Opinion
Civil Action, No. 07-5255.
August 10, 2008.
Alan W. Flenner, High Swartz Roberts Seidel LLP, Norristown, PA, Stephen G. Yusem, Morris and Clemm, P.C., Plymouth Meeting, PA, for Edwin R. Thompson and Karen J. Thompson.
Jeffrey G. Trauger, Mary C. Eberle, Grim, Biehn, Thatcher, Perkasie, PA, Lynn Rosner Rauch, Manko, Gold, Katcher Fox, LLP, Bala Cynwyd, PA, for Horsham Township.
MEMORANDUM AND ORDER
The plaintiffs live on a farm adjacent to a 40-acre parcel of land in Horsham Township. A developer has filed an application to develop the parcel. The plaintiffs contend that defendant Horsham Township has failed to comply with certain federal legal requirements concerning stormwater management and that the proposed development will cause flooding on their property. The defendant has filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the plaintiffs lack standing because the suit is premature and they have suffered no actual injury. The Court agrees and will grant the motion to dismiss.
I. Facts
A. The Thompsons and the Alter Tract
Plaintiffs Edwin and Karen Thompson live on a farm in Horsham Township, the defendant. A tributary of the Pennypack Creek runs through the farm. Immediately upstream from the plaintiffs' farm is a 40-acre property called the Alter Tract. Two unnamed streams that cross the Alter Tract converge at the Tract's eastern boundary to form the tributary stream of the Pennypack that crosses the plaintiffs' property. One of these streams flows from a drainage pipe that is part of the defendant's stormwater system. Compl. ¶¶ 16-19.
Intervenor defendants Orleans Homebuilders, Inc. and Orleans Corporation ("Orleans", collectively) are developers. Orleans has filed plans with the township to develop the Alter Tract and subdivide it into single family homes. The complaint alleges that the proposed development of the Alter Tract will damage the plaintiffs' property through flooding and erosion and will harm their springhouse. The plaintiffs use and enjoy the Pennypack tributary on their property and the Pennypack watershed generally. They allege that the stream on their property enhances its value and maintains the functionality of their springhouse. They claim that they have spent money to protect the tributary on their property by installing fencing to keep their cows out of the stream and planting trees to stabilize its banks. Id. ¶¶ 1, 12 20-25.
The plaintiffs allege that the defendant's failure to comply with applicable laws concerning stormwater drainage has increased the risk of flooding from the tributary stream of the Pennypack that crosses their property.
B. Federal and State Regulation of Municipal Storm SewageSystems
The Federal Water Pollution Control Act, also known as the Clean Water Act, prohibits the discharge of any pollutant from a point source to the waters of the United States without an National Pollutant Discharge Elimination System ("NPDES") permit. 33 U.S.C. §§ 1311, 1342(p). On December 8, 1999, the Environmental Protection Agency ("EPA") extended the NPDES permitting regime to Municipal Separate Storm Sewer Systems ("MS4s"), which are systems serving less than 100,000 persons. Horsham Township's storm sewer system is an MS4. Compl. ¶¶ 26, 31; 64 Fed. Reg. 68,722.
Under the NDPES program, the EPA has directed operators of small MS4 programs to implement and enforce a stormwater management program designed to reduce the discharge of pollutants to the maximum extent practicable, including best management practices. Compl. ¶ 32; 40 CFR pt. 122.34; 64 Fed. Reg. 68,731; Def.'s Br. Ex. 1 (EPA MS4 Fact Sheet).
A stormwater management program is required to have six "minimum control measures" or "MCMs": 1) public education and outreach on storm water impacts; 2) public involvement and participation; 3) illicit discharge detection and elimination; 4) construction site stormwater runoff control; 5) post-construction stormwater management in new development and redevelopment; 6) pollution prevention/good housekeeping for municipal operations. Compl. ¶ 33-34; 40 C.F.R. pts. 122.26-37; 64 Fed. Reg. 68,748.
With respect to the third MCM of illicit discharge detection, the EPA requires a permittee to develop a storm system map, showing the location of all outfalls and names and locations for all waters of the United States that receive discharges from those outfalls. With respect to the fifth MCM of post-construction stormwater management, the EPA requires a permitee to:
(1) develop and implement strategies which include a combination of structural and/or non-structural best management practices (BMPs) appropriate for the community; 2) use an ordinance or other regulatory mechanism to address post-construction runoff from new develoment and redevelopment projects to the extent allowable under State Tribal or local law.
Compl. ¶¶ 31, 35, 36; 40 C.F.R. pt. 122.34(b)(5)(ii)(B); 64 Fed. Reg. 68, 759-60; 64 Fed. Reg. 68, 753-56.
The Pennsylvania Department of Environmental Protection ("PennDEP") has been delegated authority by the EPA to issue permits for storm water systems. PennDEP issued a NPDES permit to the defendant to operate a category "MS4" storm system and to discharge storm water into the waters of the United States. Compl. ¶¶ 29, 56; 56 Fed. Reg. 41,687.
C. Changes Made to Horsham Township's Subdivision Ordinance to Comply with Federal and State Laws
1. Section 611 as amended by Ordinance 4017
On December 8, 1999, the defendant enacted section 611 of its Subdivision and Land Development Ordinances ("Ordinances"), which provided the framework for its review and approval of proposed subdivisions. Section 611 was enacted through Ordinance 4017. It required that developers construct or install drainage structures to: 1) prevent erosion and satisfactorily carry off or detain and control the rate of release of stormwater; 2) handle the anticipated peak discharge of stormwater from the property; and 3) maintain and improve the existing water quality of receiving waterways. Section 611 specifically prohibited development that generates more runoff in the post-development condition than the site did in its natural condition. Compl. ¶ 37.
2. Section 611, as amended by Ordinance 4019
On October 19, 2002, the defendant again amended section 611 through Ordinance 4019. This amendment was in response to PennDEP's promulgation of a Comprehensive Stormwater Management Policy in September 2002. Section 611, as amended by Ordinance 4019, specified further standards for stormwater management and required applicants for subdivision and land development to provide for the future maintenance of stormwater management facilities. Compl. ¶¶ 40, 42.
3. The Township's 2003 Notice of Intent
In December 2002, PennDEP promulgated an MS4 Stormwater Management Program Protocol for use by MS4 municipalities. The Protocol requires a municipality to complete a map of its storm sewer outfalls and receiving surface water bodies within the first year of its NPDES Permit. It also requires that a municipality enact, implement, and enforce a stormwater control ordinance applicable to all development and redevelopment activities which involve earth disturbance of five acres or more. Post-construction stormwater controls must meet certain water quality requirements. Compl. ¶¶ 43, 45-47; Def.'s Br. Ex. 4.
PennDEP incorporated the Protocol into an NPDES General Permit, PAG-13, issued in December of 2002. The General Permit reiterates that MS4 municipalities may use all or portions of the Protocol to meet their permit requirements, but that if a municipality does not use the Protocol, it must develop its own plan which must be approved by PennDEP. Compl. ¶¶ 27, 49; Def.'s Br. Ex. 5.
On April 29, 2003, the defendant issued a Notice of Intent ("NOI") to be covered under General Permit PAG-13. In the NOI, the defendant indicated that it would follow PennDEP's protocol as to five of the six MCMs required under the NPDES program, but for the MCM of post-construction stormwater management, it would apply section 611, as modified by Ordinance 4019. Compl. ¶¶ 48, 51-53.
One day earlier, on April 28, 2003, PennDEP issued the defendant an NDPES permit, number PAG130157. In doing so, PennDEP approved the NOI and authorized the defendant to discharge stormwater subject to the terms and conditions of the Permit and the NOI. Compl. ¶ 56.
D. Orleans' Applications to Develop the Alter Tract
On July 16, 2001, Orleans submitted an application ("2001 Plan") to the Township proposing the subdivision and development of the Alter Tract. This application was submitted before the Township amended its Subdivision Ordinances in 2002 through Ordinance 4019. Under the 2001 Plan, the Alter Tract would be subdivided into twenty-four lots and would be developed with twenty-two single family dwellings and a road. Compl. ¶ 39.
The defendant issued a conditional use approval for the 2001 Plan. The plaintiffs challenged that decision in state court but were ultimately unsuccessful. In re Thompson, 896 A.2d 659 (Pa.Commw.Ct. 2006), alloc. den. 916 A.2d 636 (Pa. 2007). As a result of the delay, another Orleans entity, OHB Builders, Inc., submitted an alternative plan on February 8, 2006 ("2006 Plan"), that would subdivide the Alter Tract into twenty-one lots with twenty single family dwellings and a road. Both plans are pending before the township. Compl. ¶ 64.
E. The Parties Dispute Which Version of the Subdivision Ordinance Should Apply to the Plans to Develop the Alter Tract
The defendant contends that it is bound by the Pennsylvania Municipal Planning Code which states that:
From the time an application for approval of a plan, whether preliminary or final, is duly filed as provided in the subdivision and land development ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision, or governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed.53 Pa. Stat. Ann. § 10508(4)(i).
The plaintiffs contend that the defendant is required to enforce Ordinance 4019 against both the 2001 Plan and the 2006 Plan under the terms of the NDPES permit. In addition, the plaintiffs allege that the defendant violated its NPDES permit by failing to include the Pennypack tributary on their property and the outfall on the Alter Tract on the Township's MS4 Storm Sewer Map required under the Permit. The complaint says that PennDEP issued notices of violations to the Township in July of 2005, September of 2005, and March of 2006, stating that it had failed to comply with various reporting requirements under the Permit. Compl. ¶¶ 57, 58, 60.
The plaintiffs' counsel has written numerous letters informing the defendant of the inaccuracies on its MS4 Map and what the plaintiffs contend is the requirement that the defendant enforce Section 611 as amended by Ordinance 4019 against both development plans. On August 30, 2007, the Horsham Township engineer issued a preliminary plan review of the 2006 Plan that did not use the criteria in Section 611 as amended by Ordinance 4019. By letter dated September 24, 2007, the Township solicitor told the plaintiffs that the defendant would not be applying Section 611 as amended by Ordinance 4019 to the 2001 Plan because the Plan was filed before the amendments. Compl. ¶¶ 62, 65, 66, 69.
In a footnote in its motion to dismiss, the defendant says that it believes it is bound to apply the earlier version of Section 611 as amended through Ordinance 4017 only to the 2001 Plan. It says it will apply the later version of Section 611 as amended through Ordinance 4019 to the 2006 Plan. At oral argument on June 12, 2008, defendant's counsel reported that the defendant now takes no position as to which ordinance should apply. Both plans remain pending before the defendant. Def.'s Br. at 19 n. 7; Oral Arg. Tr. at 36, 46, June 12, 2008.
F. The Claims in this Suit
The plaintiffs filed this suit on December 14, 2007. They allege that the defendant has violated provisions of:
1) the Federal Water Pollution Control Act, also known as the Clean Water Act, 33 U.S.C. § 1251 et seq., specifically §§ 1311 and 1365, and implementing regulations at 40 C.F.R. pts. 122 and 123;
2) the Pennsylvania Clean Streams Law, 35 Pa. Stat. Ann. § 691.1 et seq. and accompanying regulations at 35 Pa. Code chs. 92, 93, and 102;
3) and the terms and conditions of the defendant's MS4 NPDES Permit No. PAG130157.
The plaintiffs allege they gave the notice to the EPA of their intent to file suit as required by 33 U.S.C. § 1365(b)(1)(A). The plaintiffs seek:
1) a declaratory judgement that the Township has violated its NPDES permit;
2) an order mandating that the Township apply the provisions of Ordinance 4019 to "any and all unapproved subdivision plans which have been filed or may be filed in respect to the Alter Tract";
3) an order requiring the Township to provide a copy of all reports submitted to the EPA or PennDEP regarding the Township's permit compliance for a period of two years from the date of the order;
4) an order requiring the Township to produce a complete and accurate MS4 map within 60 days;
5) and order requiring the Township to pay per diem civil penalties under the Act; and
6) an order awarding attorneys' fees.
II. Analysis
The defendant has filed a motion to dismiss under Fed.R.Civ.P. 12(b)(1), for lack of subject matter jurisdiction; 12(b)(6), for failure to state a claim upon which relief can be granted; and 12(b)(7), for failure to join an indispensable party. The defendant also seeks dismissal under Fed.R.Civ.P. 12(c), judgment on the pleadings. Under Rule 12(b) the Court accepts well-pleaded allegations and reasonable inferences as true, and construes the complaint in the light most favorable to the non-moving party. If the complaint does not allege sufficient facts which, if proven, would entitle the plaintiffs to relief as a matter of law, then the Court will dismiss the complaint. See Ransom v. Marazzo, 848 F.2d 398, 401 (3d Cir. 1998). The Court may consider attachments to the complaint as well as matters that are publicly available or subject to judicial notice. Matters outside the pleadings may also be considered on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). See Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997).
Orleans filed a Motion to Intervene (Docket No. 16) on April 14, 2008. The Court granted the motion on June 11, 2008. Therefore, the motion to dismiss for failure to join an indispensable party under Fed.R.Civ.P. 12(b)(7) is denied as moot.
The Court will grant the defendant's motion to dismiss for lack of subject matter jurisdiction because the plaintiffs lack standing to bring their claim and because the action is not yet ripe for adjudication. The plaintiffs' claims of reporting and mapping violations are moot.
A. Standing
Article III of the Constitution limits federal jurisdiction to cases and controversies. The doctrine of standing identifies those disputes which are appropriately resolved through the judicial process.See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citingWhitmore v. Ark., 495 U.S. 149, 155 (1990)). Constitutional standing requires that the plaintiff have an actual or imminent injury that is fairly traceable to the defendant and can be redressed by the court.Id.
The defendant argues that the plaintiffs lack standing to bring their claims because they have not shown an actual or imminent injury, and because the defendant has yet to rule on either of the pending plans for development of the Alter Tract, and therefore there is no final administrative action for the Court to review. The plaintiffs contend that they have standing because of the permissive citizen suit provisions of the Clean Water Act. The parties disagree as to which standing analysis the Court should use: the plaintiffs argue that they do not have to meet the exacting standing requirements cited by the defendant because they seek to address a procedural injury that threatens the use and enjoyment of their land. The defendant argues that the plaintiffs' alleged injury is not procedural, and that the Court should examine the plaintiffs' claims under the Lujan framework. Def.'s Br. at 9-10; Pls.' Opp. at 6, 8.
The Court will address the ripeness of the plaintiffs' claims below in section II.B.
1. Procedural Standing
The Supreme Court has said that the requirements of standing may be lessened when a plaintiff has suffered a procedural injury: "The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy." Lujan, 504 U.S. at 573 n. 7. When a plaintiff is vested with a procedural right, that plaintiff has standing to sue "if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant." Mass. v. EPA, ___ U.S. ___, 127 S. Ct. 1438, 1453 (2007).
To establish procedural standing, a plaintiff must allege that: 1) the defendant violated certain procedural rules; 2) these rules protect the plaintiff's concrete interests; and 3) it is reasonably probable that the challenged action will threaten those concrete interests. Citizens for Better Forestry v. U.S. Dep't of Agric., 341 F.3d 961, 969-70 (9th Cir. 2003). In Lujan, the Supreme Court gave an example of a situation that would give rise to procedural standing:
[O]ne living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an environmental impact statement, even though he cannot establish with any certainty that the statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years.504 U.S. at 573 n. 7. The Court clarified further that a plaintiff can enforce procedural rights only if the procedures are designed to protect a concrete interest that is the ultimate basis of the plaintiff's standing. Id. at 573 n. 8.
The plaintiffs in this case claim that their situation is analogous to the situation the Supreme Court described inLujan and other cases in which plaintiffs challenged defendants' failure to follow mandated procedures. See, e.g., Nulankeyutmonen Nkihtagmikon v. Impson, 503 F.3d 18, 25 (1st Cir. 2007) (finding that a tribal plaintiff had procedural standing when it claimed that the Bureau of Indian Affairs failed to prepare an environmental assessment or provide an opportunity for public comment before allowing a long-term lease of tribal land for energy development); Tex. Indep. Producers Royalty Owners Assoc. v. EPA, 410 F.3d 964, 977 (7th Cir. 2005) (holding that an environmental organization had procedural standing to challenge the EPA's failure to mandate public availability of a notice of intent and a stormwater pollution prevention plan and its failure to provide the opportunity for a public hearing).
The plaintiffs say that their injury is procedural: the defendant's failure to apply Ordinance 4019 to the 2001 Plan, which, according to the plaintiffs, violates the terms of its NPDES permit. They cite Impson for the proposition that a procedural injury has already occurred when a government body expresses an intention to violate procedures that are meant to minimize the impact of development on the environment. Pls.' Opp. at 11; Oral Arg. Tr. at 15, June 12, 2008.
The defendant says that the plaintiff is not eligible for the lessened requirements of procedural standing, arguing that the Clean Water Act's citizen suit provision does not mean that every claim under the Act states a procedural injury for standing purposes. The defendant points out that many of the cases the plaintiff cites are not suits under the Clean Water Act, but rather suits under the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"), which mandates specific procedures for federal agencies. For example, the plaintiff citesCity of Sausalito v. O'Neill, 386 F.3d 1186 (9th Cir. 2004), in which the court held that the plaintiff had standing because the NEPA required federal agencies to engage in certain environmental assessments (including preparation of environmental impact statements) that the defendant agency had skipped. The defendant also points to Mass. v. Watt, 716 F.2d 946 (1st Cir. 1983), which distinguishes between the NEPA and substantive environmental statutes. The court said that the NEPA was designed to influence the decision-making process, and therefore, when a decision is made without the "informed environmental consideration" required by the statute, the harm that the statute intends to prevent has been suffered. Id. at 952. The court contrasted the NEPA with the Clean Water Act, which focuses upon the integrity and cleanliness of the country's waters, not the permit process. Id.
In Texas Indep. Producers, the United States Court of Appeals for the Seventh Circuit distinguished between procedural standing and substantive standing. The court found that the plaintiff did not have standing to challenge the substantive provisions of a storm water discharge permit, because it did not establish that any stormwater had actually been discharged into the water bodies at issue or show that discharges had caused the complained-of injury. The plaintiff did have procedural standing, however, to challenge the EPA's failure to follow mandated procedures (a public hearing and public availability of a notice of intent and a stormwater pollution prevention plan). 410 F.3d at 974-76, 977.
The plaintiffs in this case have no such procedural challenge. They object to the substance of the defendant's decision (albeit a decision not yet made), not the defendant's procedures. The plaintiffs claim that the defendant has violated its NDPES permit by failing to apply the higher standards of Ordinance 4019 to the 2001 Plan. This is not the vindication of a procedural right, such as the right to have an environmental impact statement prepared (the example the Supreme Court gave in Lujan) or to have a period of public comment, as in Impson. The plaintiffs do not contend that the defendant has skipped a particular rulemaking step required by the statute; rather, they seek to have the defendant apply a particular legal standard in ruling on the development plans. The question of what legal standard should apply to a land use decision is substantive, not procedural.
When a plaintiff is vested with a procedural right, that plaintiff has standing to sue "if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant."Mass. v. EPA, 127 S. Ct. 1438, 1453 (2007). Not only are the plaintiffs not vested with a procedural right in this case, the defendant has made no such decision, because it has not approved either development plan. The plaintiffs are not eligible for the less stringent requirements of procedural standing.
2. Standing under Lujan
The plaintiffs' claims must be considered using the constitutional standing factors from Lujan. The "irreducible constitutional minimum" of standing has three elements: First, the plaintiff must have suffered an "injury in fact," an invasion of a legally protected interest that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Second, there must be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendants and not the result of the independent action of some third party not before the court. Third, it must be likely, rather than speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560 (internal citations and quotations omitted); see also Friends of the Earth, Inc. v. Laidlaw Environmental Servs., Inc., 528 U.S. 167 (2000).
The plaintiffs cannot make out the first element of standing: they have not suffered an injury in fact that is both concrete and particularized and actual or imminent, not conjectural or hypothetical. Id. The plaintiffs are worried about the threat posed to their land if the development of the Alter Tract proceeds under the 2001 Plan, reviewed under Ordinance 4017. When a plaintiff claims that a threatened injury is the source of standing, the plaintiff must show that the threatened injury is so imminent that it is "certainly impending." Pub. Interest Research Group v. Magnesium Elektron, Inc., 123 F.3d 111, 122 (3d Cir. 1997) (quoting Whitmore v. Ark., 495 U.S. 149, 155-58 (1990)).
The plaintiffs' claimed injury depends on a series of future events, none of which are "certainly impending": the defendant would have to review the pending plans under Section 611 as amended by Ordinance 4017 rather than by Ordinance 4019; the plan would have to be approved without the additional requirements of Ordinance 4019; Orleans would need to receive other permits (including an NPDES permit and a construction permit); the development would need to be built; and after all of those steps, flooding might occur and damage the plaintiffs' property near the Alter Tract.
This is too speculative to be an imminent injury. The plaintiffs cite Ecological Rights Fdn. v. Pac. Lumber Co., 230 F.3d 1141, 1149 (9th Cir. 2000), for the proposition that fear of future harm can support standing. This is true as far as it goes. InEcological Rights Fdn., however, it was undisputed that runoff from Pacific Lumber's two facilities drained into a creek and other downstream waterways. The plaintiffs had not established that the creek was polluted by the runoff, but they feared such pollution and curtailed swimming and fishing in the creek. Id. In this case, the development that the plaintiffs fear will lead to flooding has yet to be built. There is no certainty that it ever will be built; the defendant has not even reviewed the plans for development yet. This is not the kind of future harm the Ecological Rights Fdn. court considered when it held that the plaintiff had standing to sue.
The plaintiffs claim that they have already been injured and incurred costs to protect against stormwater runoff: they have installed fencing to keep their cattle out of the stream and planted trees along the stream to stabilize its banks. Pls.' Opp. at 15. This alleged injury is not fairly traceable to the actions of the defendant. The plaintiffs have not alleged that the defendant is responsible for all flooding in the Pennypack Creek Watershed; indeed, Horsham Township is not the only municipality whose policies affect the Watershed. Compl. ¶ 13. If an injury is not fairly traceable to the actions of a defendant, it cannot support standing. Lujan, 504 U.S. at 573.
The plaintiffs have not alleged an actual injury that is "imminent, not conjectural or hypothetical." Id. at 560. The flooding the plaintiffs' fear is speculative, and the injuries they claim to have already suffered are not fairly traceable to the actions of the defendant. The plaintiffs do not have standing to sue.
B. Ripeness
Even if the plaintiffs did have standing to sue, their claims are not yet ripe. The ripeness doctrine serves to determine whether a party has brought an action prematurely. If a dispute is not yet ripe, a court should abstain from ruling until the dispute is sufficiently concrete to satisfy the constitutional and prudential requirements of the doctrine. County Concrete Corp. v. Twp. of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (citing Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004)). The United States Court of Appeals for the Third Circuit has held that ripeness is at least partially grounded in Article III's requirement of a case or controversy. Taylor Inv., Ltd. v. Upper Darby Twp., 983 F.2d 1285, 1290 n. 6 (3d Cir. 1993) (citing Armstrong World Indus. v. Adams, 961 F.2d 405, 411 n. 12 (3d Cir. 1992)). In the Third Circuit, unripe claims should be disposed of on a motion to dismiss. Id. at 1290.
The defendant has not given even preliminary approval to either the 2001 Plan or the 2006 Plan. A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all. Tex. v. United States, 523 U.S. 296, 300 (1998) (internal quotations omitted). As the Court discussed in the section on standing, the plaintiffs' claim is based on multiple future events that may not occur as anticipated or indeed, at all. The injury the plaintiffs fear will only come about if: the defendant reviews the 2001 Plan under Ordinance 4017 instead of Ordinance 4019; the defendant then approves the plan based on that review without imposing any additional stormwater requirements; Orleans gets all of the other permits and approvals it needs before it starts construction; Orleans builds the proposed subdivision; and the stormwater management practices in place after construction are not sufficient to protect the plaintiffs' nearby property from flooding. Compl. ¶¶ 25, 65, 67, 68, 71.
In land use cases, a property owner's claim is not ripe until state authorities have the opportunity to reach a final, definitive position as to how they will apply a particular regulation to a piece of land. Taylor, 983 F.3d at 1291 (citingWilliamson Planning Comm. v. Hamilton Bank, 473 U.S. 172, 191 (1985)). Courts require such finality, according to the Taylor court, because land use regulation affects so many people and social interests, and local political bodies are better able to assess the burdens and benefits of the regulations than federal courts. Id.
The Taylor court held that a plaintiff's complaint about the revocation of a permit by a zoning officer was not ripe because the defendant township had not rendered a final decision on the permit, and because the zoning board was free to consider any new facts and circumstances of the permit application, even after the officer denied the permit. Id. at 1293. In Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993), the court held that although the defendant county had made a final decision with respect to the plaintiff's development plans, the plaintiff sought redress for the denial of a building permit. Because the permit decision was appealable to the Board of Adjustment, and only the Board had final authority to interpret the regulation, there could be no final judgment before the Board issued its decision. The court held that the claim was not ripe. Id. at 976.
In this case, the defendant's approval or denial of either of the two development plans is only the first in a series of potential administrative decisions. If the defendant approves one of the plans, the plaintiffs could seek a final adjudication of that approval pursuant to the Pennsylvania Municipalities Planning Code. After that, the plaintiffs could seek a stay of the approval while judicial proceedings are pending in the Court of Common Pleas. 53 Pa. Stat. Ann. §§ 10908(3), 10909.1, 11002-A, 11003-A.
The township's own administrative decisions are not the only ones to affect the fate of the proposed development: Orleans would need to obtain its own NPDES permit from PennDEP prior to beginning construction and implement an erosion control program. Orleans' construction permit would have to address post-construction stormwater runoff. The DEP approval of the NPDES permit is itself reviewable through a state administrative process, by appeal to the Pennsylvania Environmental Hearing Board. Pennsylvania Clean Streams Law, 35 Pa. Stat. Ann. § 691.7(a); 25 Pa. Code §§ 92, 93, 102; Def.'s Br. Ex. 4 (DEP Protocol, at 2-3).
The plaintiffs' claims rests on contingent, future events that may or may not occur, and therefore are not ripe for adjudication.
C. Ancillary Claims
The plaintiffs allege that the defendant has violated the mapping and reporting requirements in the defendant's NPDES permit. Compl. ¶¶ 70, 72. The defendant says that neither violation is continuing, and therefore the plaintiffs fail to state a claim. The United States Supreme Court has held that the Clean Water Act does not allow citizen suits for "wholly past violations." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Fdn., Inc., 484 U.S. 49, 64 (1987).
1. Mapping Violations
The plaintiffs claim that the defendant has violated its NPDES permit by failing to include the two tributaries of the Pennypack Creek that join on the Alter Tract and flow as a single tributary through their property, and by failing to identify a drainage pope outfall along Welsh Road in the Alter Tract. The MS4 Rule requires that a map or set of maps show the locations of all outfalls and the names and locations of receiving waters. Compl. ¶ 60; 64 Fed. Reg. 68,756.
The defendant argues that it has corrected these errors and that therefore the plaintiffs' claims are moot. It attaches to its motion to dismiss an affidavit from the Township manager confirming the map corrections and the revised MS4 map, which includes the Pennypack Creek tributary, its branches, and the outfalls. The plaintiffs counter with an affidavit from an engineer saying that the map is still inaccurate. Def.'s Br. Ex. 6, Affidavit of Michael McGee, Horsham Township Manager, App. A; Pl.'s Opp. Br. at 2, Ex. A, Affidavit of Paul D. Erfle.
As discussed above, the Court can consider matters outside the complaint when deciding a motion to dismiss for lack of jurisdiction under Fed.R.Civ.P. 12(b)(1), without converting the motion into a motion for summary judgment. At oral argument both parties agreed that the Court should consider the affidavits. Oral Arg. Tr. at 34, June 12, 2008.
The plaintiffs' affidavit does not address the defects outlined in the complaint. Instead, it identifies another alleged defect — the failure of the map to show a watercourse in the northern quadrant of the Alter Tract. According to the affidavit, the watercourse can be identified from an aerial photograph of the Tract, and it is identified on the development plans submitted to the defendant. Id. ¶¶ 4-7.
The Court considers only the allegations that were in the complaint. The watercourse in the northern quadrant was not part of the complaint. Even if the Court could consider this new problem with the map, the standard that the EPA requires for an MS4 map is that it show the location of all outfalls and the names and locations for "all waters of the United States" that receive discharges from those outfalls. 64 Fed. Reg. 68, 753-56. The plaintiffs have not alleged that the watercourse missing from the map is a "water of the United States," or that it receives discharges from the outfalls of the MS4 storm sewer system. Oral Arg Tr. at 26-32, June 12, 2008.
The defendant's revision of the map moots the plaintiffs' claim of a mapping violation.
2. Reporting Violation
The complaint alleges that the defendant failed to meet reporting requirements under the NPDES permit in July of 2005, September of 2005, and March of 2006. PennDEP issued notices to the defendant on each violation. The defendant argues that these are only intermittent past violations and therefore cannot support a suit under Gwaltney. The plaintiffs did not respond to the defendant's arguments in either their opposition to the motion to dismiss or at oral argument. Compl. ¶ 72; Def.'s Reply at 2; Oral Arg. Tr. at 25, 33, June 12, 2008.
Wholly past violations are insufficient to purse a citizen's suit under the Clean Water Act, and the plaintiffs have not alleged any further or ongoing violations. The plaintiffs' reporting claims are therefore moot.
An appropriate Order follows.
ORDER
AND NOW, this 10th day of August, 2008, upon consideration of the defendant's Motion to Dismiss (Docket No. 9), and the opposition and reply thereto, IT IS HEREBY ORDERED, for the reasons set forth in the accompanying Memorandum of Law, that the defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED.This case is CLOSED.