City of Newburgh v. SARNA

• Decision Date: 05 February 2010
• Docket Number: No. 09 Civ. 5117(CM)(LMS).,09 Civ. 5117(CM)(LMS).
• Citation: 690 F. Supp.2d 136
• Parties: CITY OF NEWBURGH, Plaintiff, v. Mark SARNA, Sarna Enterprises, Inc., Mt. Airy/Aire Estates, Inc., New Windsor Development Co., LLC, and Drainage District # 6—Mt. Airy Estates (The Reserve), Town of New Windsor, New York, Defendants.
• Court: U.S. District Court — Southern District of New York

690 F.Supp.2d 136

CITY OF NEWBURGH, Plaintiff, v. Mark SARNA, Sarna Enterprises, Inc., Mt. Airy/Aire Estates, Inc., New Windsor Development Co., LLC, and Drainage District # 6—Mt. Airy Estates (The Reserve), Town of New Windsor, New York, Defendants.

No. 09 Civ. 5117(CM)(LMS).

United States District Court, S.D. New York.

February 5, 2010.

Marc Steven Gerstman, Meave M. Tooher, Marc Gerstman, Law Offices, Albany, NY, for Plaintiff.

J. Benjamin Gailey, Jacobowitz and Gubits LLP, Walden, NY, Michael D. Blythe, Town of Windsor, New Windsor, NY, for Defendants.

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

McMAHON, District Judge:

INTRODUCTION

Plaintiff the City of Newburgh ("Plaintiff' or the "City") asserts a claim for violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., as well as state-law tort claims for trespass and public nuisance against defendants Mark Sarna, Sarna Enterprises, Inc., Mt. Airy/ Aire Estates, Inc., New Windsor Development Co., LLC (collectively, the "Sarna Defendants"), and Drainage District # 6— Mt. Airy Estates (The Reserve), Town of New Windsor, New York (the "Town of New Windsor" and, together with the Sarna Defendants, "Defendants"). The City alleges that Defendants, in violation of the CWA and New York law, are responsible for the discharge of unfiltered stormwater runoff from the Mt. Airy Estates residential development (the "Development") into an adjacent reservoir known as Brown's Pond.

Now pending before the Court are Plaintiff's motion for a preliminary injunction and the Sarna Defendants' cross-motion to dismiss or, in the alternative, for summary judgment. For the reasons stated below, the Sarna Defendants' cross-motion to dismiss is granted in part and denied in part; Plaintiff's motion for a preliminary injunction is denied. Additionally, the Court sua sponte dismisses the Complaint as against the Town of New Windsor.

BACKGROUND

I. Overview of the Regulatory Regime

The purpose of the CWA is to protect our Nation's waters. See 33 U.S.C. § 1251(a). The regulatory regime created by the CWA principally requires that the discharge of pollutants be regulated by permit. Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of N.Y., 273 F.3d 481, 486 (2d Cir.2001). Section 1311(a) of the CWA mandates that "the discharge of any pollutant by any person shall be unlawful" "except as in compliance" with other provisions of the statute. 33 U.S.C. § 1311(a). One such provision, § 1342, establishes a permit program, the National Pollutant Discharge Elimination System ("NPDES"), and provides for the issuance of discharge permits ("NPDES permits") that allow the holder to discharge pollutants at levels below thresholds incorporated in the permit. See 33 U.S.C. § 1342; Catskill Mountains, 273 F.3d at 486. The CWA authorizes each state to implement the NPDES through the state's own permit program as long as it conforms to federal guidelines approved by the Administrator of the Environmental Protection Agency ("EPA"). See 33 U.S.C. § 1342(b).

In New York, the NPDES is administered by the New York State Department of Environmental Conservation ("NYSDEC"), and is referred to as the State Pollution Discharge Elimination System ("SPDES"). See N.Y. Envtl. Conserv. Law §§ 17-0105(13), 17-0701. Accordingly, the NYSDEC issues SPDES general permits for certain categories of regulated discharges, including stormwater runoff. See N.Y. Comp.Codes R. & Regs. tit. 6, § 750-1.21.

The permit at issue in this case is the SPDES General Permit for Stormwater Discharges from Construction Activity. In 1993, the NYSDEC issued permit GP-93-06 covering such discharges; subsequently, in 2003, the NYSDEC replaced GP-93-06 with the updated GP-02-01; and, in 2008, the NYSDEC replaced GP-02-01 with the current version of the permit, GP-0-08-001. A permit applicant can obtain coverage under GP-0-08-001 (or, previously, under GP-93-06 or GP-02-01) by filing with the NYSDEC a notice of intent ("NOI") to be covered by the permit. See N.Y. Comp.Codes R. & Regs. tit. 6, § 750-1.21(d). Prior to submitting the NOI, the applicant must have completed a Stormwater Pollution Prevention Plan ("SWPPP") that complies with the requirements of the permit. See, e.g., GP-0-08-001 Part II.A.

In addition to providing for enforcement by state agencies and the EPA, the CWA allows private parties to enforce its mandates in so-called "citizen suits." See 33 U.S.C. § 1365. However, at least sixty days prior to filing a citizen suit, the prospective plaintiff must provide notice of its claims to the potential defendants, the EPA and the state in which the violations allegedly occurred. See 33 U.S.C. § 1365(b)(1)(A); Catskill Mountains, 273 F.3d at 486.

II. Facts

Unless otherwise noted, the facts relevant to the Sarna Defendants' cross-motion to dismiss are taken from the City's complaint (the "Complaint"), as well as from documents attached to or referenced in the Complaint. See Rothman v. Gregor, 220 F.3d 81, 88-89 (2d Cir.2000). The Sarna Defendants submit a Rule 56.1 statement in support of their cross-motion to dismiss, and suggest that the Court may wish to convert their motion into one for summary judgment. (See Sarna Defs.' Mem. in Supp. of Cross-Mot. to Dismiss and Opposing Pl.'s Mot. for Prelim. Inj., Sept. 25, 2009 ("Sarna Defs.' Mem."), at 2.) The Court declines to do so at this early stage of the litigation.

With the exception of the Sarna Defendants' contention that this lawsuit was not authorized by the City of Newburgh's City Council (the "City Council")—an issue on which the Court ordered supplemental submissions—the Sarna Defendants' asserted grounds for dismissal pursuant to Rule 12(b)(6) are properly resolved based on the pleadings. Several of the Sarna Defendants' arguments challenge the Court's subject-matter jurisdiction, and the Court may consider certain evidence outside the pleadings in determining whether subject-matter jurisdiction exists. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) ("In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b) (1), a district court ... may refer to evidence outside the pleadings.").

In resolving Plaintiffs preliminary injunction motion, the Court considers the affidavits submitted by the parties to determine whether Plaintiff has met the requirements for an award of preliminary injunctive relief.

A. Parties

The City of Newburgh is located in Orange County, New York, on the Hudson River about sixty miles north of New York City. Brown's Pond (the "Pond") is a reservoir located in the Town of New Windsor which is next to Newburgh, and also in Orange County. The City of Newburgh owns Brown's Pond. The Pond is classified as a Class A-Special ("Class A-S") fresh surface water. See N.Y. Comp.Codes R. & Regs. tit. 6, § 701.4. Class A-S waters are best used as "a source of water supply for drinking, culinary or food processing purposes; primary and secondary contact recreation; and fishing." Id. Brown's Pond serves as a secondary supply of drinking water for the City of Newburgh.

The residential Development at Mt. Airy Estates is located adjacent to the southwestern corner of Brown's Pond. Defendant Mt. Airy/Aire Estates, Inc. is a corporation located at 15 Engle Street, Suite 100, Englewood, New Jersey.¹ Defendant Sarna Enterprises, Inc. ("Sarna Enterprises") is a corporation located at the same New Jersey address. Defendant Mark Sarna is an individual who also allegedly resides at that same New Jersey address. Defendant New Windsor Development Co., LLC ("New Windsor Development") is a limited liability company located at a different address in Livingston, New Jersey.

Throughout its Complaint, Plaintiff collectively refers to Mark Sarna, Mt. Airy Estates, Sarna Enterprises and New Windsor Development as "Sarna" or "defendant," and alleges that they have violated the CWA at the Development by causing the discharge of untreated stormwater into Brown's Pond.

Plaintiff has also sued the Town of New Windsor. Plaintiff alleges that easements owned or controlled by the Town include all or portions of the stormwater management system for the Mt. Airy Development. Plaintiff claims that it cannot be accorded complete relief unless the Town is a defendant.

B. Allegations in the Complaint

The Mt. Airy Development was initially designed in 1972. Mt. Airy Estates later purchased the project, but did not begin construction until the late 1990s. Plaintiff alleges that the Development's stormwater control measures, based on the original 1972 design, are outdated and inadequate. To date, 408 homes have been built, and an application is pending to add thirteen more.

In 1999, the Sarna Defendants filed an NOI with the NYSDEC seeking coverage under GP-93-06 for stormwater discharges into Brown's Pond during construction. The NYSDEC eventually approved the Sarna Defendants' SWPPP on February 2, 2001. The SWPPP for the Development has since been modified with NYSDEC approval on several occasions. In its present form, the Development's SWPPP includes two stormwater retention basins, two dry detention ponds, an inspection and maintenance schedule, and additional erosion and sediment controls, such as sediment basins, sediment traps and sand filters.

The core allegation in the Complaint is that the Sarna Defendants' construction at the Mt. Airy Development is causing the discharge of untreated stormwater runoff into Brown's Pond. Plaintiff alleges several specific dates on which drainage was inadequate, such that untreated stormwater runoff discharged into Brown's Pond. The most recent such incident alleged in the Complaint occurred in mid-December 2008, after roughly three inches of rain over multiple days. Plaintiff claims that the brownish stormwater discharges are changing the naturally occurring color of Brown's Pond...