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Catherine A. Kern, On Behalf of Herself and Clean Water Advocates of v. Wal-Mart Stores

April 8, 2011


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Pending before the Court are separate motions to dismiss by defendants Wal-Mart Stores, Inc. and Wal-Mart Real Estate Business Trust ("Wal-Mart" collectively); and by defendant the City of North Tonawanda (the "City"); pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure ("FRCP"). Wal-Mart contends that individual plaintiffs Catherine A. Kern ("Kern") and Kathy R. Kaminski ("Kaminski"), and the respective unincorporated associations over which they preside, have not alleged any ongoing violations of the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251--1387, that would allow them to maintain a citizen suit under 33 U.S.C. § 1365(a)(1). Wal-Mart's motion indirectly raises the question of plaintiffs' standing because plaintiffs would lack standing as against it if no ongoing violation occurred. The City contends explicitly that plaintiffs lack standing because, inter alia, they have not alleged an "injury in fact" and because Kern and her association never served a notice of intent to sue letter as required under 33 U.S.C. § 1365(b)(1)(A). The Court held oral argument on January 24, 2011. For the reasons below, the Court grants the pending motions and dismisses the complaint for lack of standing.


A. The Wal-Mart Development Project

This case concerns allegations that defendants have not followed various requirements of the CWA and its associated regulations for stormwater*fn1 drainage as they planned a new Wal-Mart Supercenter in the City. This development project (the "Project") would occur on a parcel of approximately 39 acres (the "Project Site") located at the intersection of Niagara Falls Boulevard and Erie Avenue. Phase I of the Project would involve demolition of the then-existing Melody Fair Theater ("Melody Fair") to its foundation. Phase II of the Project then would involve whatever construction activity would be necessary to build the new Wal-Mart Supercenter. On or about November 27, 2006, Wal-Mart submitted a site plan approval application to the City concerning the Project. In January 2007, the City's Planning Commission began to review the proposed site plan. On April 2, 2007, the Planning Commission issued a "positive declaration" that required Wal-Mart to prepare a full Environmental Impact Statement ("EIS"). Wal-Mart submitted an EIS to the Planning Commission on or about August 6, 2007. Over the next eight months, the Planning Commission required Wal-Mart to submit an alternate site plan in response to stormwater and other environmental issues; conducted public hearings; and solicited public comments about the Project. On May 12, 2008, the Planning Commission adopted the EIS. On September 8, 2008, the Planning Commission approved Wal-Mart's proposed site plan for the Project.

B. The City's Stormwater Management

Part of the process of approving Wal-Mart's proposed site plan for the Project involved making sure that the Project complied with several environmental permits concerning the City's sewer system. Effective January 8, 2003, the state issued a State Pollutant Discharge Elimination System ("SPDES") General Permit, No. GP-02-02. GP-02-02 generally authorized discharges of stormwater from the City's sewer system into nearby waterways. GP-02-02 required the City to develop and to enforce a stormwater management program ("SWMP") to reduce pollutant discharge from its sewer system to the "maximum extent practicable." 40 C.F.R. § 122.34. Accordingly, the City prepared an SWMP and solicited public comment. The City received no public comments, including from plaintiffs, and plaintiffs have not alleged otherwise. The City subsequently adopted the SWMP on June 19, 2007 and revised it in October 2008. Under GP-02-02, individual developers like Wal-Mart could avoid having to apply for their own SPDES permits by preparing a document called a Stormwater Pollution Prevention Plan ("SWPPP"), which lays out a plan for controlling runoff and pollutants from a development site during and after construction activities. Upon completion of an SWPPP, a developer could file a document with the state Department of Environmental Conservation called a Notice of Intent ("NOI"), which would notify the state that the developer sought coverage under the general permit. Unless the state stated otherwise, the developer would have coverage five days after filing the NOI.

Three other general permits issued by the state affected the City's sewer system. When GP-02-02 expired on January 8, 2008, the state replaced it with general permit GP-0-08-002, which also gave general permission for stormwater discharges from sewer systems like the City's. When GP-0-08-002 expired on April 30, 2010, the state replaced it with general permit GP-0-10-002, which expires on April 30, 2015. Additionally, the state has issued general permit GP-0-10-001, which is a general permit authorizing stormwater discharge specifically from construction activities.

Under the state's SPDES regulatory framework, the City also has been required since 2008 to file annual reports regarding its efforts to prevent stormwater pollutants from entering its sewer system. The annual reports are available to the public. The 2010 annual report in particular was published in draft form first, to allow the public to comment on it before final issuance. Through a press release and an article in a local newspaper (Dkt. Nos. 23-6, 23-7), the City invited the public to a display of the draft 2010 annual report on May 18, 2010. The City received no public comments, including none from plaintiffs. The City subsequently issued the final report on May 26, 2010.

C. Prior Litigation in State Court

In an attempt to stop Wal-Mart from commencing the Project, Kern-through a now-defunct unincorporated association called North Tonawanda First-brought four different lawsuits against Wal-Mart, the City, and others in New York State Supreme Court. The parties have attached to their motion papers the court decisions or other filings that ended each case. The outcome of each of the state cases provides important background for this case, and this Court accordingly will review each of those outcomes.

1. First Lawsuit (Niagara County Index No. 134993)

In the first state lawsuit, Kern's former association-plus two other plaintiffs not involved in this case-sought to annul the decision by the City's Planning Commission to accept the EIS and site plan for the Project. In a petition filed pursuant to Article 78 of New York's Civil Practice Law and Rules ("CPLR"), the plaintiffs asserted 11 causes of action against all of the defendants. Ten of the causes of action are not relevant to this case, but in the first cause of action, plaintiffs asserted that the Planning Commission violated the Code of the City of North Tonawanda by failing to require preparation and review of an SWPPP prior to plan site approval.

In a Decision and Order dated June 19, 2009 (Dkt. No. 20-7), the state court (Boniello, J.) denied a motion to dismiss the first cause of action and annulled the site plan approval. The court found that the defendants took considerable measures to prepare an EIS and proposed site plan, and to invite public comments on those documents. Nonetheless, the City Code explicitly required submission of an SWPPP before final site plan approval, and this did not occur. The court remanded the site plan approval process to the Planning Commission for further proceedings consistent with the City Code.

Wal-Mart and the City subsequently corrected the procedural deficiency that the state court identified when it annulled the site plan approval. In response to the court's finding of a procedural deficiency, Wal-Mart submitted an SWPPP to the City's Department of Engineering on June 30, 2009. The SWPPP set forth details for erosion and stormwater management once construction at the Project Site began. The City Engineer, in his capacity as the designated Stormwater Management Officer, certified that the SWPPP met all applicable state and local requirements and submitted it to the Planning Commission with a recommendation that it be approved. On October 5, 2009, the Planning Commission approved the SWPPP and again approved the final site plan for the Project. On October 14, 2009, Wal-Mart and the City renewed their motion to dismiss the first ...

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