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LLC v. Greater New Haven Regional Water Pollution Control Authority

United States District Court, D. Connecticut

July 11, 2017

26 CROWN ASSOCIATES, LLC, Plaintiffs,
v.
GREATER NEW HAVEN REGIONAL WATER POLLUTION CONTROL AUTHORITY, Defendants.

          RULING GRANTING MOTIONS TO DISMISS

          Jeffrey Alker Meyer United States District Judge

         Like scores of older cities in the United States, the City of New Haven in Connecticut faces significant challenges from an aging and obsolete sewer system. New Haven has what is known as a “combined sewer system”-a system for which the majority of the pipes that carry the City's sewage end up combining underground with pipes that carry waters collected from storm drains during wet weather events. This type of combined system is designed to economize on the use of underground piping and to channel all sewage and storm drainage waters to a central water treatment plant to be “treated” or sanitized prior to discharge of the waters to a natural body of water such as a river, lake, or sea.

         But a heavy rainfall can mean great trouble for a combined sewer system: a tsunami of sewage and storm water may very suddenly flood the system, far more than the treatment plant can possibly handle at one time. This may result not only in the backflow of sewage to homes and businesses served by the sewage lines but also in the release of wholly untreated sewage to the river, lake, or sea. See City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 308-09 (1981); U.S. Environmental Protection Agency, Region 1: EPA New England, What are Combined Sewer Overflows?, available at https://www3.epa.gov/region1/eco/uep/cso.html (last accessed July 10, 2017).

         Plaintiffs in this case are three companies who own, lease, and manage an apartment building at 26 Crown Street in downtown New Haven. They have filed this lawsuit against defendants City of New Haven and the Greater New Haven Regional Water Pollution Control Authority. By means of a broad-ranging complaint that amounts to an indictment of New Haven's combined sewer system, they seek to hold defendants responsible for the system's failures that have led to continuing and chronic backflows of sewage into the basement of 26 Crown Street, as well as to backflows of sewage onto the property of thousands of other New Haven property owners, and to releases of untreated sewage directly into the Long Island Sound. Plaintiffs allege in principal part that defendants have acted in violation of the federal Clean Water Act.

         Defendants have now moved to dismiss this action on several grounds. For the reasons set forth below, I will grant their motions. As an initial matter, I conclude that the only injury for which plaintiffs have standing is the backflow of sewage onto their own property. Plaintiffs as corporate entities do not have standing to assert any injuries from the loss of aesthetic enjoyment of a clean environment. Nor do they have standing to assert the rights of other New Haven property owners or to complain more generally about discharges of sewage into the Long Island Sound that have no effect on them or their business.

         As to the sole type of injury for which plaintiffs have standing (the backflows of sewage onto their own property), I conclude for two reasons that plaintiffs do not allege a valid claim under the Clean Water Act. First, a violation of the Clean Water Act requires that there have been a discharge of pollutants to navigable waters, and the bare facts alleged by plaintiffs do not give rise to a plausible inference that any backflows of sewage onto their property have reached the Long Island Sound more than half a mile away. Second, even fully crediting plaintiffs' allegations that the sewage backflows in their basement have seeped through the floor and into the ground water beneath their property and that there is some sort of a hydrologic connection between this ground water and the Long Island Sound, I conclude that such allegations of the pollution of navigable waters by means of passive ground water migration do not suffice as a matter of law to state a claim under the Clean Water Act.

         Therefore, I will dismiss plaintiffs' principal claim under the Clean Water Act. I will likewise dismiss plaintiffs' claim under the Constitution's Takings Clause, because plaintiffs have not sought compensation through state law procedures, and thus their claim is not yet ripe for review. All of plaintiffs' remaining claims arise under state law, and I will decline to exercise jurisdiction over these remaining claims in the absence of any federal law claims. Accordingly, I will dismiss this action without prejudice to plaintiffs' right to pursue their state law claims in the state courts of Connecticut.

         Background

         The plaintiffs in this case are three companies-26 Crown Street Associates, LLC, 26 Crown Master Tenant, LLC, and PMC Property Group, Inc.-that all have something to do with the ownership, leasing, or management of an apartment building at 26 Crown Street in downtown New Haven. Their building has 64 residential units as well as a coffee shop on the ground floor.

         The building at 26 Crown Street lies over half a mile from the Long Island Sound.[1] It is a few blocks from the federal courthouse where this case has been heard, and I take judicial notice that 26 Crown Street is separated from the Long Island Sound by several city blocks, the Northeast Corridor railroad tracks, a massive IKEA store and parking lot, and multiple lanes of the I-95 interstate highway that run adjacent to New Haven Harbor.

         Plaintiffs have sued both the City of New Haven (the “City”) and the Greater New Haven Water Pollution Control Authority (the “Authority”), alleging that they are responsible in one way or another for chronic failures of the combined sewer system in New Haven. According to the complaint, the City has transferred primary management and legal responsibility for the operation and management of the piping and pumping stations of the combined sewer system to the Authority. The City has otherwise retained ownership and control of the storm water catch basins and storm water pipes that lead to the combined sewer system. The precise roles of the defendants are not important at this time to the resolution of the motions to dismiss.

         The complaint alleges environmental harm from the inability of the combined sewer system to manage large quantities of water that occur during wet weather events. These events allegedly “result[] in back-ups in the pipes followed by discharges of untreated wastewater, sewage and storm water . . . at various points within New Haven.” Doc. #64 at 6 (¶ 18). The complaint goes on to allege the following details about these releases of untreated wastewater:

         While some combined sewer flows exit the systems through planned outfall pipes and from there into tributaries and into the Long Island Sound, these releases are nonetheless of untreated sewage and storm water. The majority of the combined sewer overflows release into the West River, the Mill River, and the Quinnipiac River. Eleven of them release sewage directly into the Long Island [S]ound. Other releases occur in unplanned releases through virtually any leak or aperture in the pipes. This includes drain pipes in the basements of buildings such as the ones [sic]

the plaintiffs own. It also includes back up [into] the catchment basins from the storm water systems and manhole access points to the sewer. On information there are numerous releases of untreated sewage into the Long Island Sound and its tributaries each year as the result of combined sewage overflows.

Id. at 6-7 (¶ 18) (emphasis added).

         The complaint further alleges that “[t]he Crown Street Property has experienced backflows on the property, including the flooding of untreated sewage in, among other areas, the residential units and common areas of the Crown Street Property.” Id. at 9 (¶ 21). In addition, this backflow “phenomenon affects a numbers of other residents and property owners in New Haven, the total of which may be in the thousands.” Id. at 9 (¶ 22). The backflows leave “areas within and outside affected properties, including but not limited to the living spaces, basements, yards and paved areas of the affected buildings, with standing water which is essentially untreated sewage consisting of human excrement and pollutants.” Id. at 10 (¶ 28).

         According to the complaint, some of the backflow waters end up seeping into the ground and into the underground water table: “Because the basements affected by the backflow were constructed decades ago or more, the basements have cracks through which the sewage waters can escape and enter the soil below the basement, eventually working their way to the water table beneath the properties.” Id. at 10-11 (¶ 28). In similar fashion, the complaint elsewhere alleges that antiquated pipes within the combined sewer system have leaks that allow polluted water to enter the ground and ground waters. Id. at 12 (¶ 33). The complaint alleges that ground waters “are subject to regulation under State law, ” and-more ambiguously-that “[g]round waters this close to the Long Island Sound are hydraulically [sic] connected to the various streams that empty into the Long Island Sound.” Id. at 11 (¶ 29).

         In terms of the harm suffered by plaintiffs, the complaint alleges that plaintiffs have not only suffered “injury directly to their property and its tenants, ” but also that they “have suffered injuries as citizens from the additional releases of untreated sewage into the Long Island Sound during Combined Sewer Overflows and from releases that have occurred elsewhere in the City due to backflow.” Id. at 11 (¶ 30). “These injuries are ecological and aesthetic in the sense that the sewage is odorous and despoils that natural state of the creeks and land surrounding the tributaries and the Long Island Sound itself.” Ibid.

         The City and the Authority are allegedly aware of the pollution problems described above but have not taken the necessary steps to correct the problem. Id. at 12-13 (¶ 34). Accordingly, plaintiffs have brought this suit and seek certification to represent a class of property owners and others in New Haven who are adversely affected by the pollution that results from the failures of the combined sewer system. Id. at 13-15 (¶¶ 35-44).

         The second amended complaint, which is now the operative complaint in this action, asserts the following claims. Count One alleges that the release of untreated sewage during combined sewer overflow events, both into the Long Island Sound and onto private properties, constitutes a violation of the Clean Water Act, 33 U.S.C. § 1311(a). Count Two alleges a “takings” claim under the federal and state constitutions. Counts Three through Ten ...


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