District Judge Lawrence E. Kahn


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The Onderdonk Estates development lies northwest of plaintiff’s home in Rensselaer. Since March 1993 Silverstein has owned the Onderdonk Estates property on which a stormwater detention basin is located. Plaintiff sued defendant town for violating the Clean Water Act (CWA), asserting that the town’s improper maintenance has allowed the stormwater detention basin and its associated equipment to discharge pollutants, including silt, mud, dirt, and runoff form streets into “Sheila’s Pond”—a pond on plaintiff’s property—thus causing flooding on both the pond and other parts of plaintiff’s property. On competing motions, the court granted the town summary judgment, concluding—after an extensive analysis of plaintiff’s evidence and the water-pump theory of jurisdiction—that Sheila’s Pond was not a “water of the United States” and is thus not covered by the CWA. Nor did plaintiff’s amended complaint fairly assert facts supporting a cause of action premised on the town’s violation of its permit to operate a municipal separate storm sewer system (MS4). Nothing in plaintiff’s amended complaint gave the town any idea that plaintiff intended to assert a claim independent of the discharge of pollutants into Sheila’s Pond.