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December 7, 1981;

Stanley LOVE, Plaintiff,
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; Robert F. Flacke, as Commissioner of the New York State Department of Environmental Conservation; Paul Keller, as Director of Region III of the New York State Department of Environmental Conservation; Eugene Seebald, as Director, Division of Water, New York State Department of Environmental Conservation; State of New York; Town of Lewisboro, New York; Robert E. Green, Supervisor of the Town of Lewisboro; Robert F. Neukirch, Lynn H. Corson, Leslie N. Simon and Robert G. Langevin, Town Councilmen of Lewisboro; Paul A. Lewis, John A. Armstrong, John J. Donovan, Carolyn U. Smith and Theodore Chase, Members of the Planning Board of Lewisboro; Oakridge Land and Property Corp.; Robert F. Lusk; and the Lusk Corporation, Defendants

The opinion of the court was delivered by: DUFFY

This is an action brought under the Federal Water Pollution Control Act ("FWPCA"), 33 U.S.C. § 1251 et seq., arising from the alleged pollution of a pond and stream which traverse property owned by the plaintiff. The damage to the pond and stream purportedly resulted from the construction of a condominium project less than a mile north of plaintiff's property in the Town of Lewisboro, New York, and the consequent discharge of hundreds of tons of sand and dirt and other construction wastes into the stream. The defendants include the condominium developers, the New York State Department of Environmental Conservation, the Town of Lewisboro, New York, and certain of its officials. All of these defendants have moved to dismiss the complaint and the plaintiff seeks leave to amend the complaint. The prolix complaint is far from a "short and plain statement of the claim ...." Fed.R.Civ.P. 8.

For the reasons that follow, the motions to dismiss are granted, except as to the Developers, and plaintiff's motion to amend the complaint is denied.


 Plaintiff Stanley Love is a resident of the Town of Pound Ridge, New York. He owns approximately 24 acres of land situated between Pound Ridge and Lewisboro, New York. On Mr. Love's land is a large pond fed by a stream known as the Third Tributary of the Siscowit Reservoir. The reservoir lies partly within New York and partly within Connecticut, and it constitutes an important part of the water supply of Stamford, Connecticut.

 In 1977 or 1978, the defendant Oakridge Land and Property Corp. ("Oakridge"), a land development company, applied to the Town of Lewisboro and its Planning Board for site-plan approval of a 330 unit condominium development. Oakridge is owned by a Connecticut corporation known as the Lusk Corporation who along with its president, Robert F. Lusk, is also a defendant in this action. The site for this project is a wetlands area traversed by the Third Tributary. Oakridge proposed to turn a portion of the wetlands area into a small recreation lake by excavating and dredging nearly 70,000 cubic feet of earth. The project also called for the construction of a sewage treatment plant to process sewage generated by the approximately 1,000 persons expected to reside at the condominiums. The effluent from the plant was to be discharged into the stream and be drained by the overflow from the lake into the Siscowit Reservoir.

 On May 5, 1978, Oakridge obtained a New York State Pollutant Discharge Elimination System ("SPDFS") Permit approved by the New York State Department of Environmental Conservation ("NYDEC") and authorized by the FWPCA for the discharge of pollutants into protected waters. As a condition to granting this permit, Oakridge was required to execute a stipulation, on or about April 4, 1978, guaranteeing (i) levels of effluent purity, (ii) design approval and (iii) monitoring. The other parties to the stipulation were NYDEC, the Town of Pound Ridge, the New England Interstate Water Pollution Control Commission, the Connecticut Department of Environmental Protection, the Connecticut Department of Health and the Stamford Water Company. The stipulation is enforceable by any of these parties and is a covenant running with the land.

 In late 1979, Oakridge began construction and dredging of the pond. Plaintiff asserts that in the process of dredging, Oakridge has directly discharged into the stream, through hoses, polluted waters carrying dirt, sand, rock, dredged soil, decaying vegetable materials, suspended collodial solids and other pollutants. In addition, according to the complaint, dredged and fill materials have been discharged and thrown into the stream and also have been carried there by rain and other waters drawing from the excavation site. Plaintiff further alleges that Oakridge has permitted and caused polluted waters from the recreational pond to wash into the stream. It is urged that such action violates both federal and New York law.

 The result of this unlawful conduct, according to the plaintiff, is that the stream and pond have suffered devastating ecological damage visible to the naked eye. The water has changed "from clear to dark brown." (Complaint, P 32). The measurable turbidity in the stream caused by the suspension in the water of pollutants has increased significantly. *fn1" The free flow of water has been slowed and algae and scum have formed on the surface of the pond and stream. This has resulted in a diminishing of the dissolved oxygen content of the pond with consequent adverse effects on fish and other natural life. Plaintiff further claims that the Siscowit Reservoir down stream has been endangered.

 The complaint sets out eighteen claims for relief against the private developer, state and local governments and their officials. The State Defendants are the NYDEC, an agency of the State of New York; Robert F. Flacke, Commissioner of the NYDEC; Paul Keller, Director of Region III of NYDEC, the Region having immediate jurisdiction over the towns of Lewisboro and Pound Ridge; and Eugene Seebald, Director of the Division of Water for the NYDEC (collectively referred to hereinafter as the "State Defendants").

 The Town Defendants are the town of Lewisboro, New York; Robert E. Green, Supervisor of Lewisboro and presiding officer of the Town Board of Lewisboro which is the governing body of the town; Robert E. Neukirch, Lynn H. Corson, Leslie N. Simon and Robert G. Langevin, as members of the Town Board; and Paul A. Lewis, John A. Armstrong, John J. Donovan, Carolyn U. Smith and Theodore Chase, as members of the Planning Board of Lewisboro whose powers derive from grants by the Town Board (collectively referred to hereinafter as the "Town Defendants").

 The private defendants in this case are Oakridge, a New York corporation that owns the land upon which the development in this case is being constructed, the Lusk Corporation, a Connecticut corporation which allegedly owns the capital stock of Oakridge, and Robert F. Lusk, who is President of Oakridge and principal owner of Lusk stock (collectively referred to hereinafter as the "Developers").

 Briefly, the eighteen claims may be summarized as follows:

 1. Claims Against Developers

 The Developers are named in nine claims. The first claim reiterates the events earlier described and alleges that the Developers, as a result of discharging pollutants, violated Section 301(a) of the FWPCA, 33 U.S.C. § 1311(a), which prohibits "the discharge of any pollutant by any person" without an appropriate permit. (Count 1). In a separate claim, the plaintiff seeks $ 5,000,000 in punitive damages for the Developers purported willful and knowing violation of Section 301. (Count 10). It is asserted that the Developers willfully disregarded warnings from state and federal officials regarding the pollution that would result if adequate measures were not taken. These defendants allegedly continued to discharge pollutants knowing the irreparable harm that was occurring from their unlawful acts.

 The third claim accuses the Developers of violating Section 404 of the FWPCA, 33 U.S.C. § 1344, in that they failed to obtain a permit from the Secretary of the Army before discharging dredged materials. The fourth claim against the Developers urges that they created a public nuisance redressable in federal court under 28 U.S.C. § 1331. (Count 7). The remaining five claims assert violations of New York common law for public and private nuisance, violations of New York's environmental statutes, unlawful trespass to plaintiff's land and riparian rights, and prima facie tort.

 2. Claims Against State Defendants

 The State Defendants are named in five claims. The first claim accuses the State Defendants of also having violated Section 301 of the FWPCA. These defendants are vested with the duty under New York law and the FWPCA to ensure that New York waters are protected from pollution. According to the plaintiff, these officials participated in the SPDES permit proceeding and were well aware of the anticipated adverse impact of the Oakridge project. They purportedly violated federal law by approving the environmental impact statement and by failing to take steps to prevent the pollution that has resulted.

 The complaint further names the State Defendants with a violation of Section 404 of the FWPCA for failing to require a permit to be obtained prior to approving the environmental impact statement. The only other federal claim naming these defendants is one for helping to create a public nuisance. The two remaining claims involve state law. One charges the State Defendants with having violated the New York Environmental Conservation Law ("ECL"), Section 1-0101 et seq. (McKinney's). The ECL establishes standards of quality for New York waters and requires a permit to be issued by the NYDEC Commissioner before pollutants can be discharged. It also requires the NYDEC to take action to prevent and abate pollution. The final claim against the State Defendants charges generally that they were negligent in not fulfilling their duty to protect plaintiff's property from untoward pollution.

 3. Claims Against Town Defendants

 The principal claim against the Town Defendants also asserts a violation of Section 301 of the FWPCA. According to the plaintiff, Lewisboro, through its Planning Board, demanded and received the approval of the NYDEC to act as the lead governmental agency in supervising the Oakridge Project. This meant that Lewisboro had the obligation to assure compliance with the FWPCA at all times. It is asserted that the Town Defendants, despite warnings of the potential pollution damage, "negligently, knowingly ... and unlawfully" (a) approved the final environmental impact statement which failed to adequately protect against the pollution that has resulted; (b) permitted construction to commence without requiring preventative measures; (c) failed to heed the recommendations of state and federal officials regarding such measures; and (d) failed to halt construction or take other actions to prevent or to mitigate the damage resulting from the construction. Two other claims name the Town Defendants. One is a claim under New York common law for public and private nuisance. The other is a claim for negligence alleging the Town Defendants shirked their duties by failing to prevent the damage to plaintiff's property.

 4. Relief Sought

 Essentially, plaintiff seeks an injunction against Oakridge from continuing with the project and further pollution of the stream. Plaintiff also seeks an order directing the Town Defendants to take "all necessary action" to prohibit further construction until it is shown that further construction will not violate the law or interfere with plaintiff's rights. The complaint additionally requests an order directing the NYDEC to take "all necessary action" to prevent further pollution of the stream.

 Plaintiff seeks actual damages from all defendants in the amount of $ 2,000,000 and punitive damages from the Developers in the amount of $ 5,000,000. Furthermore, plaintiff asks that the Developers be fined $ 10,000 per day for each day that they have violated the FWPCA. See Section 309(d) of the FWPCA, 33 U.S.C. § 1319(d).


 The State Defendants have moved for a judgment on the pleadings under Fed.R.Civ.P. 12(c) with respect to the claims against them on several grounds including that the action is barred by the Eleventh Amendment and that no jurisdiction lies under the FWPCA.

 The Town Defendants have moved to dismiss the Complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Town Defendants argue that they never had authority to enforce the FWPCA and that the citizen suit provision of the FWPCA, 33 U.S.C. § 1365, does not apply here because the plaintiff has not alleged that the Town Defendants violated an effluent standard or an order by the State or failed to perform a nondiscretionary duty.

 The Developers have moved to dismiss under Fed.R.Civ.P. 12(b)(6) and 12(b)(1) or in the alternative for summary judgment under Fed.R.Civ.P. 56. This motion is premised inter alia on the theory that no private damage action exists under the FWPCA, that Oakridge has a nationwide permit to discharge effluent materials, that there is no federal common law nuisance claim and that the plaintiff's suit is barred by New York's four month statute of limitations.

 Subsequent to these motions being made, two Supreme Court decisions were announced which dispose of several of plaintiff's claims. In City of Milwaukee v. Illinois, 451 U.S. 304, 101 S. Ct. 1784, 68 L. Ed. 2d 114 (1981) the Supreme Court held that the FWPCA preempted the federal common law of public nuisance in the area of interstate water pollution. Several months later in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S. Ct. 2615, 69 L. Ed. 2d 435 (1981) the Supreme Court held that there is no private right of action under the FWPCA for monetary damages. Therefore, the only remedy directly available to the plaintiff if he chooses to sue under the FWPCA are those described in Section 505(a), 33 U.S.C. § 1365.

 As a result of these decisions, the plaintiff here may only sue for prospective injunctive relief upon giving 60 days notice to the Federal Environmental Protection Agency ("EPA"), the State, and any alleged violator. 33 U.S.C. § 1365(b)(1)(A). The complaint is therefore dismissed insofar as it seeks monetary relief or is based on a theory of federal common law. The ...

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