The opinion of the court was delivered by: Wolfson, District Judge:
Plaintiff Sandy Hook Watermans Alliance, Inc. ("Sandy Hook" or "Plaintiff") brings this citizen suit pursuant to the Clean Water Act ("CWA"), 33 U.S.C. § 1365, alleging that Defendant New Jersey Sports and Exposition Authority ("NJSEA" or "Defendant"), through its Concentrated Animal Feeding Operation ("CAFO"), has been and continues to discharge waste into, inter alia, the Shrewsbury and Navesink Rivers located in Monmouth County, New Jersey. In the instant matter, Defendant moves to dismiss the Complaint on a variety of legal bases, including the lack of subject matter jurisdiction under the CWA. For the reasons that follow, the Court finds that it lacks jurisdiction, and therefore, Defendant's motion is granted. Plaintiff's Complaint is dismissed without prejudice.
For the purposes of this motion, the Court only recounts relevant
facts from the Complaint and takes them as true.*fn1
Plaintiff is a non-profit association of shell fishermen who harvest
fish and operate in, inter alia, the Navesink and Shrewsbury Rivers.
Compl., ¶ 6. The NJSEA is a state entity which owns and operates a
horse racing track known as Monmouth Park Racetrack.*fn2
The NJSEA operates a CAFO on a portion of its horse racing
facility. Compl., ¶ 8. The New Jersey Department of Environmental
Protection ("NJDEP") issued a permit to the NJSEA, which prohibited
the NJSEA from discharging any waste after June 1, 2006, with the
exception of discharges resulting from a catastrophic storm event.
This permit was renewed on June 12, 2008. See Compl., ¶ 10.
In 2007, the NSJEA was charged by the NJDEP with violating the permit,
see Compl., ¶¶ 2-3, 7-8, by discharging prohibited wastewater from the
CAFO-area of Monmouth Park Racetrack into Branchport Creek.*fn3
See ACO dated May 10, 2010, ¶ 13. The NJSEA contested the
violation and requested an administrative hearing. See Administrative
Order dated October 10, 2007. In 2008, the NJDEP commenced litigation against the NJSEA in
New Jersey Superior Court. See State Compl. dated May 15, 2008.
On August 27, 2008, Plaintiff filed its Complaint in this district in the matter Sandy Hook Watermans Alliance, Inc. v. New Jersey Sports and Exposition Authority, Civ. Action No. 08-4321 (MLC). However, Plaintiff requested that action be dismissed due to improper notice. See Dismissal Order dated June 23, 2009.
On May 10, 2010, the NJDEP executed an Administrative Consent Order ("ACO"), wherein the NJSEA agreed to pay a penalty of $131,250 and, among other projects, construct a storm water collection and retention system to remediate the environmental pollution. See ACO dated May 10, 2010. As a result, a Judicial Consent Order was signed by the state Superior Court Judge and the state court action was dismissed. See Order dated May 11, 2010. Prior to the entry of the ACO, public notices were sent out to all interested parties, and public meetings were held regarding the projects included in the ACO. See Notice of Public Hearing dated May 11, 2009. According to the NJSEA, no entity, including Plaintiff, intervened or otherwise raised any objections in that matter, and consequently, the ACO became effective and enforceable on May 10, 2010.
According to Plaintiff, pursuant to the CWA, it first sent a statutory notice of suit to all parties, including Defendant, on March 1, 2010, and a supplemental notice was sent on January 7, 2011. Thereafter, Sandy Hook filed the Complaint on February 10, 2011. Essentially, Sandy Hook alleges that the NJSEA continues to pollute despite the issuance of the ACO and that the NJDEP has failed to adequately monitor and enforce the ACO. Indeed, Plaintiff expressly states that it "cannot emphasize enough that the [Complaint] is to bring defendant into compliance in the future." Compl., ¶ 10 (emphasis in original). For this, Sandy Hook asks this Court to enjoin all activities of the NJSEA "until if and when [the NJSEA] demonstrates that the waste control plan proposed by defendant is completed and defendant demonstrates that the system will bring the defendant into compliance with its permit." Compl., p. 10. In addition, Sandy Hook requests civil penalties, punitive damages and attorneys' fees for the NJSEA's continued violations of the CWA. Id.
As a brief background of the CWA, this statute gives primary enforcement authority to the EPA and state enforcement agencies, such as the NJDEP. EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 204 (1976). However, Congress granted limited authority to private citizens to bring suit in federal court under certain enumerated circumstances to enforce the CWA. Section 1365 states in relevant parts:
(a) Authorization; jurisdiction Except as provided in subsection (b) of this section and section 309(g)(6) [33 USCS § 1319(g)(6)], any citizen may commence a civil action on his own behalf-
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this Act [33 USCS §§ 1251 et seq.] or (B) an order ...