Full opinion text
CORRECTED OPINION AND ORDER RAMOS, District Judge. This is a citizens’ suit brought by the Borough of Upper Saddle River, New Jersey (“Upper Saddle River”), Karen Miller (“Miller”), Roy Ostrom (“Ostrom”), Maria Florio (“Florio”), Mark Ruffolo (“Ruffolo”), and Linda MacDonald (“MacDonald”) (collectively, the “Plaintiffs”) under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (2006) (the “Clean Water Act” or “Act”) and state common law, alleging that, in the course of operating a sewage treatment facility, Rockland County Sewer District # 1 (the “Sewer District” or “Defendant”) has polluted — and will likely continue to pollute — the Saddle River. Second Am. Compl. (“SAC”) ¶¶ 1, 9-13, 41, Doc. 64. Plaintiffs bring four causes of action: continuing violations under section 301 of the Clean Water Act (First Claim); and private nuisance, public nuisance and trespass claims under state common law (Second, Third and Fourth Claims, respectively). Id. ¶¶ 37-53. Plaintiffs seek civil penalties, injunctive and declaratory relief and assert that, in the absence of judicial intervention, the “degradation of the Saddle River will destroy [Upper Saddle Riverj’s quiet beauty, its bucolic serenity and its healthy, quiet, placid character.” Id. ¶ 11. Pending before the Court are the parties’ cross-motions for summary judgment on all claims, pursuant to Federal Rule of Civil Procedure 56. Docs. 102, 106. For the reasons set forth below, both motions are GRANTED in part and DENIED in part. I. Background A. Statutory Framework The stated mission of the Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). Consistent with this goal, section 301 of the Act generally prohibits the discharge of any pollutant from a “point source” into navigable waters of the United States. Id. §§ 1311, 1362(6), (7), (12). However, the Act’s pollution prohibition is “tempered ... by a self-referential host of exceptions that allow the discharge of many pollutants once a polluter has complied with the [Act’s] regulatory program.” Atl. States Legal Found., Inc. v. Eastman Kodak Co., 12 F.3d 353, 357 (2d Cir.1993). Of particular relevance here, section 402 of the Act establishes a discharge permit program called the National Pollutant Discharge Elimination System (“NPDES”), 33 U.S.C. § 1342, which enables the Environmental Protection Agency (“EPA”) to issue permits authorizing the discharge of pollutants into waterways in accordance with certain specified conditions. Id. §§ 1319, 1342(b)(7). The Act also allows the states to implement NPDES through their own permit programs as long as such programs conform to federally approved guidelines. Id. § 1342(b), (c)(1). In New York, the Department of Environmental Conservation (“DEC”) is responsible for issuing these permits under the State Pollutant Discharge Elimination System (“SPDES”). See Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 273 F.3d 481, 486 (2d Cir.2001), adhered to on reconsideration, 451 F.3d 77 (2d Cir.2006). The Clean Water Act deems compliance with an SPDES permit to be compliance for enforcement purposes, 33 U.S.C. § 1342, and conversely, noncompliance with a permit violates the Act itself and constitutes grounds for liability. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also 40 C.F.R. § 122.41(a) (requiring that the per-mittee comply “with all conditions of this permit ... [a]ny permit noncompliance constitutes a violation of the Clean Water Act” (emphasis added)); Humane Soc. of U.S. v. HVFG, LLC, No. 06 Civ. 6829(HB), 2010 WL 1837785, at *11 (S.D.N.Y. May 18, 2010) (finding liability for failure to satisfy reporting requirements of SPDES permit). The Act creates two avenues for enforcement of permit violations: actions brought by the government and citizen suits. See, e.g., HVFG, 2010 WL 1887785, at *2. The EPA or the DEC may enforce the Act’s permit requirements through administrative, civil, and criminal sanctions. 33 U.S.C. § 1319. In the absence of such governmental enforcement, the Act allows “citizens” to bring civil enforcement actions seeking penalties or equitable relief “against any person alleged to be in violation of the conditions of either a federal or state NPDES permit.” 33 U.S.C. § 1365(a); see also id. §§ 1342(b) and 1365(f); Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 53, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The Act defines a “citizen” as “a person or persons having an interest which is or may be adversely affected.” 33 U.S.C. § 1365(g). However, in recognition of the “obvious danger that unlimited public actions might disrupt the implementation of the Act and overburden the courts,” Congress placed certain limits on the scope of citizen suits. Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57, 63 (2d Cir.1985) (citation omitted). Before filing suit, a citizen must provide 60 days’ notice to: (i) the EPA Administrator; (ii) the State in which the alleged violation occurs; and (iii) any alleged violator. 33 U.S.C. § 1365(b)(1)(A). The purpose of the notice provision “is to give [the alleged violator] an opportunity to bring itself into complete compliance with the [Act] and thus ... render unnecessary a citizen suit.” Gwalt-ney, 484 U.S. at 60, 108 S.Ct. 376. If neither the EPA nor DEC commences an action within that sixty-day notice period, the citizens may bring a suit in District Court seeking civil penalties and/or equitable relief. Atl. States Legal Found. v. Eastman Kodak, 933 F.2d 124, 127 (2d Cir.1991); HVFG, 2010 WL 1837785, at *2. A prevailing citizen-plaintiff may also be entitled to expenses and attorney’s fees. 33 U.S.C. § 1365(d); Laidlaw, 528 U.S. at 175,120 S.Ct. 693. Citizen suits “play an important role in the Act’s enforcement scheme,” as “[t]he citizen suit provisions were designed not only to ‘motivate government agencies’ to take action ... but also to make citizens partners in the enforcement of the Act’s provisions.” Riverkeeper, Inc. v. Mirant Lovett, LLC, 675 F.Supp.2d 337, 343 (S.D.N.Y.2009) (quoting Weiler v. Chatham Forest Prods., 392 F.3d 532, 536 (2d Cir.2004) (quoting Wilder v. Thomas, 854 F.2d 605, 613 (2d Cir.1988))). Congress clearly indicated that citizen groups are not to be treated as pariahs, “but rather as welcomed participants in the vindication of environmental interests.” Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir.1976). However, because citizen-suits are “meant to supplement rather than to supplant” government enforcement actions, the relief available through a citizen-suit may be limited unless the plaintiffs can show that their suit arises from “ongoing” violations of the Act that have not been diligently prosecuted by the government. 33 U.S.C. § 1319(g)(6); Gwaltney, 484 U.S. at 60,108 S.Ct. 376. B. Factual Background Unless otherwise noted, the following facts, taken from the parties’ Local Rule 56.1 statements and documents filed in support thereof, are undisputed. i. The Parties The Saddle River flows through Rock-land County, New York, and south into Plaintiff Upper Saddle River, a municipality in northern New Jersey. Pis.’ Am. 56.1 Stmt. ¶¶ 1-2; see also Gonnella Deck Ex. 8(map), Doc. 105-11. Plaintiffs Miller, Os-trom, Florio, Ruffolo, and MacDonald (together, “Individual Plaintiffs”) reside in Upper Saddle River near the Saddle River and its tributaries-. Pis.’ Am. 56.1 Stmt. ¶¶ 3-8. Part of Upper Saddle River’s northern boundary abuts a sanitary sewer system (the “System”) operated by Defendant Sewer District. Id. ¶ 2; Def.’s Opening Br. 3. Defendant’s System processes sanitary sewage “for residential, municipal and industrial users throughout much of Rock-land County,” and its service area covers approximately 73 square miles. Pis.’ Am. 56.1 Stmt. ¶¶ 9-10; Gonnella Decl. Ex. 3 (hereinafter “Engineering Report”), Docs. 105-3 to 105-6. The System collects sanitary sewage then conveys it to Defendant’s wastewater treatment plant in Orange-burg, New York, which treats and discharges the sewage water into the Hudson River. Engineering Report at 1-2. As of January 2008, Defendant estimated that its wastewater treatment plant processed 28.9 million gallons of wastewater per day. Id. In addition to the Orangeburg plant, Defendant operates more than 17,000 manholes and more than twenty pump stations throughout its service area. Engineering Report Sec. C, 6-6; id. at Figure 1-4: RCSD Pump Stations. Dianne Philipps is the Executive Director of the Sewer District. Philipps Aff. ¶ 1, Doc. 104. She has been employed by the Sewer District since 1989 and became Executive Director in approximately March 2004. Pis.’ Ex. U (Philipps Dep. 9:5-9:24). From January 1998 to at least January 2011, Eugene Yetter served as the Sewer District’s Director of Plant Operations. Pis.’ Ex. Y (Yetter Dep. 8:8-8:19). Mr. Yetter primarily worked at Defendant’s waste water treatment plant in Orangeburg. Id. (9:3-9:5, 74:16-74:18). Ms. Philipps was Mr. Yetter’s boss. Id. (10:11 10:13). Mr. Yetter no longer works for Defendant. Def.’s Resp. Pis.’ 56.1 Stmt. ¶ 221, Doc. 121. ii. Defendant’s SPDES Permit A permit issued by the DEC governs Defendant’s operation of the System. See Pis.’ Am. 56.1 Stmt. ¶¶ 10-11. While Defendant’s SPDES Permit enables it to discharge wastewater, it restricts the allowable location, concentration and volume of discharge. 1999-2008 Permit; 2008-2013 Permit. Defendant’s SPDES Permit only authorizes the discharge of wastewater from one location — the wastewater treatment plant in Orangeburg — and only into one waterway: the Hudson River (and its tributary, Sparkill Creek). 2008-2013 Permit at 4; 1999-2008 Permit; see also Engineering Report at Sec. 1.3. The SPDES Permit does not allow Defendant to discharge sewage from sites outside of the treatment plant, such as pump stations or manholes, or into other waterways. Pis.’ Am. 56.1 Stmt. ¶¶35, 233; Pis.’ Ex. U (Philipps Dep. 177:3-177:6, 182:3-183:23). Defendant’s SPDES Permit details effluent limitations and monitoring requirements for parameters including, but not limited to, pH, temperature, volume of suspended and settleable solids, fecal coli-form, total residual chlorine (“TRC”), biochemical oxygen demand (“BOD”), and carbonaceous biochemical oxygen demand (“CBOD”). (“Permit Limits, Levels, and Monitoring Definitions” in the 2008-2013 Permit; “Final Effluent Limitations and Monitoring Requirements” in the 1999-2008 Permit). The permit expressly prohibits Defendant from discharging water that contains the listed parameters “at levels which may cause or contribute to a violation of water quality standards.” 2008-2013 Permit at 2. Defendant’s SPDES Permit also imposes monitoring, reporting and recordkeep-ing obligations, including a requirement that Defendant must orally report any noncompliance with the terms of the SPDES Permit “which may endanger health or the environment” within 24 hours, and submit a written noncompliance report detailing the cause, duration and description of the noncomplianee within five days. 1999-2008 Permit; 2008-2013 Permit. The 2008-2013 SPDES Permit lists Ms. Philipps as the “Responsible Agent or Official” for Defendant’s discharge monitoring reports, whereas the 1999-2008 SPDES Permit names Ronald Delo, her predecessor. Id.; see also Pis.’ Ex. U (Philipps Dep. 9:18-9:19). iii. Sanitary Sewage Spills Sanitary sewage overflows (“SSOs”) are sewage spills into the surrounding environment from points not authorized by a discharge permit. Engineering Report at 3. According to Defendant, “[l]ike all separate sanitary sewer systems,” its System “suffers from a certain amount of intrusion of unwanted water from sources such as groundwater, surface water entering through manhole cover vents, illegally connected roof leaders ... sump pumps, and storm drains.” Defi’s Opening Br. 4 (citing Engineering Report at 1-6-1-8). One potential effect of this “extraneous flow” is that it can overload the System’s processing capacity and cause SSOs. Id. Plaintiffs primarily complain of SSOs related to the Saddle River Pump Station, which is located on the New York side of the New York-New Jersey border. Engineering Report Sec. C, 6-6; id. at Figure 1-4: RCSD Pump Stations. The Saddle River Valley Swim and Tennis Club (the “Swim Club”) is next to the Saddle River Pump Station on Saddle River Road, in New York. Pis.’ Am. 56.1 Stmt. ¶¶ 28, 54. Plaintiffs Florio and Ruffolo are members of the Swim Club. Id. ¶¶ 88, 98. Plaintiff Ostrom lives in New Jersey, across the border from the Saddle River Pump Station, downstream from the Swim Club. Id. ¶ 78; Gonnella Deck Ex. 8(map). Ms. Phi-lipps testified that the water flow near the New York-New Jersey border is such that the flow heads to New Jersey by means of gravity and is then pumped back toward New York by pumping stations. Pis.’ Am. 56.1 Stmt. ¶ 122. Ms. Philipps testified that the Saddle River Pump Station is “problematic” in that it is a “high head” station, which means that its pumps “take more of a beating” due to vibration from high head conditions, and thus have to be replaced more frequently. Pis.’ Ex. U (Philipps Dep. 20:9-22:23); Def.’s Resp. Pis.’ 56.1 Stmt. ¶¶ 129-30. Ms. Philipps testified Defendant has had more mechanical failures at the Saddle River Pump Station relative to other stations as a result of its high head design. Id. at 77:3-77:20. She further testified that, as of her January 2011 deposition, Defendant had not made any design changes “to correct the high head situation,” and that a new pump station, which she estimated would cost six million dollars, would be required to fix the problem. Id. at 77:16-77:25; 78:1-78:2. Plaintiffs also complain about SSOs from the Twin Lakes Pump Station, which Ms. Philipps testified has the same design as the Saddle River Pump Station. Id. at 78:13-79:2. Plaintiffs claim that they have personally witnessed sewage spills in their community and have submitted photographs of several sewage spills at the Swim Club in support of their motion. Pis.’ Exs. QQ-SS; Pis.’ Am. 56.1 Stmt. ¶¶ 67, 90. Plaintiff Florio testified that, one “perfectly fine day, not during a rainstorm and not after a rainstorm,” she witnessed a fountain of sewage flow out of a manhole near the Swim Club. Pis.’ Am. 56.1 Stmt. ¶¶ 90-92. Thereafter, she testified that she witnessed sewage rush down the Swim Club’s driveway, and cover its lawn with “pieces of toilet paper, used, bloated, tampons, [and] paper.” Id. ¶¶ 92-93. Plaintiff Ruf-folo testified that athletic fields in Lions Park, which is adjacent to the Saddle River, “smell like sewer.” Id. ¶¶ 102-103. Mr. Ruffolo also claims to have observed what “looked to be like toilet paper” in the Saddle River. Id. ¶ 105. Plaintiff Ostrom claims that he has witnessed “squished up toilet paper” and excrement in the portion of the Saddle River behind his backyard. Id. ¶ 77. Plaintiff Ostrom claims that he and his wife have not used their backyard in the past fifteen years, and do not cook outdoors, due to odors of sewage emanating from the river. Id. ¶ 80. As part of a volunteer “River Assessment Team,” Plaintiff Miller claims to have taken water samples from the Saddle River that test positive for fecal coliform bacteria. Id. ¶¶ 68-70. Based upon Defendant’s own spill reports, sworn testimony and their expert’s reports, Plaintiffs assert that since November 8, 2001, Defendant has caused 135 SSOs, impacting a wide range of locations from the Saddle, Mahwah and Hackensack Rivers to the Swim Club lawn. Pis.’ Opening Br. 1, 12-17, 24 (citing Pis.’ Exs. GGG, III). While Plaintiffs acknowledge that Defendant and the DEC entered consent orders in 2006 and 2012 with respect to some of these violations, they seek to hold Defendant liable for sewage spills discharged into the Saddle River that were not covered by those consent orders. Pis.’ Opening Br. 18; Pis.’ Opp. Br. 15. iv. The 2006 Consent Order On February 22, 2006, the DEC sent a letter to Ms. Philipps explaining that Defendant had violated the terms of its SPDES Permit and enclosing a copy of a proposed, unsigned consent order. Def.’s Resp. Pis.’ 56.1 Stmt. ¶¶ 144-145. The unsigned consent order identified forty dates on which “[SSO] events discharging untreated raw sewage and stormwater to waters of the State” occurred, during the time period from January 2, 2008 to December 16, 2005. Pis.’ Ex. JJ (the “February 22, 2006 Letter”). At her deposition, Ms. Philipps testified that Defendant reviewed and modified certain terms of the consent order attached to the February 22, 2006 Letter. Pis.’ Ex. U (Philipps Dep. 356:1-374:5); Def.’s Resp. Pis.’ 56.1 Stmt. ¶¶ 146-47. In particular, Ms. Philipps testified that the Sewer District rejected a clause proposed by the DEC that would have required the Sewer District to immediately “cease and desist from any and all future violations” because the Sewer District would not be able to comply with such a provision. Pis.’ Ex. U (Philipps Dep. 359:16-361:6); Def.’s Resp. Pis.’ 56.1 Stmt. ¶ 147. On May 10, 2006, Defendant formally executed a consent order with the DEC. Gonnella Decl. Ex. 2 (the “2006 Consent Order”), Doc. 105-2. The 2006 Consent Order provides: Between January 2, 2003 and December 16, 2005, the [DEC] documented violations by Rockland County Sewer District #1 ... at multiple [of its] sewer collection system sites, which are located at multiple Town and Street locations ... [specifically: [Defendant] violated [New York Environmental Conservation Law] section 17-0803, which makes it unlawful to discharge pollutants to the waters of the state from any outlet source in a manner other than as prescribed by SPDES permit, when Respondent’s sewer collection system experienced multiple sanitary sewer overflow ... events discharging untreated raw sewage and storm water to the waters of the State. These violations are set forth in Appendix A to this Order, which is hereby incorporated into this Order in its entirety and shall be fully enforceable as part of this Order. ... [Defendant] consents to the entering and issuing of this Order, and agrees to be bound by the terms and conditions of this Order, including the attached Compliance Schedule. 2006 Consent Order at 1. “Appendix A” identifies sixty-seven overflows on forty dates, three of which occurred at or near the Saddle River Pump Station: (1) an SSO of 400 gallons, at Manhole 10172, on August 14, 2003 that occurred after a power outage (A-2); (2) an SSO of 8,500 gallons, from Manholes 10172, 10174, and 10434, on April 4, 2005 (cause unknown) (A-5); and (3) an SSO of 10,000 gallons at the Saddle River Pump Station on November 30, 2005, after an “uninterruptible power supply” failure (A-6). Id. at Appendix A. In total, the DEC imposed civil penalties of $20,000 on Defendant — $10,000 of which was to be paid immediately, and $10,000 suspended subject to Defendant’s compliance with the Order. Id. at 1. Importantly, the executed Order did not include the “cease and desist” provision that the DEC had proposed in February 2006. The 2006 Consent Order’s “Compliance Schedule” required Defendant to “certify completion of the work required under this schedule[ ] to the [DEC] within five (5) days of its completion.” Id. at 2. Additionally, the Order required Defendant to: (1) “[immediately ... continue to report” any SSOs to the DEC, as required by its SPDES Permit; (2) submit a Dry Weather SSO Abatement Report to the DEC by December 29, 2006; and (3) submit an Engineering Report to the DEC by July 2, 2007. Id. at 4. • DEC required that the Dry Weather Abatement SSO Abatement Report include: (1) “[a] description of [Defendant’s] SSO abatement program for the Dry Weather SSO Events at the locations listed in Appendix A” and (2) a description of Defendant’s Operation and Maintenance Program with recommended improvements to help reduce dry weather SSOs. Id. • The Engineering Report was to address “all wet and dry weather SSOs listed in Appendix A,” and include: (1) an evaluation of flow data for the collection system, including collection system capacities, interceptors and pumping stations; (2) a description of the SSO abatement program for “the locations listed in Appendix A”; (3) proposed design upgrades for the SSO abatement program; and (4) a final design and implementation schedule “with specific tasks, durations and milestone dates.” Id. at 4-5. The deadlines for the two reports are the only concrete deadlines set forth in the Order. However, it provided that, once approved by the DEC, the implementation schedules proposed in Defendant’s reports would become enforceable parts of the 2006 Consent Order. Id. at 5. v. Compliance with the 2006 Consent Order On December 29, 2006, Defendant submitted its initial Dry Weather Abatement Report to the DEC. Gonnella Deck Ex. 4 (hereinafter “Dry Weather Report”), Doc. 105-7. The Report concluded that Defendant experienced 25 dry weather SSO events between 2003 and 2005, primarily caused by “blockages or mechanical failures.” See id. at 5-6 and Appendix A. The Report chiefly attributed the blockages to grease buildup, and identified operator error, equipment failure, and vandalism as additional causes of SSOs. Id. at 5-7. The Report also recommended equipment upgrades, a preventative flushing program, repairs to the collection system, and an educational outreach program for food service professionals on the perils posed by grease to the sewage system. Id. at 8-11. On July 2, 2007, Defendant submitted its initial Engineering Report to the DEC. Gonnella Decl. Ex. 3 (Letter from D. Phi-lipps to DEC dated January 16, 2008 (hereinafter “Jan. 16, 2008 Letter”) at 1), Doc. 105-3. The Engineering Report concluded that “wet weather inflow” was the major cause of the SSOs identified in the 2006 Consent Order. Id. To resolve this problem, the Engineering Report proposed that Defendant locate and eliminate wet weather inflow sources (“leaky manholes, illegal roof leader connections, cross-connections with storm sewers”). Id. On September 18, 2007, the DEC sent Defendant a letter critiquing the Engineering Report, particularly the inadequacy of its proposed schedule for completion, which did not require Defendant to begin eliminating inflow sources until January 2009. Pis.’ Ex. WW at RSHC00008136. The DEC also directed Defendant to revise its report to include an evaluation of the Saddle River Pump Station, which “should have been part of this Engineering Report” because “[sjanitary sewer overflows from this pump station have resulted in a lawsuit from a bordering community in NJ.” Jan. 16, 2008 Letter at 6. A letter from the DEC dated November 20, 2007 submitted additional remarks to Defendant and indicated that the DEC would not be approving the Report at that time. Gonnella Deel. Ex. 5 (“Nov. 20, 2007 Letter”), Doc. 105-8. Defendant issued a revised Engineering Report in January 2008. The January 2008 Report proposed a more expedited implementation schedule, wherein all planned improvements to “priority one” Consent Order locations were to be completed by December 2009, and the remainder of improvements would be completed by December 2011. Jan. 16, 2008 Letter; Engineering Report at Table 6-5: Implementation Schedule. In its January 16, 2008 Letter to the DEC accompanying the revised Engineering Report, Defendant stated as follows regarding the Saddle River Pump Station: The Order did not require a detailed evaluation of any specific pumping station. The District has been aware of sporadic pump control malfunctions in recent years at the Saddle River Pumping Station. Concerns regarding the peak wet weather flow conveyance at the Saddle River Pumping Station were identified as part of the study’s flow metering program. Since the initial report was submitted, a more detailed in-house evaluation of the pumping station hydraulics and pump controls has been completed. The District has prepared contract documents for the replacement of pumps and controls. This work is currently under construction. Jan. 16, 2008 Letter at 6. The record is unclear as to when and under what circumstances the DEC formally approved Defendant’s proposals, but both parties’ experts accept the schedule set forth in the January 2008 Engineering Report as final. See Pis.’ Ex. Ill (Lindsay Rpt. at ¶4). In February 2010, the DEC sent a letter to Defendant requesting that it prepare an addendum to the Dry Weather Abatement Report describing Defendant’s pump stations, including metrics such as “location, capacity, number of pumps, age of equipment, last major upgrade/repair/replacement, emergency power, overflow history, overflow location in the event of a problem, and nearest receiving water which would be affected by an overflow incident.” Pis.’ Ex. AAA. The impetus for this request was a “technical compliance conference” regarding a sewage overflow at the Twin Lakes Pump Station on January 22, 2010 that reportedly discharged 100,000 gallons into the Saddle River. Pis.’ Ex. ZZ. The letter also directed Defendant to identify “priority stations” based on conditions such as capacity and maintenance history. Pis.’ Ex. AAA. Defendant submitted the requested addendum, authored by Ms. Philipps and Mr. Yetter on March 19, 2010. Def.’s Resp. Pis.’ Am. 56.1 Stmt. ¶ 181; Pis.’ Ex. BBB. It represents that the Saddle River Pump Station “was refitted with three new raw sewage pumps,” and that additional upgrades were planned under “[a] current capital improvement project.” Pis.’ Ex. BBB at 5. The report did not specify a deadline for these planned upgrades. Id. At her deposition in January 2011, Ms. Philipps testified that the replacement of the Saddle River Pump Station pumps occurred in January 2008. Ms. Philipps testified that it is “fair to say” that the replacement of pumps at the Saddle River Pump Station did not “address the problem of the SSOs at the Saddle River Pump Station,” and that SSOs continued to occur after January 2008. Pis.’ Ex. ,U (Philipps Dep. 255:25-274:23). For example, the installation of new pumps did not stop sewage from overflowing out of a manhole nearby the Swim Club on March 5, 2008. Def.’s Resp. Pis.’ 56.1 Stmt. ¶ 163. Defendant proffers as proof of its compliance with the 2006 Consent Order the Philipps Affidavit and the reports prepared pursuant to the Order. See generally Def.’s 56.1 Stmt., Doc. 101. In her Affidavit, Ms. Philipps attests that the District spent approximately $12 million improving its System in response to the 2006 Consent Order and an additional $18.5 million in other improvements (of its own volition). Philipps Aff. ¶ 6. Ms. Philipps avers that Defendant undertook efforts to eliminate SSOs by “removing major sources of inflow in the system, modifying and/or repairing manholes and manhole covers in connection with that work, rerouting certain flow through capital improvements], installing new pumps[,] ... upgrading certain pump facilities, and installing new computerized telemetry systems,” and represents that such efforts succeeded. Def.’s 56.1 Stmt. ¶ 6 (citing Philipps Aff. ¶¶ 5, 9). Defendant argues that sewage spills in violation of the Clean Water Act have not been reported in the areas tributary to the Saddle River “since the completion of [the implementation of the 2006 Consent Order] at the end of 2011.” Def.’s Opening Br. 7. Defendant acknowledges one SSO in the area near the Saddle River in 2012, but claims that this solitary discharge only affected soil, and did not reach any watercourse. Id. at n. 6; Gonnella Decl. Ex. 12 (Bell Supp. Rpt. at 2-3), Doc. 105-16. Plaintiffs dispute that Defendant has submitted any evidence, aside from its own “hollow assertions,” indicating that it actually completed implementation of remedial measures and fully complied with the 2006 Consent Order. Pis.’ Reply Br. 9. At his deposition in January 2011, Mr. Yetter testified that the staffing of the Maintenance Department, which services Defendant’s plants and pump stations, has been down over twenty percent for “probably seven years,” Pis.’ Ex. V (Yetter Dep. 29:8-31:21), and that staffing impacts the Sewer District’s ability to address sewer overflows when they occur. Id. at 31:22 32:4. He also testified that he believed that the DEC “admonished” the Sewer District for staffing issues during the Consent Order review process. Id. at 90:15-90:19. With respect to improvements to the Saddle River Pump Station and in particular, manholes near the Swim Club, as of January 2011, Mr. Yetter testified that, notwithstanding the replacement of equipment and design changes, “overflow has continued to flow down into the Saddle River” from the manholes near the Saddle River Pump Station, during both dry and wet weather events, “[wjhenever the Saddle River Pump Station either can’t keep up with the flow or fails.” Id. at 76:3-82:19. vi. The 2012 Consent Order On or about April 7, 2010, the DEC sent a notice of violation to Defendant concerning certain sewage spills that occurred during 2009 and 2010. Pis.’ Ex. CCC. More than two years later, on November 29, 2012, Defendant and the DEC entered into a Consent Order (the “2012 Consent Order”) addressing these sewage spills. Philipps Aff. ¶ 7; Gonnella Decl. Ex. 7 (2012 Consent Order at 1-4), Doc. 105-10. The DEC charged that Defendant violated the effluent limits of its SPDES permit by discharging sewage into the waters of the State eleven times between April 2, 2009 and April 1, 2010. 2012 Consent Order at 1-3. The 2012 Consent Order does not mention the 2006 Consent Order. Def.’s Resp. Pis.’ 56.1 Stmt. ¶ 45. While the 2012 Consent Order primarily focuses on violations at facilities not at issue here, several of the overflows identified in the 2012 Consent Order emanated from locations related to the Saddle River Pump Station: Manholes 10171, 10172, and 10174. 2012 Consent Order ¶¶ 5c, 5d, 5h. Two of these manholes, 10172, 10174 were sites of overflows listed in the 2006 Consent Order. 2006 Consent Order at Appendix A. Both Consent Orders also mention Manhole 10434 on Ramapo Lane. Id; 2012 Consent Order ¶ 5c. The 2012 Consent Order imposed a total civil penalty of $75,000 for Defendant’s violations, $25,000 of which was to be paid immediately, and $50,000 suspended. 2012 Consent Order at 4. In addition, the 2012 Consent Order required Defendant to develop an Asset Management Plan and a Capital Improvement Plan to improve their Lincoln Street plant (not at issue here). Id at 17. Defendant claims that the SSOs underlying the 2012 Consent Order “were all related to unpredictable, errant mechanical failures and operator error.” Def.’s Opening Br. 6 n. 5 (citing Philipps Aff. ¶¶ 7-9). Ms. Philipps attests, and Plaintiffs dispute, that the purpose of the 2012 Consent Order was for the DEC to ensure that Defendant followed through on its efforts to develop an Asset Management and Capital Improvement Plan, which were already underway at the time of the execution of the 2012 Consent Order. Philipps Aff. ¶ 7. Defendant represents, and Plaintiffs contest, that the Sewer District has fully complied with the 2012 Consent Order. Id ¶¶ 10-11. vii. The Instant Action On October 6, 2006, Upper Saddle River sent a letter of intent to file suit to Defendant, the DEC, the DEP, and the EPA, asserting that the 2006 Consent Order, which had been executed four months pri- or, failed to provide a remedy for Defendant’s sewage spills, which continued to flow into the Saddle River unabated. Pis.’ Ex. C. On January 5, 2007, Upper Saddle River commenced the instant citizen suit (Compl., Doc. 1), and the Individual Plaintiffs joined the case on April 11, 2007. Am. Compl., Doc. 15. Plaintiffs filed a Second Amended Complaint (the “SAC”) on May 17, 2010. Plaintiffs’ First Claim for relief is “violation of the Clean Water Act by specific illegal discharges to waters of the United States.” SAC ¶¶ 28-41. Plaintiffs allege that, after the entry of the 2006 Consent Order, Defendant persisted in violating the terms of its SPDES Permit — and thus the Clean Water Act — by discharging raw sewage containing pollutants: (1) from locations not authorized by its SPDES Permit, such as manholes, pipes and/or point sources at or adjacent to Cherry Lane, South Monsey Road, and in the vicinity of the Swim Club; and (2) into the Saddle River and its tributaries. Id ¶¶ 31-32, 37. The Second through Fourth Claims assert state common law claims for trespass, public and private nuisance. Id ¶¶ 42-53. Like the original complaint (see Compl. ¶ 26), the SAC alleges that Defendant is responsible for “unpermitted discharges” of waste water into navigable waters on dates including, but not limited to: every day from August 23-September 3, 2006; October 31, 2006; November 6, 2006; November 8, 2006; “on or about” March 2, 2007; and “upon information and belief,” additional spills from August 23, 2006 to the present. SAC ¶ 34. Plaintiffs contend that since November 8, 2001, Defendant caused approximately 135 SSOs that violated the terms of its SPDES Permit. Pis.’ Opening Br. 24; Pis.’ Am. 56.1 Stmt. ¶¶ 135-37, 187-219. Indeed, Defendant’s own records document the existence of many of these spills. Pis.’ Exs. MM-OO, TT, W (Defendant’s “Spills Files” for 2006-2010). Nevertheless, Plaintiffs only seek relief under the Clean Water Act for spills affecting the Saddle River, and only seek to hold Defendant liable for spills occurring after those identified in the 2006 Consent Order (i.e., after December 16, 2005). SAC ¶¶ 28-41; Pis.’ Opening Br. 1-17; Pis.’ Opp. Br. 15. viii. Sewage Spills from December 16, 2005-2011 In total, based upon a table prepared by their expert, Plaintiffs argue that Defendant discharged sewage in close proximity to, if not directly into, the Saddle River on at least 33 occasions between 2006 and 2011. Pis.’ Opening Br. 1; Pis.’ Ex. Ill (Table 1). However, as Plaintiffs’ expert himself notes, not all of those spills necessarily “affected,” i.e., discharged into, the Saddle River. Pis.’ Ex. Ill (Table 1); Pis.’ Ex. Y (Lindsay Dep. 56:16 — 58:6). Plaintiffs’ briefing identifies approximately eighteen spills that actually affected the Saddle River and its tributaries. Pis.’ Opening Br. 12-17. Of those eighteen spills, Defendant does not dispute that after December 16, 2005, it discharged sewage into the Saddle River and its tributaries on the following twelve dates: • 11/21/2006: Manhole 10118 discharged approximately 1,500 gallons of sewage into a tributary of the Saddle River. Def.’s Resp. Pis.’ 56.1 Stmt. ¶ 187. • 3/2/2007: A sewage overflow from Manholes 10171 and 10172, due to the failure of the Saddle River Pump Station, caused a portion of sewage to overflow into the Saddle River. Id. ¶ 196 (Defendant only disputes spill quantity). • 4/15/2007: Manhole 10180 released approximately 12,000 gallons of sewage, which drained into a tributary of the Saddle River. Id. ¶ 192. • 4/16/2007: Manholes 10172 and 10174 released approximately 390,-000 gallons of sewage, which ponded in the area and drained into the Saddle River. Id. ¶ 191 (Defendant only-disputes spill quantity). • 10/12/2007: The Saddle River Pump Station failed and Manholes 10171 and 10172 released 500-1,000 gallons of sewage, which flowed into the Saddle River. Id. ¶ 195 (Defendant only disputes spill quantity). • 11/28/2007: An estimated 3,000 gallons of sewage overflowed from Manhole 10118 and drained into a tributary of the Saddle River. Id. ¶ 194. • 12/23/2007: Approximately 800 gallons of sewage overflowed from Manholes 10171 and 10172 in the vicinity of the Swim Club, and a portion of the sewage flowed to the Saddle River. Id. ¶ 190. • 3/5/2008: Approximately 3,000 gallons of sewage overflowed from Manholes 10171, 10172 and 10174, a portion of which flowed into the Saddle River. Id. ¶ 197. • 4/26/2009: Defendant admitted to a sewage overflow of 78,000 gallons from Manholes 10171 and 10172 at the Saddle River Pump Station, and Manhole 10434 on Ramapo Lane, through the 2012 Consent Order. 2012 Consent Order ¶ 5c. A portion of this sewage was released into the Saddle River. Def.’s Resp. Pis.’ 56.1 Stmt. ¶ 199 (Defendant only disputes spill quantity). • 3/14/2010: Manholes 10172, 10174 and 104346 overflowed and drained into the Saddle River. Id. ¶ 201. • 3/29/2010: Manholes 10172, 10174 and 10436 were found overflowing, and the overflow drained into a tributary of the Saddle River. Id. ¶ 204. • 4/1/2010: An overflow at the Twin Lakes Pump Station discharged 50,-000 gallons of sewage into a tributary of the Saddle River. Id. ¶ 206 (Defendant disputes volume); 2012 Consent Order ¶ 5k (admitting overflow into navigable waters). Beyond the events admitted by Defendant above, according to Plaintiffs, the six additional dates on which Defendant’s sewage spills “affected” the Saddle River are: 11/6/2006; 11/8/2006; 4/17-4/18/2007; 9/8/2008; 1/12/2010; and 2/17/2010. Pis.’ Opening Br. 12-17. The issue now before the Court is to what extent Defendant can be held liable for its sewage spills through a citizen suit brought under the Clean Water Act and state common law. II. Legal Standard on Motion for Summary Judgment Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(a). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y.2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009)). A fact is “material” if it might affect the outcome of the litigation under the governing law. Id. The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets its burden, “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 504 (S.D.N.Y.2010) (quoting Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir.2008)) (internal quotation marks omitted). In deciding a motion for summary judgment, the Court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir.2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). The non-moving party must do more than show that there is “some metaphysical doubt as to the material facts.” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir.2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)) (internal quotation marks omitted). To defeat a motion for summary judgment, “the non-moving party must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F.Supp.2d at 467-68 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 256-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The same legal standard applies when analyzing cross-motions for summary judgment. See Schultz v. Stoner, 308 F.Supp.2d 289, 298 (S.D.N.Y.2004) (quoting Aviall, Inc. v. Ryder Sys., Inc., 913 F.Supp. 826, 828 (S.D.N.Y.1996)). “[Ejach party’s motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.2001) (citing Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 314 (2d Cir.1981)). The Court is not required to grant summary judgment in favor of either moving party. See id. (citing Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir.1993)). III. The Parties’ Cross-Motions for Summary Judgment on Plaintiffs’ Claims A. Continuing Violations Under the Clean Water Act (First Claim) Plaintiffs assert that the Court should grant summary judgment in their favor, and hold Defendant strictly liable for violating the Clean Water Act, because they have proven that, notwithstanding the entry of the 2006 Consent Order, Defendant repeatedly discharged — and will likely continue to discharge — raw sewage wastewa-ter into the Saddle River. In support of their motion, Plaintiffs offer several forms of evidence, including Defendant’s internal spill reports, correspondence with the DEC, DEC database records, photographs, testimony, and their expert’s report. Pis.’ Opening Br. 1-2, 24; see generally Pis.’ Am. 56.1 Stmt. Defendant cross-moves for summary judgment on the grounds that Plaintiffs have failed to satisfy the constitutional and statutory requisites of their Clean Water Act claim. Specifically, Defendant argues: (1) Plaintiffs lack Article III standing; (2) Plaintiffs cannot prove that Defendant committed “ongoing violations” of the Clean Water Act at the time this suit was filed, as required by the Supreme Court’s decision in Gwaltney; (3) the state’s diligent prosecution of the 2006 Consent Order bars Plaintiffs’ citizen suit, pursuant to § 1319(g)(6)(A)(ii) of the Clean Water Act; and (4) Defendant’s compliance with the 2006 Consent Order, and improvements to its System, moot this action entirely. Def.’s Opening Br. 1-2; Def.’s Opp. Br. 1-2. The Court will address each of Defendant’s arguments in turn, then evaluate whether Plaintiffs have adduced sufficient evidence to support a finding of liability. 1. Constitutional Standing i. Legal Standard “Constitutional standing ‘is the threshold question in every federal case, determining the power of the court to entertain the suit.’ ” Leibovitz v. New York City Transit Auth., 252 F.3d 179, 184 (2d Cir.2001) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). In order to show standing under Article III of the U.S. Constitution, a plaintiff has the burden of proving: (1) “injury in fact,” (2) a causal relationship between the injury and the challenged conduct, and (3) “it is likely, as opposed to merely speculative,” that the injury will be redressed by a favorable decision. Laid-law, 528 U.S. at 180-81, 120 S.Ct. 693 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). At the summary judgment phase, the plaintiff must provide specific facts in support of its allegations, and then ultimately, it must prove them at trial. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. As a general matter, there is a low bar for standing in the context of Clean Water Act litigation: “the issue is whether [the] plaintiff has established the ‘identifiable trifle’ of an injury that either has or will imminently occur as a result of the conduct.” Mancuso v. Consol. Edison Co. of New York, 130 F.Supp.2d 584, 590 (S.D.N.Y.2001), aff'd sub nom., Mancuso v. Consol. Edison Co. of New York, Inc., 25 Fed.Appx. 12 (2d Cir.2002) (“Every appellate court that has considered standing under the [Clean Water Act] has adopted a low threshold of entry.”) (collecting cases). ii. Discussion a. Injury Defendant argues that Plaintiffs have failed to establish an injury-in-fact because they have not offered any evidence of persistent harm to the Saddle River resulting from the alleged violations. Defi’s Opp. Br. 6-9. This argument misses the mark. Supreme Court precedent firmly establishes that, in the context of an environmental suit, “[t]he relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff’. Laidlaw, 528 U.S. at 181, 120 S.Ct. 693 (emphasis added). Requiring proof of damage to the environment would “raise the standing hurdle higher than the necessary showing for success on the merits in an action alleging noncompliance with an NPDES permit.” Id. Plaintiffs adequately allege injury under the Act when they (1) use the allegedly affected area and (2) are persons “for whom the aesthetic and recreational values of the area will be lessened” as a result of permit violations. Id. at 182,120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)); Riverkeeper, 675 F.Supp.2d at 350-51. Allegations that a river looks and smells polluted, as well as allegations that plaintiffs affirmatively refrain from recreational activities such as fishing, bird watching, camping, hiking, swimming, and picnicking because of a defendant’s discharges, sufficiently establish Article III standing. Laidlaw, 528 U.S. at 181-82, 120 S.Ct. 693. Here, the aesthetic injuries claimed by each of the Individual Plaintiffs — that the waters of the Saddle River have become murky and smell of sewage, as well as the adverse impact on the frequency and manner in which Plaintiffs use the Saddle River for recreational purposes — amply satisfy the injury-in-fact requirement. Mancuso, 130 F.Supp.2d at 590-91 (“[W]here there is a direct nexus between the plaintiff and allegedly polluted area, no circuit has required scientific proof of contamination at the summary judgment stage.”). A reasonable juror would be entitled to credit the testimony of Plaintiff Ostrom regarding the Saddle River’s consistently “foul odors” and his observation of excrement in the river flowing through his backyard. Pis.’ Ex. R (Ostrom Dep. 31:14-32:18). Likewise, a juror might credit the testimony of Plaintiff MacDonald regarding two occasions in 2008 and 2009 during which a dark, mucky rush of water appeared in the brook in her backyard. Pis.’ Ex. S (MacDonald Dep. 23:1-31:23). Plaintiffs have presented additional evidence of sewage overflows negatively affecting the Swim Club and Lions Park, recreational centers that they patronize. Pis.’ Ex. QQ (Mar. 5, 2008 images); Pis.’ Ex. P (Florio Dep. 21:11-22:2); Pis.’ Am. 56.1 Stmt. ¶¶ 102-103, 105. Thus, the Court finds that Plaintiffs have adduced sufficient evidence of injury-in-fact to defeat summary judgment. Laidlaw, 528 U.S. at 181-82, 120 S.Ct. 693; Mancuso, 130 F.Supp.2d at 590-91. b. Causation Plaintiffs assert, and the Court agrees, that they have also adequately established a causal relationship between their injury and the challenged conduct. Pis.’ Opp. Br. 5. “The threshold requirement of ‘traceability does not mean that plaintiffs must show to a scientific certainty that defendant’s effluent ... caused the precise harm suffered by the plaintiffs in order to establish standing.” Riverkeeper, 675 F.Supp.2d at 351 (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir.2000) (ere banc)). Proof of a causal link merely requires a showing that “a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged in the specific geographic area of concern.” Id. Defendant admits, through myriad internal reports and letters, to spilling sewage — an undeniable pollutant — in the Saddle River and its tributaries. See Section I.B. (“Factual Background”), supra; Pis.’ Exs. NN, OO, TT, W (Spills Files). Given that the injuries articulated by Plaintiffs include harm caused by sewage overflowing about their community and in close proximity to their property, Plaintiffs have satisfied the causality element of standing. Mancuso, 130 F.Supp.2d at 593. c. Redressability Defendant most vigorously attacks Plaintiffs’ Article III standing on what it claims are “redressability” grounds, arguing that, “well prior to the filing of Plaintiffs’ complaint,” the 2006 Consent Order created an adequate remedy for the violations that they complain of. Def.’s Opening Br. 12; Def.’s Opp. Br. 4. Defendant argues that the standard for evaluating mootness in Clean Water Act cases should apply with equal force to the Court’s assessment of redressability, as mootness is just “the doctrine of standing set in a time frame.” Def.’s Opening Br. 16-17 (citing Arizonans for Off'l English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997)). While Defendant seeks to collapse the two inquiries, mootness and re-dressability are not synonymous; Defendant’s arguments address the former, not the latter concept. Redressability queries whether judicial action can abate or prevent the harm that the defendant allegedly caused or is causing. Laidlaw, 528 U.S. at 185-86, 120 S.Ct. 693. As it is a standing requirement, the plaintiff bears the burden of proving redressability, and it is evaluated based upon the state of affairs on the filing date of the complaint. Id. at 190-91, 120 S.Ct. 693; accord Riverkeeper, 675 F.Supp.2d at 352. The standards with respect to establishing standing and establishing mootness crucially differ, however, and the Court will therefore separately analyze the facts relative to each. Laid-law, 528 U.S. at 181, 189, 120 S.Ct. 693 (the plaintiff has the burden of proving standing while the party asserting mootness shoulders the “heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to start up again” (citation and internal alteration omitted)). To demonstrate that an environmental injury can be redressed through judicial action, “[p]laintiffs need not show that [a] waterway will be returned to pristine condition.” Pub. Int. Res. Grp. of New Jersey, Inc. v. Powell Duffryn Terminals Inc., 913 F.2d 64, 73 (3d Cir.1990). Rather, as discussed infra, they must show that violations of the Act were “ongoing” or likely to continue as of the date on which they filed their suit. Atl. States Legal Found., Inc. v. Pan Am. Tanning Corp., 993 F.2d 1017, 1019-20 (2d Cir.1993); see also Laidlaw, 528 U.S. at 190, 120 S.Ct. 693 (“[I]n a lawsuit brought to force compliance, it is the plaintiffs burden to establish standing by demonstrating that, if unchecked by the litigation, the defendant’s allegedly wrongful behavior will likely occur or continue.”). The Clean Water Act provides that a civil action premised on “any violation” of its standards may seek “appropriate relief, including a permanent or temporary injunction.” 33 U.S.C. § 1319(b). Moreover, despite the fact that civil penalties are paid to the U.S. Treasury and not to plaintiffs, their deterrent effect affords redress to those injured or threatened with injury as a consequence of a polluter’s ongoing unlawful conduct, and thereby benefits the public interest. Laidlaw, 528 U.S. at 186, 120 S.Ct. 693; Riverkeeper, 675 F.Supp.2d at 352. Here, setting aside the question of mootness, the Court finds that, as of January 5, 2007, the date on which Plaintiffs filed this action, the requested judicial remedies — civil penalties, injunctive and declaratory relief — could provide redress for Plaintiffs’ injuries, given that, as detailed infra, Defendant violated the terms of its SPDES Permit immediately prior to, as well as soon after, Plaintiffs initiated the suit. See Def.’s Resp. Pis.’ 56.1 Stmt. ¶¶ 187, 191-92, 196 (Defendant does not dispute spilling sewage into the Saddle River in November 2006, March 2007 and April 2007). Additionally, even assuming, as Defendant claims, that the DEC was diligently prosecuting the 2006 Consent Order at the time Plaintiffs filed this action, “diligent prosecution” is not a jurisdictional requirement, and therefore cannot deprive Plaintiffs of Article III standing. See, e.g., Louisiana Envtl. Action Network v. City of Baton Rouge, 677 F.3d 737, 749 (5th Cir.2012) (“No Supreme Court cases have determined that the ‘diligent prosecution’ provision of the [Act], or any similar provision in other environmental statutes, is jurisdictional”). In any event, the state’s diligent prosecution would not render Plaintiffs’ request for judicial action meaningless because diligent prosecution can only bar a citizen-suit for civil penalties, not injunctive relief. See, e.g., Orange Env’t, Inc. v. Cnty. of Orange, 860 F.Supp. 1003, 1018 (S.D.N.Y.1994). The Court therefore DENIES Defendant’s motion for summary judgment with respect to Article III standing. 2. Statutory Standing i. Ongoing Violations — Standing Under Gwaltney a. Legal Standard In Gwaltney of Smithfield, Inc. v. Chesapeake Bay Foundation, Inc., the Supreme Court held that, in light of its prospective purpose and language, section 505(a) of the Clean Water Act does not confer federal jurisdiction over a citizen suit premised on “wholly past violations.” 484 U.S. at 64, 108 S.Ct. 376. Rather, to obtain standing, citizen-plaintiffs must allege — and ultimately prove — that the defendant’s violation was “continuous or intermittent” at the time when they filed their suit. Pan. Am. Tanning Corp., 993 F.2d at 1019. Because courts assess the existence of a continuing violation based upon the filing date of the complaint, Connecticut Coastal Fishermen’s Assoc. v. Remington Arms Co., 989 F.2d 1305, 1311 (2d Cir.1993), Gwaltney does not bar citizen suits where, after the commencement of the lawsuit, the defendant eliminates the source of its pollutants; the relevant question remains whether the citizen-plaintiff can establish ongoing violations at the time of the filing of the complaint. Hudson River Fishermen’s Ass’n v. Westchester Cnty., 686 F.Supp. 1044, 1051 (S.D.N.Y.1988); HVFG, 2010 WL 1837785, at *6. Though Gwaltney did not precisely identify the point at which a violation “ceases to be ongoing and becomes “wholly past,’ ” Aiello v. Town of Brookhaven, 136 F.Supp.2d 81, 120-21 (E.D.N.Y.2001), precedent in this Circuit establishes that a plaintiff can prove “ongoing violations” through evidence of violations at the time of, or predating, the filing of the complaint combined with evidence of post-complaint violations. HVFG, 2010 WL 1837785, at *6. At summary judgment, “[d]oubts with respect to whether the allegations of continuing violations are a sham are resolved in favor of the citizen-plaintiff,” and the defendant carries the burden of “demonstrating that there are no genuine material factual disputes and that it is entitled to judgment as a matter of law.” Connecticut Coastal, 989 F.2d at 1311. The plaintiff need only offer evidence from which a reasonable juror could find “a likelihood of continuing violations.” b. Discussion Defendant asserts that Plaintiffs’ First Claim fails because they have neither adequately alleged nor substantiated their accusations of Defendant’s ongoing violations of the Act. Def.’s Opp. Br. 2-3. Defendant argues that Plaintiffs exclusively premise this suit on “wholly past” violations, as they have not provided any admissible evidence showing that any of the alleged sewage spills reached the Saddle River after they filed the SAC. Def.’s Reply Br. 1. As a threshold matter, the parties dispute whether the reference date for assessing statutory standing is May 17, 2010&emdash;the date on which Plaintiffs filed the SAC (Defendant’s position)&emdash;or January 5, 2007, the date on which Plaintiffs filed the initial complaint (Plaintiffs’ position). Pis.’ Reply Br. 1. Defendant does not cite any authority in support of its position. Def.’s Opp. Br. 3; Def.’s Reply Br. 1-2. Plaintiffs argue, based upon the Second Circuit’s decision in Building and Construction Trades Council of Buffalo, New York v. Downtown Development, Inc., that the SAC relates back to the filing date of the original complaint. Pis.’ Reply Br. 1 (citing Big. & Constr. Trades Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 151 (2d Cir.2006)). Plaintiffs have the right of it. The Court finds that the SAC relates back to the initial complaint. Under Rule 15(c) of the Federal Rules of Civil Procedure, “[a]n amendment of a pleading relates back to the date of the original pleading when ... the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Fed.R.Civ.P. 15(c)(2). Here, the original complaint alleged violations of the Clean Water Act premised on unauthorized discharge of pollutants in violation of Defendant’s SPDES permit, and the SAC repeats those allegations verbatim. Compare Compl. ¶ 26 and SAC ¶ 34. Thus, to establish standing, Plaintiffs must show that Defendant’s violations continued after January 5, 2007 or “present proof from which a trier of fact could find a continuing likelihood that violations would recur.” Connecticut Coastal, 989 F.2d at 1311; Bldg. & Constr. Trades Council, 448 F.3d at 151 (citing Laidlaw, 528 U.S. at 175,120 S.Ct. 693 (citing Gwaltney, 484 U.S. at 56-63,108 S.Ct. 376)). The Court finds that Plaintiffs have met their burden. Noncompliance with an SPDES Permit translates into a violation of the Act itself. HVFG, 2010 WL 1837785, at *10-*11. It is beyond cavil that the 2006 Consent Order establishes that Defendant spilled sewage, in violation of the terms of its SPDES Permit, on at least forty dates from 2003 to 2005. See 2006 Consent Order. At her deposition, Ms. Philipps testified that Defendant continued to spill sewage into areas affecting the Saddle River after the entry of the 2006 Consent Order, but that the DEC did not issue violations for such spills. Pis.’ Ex. U (Philipps Dep. 220:1-223:2). Moreover, it is undisputed that Defendant’s SPDES permit does not authorize it to discharge wastewater into the Saddle River under any circumstances. Yet, Defendant concedes that it discharged sewage into the Saddle River on twelve occasions after the entry of the 2006 Consent Order, including on several occasions immediately after the filing of the complaint in January 2007. Def.’s Resp. Pis.’ 56.1 Stmt. ¶¶ 187,190-92. While Defendant contests Plaintiffs’ proof of the amount of certain spills that reached the Saddle River, the volume is irrelevant to determining liability because Defendant’s SPDES Permit only allows Defendant to discharge waste water into the Hudson River. Even a minimal spill constitutes a permit violation where, as here, the discharge permit does not authorize any discharge into the waterway at issue. Connecticut Fund for Env’t, Inc. v. Upjohn Co., 660 F.Supp. 1397, 1418 (D.Conn.1987) (because the Act “does not distinguish between small discharges and large discharges,” even proof that defendant “discharged only a de minimus amount of wastewater into the river” can constitute a violation); HVFG, 2010 WL 1837785, at *7 n. 15 (specific number of violations does not impact liability); Connecticut Fund for Env’t v. Stewart-Warner Corp., BassickDiv., 631 F.Supp. 1286, 1288 (D.Conn.1986) (“technical” permit violations are violations nonetheless). Indeed, in her deposition, Ms. Philipps conceded that all discharges into the Saddle River violate the terms of Defendant’s SPDES permit. Def.’s Resp. Pis.’ 56.1 Stmt. ¶ 35; Pis.’ Ex. U (Philipps Dep. 177:1-177:6). Thus, Plaintiffs have adduced sufficient evidence of “ongoing violations” occurring at the time they filed this action and during the years thereafter. Accordingly, the Court DENIES Defendant’s motion for summary judgment to the extent that it is based on an argument that Plaintiffs have failed to demonstrate “ongoing violations.” ii. Diligent Prosecution — Standing Under § 1319(g)(6) a. Legal Standard The Clean Water Act precludes citizen suits for civil penalties where the EPA or state regulatory agency has (1) “commenced.and is diligently prosecuting a civil or criminal action” in state or federal court; or (2) “issued a final order not subject to further judicial review and the violator has paid a penalty assessed.” 33 U.S.C. §