The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiffs commenced the instant action against Defendants seeking to recover for damage to their property allegedly caused by flooding. Plaintiffs essentially contend that Defendants mismanaged the Pepacton Dam, thereby allowing the flooding that caused damage to their property. Presently before the Court are Defendants' motions to dismiss pursuant to Fed. R. Civ. P. 12.
a. Brief History of the Pepacton Dam and Water Litigation
In the 1920s, the State of New York proposed to divert a large amount of water from various tributaries of the Delaware River. State of New Jersey v. State of New York, 51 S.Ct. 478, 479 (1931). The State of New Jersey filed suit against the State of New York seeking to enjoin New York from diverting the water. New Jersey asserted "that the proposed diversion will transgress its rights in many respects." Id at 480. New Jersey complained that the proposed diversion: will interfere with the navigability of the Delaware without the authority of Congress or the Secretary of War. That it will deprive the State and its citizens who are riparian owners of the undiminished flow of the stream to which they are entitled by the common law as adopted by both States. That it will injuriously affect water power and the ability to develop it. That it will injuriously affect the sanitary conditions of the River. That it will do the same to the industrial use of it. That it will increase the salinity of the lower part of the River and of Delaware Bay to the injury of the oyster industry there. That it will injure the shad fisheries. That it will do the same to the municipal water supply of the New Jersey towns and cities on the River. That by lowering the level of the water it will injure the cultivation of adjoining lands; and finally, that it will injuriously affect the River for recreational purposes. The bill also complains of the change of watershed, already disposed of; denies the necessity of the diversion; charges extravagant use of present supplies, and alleges that the plan will violate the Federal Water Power Act, 16 USCA ss 791-823 (but see U. S. Code, tit. 16, s 821 (16 USCA s 821)), interfere with interstate commence, prefer the ports of New York to those of New Jersey and will take the property of New Jersey and its citizens without due process of law.
The result of the litigation was a Supreme Court decree that allowed New York to divert water, but with limitations on the quantity and certain other conditions. See id. at 481, 562-563. Thereafter, New York commenced the construction of various dams on the River, including the Pepacton Dam.*fn1 In 1954, the Supreme Court approved a modification of the earlier decree. Thereafter, the states of New York, New Jersey, Pennsylvania, and Delaware*fn2 entered into a Compact, approved by the United States Congress, creating the Delaware River Basin Commissions ("DRBC"). The DRBC was created to "develop and effectuate plans, policies and projects relating to the water resources of the basin." N.Y. Env. Conserv. Law § 21-0701, § 3.1.
b. The Facts Behind the Current Litigation
Defendants New York City and the Department of Environmental Protection of the City of New York (collectively "City of New York Defendants") own and operate the Pepacton Dam (the "Dam") in the Town of Colchester, County of Delaware, State of New York. Plaintiffs own property in the Town of Colchester, County of Delaware, State of New York. The Plaintiffs' property is located along, or in close proximity to, the East Branch of the Delaware River, which is downstream from the Dam.
For several days leading up to the time period of September 17-18, 2004, a tropical storm known as Hurricane Ivan (the "Storm") made landfall in the southeastern portion of the United States. The Storm traveled north through the eastern portion of the Country. The Complaint alleges that "for a period of time prior to September 17, 2004, the reservoir and waters contained by the Pepacton Dam were at a high level."
During the period of September 17-18, the Storm reached the area of Delaware County, New York dropping large amounts of rainfall in the area. The large amounts of rainfall caused "an overflow of the Pepacton Dam, in turn causing overflow of the banks of East Branch of the Delaware River, resulting in extensive flooding and damage to the real and personal property of the plaintiffs. . . ." Compl. at ¶ M.
Plaintiffs filed the instant lawsuit asserting four causes of action. The first cause of action claims that Defendants negligently failed to effectuate flood control plans. The second cause of action claims that Defendants negligently failed to cause a controlled release of the waters contained by the Dam so as to minimize the overflow. The third cause of action claims that Defendants failed to warn Plaintiffs that the Dam was ...