The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
Plaintiffs commenced this suit (Dkt. #1) on October 5, 2004 alleging, inter alia, that the failure of defendant The Barden & Robeson Corporation ("Barden") to properly manage stormwater runoff associated with their construction activities was in violation of the Clean Water Act ("CWA")*fn2 and seeking statutory injunctive relief and civil penalties thereon. The complaint also contains numerous state court claims such as public and private nuisance, trespass and negligence and seeks declaratory and injunctive relief and money damages for damage to plaintiffs' real and personal properties. The gravamen of both the state and federal claims relate to Barden's construction activities and the failure to obtain coverage under, and comply with the conditions of, the State Pollutant Discharge Elimination System ("SPDES") Permit for Stormwater Discharges from Construction Activity.*fn3 Barden filed an answer with a counterclaim on October 28, 2004 alleging trespass (Dkt. #3). Plaintiffs/counterclaim-defendants filed a reply to the counterclaim on November 16, 2004 (Dkt. #7).
Pending before the Court is Barden's motion for summary judgment (Dkt #21). Plaintiffs have responded, Barden has replied, the parties have presented oral argument and the matter was submitted to the Court for decision on April 7, 2006.
The following facts are not in dispute, except for those facts that the Court notes are "claimed" by one party or the other. Plaintiffs are residents of the Lincoln Woods Subdivision in the Town of Lockport. Although the subdivision was first developed in the mid-1970's, sometime between 1992 and 1994, Barden acquired a portion what remained undeveloped, renamed it Meadow Lake Subdivision, and obtained Town approval for a revised subdivision plan containing a number of "estate lots" and a pond located due east of the plaintiffs' properties. Construction on this new subdivision began in 2002.
A letter from the Niagara County Health Department, Environmental Health Division, dated October 2, 2002, notified Barden of its obligations to file a "Notice of Intent, Termination and Transfer" with the New York Department of Environmental Conservation ("DEC") in order to apply for and be issued the required SPDES General Permit for Stormwater Discharges from Construction Activity from the DEC for the site. Barden did not file the Notice or obtain the permit.
Plaintiffs claim that Barden's failure to properly manage stormwater runoff from construction and the ineffective and poor design of the pond violate the CWA and have caused injury to their properties, principally in the form of flood damage. Plaintiffs further claim that the circumstances under which they obtained (or neglected to obtain) the SPDES permit are evidence of this failure - to wit, they commenced ground disturbing activities without the proper permit, continued these activities after being directed by the DEC to cease, made false and misleading representations in eventually obtaining the permit and thereafter violated the terms under which the permit was issued, all of which are also alleged to be in violation of the CWA.
Plaintiffs claim that a DEC representative performed an on-site inspection at Meadow Lake in August 2003, discovered that Barden did not have the requisite SPDES permit and requested to see a copy of Barden's Storm Water Pollution Prevention Plan ("SWPPP") (which is apparently required in the absence of the permit, as part of the application process for the permit) which Barden represented it had. Plaintiffs claim that Barden failed to produce the SWPPP and the DEC neglected to follow up on the matter.
Nearly one year later, in July 2004, the DEC performed another on-site inspection at Meadow Lake resulting in a formal Notice of Violation ("NOV") being issued to Barden for SPDES violations. The NOV cited Barden's failure to obtain the SPDES permit prior to beginning ground disturbing operations and discharging sediment into the storm sewer system. It also required that Barden cease all ground disturbing operations until they obtained such permit and required that they file a Notice of Intent ("NOI") to begin the application process to obtain the coverage.
Shortly thereafter, Barden's engineers sent a letter to the DEC containing a NOI and a two paragraph SWPPP seeking deviation from the DEC's technical standards. Plaintiffs claim that the NOI and SWPPP were insufficient in that the NOI was unsigned, undated and incomplete and the SWPPP was devoid of substance and did not comply with the requirements of the CWA. The NOI was revised in August insomuch as it included the signature and dates missing from the original. Plaintiffs claim that Barden backdated this document and made numerous false statements with respect to previously constructed stormwater management infrastructure (from the original Lincoln Woods subdivision) which either did not exist or did not provide any drainage for the new Meadow Lake subdivision. During this time the SWPPP was also revised in response to DEC comments regarding what needed to be addressed prior to approval being given and the permit issued. The last revision was on November 10, 2004 and the permit was issued, effective November 19, 2004.
All during this time, Barden continued ground disturbing operations. While this was noted in a report from an August 24, 2004 DEC inspection which indicated Barden's compliance status with the application process as unsatisfactory, no further NOV's were issued by the DEC.
Despite the issuance of the permit, plaintiffs claim that Barden has been in a persistent state of violation of the CWA as evidenced by the permit process outlined above, subsequent events indicating failure to implement the SWPPP and additional or continuing SPDES permit violations, including but not limited to ineffective/improper use of silt fencing and hay bales necessary for erosion control, improper lot levels and seeding of a berm and other areas relative to stabilization, erosion and sediment migration into receiving waters, and failure to perform required weekly inspections by a qualified professional.
Plaintiffs claim that the stormwater associated with Barden's construction activity at Meadow Lake contains "dredged spoil" and other contaminants, and is a "pollutant" as defined by the CWA, which has been discharged by Barden into a waterway of the United States - to wit, Tonawanda Creek. Plaintiffs claim that the stormwater travels through a series of unnamed streams, creeks and ponds and eventually into Tonawanda Creek. The parties seem to agree that Tonawanda Creek is a waterway of the United States as defined by the CWA but Barden claims that there is no outlet into Tonawanda Creek at the end ...