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December 12, 2000


The opinion of the court was delivered by: Breyer, U.S. District Judge.



The present dispute involves a wastewater treatment plant ("the treatment plant" or simply "the plant") located in the unincorporated community of Occidental in Sonoma County. The defendant Occidental County Sanitation District ("OCSD") is the owner of the treatment plant; the defendant Sonoma County Water Agency ("SCWA") operates the treatment plant under a contract between the defendants. The plaintiff Friends of Frederick Seig Grove #94 ("Friends")*fn1 is an unincorporated nonprofit public interest group that contends that the defendants have violated the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., in their operation of the treatment plant.


The treatment plant was originally constructed in the late 1950s and serves approximately seventy customers, most of whom are individual residents. The plant discharges treated wastewater pursuant to its National Pollutant Discharge Elimination System permit (the "NPDES permit"). The NPDES permit was issued by the California Regional Water Quality Control Board, North Coast Region ("the Regional Board").

Since January 1997, the Regional Board has issued four enforcement orders against OCSD and SCWA involving violations of the NPDES permit. The Regional Board issued the first order on January 23, 1997 for violations of the NPDES permit. That order, Cease and Desist Order ("CDO") No. 97-6, identified certain violations of the NPDES permit for discharging treated effluent into local streams. CDO No. 97-6 also directed the defendants to prepare a report detailing potential upgrades to the treatment plant — such as improving the plant's storage capacity — to prevent future violations. See Request for Judicial Notice in Support of Motion ("RJN"), Sept. 27, 2000, Ex. 1, at 3.

The Regional Board issued the second and third orders on August 27, 1997, when the Regional Board replaced CDO No. 97-6 with CDO No. 97-74 and Time Schedule Order No. 97-75 (the "TSO"). CDO No. 97-74 requires OCSD and SCWA to: (1) implement an interim solution to prevent the discharge and other violations; (2) submit a report outlining long-term solutions for the violations; (3) implement a "Capital Improvement Plan" ("CIP") to improve the treatment plant's facilities by: (a) developing alternative plans, (b) presenting them to rate payers, (c) selecting a plan, (d) obtaining the necessary California Environmental Quality Act ("CEQA") certification, (e) awarding a bid for the selected CIP, and (f) completing construction on the treatment plant. See RJN, Ex. 2 (containing CDO No. 97-74), at 3-4. CDO No. 97-74 also provides that the defendants must certify the CIP in accordance with the CEQA by January 1, 2000 and must complete the necessary construction by September 1, 2002. See id. The TSO establishes civil penalty assessment dates and amounts in the event that OCSD and SCWA fail to satisfy the deadlines outlined in the two orders. The TSO also notes, "It is anticipated that the new [TSO] is likely to be violated." See RJN, Ex. 3 (containing the TSO), ¶ 9.

Finally, on October 23, 1997, the Regional Board issued Administrative Civil Liability Order No. 97-126 (the "ACLO"). Pursuant to section 13385 of the California Water Code, the ACLO imposed a $25,000 penalty on OCSD and SCWA for violations of the NPDES permit from May 1993 to July 1997. The order also assessed a $50,000 penalty to be suspended upon the condition that the defendants certify a CIP that complies with the CEQA by January 1, 2000. Similarly, the ACLO included another $50,000 penalty to be suspended if the defendants complete construction of the CIP by September 1, 2002. See RJN, Ex. 4 (containing the ACLO), at 7.


On August 12, 1997, the environmental group Northern California River Watch ("NCRW") filed a complaint against OCSD and SCWA pursuant to the citizen suit provisions of the CWA. See No. C 97-2962 CRB ("the NCRW suit"). The complaint, filed in federal court, sought civil penalties and injunctive and declaratory relief for violations of the NPDES permit from May 1993 to July 1997.

On January 30, 1998, this Court dismissed the civil penalty claim in the complaint as barred pursuant to 33 U.S.C. § 1319 (g)(6)(A)(ii), which precludes civil penalties when a state diligently prosecutes environmental violations. The Court declined, however, to dismiss NCRW's request for injunctive and declaratory relief

NCRW then filed a first amended complaint against the defendants for violations of the NPDES permit since July 1997. On October 6, 1998, NCRW, OCSD, and SCWA entered into a settlement agreement resolving the claims in the NCRW suit. The agreement acknowledges that the defendants have begun an environmental review process to remedy future violations of the NPDES permit. The settlement also prohibits NCRW from suing the defendants for environmental violations that occurred either before the execution of the agreement or for two years afterwards.*fn2


On March 15, 2000, the defendants received a letter from an attorney representing "Frederick Seig Grove #94 of the United Ancient Order of Druids (`the Druids')." RJN, Ex. 9 ("March 15 notice"), at 1. The letter provided notice that the Druids intended to file suit against OCSD and SCWA under the CWA for the violations identified in the Regional Board's orders. See id.

On April 11, 2000, the defendants received an amended notice of violations and intent to file suit, this time from the plaintiff "Friends of Frederick Seig Grove #94 (`Friends')." RJN, Ex. 10 ("April 11 notice"), at 1. Except for the change in the identity of the plaintiff,*fn3 the amended notice was identical to the original notice received by the defendants on March 15, 2000.*fn4 For the purposes of this Order, the Court will regard the April 11 notice as the effective letter.

In its April 11 notice, the plaintiff informed the defendants that it believed that OCSD and SCWA had violated the NPDES permit "on numerous separate occasions from January 1, 1995 to the date of this notice and that those violations are continuing." Id. at 2. The April 11 notice observed that the violations of the NPDES permit "are evidenced in [OCSD's] self monitoring data" submitted to the Regional Board. Id.; see id. at 4 ("The enumerated violations are based upon review of monitoring data submitted by [OCSD] to the Regional Board."); id. (indicating that the notice also covered "any and all violations which may have occurred but for which data may not have been available or submitted or apparent from the face of the report or data submitted by [OCSD] to the Regional Board."). The April 11 notice listed 326 violations of the provisions of the NPDES permit, but it failed to specifically identify the dates on which any of the alleged violations occurred.

On June 26, 2000, Friends filed the instant action, a citizen suit under the CWA, alleging violations of the defendants' NPDES permit. The complaint incorporates by reference the violations outlined in the March 15 and April 11 letters and information contained in the NPDES permit.


The defendants have moved pursuant to Federal Rule of Civil Procedure 12(b) to dismiss Friends' complaint on three grounds: (1) the Court lacks subject matter jurisdiction because the plaintiff's sixty-day notice was deficient; (2) the Court lacks subject matter jurisdiction because the plaintiff's action is barred due to prior, continuing enforcement actions; and (3) the plaintiff has failed to state a claim for injunctive relief.

The defendants have identified their entire motion as based on Rule 12 (b)(6). However, the notice provision and the civil penalty bar limit this Court's subject matter jurisdiction, so those elements of the defendants' motion are more properly considered as Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction. The defendants' third argument — that the plaintiff's request for injunctive relief fails to state a claim — is appropriately ...

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