The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case arises out of a property dispute between neighbors. Plaintiff, Ruth Parker, filed an action in Pennsylvania state court against Defendants, Mr. and Mrs. Carey, alleging violations of the federal Clean Water Act and National Historic Preservation Act, as well as common law trespass. Defendants removed the case to federal court and filed a Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 (ECF 5). Parker responded with a Motion for Change of Venue and Dismissal of Summary Judgment (ECF 10), and Defendants filed a Reply (ECF 11). For the following reasons, Defendants' Motion is GRANTED IN PART, as to the federal claims. The trespass claim is dismissed without prejudice. Plaintiff's Motion for Change of Venue and Dismissal of Summary Judgment is DENIED.
II.Facts and Procedural History
Plaintiff and Defendants own adjacent properties on Pine Hill Road in King of Prussia, located in Upper Merion Township. The Careys' home is elevated above the street level due to a sloping in the ground beneath their property. In the fall of 2012, they decided to sell their home so they could move to another part of the country and be closer to their children. But because the walls of their home were in poor condition, they hired a contractor, Ambrus Company LLC, to add fill and grade in front of them. They hoped this would ensure the home passed inspection. Ambrus Company obtained a "Stormwater Permit" from Upper Merion Township to proceed with the construction. (ECF 5, Ex. C). The township engineer who issued the permit visited the Carey property twice, both before and after the work began. (ECF 5, Ex. B, p.62-63).
On July 2, 2012, Ms. Parker filed a Petition for Injunctive Relief in the Montgomery Court of Common Pleas, requesting a temporary restraining order, a preliminary injunction, and a permanent injunction. Parker alleged the addition of topsoil on Defendants' property would increase the storm water runoff into her adjacent property. She brought claims under the Clean Water Act ("CWA"), 33 U.S.C. 1251, the National Historic Preservation Act ("Preservation Act"), 16 U.S.C. § 470, and state law (trespass). With respect to the CWA, Parker argued Defendants were required to obtain a National Pollution Discharge Elimination System ("NPDES") permit from the EPA before proceeding with their construction, which they did not do. With respect to the Preservation Act, she contended her home is over 200 years old and is therefore entitled to protection under Section 106 of the Act. That provision obligates federal agencies to assess the effects that federal "undertakings" will have on historic properties through screenings, 16 U.S.C. § 470(f), but no screening occurred here. As to trespass, Parker contended the Careys were responsible for conducting "excavation and filling" and for placing "a silt fence and heavy equipment" on her property. (ECF 5, Ex. A) (Petition for Injunctive Relief in the Court of Common Pleas of Montgomery County).
The court denied Parker's request for a TRO. (ECF 5, Ex. E). It held a hearing on her request for a preliminary injunction and on July 16, 2012, denied that request as well. (ECF 5, Ex. F). Defendants resumed the fill and grading work and in short time, it was completed. Ambrus Company constructed a berm to divert potential storm water runoff from Defendants' property into Plaintiff's property.
On July 26, 2012, Defendants filed a removal petition in this Court under 28 U.S.C. 1441 (ECF 1). Defendants asserted this Court had federal question jurisdiction over the Preservation Act and Clean Water Act claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over the trespass claim pursuant to 28 U.S.C. § 1367. On August 1, Defendants filed an Answer with Affirmative Defenses in response to Plaintiff's July 2, 2012 Petition in the Court of Common Pleas (ECF 3). Defendants moved for summary judgment on September 25, 2012 (ECF 5). Parker filed a Motion for Change of Venue and Dismissal of Summary Judgment on November 29, 2012 (ECF 10), and Defendants filed a Reply on December 6, 2012 (ECF 11). The Court held oral argument on all motions on December 11, 2012.
A district court should grant a motion for summary judgment if the movant can show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id. Under Rule 56, the Court must view the facts and all reasonable inferences in the light most favorable to the non-moving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
Section 402 of the Clean Water Act directs the EPA to issue "permits for discharge of pollutants" into the navigable waters of the United States. 33 U.S.C. § 1342(a). The permits issued under Section 402 are termed National Pollutant Discharge Elimination System ("NPDES") permits, and they must meet a host of requirements set forth by the CWA. Id.
Both federal and Pennsylvania law require that individuals contemplating construction projects involving "an earth disturbance activity that involves equal to or greater than 1 acre" obtain an NPDES permit. See40 C.F.R. § 122.26(c)(1) ("Dischargers of storm water associated . . . with small construction activity are required to apply for an individual permit . . ."); id.§ 122.26(b)(15)(i) (defining a "[s]torm water discharge associated with small construction activity" as "the discharge of storm water from [c]onstruction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one acre"); 25 Pa. Code § 102.2(a) ("[A] person proposing an earth disturbance activity that involves equal to or greater than 1 acre (0.4 hectare) of earth disturbance . . . shall obtain an individual NPDES Permit . . ...