(1)(B). Per the authority granted by the CWA, the EPA Administrator has p re s c rib e d by regulation the procedural notice requirements of a citizen suit. 33 U .S .C . §1365(b). If the suit is against an individual or corporation, "[a] copy of the

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n o t ic e shall be mailed to the Administrator of the EPA, the Regional Administrator o f the [EPA] * * *, and the chief administrative officer of the water pollution control a g e n c y for the State * * *." 40 C.F.R. §135.2(1). If the suit is against a federal g o v e r n m e n t agency, an additional copy of the notice must be mailed to the United S ta te s Attorney General. 40 C.F.R. §135.2(3). Further, the notice shall include " s u ffic ie n t information to permit the recipient to identify the specific s ta n d a rd , limitation, or order alleged to have been violated, the a c tiv ity alleged to constitute a violation, the person or persons re s p o n s ib le for the alleged violation, the location of the alleged v io la t io n , the date or dates of such violation, and the full name, a d d re s s , and telephone number of the person giving notice." 40 C . F.R . §135.3. P la in tiffs bringing CWA citizen suits must comply with strict notice requirements in order to give government agencies a chance to take responsibility for enforcing en v iron m e n t a l regulations and the alleged violators an opportunity to comply with th e CWA. Hudson Riverkeeper Fund v. Putnam Hosp., 891 F. Supp 152, 155

( S .D .N .Y. 1995). The Second Circuit has "refused to `allow form to prevail over s u b s ta n c e ' in considering the content required of an [notice] letter, and ha[s] lo o k e d instead to what the particular notice given may reasonably be expected to accomplish." Catskill Mountains, at 487 (citations omitted). However,

" re a s o n a b le specificity" is required such that the alleged violators can "identify th e specific standard * * * [claimed] to have been violated * * * [and] the activity a lle g e d to constitute a violation." Id. at 487-488 (citing 40 C.F.R. §135.3(a)).

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Pr iv a te citizens may commence a citizen suit against those alleged to be in v iola tion of an effluent standard or limitation, including, inter alia, the discharge o f any pollutant except as provided for in the CWA and a violation of a permit or c on d ition of the CWA. 33 U.S.C. §1365(f)(1), (6); City of N.Y. v. Anglebrook Ltd. P 's h ip , 891 F. Supp. 900, 901 (S.D.N.Y. 1995). If the citizens prevail in an

e n fo rc e m e n t action, the court may enforce the effluent standard or limitation, ord er injunctive relief and/or impose civil penalties. 33 U.S.C. §1365(a). The CWA addresses the threat of pollution created by stormwater runoff by re q u ir in g the authorization of an NPDES permit for stormwater discharges res u ltin g from certain commercial or industrial activities. 33 U.S.C. §1342(p); see, e .g ., Anglebrook, at 901 ("Among other things, pollutants from stormwater runoff c a n result in the deterioration of local water supply systems."). The NYSDEC is s u e d the SPDES General Permit for Stormwater Construction Activities, permit G P-9 3 - 0 6 , in 1993 and replaced it with the SPDES General Permit for Stormwater D is c h a rg e s from Construction Activity, permit GP-02-01 ("the General Permit") in January 8, 2003. The General Permit may be used for construction activities in v olvin g any amount of disturbed acreage, provided that all other eligibility c o n d itio n s of the General Permit are satisfactorily met. GP-02-01, at iv. Coverage u n d e r the General Permit is obtained by submitting a notice letter to the NYSDEC. Pr io r to the submission of a notice letter, applicants must have completed a S to r m w a te r Pollution Prevention Plan ("SWPPP") that complies with all

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re q u ire m e n ts of the General Permit. GP-02-01, at ii. Coverage under the General Pe r m it may be cancelled after construction is completed by submitting a Notice o f Termination. Noncompliance with the General Permit "constitutes a violation o f the [CWA] * * * and is grounds for an enforcement action * * *." GP-02-01, at 18. A citizen suit cannot commence until sixty days after proper notice has b e e n given pursuant to the CWA. 33 U.S.C. §1365. As "[a] civil action is

c o m m e n c e d by filing a complaint with the court", FRCvP 3, and such cannot occur u n d er the CWA without proper notice, such court lacks jurisdiction to adjudicate C WA claims not predicated on proper notice. See Hallstrom v. Tillamook County, 4 9 3 U.S. 20, 26-27 (1989); Bettis v. Town of Ontario, N.Y., 800 F. Supp. 1113 ( W.D .N .Y. 1992). P la in tiffs served the Non-Federal Defendants with their Notice Letter in N o v e m b e r 2002 and sent said letter via certified mail to the EPA Administrator, th e Regional Administrator of the EPA and the Commissioner of the NYSDEC. The N o tic e Letter states the location and the time periods of the alleged violations and a lle g e s that the Non-Federal Defendants discharged stormwater without an S P D E S permit prior to October 5, 2000 and thereafter failed to abide by the SPDES p e r m it, GP-93-06. In particular, the Notice Letter alleges that the Non-Federal D efen d a n t s submitted improper and incomplete Notice of Intent forms, failed to d e v e lo p an SWPPP at each site purported to be covered by the SPDES permit, did n o t comply with the terms of the SPDES and had an inadequate and deficient

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S W P P P . Plaintiffs' Notice Letter claims that the Non-Federal Defendants removed v e g e t a t io n without an SPDES permit and, subsequent to obtaining an SPDES p e r m it, failed to follow erosion and sedimentation controls or other indicia of an S W P P P conforming to the SPDES permit.2 Plaintiffs allege that all violations are c o n tin u in g . T h e Non-Federal Defendants claim that plaintiffs' Notice Letter is in a d e q u a t e both procedurally and substantively and thus the Court lacks subject m a tt e r jurisdiction over this action. Procedurally, the Notice Letter is allegedly d e fe c tiv e because (1) it does not identify all the plaintiffs in this action, (2) it does n o t provide the telephone number of each plaintiff giving notice, (3) a copy of the N o tic e Letter was not provided to the United States Attorney General and (4) p la in t iffs did not mail a copy of their Complaint to the EPA Administrator, R e g io n a l Administrator or the United States Attorney General until a month after th e y commenced this action. Substantively, the Non-Federal Defendants claim th a t plaintiffs' Notice Letter is deficient in that (1) the allegations are vague, (2)

The Notice Letter states the following: "Particular deficiencies [of the SWPPP] include: the nature of the construction activity is not described, the intended sequence of major activities which disturb soils from major portions of the site is not accurately described, estimates of the runoff coefficient of the site after construction activities are completed is absent, as is existing data describing the soil and the quality of any discharges from the site, and a site map indicating drainage patterns and approximate slopes anticipated after major grading activities, areas of soil disturbance, an outline of areas which will not be disturbed, the location of major structural and nonstructural controls identified in the plan, the location of areas where stabilization practices are expected to occur, surface waters (including wetlands) and locations where stormwater is discharged to surface or groundwaters, is all absent." (Notice Letter at 4-5.)

2

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it fails to identify any specific pollutants, (3) it does not specify the dates of the a lle g e d violations and (4) the Complaint alleges violations not included in the N otice Letter. First, the Non-Federal Defendants claim that the case should be dismissed b ec a u se not all the plaintiffs in this action were included in the Notice Letter. A v a s t majority of the plaintiffs were, however, listed on the Notice Letter and " [n ] o t ic e provided by a single plaintiff in a suit brought by multiple plaintiffs c o n s titu te s `substantial compliance' with the notice requirements of the CWA
* * * ." Long Island Soundkeeper Fund, Inc. v. N.Y. Athletic Club, 1996 U.S. Dist.

L E X I S 3383, at *7 (S.D.N.Y. 1996). Next, the Non-Federal Defendants claim that d is m is s a l is appropriate because plaintiffs did not include their phone numbers in their Notice Letter. Plaintiffs claim that the Notice Letter included the phone n u m b e r of plaintiffs' attorney and thus is sufficient. Plaintiffs' Notice Letter in c lu d es the full name and address of each plaintiff and the Non-Federal D e fe n d a n ts have been involved in litigation about the development of the G a te w a y Center with plaintiffs for years. They, therefore, have sufficient

in for m a tio n to easily identify and contact plaintiffs. The Non-Federal Defendants c it e several cases in support of their claim that failure to include phone numbers is sufficient for dismissal. In those cases, however, the lack of phone numbers w a s not the only deficiency in the notice letters. See, e.g., Washington Trout v. M c C a in Foods, Inc., 45 F.3d 1351, 1352 (9th Cir. 1995) (notice letter did not include

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th e names, addresses or phone numbers of any of the named plaintiffs); Sierra C lu b Ohio Chapter v. City of Columbus, 282 F. Supp. 2d 756, 775 (S.D. Ohio 2003) ( n o t ic e letter did not provide sufficient information to determine the full names, a d d res se s or telephone numbers of those giving notice); Bettis, at 1117-1118 ( n o tic e letters were not sent via certified mail and none of the defendants were p e r s o n a lly served, most of the alleged violators were not named in or did not re c e iv e the notice letters and the notice letters did not contain the full name, a d d re s s and telephone number of the person giving notice). This Court in Bettis s ta t e d that "not all of the[] defects are equally serious." Id. at 1119. "[S]ome of th e more technical departures from the [CWA's] requirements could perhaps be fo rg iv e n if the notice requirements as a whole had been substantially complied w ith ." Ibid (finding that the problem with the notice letters was that they did not a p p r is e the defendants of any violation of the CWA). Here, plaintiffs' failure to list th e ir phone numbers, alone, is not sufficient to warrant dismissal; however, said fa ilu re and their substantive deficiencies detailed infra amount to sufficiently se riou s defects warranting dismissal. As to the claim that plaintiffs did not provide a copy of their Notice Letter to the United States Attorney General, such does not apply to the Non-Federal D e fe n d a n ts ' claims or potential liability. Moreover, plaintiffs are not claiming that a federal agency violated the CWA and thus service on the United States Attorney G en er a l is not needed for purposes of the CWA. See 40 C.F.R. §135.1(a). Finally,

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p la in tiffs ' failure to send a copy of their Complaint to the EPA Administrator, R e g io n a l Administrator or the United States Attorney General until a month after c o m m e n c in g this action, although not prudent of their attorney, is, alone, also not s u ffic ie n t to warrant dismissal. This month-long delay is far less egregious than th e nearly nineteen-month delay in commencing this action from the time of se r v in g their Notice Letter. Turning to the substance of plaintiffs' Notice Letter, the Non-Federal D e fe n d a n ts claim that the Notice Letter is vague -- viz., it "never identifies the `p ollu ta n t s ' allegedly discharged, the waters of the United States allegedly rec eivin g such discharges or any specific dates of the alleged violations." ( D e v e lo p e r Defs.' Mem. Supp. Mot. Dismiss, at 10.) The CWA allows the

c o m m e n c e m e n t of a citizen suit for a violation of "an effluent standard or lim ita t io n " as defined under the CWA. 33 U.S.C. §1365. Section 1365 enumerates s e v e n types of effluent standards, one of which is a violation of "a permit or c o n d it io n thereof issued under section 1342 of [the CWA]." 33 U.S.C. §1365(f)(6). T h u s , a facially inadequate SWPPP is a violation of the CWA as it necessarily v iola tes the terms of the SPDES permit issued under the CWA. See Anglebrook, a t 904-905 ("[A] flawed plan filed in violation of permit requirements * * * is an a c tio n a b le violation of an effluent standard under §1365(f)(6)."). Plaintiffs' claim, th e re fo re , that the Non-Federal Defendants violated the SPDES General Permit is a n actionable claim under the CWA. The Notice Letter, however, must allege a

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s p e c ific permit violation and describe with some particularity the respects in w h ic h compliance with the permit is deficient. Id. at 906. Plaintiffs fail to meet th is standard and said failure coupled with their procedural deficiencies warrant d is m is s a l of this action. The court in Anglebrook found that the plaintiff's notice le tte r alleging violations of the SWPPP was sufficient because it "referred to the c or res p on d in g sections, paragraphs and subparagraphs of the General Permit" for each category of alleged permit violations. Id. at 907. Plaintiffs are not nearly a s specific in their Notice Letter and, after years of litigation, such lack of sp ec ific ity and vague allegations are unacceptable. Notice letters "must identify with reasonable specificity" that which are a lleg ed to have been unlawfully discharged in violation of the CWA. Catskills M o u n t a i n s , at 488. Plaintiffs' Notice Letter -- and subsequent Complaint -- is v a g u e, redundant and devoid of specific allegations. First, plaintiffs do not state th e waters into which the alleged stormwater is being discharged. Next, plaintiffs a lle g e general violations of GP-93-06 without specifying the particular provision or the way in which the Non-Federal Defendants have violated the SPDES permit. For example, plaintiffs claim that the SWPPP is not prepared in accordance with A p p e n d ix F of GP-93-06. (Notice Letter, at 4.) After having been in litigation for s e v e ra l years, plaintiffs should be more aware of the particular sections, if such e x is t, of Appendix F and cite those sections in their Notice Letter. Plaintiffs make s im ila rly vague citations in their Complaint to GP-93-06, but GP-93-06 was

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re p la c e d by GP-02-01 over a year prior to this action and is no longer the relevant p e r m it at issue. Plaintiffs' failure to identify how the Non-Federal Defendants are in violation of the SPDES permit does not place the Non-Federal Defendants on n otice of their alleged violations. Simply stating that the Non-Federal Defendants " h a v e failed to conform" to the SPDES permit without describing the manner in w h ic h they have failed does not place the Non-Federal Defendants on notice. ( N o t ic e Letter, at 5.) In their response, plaintiffs quote a significant portion of California S p o r t fis h in g v. Diablo Grande, 209 F. Supp. 2d 1059 (E.D. Cal. 2002), which, in fact, s u p p or ts dismissal of plaintiffs' claims. The notice letter in California Sportfishing id en tifies , inter alia, the amount of rainfall necessary to create the stormwater d is c h a rg e , the specific location of the activities causing the discharge, the specific p ro v is io n s of the permit that are alleged to be violated and the specific acts and om iss io n s that violated the specific sections of the permit. Id. at 1069-1070. P la in t iffs ' Notice Letter does not make any allegations close to that level of sp ec ific ity.3 T h e content requirements for the notice letter are intended to facilitate the o b je c tiv e s of the CWA -- to wit, to allow government agencies to take re s p o n s ib ility for enforcing environmental regulations and thus obviating the need for citizen suits and to give the alleged violator an opportunity to come into
Plaintiffs' Complaint is just as vague and avoids asserting substantive claims by being repetitive, irrelevant and extremely long.
3

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c om p lia n c e with the CWA and thus likewise render unnecessary a citizen suit. H u d s o n Riverkeeper, at 155 (citing Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Fo u n d ., Inc., 484 U.S. 49, 60 (1987)). Plaintiffs' failure to indicate any specific v io la t io n s , the source of the violations and the waters into which the stormwater is being discharged may have prevented the Non-Federal Defendants from a c c u r a te ly identifying their alleged violations and may have hindered a timely, o u t- o f- c o u r t resolution of this conflict. Plaintiffs' claims as against the NonFe d e r a l Defendants, therefore, will be dismissed. As such, the Court lacks

ju r is d ic tio n to address the other issues presented and plaintiffs' cross-motion will b e dismissed. A c c o rd in g , it is hereby ORDERED that the motion of NEC, Bella Vista and O p c o to dismiss is granted, that the Martzolfs' cross-motion to dismiss is granted, th a t plaintiffs' cross-motion for judgment on the pleadings as to certain a ffir m a tiv e defenses is dismissed, that NEC, Bella Vista, Opco and John and C a ro ly n Martzolf are dismissed from this action and the caption of this action shall n o w read: "CARS (CITIZENS AGAINST RETAIL SPRAWL), by George Ciancio, its President, GEORGE J. CIANCIO, GEORGE C. FRANKE, LAWRENCE F. HELMINIAK, DAVID & MARY ALYS KRATZKE, SHARON CRAMER & LESLIE MORRIS, BRIAN & HELEN BORZYNSKI, LUCILLE & DENIS MARSH, CAROLYN L. BAKER, MARY CICH, - 19 -

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ROBERT J. SMACZNIAK, JEROME J. KUCHARSKI, JERRY & IDA SAWYER, NANCY PIENIAZEK, TERRENCE & KATHLEEN RICHARD, JAMES P HEISLER, . RONALD J. SZYPAJLO, STEPHEN & LUCILLE STAWICKI, RUTH & NORMAN JOHNSON, CARLEEN BLAKE RYAN, GARY & MARIETA RONALD, JOY THRUN, WALTER & VIRGINIA WOJDYLA, FRANK & ANTOINETTE VOLPE, FRANK & MARLENE TODARO and ENRICO & DOMENICA BENEDETTI, Plaintiffs, -vsTHE UNITED STATES ARMY CORPS OF ENGINEERS and UNITED STATES OF AMERICA, Defendants."

DAT E D :

B u ffa lo, N.Y. D e c e m b e r 23, 2005 /s/ John T. Elfvin JOHN T. ELFVIN S.U.S.D.J.