Jones Creek Investors, LLC v. Columbia Cnty., No. CV 111–174.

CourtUnited States District Courts. 11th Circuit. United States District Court (Southern District of Georgia)
Writing for the CourtLISA GODBEY WOOD, Chief Judge.
PartiesJONES CREEK INVESTORS, LLC and Savannah Riverkeeper, Inc., Plaintiffs, v. COLUMBIA COUNTY, GEORGIA, and CSX Transportation, Inc., Defendants.
Decision Date31 March 2015
Docket NumberNo. CV 111–174.

98 F.Supp.3d 1279

JONES CREEK INVESTORS, LLC and Savannah Riverkeeper, Inc., Plaintiffs
v.
COLUMBIA COUNTY, GEORGIA, and CSX Transportation, Inc., Defendants.

No. CV 111–174.

United States District Court, S.D. Georgia, Augusta Division.

Signed March 31, 2015.


98 F.Supp.3d 1282

ORDER

LISA GODBEY WOOD, Chief Judge.

Plaintiff Jones Creek Investors alleges that activities occurring upstream from its pond, Willow Lake, have inundated Willow Lake with sediment, which in turn causes the golf course it operates to become flooded with murky water every time it rains. While Jones Creek Investors initially brought suit against a drove of Defendants, only two remain: Defendants Columbia County, Georgia, and CSX Transportation, Inc. Plaintiff alleges that these two Defendants' upstream activities have caused significant damages to its property and business, and seeks relief under the Clean Water Act and certain state law claims. Plaintiff also alleges that Defendant Columbia County's lax enforcement of its municipal discharge permitting system contributed to its damages. Plaintiff Savannah Riverkeeper, who alleges that the damages extend beyond Willow Lake and into the Savannah River downstream, joins Plaintiff Jones Creek Investors in the latter CWA claim against Columbia County.

Both remaining Defendants have filed Motions for Summary Judgment, and these motions are ripe for adjudication. Dkt. no. 412 (Columbia County); Dkt. no. 415 (CSXT). Additionally, Plaintiff Jones Creek Investors has filed Rule 72(a) Objections to the Magistrate Judge's October 29, 2014 Order granting in part Defendants' request to exclude new expert testimony proffered by Plaintiffs in the midst of summary judgment briefing and after the close of discovery. Dkt. no. 468.

For the reasons stated below, Plaintiff's Rule 72(a) Objections are OVERRULED. Defendant CSXT's Motion for Summary Judgment (Dkt. no. 415) is GRANTED in its entirety. Defendant Columbia County's Motion for Summary Judgment (Dkt. no. 412) is GRANTED as to the Clean Water Act claims (Counts 1–3), and the Court directs Plaintiff JCI and Defendant Columbia County to file supplemental briefing in regards to Counts 10, 11, and 13 against Columbia County.

FACTUAL BACKGROUND

In Columbia County, Georgia, a small tributary begins at former Defendant Marshall Square's Planned Unit Development property. This tributary, “S1,” flows approximately 1.7 miles southeast through private property and a culvert beneath

98 F.Supp.3d 1283

Defendant CSXT's rail line. About 300 feet upstream from Plaintiff JCI's pond, known as Willow Lake, S1 merges with Jones Creek (“S2”). The combined channel (“S3”) flows a bit further before meeting with another tributary, “S4.” S4 then flows into Willow Lake, which was formed in 1985 by damming and impounding Jones Creek downstream from its confluence with S1 and S4. Dkt. no. 412–21 (“Robertson Report”), pp. 4–5. When released from the Willow Lake Dam, Jones Creek wends another 1.3 miles before joining the Savannah River.

Plaintiffs Savannah Riverkeeper and Jones Creek Investors

Plaintiff Savannah Riverkeeper is a membership organization that advocates for the water quality of the Savannah River. Bonitatibus Dep. 14:21–15:13.1 Many of its members fish and boat on the Savannah River. See, e.g., Dkt. no. 434–19 (“Sancken Aff.”), ¶ 4. The Riverkeeper entered this case solely to bring Clean Water Act claims against Defendant Columbia County, whose alleged failure to police its MS4 system, the Riverkeeper argues, has negatively impacted its members' use and enjoyment of the Savannah River. See Dkt. no. 434–21 (“Bonitatibus Aff.”), ¶ 12.

Plaintiff Jones Creek Investors, LLC (“JCI”) owns and operates the Jones Creek Golf Course. Willow Lake, which is approximately 6.3 acres at full pool, is both an aesthetic feature and a water hazard for the Golf Course. Willow Lake is also the primary water supply for the Golf Course's irrigation. Dkt. no. 434–3 (“Kimsey Report”), p. 2.

JCI purchased the Golf Course in 2008. A short time later, JCI began to notice increased storm water flows and deposits of sediment into Willow Lake. Dkt. no. 434–23 (“Mundy Aff.”), ¶ 5. In fall of 2009, JCI also noticed that “even minor rain-events were resulting in significant impacts on Willow Lake and the Golf Course, including flooding of parts of the Golf Course.” Id. Since 2010, even an average rainfall of one inch or more will cause flooding on holes 11 and 13 at the Golf Course. When the flooding subsides, mud, dirt, and sediment remain on the greens and the golf cart paths. Dkt. no. 434–55 (“Hemann Aff.”), ¶ 12. JCI usually must close the “back nine” holes for a few days after a flood to let the mud dry so it may be cleaned off the course. Id. Obviously, this sediment-laden flooding makes the Golf Course unappealing for many of JCI's potential customers. Id. SI 13.

Part of the problem, JCI believes, is that Willow Lake has become so inundated with sediment over the years that its storage capacity is significantly diminished. See Dkt. no. 434–83 (“Robertson Dep.”), 134:3–9. While the development of the Jones Creek subdivision surrounding the Golf Course from 19862002 admittedly caused heavy sedimentation to accumulate in Willow Lake, JCI claims that those developers responsible for the sediment covered some or all of the costs of having Willow Lake dredged in 1996 and 2003. Since then, JCI alleges that Willow Lake has re-filled with sediment, and one of its experts estimates that 23,484 cubic yards of sediment had been deposited in Willow Lake as of April, 2010. Dkt. no. 415–14 (“Pruitt Report”), p. 14. Additionally, Willow Lake's reduced capacity requires JCI to rely on it less for irrigation during its peak irrigation needs in the summer. Dkt. no. 434–16 (“Mundy Dep.”), 82:12–84:22. This rationing can impact the health of the Golf Course's grass. Id.

98 F.Supp.3d 1284

Facts Concerning Columbia County

Plaintiffs bring two theories of liability against Columbia County for its alleged contribution to the sedimentation. First, Plaintiffs allege that Columbia County, which was in charge of policing and enforcing the County's “MS4” discharge permitting system, effectively failed at that task in violation of the CWA (Count I, Compl. ¶¶ 195–230). The MS4 permitting system lies at the end of a regulatory labyrinth and is discussed in more detail below. Second, Plaintiff JCI alleges that Columbia County owned a parcel of land that contributed to downstream sedimentation, and is thus responsible for not adequately preventing that parcel from discharging sediment and other pollutants into Willow Lake and Jones Creek's tributaries and other waters. (Counts II and III, Compl. ¶¶ 231–44; 245–58).

The land in question is a 26 acre tract (the “County Property”) that Columbia County obtained in July 2010 from the former Marshall Square Defendants in a zoning dispute settlement. Plaintiffs' expert Dr. Pruitt affied that the County Property has virtually no vegetation to help prevent runoff, and that drainage patterns on the property in fact carry surface water runoff from the exposed soil areas into S1. Dkt. no. 434–4 (“Pruitt Aff.”), ¶ 4. Additionally, the County Property lacks the appropriate Best Management Practices, or BMPs, to help prevent sediment discharges. Columbia County's own inspector admitted that he would have reported this failure on an inspection report. Dkt. no. 434–64 (“Eastman Dep.”), 113:1–9.

Facts Concerning the CSX Crossing

CSXT maintains a rail line that crosses over S1. The rail line sits on an embankment, and S1 flows through a culvert built into the embankment.

This culvert used to be made of brick. In May 2009, a Columbia County employee observed that the downstream side of the brick culvert at the CSX crossing had failed and informed CSXT of the condition. Dkt. no. 434–57 (“Palmer Dep.”), 41:21–25; 43:2–3. When CSXT's inspector investigated the culvert, he noticed that the wooden floor in the culvert had rotted away, causing the downstream outlet to settle and the embankment to slough away. Dkt. no. 434–69 (“Granger Dep.”), 20:21–24. Also, the roof of the culvert had collapsed, causing riprap to fall into the culvert. Id. 64:12–16.

To fix the culvert, CSXT obtained a “Nationwide permit” from the Army Corps of Engineers for the repair work. Dkt. no. 434–78 (“Adkins 30(b)(6) Dep.”), 14:2–6. CSXT replaced the failed culvert with two tubular culverts 72 inches in diameter. Id. 41:18–21. Plaintiffs' experts allege that the selection and installation of these culverts caused S1 to gain too much velocity downstream of the crossing, in turn causing heavy flooding and embankment erosion that contributed to the sedimentation of S1 and its downstream waterways. See Dkt. no. 434–11 (“Supplemental Pruitt Report”). Additionally, the replacement project itself resulted in significant sediment discharges into S1.

During construction, CSXT issued a “slow order” that required trains passing over the embankment to slow down from the maximum allowable speed of 35 mph to either 10 or 25 mph. While the slow order slowed down the rail traffic, it did not interrupt it...

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15 practice notes
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • October 10, 2019
    ...seek to avoid its application. See Green Mountain R.R., 404 F.3d at 643; see also Jones Creek Investors, LLC v. Columbia Cty., Ga., 98 F. Supp. 3d 1279, 1294 (S.D. Ga. 2015) (finding preemption of state-law tort claims based on railroad's efforts to prevent embankment erosion which were "in......
  • Md. Dep't of Env't v. Cnty. Comm'rs of Carroll Cnty., No. 5
    • United States
    • Court of Special Appeals of Maryland
    • August 6, 2019
    ...Storm Water Discharges, 64 Fed. Reg. 68722, 68754 (December 8, 1999). 38. See Jones Creek Investors, LLC v. Columbia County, Ga., 98 F. Supp.3d 1279, 1300 n.4 (S.D. Ga. 2015) (In the MS4 context, "[t]he phrase 'maximum extent practicable' is a term of art, and should not be attributed the o......
  • Black Warrior River-Keeper, Inc. v. Drummond Co., Case No. 2:16-cv-01443-AKK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • May 7, 2019
    ...not establish that the slough is a navigable-in-fact waterway under the CWA. See Jones Creek Investors, LLC v. Columbia County, Ga. , 98 F. Supp. 3d 1279, 1306 (S.D. Ga. 2015) ("Recreational use ... is not enough to make a body of water ‘navigable in fact’ as that term is traditionally unde......
  • Md. Dep't of the Env't v. Cnty. Commissioners of Carroll Cnty., No. 5, 7, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • August 6, 2019
    ...Storm Water Discharges , 64 Fed. Reg. 68722, 68754 (December 8, 1999).38 See Jones Creek Investors, LLC v. Columbia County, Ga. , 98 F. Supp.3d 1279, 1300 n.4 (S.D. Ga. 2015) (In the MS4 context, "[t]he phrase ‘maximum extent practicable’ is a term of art, and should not be attributed the o......
  • Request a trial to view additional results
13 cases
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • October 10, 2019
    ...seek to avoid its application. See Green Mountain R.R., 404 F.3d at 643; see also Jones Creek Investors, LLC v. Columbia Cty., Ga., 98 F. Supp. 3d 1279, 1294 (S.D. Ga. 2015) (finding preemption of state-law tort claims based on railroad's efforts to prevent embankment erosion which were "in......
  • Md. Dep't of Env't v. Cnty. Comm'rs of Carroll Cnty., No. 5
    • United States
    • Court of Special Appeals of Maryland
    • August 6, 2019
    ...Storm Water Discharges, 64 Fed. Reg. 68722, 68754 (December 8, 1999). 38. See Jones Creek Investors, LLC v. Columbia County, Ga., 98 F. Supp.3d 1279, 1300 n.4 (S.D. Ga. 2015) (In the MS4 context, "[t]he phrase 'maximum extent practicable' is a term of art, and should not be attributed the o......
  • Black Warrior River-Keeper, Inc. v. Drummond Co., Case No. 2:16-cv-01443-AKK
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • May 7, 2019
    ...not establish that the slough is a navigable-in-fact waterway under the CWA. See Jones Creek Investors, LLC v. Columbia County, Ga. , 98 F. Supp. 3d 1279, 1306 (S.D. Ga. 2015) ("Recreational use ... is not enough to make a body of water ‘navigable in fact’ as that term is traditionally unde......
  • Md. Dep't of the Env't v. Cnty. Commissioners of Carroll Cnty., No. 5, 7, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • August 6, 2019
    ...Storm Water Discharges , 64 Fed. Reg. 68722, 68754 (December 8, 1999).38 See Jones Creek Investors, LLC v. Columbia County, Ga. , 98 F. Supp.3d 1279, 1300 n.4 (S.D. Ga. 2015) (In the MS4 context, "[t]he phrase ‘maximum extent practicable’ is a term of art, and should not be attributed the o......
  • Request a trial to view additional results

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