The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Plaintiffs, owners and residents of property located downstream from the Neversink Dam and Neversink Reservoir, brought this action against Defendant City of New York, owner of the Neversink Dam and Reservoir, asserting common law negligence and violations of the Endangered Species Act in conjunction with the flooding of the Neversink River that occurred on or about April 2-4 2005. Plaintiffs and the City of New York cross-move for summary judgment under Federal Rule of Civil Procedure 56. For the reasons that follow, Plaintiffs' motion is denied and summary judgment is granted in favor of Defendant.
Defendant City of New York operates the Neversink Dam ("the Dam") and the Neversink Reservoir ("the Reservoir") through its Department of Environmental Protection, Bureau of Water Supply. (Judge McMahon's October 5, 2006, Opinion and Order denying Defendant's Motion to Dismiss at 2, Mei v. City of New York, 06 Civ. 296, 2006 WL 2997111 at *11 (S.D.N.Y. October 5, 2006) ("McMahon Op.").)The Neversink Dam and Reservoir, located in Sullivan County, New York, were constructed between 1941 and 1953. (McMahon Op. at 2.) The Reservoir was designed and built to be a water-supply reservoir, and it supplies about 10% of the drinking water for New York City. (Id.) The Reservoir holds approximately 34.9 billion gallons of water, which it receives from a 93-square-mile watershed. (Id.) After entering the Reservoir, water can leave the Reservoir in several ways: it can be diverted to the Rondout Reservoir through the six-mile Neversink Tunnel ("the Tunnel"), and from there delivered to the City through a series of aqueducts and tunnels; it can be released into the River through the Dam's release works; and it can spill over into a concrete and stone spillway channel, through an inclined tunnel, into a stilling pond, and over a weir into the Neversink River. (Def.'s Statement of Undisputed Material Facts Pursuant to Rule 56.1 ("Def.'s. 56.1 Statement") at ¶ 4.)*fn1 Plaintiffs assert that it would also be possible for the water in the Reservoir to rise to a level above the spillway at which the water would flow over the top of the Dam.*fn2 (Pls.' Response to Def's 56.1 Statement at ¶ 4.)
The Neversink River is a tributary of the Delaware River. The Delaware river provides drinking water to New York City, as well as to other states including New Jersey, Delaware, Pennsylvania. (Def.'s 56.1 Statement at ¶ 2.) These states were involved in litigation before the United States Supreme Court in 1954, resulting in the issuance of a Decree permitting the City to take water from the Delaware and its tributaries so long as it releases enough water from its reservoirs to meet minimum flow requirements for the benefit of downstream states. (Def.'s 56.1 Statement at ¶ 7.)*fn3
In 2005, the City undertook certain repairs to replace the by-pass valves for the Tunnel (Pls.' Statement of Undisputed Material Facts Pursuant to Rule 56.1 ("Pls.' 56.1 Statement") at ¶ 11-12.) The repairs were necessary due to excessive vibration during operation of the dam. (Pls.' 56.1 Statement at ¶ 6.) The City's decision to replace the valves was made in about 1996 or 1997. (Pls.' 56.1 Statement at ¶ 8.) The repairs required that the Tunnel be dewatered. (Pls.' 56.1 Statement at ¶ 1.) Defendant contracted with Spectraserv, Inc. for the replacement of the turbine by-pass valves in the Neversink Tunnel Outlet Chamber. (Spiegel Decl., Ex. E.) The contract contemplated that the work would be completed within a forty-five (45) day period to be chosen by the City between November 1, 2003 and February 28, 2004, with final field testing and placement into operation to occur within 30 days after this 45 day period. (Pls.' 56.1 Statement at ¶ 11, Spiegel Decl. Ex. E at 01711-3.) The project was ultimately postponed to the fall of 2004, and work began in the Tunnel in January 2005. (Pls.' 56.1 Statement ¶ 9, 12.) The valve replacement was not completed prior to February 28, 2005, and the Neversink Tunnel remained out of operation on April 5, 2005. (Pls.' 56.1 Statement at ¶¶ 12-13.) The work was completed on April 7, 2005. (Expert Report by Emmet M. Owens, Decl. of Scot C. Gleason, Ex. E, at 4.)
Early spring 2005 featured two rainstorms, on March 28-29 and April 2-3, which, combined with daytime temperatures of 50 degrees Fahrenheit, produced heavy snowmelt and water-surface runoff, resulting in flooding in the Delaware River basin. (Def.'s 56.1 Statement at ¶ 9.)*fn4 On April 2-3, 2005, between three and six inches of rain fell in the Delaware Basin. (Def.'s 56.1 Statement at ¶ 10.) The National Weather Service reported 4.10 inches of rainfall over 36 hours on April 2-3 in Claryville, New York, a station just upstream from the Neversink Reservoir. (Id.) During this rainstorm, the Neversink Reservoir water level rose to 3.66 feet above the spillway, which is more than double the previous record crest of 1.68 feet above the spillway that was reached on April 17, 1993. (Pls.' 56.1 Statement at ¶¶ 29-30.) As a result of the flooding of the Neversink River from April 2 through April 4, 2005, Plaintiffs allege that they suffered an array of damages to their property, as well as psychological damages. (Am. Compl. ¶ 71.) III. The Dwarf Wedge Mussel
The dwarf wedge mussel is a federally listed endangered species. (Pls.' 56.1 Statement at ¶ 35.) The dwarf wedge mussel is also listed as an endangered species by the New York State Department of Environmental Conservation. (Pls.' 56.1 Statement at ¶ 36.) The dwarf wedge mussel was first reported to inhabit the Neversink River in 1990. (Spiegel Decl., Ex. L at 5.) The Neversink River population of dwarf wedge mussels was estimated at slightly greater than 10,000 specimens in 1994, which represented a robust population. (Id.) Surveys of the population conducted in 2006, 2007 and 2009 indicate that the abundance of dwarf wedge mussels has declined substantially since the mid-1990s. (Id.)
The dwarf wedge mussel's preferred habitat is in fine sediment that accumulates between cobbles and it is particularly sensitive to channel size and depth, water quality and velocity of river flows. (Pls.' 56.1 Statement at ¶ 39.) The parties agree that the dwarf wedge mussel suffered considerable mortality, including material alteration of its habitat, as a result of the April 2005 flood. (Pls.' 56.1 Statement at ¶ 41, Def.'s 56.1 Response at ¶ 41.)
Plaintiffs commenced their action in New York State Court, and the City removed it to this Court on federal question grounds. In April 2006, the City moved to dismiss the complaint, and Judge Colleen McMahon dismissed a number of statutory and regulatory claims without prejudice, but allowed Plaintiffs' negligence claims to proceed. On April 24, 2007, Plaintiffs filed the Amended Complaint alleging negligence under New York state law, violations of the Endangered Species Act, violations of the Clean Water Act, and a due process claim under 42 U.S.C. § 1983. On June 7, 2007, Defendant filed a motion to dismiss the fourth count of the Amended Complaint, the § 1983 claim. Defendant's motion was granted on September 8, 2008. Fact discovery on liability, including expert discovery, ended on June 18, 2010. Plaintiffs and Defendant cross-moved for summary judgment of the remaining claims on July 23, 2010. The parties filed opposition papers on August 20, 2010. In Plaintiffs' opposition brief, they conceded their ...