The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
The relevant factual background of this action is set forth in my September 2, 2009 Report and Recommendation ,*fn1 which was adopted by Judge Arcara  and is reported at 2009 WL 3077888. Counsel for plaintiffs and defendant United Materials, Inc. ("UM") consented to trial before me , and a bench trial was held before me on December 10, 2009 . Plaintiffs' exhibits ("PX") 1-93 and defendant's exhibits ("DX") A-D were admitted into evidence by stipulation. Plaintiff John Stepniak was the only witness to testify on behalf of plaintiffs.
After plaintiffs rested their case, counsel for UM moved for dismissal, arguing that plaintiffs had failed to meet their burden of proof on several issues. Since this is a non-jury trial, that motion is governed by Fed. R. Civ. P. ("Rule") 52(c), which states that "if a party has been fully heard on an issue during a non-jury trial, and the court finds against the party on that issue, the court may enter judgment against the party on a claim . . . that, under the controlling law, can be maintained . . . only with a favorable finding on that issue".
"Unlike under Rule 50 which governs judgment as a matter of law in jury trials, under Rule 52(c), the court does not consider the evidence in the light most favorable to the non-moving party . . . . Rather, the court's task is to weigh the evidence, resolve any conflicts in it, and decide for itself where the preponderance lies . . . . Rule 52(c) implies the same inquiry the Court makes to resolve all of the legal and factual matters under Rule 52(a)." Wechsler v. Hunt Health Systems, Ltd., 330 F. Supp. 2d 383, 433 (S.D.N.Y. 2004). See also 9C Wright & Miller, Federal Practice & Procedure (3d. Ed.) §2573.1 ("the court is not as limited in its evaluation of the non-movant's case as it would be on a motion for judgment as a matter of law. The trial judge is not to draw any special inferences in the non-movant's favor nor concern itself with whether the non-movant has made out a prima facie case. Instead, since it is a non-jury trial, the court's task is to weigh the evidence, resolve any conflicts in it, and decide for itself in which party's favor the preponderance of the evidence lies. Since it is serving as the trier of fact, the court even may assess the credibility of the witnesses").
I reserved decision on UM's oral motion. By Text Order dated December 11, 2009 , I gave plaintiffs the opportunity to respond to the motion "by the later of January 7, 2010 or two weeks after receipt of the transcript from the . . . bench trial". In response to my law clerk's inquiry to both counsel as to the whereabouts of the trial transcript, on April 13, 2010 UM's counsel responded that plaintiffs' counsel had received the trial transcript "a long time ago". Plaintiffs' counsel did not respond to the inquiry. Accordingly, by Text Order dated April 15, 2010 , I directed counsel to file the trial transcript with the court by April 21, 2010, and stated that "since neither party has shown good cause for their failure to adhere to the deadlines for post-trial briefing . . . no further submissions will be accepted".
As stated in my summary judgment decision, the remaining issue for trial in this case is whether UM violated Section 404 of the Clean Water Act (33 U.S.C. §1344) by depositing "fill material" into waters of the United States without a permit. "If a person discharges fill material into U.S. waters without a §404 permit or without qualifying for one of the permit exemptions, that person violates the CWA." Stepniak v. United Materials, LLC, 2009 WL 3077888, *3 (W.D.N.Y. 2009). "'The term fill material means material placed in waters of the United States where the material has the effect of . . .[c]hanging the bottom elevation of any portion of a water of the United States.' 33 C.F.R. §323.2(e)(1)." Id. at *4.
Plaintiffs allegethat in the summer of 2000, UMwas responsible for allowing a run-off of fly ashfrom its facility (located at the southeast corner of Pavement and Peppermint Roadsin the Town of Lancaster, New York), resultingin a deposit of this materialinto a ditch and adjacent portions of plaintiffs' property located on the west side of Pavement Road.In order to prevail in this action, plaintiffs must prove, inter alia, that UM caused the deposit of materials which changed the bottom elevation of the ditch on their property, so as to qualify as "fill materials" within the meaning of the Clean Water Act. If they have not proven this fact, then they have not proven a violation of the Act.
In moving for dismissal, UM argued, inter alia, that plaintiffs have failed to prove that materials originating with UM have changed the bottom elevation of the ditch running through plaintiffs' property, and, therefore, that UM caused the deposit of "fill material". These Findings of Fact and Conclusions of Law will focus upon that issue.*fn2
These Findings are based upon my review of the trial exhibits as well as my assessment of Mr. Stepniak's credibility, based upon the substance of his testimony as well as his demeanor on the witness stand. Since neither party has complied with my order to file the trial transcript, I have relied upon my contemporaneous notes from the trial. Where I find the proffered evidence not to be credible, my reasons for that finding are set forth.
1. UM is a concrete plant located on the southeast corner of Pavement and Peppermint Roads in the Town of Lancaster, New York.
2. In approximately 1987, the Stepniaks purchased 12 acres of unimproved agricultural property abutting the west side of Pavement Road, across from the current site of UM. They sold a parcel of that property to Mr. Stepniak's parents, and built their home on another parcel.
3. Approximately five years ago the Stepniaks sold the parcel of property on which their home was located, and moved to Clarence. However, they retained a six-acre lot having 50' of frontage on Pavement Road.
4. For approximately two years in the early 1990s, Mr. Stepniak worked as a truck driver for Frey Concrete, located at the current site of UM. Frey handled fly ash, which was kept in a pile ...