United States District Court, N.D. New York
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, U.S. DISTRICT JUDGE
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.
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).
The Impact of the Stormwater Detention Basin on
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
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.
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.
Is Sheila's Pond a “Water of the United
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.
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.
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.
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.
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.”).
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