to investigate his problem. 40 C.F.R. § 135.2(a)(1).
With respect to the town, service of notice should have been by registered mail or personal service upon the "head of [the] agency" alleged to be responsible for the violation. 40 C.F.R. § 135.2(a)(2). While it is not immediately apparent who that would be in this case, it was certainly not the deputy town clerk upon whom the Ferraras' notice of claim was personally served. The Bettises' notice of claim was also deficient, since it was addressed to the town clerk, and it was not sent by registered mail.
Mr. Bettis's letter to the town's local health officer also did not meet the service requirements under the Act. It was apparently sent by regular mail, and there is no evidence or allegation that the town's health department was responsible for the alleged violation.
Moreover, most of the defendants in this case were never named in the notices or letters. With the exception of the town, and possibly Galvin, the notices therefore failed to identify "the person or persons responsible for the alleged violation . . ." Id. The notices also did not all meet the requirement that they contain "the full name, address, and telephone number of the person giving notice." Id.
Obviously, not all of these defects are equally serious. In view of Mr. Bettis's pro se status when he wrote to the government agencies seeking help, some of the more technical departures from the Act's requirements could perhaps be forgiven if the notice requirements as a whole had been substantially complied with. The problem is that they were not. Defendants were simply not apprised of any allegation that they had violated CWA. Most of the defendants, in fact, were not apprised of anything at all, since they never received a notice of any kind.
The notices and letters are deficient in content. Although they generally identify the activities complained of, none of the documents "included sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated . . ." 40 C.F.R. § 135.3(a) (emphasis added). The problem is not merely that the notices did not cite the specific statutes in question--which is not actually required by the regulation--but that they gave no indication that any CWA violation was being alleged. The statements in the notices of claim and in Mr. Bettis's letters simply allege negligence or nuisance claims. Even if service had been proper, and even if the proper parties had been served, the notices do not indicate that any CWA violation occurred. Essentially, plaintiffs complained that they had been defrauded into purchasing land that was not suitable for their purposes. The "notices" did not advise that the defendants were introducing pollutants into waters covered by the Act.
These deficiencies cannot be overlooked; the Act's "notice requirement is not a mere technical wrinkle of statutory drafting or formality to be waived by the federal courts." Walls v. Waste Resource Corp., 761 F.2d 311, 316 (6th Cir. 1985).
I conclude, then, that the notice requirements of CWA have not been met. Under these circumstances, "the District Court must dismiss the act, ion as barred by the terms of the statute." Hallstrom v. Tillamook County, 493 U.S. 20, 33, 107 L. Ed. 2d 237, 110 S. Ct. 304 ; see also Greene v. Reilly, 956 F.2d 593, 594 (6th Cir. 1992) (plaintiff who reported alleged violations to various EPA officials but who did not notify EPA of plans to sue did not satisfy requirements for CWA suit against EPA Administrator); Save the Yaak Committee v. Block, 840 F.2d 714, 721 (9th Cir. 1988) (letters to supervisor of national forest and to regional director of U.S. Fish and Wildlife Service, with copies to various state and federal legislators, did not satisfy notice requirement of Endangered Species Act because they did not give notice of violation or of intention to sue, and because they were not sent to correct person, i.e. the Secretary of the Interior or Secretary of Commerce).
2. Ongoing Clean Water Act Violations
Defendants also contend that the complaint fails to state a CWA claim because it is based solely on past violations, whereas a private right of action exists under 33 U.S.C. § 1365 only for ongoing violations. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 98 L. Ed. 2d 306, 108 S. Ct. 376 (1987); see also Atlantic States Legal Found., Inc. v. Eastman Kodak Co., 933 F.2d 124 (2d Cir. 1991). Plaintiffs can show ongoing violations either by proving that violations occurred after the filing of the complaint, or by adducing evidence of a continuing likelihood of recurrence of intermittent or sporadic violations. Chesapeake Bay Found. v. Gwaltney of Smithfield, 890 F.2d 690, 693 (4th Cir. 1989).
The burden of proof with respect to continuing violations may shift at various stages of the case. A good-faith allegation that the defendant is in violation of the Act suffices to confer subject-matter jurisdiction on the district court. Gwaltney, 484 U.S. at 64. The defendant may subsequently challenge that allegation on a motion for summary judgment, however, in which case the burden is on the defendant to show that the undisputed facts establish the absence of ongoing violations. Id. at 65. If the defendant fails to so move, or to carry its burden under Rule 56, then the plaintiff will have the burden of proving an ongoing violation at trial. Id. at 65-66.
In the case at bar, I find that defendants have met their burden of showing that the undisputed facts demonstrate the absence of any activity which could constitute an ongoing violation of CWA. The acts on which the complaint is based either occurred wholly in the past, or simply could never have constituted violations of the Act in the first place.
The actions alleged by plaintiffs may be broken down into several categories. One is Galvin's filling-in of parts of the subdivision with the town's approval. The record shows, however, that that activity ceased years before the complaint in this case was filed. The complaint itself states as much. For example, at paragraph 28, plaintiffs allege that Galvin was allowed to excavate and fill in wetlands "between 1985 through 1987 . . ." At paragraph 44, plaintiffs state that the town negligently permitted Galvin "to fill in or excavate within wetlands from 1985 through 1987."
The complaint alleges that the town granted Galvin a further permit to excavate and fill in the area in July 1988, but it also states that that permit expired in July 1991, and it does not allege that Galvin (who is now deceased) actually did fill in any areas during that time. The affidavits submitted by plaintiffs in opposition to defendants' motions also do not indicate that any further excavation occurred after 1987, nor do they give any basis upon which to believe that such activity is likely to recur in the future.
The other acts alleged by plaintiffs relate to the diversion of a natural stream by the town, and to alleged fraud or deception by defendants in connection with plaintiffs' purchases of their lots. These acts, however, regardless of when they occurred, do not support a CWA claim.
The Clean Waters Act makes unlawful "the discharge of any pollutant by any person . . ." 33 U.S.C. § 1311. "Pollutants" include solid waste and various other specified types of matter "discharged into water." 33 U.S.C. § 1362(6). Water itself, however, is not a pollutant. Id. Simply moving water from one place to another, therefore, does not constitute the discharge of a pollutant under the Act. See, e.g., Missouri ex rel. Ashcroft v. Department of the Army, 672 F.2d 1297 (8th Cir. 1982) (operation of dam does not result in discharge of pollutant)
The complaint and the evidence in the record show at most that the town diverted the course of an existing stream. Although plaintiffs allege that the resulting flooding has damaged their property, there is no indication that any pollutants were discharged either into the stream or from the stream into another body of water. These allegations, then, do not support a CWA claim. Certainly the allegations relating to fraud in connection with the sale of plaintiffs' lots do not state a CWA violation. Plaintiffs' remedy, if any, is not grounded in the Clean Water Act in federal court. Those alleged actions suggest state claims, not federal ones.
3. Pendent Claims
The only remaining issue, then, is whether to retain jurisdiction over plaintiffs' pendent state law claims. I decline to do so. Under 28 U.S.C. § 1367(a), a district court has discretion to decline to exercise jurisdiction over a pendent claim if "the district court has dismissed all claims over which it has original jurisdiction . . ." In practice, state law claims are ordinarily dismissed when all federal claims have been dismissed, particularly when the case is in its early stages. See Town of West Hartford v. Operation Rescue, 915 F.2d 92, 104 (2d Cir. 1990).
Defendants' motions for summary judgment are granted, and the complaint is dismissed in its entirety.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
September 17, 1992