At issue in this case were alleged Clean Water Act (CWA)[1] violations by the defendants, two dairy farms and their owner, Henry Bosma (collectively Bosma). The district court found that the notice letter the plaintiff, Community Association for Restoration of the Environment (CARE), sent to the defendants was adequate to provide notice of its claims against the defendants even though plaintiff sued on violations not mentioned in the notice letter but included in the complaint. In addition, the district court found that CARE had sufficiently proven that the defendants had continually violated the CWA[2] and that a sufficient likelihood existed that the defendants' violations would recur. The Ninth Circuit reviewed de novo whether the district court's findings concerning the notice letter were adequate, and reviewed the district court's factual findings concerning the allegation of an ongoing violation for clear error. In affirming the district court's findings, the Ninth Circuit held that CARE's notice letter was adequate and that "the record support[ed] the district court's conclusions [regarding the finding of ongoing violations]."[3]

The defendant, Henry Bosma, owned and operated the Bosma and Liberty Dairies. Both dairies were classified as concentrated animal feeding operations (CAFOs).[4] The Bosma dairies had a history of compliance problems. In 1973, Bosma discharged manure to joint drain (JD) 26.6, a drainage ditch that ran along the length of the dairies and ultimately discharged into the Yakima River. In addition, in 1976 the Washington State Department of Ecology (DOE) informed Bosma that a National Pollutant Discharge Elimination System (NPDES) permit was necessary for the dairies. Bosma refused to obtain such a permit despite DOE orders in 1978, 1986, and 1996 to do so. Furthermore, numerous complaints and witnesses confirmed discharges of manure waste to JD 26.6 from the Bosma dairies. In 1997, DOE issued a General Dairy NPDES permit for Bosma Dairy. This permit was modified in 1998 to include the Liberty Dairy.

The two issues in this case were whether CARE's citizen suit notice letter was sufficient to notify the defendants of the claims against them and whether CARE sufficiently proved that continued violations were occurring or would occur concerning the dairy discharges. In 1997, CARE sent its 60-day notice of intent to sue under the citizen suit provision of the CWA.[5] This notice letter mentioned twelve discharge violations. In early 1998, CARE filed its complaint, which included the twelve discharge violations set forth in the notice letter and an additional thirty-two violations included in an appendix to the complaint. CARE's complaint alleged that Bosma operated the Bosma and Liberty Dairies and discharged pollutants without a NPDES permit. In addition, CARE contended that Bosma's discharge of pollutants was in violation of the General Dairy NPDES permit that Bosma did have. Finally, CARE contended that the discharges from the dairies violated Washington water quality standards.

The district court ruled for CARE, finding that the notice letter was sufficient to provide Bosma notice of the potential claims against them including the twelve violations mentioned in the letter and the violations included in the appendix to CARE's complaint. In addition, the court found that it had jurisdiction over the claims in the appendix because the claims were sufficiently similar to the claims in the notice letter. Furthermore, the district court found that the dairies were CAFOs. The court also ordered Bosma to pay a portion of CARE's attorney fees.

Regarding the citizen suit notice requirements of the CWA,[6] the Ninth Circuit considered both the statutory requirements of the CWA[7] and case law in determining that CARE's notice letter was adequate to inform the dairies of the claims against them, including those in the appendix of the complaint. First, the court explained that the CWA requires that "'[n]otice . . . shall be given in such a manner as the Administrator shall prescribe by regulation.'"[8] EPA's regulations require that notice

include sufficient information to permit the recipient to identify the specific standard, limitation, or order alleged to have been violated, the activity alleged to constitute a violation, the person or persons responsible for the alleged violation, the location of the alleged violation, the date or dates of such violation, and the full name, address, and telephone number of the person giving notice.[9]

In its consideration of prior case law, the Ninth Circuit compared this case to the situation in Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc.[10] In Hercules, the Third Circuit explained that "the citizen is not required to list [in the notice letter] every specific aspect or detail of every alleged violation."[11] The Ninth Circuit explained that, similar to the complaint in Hercules that included violations that were not in the notice, the complaint here contained violations not listed in the notice. The court concluded that CARE's notice was sufficient because it complied with EPA's regulations and the violations included in the appendix were similar to those in the notice. The Ninth Circuit reasoned that the violations were sufficiently similar because they discharged the same pollutants, took place within the same timeframe, and occurred at the same dairies.

Concerning the district court's finding that there was an ongoing violation of the CWA, the Ninth Circuit explained that in order "[t]o prevail at trial, a citizen-plaintiff must prove an ongoing violation."[12] In addition, the court added that an ongoing violation can be shown by "'proving violations that continue on or after the date the complaint is filed or . . . by adducing evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations.'"[13] The district found ongoing violations with respect to discharges from Bosma's truck wash, Bosma's application of wastewater, and Bosma's discharges to JD 26.6. The Ninth Circuit affirmed the district court's findings because it found that the district court's conclusions were "supported by evidence."[14]

Regarding the other issues raised on appeal, the Ninth Circuit found that "the district court did not err in finding that JD 26.6"[15] was a navigable water. The court relied on Headwaters, Inc. v. Talent Irrigation District,[16] which held that "irrigation canals are waters of the United States because they are tributaries to other waters of the United States."[17] The court explained that because JD 26.6 drains into the Yakima River it was a water of the United States and therefore a navigable water under CWA jurisdiction. In addition, the Ninth Circuit explained that Bosma's dairies were CAFOs and were therefore classified as point sources under the CWA.[18] The court explained that the CWA prohibits discharge of pollutants from a point source without a NPDES permit or in violation of a permit.[19] The Ninth Circuit rejected Bosma's argument that the entire dairy was not a point source because the fields and ditches where the manure was stored were not part of the CAFO. Furthermore, the Ninth Circuit found that CARE had "standing to enforce violations of the [Dairy Waste Management Plan] and NPDES permits"[20] because citizens have the ability to enforce EPA effluent limitations and state water quality standards.[21] Therefore, CARE could sue to enforce all of the conditions of the NPDES permits.

Although Bosma argued that the attorney fees award should be reduced because violations were unrelated, the Ninth Circuit found that the district court did not err "in failing to impose penalties for violations . . . [CARE failed to prove] and in reducing its award of attorney[] fees."[22] The Ninth Circuit explained that the district court's finding that CARE was not entitled to a full award of attorney fees because CARE did not prevail on all of its claims was not in error. Thus, the Ninth Circuit affirmed the district court.