First Circuit Sets Low Bar For Clean Water Act Pre-Suit Notice, Making It Easier For Citizen Enforcement Actions To Move Forward


On March 13th, 2013, the United States Court of Appeals for the First Circuit held that pre-suit notice for a citizen enforcement action under the Clean Water Act (“CWA”) does not need to spell out every violation in detail.  This holding in Paolino v. JF Realty, case number 12-2031, makes it easier for citizen enforcement actions to move forward, and may lead to increased enforcement actions by citizen groups in the future.

While state and federal authorities are authorized to enforce the CWA through suit, citizens are also given a more limited enforcement role.  A citizen may bring a civil enforcement action in federal district court against an NPDES permit holder for failure to comply with that permit’s conditions.  At least sixty days before bringing suit, a citizen plaintiff must give notice of the alleged violations to the state in which the violations occurred, the EPA administrator, and the alleged defendant violators.

In the Paolino case, two citizen plaintiffs filed suit against the defendants in the U.S. District Court for the District of Rhode Island, alleging that the defendants were in continuing violation of the CWA because their pollutant discharge permit was not in the name of the property’s current owner and because the property was continually discharging pollutants into United States waters. 

The District Court dismissed the suit, holding that the pre-suit notice had failed to describe the alleged violations with enough specificity.  Confronting an issue of first impression within the First Circuit, the Court of Appeals reversed, holding that “the appropriate measure … is whether the notice’s contents place the defendant in a position to remedy the violations alleged.”  Under this standard, the First Circuit determined that the plaintiffs’ notice was sufficient because it allowed the defendants to identify the standards of the CWA that they were allegedly violating, and to remedy the situation if the allegations were accurate.  This broad reading of the notice requirement means that pre-suit notice does not need to allege violations in detail, so long as a defendant can determine at least generally what the alleged violations are and how they can be remedied.

Going forward, it will be even more important for facility and property owners in Maine, New Hampshire, Massachusetts and Rhode Island to be aware of the possibility of a citizen suit for all types of wastewater and stormwater discharges as lower procedural hurdles make these cases easier to bring.  If you have further questions or concerns about the implications of this holding, please do not hesitate to contact Brian Rayback ( or 207-791-1188) or John Formella ( or 603-373-2010).  In addition, if you find these alerts helpful, and would like to receive more frequent updates, we also invite you to follow the Pierce Atwood Environmental Group on twitter @PierceAtwoodENV.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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