If you operate an industrial facility in California, there is a letter you never want to receive but increasingly might. It is called a “60-Day Notice of Violation and Intent to File Suit,” and it is the opening move in a citizen enforcement action under Section 505 of the Clean Water Act.
What It Is
A 60-Day Notice (sometimes called a Notice of Intent or “NOI”) is a formal letter from an environmental organization or individual notifying your company that it has violated the Clean Water Act at, and that the sender intends to file a federal lawsuit against you in 60 days. The CWA requires this pre-suit notice as a jurisdictional prerequisite: no notice, no lawsuit.
60-Day Notice letters typically follows a standard structure. It identifies the plaintiff organization, describes your facility and its permit status, catalogs the alleged violations—typically running 15 to 30 pages of detailed allegations—and concludes with a demand for civil penalties, injunctive relief, and attorney’s fees. Copies are simultaneously sent to the U.S. EPA Administrator, the EPA Regional Administrator, and the California State Water Resources Control Board, as required by federal regulation.
What It Means
A 60-Day Notice means the clock is running. Once 60 days pass, the plaintiff can file suit in federal district court seeking civil penalties of up to $68,445 per day, per violation—a number that is adjusted for inflation and continues to climb. They will also seek injunctive relief requiring you to overhaul your stormwater compliance program—often including demands to deploy expensive advanced stormwater treatment systems—and they will seek to recover their attorney’s fees and expert costs on top of everything else.
The allegations in these letters are not random. Plaintiffs build their cases primarily from your own publicly available data in California’s Stormwater Multiple Applications and Report Tracking System (“SMARTS”) and the California Integrated Water Quality System Project (“CIWQS”). They look for missed sampling events, Numeric Action Level exceedances, deficient Storm Water Pollution Prevent Plans (SWPPPs), incomplete site maps, and gaps in annual reporting, and they often document every deficiency with specificity. The most common allegations include failure to develop an adequate SWPPP, failure to conduct required visual observations and stormwater sampling, failure to implement minimum best management practices (BMPs), and unauthorized non-stormwater discharges.
What to Do
Do not ignore it. Do not try to handle it internally without legal counsel. And do not assume it will go away.
The 60-day window is your most important strategic opportunity—and it is not just a waiting period. There are concrete steps a facility can take during those 60 days to materially reduce its liability exposure, narrow the scope of alleged violations, and strengthen its negotiating position before a complaint is ever filed. But those steps must be taken quickly, carefully, and under the guidance of experienced counsel to ensure they are legally effective and conducted under confidential investigation. What you do, and do not do, during this period may shape the cost, duration, and outcome of everything that follows.
We have reviewed hundreds of these notices and defended facilities across California’s most-targeted industries. If you have received a 60-Day Notice, or want to make sure you never do, contact the Allen Matkins environmental team.
California Stormwater Defense is published by Allen Matkins Leck Gamble Mallory & Natsis LLP. Nothing in this post constitutes legal advice. Contact us for a consultation specific to your facility