Notice Response & Litigation Risk
Clean Water Act 60-Day Notice Defense in California
Help responding to a stormwater demand letter or notice of intent to sue.
Stormwater Legal & Compliance Center / Service
A Clean Water Act 60-day notice is a warning that a private party intends to bring a citizen suit. It is not a court judgment, and it is not the same as a Water Board Notice of Violation. It is still a serious legal document that calls for prompt attention.
The Law Office of Jennifer F. Novak represents California businesses and property owners responding to notices involving industrial and construction stormwater. We help clients understand the allegations, preserve the relevant record, and evaluate a response that accounts for both current compliance and potential litigation. Get A Case Evaluation and identify the notice date when contacting the firm.
Received a stormwater demand letter or Clean Water Act notice?
For a typical Clean Water Act citizen suit alleging that a facility is violating a permit, effluent limitation, or other enforceable requirement, the plaintiff generally must give at least 60 days' notice before filing suit. The notice must go to the alleged violator, EPA, and the state in which the alleged violation occurred. The 60-day period is a statutory requirement, not simply a courtesy period. 33 U.S.C. § 1365(b)(1)(A).
The notice also must contain enough information to identify the specific requirement allegedly violated, the activity causing the alleged violation, the responsible person or persons, the location, and the dates of the alleged violations. 40 C.F.R. § 135.3.
Those 60 days give the facility and the government an opportunity to investigate the allegations and address potential violations before litigation begins. They do not guarantee that the dispute will be resolved or that the plaintiff will not file suit when the 60 days expire.
A facility that receives a notice should act promptly. Counsel should review the notice against the applicable permit, sampling and monitoring records, SWPPP, inspection records, and other relevant documents; confirm that the notice satisfies the statutory and regulatory requirements; and calculate the deadline for filing suit. At the same time, the facility should continue required monitoring, reporting, and corrective work while the allegations are evaluated.
Start with the allegations and the evidence
For related context, read our comparison of Water Board notices and Clean Water Act 60-day notices.
The first step is to understand exactly what the notice of intent to sue alleges. We review each alleged violation, the permit provision or Clean Water Act requirement cited, and the dates at issue. Common stormwater allegations involve whether a facility needs permit coverage, whether stormwater controls are adequate, missed or improper sampling, reporting failures, or problems with the Stormwater Pollution Prevention Plan (SWPPP).
Those allegations should then be compared with the permit that was actually in effect during the relevant period and the facility's records. Depending on the claim, that may include the SWPPP and its revisions, inspection records, sampling results, laboratory reports, SMARTS filings, photographs, maintenance records, and communications with the Water Board.
Technical expertise is often an important part of the review. A Qualified Industrial Storm Water Practitioner (QISP), engineer, or other qualified professional may need to evaluate drainage patterns, stormwater controls, sampling methods, or analytical results. We work with the technical team to determine what the evidence shows, what it does not show, and where additional information may be needed.
That distinction matters. A notice may characterize a condition as a permit violation, but the facility's records and the applicable permit language may tell a more complicated story. The legal and technical teams should evaluate the actual evidence before deciding how to respond.
Protect the record while addressing conditions
Preserve the notice and delivery information, permit filings, SWPPP versions, laboratory reports, inspection records, photographs, and relevant communications. Do not delete unfavorable results or backdate records. Correcting a filing should be transparent and should preserve the original information and the basis for the correction.
Continue required inspections, reporting, and protective measures. Legal review should not become a reason to miss a permit deadline or leave an active discharge problem unaddressed. At the same time, a hurried explanatory email can make unsupported admissions or describe technical conditions inaccurately. Coordinate substantive responses with counsel.
Not every communication with a consultant becomes privileged because an attorney is involved. Required records and underlying facts do not become protected merely by copying counsel. We can advise on how to organize the investigation without promising confidentiality that the law does not provide.
Evaluate resolution on practical terms
A demand may involve payments, operational changes, monitoring, reporting, site access, or a proposed consent decree. Each term can affect the business long after the notice period ends. We assess whether proposed obligations match the facility, whether they can be implemented, and how the agreement would be enforced.
If litigation follows, the defense may address the merits, notice requirements, standing, the nature of alleged ongoing violations, or other issues supported by the facts. No single defense applies to every notice. Our citizen suit defense page describes the broader litigation process.
Frequently asked questions
Who can help with a letter from Our Clean Oceans?
If a letter from Our Clean Oceans alleges stormwater or Clean Water Act violations at your facility, preserve the full letter and attachments and arrange a prompt review of its allegations and deadlines. Do not assume that every demand letter is a legally sufficient 60-day notice or that every allegation is correct.
The Law Office of Jennifer F. Novak represents California businesses and property owners responding to stormwater notices. Start with our 60-day notice response guide, then Get A Case Evaluation for the particular matter.
Do we have to admit the allegations before starting corrective work?
No. A facility can take steps to address a stormwater problem without necessarily agreeing that every allegation in a notice of intent to sue is correct.
Corrective work, however, should be planned carefully. Changes to stormwater controls, sampling, reporting, or the SWPPP can affect the legal and factual issues in a dispute. Counsel can help separate what the facility knows to be a problem, what it is doing to improve compliance, and what allegations it disputes.
Will fixing the problem within 60 days prevent a Clean Water Act lawsuit?
Not necessarily. Correcting an ongoing stormwater problem may affect what a plaintiff can pursue, but the 60-day notice period is not a guaranteed opportunity to fix the problem and avoid a lawsuit.
The effect of corrective action depends on the claims, the timing of the alleged violations, and what the facility's records show. Before making significant changes, businesses should consider both the compliance benefits and the potential legal consequences.
What should we provide for an initial review?
Start by sending the complete notice of intent to sue, including any attachments, along with the delivery information showing when and how it was received. Also provide the facility address, WDID number or other permit information, the current Industrial General Permit coverage documents, and any recent Water Board correspondence or inspection reports.
If readily available, include the current SWPPP, recent sampling and inspection records, SMARTS filings, and any prior notices or enforcement documents. Counsel can identify additional technical or historical records after reviewing the initial materials.
Do not alter, delete, or discard relevant records after receiving a notice. And before forwarding internal emails, attorney communications, or other potentially sensitive materials, confirm how those materials should be collected and provided so that applicable privileges and confidentiality protections are not compromised.
For a practical timeline, read Received a Clean Water Act 60-Day Notice? What Happens Next. To discuss representation, Get A Case Evaluation.
This information is educational and is not legal advice. Contacting the firm does not establish representation or extend a deadline.
Received a 60-Day Notice?
Identify the facility and the notice date when contacting the firm. An inquiry does not extend the notice period or any other deadline.