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Zdziebloski v. Town of East Greenbush

United States District Court, N.D. New York

May 11, 2017

JOHN ZDZIEBLOSKI, et al., Plaintiffs,
v.
TOWN OF EAST GREENBUSH, Defendant.

          MEMORANDUM-DECISION AND ORDER

          LAWRENCE E. KAHN, U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiffs John and Sheila Zdziebloski commenced the present action against defendant Town of East Greenbush, alleging violations of the Clean Water Act (“CWA”), 33 U.S.C. § 1251 et seq. Dkt. Nos. 1 (“Complaint”), 4 (“Amended Complaint”). Presently before the Court are the Town's Motion for Summary Judgment and Plaintiffs' Cross-Motion for Summary Judgment. Dkt. Nos. 36 (“Town Motion”), 43 (“Plaintiffs' Motion”); see also Dkt. Nos. 36-21 (“Town Memorandum”), 36-20 (“Town Statement of Material Facts”), 43-1 (“Plaintiffs' Memorandum”), 43-2 (“Plaintiffs' Statement of Material Facts”), 47-6 (“Town Response”), 50 (“Plaintiffs' Reply”). For the reasons that follow, the Town Motion is granted and Plaintiffs' Motion is denied.

         II. BACKGROUND

         A. Factual Background

         Since around 1977, Plaintiffs have lived at 16 Worthman Lane in Rensselaer, New York. Town SMF ¶ 13; Pls.' SMF ¶ 13. They allege that the Town has neglected its responsibility to maintain a stormwater detention basin located on Onderdonk Estates, a residential development northwest of Plaintiffs' house. Am. Compl. ¶¶ 7, 9, 14. According to Plaintiffs, this neglect has led to flooding on their property. Town SMF ¶¶ 2-3; Pls.' SMF ¶¶ 2-3; Am. Compl. ¶ 15-17. Specifically, Plaintiffs allege that the Town's improper maintenance of the stormwater detention basin has caused the basin and its associated equipment to discharge pollutants, including “silt, mud, dirt, clay and runoff from streets, ” into a pond on Plaintiffs' property known as “Sheila's Pond, ” thereby causing flooding on both the pond and other parts of the property. Town SMF ¶¶ 3, 5; Pls.' SMF ¶¶ 3, 5; Am. Compl. ¶¶ 12-16. The parties agree that “no streams or tributaries or any such kinds of water courses” naturally flow out of or into Sheila's Pond. Town SMF ¶¶ 9-10; Pls.' SMF ¶¶ 9-10. The Court first discusses the impact of the stormwater detention basin on Plaintiffs' property, then turns to the question whether Sheila's Pond constitutes a “water[] of the United States” under the CWA. 33 U.S.C. § 1362(7).

         1. The Impact of the Stormwater Detention Basin on Plaintiffs' Property

         The Town disputes (or asserts it lacks knowledge about) several aspects of Plaintiffs' description of the impact of the stormwater detention basin on Sheila's Pond. Pls.' SMF ¶¶ 3-26; Dkt. No. 47-5 (“Town Response SMF”) ¶¶ 3-26. But because none of these facts are material to the Court's decision, the Court recites Plaintiffs' version of these events without discussing the Town's denials, see Wright v. Yacovone, No. 12-CV-27, 2014 WL 1165834, at *6 (D. Vt. Mar. 21, 2014) (describing contested facts as “not material [to the] summary judgment determination because, even accepting Plaintiff's version of these facts as true, they do not preclude judgment as a matter of law in Defendants' favor”).

         Onderdonk Estates “lies uphill, to the north and west of [Sheila's] [P]ond.” Dkt. No. 43-3 (“Gifford Affidavit”) ¶ 9. The Town approved construction of Onderdonk Estates, which began in the 1970s and '80s and took place in four stages. Id. The stormwater detention basin was designed to “retain runoff from the development, ” which “increased and flowed to Sheila's [P]ond more quickly and with greater volume” as construction progressed. Id. Runoff increased in the development because of the growth in the number of “impermeable surfaces such as pavements and roofs.” Id. Although the basin and “associated piping[] and structures” were “supposed to be turned over to the Town, ” that never happened. Id. ¶ 17. Instead, since March 25, 1993, a private citizen named Paul Silverstein has owned the property on which the basin is located. Town SMF ¶ 18; Pls.' SMF ¶ 18.

         Because the Town failed to take ownership of the stormwater detention basin, it was not maintained and fell “into a state of disrepair.” Gifford Aff. ¶ 18. The basin stopped retaining water, and “a sinkhole . . . developed adjacent to the morning glory structure [a type of spillway].” Id. Water began to flow on “a path along the outside of the outlet piping . . . and found its way to the ground surface near the bottom of the slope near Sheila[']s Pond.” Id. The flow of water caused the soil around the outlet piping to erode, thereby rupturing the piping and “open[ing] a large ravine where the sand soil has been fully eroded.” Id. ¶ 19. The result is that “seeping water now cascades like a water fall [sic] as it exits the ground surface.” Id. Further, the eroded soil ends up in Sheila's Pond, which has caused the formation of a delta along with a reduction in the pond's volume and “detention capacity.” Id. ¶ 20. This, in turn, leads to flooding during “large storm event[s], [when] the water level rises and inundates the guest house, the basement of the main house, and a store roof in the yard that shelters equipment.” Id. ¶ 12.

         2. Is Sheila's Pond a “Water[] of the United States”?

         The parties dispute whether Sheila's Pond constitutes a “water[] of the United States” subject to regulation under the CWA. 33 U.S.C. § 1362(7). Plaintiffs' expert, Gregory Gifford, states that the CWA covers Sheila's Pond, which is “within 4, 000 feet of a tributary” of the Hudson River, because the pond is connected to the tributary in the following manner: “[w]hen Sheila's Pond overflows its boundaries, the water flows across the Zdziebloskis' property, across Worthman Lane, and across the farm field south of Worthman Lane to the tributary.” Gifford Aff. ¶ 24. In his Affidavit, Gifford does not say how he came to this conclusion, but during his deposition he stated that while he himself had never witnessed flooding of that sort, “John Z[dziebloski] ha[d] it seen happen, and that's my basis for that.” Dkt. No. 43-17 (“Gifford Deposition”) at 85:19-86:2. Yet John Zdziebloski said in his deposition that he had never told Gifford that that type of natural flooding had ever occurred. Dkt. No. 36-17 (“Zdziebloski Deposition”) at 16:25-17:4. Instead, on two occasions about ten years ago, the flooding caused by the failing stormwater detention basin was so severe that it “forced [Zdziebloski] to rent a pump and hose and pump out water from [his] backyard for three days in a row.” Dkt. No. 43-6 (“Zdziebloski Affidavit”) ¶ 9. “Schools of fish and turtles were pumped to the [tributary] along with the water, ” id., and Gifford saw photos of these events, Gifford Dep. at 86:7-19.

         Gifford also claims that “water from Sheila's Pond possibly seeps through the porous soils underneath Route 9&20 to the wetland area where the unnamed tributary [of the Hudson River] begins.” Gifford Aff. ¶ 24 (emphasis added). Gifford does not specify the basis for this possibility, though John Zdziebloski provides some elaboration. He states that “[t]he fill material underneath Route 9&20 is porous gravel, ” and that because the wetland “northeast of Route[] 9&20 . . . was not filled in, ” it “provides enough water to the [tributary] for year-round flow.” Zdziebloski Aff. ¶ 7. According to John, “that is evidence that water continues to seep [from Sheila's Pond] through the porous gravel fill underneath Route 9&20, hydrologically connecting the Pond to the wetland.” Id. John believes that “water must be seeping out of the Pond through the gravel fill underneath Route 9&20 to the wetland, or else the Pond would overflow, just as a bathtub would.” Id. ¶ 8. According to Plaintiffs' witness list, John is one of their lay witnesses, and Gifford is their only expert witness. Dkt. No. 33 (“Plaintiffs' Witness List”) at 1-2.

         The Town's expert witness, Johanna Duffy, inspected Sheila's Pond and reviewed relevant materials to “determine if there were any surface or subsurface water connections between the Pond and other aquatic resources.” Dkt. No. 36-18 (“Duffy Affidavit”) ¶¶ 7-8. Duffy concluded that “[n]o regulated resources provide inputs to the Pond, and the Pond does not have an outlet.” Id. Ex. C, at 3. Further, “[s]urface water observed within the Pond was stagnant (i.e., no observed flow), and the Pond was observed to not be hydrologically connected to any other wetland and/or water resources.” Id. Finally, Duffy noted that “no biological, chemical, or physical connection to the Hudson River [from Sheila's Pond] was determined to exist.” Id.

         B. Procedural History

         Plaintiffs initiated this lawsuit on March 13, 2015, Compl., and they filed their Amended Complaint on March 23, 2015, Am. Compl. The Amended Complaint asserts that the Town has violated and continues to violate the CWA via “the unauthorized discharges of pollutants . . . into the waters of the United States.” Am. Compl. ¶ 2. Specifically, Plaintiffs allege that the Town has been discharging pollutants without a permit from its stormwater system into Sheila's Pond, “which is among the waters of the United States.” Id. ¶¶ 10, 12-13. On December 30, 2016, the Town moved for summary judgment, arguing primarily that the CWA does not cover Sheila's Pond and that it is not responsible for maintaining the stormwater detention basin on Onderdonk Estates. Town Mem. at 20-24. On January 19, 2017, Plaintiffs filed a cross-motion for summary judgment, arguing that the Town is liable under the CWA because its refusal to properly maintain the basin shows a failure to comply with the terms of its permit for operating a municipal separate storm sewer system (“MS4”). Pls.' Mem. at 13-14. Indeed, Plaintiffs argue that even if Sheila's Pond does not constitute a water of the United States-which they dispute-the Town is still liable simply because it has violated the terms of its MS4 permit. Id. at 20. Notably, this was the first time Plaintiffs had argued that they were entitled to relief based solely on the Town's failure to abide by the terms of its MS4 permit rather than on the Town's discharge of pollutants into Sheila's Pond. Finally, Plaintiffs reject the contention that the Town has no responsibility for the basin merely because it does not own it. Id. at 15.

         III. LEGAL STANDARD

         Rule 56 of the Federal Rules of Civil Procedure instructs courts to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Although “[f]actual disputes that are irrelevant or unnecessary” will not preclude summary judgment, “summary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.”).

         The party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party carries the ultimate burden of proof and has failed “to establish the existence of an ...


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