PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_______________________

No. 21-2060

_______________________

SHARK RIVER CLEANUP COALITION,

 Appellant

v.

TOWNSHIP OF WALL; ESTATE OF FRED MCDOWELL, 

JR.

_______________________

On Appeal from the United States District Court

for the District of New Jersey

District Court No. 3-17-cv-08049

District Judge: Honorable Brian R. Martinotti

__________________________

Argued June 16, 2022

Before: HARDIMAN, SMITH, and FISHER, Circuit Judges

(Filed: August 24, 2022)
2

John P. Brennan, Jr. [ARGUED]

Suite 1

227 East Bergen Place

Red Bank, NJ 07701

Counsel for Appellant

M. James Maley, Jr. 

Erin E. Simone [ARGUED]

MALEY GIVENS

1150 Haddon Avenue

Suite 210

Collingswood, NJ 08108

Counsel for Appellee Township of Wall

John J. Novak [ARGUED]

3 Franklin Avenue

Toms River, NJ 08753

Counsel for Appellee Estate of Fred McDowell, Jr.

__________________________

OPINION OF THE COURT

__________________________

SMITH, Circuit Judge.

The Clean Water Act empowers citizens to sue for 

violations of the Act, 33 U.S.C. § 1365(a)(1), subject to one 

key condition. Before going to federal court, a citizen-suit 

plaintiff must “give[] notice of the alleged violation” to the
3

“alleged violator,” and also to the U.S. Environmental 

Protection Agency and to the state in which the alleged 

violation occurs. 33 U.S.C. § 1365(b)(1)(A). Once the 

plaintiff has provided the required notice, it must wait sixty 

days before suing. Id.; Hallstrom v. Tillamook Cnty., 493 U.S. 

20, 23 n.1, 26 (1989) (in holding that the Resource 

Conservation and Recovery Act’s notice requirement “is a 

mandatory, not optional, condition precedent for suit,”

referencing its Clean Water Act analogue at 33 U.S.C. 

§ 1365(b)).

The sixty-day period following notice “gives the alleged 

violator ‘an opportunity to bring itself into complete 

compliance with the Act and thus . . . render unnecessary a 

citizen suit.’” Pub. Int. Rsch. Grp. of N.J., Inc. v. Hercules, 

Inc., 50 F.3d 1239, 1246 (3d Cir. 1995) (quoting Hallstrom, 

493 U.S. at 29). But if the alleged violation continues

notwithstanding the notice, the statutory regime authorizes a 

“citizen suit [as] the vehicle to achieve compliance.” Id. 

The parties to the citizen suit before us do not dispute 

whether Plaintiff Shark River Cleanup Coalition, a non-profit 

citizen’s group, delivered a notice letter alleging a Clean Water 

Act violation. Rather, they contest whether the contents of the 

Cleanup Coalition’s Notice satisfy the more granular 
4

requirements set forth by EPA regulation.1 Under the 

applicable regulation, 

Notice regarding an alleged violation of an effluent 

standard or limitation or of an order with respect thereto, 

shall 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.

40 C.F.R. § 135.3(a) (emphasis added). 

In Hercules, we read the plain text of the regulation2 as 

requiring notices to provide “enough information to enable the 

recipient”—here, Defendants Township of Wall and the Estate 

of Fred McDowell, Jr.—to identify “the components of an

alleged violation.” 50 F.3d at 1248 (“We read the regulation 

to require just what it says[.]”). Thus, although we observed in 

Hercules that it would have been “helpful” to the defendant if 

the plaintiff’s notice had provided more “detailed information”

1 See 33 U.S.C. § 1365(b) (“Notice under this subsection shall 

be given in such manner as the Administrator [of the EPA] 

shall prescribe by regulation.”). 

2 The text of 40 C.F.R. § 135.3(a) is unchanged since we 

interpreted it in Hercules. 
5

regarding the alleged violation, we held that “such specificity 

[wa]s not mandated by the regulation.” Id. at 1247. Following 

the principles we articulated, several of our sister courts of 

appeals have also concluded that citizen-suit plaintiffs need not 

“list every specific aspect or detail of every alleged violation.” 

Paolino v. JF Realty, LLC, 710 F.3d 31, 38 (1st Cir. 2013) 

(quoting Hercules, 50 F.3d at 1248); Friends of the Earth, Inc.

v. Gaston Copper Recycling Corp., 629 F.3d 387, 400 (4th Cir. 

2011) (quoting same language); Waterkeepers N. Cal. v. AG 

Indus. Mfg., Inc., 375 F.3d 913, 917 (9th Cir. 2004) (same).

In this case, the District Court erred under Hercules by 

requiring the Cleanup Coalition to provide more than what was 

“enough” information for Defendants to identify the location 

of the alleged violation. 50 F.3d at 1248. Yet the Cleanup 

Coalition’s Notice was deficient on another ground: It did not 

“include sufficient information to permit [Defendants] to 

identify the specific standard, limitation, or order alleged to 

have been violated[.]” 40 C.F.R. § 135(a). Accordingly, we

will affirm the District Court’s dismissal of the Cleanup 

Coalition’s citizen suit.

3

 

3 The District Court had jurisdiction over this citizen suit 

pursuant to 28 U.S.C. § 1331 and 33 U.S.C. § 1365(a). We 

have jurisdiction over the Cleanup Coalition’s timely appeal 

under 28 U.S.C. § 1291.
6

I

A.

In 1991, Wall Township recorded with the Monmouth 

County Clerk’s Office an Amended Declaration of Taking, 

establishing by eminent domain a “permanent” subterranean 

easement on the property of the Estate that was to be used for 

an underground municipal sewer line system. JA-V1 00426. 

The Declaration described “a strip of land 25.00 feet in width”

and “containing 3.5 acres,” JA-V1 00436, delineated by metes 

and bounds, and spanning a total distance that we will assume 

adds up to three miles.

4 The Estate’s nearly 500-acre property

4 The Township asserted in its summary judgment filings that 

the easement is three miles long, a distance more favorable to 

its case than its candid admission on appeal that it is in fact

6,000 feet long. And the Cleanup Coalition did not object to 

the Township’s earlier assertion before the District Court.

Because the District Court relied on the Township’s 

representation, Shark River Cleanup Coal. v. Twp. of Wall, 

No. 17-8049, 2021 WL 1712310, at *7 (D.N.J. Apr. 30, 2021)

(“the undisputed contents of the Notice set forth general 

violations of the [Clean Water Act] at unspecified locations 

throughout an over three-mile easement” (emphasis added)

(citing the Township’s summary judgment filings)), for 

purposes of deciding this appeal we assume the truth of the 

Township’s representation during summary judgment 

proceedings that the easement is three miles long. 
7

from which the easement was taken is largely undeveloped and 

“thickly wooded.” D. Ct. Dkt. 41-1, at 3 ¶¶ 20–22.

Two decades later, in 2015, a hiker5 who was traversing 

the Estate’s property discovered that portions of the 

underground sewer line no longer remained underground. He 

passed along his discovery to the president of Shark River 

Cleanup Coalition, James McNamara, and the two of them 

together then visited the site of the protruding sewer line. 

After learning of the exposed line from McNamara, the 

Cleanup Coalition decided to investigate. In April 2016, its 

counsel submitted a public records request to the Township,

requesting: “All documents creating [the] sanitary sewer 

easement on [the Estate’s] property, evidencing [the] 

installation of [the] sanitary sewer on [the] property, 

evidencing maintenance of [the] sanitary sewer on [the] 

property for the period 2000 to present.” JA-V1 00440. After 

a back-and-forth with the Township’s Director of Engineering 

and Planning, who informed the Coalition’s counsel that the

Township did not possess the requested records, the Cleanup 

Coalition obtained some of the sought-after records from

Monmouth County.

While considering whether to file a citizen suit, the 

Cleanup Coalition dispatched McNamara to reexamine the 

sewer line condition. When he attempted, by himself, to return 

to the site in question in July 2016, McNamara “got lost” at 

first, but he “kept on plugging along” and eventually located 

5 The hiker was never identified by name in the litigation.
8

the exposed sewer line. JA-V1 00159–00160. McNamara then

photographed the sewer line condition on his cell phone and 

presented the photos to the Cleanup Coalition’s membership. 

Subsequently, in October 2016, the Cleanup Coalition 

directed its counsel to prepare and serve the Township and the 

Estate with a Notice of Intent to Commence Suit under the 

Clean Water Act’s citizen-suit provision. 

B.

The Cleanup Coalition’s Notice alleged that, due to the

failure of the Township and the Estate to take preventative 

measures, “historic and continuing” erosion of the ground 

surrounding the buried sewer line released “large areas of 

sand”6 into the nearby Shark River Brook, a tributary of the 

Shark River. JA-V1 00020, 00024. According to the Notice,

the erosion resulted in “[s]everal sections” of the buried line 

becoming exposed such that they were “‘flying’ in the air 

without support.” JA-V1 00020. 

The Notice further contended that the release of the fill 

surrounding the sewer line into the Shark River Brook violated 

the Clean Water Act, although it did not specify the section of 

6 The Clean Water Act defines “pollutant” to include “solid 

waste” and “sand.” 33 U.S.C. § 1362(6). The Cleanup 

Coalition’s expert would later opine that the erosion appeared 

to release “a solid waste-like material, maybe an ID27, 

consisting of brick, plastic,” and possibly “asphalt,” into the 

Shark River Brook. JA-V2 00620.
9

the Act that had allegedly been violated. By contrast, the 

Notice made a full page of references to various New Jersey 

statutes and to several provisions of the New Jersey 

Administrative Code, without explaining how those state 

statutes and regulations related to its citizen suit. It was not 

until later in the litigation that the Cleanup Coalition explained 

that it was claiming that the release was an unauthorized 

discharge of pollutants in violation of 33 U.S.C. § 1311(a)—

what the Township has referred to as a “general violation” of 

the Clean Water Act. Township’s Br. at 22.

The Notice also failed to provide the exact, or even

approximate, location of the sewer line’s exposed condition. 

But it did point out that, according to Monmouth County’s 

deed records, the sewer line easement recorded by the 

Township was 25-feet wide, “run[ning] from Campus Parkway 

in an easterly7 direction across the [Estate’s] Property to the 

Garden State Parkway over 3.15 miles (16,341 feet) distant.”

JA-V1 00019. 

7 Although the record before us is unclear, it appears that in one 

unsuccessful attempt to locate the site of the alleged violation, 

the New Jersey Department of Environmental Protection 

(“NJDEP”) inspector and a representative of the Estate who 

searched for the site began their attempt moving in a westerly

direction. JA-V2 00686 (deposition testimony of the NJDEP 

inspector, who explained that the mine operator contracting 

with the Estate, who accompanied him during one attempt, told 

him to head “west” to reach the sewer line pump station). 
10

And, in a section describing the “dangerous condition” 

created by erosion of the fill surrounding the sewer line, the 

Notice promised that photos of the condition would be 

“available upon request.” JA-V1 00020. Much to the 

Township’s and the Estate’s consternation, the Cleanup 

Coalition’s counsel did not respond to either Defendant’s 

requests for the photos. Neither did counsel offer a justifiable 

excuse for failing to do so. It was not until the parties’ initial 

litigation conference, which took place several months after the

Coalition had filed suit in federal court, that the Cleanup 

Coalition provided the photos.

Proceeding without the benefit of the photos, 

representatives of the Township and the Estate tried and failed 

on several occasions to locate the site in question, although the 

Cleanup Coalition disputes the thoroughness of their searches. 

An inspector from the NJDEP, who was responsible for 

investigating the sewer line condition described in the Cleanup 

Coalition’s notice, was also unable to find the site during his 

first few attempts.8

 

Yet the NJDEP inspector testified that he started his

unsuccessful searches from the inaccessibly wooded side of the 

Estate’s property, which led into impassible sections of the 

path along the sewer line easement. Had he started his earlier

searches from the other end of the property, as he did when he 

eventually located the site of the exposed sewer line, it appears 

8 The inspector indicated in his deposition that his priority 

during one attempt was inspecting an active mine site on 

another part of the Estate’s property. 
11

that locating the site would have been much easier. According 

to the inspector, had the Township’s and Estate’s 

representatives begun their searches from the road on the other 

end of the easement, and “[h]ad they walked the easement” 

from there, “they certainly would have seen the exposed pipe.” 

JA-V2 00716–17. Although the photos he eventually received 

gave him a “much narrower search area,” it was learning the 

right starting point for his walk along the easement—starting 

from the “east side of the haul road” instead of from the pump 

station—that allowed him to locate the site of the sewer line 

condition. JA-V2 00710–11.

When the Township and the Estate were unable to 

locate the sewer line condition described in the Notice, and 

after their requests for the photos of the site were met with no 

response, neither Defendant took further action. The Estate’s 

executor “figured [the sewer line condition] couldn’t be too 

bad” if the Cleanup Coalition was not going to send him “a 

picture.” JA-V2 00825. The Township’s engineer concluded 

“there was nothing . . . further to do” if the Cleanup Coalition 

would not respond to his request for the photos. JA-V2 00788.

C.

In October 2017, a year after serving its pre-suit Notice, 

the Cleanup Coalition sued the Township and the Estate in 

federal court, alleging a Clean Water Act violation relating to 

the same sewer line condition it complained of in its Notice to 

Defendants. The Complaint was materially the same in content 

as the Notice, down to its general invocation of the entire Clean 
12

Water Act in lieu of a reference to any specific provision of the 

Act. 

As was the case with the Cleanup Coalition’s Notice, 

the Complaint failed to provide the specific or approximate

location of the alleged violation. Yet even though the 

Complaint’s content was essentially the same as the Notice’s, 

and even though the Complaint failed to include the alluded-to 

photos of the sewer line condition, the Township was soon able 

to locate the site in question within weeks of being sued. 

On November 1, 2017, after the Cleanup Coalition had

served its Complaint on Defendants earlier that day, Township 

employees confirmed with one another that the Township had

never received the photos of the sewer line condition it had 

requested from the Cleanup Coalition. On November 17, 

2017, apparently without the benefit of the Cleanup Coalition’s 

photos, two other Township employees “found the site.” 

D. Ct. Dkt. 41-1 at 32 ¶¶ 144–45.

D.

During the litigation, the parties took substantial 

discovery not only on the merits of the Cleanup Coalition’s 

claim but also on the sufficiency of its Notice. On Noticerelated matters, the parties deposed the NJDEP inspector, who 

by then had retired from the NJDEP and joined the Cleanup 

Coalition’s board of trustees; representatives from the 

Township and the Estate; and the parties’ expert witnesses. 

Concurrently, the parties developed and implemented a 

plan to remediate the complained-of section of the sewer line 
13

that both sides agreed was suspended in the air. In 2019, the 

Township completed its work under the plan. The Cleanup 

Coalition does not contest that the Township fixed the portion 

of the sewer line that protruded from the ground. Its only

remaining dispute with Defendants is with respect to their 

alleged failure to “take any action to address the contaminated 

soils discharged into the Shark River” or to “prepare or 

circulate a proposal for future inspection and maintenance of 

the remediation site.” D. Ct. Dkt. 41-1 at 37–38, ¶¶ 175-76.

In the last quarter of 2020, the parties briefed crossmotions for summary judgment on both notice and merits 

issues. In granting summary judgment for Defendants, the 

District Court reached only the adequacy of the Cleanup 

Coalition’s Notice. It determined that the Cleanup Coalition’s 

Notice was defective in failing to identify the complained-of

site’s location along the “over three-mile easement.” Shark 

River Cleanup Coal., 2021 WL 1712310, at *7. Because the 

Cleanup Coalition did not provide a more specific location, and 

because it did not respond to Defendants’ requests for 

additional information, the District Court concluded that the 

Cleanup Coalition’s Notice offended the policy of the Clean 

Water Act’s notice provision by failing to provide Defendants 

with “enough information to bring itself into compliance with 

the Act.” Id. at *6–7.9

 

9 In addition to deeming the Notice insufficient for failure to 

adequately describe location, the District Court concluded that 

the Notice’s failure to specify the dates of the alleged violation 

also justified dismissal for failure to provide sufficient notice. 
14

Accordingly, the District Court dismissed the Cleanup 

Coalition’s Clean Water Act claim for failure to provide 

sufficient notice. This timely appeal followed.

II

Sufficiency of a citizen-suit notice is a legal question: 

one that we have characterized as whether a “jurisdictional 

prerequisite” has been satisfied.10 Hercules, 50 F.3d at 1251. 

Shark River Cleanup Coal., 2021 WL 1712310, at *7 n.15. 

Neither Defendant raises the Notice’s description of the dates 

of the alleged violations as a basis for affirmance. 

Accordingly, we do not reach the issue. 

10 The statutory notice requirement in 33 U.S.C. § 1365(b) is 

not explicitly framed in terms of jurisdiction, and in fact it 

follows 33 U.S.C. § 1365(a), which is the subpart of the statute 

that is labeled “jurisdiction.” Further, the requirements with 

respect to the notice’s contents are set forth by EPA regulation, 

not by an act of Congress. See 40 C.F.R. § 135.3(a).

Although we recognize the tension between our previous 

characterization of the notice requirement as jurisdictional and 

subsequent instruction from the Supreme Court regarding the 

proper application of the “jurisdictional brand,” Henderson ex 

rel. v. Shinseki, 562 U.S. 428, 435 (2011) (citation omitted), 

we note that it would make no difference in this appeal whether 

notice is better characterized as quasi-jurisdictional, e.g., 

Lockett v. EPA, 319 F.3d 678, 682 (5th Cir. 2003) 

(characterizing the notice requirement as “more procedural 
15

So we apply de novo review to the District Court’s dismissal11

of the Cleanup Coalition’s action for failure to provide 

than jurisdictional”). Adequacy of notice is a legal question 

even if it is not strictly jurisdictional. E.g., Gaston Copper 

Recycling, 629 F.3d at 400 (describing sufficiency of notice as 

a “legal defense”). 

The question of whether notice is jurisdictional would matter 

only if Defendants were invoking jurisdictional arguments’ 

unique immunity from attack on grounds of forfeiture or 

waiver. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) 

(“[S]ubject-matter jurisdiction, because it involves a court’s 

power to hear a case, can never be forfeited or waived.” 

(citation and quotation marks omitted)). Here, however, there 

is no question that Defendants have preserved their notice 

arguments.

11 We construe the District Court’s dismissal of the Cleanup 

Coalition’s action, for failure to provide sufficient notice, as 

one pursuant to a Rule 12 motion to dismiss, although 

Defendants pursued their notice arguments in motions for 

summary judgment. See IFC Interconsult, AG v. Safeguard 

Int’l Partners, LLC, 438 F.3d 298, 308 (3d Cir. 2006) 

(construing a party’s filing by its “substance,” not its “form”). 

A sufficiency-of-notice defense should be pursued instead via

a Rule 12(b)(1) motion to dismiss because we have deemed 

notice jurisdictional. Even if notice is characterized as quasijurisdictional, a Rule 12(b)(6) motion would be the better 

vehicle for raising a sufficiency-of-notice defense because 
16

adequate notice. See, e.g., ONRC Action v. Colum. Plywood, 

Inc., 286 F.3d 1137, 1142 (9th Cir. 2002) (reviewing “the 

citizen suit notice de novo” for compliance with 40 C.F.R. 

§ 135.3).

Because the parties have taken discovery on the 

sufficiency of the Cleanup Coalition’s Notice—sufficiency

being a “functional, fact-dependent, and case-specific inquiry,” 

Paolino, 710 F.3d at 34, notwithstanding its legal nature—we 

review Defendants’ attack on the Cleanup Coalition’s Notice 

as a “factual challenge.” Hartig Drug Co. v. Senju Pharm. Co., 

836 F.3d 261, 268 (3d Cir. 2016) (discussing standard for 

factual challenges to subject matter jurisdiction). In doing so, 

we as an appellate panel “weigh the evidence” with respect to

the Notice’s sufficiency. Id.; see also Paolino, 710 F.3d at 36.

III

With respect to the Notice’s description of the location 

of the alleged violation,12 we apply Hercules and conclude that 

the Notice “include[d] sufficient information to permit 

notice is “‘a mandatory, not optional, condition precedent for 

suit[.]’” Hercules, 50 F.3d at 1249 (quoting Hallstrom, 493 

U.S. at 26) (emphasis added). 

12 In its answering brief, the Estate raises only insufficiency of 

the Notice with respect to location as a basis for affirmance, 

whereas the adequacy of the Notice’s description of the 

location is one of several grounds for affirmance presented by 

the Township.
17

[Defendants] to identify . . . the location of the alleged 

violation[.]” 50 F.3d at 1247 (quoting 40 C.F.R. § 135.3(a)). 

Because the alleged violation was located along the 

Township’s underground sewer line on an easement taken

through eminent domain from the Estate, we hold Defendants 

to what should have been their “superior ability to ascertain the 

location[] of [the violation] that might be at issue.”13

Ecological Rts. Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 

519 (9th Cir. 2013). Although we note that the parties have not 

settled the Defendants’ respective obligations to inspect the fill 

surrounding the sewer line, it seems likely under New Jersey 

law that the Township would have “an implied right to do what 

is reasonably necessary” to maintain the line, Twp. of 

Piscataway v. Duke Energy, 488 F.3d 203, 211 (3d Cir. 2007) 

(quoting Tide-Water Pipe Co. v. Blair Holding Co., 202 A.2d 

405, 412 (N.J. 1964)), and that the Township would have the 

responsibility for its maintenance in light of its acquisition of 

the easement by eminent domain.14 Accordingly, the Cleanup 

13 Like our concurring colleague, we credit the Township and 

Estate with having searched in good faith for the site of the 

alleged violation. See Concurrence, infra. We merely hold 

that, under the circumstances of this case, they should have 

been able to locate the site in question because it was along the 

Township’s own easement over the Estate’s property. It makes 

no difference that the Cleanup Coalition had better access to 

the Township’s easement records than did the Township itself.

14 See Alexander v. Nat’l Fire Ins. of Hartford, 454 F.3d 214, 

223 (3d Cir. 2006) (“[W]hen there is any ambiguity or 

uncertainty about an easement grant, the surrounding 
18

Coalition’s reference to the public records of the easement was

“enough”—if just barely—to permit Defendants, particularly 

the Township, to find the location in question. Hercules, 50 

F.3d at 1248. 

The Township’s own conduct is strong evidence of the 

Notice’s sufficiency with respect to location. After the 

Cleanup Coalition filed suit, the Township found the site of the 

alleged violation in a matter of weeks—with no more

information on its location than the reference to the entire 

easement found in both the Notice and the Complaint. The 

post-Complaint actions undertaken by the Township were not, 

to use the words of the Seventh Circuit, “the actions of a 

[defendant] that has not received enough information for 

purposes of the statutory notice provisions of the [Clean Water] 

Act.” Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 

116 F.3d 814, 820 (7th Cir. 1997). 

We do not rest our holding on the Township’s postComplaint actions alone. We also note that, notwithstanding 

the site in question’s location within a heavily wooded area 

along a long easement, the Notice required no more of

Defendants than was asked of other citizen-suit defendants by

notices deemed sufficient by other circuits and district courts.

In Ecological Rights Foundation, the notice alleged violations 

circumstances, including the physical conditions and character 

of the servient tenement, and the requirements of the grantee, 

play a significant role in the determination of the controlling 

intent [with respect to the duty to repair].” (quoting Hyland v. 

Fonda, 129 A.2d 899, 904 (N.J. Super. Ct. App. Div. 1957)).
19

over “four counties” without identifying each offending 

location, 713 F.3d at 519, yet the Ninth Circuit determined that 

the notice sufficiently described the locations, “especially” 

because the plaintiff identified “representative” sites and 

“referenced [the defendant’s] superior ability to ascertain the 

locations of other [sites] that might be at issue.” Id.; cf.

Cebollero-Bertran v. P.R. Aqueduct & Sewer Auth., 4 F.4th 63, 

77 (1st Cir. 2021) (concluding that a notice that did not include

the “precise origin” of the alleged release of pollutants was 

sufficient because the defendant possessed “maps, plans, and 

investigative tools to trace the source of the [alleged 

violation]”). Similarly, in Benham v. Ozark Materials River 

Rock, LLC, the Tenth Circuit concluded that a notice 

sufficiently apprised the defendant of the locations of the 

alleged violations in a wetlands area because it referred to “a 

road [along the wetlands] identified by description and aerial 

photograph.” 885 F.3d 1267, 1274 (10th Cir. 2018). And, in 

a case bearing close factual resemblance to this dispute, a 

district court held that a notice that referred simply to 

“numerous discharge[] points” in an entire underground water 

system on a 31-acre facility sufficiently notified the defendants 

of the locations of the alleged violations. Cal. Sportfishing 

Prot. All. v. Shiloh Grp., LLC, 268 F. Supp. 3d 1029, 1051 

(N.D. Cal. 2017). We decline to hold the Cleanup Coalition to 

a standard more demanding than that applied by our sister 

courts. See Gaston Copper Recycling, 629 F.3d at 399–400 

(“Although the notice requirements for citizen suits brought 

under the Clean Water Act are strict and specific, we 

nevertheless agree with the cautionary reasoning of other 

circuits warning against an overly technical application of 

regulatory requirements.” (citing Hercules, 50 F.3d at 1248; 

Waterkeepers, 375 F.3d at 917)). 
20

We do not disagree with our concurring colleague that 

the Cleanup Coalition could have provided additional location 

information that would have been “helpful” to Defendants. 

Hercules, 50 F.3d at 1247. The photos of the sewer line 

condition would have at least narrowed Defendants’ searches 

for the site of the alleged violation, and the Cleanup Coalition’s 

failure to supply them to Defendants upon request leaves us at 

a loss for why it decided against such a simple act of

professional courtesy. We also recognize that, because of the 

ubiquity of technology capable of “effortlessly” collecting 

“cell phone location information,” Carpenter v. United States, 

138 S. Ct. 2206, 2216 (2018), it probably would not have been

burdensome for the Cleanup Coalition to have taken the site’s 

geographic coordinates. We take the Cleanup Coalition at its 

word, though, that McNamara, who photographed the site in 

question, was unaware that smart phones are capable of 

recording geolocation data. 3d Cir. No. 21-2060, Dkt. 44 (the 

sworn declaration of the Cleanup Coalition’s president that he 

“had no knowledge whatsoever about any photo location 

feature that might be on [his smart phone]”).15 Finally, we note 

15 Under the circumstances of this case, we are willing to 

excuse the Cleanup Coalition’s failure to return to the site and 

record the geographic coordinates of the site through other 

means, as the Estate suggested during oral argument that it 

could have done. Oral Argument at 1:10:09–1:10:16 (“Even if 

he only had a compass, or a sundial, a bearing and distance 

from the pump house would have been invaluable.”).

The Estate, after all, represented at argument that it sought to 

press trespassing charges against the hiker who informed the 
21

that nothing prevented the Cleanup Coalition from offering to 

bring Defendants to the alleged violation’s location. 

Yet our focus must be on the Notice itself. Its

description of the location of the site in question satisfied 40 

C.F.R. § 135.3(a)’s minimum requirements. Although it 

would have been courteous and helpful for the Cleanup 

Coalition to have offered greater assistance to Defendants, we 

observe that the law is often limited in its ability to enforce 

norms of “professional collegiality” among litigants, even 

though “[t]he extension of normal courtesies and exercise of 

civility expedite litigation and are of substantial benefit to the 

administration of justice.” Marcangelo v. Boardwalk Regency, 

47 F.3d 88, 90 (3d Cir. 1995). 

IV

Although the Notice was sufficient to permit 

Defendants to locate the site of the alleged violation, it was 

defective in another, key respect: It did not “provide enough 

information to enable the recipient, i.e., [Defendants], to 

identify the specific effluent discharge limitation which has 

been violated, including the parameter violated[.]” (first 

emphasis added)).” Hercules, 50 F.3d at 1248 (“We read the 

Cleanup Coalition of the location of the alleged violation. Id.

at 1:10:51–1:11:04 (“To be candid, my client was so upset 

about being dragged into this lawsuit that he asked me to try to 

find the identity of the hiker, preferably within the one-year 

statute of limitations, to charge that person, he or she, with 

trespassing.”). 
22

regulation to require just what it says[.]”). Thus, we will affirm 

the dismissal of the Cleanup Coalition’s citizen suit on this 

alternative ground—although it was not reached by the District 

Court. Panzarella v. Navient Sols., Inc., 37 F.4th 867, 872 

(3d Cir. 2022) (“We may affirm on any basis supported by the 

record[.]” (internal quotation marks and citation omitted)). 

We acknowledge that the citizen-suit regulation only 

requires notices to “include sufficient information to permit the 

recipient to identify the specific standard, limitation, or order 

alleged to have been violated [and] the activity alleged to 

constitute a violation,” 40 C.F.R. § 135.3(a) (emphasis added), 

and so a notice is not necessarily deficient under the regulation 

for failure to invoke a section or part of the Clean Water Act. 

We also acknowledge that not all citizen groups will retain 

counsel at the time of preparing a notice of intent to commence 

suit under the Clean Water Act; under such circumstances, we 

would “liberally construe” the citizen group’s “pro se filings.”

Beasley v. Howard, 14 F.4th 226, 231 (3d Cir. 2021). Here, 

however, the Notice was prepared by counsel. And it referred 

not just to the entire Clean Water Act but also to many

unrelated New Jersey statutes and regulations. Thus, the 

Cleanup Coalition’s Notice was not “enough” to apprise 

Defendants of its intention to claim a general violation of 33 

U.S.C. § 1311(a), Hercules, 50 F.3d at 1248—an intention it 

did not make clear until later in this litigation. 

If the Cleanup Coalition’s Notice “contain[ed] 

individual sentences . . . that g[a]ve Defendants some 

appropriate information” that would have permitted them to 

identify the alleged violation, those sentences were “deeply 

buried” within a plethora of references to New Jersey statutes 
23

and regulations bearing no relevance to the Cleanup 

Coalition’s case. Karr v. Hefner, 475 F.3d 1192, 1206

(10th Cir. 2007). We reiterate that a citizen-suit notice must 

provide the “alleged violator . . . with enough information to

be able to bring itself into compliance.” Hercules, 50 F.3d at 

1249. Here, because the Notice left Defendants guessing as to 

the claimed violation—because it presented a legal theory

vague enough to encompass “all possible attacks” on the 

defendant’s conduct, ONRC Action, 286 F.3d at 1143—it did 

not adequately apprise Defendants of “the specific standard, 

limitation, or order alleged to have been violated.” 40 C.F.R. 

§ 135.3(a).

The Notice did little to explain what part of the Clean 

Water Act was allegedly being violated. Accordingly, it

denied Defendants a fair opportunity to determine how they 

should respond to the concerns then raised by the Cleanup 

Coalition. 

VI

The Notice provided enough information for 

Defendants to locate the site of the alleged violation, yet its 

description of the alleged violation left the Defendants 

guessing as to what section or sections of the Clean Water Act

they had allegedly violated. Thus, we will affirm the dismissal 

of the Cleanup Coalition’s citizen suit for failure to provide 

sufficient notice. 
Shark River Cleanup Coalition v. Township of Wall, et al., 

No. 21-2060

______________

HARDIMAN, Circuit Judge, concurring.

The Court holds that Shark River Cleanup Coalition 

sent the Township of Wall and the Estate of Fred McDowell, 

Jr. a Notice of Intent to Commence Suit (Notice) under the 

Clean Water Act, 33 U.S.C. § 1251 et seq., that failed to 

“include sufficient information to permit the recipient to 

identify the specific standard, limitation, or order alleged to 

have been violated.” 40 C.F.R. § 135.3(a). I agree with my 

colleagues that because the “Notice did little to explain what 

part of the Clean Water Act was allegedly being violated,” it

“denied Defendants a fair opportunity to determine how they 

should respond to the concerns then raised by the Cleanup 

Coalition.” Op. at 23. Consistent with our precedent, Judge 

Smith’s cogent opinion for the Court clarifies that such Notice 

must “provide enough information to enable the recipient . . . 

to identify the specific effluent discharge limitation which has 

been violated, including the parameter violated.” Pub. Int. 

Rsch. Grp. of N.J., Inc. v. Hercules, Inc., 50 F.3d 1239, 1248

(3d Cir. 1995). It cannot leave defendants “guessing as to the 

claimed violation.” Op. at 23. 

My colleagues correctly note that Notice need not 

“identify every detail of a violation.” Hercules, 50 F.3d at 1247 

(“While there is no doubt that such detailed information is 

helpful to the recipient of a notice letter in identifying the basis 

for the citizen suit, such specificity is not mandated by the 

regulation.”); Op. at 4–5. But “[a] general notice letter that fails 

sufficiently to inform its recipients of the violations upon 
2

which a citizen intends to bring suit will not conform to the 

Act’s requirement.” Hercules, 50 F.3d at 1248. In lieu of a 

“specific” standard or limitation, the Cleanup Coalition’s 

Notice provided citations to the entire Clean Water Act, 33 

U.S.C. § 1251 et seq., and the entire federal code section for 

EPA regulations governing water quality standards, 40 C.F.R. 

§ 131.1 The Notice also makes passing reference to sundry 

New Jersey environmental protection laws and administrative 

code sections implicating surface water quality.2 Those federal 

and state laws cover nearly two thousand pages. It should go 

without saying that such vast expanses of federal and state 

codes cannot be “the provision of law alleged to be violated.” 

1 When asked “where in the Notice is the specific standard 

referenced,” the Cleanup Coalition’s counsel admitted, “There 

is no specific standard inasmuch as it is a violation of the 

statute.” Oral Argument at 45:44. Counsel further 

acknowledged: “The standard is not in the Notice.” Oral 

Argument at 46:38. To his credit, counsel confessed that he 

“did not have the regulation” when he drafted the Notice. Oral 

Argument at 44:40.

2 The state environmental protection laws cited in the Notice 

include: (1) Water Quality Planning Act, N.J. Stat. Ann. 

§ 58:11A-1 et seq.; and (2) Water Pollution Control Act, id.

§ 58:10A-1 et seq. App. 23. The state administrative code 

sections cited include: (1) Surface Water Quality Standards, 

N.J. Admin. Code § 7:9B; (2) Pollutant Discharge Elimination 

System, id. § 7:14A; (3) Freshwater Wetlands Protection Act, 

id. § 7:7A; (4) Coastal Zone Management, id. § 7:7; (5) Flood 

Hazard Area Control, id. § 7:13; (6) Stormwater Management, 

id. § 7:8; and (7) Water Quality Management Planning, id.

§ 7:15.
3

Hercules, 50 F.3d at 1247 & n.10. By definition, those general 

citations do not provide “sufficient information” for recipients 

to “identify the specific standard, limitation, or order alleged to 

have been violated.” 40 C.F.R. § 135.3(a) (emphasis added); 

Hercules, 50 F.3d at 1248.

* * *

Although my colleagues and I agree that the Notice 

failed to describe the standard violated, we part ways about the

Notice’s sufficiency as to location. They conclude that “the 

District Court erred under Hercules by requiring the Cleanup 

Coalition to provide more than what was ‘enough’ information 

for Defendants to identify the location of the alleged 

violation.” Op. at 5 (quoting Hercules, 50 F.3d at 1248). In my 

view, the District Court did not err when it held that the Notice

insufficiently described “the location of the alleged violation.” 

40 C.F.R. § 135.3(a).

“The purpose of notice to the alleged violator is to give 

it an opportunity to bring itself into complete compliance with 

the Act and thus . . . render unnecessary a citizen suit.” Friends 

of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 

167, 175 (2000) (cleaned up); see Hercules, 50 F.3d at 1249 

(same). In this regard, the Cleanup Coalition’s Notice was an 

utter failure. The Township’s administrator explained the 

situation well: 

If somebody had the decency to tell us we could 

have corrected it before all this energy went 

through and a nonprofit organization incurred 

the cost of an attorney and so on and so forth 

because I would assume the goal was to get a 

potential problem fixed, not to have this lag on 
4

for years and run up bills on both sides of the 

equation.

App. 747–48. The New Jersey Department of Environmental 

Protection (NJDEP) agreed. Had the Township and the Estate

known the location of the alleged violation, they would have 

corrected the problem. App. 673, 703 (“I [the NJDEP 

employee] had two cooperative entities that I thought would be 

able to fix it. Never dreamed it was going to come to this.”). 

My colleagues conclude that the Township and the 

Estate should have been able to identify “the location of the 

alleged violation,” based on the Cleanup Coalition’s Notice, 

because they controlled the sewer easement. 40 C.F.R. 

§ 135.3(a); Op. at 17–18 (“the Cleanup Coalition’s reference 

to the public records of the easement was ‘enough’—if just 

barely—to permit Defendants, particularly the Township, to 

find the location in question” (emphasis added) (quoting

Hercules, 50 F.3d at 1248)). They do so despite several 

admissions by Cleanup Coalition members about the Notice 

and its many deficiencies. For starters, the NJDEP employee 

tasked with inspecting the Estate’s property—who is now a 

member of the Coalition—admitted that the Notice provided 

no “specific site” for the alleged violation. App. 699. He also 

had trouble following the sewer line. App. 680 (“You couldn’t 

follow the sewer line at various points. . . . I just think it was 

inaccessible.”). That civil servant’s experience was typical. In 

fact, the Cleanup Coalition’s president “got lost” trying to find 

the exposed sewer pipe. App. 159. Like the NJDEP employee, 

he admitted that the Notice provided no “exact location.” App. 

396. And the Cleanup Coalition’s attorney admitted that the 

Notice, which he drafted, could not have provided more 

specific information about the location of the alleged violation: 
5

“We didn’t have any other specific information.” Oral 

Argument at 1:07:07.

So what did the Notice say about the location of the 

alleged violation? Only that it was located on the Estate’s 

484.97-acre, densely wooded property, along the Township’s 

three-mile-long, 25-foot-wide easement. Any information 

relevant to identifying the location, or nature, of the alleged 

violation can be found in only one paragraph of the Cleanup 

Coalition’s seven-page letter. That paragraph reads, in full:

Several sections of the sewer pipe have been 

undermined and are “flying” in the air without 

support. (Photos available upon request). This 

condition threatens the structural integrity of the 

active sanitary sewer pipe within a short reach of 

the Shark River Brook. Furthermore, in other 

locations, due to the installation of the pipe and 

failure to maintain the easement and the 

activities being conducted by the owner of the 

property, large areas of sand have “washed out” 

and infiltrated and discharged into the Shark 

River Brook. These conditions are violations of 

the Clean Water Act.

App. 20. Woodland erosion left a section of the Township’s 

sewer pipe exposed—not damaged or leaking, though partly 

suspended above the ground. But the Notice fails to specify

where the exposed section could be found. The Notice also 

refers to mysterious “other locations” where sand had 

“discharged into the Shark River Brook.” App. 20. Those 

locations remain unidentified.
6

The lack of disclosure just described reflects the 

Cleanup Coalition’s conduct throughout this dispute. From the 

very beginning, requests from the Estate’s executor and the

Township’s chief engineer for “the photos and locations of the 

areas of concern,” App. 850, 856—supposedly “available upon 

request,” App. 20—were met with silence from the Cleanup 

Coalition’s attorney. Within two weeks of receiving the 

Notice, the Estate’s executor wrote to counsel for the Cleanup 

Coalition to request “copies of the photographs” mentioned in 

the Notice and “any information you can give me regarding 

where the photographs were taken.” App. 850. Counsel chose 

not to respond, given his policy of “not communicat[ing] with 

private parties on matters that are the subject of threatened or 

actual litigation.” App. 847. He “could . . . have advised 

someone” else to respond (e.g., any other member of the 

Cleanup Coalition), but chose not to. Id. The Estate’s executor 

sent a second letter informing the Cleanup Coalition’s attorney 

that “the manager of mining operation [on the Estate’s 

property] has walked the length of the easement . . . and did not 

see the conditions you mentioned in your [notice] letter. 

Therefore, it is imperative that I have copies of your photos and 

the location where they were taken to continue our 

investigation.” App. 860. Again, counsel failed to respond, 

leading the Estate’s executor to reasonably conclude the Notice 

was a non-issue.

Wall Township likewise struggled to locate the alleged 

violation based on the Notice. The same month it received the 

Notice, the Township dispatched employees to search for 

exposed pipe along the easement. After multiple searches, 

Township employees found nothing. The Township’s 

Engineer wrote the Cleanup Coalition’s attorney requesting 

“photos and locations of the areas of concern,” App. 856, but 
7

counsel never responded. The Township kept searching, to no 

avail. As one employee testified: “We were on a wild goose

chase hunting all along the banks of the Shark River looking 

for a broken pipe.”3

Any notion that the Estate or the Township did not make 

good-faith efforts to locate the exposed pipe is belied by the 

fact that the NJDEP could not locate the alleged violation based 

on the Notice. In February 2017, an NJDEP employee

inspected the McDowell property. During his initial search, the 

employee could not locate any exposed sewer pipe along the 

easement. It took four site visits, along with “three pictures and 

a little short description [from the Cleanup Coalition’s 

president] of where it was,” for the employee to locate the 

exposed pipe. App. 672–74. When asked why he “didn’t . . . 

know where it was” earlier, the employee testified, “[b]ecause 

all I had was the . . . Notice of Intent.” App. 672.

My colleagues consider the provision of “additional 

location information” and “photos of the sewer line condition” 

to be “a simple act of professional courtesy.” Op. at 20. But the 

Notice claimed those photos were “available upon request,” 

implying their necessity for anyone seeking to locate the 

exposed pipe. App. 20. Counsel’s “failure to supply them to 

3 The Cleanup Coalition’s president was asked, “don’t you 

think if you really wanted Wall Township to know [the 

location], you would have had somebody take them out and 

show them where the location was?” App. 393. His response: 

“We could have done that, but we didn’t,” id., based on “advice 

of counsel,” App. 325. He also admitted that the Cleanup 

Coalition “took the advice of counsel that there was [to be] no 

response to [the Estate’s] letters” requesting the location. App. 

319. 
8

Defendants upon request” leaves me too “at a loss.” Op. at 20. 

But counsel’s obfuscation went beyond a lack of “professional 

courtesy.” Id. It precluded his client from achieving its goal 

short of litigation. “The purpose of notice to the alleged 

violator is to give it an opportunity to bring itself into complete 

compliance with the Act and thus . . . render unnecessary a 

citizen suit.” Friends of the Earth, 528 U.S. at 175; see 

Hercules, 50 F.3d at 1249. The “Township’s own conduct” 

may offer “strong evidence of the Notice’s sufficiency with 

respect to location,” Op. at 18, but so does counsel’s lack of 

disclosure and its effect on this case. If the Cleanup Coalition

had provided “additional location information” and “photos of 

the sewer line condition,” Op. at 20, the Township and the 

Estate could have remedied the erosion issue years ago, 

rendering “unnecessary” this citizen suit. Friends of the Earth, 

528 U.S. at 175. Yet here we are. 

In sum, I would have affirmed the District Court on the 

sufficiency of notice relative to “the location of the alleged 

violation.” 40 C.F.R. § 135.3(a). The Cleanup Coalition’s 

Notice was deficient in this regard, and the District Court 

rightly recognized it as such. But the Notice also failed to 

“include sufficient information to permit the recipient to 

identify the specific standard, limitation, or order alleged to 

have been violated.” Id. Because “its description of the alleged 

violation left the [Township and Estate] guessing as to what 

section or sections of the Clean Water Act they had allegedly 

violated,” Op. at 23, the Notice was deficient. Subject to the 

reservations expressed here, I join Judge Smith’s opinion for 

the Court, except as to Part III.