WATER WORKS AND SEWER BD. v. ILI

• Decision Date: 28 August 2009
• Docket Number: 1070030.
• Citation: 31 So.3d 686
• Parties: The WATER WORKS AND SEWER BOARD OF THE CITY OF BIRMINGHAM v. INLAND LAKE INVESTMENTS, LLC.
• Court: Alabama Supreme Court

31 So.3d 686

The WATER WORKS AND SEWER BOARD OF THE CITY OF BIRMINGHAM v.INLAND LAKE INVESTMENTS, LLC.

1070030.

Supreme Court of Alabama.

August 28, 2009.

K. Mark Parnell and Mary H. Thompson of Waldrep Stewart & Kendrick, LLC, Birmingham, for appellant.

J. Stanton Glasscox, Birmingham; and Edwin Schwartz, Atlanta, Georgia, for appellee.

MURDOCK, Justice.

The Water Works and Sewer Board of the City of Birmingham("the Board") appeals from the denial of its motion seeking a preliminary injunction against Inland Lake Investments, LLC("ILI"), concerning ILI's development of property near Inland Lake.We reverse and remand.

I.Facts and Procedural History

The Board provides drinking water to residents of Jefferson, Shelby, Walker, Blount, and St. Clair Counties.It owns property adjacent to Inland Lake in Blount County as well as the lake itself.The Board uses Inland Lake as one of its four major sources of water for its commercial and residential customers.The Board treats 12 to 15 million gallons of water per day from Inland Lake at its Carson filter plant.

ILI also owns property adjacent to Inland Lake.In early 2006, ILI wrote the Board requesting access to Inland Lake for purposes of a 3,500-acre residential and commercial development ILI proposed to build on the property.The Board responded that in order to permit such access, it would need to review and approve ILI's development plans, including its plans for sediment and erosion control.ILI declined to turn over its plans and instead started the development process.This process included clearing and grading activities to insert a roadway on ILI's property adjacent to the Board's property.

The Alabama Department of Environmental Management("ADEM") requires developers of commercial or residential property to obtain a National Pollutant Discharge Elimination System ("NPDES") permit before starting a project.Before ADEM approves such a permit, the developer must submit a sediment and erosion control plan that details the best management practices ("BMPs") the developer will use to minimize soil runoff and erosion.BMPs are structural and nonstructural controls implemented to prevent erosion and to control sediment runoff.They include, among other measures, mulch, grass, hay bales, trees, and fences.ILI began its construction without applying for or receiving an NPDES permit.ADEM issued a warning letter to ILI on November 17, 2006, ordering it to cease construction until it obtained an NPDES permit.On December 13, 2006, ADEM issued an NPDES permit to ILI for its Inland Lake development project.

The Board alleges that as the development progressed, it began to notice that large amounts of sediment were flowing from ILI's property into a tributary of Inland Lake on the Board's property, known as Sawmill Slough.In order to protect its water source, the Board sued ILI in the Blount Circuit Court, alleging continuing trespass, public and private nuisance, and negligence and wantonness, and seeking damages for the sediment deposited in Inland Lake as a result of ILI's development project.The Board accompanied its complaint with a motion for a preliminary injunction against ILI, asking the trial court to enter an order prohibiting ILI from "continuing with construction of its development at Inland Lake in such a manner as will result in further discharge of sediment and other fill material or pollutants onto the Board's land or into Inland Lake" and requiring ILI "to implement all possible measures to prevent the failure of sediment and erosion control measures on ILI's construction site, to immediately repair any future failure, and to report any failure to ADEM and the Board within 24 hours."

During a hearing on the Board's motion for a preliminary injunction, the Board's expert, DeWayne Smith, a professional engineer and a certified professional in erosion and sediment control, testified, based on a "flyover" of ILI's property he had recently performed, that ILI had not implemented almost any BMPs on its construction site.Smith also testified that drainage from ILI's construction site flowed downward onto the Board's property.Jimmy Jackson, the Board's supervisor of Inland Dam,¹ testified that his inspection of Sawmill Slough and Inland Lake revealed a marked increase in sediment that appeared to be coming from ILI's construction site.

Gail Holcomb, an environmental scientist with ADEM, testified that she inspected ILI's construction site on April 25, 2007, and had found the BMPs to be inadequate and not maintained.Holcomb had issued a warning letter on behalf of ADEM to ILI on May 7, 2007, ordering that the deficiencies she noticed on her April 25, 2007, inspection be corrected.Holcomb again inspected ILI's construction site on July 25, 2007.She found the situation concerning the implemented BMPs to be much improved, but the BMPs were still inadequate.Holcomb also testified that on August 3, 2007, she inspected a tributary leading into Sawmill Slough and observed sediment "all the way from the lake all the way up to an outlet of the construction site."On August 7, 2007, ADEM issued a notice of violation to ILI, informing ILI that it was in violation of its NPDES permit.

ILI subsequently entered into a consent decree with ADEM concerning its violations of the NPDES permit.In the consent decree, ILI denied the factual allegation that it had violated the permit, but it agreed to implement all BMPs requested by ADEM.The consent decree provided for the imposition of daily fines and penalties if ILI did not meet the requirements of the consent decree.In the hearing before the trial court, ILI made an oral motion to dismiss the Board's complaint based on the consent decree, arguing that the consent decree provided all the relief the Board had requested in its complaint and its motion for a preliminary injunction.The trial court denied ILI's motion to dismiss.

In September 2007, a heavy rain event occurred in the Inland Lake area.Jimmy Jackson testified at the hearing that he inspected Sawmill Slough during the rain event and observed a heavy flow of muddy water coming downstream into Inland Lake.Jackson stated that he had never seen as much sediment in Sawmill Slough as was present during the rain event.The Board's expert, DeWayne Smith, testified that, in the month before the hearing, he had completed two ground inspections of ILI's construction site, he had done a second flyover of the construction site, and he had walked up Sawmill Slough.Smith testified that although some BMPs had been implemented by ILI, they were not adequate, and sediment continued to flow off the construction site and into Sawmill Slough.Smith stated that the additional BMPs ILI had implemented would not be sufficient to prevent sediment from continuing to flow from the construction site onto the Board's property during rain events.

Joel Rhaly, the Board's manager of water and wastewater treatment, testified that the water from Inland Lake was historically "pristine" and the cleanest water from any of the Board's water sources.Rhaly stated that he had inspected Sawmill Slough and observed increased sediment in the water.He also stated that increased turbidity² in water requires an increase in the amount of chemicals used to treat the water, which can cause the water to have an undesirable odor or taste.Rhaly testified that filtering out the turbidity in the water results in sludge that must be put into a form that ADEM will accept so that it can be placed in a landfill, which adds to the Board's water-treatment expenses.He also stated that increased turbidity in the water could affect the kind of expansion the Board planned for the Carson filter plant in the next two years.

Under questioning from the trial court, Rhaly admitted that from the time ILI began its construction in November 2006, there had not been an increase in the turbidity of the water tested at the Carson filter plant.He stated that there had not been a problem with water quality at the Carson filter plant since ILI started its development project.He stated that he could not associate any problems with the water from Inland Lake with ILI's construction activity.All the Board's witnesses—Jackson, Smith, Holcomb, and Rhaly—admitted that with extra effort and expense any extra sediment in the water could be removed.

At the conclusion of the hearing, the trial court stated that "based on the evidence and the caselaw," it did not "believe the Board had met the burden" for the issuance of a preliminary injunction.Accordingly, the trial court made an entry in the case-action-summary sheet denying the Board's motion for a preliminary injunction.The Board appeals.

II.Standard of Review

The requirements for a preliminary injunction are well known and have been often stated by this Court:

"`Before entering a preliminary injunction, the trial court must be satisfied: (1) that without the injunction the plaintiff will suffer immediate and irreparable injury; (2) that the plaintiff has no adequate remedy at law; (3) that the plaintiff is likely to succeed on the merits of the case; and (4) that the hardship imposed upon the defendant by the injunction would not unreasonably outweigh the benefit to the plaintiff.'"

Blount Recycling, LLC v. City of Cullman,884 So.2d 850, 853(Ala.2003)(quotingBlaylock v. Cary,709 So.2d 1128, 1130(Ala.1997)).Because, as discussed below, our review of the trial court's order in this particular case "is grounded only in questions of law based on undisputed facts," our review is de novo.SeeHoliday Isle, LLC v. Adkins,12 So.3d 1173, 1176(Ala.2008).

III.Analysis

In the present action, the record clearly reflects that the trial court denied the Board's motion for a preliminary injunction because the trial court concluded that the Board had not shown an "irreparable injury"(element number 1) and therefore had not shown that it did not...