This week a Federal Judge in Montana threw out a NGO's citizen suit against the Yellowstone Mountain Club for what the NGO claimed were unpermitted discharges of nitrogen to a Water of the United States. I wrote about this case when it was filed in December of last year. See Another Maui Case in the Mountains, https://insights.mintz.com/post/102hedh/another-maui-case-in-the-mountains.

The NGO's statutorily required pre-suit notice to the Club complained about alleged discharges to a stream that was hydrologically connected to the Gallatin River, a Water of the United States. The NGO's amended complaint was about overirrigation of the Club's golf course with treated water from the Club's wastewater treatment facility. The NGO apparently thought it could meet the Supreme Court's functional equivalence test established in Hawaii Wildlife Fund v. Maui respecting the nitrogen in the treated water used to irrigate the golf course.

The Judge said a pre-suit notice doesn't have to be "perfect" in its description of an alleged violation of the Clean Water Act but it "has to be specific enough for the defendant to identify and address the problem" and this notice didn't fit that bill.  

The NGO says it will be back with another notice and another amended complaint. Then we'll see whether the Club settles or litigates whether irrigation of a golf course is the functional equivalent of a discharge to a Water of the United States. In the meantime a differently constituted Supreme Court will take another bite at the Clean Water Act apple in the Rapanos case argued last week as the longest running controversy in environmental law continues and Congress continues to sit on the sidelines. 

Judge Morris said the notice that Cottonwood sent to the parties 60 days prior to filing the lawsuit, as required by the CWA, pointed to a stream coming from Yellowstone as the pollution source. In the amended complaint, the environmental group instead cited overirrigation of the golf course. "Courts generally have taken a liberal interpretation of notice under the CWA," the judge wrote, adding that the violation does not have to be described perfectly in the notice, but it has to be specific enough for the defendant to identify and address the problem.

https://www.law360.com/environmental/articles/1537614/mont-clean-water-act-suit-tossed-for-lack-of-notice?nl_pk=1ec9b1a2-6859-4be2-b32c-00e237b94d5e&utm_content=2022-10-07