Full opinion text
DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION McMAHON, District Judge: INTRODUCTION Plaintiff the City of Newburgh (“Plaintiff’ or the “City”) asserts a claim for violations of the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq., as well as state-law tort claims for trespass and public nuisance against defendants Mark Sarna, Sarna Enterprises, Inc., Mt. Airy/ Aire Estates, Inc., New Windsor Development Co., LLC (collectively, the “Sarna Defendants”), and Drainage District # 6— Mt. Airy Estates (The Reserve), Town of New Windsor, New York (the “Town of New Windsor” and, together with the Sarna Defendants, “Defendants”). The City alleges that Defendants, in violation of the CWA and New York law, are responsible for the discharge of unfiltered stormwater runoff from the Mt. Airy Estates residential development (the “Development”) into an adjacent reservoir known as Brown’s Pond. Now pending before the Court are Plaintiffs motion for a preliminary injunction and the Sarna Defendants’ cross-motion to dismiss or, in the alternative, for summary judgment. For the reasons stated below, the Sarna Defendants’ cross-motion to dismiss is granted in part and denied in part; Plaintiffs motion for a preliminary injunction is denied. Additionally, the Court sua sponte dismisses the Complaint as against the Town of New Windsor. BACKGROUND I. Overview of the Regulatory Regime The purpose of the CWA is to protect our Nation’s waters. See 33 U.S.C. § 1251(a). The regulatory regime created by the CWA principally requires that the discharge of pollutants be regulated by permit. Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 486 (2d Cir.2001). Section 1311(a) of the CWA mandates that “the discharge of any pollutant by any person shall be unlawful” “[ejxcept as in compliance” with other provisions of the statute. 33 U.S.C. § 1311(a). One such provision, § 1342, establishes a permit program, the National Pollutant Discharge Elimination System (“NPDES”), and provides for the issuance of discharge permits (“NPDES permits”) that allow the holder to discharge pollutants at levels below thresholds incorporated in the permit. See 33 U.S.C. § 1342; Catskill Mountains, 273 F.3d at 486. The CWA authorizes each state to implement the NPDES through the state’s own permit program as long as it conforms to federal guidelines approved by the Administrator of the Environmental Protection Agency (“EPA”). See 33 U.S.C. § 1342(b). In New York, the NPDES is administered by the New York State Department of Environmental Conservation (“NYS-DEC”), and is referred to as the State Pollution Discharge Elimination System (“SPDES”). See N.Y. Envtl. Conserv. Law §§ 17-0105(13), 17-0701. Accordingly, the NYSDEC issues SPDES general permits for certain categories of regulated discharges, including stormwater runoff. See N.Y. Comp.Codes R. & Regs. tit. 6, § 750-1.21. The permit at issue in this case is the SPDES General Permit for Stormwater Discharges from Construction Activity. In 1993, the NYSDEC issued permit GP-93-06 covering such discharges; subsequently, in 2003, the NYSDEC replaced GP-93-06 with the updated GP-02-01; and, in 2008, the NYSDEC replaced GP-02-01 with the current version of the permit, GP-0-08-001. A permit applicant can obtain coverage under GP-0-08-001 (or, previously, under GP-93-06 or GP-02-01) by filing with the NYSDEC a notice of intent (“NOI”) to be covered by the permit. See N.Y. Comp.Codes R. & Regs. tit. 6, § 750-I. 21(d). Prior to submitting the NOI, the applicant must have completed a Stormwater Pollution Prevention Plan (“SWPPP”) that complies with the requirements of the permit. See, e.g., GP-0-08-001 Part II.A. In addition to providing for enforcement by state agencies and the EPA, the CWA allows private parties to enforce its mandates in so-called “citizen suits.” See 33 U.S.C. § 1365. However, at least sixty days prior to filing a citizen suit, the prospective plaintiff must provide notice of its claims to the potential defendants, the EPA and the state in which the violations allegedly occurred. See 33 U.S.C. § 1365(b)(1)(A); Catskill Mountains, 273 F.3d at 486. II. Facts Unless otherwise noted, the facts relevant to the Sarna Defendants’ cross-motion to dismiss are taken from the City’s complaint (the “Complaint”), as well as from documents attached to or referenced in the Complaint. See Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir.2000). The Sarna Defendants submit a Rule 56.1 statement in support of their cross-motion to dismiss, and suggest that the Court may wish to convert their motion into one for summary judgment. (See Sarna Defs.’ Mem. in Supp. of Cross-Mot. to Dismiss and Opposing Pl.’s Mot. for Prelim. Inj., Sept. 25, 2009 (“Sarna Defs.’ Mem.”), at 2.) The Court declines to do so at this early stage of the litigation. With the exception of the Sarna Defendants’ contention that this lawsuit was not authorized by the City of Newburgh’s City Council (the “City Council”) — an issue on which the Court ordered supplemental submissions — the Sarna Defendants’ asserted grounds for dismissal pursuant to Rule 12(b)(6) are properly resolved based on the pleadings. Several of the Sarna Defendants’ arguments challenge the Court’s subject-matter jurisdiction, and the Court may consider certain evidence outside the pleadings in determining whether subjecLmatter jurisdiction exists. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) (1), a district court ... may refer to evidence outside the pleadings.”). In resolving Plaintiffs preliminary injunction motion, the Court considers the affidavits submitted by the parties to determine whether Plaintiff has met the requirements for an award of preliminary injunctive relief. A. Parties The City of Newburgh is located in Orange County, New York, on the Hudson River about sixty miles north of New York City. Brown’s. Pond (the “Pond”) is a reservoir located in the Town of New Windsor, which is next to Newburgh, and also in Orange County. The City of Newburgh owns Brown’s Pond. The Pond is classified as a Class A-Special (“Class A-S”) fresh surface water. See N.Y. Comp.Codes R. & Regs. tit. 6, § 701.4. Class A-S waters are best used as “a source of water supply for drinking, culinary or food processing purposes; primary and secondary contact recreation; and fishing.” Id. Brown’s Pond serves as a secondary supply of drinking water for the City of Newburgh. The residential Development at Mt. Airy Estates is located adjacent to the southwestern corner of Brown’s Pond. Defendant Mt. Airy/Aire Estates, Inc. is a corporation located at 15 Engle Street, Suite 100, Englewood, New Jersey. Defendant Sarna Enterprises, Inc. (“Sarna Enterprises”) is a corporation located at the same New Jersey address. Defendant Mark Sarna is an individual who also allegedly resides at that same New Jersey address. Defendant New Windsor Development Co., LLC (“New Windsor Development”) is a limited liability company located at a different address in Livingston, New Jersey. Throughout its Complaint, Plaintiff collectively refers to Mark Sarna, Mt. Airy Estates, Sarna Enterprises and New Windsor Development as “Sarna” or “defendant,” and alleges that they have violated the CWA at the Development by causing the discharge of untreated stormwater into Brown’s Pond. Plaintiff has also sued the Town of New Windsor. Plaintiff alleges that easements owned or controlled by the Town include all or portions of the stormwater management system for the Mt. Airy Development. Plaintiff claims that it cannot be accorded complete relief unless the Town is a defendant. B. Allegations in the Complaint The Mt. Airy Development was initially designed in 1972. Mt. Airy Estates later purchased the project, but did not begin construction until the late 1990s. Plaintiff alleges that the Development’s stormwater control measures, based on the original 1972 design, are outdated and inadequate. To date, 408 homes have been built, and an application is pending to add thirteen more. In 1999, the Sarna Defendants filed an NOI with the NYSDEC seeking coverage under GP-93-06 for stormwater discharges into Brown’s Pond during construction. The NYSDEC eventually approved the Sarna Defendants’ SWPPP on February 2, 2001. The SWPPP for the Development has since been modified with NYSDEC approval on several occasions. In its present form, the Development’s SWPPP includes two stormwater retention basins, two dry detention ponds, an inspection and maintenance schedule, and additional erosion and sediment controls, such as sediment basins, sediment traps and sand filters. The core allegation in the Complaint is that the Sarna Defendants’ construction at the Mt. Airy Development is causing the discharge of untreated stormwater runoff into Brown’s Pond. Plaintiff alleges several specific dates on which drainage was inadequate, such that untreated stormwater runoff discharged into Brown’s Pond. The most recent such incident alleged in the Complaint occurred in mid-December 2008, after roughly three inches of rain over multiple days. Plaintiff claims that the brownish stormwater discharges are changing the naturally occurring color of Brown’s Pond in violation of New York’s water quality standards for turbidity and, thus, the SPDES permit and CWA. The City further claims that its water supply is threatened by the allegedly turbid discharges into Brown’s Pond, the smaller of the City’s two drinking water reservoirs. The Complaint also alleges a series of CWA violations, dating back several years, documented in and/or prompting some form of administrative action. In 2003, the NYSDEC entered into a consent order with Mt. Airy Estates, in which Mt. Airy Estates did not contest that it had failed to comply with the applicable SPDES permit and violated State water quality standards for turbidity. Pursuant to the order, the Sarna Defendants paid a $5,000 penalty and agreed to install proper erosion and sediment control measures. In 2004, the NYSDEC entered into another consent order, this time with Mark Sarna on behalf of Mt. Airy Estates, also for stormwater discharges in violation of State turbidity standards. The consent order established that this was at least the fourth documented violation of New York’s Environmental Conservation Law (“ECL”) at the Mt. Airy Development, and imposed another $5,000 penalty. In June 2006, the U.S. Army Corps of Engineers (“ACOE”) imposed a Cease and Desist Order on construction at the Development because fill allegedly had been placed in federal wetlands in violation of the CWA. In October 2006, the ACOE modified the Cease and Desist Order to authorize the continuation of limited construction contingent upon the Sarna Defendants’ further modifying the storm-water retention basins, restoring and preserving the wetland areas and building an additional drainage basin. Several such obligations were formally imposed in an August 2007 Restorative Order rescinding the Cease and Desist Order. Plaintiff alleges that shortly after the Restorative Order was issued, on October 12, 2007, there was flooding and another failure of the stormwater management system at the Development. Plaintiff further claims that the Sarna Defendants have not yet completed the restoration work required by the ACOE’s Order. Plaintiff alleges that, since the 2004 consent order, the NYSDEC has inspected the Mt. Airy Development and noted deficiencies in its stormwater management system on several occasions. The Complaint identifies numerous specific dates on which the NYSDEC allegedly noted deficiencies in the Development’s erosion and sediment control measures. For example, on May 23, 2008, the NYSDEC inspected the Mt. Airy site and noted five outstanding violations, including blocked catch basins, inadequate silt fencing and improper construction of a sediment trap. The NYSDEC notified the Sarna Defendants of the violations by letter dated June 3, 2008. The NYSDEC also found multiple deficiencies on September 3, 2008, including blocked catch basins, and again notified the- Sarna Defendants by letter. Two months later, on November 7, 2008, the NYSDEC again noted blocked catch basins and improperly maintained silt fencing during an inspection, and again notified the Sarna Defendants of the violations by letter. Finally, Plaintiff alleges that the Development’s SWPPP fails to comply with the NYSDEC’s technical design requirements. The Complaint alleges, for example, that two sediment basins are improperly designed, and that the detention ponds receive flows from areas larger than recommended by the NYSDEC. Further, Plaintiff claims that the Sarna Defendants have failed to comply with the procedural requirement that when the design of a proposed SWPPP deviates from the NYS-DEC’s technical standards, it must be submitted to the NYSDEC for a sixty-day review and approval period. The Sarna Defendants allegedly plan to expand the Mt. Airy Development by building thirteen more homes on the only remaining vacant lot. Plaintiff alleges that the Sarna Defendants will rely on the existing — and allegedly inadequate — storm water management system for the planned expansion. C. Claims Asserted and Relief Requested The Complaint asserts three causes of action. The first is a CWA claim based on the alleged violations described above. Second, Plaintiff asserts a state-law claim for trespass. Plaintiff alleges that the Sarna Defendants, without the City’s permission, have installed two stormwater drainage basins on City-owned land next to Brown’s Pond, as well as a sediment barrier and filter in Brown’s Pond itself (which the City also owns). Third, Plaintiff asserts a state-law claim for public nuisance, alleging that stormwater runoff into Brown’s Pond threatens the City’s water supply. The Complaint seeks the following ultimate relief: (1) a declaratory judgment that the Sarna Defendants have violated and continue to violate the CWA; (2) an injunction (a) prohibiting the planned expansion of the Development; (b) compelling the Sarna Defendants to achieve compliance with their SPDES permit; and (c) compelling the Sarna -Defendants to remove its structures from City property; (3) civil penalties in the amount of the CWA’s statutory maximum- — $37,500 per day — for each alleged CWA violation; (4) damages of $5 million for the Sarna Defendants’ alleged trespass on City land; and (5) reasonable costs and attorneys’ fees. D. Plaintiffs Notice Letter On or about December 23, 2008, Plaintiff sent a letter (the “Notice Letter”) giving notice of its intent to sue for violations of the CWA, as required by § 1365(b)(1)(A) of the CWA. The Notice Letter is attached as Exhibit A to Plaintiffs Complaint; proofs of receipt of the Notice Letter are attached as Exhibit B. Plaintiff sent its Notice Letter to the EPA Administrator, the EPA’s Regional Administrator, the U.S. Attorney General, the New-York State Attorney General, the Commissioner of the NYSDEC, and to each of the Sarna Defendants — Mark Sarna, Sarna Enterprises, Mt. Airy Estates and New Windsor Development. The Notice Letter was not sent to defendant the Town of New Windsor, and nowhere mentions the Town of New Windsor as an alleged violator or possible defendant. The Notice Letter provides the name, address and telephone number of the party giving notice — Newburgh’s City Manager. The body of the Notice Letter is about nine pages long, and sets forth a condensed version of the violations alleged in the Complaint. Well more than sixty days after giving notice, on June 2, 2009, Plaintiff commenced this action by filing its Complaint. E. The NYSDEC Administrative Proceeding In the interim, on April 30, 2009, the NYSDEC- commenced an administrative proceeding alleging stormwater discharges at the Mt. Airy Development in violation of the ECL and GP-0-08-001 (and, previously, GP-02-01). The NYSDEC’s complaint is attached as Exhibit C to the City’s Complaint. The NYSDEC complaint named Mark Sarna and Mt. Airy Estates as respondents; the relief requested was a declaratory judgment, a civil penalty of $525,000 and an order compelling Mark Sarna and Mt. Airy Estates to undertake certain remedial measures. The NYSDEC administrative action has since been voluntarily discontinued. As the motions before this Court were being briefed, on October 6, 2009, an NYSDEC Administrative Law Judge (“ALJ”) granted the NYSDEC staffs motion to discontinue the enforcement action, with leave to refile. (See Supplemental Affn of Marc S. Gerstman in Opp. to Mot. to Dismiss and in Further Supp. of Mot. for Prelim. Inj., Oct. 16, 2009 (“Gerstman Reply Affn”), ¶ 32 & Ex. A (ALJ Decision).) III. The Pending Motions On September 11, 2009, Plaintiff moved for a preliminary injunction. Plaintiff seeks preliminary injunctive relief (1) compelling the Sarna Defendants to achieve compliance with the applicable SPDES permit by, inter alia, redesigning its stormwater management system and installing drainage basins on property not owned by the City; (2) compelling the Sarna Defendants to implement weeMy testing by an independent party to evaluate the adequacy of the Development’s stormwater management system; (3) compelling the Sarna Defendants to remove unauthorized structures from City property; and (4) prohibiting expansion of the Development. The Sarna Defendants have cross-moved to dismiss the Complaint on numerous grounds. One of the Sarna Defendants’ asserted grounds for dismissal is that this lawsuit was not authorized by Plaintiffs City Council. At a conference on November 6, 2009, the Court gave Plaintiff two weeks to submit evidence showing that its City Council had authorized the commencement of this action. The City made its submission on November 17, 2009; on November 23, 2009, the Court accepted opposition papers from the Sarna Defendants. The Court first considers the Sarna Defendants’ motion to dismiss, concluding that Plaintiff has adequately pled its claims against the Sarna Defendants, but that the Complaint must be dismissed as against the Town of New Windsor. The Court then turns to the question of whether Plaintiff is entitled to preliminary injunctive relief, and finds that it is not. DISCUSSION I. The Sarna Defendants’ Cross-Motion to Dismiss A. Standard of Review In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cargo Partner AG v. Albatrans. Inc., 352 F.3d 41, 44 (2d Cir.2003); see also Roth v. Jennings, 489 F.3d 499, 510 (2d Cir.2007). However, to survive a motion to dismiss, “a complaint must contain sufficient factual matter ... to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations, citations and alterations omitted). Unless a plaintiffs well-pleaded allegations of fact have “nudged [its] claims across the line from conceivable to plausible, [the plaintiffs] complaint must be dismissed.” Id. at 570, 127 S.Ct. 1955; Iqbal, 129 S.Ct. at 1950-51. B. This Lawsuit Was Authorized by the City Council The Sarna Defendants argue that Plaintiff lacks the capacity to prosecute this action because the lawsuit was not properly authorized by its City Council. They are wrong. Pursuant to New York General City Law, where, as here, there is an absence of any provision of law or ordinance determining by whom or in what manner or subject to what conditions [the power “to institute, maintain and defend any action or proceeding in a court”] shall be exercised, the common council or board of aldermen or corresponding legislative body of the city shall ... have power by ordinance to determine by whom and in what manner and subject to what conditions said power shall be exercised. See N.Y. Gen. City Law §§ 20(1), 23(2). Plaintiff does not dispute that neither the Newburgh City Code nor Newburgh City Charter contains any provision relating to the City’s power to institute and maintain litigation. Therefore, only the “common council ... or corresponding legislative body of the city” — here, Newburgh’s City Council-has the power to determine by whom, in what manner and subject to what conditions the City’s power to sue shall be exercised. See id. The Sarna Defendants contend that the City Council never exercised that power to authorize this lawsuit, which therefore must be dismissed. See, e.g., Town of Claverack v. Brew, 277 A.D.2d 807, 809-10, 716 N.Y.S.2d 748 (N.Y.App. Div.3d Dep’t 2000) (dismissing action to enforce zoning laws for lack of capacity to sue because plaintiff failed to produce evidence establishing suit was properly authorized by town board). Plaintiffs supplemental submission on this issue includes the affidavits of New-burgh’s Mayor and four of its City Council members, each of whom avers that the lawsuit was voted on and unanimously approved at executive sessions of the City Council on or about March 5, 2009 and May 21, 2009 (although no formal resolution was passed at either session). (See Second Supplemental Affn of Marc S. Gerstman in Opp. to Mot. to Dismiss and in Further Supp. of Mot. for Prelim. Inj., Nov. 17, 2009 (“Gerstman Supp. Affn”), Ex. A.) Plaintiffs submission also includes a copy of a resolution (“Resolution No. 177-2009”) passed by the City Council on November 16, 2009 — ten days after the Court ordered Plaintiff to produce evidence of authorization — which “ratifies retroactively all authority previously granted in Executive Sessions of the City Council on ... March 5, 2009 and May 21, 2009 authorizing commencing litigation under the Clean Water Act for the protection of Brown’s Pond.” (Id. Ex. B.) Having considered both sides’ supplemental submissions, the Court concludes that Plaintiff has the capacity to prosecute this action. The City, through its Council, plainly supports this action, and wishes it to proceed. Even if there remains some uncertainty as to whether it was properly authorized in the first place, it would be a waste of time and resources to dismiss this case on the ground that Plaintiff lacks capacity to sue, only to have the Council vote to refile it immediately. Accordingly, the Court concludes that this action is authorized, and -turns to the Sarna Defendants’ other asserted grounds for dismissal. C. Plaintiffs Notice Letter The Sarna Defendants argue that Plaintiffs December 23, 2008 Notice Letter was inadequate, requiring dismissal of the CWA claim. After carefully reviewing the Notice Letter, the Court concludes that it provided sufficient notice to the Sarna Defendants of the CWA violations alleged in the Complaint. However, the Notice Letter was not sent to defendant the Town of New Windsor, and thus did not provide adequate (or any) notice to the Town. Accordingly, the CWA claim against the Town must be dismissed. The Court declines to exercise supplemental jurisdiction over the remaining state-law claims against the Town (to the extent those claims are even asserted against it), and therefore sua sponte dismisses the Complaint in its entirety as against the Town of New Windsor. 1. Plaintiffs Notice Letter Provided Adequate Notice to the Sarna Defendants At least sixty days prior to filing a CWA citizen suit, the prospective plaintiff must provide notice of its claims to the potential defendants, the EPA and the state in which the violations allegedly occurred. See 33 U.S.C. § 1365(b)(1)(A); Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 486 (2d Cir.2001). The legislative policy behind requiring such notice is that it affords an opportunity for the alleged violator to bring itself into compliance with the CWA, or for the enforcer of first resort, the EPA or the appropriate state agency, to institute an enforcement action. See Hallstrom v. Tillamook County, 493 U.S. 20, 29, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989); Catskill Mountains, 273 F.3d at 488. The EPA has specified- the content requirements for a prospective plaintiffs notice letter: 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); see Catskill Mountains, 273 F.3d at 488 (“In practical terms, the notice must be sufficiently specific to inform the alleged violator about what it is doing wrong .... ” (quoting Atl. States Legal Found., Inc. v. Stroh Die Casting Co., 116 F.3d 814, 819-20 (7th Cir.1997))). Strict compliance with the CWA’s notice provision “is a mandatory, not optional, condition precedent for suit.” See Hallstrom, 493 U.S. at 26, 110 S.Ct. 304; Klebe v. Tri Mun. Sewer Comm’n, No. 07 Civ. 7071, 2008 WL 5245963, at *3-4, 2008 U.S. Dist. LEXIS 102014, at *11-12 (S.D.N.Y. Dec. 17, 2008); see also Bettis v. Ontario, 800 F.Supp. 1113, 1118 (W.D.N.Y.1992) (“[T]he [CWA’s] ‘notice requirement is not a mere technical wrinkle of statutory drafting or formality to be waived by the federal courts.’ ” (quoting Walls v. Waste Resource Corp., 761 F.2d 311, 316 (6th Cir.1985))). However, the Second Circuit “refuse[s] to ‘allow form to prevail over substance’ in considering the content required of [a notice] letter,” and “look[s] instead to what the particular notice given may reasonably be expected to accomplish.” See Catskill Mountains, 273 F.3d at 487 (quoting Dague v. City of Burlington, 935 F.2d 1343, 1354 (2d Cir.1991), rev’d in part on other grounds, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992)). Thus, in determining whether a CWA plaintiffs notice letter is adequate, a court “must consider whether the[] notice letter served the purpose that Congress intended.” Hudson Riverkeeper Fund v. Putnam Hosp. Ctr., 891 F.Supp. 152, 155 (S.D.N.Y.1995) (quoting Pub. Interest Research Group of N.J. v. Hercules, Inc., 50 F.3d 1239, 1249 (3d Cir.1995)). The Sarna Defendants contend that Plaintiffs Notice Letter failed to comply with the content requirements set forth in 40 C.F.R. § 135.3(a). The Sarna Defendants point to Catskill Mountains, Klebe and CARS v. U.S. Army Corps of Engineers, No. 04 Civ. 0328, 2005 WL 3534178, 2005 U.S. Dist. LEXIS 38404 (W.D.N.Y. Dec. 23, 2005), each of which found a CWA plaintiffs notice letter to be inadequate. (See Sarna Defs/ Mem. at 17-22.) Each situation differs significantly from this one. In Catskill Mountains, the Second Circuit held that plaintiffs notice letter was inadequate as to certain of the alleged CWA violations because it failed to name every alleged pollutant. 273 F.3d at 488. Judge Walker reasoned that “a plaintiff could not bring suit for discharges of mercury, lead, and copper if the [notice] letter alleged violations based only on discharges of copper. In that case, the claims of copper violations would stand, but the claims based on mercury and lead discharges would need to be dismissed.” Id. at 487. In Klebe, Judge Karas applied Catskill Mountains, holding that where “Defendant’s SPDES permit sets limits on 12 different pollutants, Plaintiffs cannot have given proper notice of Defendant’s specific violations merely by broadly accusing Defendant of having discharged ‘unpermitted waste products’ into the Hudson River.” 2008 WL-5245963, at *5, 2008 U.S. Dist. LEXIS 102014, at *16-18 (internal citation omitted) (finding inadequate a 1.5-page notice letter devoid of specific allegations). Here, Plaintiffs Notice Letter clearly established that the alleged pollutant is untreated stormwater runoff into Brown’s Pond. The Sarna Defendants, unlike the defendants in Catskill Mountains and Klebe, cannot credibly claim to have been confused about what they were accused of discharging in violation- of their SPDES permit. The Sarna Defendants rely heavily on CARS, which they assert is “on point.” (Sarna Defs.’ Mem. at 19.) In CARS, as here, construction by developer defendants allegedly violated the CWA.2005 WL 3534178, at *1, 2005 U.S. Dist. LEXIS 38404, at *2-3. However, the notice letter in CARS did not even “state the waters into which the alleged stormwater [was] being discharged.” Id. at *7, 2005 U.S. Dist. LEXIS 38404 at *24. It also did not specify the ways in which defendants’ SWPPP allegedly failed to comply with their SPDES permit. Id. at *7-8, 2005 U.S. Dist. LEXIS 38404 at *24-25. The notice letter merely stated that the developer defendants had “failed to conform” to the SPDES permit. Id. at *8, 2005 U.S. Dist. LEXIS 38404 at *25. The court found this insufficient. Id. Plaintiff s Notice Letter in this case does not contain any such glaring deficiencies. To the contrary, the Notice Letter satisfied 40 C.F.R. § 135.3 by “including] sufficient information to permit the recipients] to identify,” inter alia: (1) the Sarna Defendants as the alleged violators; (2) the State water quality standard for turbidity, N.Y. Comp.Codes R. fe'Regs. tit. 6, § 703.2 (which is incorporated in each of the relevant SPDES permits- — GP-93-06, GP-02-01 and GP-0-08-001), certain erosion and sediment control design requirements for the Development’s SWPPP; and the 2006 ACOE Restorative Order, as the “standard[s], limitation[s], or orderfs]”’ allegedly violated; (3) Brown’s Pond as the location of the alleged violations; (4) the discharge of untreated stormwater runoff as the (principal) activity allegedly constituting the violations; and (5) numerous specific dates on which violations allegedly occurred. (See, e.g., Notice Ltr. at 6-7 (alleging that construction-related activities at the Development “have caused and are causing storm water runoff to migrate from the development directly into Brown’s Pond”), 7-8 (alleging specific technical deficiencies in Development’s SWPPP), 10 (detailing alleged failure of stormwater management system on, December 12, 2008).) The Sarna Defendants also assert that the Complaint contains “entirely new allegations not specified in the Notice [Letter].” (Sarna Defs.’ Mem. at 21.) Each of the arguments they offer in support of this contention is easily dispatched. First, the Sarna Defendants claim that the Complaint alleges for the first time that the Mt. Airy Development’s stormwater management system failed on October 12, 2007. (Compl. ¶ 58.) In fact, the Notice Letter states that “Inadequate drainage of storm water runoff occurred and was observed on September 21, 2007, October 12, 2007, March 8, 2008, and March 10, 2008.” (Notice Ltr. at 9 (emphasis added).) Second, the Sarna Defendants claim that “Paragraphs 93 through 96 [of the Complaint] raise entirely new dates of alleged violation.” (Sarna Defs.’ Mem. at 21.) Those paragraphs allege that NYSDEC inspections noted blocked catch basins on September 3, 2008 and November 7, 2008, and that the stormwater control measures failed on December 12, 2008. Plaintiffs Notice .Letter describes in detail the alleged incident on December 12, 2008. (See Notice Ltr. at 10.) Although the Letter does not specifically mention the dates September 3 and November 7, 2008, it does allege that the NYSDEC noted five violations on May 23, 2008, including blocked catch basins, which “remain outstanding.” (Id.) Those blocked catch basins were once again noted by the NYS-DEC on September 3 and November 7. (See Compl. ¶¶ 92-94.) Thus, the Court concludes that the Notice Letter provided adequate notice of the violations alleged on those two dates. See 40 C.F.R. § 135.3(a) (requiring only that a notice letter “include sufficient information to permit the recipient to identify ..,. the date or dates,” not that it include an exhaustive list of every specific date). Third, the Sarna Defendants assert that “Paragraphs.-76 through 79 of the complaint make entirely new allegations that the SWPPP fails to meet design standards, because the SWPPP does not contain water quantity controls.” (Sarna Defs.’ Mem. at 21.) In fact, Plaintiff devotes more than two pages of its Notice Letter to describing the alleged technical shortcomings in the Sarna Defendants’ SWPPP, and references “water quality and quantity controls.” (See Notice Ltr. at 7-9.) Fourth, the Sarna Defendants claim that paragraph 83 of the Complaint alleges for the first time that the infractions alleged in paragraph 82 are violations of GP-02-01. (Sarna Defs.’ Mem. at 21.) The Sarna Defendants are grasping at straws. Paragraph 82 sets forth a list of dates on which the NYSDEC allegedly noted erosion and sediment control deficiencies; paragraph 83 alleges that those deficiencies are violations of GP-0-08-001 and GP-02-01. Plaintiffs Notice Letter lists the same dates and states that the noted deficiencies are violations of GP-0-08-001, but neglects to mention GP-02-01. (See Notice Ltr. at 9.) Regardless, it is quite- clear from the Notice Letter that Plaintiff is alleging that the erosion and sediment control deficiencies — many of which were noted well before GP-0-08-001 went into effect — violated the applicable SPDES permit for stormwater discharges from construction activity. Finally, the Sarna Defendants argue that the Complaint makes new allegations regarding the 2006 ACOE Restorative Order not contained in the Notice Letter. It is true that the allegations in the Complaint concerning the Restorative Order are more specific than those in the Notice Letter. Yet the Notice Letter discusses the ACOE Cease and Desist Order and subsequent Restorative Order, as well as the Sarna Defendants’ restoration and monitoring obligations under that Order. (See id. at 6.) The Court deems the Notice Letter’s references to the ACOE Restorative Order sufficient to alert the Sarna Defendants of the alleged violations thereof. In sum, the Court concludes that Plaintiffs Notice Letter “served the purpose that Congress intended.” See Hudson Riverkeeper Fund, 891 F.Supp. at 155. It was sufficiently specific to inform the Sarna Defendants of what they are allegedly doing wrong. See Catskill Mountains, 273 F.3d at 488. 2. The Complaint Must Be Dismissed as Against the Town of New Windsor Plaintiffs Notice Letter did not, however, afford adequate — or indeed any — notice to defendant the Town of New Windsor. Accordingly, Plaintiffs CWA claim against the Town must be dismissed for failure to comply with the pre-suit notice requirement of § 1365(b)(1)(A). Plaintiff alleges that the Town of New Windsor has received numerous easements (many of which were granted several years ago) into its “Drainage District # 6,” and that those easements include all or portions of the stormwater management system for the .Mt. Airy Development. (See Compl. ¶¶ 9-10; Pl.’s Mem. at 16-17.) Only one other paragraph in the Complaint even mentions Drainage District # 6; it alleges that Drainage District # 6 is “a party without whom the Court cannot accord complete relief to plaintiff,” (Compl. ¶ 22.) In its principal brief, Plaintiff states that the “Town of New Windsor, through Drainage District # 6[,] has acknowledged responsibility for compliance with portions of the stormwater management system and the SWPPP, including maintaining the basins located on City property,” and that the Town is “not maintaining the basins and stormwater system as evidence[d] by the continuing discharges into Brown’s Pond.” (Pl.’s Mem. at 17.) The Court construes the Complaint as at least attempting to assert a CWA claim against the Town. As noted above, a CWA citizen suit cannot be brought until sixty days after the prospective plaintiff has “given notice of the alleged violation ... to any alleged violator.” 33 U.S.C. § 1365(b)(1)(A). Obviously, a notice letter cannot provide notice to an alleged violator if it is not sent to the alleged violator. When the alleged violator is a town, the notice letter must be served personally or by registered mail on the “head of [the] agency” allegedly responsible for the violation. See 40 C.F.R. § 135.2(a)(2); Bettis, 800 F.Supp. at 1118. In Bettis, several of the defendants “never received a notice of any kind.” 800 F.Supp. at 1118. Moreover, they “were never named in the notices or letters.” Id. Thus, they “were not apprised of anything at all.” Id. The district court in Bettis expressed a willingness to overlook some of the “more technical” deficiencies in the pro se plaintiffs notice letter; but not the fact that certain defendants had not even received the letter. See id. Here, the Complaint alleges that Plaintiffs Notice Letter was sent to Mark Sarna and “to the registered agent for each of the remaining defendants.” (Compl. ¶ 5.) But there is no indication that the Letter was sent to the Town of New Windsor. The proofs of receipt attached to the Complaint do not include one for the Town. Neither the case caption on the Notice Letter, nor its list of “Proposed Defendants” to which “Notice Is Hereby Provided,” name the Town of New Windsor. (Notice Ltr. at 1.) The Letter’s nine-page summary of Plaintiff s allegations mentions the Town only twice, and only to state that the Mt. Airy Development is located therein, and that Brown’s Pond serves as a secondary water supply for the Town. (See id. at 3.) Yet the Town of New Windsor has not raised a notice argument — only the Sarna Defendants have moved to dismiss the Complaint. Indeed, the Town answered the Complaint on July 10, 2009. (Docket No. 10.) Perhaps tellingly, the Town’s answer includes paragraph 5 of the Complaint — in which Plaintiff alleges that notice has been provided pursuant to § 1365(b)(1)(A) — as one of the many paragraphs deemed “not directed to this defendant,” such that “no response is made thereto.” (Id.) It is true that Plaintiffs Notice Letter in no way addresses the Town. Instead, the Court raises this issue of its own accord. The Court may very well be obligated to do so because it implicates the Court’s subject-matter jurisdiction. See Hallstrom, 493 U.S. at 31, 110 S.Ct. 304. In Hallstrom, the Supreme Court considered the sixty-day notice provision of the Resource Conservation and Recovery Act of 1976 (“RCRA”) — which, as the Court noted, is substantively identical to the CWA’s sixty-day provision — and held that it is a “mandatory condition[ ] precedent to commencing suit,” which “a district court may not disregard ... at its discretion.” See id. at 22 n. 1, 31, 110 S.Ct. 304. However, the Court declined to decide whether the sixty-day notice provision is “jurisdictional in the strict sense of the term.” Id. at 31, 110 S.Ct. 304. Nevertheless, the Court held that the action- must be dismissed — even “after years of litigation and a determination on the merits” — because plaintiff had failed to comply with the presuit notice requirement. Id. at 32, 110 S.Ct. 304. In his dissent, Justice Marshall acknowledged that the majority opinion “might be read to suggest that, failure to comply with the 60-day notice provision deprives the court of subject-matter jurisdiction, thereby obligating a court to dismiss a case filed in violation of the notice provision no matter when the defendant raises the issue— indeed, • regardless of whether the defendant does so.” Id. at 34 n. *, 110 S.Ct. 304. However, because “the question whether a defendant may waive the notice requirement [was] not before the Court,” Justice Marshall “[did] not understand the Court to express any view on whether the notice requirement is waivable.” Id. Since Hallstrom, most, though not all, of the Courts of Appeals to consider the issue have concluded that the CWA’s pre-suit notice provision implicates a federal court’s subject-matter jurisdiction. See Ctr. for Biological Diversity v. Marina Point Dev. Co., 560 F.3d 903, 910 (9th Cir.2009) (“[T]he giving of a 60-day notice ... is a jurisdictional necessity.”); Bd. of Trustees v. City of Painesville, 200 F.3d 396, 400 (6th Cir.1999) (“This circuit has always required plaintiffs to adhere to § 1365’s notice provision because compliance with the notice requirement is a jurisdictional prerequisite to recovery under the statute.”); Atl. States Legal Found. v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th Cir.1997) (characterizing § 1365(b)(1)(A) as a “jurisdictional requirement[ ]”); Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1295-96 (1st Cir.1996) (assuming that a plaintiffs failure to comply with the CWA’s sixty-day notice provision would “deprive [a court] of jurisdiction,” and designating thé § 1365(b)(1)(A) issue as “jurisdictional”); Pub. Interest Research Group v. Windall, 51 F.3d 1179, 1189 n. 15 (3d Cir.1995) (“[Section § 1365(b)(1)(A) ] is a jurisdictional prerequisite.”); see also N.M. Citizens for Clean Air & Water v. Espanola Mercantile Co., 72 F.3d 830, 834 n. 2 (10th Cir.1996) (“[W]e need not decide the intriguing issue so carefully left open by Hallstrom — whether a mandatory precondition to suit is a component of nonwaivable ‘subject matter jurisdiction.’”). But see Am. Canoe Ass’n, Inc. v. Attalla, 363 F.3d 1085, 1088 (11th Cir.2004) (“[A]l-though subject matter jurisdiction may be raised at any time, the [CWA’s] notice requirement is more procedural than jurisdictional.”); Lockett v. E.P.A., 319 F.3d 678, 682-83 (5th Cir.2003) (holding that CWA’s sixty-day notice requirement, “although mandatory, is not jurisdictional in the strict sense of the term, and hence may not be availed of for the first time on appeal” (internal quotations omitted)). The Second Circuit has not definitively answered this question. In Catskill Mountains, the Second Circuit’s most comprehensive discussion of the CWA’s pre-suit notice requirement, the panel reviewed the district court’s denial of defendant’s “Rule 12(b)(1) motion” to dismiss for “want of jurisdiction” because plaintiffs notice letter had been inadequate— and appears to have assumed that the question was one of subject-matter jurisdiction. See 273 F.3d at 485-89. More recently, however, in 2006, the Second Circuit stated, in dicta, and in a footnote, that “For purposes of this appeal, we assume that non-compliance with the pre-suit notice provisions of ... the Clean Water Act does not affect a federal court’s subject matter jurisdiction,” but that “we do not decide that issue, because we conclude that dismissal of the plaintiffs amended complaint is warranted in any event.” See Bldg. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 157, 158 n. 14 (2d Cir.2006) (remanding to district court with instruction that it dismiss the complaint without prejudice on the ground that plaintiff had failed to comply with the sixty-day delay requirement). District courts in this Circuit, however, have consistently treated the CWA’s notice requirement as a question of subject-matter jurisdiction. See, e.g., Klebe, 2008 WL 5245963, at *5-6, 2008 U.S. Dist. LEXIS 102014, at *18 (dismissing CWA claim for lack of subject-matter jurisdiction because notice letter was inadequate); CARS, 2005 WL 3534178, at *5, *8, 2005 U.S. Dist. LEXIS 38404, at *17, *27 (same); Hudson Riverkeeper Fund, 891 F.Supp. at 153-55 (same); Bettis, 800 F.Supp. at 1115-16 (same). But see City of N.Y. v. Anglebrook Ltd. P’ship, 891 F.Supp. 900, 906 n. 9 (S.D.N.Y.1995) (declining to resolve question of “[wjhether defective notice is jurisdictional or merely procedural” because “the [plaintiffs] notice was adequate”). The Court does not think it necessary to take a position on the question left open by Hallstrom. The weight of the authority treating the CWA’s pre-suit notice provision as jurisdictional makes this Court inclined to raise the issue sua sponte. Regardless of whether compliance with § 1365(b)(1)(A) is a jurisdictional or merely procedural requirement, it is “a mandatory, not optional, condition precedent for suit,” which this Court may not disregard. See Hallstrom, 498 U.S. at 26, 110 S.Ct. 304 (emphasis added). Simply put, the fact that Plaintiffs Notice Letter was not even sent to the Town of New Windsor, and did not so much as mention the Town as a possible violator, are not deficiencies that this Court can overlook. If Plaintiff wishes to bring a CWA citizen suit against the Town for failing to maintain the Mt. Airy Development’s stormwater management system, Plaintiff must comply with the CWA’s pre-suit notice requirement. Accordingly, the only appropriate remedy is to dismiss the CWA claim against the Town, “without prejudice to refiling after full compliance with § 1365(b)(1)(A).” See Catskill Mountains, 273 F.3d at 489; see also Hallstrom, 493 U.S. at 32-33, 110 S.Ct. 304 (holding that where citizen-suit plaintiff fails to meet sixty-day notice requirement, “the district court must dismiss the action”). Although this course of action may not seem the most efficient use of judicial resources, see Hallstrom, 493 U.S. at 32, 110 S.Ct. 304, it is necessary to further the purpose of the CWA’s notice requirement — that is, affording government regulators the opportunity to bring an enforcement action before a citizen suit is commenced. Further, the Court notes that by dismissing the claim now, it avoids potentially having to do so at an even later stage of the case. Having dismissed the CWA claim against the Town of New Windsor, the Court declines to exercise supplemental jurisdiction over the state-law nuisance and trespass claims, to the extent those claims are asserted against the Town (the Complaint contains only a handful of references to Drainage District # 6, none of which alleges wrongdoing of any sort, so it is difficult to tell). Accordingly, the Complaint is dismissed in its entirety as against the Town of New Windsor, without prejudice to Plaintiffs refiling. D. The NYSDEC Administrative Proceeding Precludes Plaintiff from Seeking Civil Penalties for the CWA Claims The Sarna Defendants argue that this citizen suit is barred under § 1319(g)(6) of the CWA as a result of the NYSDEC’s administrative enforcement action, which was filed on April 30, 2009, more than a month before Plaintiff filed its citizen-suit Complaint. Section 1319(g)(6) does apply, but it only bars Plaintiff from seeking civil penalties — not declaratory or injunctive relief — for the alleged CWA violations. 1, Section 1319(g)(6) Applies to Administrative Enforcement Actions Section 1319(g)(6) of the CWA mandates that violations “with respect to which a State has commenced and is diligently prosecuting an action under a State law comparable to this subsection ... shall not be the subject of a civil penalty action under [§ 1365] of this Act.” 33 U.S.C. § 1319(g)(6). An administrative enforcement proceeding qualifies as an “action” for purposes of applying § 1319(g)(6). See Orange Env’t, Inc. v. County of Orange, 860 F.Supp. 1003, 1014 (S.D.N.Y.1994) (“[Section 1319(g)(6) ] precludes a citizen suit where a state is diligently prosecuting an administrative penalty enforcement action.”). Plaintiff correctly asserts that an administrative proceeding does not qualify as an “action” for purposes of § 1365(b)(1)(B), which bars a citizen suit “if the [EPA] Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order.” 33 U.S.C. § 1365(b)(1)(B): see Friends of the Earth v. Conrail, 768 F.2d 57, 63 (2d Cir.1985) (holding that, pursuant to its plain language, § 1365(b)(1)(B) applies only if the EPA or state action is brought in state or federal court). However, § 1319(g)(6), not § 1365(b)(1)(B), is the relevant bar in this case. Cf. Kara Holding Corp. v. Getty Petroleum Mktg., Inc., 67 F.Supp.2d 302, 308 (S.D.N.Y.1999) (finding that although NYSDEC administrative action did not trigger § 1365(b)(1)(B), “[a]n additional layer of complexity is added by 33 U.S.C. § 1319(g)(6)(A)(ii),” as its “preclusive effect is not only accorded to actions in state courts”). Section 1319(g)(6) specifies two situations in which its limitation on citizen suits does not apply: (1) where the citizen suit is filed before the commencement of the state action, or (2) where the prospective plaintiff gives notice of its intent to file a citizen suit before the commencement of the state action, and the plaintiff then files the citizen suit within 120 days after giving notice. See 33 U.S.C. § 1319(g)(6)(B). Neither exception applies here. Plaintiff filed its citizen suit on June 2, 2009, about a month after the commencement of the NYSDEC’s administrative action, and more than 120 days after sending its Notice Letter in late December 2008. 2. The NYSDEC Action Was Brought Under Comparable State Law For § 1319(g)(6)’s limitation on citizen suits to apply, the state action must be brought under “comparable” state law. Here, Plaintiff alleges that the Sarna Defendants have violated § 1311(a) of the CWA by discharging a pollutant not in compliance with the applicable SPDES permit. The NYSDEC brought its suit under Article 17 of New York’s ECL— and, specifically, ECL § 17-0803, which implements the CWA by mandating that “it shall be unlawful to discharge pollutants to the waters of the state from any outlet or point source without a SPDES permit ... or in a manner other than as prescribed by such permit” — seeking a civil penalty pursuant to ECL § 71-1929. There is no question that ECL Article 17 and § 71-1929 are “comparable” to the federal CWA scheme. See Orange Env’t, 860 F.Supp. at 1015 (concluding, in CWA citizen suit alleging that defendants discharged pollutants into river in violation of §§ 1311(a), that ECL Article 17 and § 71-1929 were comparable state statutes). 3. The Diligent Prosecution Requirement Is Met Plaintiff argues that § 1319(g)(6) does not limit its citizen suit because the diligent prosecution requirement is not satisfied. First, the fact that the NYSDEC action has been voluntarily discontinued does not affect the analysis. Section 1319(g)(6) bars the commencement of a CWA citizen suit for civil penalties if a state has filed and is diligently prosecuting an analogous enforcement action. See 33 U.S.C. § 1319(g)(6). Thus, “the relevant inquiry for defendants’ motion to dismiss is not whether or not the DEC’S actions can currently be categorized as diligent, but whether or not they could be so categorized [when the citizen suit was commenced].” See Orange Env’t, 860 F.Supp. at 1017. This seems particularly sensible here, as the NYSDEC could reinstitute its action at any time. Plaintiff claims that the NYSDEC was not diligently prosecuting the action even before it was discontinued. However, “the standard for evaluating the diligence of the state in enforcing its action is a low one which requires due deference to the state’s plan of attack.” Id.; see N. & S. Rivers Watershed Ass’n, Inc. v. Scituate, 949 F.2d 552, 557 (1st Cir.1991) (“Where an agency has specifically addressed the concerns of an analogous citizen’s suit, deference to the agency’s plan of attack should be particularly favored.”); Conn. Fund for Env’t v. Contract Plating Co., 631 F.Supp. 1291, 1293 (D.Conn.1986) (Cabranes, J.) (holding, in CWA citizen suit, that “[t]he court must presume the diligence of the State’s prosecution of a defendant absent persuasive evidence that the State has engaged in a pattern of conduct in its prosecution of the defendant that could be considered dilatory, collusive or otherwise in bad faith”). Thus, a plaintiff claiming that state prosecution is not diligent bears a heavy burden, which comports with the “main purpose behind [§ 1319(g)(6)’s] limitation of citizen suits ... to permit the federal and state governments to exercise their powers to remedy violations of the Clean, Water Act.” See N.Y. Coastal Fishermen’s Ass’n v. N.Y. City Dep’t of Sanitation, 772 F.Supp. 162, 165 (S.D.N.Y.1991); see also Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (“The bar on citizen suits when governmental enforcement action is under way suggests that the citizen suit is meant to supplement rather than to supplant governmental action.”). Here, the NYSDEC filed its administrative complaint on April 30, 2009, more than a month before Plaintiff commenced this citizen suit. The NYSDEC complaint named Mark Sarna and Mt. Airy Estates as respondents, and targeted the' same conduct alleged in Plaintiffs Complaint— the “discharges [of] stormwater into Brown’s Pond.” (See NYSDEC Compl. at 1.) Plaintiff conclusorily alleges, in a single sentence, that “There has not been diligent prosecution to redress the violations alleged.” (Compl. ¶ 7.) That is far from enough to satisfy Plaintiffs heavy burden of showing a lack of diligent prosecution. Further, the fact that the relief-requested by the NYSDEC is more limited than that sought by Plaintiff does not affect the Court’s conclusion. Cf. Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., Inc., 777 F.Supp. 173, 185 (D.Conn. 1991) (finding that Connecticut Department of Environmental Protection had diligently prosecuted its action against defendant even though the state action was “more limited in scope than the relief [the] plaintiff [was] requesting”), affd in part and rev’d in part, 989 F.2d 1305 (2d Cir.1993). Finally, although Plaintiff claims that the NYSDEC has failed since 2003 to obtain “substantial relief’ for the Sarna Defendants’ alleged violations at the Mt. Airy Development (PL’s Reply Mem. in Opp. to Mot. to Dismiss and in Further Supp. of Mot. for Prelim. Inj., Oct. 20, 2009 (“PL’s Reply Mem.”), at 12), there is no indication that the NYSDEC has “engaged in a pattern of conduct ... that could be considered dilatory, collusive or otherwise in bad faith,” see Conn. Fund, 631 F.Supp. at 1293. Accordingly, the Court holds that, because the NYSDEC was diligently prosecuting an enforcement action addressing the same conduct alleged by Plaintiff when it filed its Complaint, § 1319(g)(6)’s limitation on citizen suits applies. See Orange Env’t, 860 F.Supp. at 1006, 1017 (holding that plaintiffs CWA citizen suit for civil penalties was barfed because of NYS-DEC’s “administrative action concerning the situation alleged in the complaint,” and noting that “the DEC’S actions and enforcement decisions are entitled to a good degree of deference”). 4. Section 1319(g)(6) Only Precludes the Civil Penalty Component of Plaintiffs CWA Suit Section 1319(g)(6) does not bar Plaintiffs CWA suit in its entirety. As the Sarna Defendants acknowledge, courts in this Circuit have held that § 1319(g)(6)’s limitation on citizen suits applies only to CWA claims for civil penalties, not to claims for declaratory judgments or injunctive relief. See, e.g., Orange Env’t, 860 F.Supp. at 1017-18; Coalition for a Liveable W. Side, Inc. v. N.Y. City Dep’t of Envtl. Protection, 830 F.Supp. 194, 197 (S.D.N.Y.1993); Atl. States Legal Found., Inc. v. Hamelin, 182 F.Supp.2d 235, 248 (N.D.N.Y.2001). This interpretation of § 1319(g)(6) is supported by its plain language, and by the relevant House Committee Report, which states: No one may bring an action to recover civil penalties under [§ 1365 of the CWA] for any violation with respect to which the Administrator has commenced and is diligently prosecuting an administrative civil penalty action.... This limitation would not apply to (1) an action seeking relief other than civil penalties (e.g., an injunction or declaratory judgment). ' H.R. Conf. Rep. No. 1004, 99th Cong., 2d Sess., at 133 (1986). •Accordingly, having found that the NYS-DEC’s enforcement action satisfies the prerequisites for § 1319(g)(6) preclusion, the Court grants the Sarna Defendants’ motion to dismiss the civil penalties component of Plaintiffs CWA claim. The Court denies the Sarna Defendants’ motion as to Plaintiffs CWA claim for injunctive and declaratory relief. E. Plaintiff Has Adequately Pled That the Alleged CWA Violations Are Continuous Section 1365 of the CWA authorizes citizen suits against “any person ... alleged to be in violation” of state or federal effluent standards or limitations. 33 U.S.C. § 1365(a)(1) (emphasis added). The Supreme Court has held that this language does not confer federal subject-matter jurisdiction over citizen suits for “wholly past violations.” Gwaltney, 484 U.S. at 64, 108 S.Ct. 376. Instead, a plaintiff bringing a citizen suit must “allege a state of either continuous or intermittent violation — that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” Id. at 57, 108 S.Ct. 376; see Atl. States Legal Found., Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1019 (2d Cir.1993). At this stage of the proceedings, a plaintiffs “good-faith allegation of continuous or intermittent violation” will defeat a motion to dismiss for lack of subject-matter jurisdiction. See Gwaltney, 484 U.S. at 64, 108 S.Ct. 376; Conn. Coastal Fishermen’s Ass’n v. Remington Arms Co., 989 F.2d 1305, 1311-12 (2d Cir.1993); Mut. Life Ins. Co. v. Mobil Corp., No. 96 Civ. 1781, 1998 WL 160820, at *4, 1998 U.S. Dist. LEXIS 4513, at *11 (N.D.N.Y.1998). Plaintiffs Complaint satisfies the continuous violation requirement. The Complaint specifies numerous dates, beginning in 2004 and running through 2008, on which NYSDEC inspections allegedly noted sediment and erosion control deficiencies at the Development. (Compl. ¶¶ 82, 92-95.) The Complaint also alleges several dates in 2007 and 2008, including as recently as December 12, 2008, on which the Development’s stormwater management system failed during rainfall. (Id. ¶¶ 87, 96.) In short, the allegations in the Complaint give rise to the inference that there is a “reasonable likelihood” that the Sarna Defendants are past polluters that “will continue to pollute in the future.” See Gwaltney, 484 U.S. at 57, 108 S.Ct. 376. Moreover, the Complaint also alleges that the current SWPPP for the Mt. Airy Development fails to comply with technical design requirements. (Id. ¶¶ 69-70, 75, 79-81.) A flawed SWPPP filed in violation of permit requirements can constitute a “present violation” of the CWA. See Anglebrook, 891 F.Supp. at 905. Thus, the Court finds that Plaintiffs Complaint contains good-faith allegations of continuous violation, defeating the Sarna Defendants’ motion to dismiss for lack of subject-matter jurisdiction. F. The Sarna Defendants’ Motion to Dismiss the Complaint Pursuant to Rule 12(b)(6) for Failure to State a Claim Is Denied In addition to arguing that the Complaint must be dismissed for lack of subject-matter jurisdiction, the Sarna Defendants move to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim. (Sarna Defs.’ Mem. at 13-17.) Principally, the Sarna Defendants argue that the Complaint should be dismissed because its allegations “lump” them together. That a