Last month in the case Puget Soundkeeper Alliance v. APM Terminals Tacoma, LLC, et al., No. C17-5016 BHS (W.D. Wa. Jan. 31, 2019), the United States District Court for the Western District of Washington dismissed Plaintiff Puget Soundkeeper Alliance’s (“Soundkeeper”) Clean Water Act citizen suit against SSA Terminals, LLC (“SSA”) for failing to satisfy the CWA’s pre-suit notice requirements. The case addressed the novel question of whether the Soundkeeper’s “anticipatory” pre-suit notice letter to SSA, who was served with the letter before it had even taken over operations at the property in question, satisfied the CWA’s 60-day pre-suit notice requirement. The court rejected Soundkeeper’s novel theory and dismissed the CWA claim against SSA.

Soundkeeper had brought a citizen suit under the CWA against APM Terminals Tacoma, LLC (“APM”), a former tenant of the Port of Tacoma, and SSA, the Port’s current tenant. The case concerned alleged violations of an NPDES permit by APM who had operated at the Port for a period of time subject to a lease with the Port’s owner. After APM terminated its lease, SSA entered into an agreement to lease the Port. Sixty days before SSA was scheduled to take control of the premises, however, it received a pre-suit notice letter from Soundkeeper, purporting to put it on notice of alleged ongoing violations of the CWA. The letter stated, in relevant part:

Should SSA commence industrial operations and/or discharge stormwater at the the [Port], the [existing] Permit requires SSA to correct the deficiencies identified below. Soundkeeper hereby provides notice of its intent to sue for these violations of the [existing] Permit.

After Soundkeeper commenced its citizen suit under the CWA, SSA moved to dismiss the claim against it on the ground that it could not be in violation of a permit before it became a tenant on the property.

The court agreed and dismissed Soundkeeper’s claim against SSA. The court explained that the purpose of the CWA’s pre-suit notice requirement is to “ensure that the defendant and/or government enforcement authorities are given some pre-suit notice so that they have an opportunity to address the matter before a lawsuit is filed.” The court held that by “welcom[ing]” SSA to the property “with a copy of a complaint,” Soundkeeper deprived SSA of its opportunity to correct the alleged violations that were identified in its pre-suit notice letter. Therefore, in the court’s view, the pre-suit notice letter was inadequate, necessitating the dismissal of Soundkeeper’s CWA claim.

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