ELR Citation: ELR 21093
No(s). 92-CV-6106 (W.D.N.Y. Sep 17, 1992)

The court holds that landowner's Federal Water Pollution Control Act (FWPCA) citizen suit must be dismissed because they failed to comply with the notice requirements of §505(b). As such, the court declines to retain jurisdiction over other pendant state-law claims. Citizens brought suit against the town of Ontario, New York, and the developers of their subdivision alleging the defendants violated the FWPCA by diverting a stream which caused flooding on their properties, and alleging that the developers filled wetlands without a permit. The court holds that letters sent to various state and federal government agencies asking for help do not constitute adequate notice to the alleged violators, because the defendants were not appraised of allegations that they had violated the FWPCA. The court holds that the letters sent by the plaintiffs were deficient in content because they gave no indication that an FWPCA violation was being alleged. The court also holds that no FWPCA claims were properly made, because the complaint was based solely on past violations and the Act requires claims to be based on ongoing violations. Moreover, water is not a pollutant under the FWPCA, and moving water from one place to another does not constitute a discharge of a pollutant. And because the wetlands filled were less than one acre, their filling may be permitted by obtaining an after-the-fact permit without violating the Act. The alleged violations suggest state claims over which a federal court lacks jurisdiction.

Counsel for Plaintiffs
Roy W. King
Roy W. King Law Office
19 W. Main St., Ste. 650, Rochester NY 14614
(716) 325-3260

Counsel for Defendants
David Rothenberg
Geiger & Rothenberg
800 Times Sq. Bldg., 45 Exchange St., Rochester NY 14614
(716) 232-1946