The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #8.
Currently before the Court is defendants' motion for summary judgment dismissing plaintiffs' citizen suit alleging violations of the Clean Water Act for lack of standing and jurisdiction. Dkt. #10. For the following reasons, defendants' motion is granted in part and denied in part.
Plaintiff Jeanann Haniszewski owns the real property at 936 Ransom Road which abuts the south eastern edge of defendants' property. Dkt. #15, ¶ 3. Ms. Haniszewski affirms that she was born and raised on this property and has "enjoyed the wooded aesthetic value of the property, the peaceful running Plum Bottom Creek which traverses the property, the wild life that resided and could be seen on the property, and the overall quiet and peaceful tranquility of the property" for most of her life. Dkt. #15, ¶¶ 4-5. Ms. Haniszewski opines that "[d]efendants] have destroyed these values." Dkt. #15, ¶ 7. Ms. Haniszewski specifically complains of defendants' "dredging and filling of the wetlands" on the property, and affirms that this has caused "increased flooding on her property." Dkt. #15, ¶¶ 12 & 15.
Defendant Lee Cadby is President of Northeast Diversification, Inc., a corporation engaged in the business of paving and site development. Dkt. #10-2, ¶ 2. Mr. Cadby owns 20 acres of real property on Ransom Road in the Town of Lancaster. Dkt. #10-2, ¶ 3. The property is zoned for general industrial use. Dkt. #10-2, ¶ 4. Mr. Cadby intends to develop the property as an industrial park. Dkt. #10-2, ¶ 5.
Mr. Cadby engaged the services of Polka Engineering to prepare the site plan for the industrial park. Dkt. #10-2, ¶ 6. Polka Engineering engaged Earth Dimensions, Inc. to complete a wetlands delineation for the site. Dkt. #10-2, ¶ 17. The wetlands delineation report, dated March 5, 1996, was prepared to allow the U.S. Army Corps of Engineers ("Corps"), and New York State Department of Environmental Conservation ("NYSDEC"), to "determine the extent of the jurisdiction over the project, pursuant to Section 404 of the Clean Water Act and Article 24 (Freshwater Wetlands) of the New York State Environmental Conservation Law." Dkt. #19-2, p.3. Earth Dimensions, Inc., identified five distinct wetlands on the site: (1) an isolated depressional wetland consisting of.060 acres; (2) an isolated depressional wetland consisting of.063 acres; (3) an isolated depressional wetland consisting of.225 acres; (4) an isolated depressional wetland consisting of.040 acres; and (5) a wetland drain consisting of 1.06 acres which traverses the southern portion of the site. Dkt. #19-2, p.iii. Earth Dimensions, Inc. determined that the project site contains a total of 1.448 [plus or minus] acres of wetlands which may be under Corps jurisdiction. It is the opinion of [Earth Dimensions, Inc.] that Polka Engineering should qualify for a Nationwide 26 permit*fn1 (if sought) for initiation and completion of the proposed development.
By resolution adopted May 6, 1996, the Lancaster Town Board approved the Cadby Industrial Site Plan. Dkt. #10-2, ¶ 24; Dkt. #10-4. Thereafter, the Lancaster Town Board approved the office building, maintenance building, roadway and utilities proposed for the site. Dkt. #10-2, ¶ 25.
Construction of the office building and storage facility began on or about April 21, 1997. Dkt. #10-2, ¶ 30. A certificate of occupancy for the office building and storage facility was granted by the Town of Lancaster Department of the Building Inspector on October 14, 1997. Dkt. #10-5.
400 feet of 30-inch PVC pipe was installed at the south eastern portion of the site and covered with stone prior to April 1, 1999. Dkt. #10-2, ¶ 31; Dkt. #10-6. Mr. Cadby affirms that approximately 200 feet east of the pipe is a pre-existing 24 inch culvert which conveys water under Ransom Road and across plaintiffs' property toward the 30-inch PVC pipe. Dkt. #10-2, ¶ 35.
The Lancaster Town Board approved and accepted the roadway, sewer, water, gas, electricity, fire hydrant and lighting of the site by resolution adopted in May, 2000. Dkt. #10-2, ¶ 37; Dkt. #10-7.
On June 2, 2003, the Lancaster Town Board passed a resolution approving the construction of three single-story general industrial buildings on the site, subject to certain enumerated landscape modifications. Dkt. #10-2, ¶ 41; Dkt. #10-8.
On July 22, 2003, Mr. Cadby received a Notice of Intention to Sue pursuant to the citizen suit provision of the Clean Water Act. Dkt. #10-2, ¶ 43; Dkt. #10-9. The Notice of Intention to Sue sets forth two potential violations: (1) failure to obtain a National Pollution Discharge Elimination System ("NPDES"), Permit from the NYSDEC and to prepare and/or implement the Storm Water Pollution Prevention Plan ("SWPPP"),*fn2 required for such a permit; and (2) discharging dredged and/or fill materials into the waters of the United States without obtaining a permit from the Corps. Dkt. #10-9.
On September 26, 2003, defendants received a Notice of Violation for Failure to Obtain Coverage Under SPDES*fn3 Permit GP-02-01 from the NYSDEC. Dkt. #10-2, ¶ 45. Specifically, the letter provides that:
This [Notice of Violation] is issued because of your failure to obtain coverage under a SPDES permit before commencing construction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one acre. NYCRR 750-1.4(a,b) requires that before commencing such construction activities an entity must obtain coverage under the SPDES General Permit for Construction Activities (Permit #GP-02-01)("The Permit"). Since you have begun such activities without coverage under the Permit, you must immediately stop all construction activities on the Site until ...