Preview
FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017
FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246
NYSCEF DOC. NO. 4 'I
1 RECEIVED NYSCEF: 12/15/2017
I
SUPREME COURT
STATE OF NEW YORK COUNTY OF MONROE
SUPPLEMENTAL
WEBSTER GOLF CLUB, INC. and SUMMONS
B & C GOLF, INC.,
Index No. 15/12988
Plaintiffs,
vs.
LeChase Construction Serm
MONROE COUNTY WATER AUTHORITY,
O'
CHRISTA CONSTRUCTION, LLC, O'BRIEN &
GERE ENGINEERS, INC., LECHASE
CONSTRUCTION SERVICES, LLC, VILLAGER M 1 8 317
CONSTRUCTION, INC., and FISHER ASSOCIATES,
P.E., L.S., L.A., D.P.C., Legal Department
Defendants.
To: Christa Construction, LLC
119 Victor Heights Parkway
Victor, New York 14564
r
O'
O'Brien & Gere Engineers,
D Inc.
I r
400 Andrews Street I
1
r.
r
Harro East Building, Suite 710 7
l"
Rochester, New York 14604 f; i
LeChase Construction Services, LLC
205 Indigo Creek Drive
Rochester, NY 14626
Villager Construction, Inc.
425 Old Macedon Center Road
Fairport, New York 14450
Fisher Associates, P.E., L.S., L.A., D.P.C.
135 Calkins Road, Suite A
Rochester, New York 14623
YOU ARE HEREBY SUMMONED to serve an Answer to the attached Amended
Plaintiffs'
Complaint on attorneys within 20 days after the service of this Supplemental Summons
and Amended Complaint, exclusive of the day of service (or within 30 days after the service is
complete if this Summons is not personally delivered to you within the State of New
New York); and
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in case of your failure to appear, judgment will be taken against you by default for the relief
demanded in the Amended Complaint without further notice to you.
Monroe County is designated as the venue of this action based upon the principal office or
residence of the Plaintiffs in Monroe County, and the location in Monroe County of the real
property that is the subject of this action, located at 440 Salt Road, Webster, New York 14580,
which is owned and operated by Plaintiffs B&C Golf, Inc. and Webster Golf Club, Inc.,
respectively, and also serves as their principal office. Defendant Monroe County Water Authority
maintains offices at 475 Norris Drive, Rochester, New York 14610-0999. Defendant Christa
Construction, LLC maintains offices at 119 Victor Heights Parkway, Victor, New York 14564.
O'
Defendant O'Brien & Gere Engineers, Inc. maintains offices at 400 Andrews Street, Harro East
Building, Suite 710, Rochester, New York 14604. Defendant LeChase Construction Services,
LLC maintains offices at 205 Indigo Creek Drive, Rochester, NY 14626. Defendant Villager
Construction, Inc. maintains offices at 425 Old Macedon Center Road, Fairport, New York 14450.
Defendant Fisher Associates, P.E., L.S., L.A., D.P.C. maintains offices at 135 Calkins Road, Suite
A, Rochester, New York 14623.
Dated: Rochester, New York
August 1, 2017 K A SHAW LLP
Attorneys for Plaintiffs
Alan J. Knauf, Esq.,
Amy K. Kendall, Esq., of Counsel
2 State Street,Suite 1400
Rochester, New York 14614
Tel.: (585) 546-8430
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NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017
SUPREME COURT
STATE OF NEW YORK COUNTY OF MONROE
WEBSTER GOLF CLUB, INC. and AMENDED COMPLAINT
B & C GOLF, INC.,
Index No. 15/12988
Plaintiffs,
vs.
MONROE COUNTY WATER AUTHORITY,
O'
CHRISTA CONSTRUCTION, LLC, O'BRIEN &
GERE ENGINEERS, INC., LECHASE
CONSTRUCTION SERVICES, LLC, VILLAGER
CONSTRUCTION, INC., and FISHER ASSOCIATES,
P.E., L.S., L.A., D.P.C.,
Defendants.
Club"
Plaintiffs Webster Golf Club, Inc. and B & C Golf, Inc. (collectively "Golf or
"Plaintiffs"
"Plaintiffs"), by their attorneys Knauf Shaw LLP, for their Amended Complaint allege as follows:
INTRODUCTION
1. In this action, Plaintiffs seek a declaratory judgment and injunctive relief requiring
(" Tributary"
Defendants to restore the flow of water to the western tributary ("Western Tributary") to the
(" Stream"
unnamed tributary ("Stream") of Four Mile Creek that originates on the property of defendant
Monroe County Water Authority ("MCWA") on the west side of Basket Road in Webster, New
Property" Plaintiffs'
York 14580 ("MCWA Property"), and feeds ponds on properties at 350 and 440 Salt
Road in the Town of Webster, New York, and to remediate contamination from stormwater caused
Defendants'
by improper and negligent design, oversight and/or construction practices in
(" Project"
connection with the East Side Water Supply Project ("Project").
2. Plaintiffs seek property damages under common law theories and under the United
States and New York State Constitutions for taking and deprivation of property without due
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process of law or just compensation and/or denial of equal protection under color of state and local
law, actionable as inverse condemnation and/or pursuant to 42 U.S.C. §1983.
3. Plaintiff B & C Golf, Inc. ("B & C") also assert claims for damages resulting from
breach of contractual obligations under the terms of an easement to MCWA.
PARTIES
4. Plaintiff Webster Golf Club, Inc. is a New York corporation with a place of
business at 440 Salt Road in the Town of Webster, County of Monroe and State of New York.
5. Plaintiff Webster Golf Club, Inc. owns and operates the Webster Golf Club.
6. Plaintiff B & C Golf, Inc. is a New York corporation with a place of business at
440 Salt Road in the Town of Webster, County of Monroe and State of New York.
7. Plaintiff B & C Golf, Inc. owns the real property comprising the Webster Golf
("
Course ("Golf Course"), including properties ("Properties") with addresses 350, 415 and 440 Salt
Road in the Town of Webster, New York, with the following tax map numbers:
• 050.04-1-69.111
• 050.04-1-70.11
• 065.02-1-33
• 066.01-1-1
• 050.04-1-72.11
• 050.04-1-71. .
8. Defendant Monroe County Water Authority is a public benefit corporation created
and authorized by Article 5, Title 5 of the New York Public Authorities Law and has a principal
place of business at 475 Norris Drive, Rochester, New York 14610-0999.
9. MCWA owns the MCWA Property.
10. Upon information and belief, Defendant Christa Construction, LLC ("Christa") is
a New York limited liability company with an office address of 119 Victor Heights Parkway,
Victor, NY 14564.
2
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11. Upon information and belief, Christa contracted with MCWA or its agents to
provide for and did provide for construction management, quality control and inspection for the
Project.
O'
12. Upon information and belief, Defendant O'Brien & Gere Engineers, Inc. ("OBG")
is a New York corporation with offices at 333 West Washington Street, Syracuse, New York
13202.
13. Upon information and belief, OBG contracted with MCWA or its agents to provide
and did provide design and engineering services for the Project, including but not limited to the
preparation of the Stormwater Pollution Prevention Plan ("SWPPP").
14. Upon information and belief, Defendant LeChase Construction Services, LLC
("LeChase") is a New York limited liability corporation with offices at 205 Indigo Creek Drive,
Rochester, New York 14626.
15. Upon information and belief, LeChase contracted with MCWA or its agents to
perform and did perform construction management and/or construction for the Project.
(" Villager"
16. Upon information and belief, Defendant Villager Construction, Inc. ("Villager") is
a New York corporation with offices at 4250 Old Macedon Center Road, Fairport, New York,
14450.
17. Upon information and belief, Villager contracted with MCWA or its agents to
Plaintiffs'
perform and did perform construction services for the Project, including construction on
property.
18. Upon information and belief, Defendant Fisher Associates, P.E., L.S., L.A., D.P.C.
(" Fisher"
("Fisher") is a New York domestic professional corporation with offices at 135 Calkins Road, Ste
A, Rochester, New York 14623.
3
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19. Upon information and belief, Fisher contracted with MCWA or its agents to provide
and did provide site design, engineering and/or construction services for the Project, including
wetlands assessments and the design of storm water management facilities.
PLAINTIFFS'
PROPERTY
20. The Golf Course is made up of two, 18-hole courses.
(" Course"
21. The course on the east side of Salt Road ("East Course") opened in 1958 and the
(" Course"
course on the west side of Salt Road ("West Course") opened in 1972.
22. The Stream enters the Golf Course on the Property identified by tax map no.
050.04-1-70.1 1.
(" Ponds"
23. The East Course has two ponds ("Ponds") fed by theStream. One pond is located
on the Property identified by tax map no. 050.04-1-70.11 and previously held approximately
(" 050.04-1-
270,000 gallons ("Pond 1"), and one straddles both tax map nos. 050.04-1-70.11 and
("
69.111 and previously held approximately 3,300,000 gallons ("Pond 2").
24. The Ponds are connected to an underground irrigation system used to irrigate the
East Course.
25. Prior to August 2014, the Golf Club was able to pump about 185,000 gallons of
water per day out of the Ponds to irrigate the East Course.
26. B & C has riparian rights to the section of the Stream on its Properties, including
rights to the natural flow of water in the Stream and ponding rights.
27. B & C owns the bed of the Stream and the Ponds on its Properties.
THE STREAM
28. The Stream is fed by two tributaries, which will be referred to as "Western
Tributary" Tributary."
and "Eastern
4
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29. The Western Tributary originates on the MCWA Property.
30. Upon information and belief, the Eastern and Western Tributaries have separate
watersheds.
31. Upon information and belief, the Western Tributary was formerly fed by wetlands
on MCWA Property, rainwater, groundwater and/or underground springs.
32. At least four large ponds are located on and fed by theStream:
(" Pond"
a. Pond on property owned by James and Sandra Baldwin ("Baldwin Pond") located
at 1687 Schlegel Road in the Town of Webster, which previously held
approximately 450,000 gallons of water.
(" Pond"
b. Pond at the Town of Webster's Kent Park ("Arboretum Pond"); and
c. The Ponds on the East Course.
33. Upon information and belief, approximately 650,000 gallons of water per day
typically flowed through the Stream into the Baldwin Pond prior to 2010.
34. TheStream stopped flowing on August 29, 2014.
35. Since that time, the flow of water in the Stream to the Ponds has reduced
significantly in terms of rapidity, magnitude and duration.
THE EAST SIDE WATER SUPPLY PROJECT
36. Upon information and belief, MCWA commenced construction of the Project some
time in 2010.
37. Among other things, the East Side Water Supply Project involved the construction
of a water treatment facility on MCWA Property.
38. The East Side Water Supply Project also involved the construction of a water intake
(" Main"
and distribution system ("Water Main").
5
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39. The Project resulted in the increase of impervious area in the Western Tributary's
watershed.
40. Upon information and belief, the increase in impervious area in the watershed
resulted in a reduction in the amount of rainwater that could soak into the ground and feed the
Western Tributary.
41. To construct the Project, Defendants filled in or otherwise destroyed several federal
(" Wetlands"
jurisdictional wetlands ("Wetlands") amounting to about 2.81 acres.
42. Upon information and belief, the Wetlands were one of the sources of water that
fed the Western Tributary.
43. Defendants designed and/or constructed artificial wetlands on MCWA Property.
44. Upon information and belief, the artificial wetlands are not providing the same
hydrological benefits to the watershed and the Western Tributary as the Wetlands did.
45. Defendants also designed and constructed large retaining areas, including two
lagoons and several stormwater retention facilities.
46. These retaining areas collect rainfall and stormwater on MCWA Property.
47. The rainfall collected by the retaining areas is partially or wholly unavailable to the
watershed.
48. Upon information and belief, rainwater collected in the lagoons is discharged to
Lake Ontario.
49. One or more of the stormwater retention basins was built in a Wetland.
Defendants'
50. Upon information and belief, design and/or construction of the Project
on the Western Tributary, the increase in impervious area in the watershed, the redirection and
capture of rainwater and groundwater, and the destruction of Wetlands, resulted in the significant
6
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alteration of the movement of water in the area of the Project, including but not limited to the
reduction and/or cessation of water flow in the Western Tributary, all of which caused or
Plaintiffs'
contributed to damages.
Defendants'
5 l. Upon information and belief, design and construction of the Project
and the failure of Defendants to follow appropriate construction and stormwater management
ol'
practices resulted in the discharge of contaminated water into the Western Tributary which then
Plaintiffs'
washed down the Stream and onto the Properties, which caused or contributed to
damages.
52. Upon information and belief, the contaminated water contained, among other
(" Contamination"
things, sediment ("Contamination"), which was deposited along the Stream and in the four ponds
and onto the Properties.
53. As a result of the deposition of the Contamination, the four ponds lost capacity to
hold water, and reduced the amount of water available to Plaintiffs from theStream.
54. Pond 1 has lost approximately one-third to one-half of its capacity to hold water,
while Pond 2 lost approximately one-third of its capacity.
Defendants'
55. design and construction of the Project, and the resulting
Contamination caused a noticeable reduction in the flow and capacity of theStream, including
changes to the rapidity, magnitude and duration of flow, as well as changes to seasonal high and
low flows.
THE EASEMENT
56. In 2010, B & C negotiated an Easement with MCWA to construct a water main and
return over the southeastern portion of on the Property identified by tax map. no. 66.01-1-1. A
copy of the Easement is attached as Exhibit A.
7
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57. Upon information and belief, construction of the Water Main on B & C's Property
occurred in 201 1.
58. The Easement at paragraph 3 requires MCWA to comply with the New York State
Department of Environmental Conservation State Pollutant Discharge Elimination System
General Permit for Stormwater Discharges from Construction Activities, Permit No. GP-0 08-001
(" Permit"
("General Permit").
59. The General Permit has been updated since the Easement was negotiated and is
now identified as GP-0-15-002.
60. The General Permit is attached as Exhibit B.
61. The General Permit required MCWA to prepare and implement a Stormwater
Pollution Prevention Plan ("SWPPP").
62. A SWPPP must include erosion and sediment control measures during
construction.
63. Upon information and belief, the SWPPP was designed and prepared by OBG.
64. Upon information and belief, the SWPPP was not properly designed or engineered
to prevent erosion or to prevent sediment from entering the Stream and ultimately the Ponds.
65. MCWA and its contractors, including but not limited to Christa, LeChase and
Villager, were required to comply with the terms of the General Permit, including the SWPPP.
66. Upon information and belief, Defendants failed to comply with the terms of the
General Permit, including the SWPPP, by allowing sediment to flow into the Stream and onto
Plaintiffs'
Property.
8
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NYSCEF DOC. NO. 4
Preview
FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 'I 1 RECEIVED NYSCEF: 12/15/2017 I SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE SUPPLEMENTAL WEBSTER GOLF CLUB, INC. and SUMMONS B & C GOLF, INC., Index No. 15/12988 Plaintiffs, vs. LeChase Construction Serm MONROE COUNTY WATER AUTHORITY, O' CHRISTA CONSTRUCTION, LLC, O'BRIEN & GERE ENGINEERS, INC., LECHASE CONSTRUCTION SERVICES, LLC, VILLAGER M 1 8 317 CONSTRUCTION, INC., and FISHER ASSOCIATES, P.E., L.S., L.A., D.P.C., Legal Department Defendants. To: Christa Construction, LLC 119 Victor Heights Parkway Victor, New York 14564 r O' O'Brien & Gere Engineers, D Inc. I r 400 Andrews Street I 1 r. r Harro East Building, Suite 710 7 l" Rochester, New York 14604 f; i LeChase Construction Services, LLC 205 Indigo Creek Drive Rochester, NY 14626 Villager Construction, Inc. 425 Old Macedon Center Road Fairport, New York 14450 Fisher Associates, P.E., L.S., L.A., D.P.C. 135 Calkins Road, Suite A Rochester, New York 14623 YOU ARE HEREBY SUMMONED to serve an Answer to the attached Amended Plaintiffs' Complaint on attorneys within 20 days after the service of this Supplemental Summons and Amended Complaint, exclusive of the day of service (or within 30 days after the service is complete if this Summons is not personally delivered to you within the State of New New York); and FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 in case of your failure to appear, judgment will be taken against you by default for the relief demanded in the Amended Complaint without further notice to you. Monroe County is designated as the venue of this action based upon the principal office or residence of the Plaintiffs in Monroe County, and the location in Monroe County of the real property that is the subject of this action, located at 440 Salt Road, Webster, New York 14580, which is owned and operated by Plaintiffs B&C Golf, Inc. and Webster Golf Club, Inc., respectively, and also serves as their principal office. Defendant Monroe County Water Authority maintains offices at 475 Norris Drive, Rochester, New York 14610-0999. Defendant Christa Construction, LLC maintains offices at 119 Victor Heights Parkway, Victor, New York 14564. O' Defendant O'Brien & Gere Engineers, Inc. maintains offices at 400 Andrews Street, Harro East Building, Suite 710, Rochester, New York 14604. Defendant LeChase Construction Services, LLC maintains offices at 205 Indigo Creek Drive, Rochester, NY 14626. Defendant Villager Construction, Inc. maintains offices at 425 Old Macedon Center Road, Fairport, New York 14450. Defendant Fisher Associates, P.E., L.S., L.A., D.P.C. maintains offices at 135 Calkins Road, Suite A, Rochester, New York 14623. Dated: Rochester, New York August 1, 2017 K A SHAW LLP Attorneys for Plaintiffs Alan J. Knauf, Esq., Amy K. Kendall, Esq., of Counsel 2 State Street,Suite 1400 Rochester, New York 14614 Tel.: (585) 546-8430 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 SUPREME COURT STATE OF NEW YORK COUNTY OF MONROE WEBSTER GOLF CLUB, INC. and AMENDED COMPLAINT B & C GOLF, INC., Index No. 15/12988 Plaintiffs, vs. MONROE COUNTY WATER AUTHORITY, O' CHRISTA CONSTRUCTION, LLC, O'BRIEN & GERE ENGINEERS, INC., LECHASE CONSTRUCTION SERVICES, LLC, VILLAGER CONSTRUCTION, INC., and FISHER ASSOCIATES, P.E., L.S., L.A., D.P.C., Defendants. Club" Plaintiffs Webster Golf Club, Inc. and B & C Golf, Inc. (collectively "Golf or "Plaintiffs" "Plaintiffs"), by their attorneys Knauf Shaw LLP, for their Amended Complaint allege as follows: INTRODUCTION 1. In this action, Plaintiffs seek a declaratory judgment and injunctive relief requiring (" Tributary" Defendants to restore the flow of water to the western tributary ("Western Tributary") to the (" Stream" unnamed tributary ("Stream") of Four Mile Creek that originates on the property of defendant Monroe County Water Authority ("MCWA") on the west side of Basket Road in Webster, New Property" Plaintiffs' York 14580 ("MCWA Property"), and feeds ponds on properties at 350 and 440 Salt Road in the Town of Webster, New York, and to remediate contamination from stormwater caused Defendants' by improper and negligent design, oversight and/or construction practices in (" Project" connection with the East Side Water Supply Project ("Project"). 2. Plaintiffs seek property damages under common law theories and under the United States and New York State Constitutions for taking and deprivation of property without due FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 process of law or just compensation and/or denial of equal protection under color of state and local law, actionable as inverse condemnation and/or pursuant to 42 U.S.C. §1983. 3. Plaintiff B & C Golf, Inc. ("B & C") also assert claims for damages resulting from breach of contractual obligations under the terms of an easement to MCWA. PARTIES 4. Plaintiff Webster Golf Club, Inc. is a New York corporation with a place of business at 440 Salt Road in the Town of Webster, County of Monroe and State of New York. 5. Plaintiff Webster Golf Club, Inc. owns and operates the Webster Golf Club. 6. Plaintiff B & C Golf, Inc. is a New York corporation with a place of business at 440 Salt Road in the Town of Webster, County of Monroe and State of New York. 7. Plaintiff B & C Golf, Inc. owns the real property comprising the Webster Golf (" Course ("Golf Course"), including properties ("Properties") with addresses 350, 415 and 440 Salt Road in the Town of Webster, New York, with the following tax map numbers: • 050.04-1-69.111 • 050.04-1-70.11 • 065.02-1-33 • 066.01-1-1 • 050.04-1-72.11 • 050.04-1-71. . 8. Defendant Monroe County Water Authority is a public benefit corporation created and authorized by Article 5, Title 5 of the New York Public Authorities Law and has a principal place of business at 475 Norris Drive, Rochester, New York 14610-0999. 9. MCWA owns the MCWA Property. 10. Upon information and belief, Defendant Christa Construction, LLC ("Christa") is a New York limited liability company with an office address of 119 Victor Heights Parkway, Victor, NY 14564. 2 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 11. Upon information and belief, Christa contracted with MCWA or its agents to provide for and did provide for construction management, quality control and inspection for the Project. O' 12. Upon information and belief, Defendant O'Brien & Gere Engineers, Inc. ("OBG") is a New York corporation with offices at 333 West Washington Street, Syracuse, New York 13202. 13. Upon information and belief, OBG contracted with MCWA or its agents to provide and did provide design and engineering services for the Project, including but not limited to the preparation of the Stormwater Pollution Prevention Plan ("SWPPP"). 14. Upon information and belief, Defendant LeChase Construction Services, LLC ("LeChase") is a New York limited liability corporation with offices at 205 Indigo Creek Drive, Rochester, New York 14626. 15. Upon information and belief, LeChase contracted with MCWA or its agents to perform and did perform construction management and/or construction for the Project. (" Villager" 16. Upon information and belief, Defendant Villager Construction, Inc. ("Villager") is a New York corporation with offices at 4250 Old Macedon Center Road, Fairport, New York, 14450. 17. Upon information and belief, Villager contracted with MCWA or its agents to Plaintiffs' perform and did perform construction services for the Project, including construction on property. 18. Upon information and belief, Defendant Fisher Associates, P.E., L.S., L.A., D.P.C. (" Fisher" ("Fisher") is a New York domestic professional corporation with offices at 135 Calkins Road, Ste A, Rochester, New York 14623. 3 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 19. Upon information and belief, Fisher contracted with MCWA or its agents to provide and did provide site design, engineering and/or construction services for the Project, including wetlands assessments and the design of storm water management facilities. PLAINTIFFS' PROPERTY 20. The Golf Course is made up of two, 18-hole courses. (" Course" 21. The course on the east side of Salt Road ("East Course") opened in 1958 and the (" Course" course on the west side of Salt Road ("West Course") opened in 1972. 22. The Stream enters the Golf Course on the Property identified by tax map no. 050.04-1-70.1 1. (" Ponds" 23. The East Course has two ponds ("Ponds") fed by theStream. One pond is located on the Property identified by tax map no. 050.04-1-70.11 and previously held approximately (" 050.04-1- 270,000 gallons ("Pond 1"), and one straddles both tax map nos. 050.04-1-70.11 and (" 69.111 and previously held approximately 3,300,000 gallons ("Pond 2"). 24. The Ponds are connected to an underground irrigation system used to irrigate the East Course. 25. Prior to August 2014, the Golf Club was able to pump about 185,000 gallons of water per day out of the Ponds to irrigate the East Course. 26. B & C has riparian rights to the section of the Stream on its Properties, including rights to the natural flow of water in the Stream and ponding rights. 27. B & C owns the bed of the Stream and the Ponds on its Properties. THE STREAM 28. The Stream is fed by two tributaries, which will be referred to as "Western Tributary" Tributary." and "Eastern 4 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 29. The Western Tributary originates on the MCWA Property. 30. Upon information and belief, the Eastern and Western Tributaries have separate watersheds. 31. Upon information and belief, the Western Tributary was formerly fed by wetlands on MCWA Property, rainwater, groundwater and/or underground springs. 32. At least four large ponds are located on and fed by theStream: (" Pond" a. Pond on property owned by James and Sandra Baldwin ("Baldwin Pond") located at 1687 Schlegel Road in the Town of Webster, which previously held approximately 450,000 gallons of water. (" Pond" b. Pond at the Town of Webster's Kent Park ("Arboretum Pond"); and c. The Ponds on the East Course. 33. Upon information and belief, approximately 650,000 gallons of water per day typically flowed through the Stream into the Baldwin Pond prior to 2010. 34. TheStream stopped flowing on August 29, 2014. 35. Since that time, the flow of water in the Stream to the Ponds has reduced significantly in terms of rapidity, magnitude and duration. THE EAST SIDE WATER SUPPLY PROJECT 36. Upon information and belief, MCWA commenced construction of the Project some time in 2010. 37. Among other things, the East Side Water Supply Project involved the construction of a water treatment facility on MCWA Property. 38. The East Side Water Supply Project also involved the construction of a water intake (" Main" and distribution system ("Water Main"). 5 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 39. The Project resulted in the increase of impervious area in the Western Tributary's watershed. 40. Upon information and belief, the increase in impervious area in the watershed resulted in a reduction in the amount of rainwater that could soak into the ground and feed the Western Tributary. 41. To construct the Project, Defendants filled in or otherwise destroyed several federal (" Wetlands" jurisdictional wetlands ("Wetlands") amounting to about 2.81 acres. 42. Upon information and belief, the Wetlands were one of the sources of water that fed the Western Tributary. 43. Defendants designed and/or constructed artificial wetlands on MCWA Property. 44. Upon information and belief, the artificial wetlands are not providing the same hydrological benefits to the watershed and the Western Tributary as the Wetlands did. 45. Defendants also designed and constructed large retaining areas, including two lagoons and several stormwater retention facilities. 46. These retaining areas collect rainfall and stormwater on MCWA Property. 47. The rainfall collected by the retaining areas is partially or wholly unavailable to the watershed. 48. Upon information and belief, rainwater collected in the lagoons is discharged to Lake Ontario. 49. One or more of the stormwater retention basins was built in a Wetland. Defendants' 50. Upon information and belief, design and/or construction of the Project on the Western Tributary, the increase in impervious area in the watershed, the redirection and capture of rainwater and groundwater, and the destruction of Wetlands, resulted in the significant 6 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 alteration of the movement of water in the area of the Project, including but not limited to the reduction and/or cessation of water flow in the Western Tributary, all of which caused or Plaintiffs' contributed to damages. Defendants' 5 l. Upon information and belief, design and construction of the Project and the failure of Defendants to follow appropriate construction and stormwater management ol' practices resulted in the discharge of contaminated water into the Western Tributary which then Plaintiffs' washed down the Stream and onto the Properties, which caused or contributed to damages. 52. Upon information and belief, the contaminated water contained, among other (" Contamination" things, sediment ("Contamination"), which was deposited along the Stream and in the four ponds and onto the Properties. 53. As a result of the deposition of the Contamination, the four ponds lost capacity to hold water, and reduced the amount of water available to Plaintiffs from theStream. 54. Pond 1 has lost approximately one-third to one-half of its capacity to hold water, while Pond 2 lost approximately one-third of its capacity. Defendants' 55. design and construction of the Project, and the resulting Contamination caused a noticeable reduction in the flow and capacity of theStream, including changes to the rapidity, magnitude and duration of flow, as well as changes to seasonal high and low flows. THE EASEMENT 56. In 2010, B & C negotiated an Easement with MCWA to construct a water main and return over the southeastern portion of on the Property identified by tax map. no. 66.01-1-1. A copy of the Easement is attached as Exhibit A. 7 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 12/15/2017 57. Upon information and belief, construction of the Water Main on B & C's Property occurred in 201 1. 58. The Easement at paragraph 3 requires MCWA to comply with the New York State Department of Environmental Conservation State Pollutant Discharge Elimination System General Permit for Stormwater Discharges from Construction Activities, Permit No. GP-0 08-001 (" Permit" ("General Permit"). 59. The General Permit has been updated since the Easement was negotiated and is now identified as GP-0-15-002. 60. The General Permit is attached as Exhibit B. 61. The General Permit required MCWA to prepare and implement a Stormwater Pollution Prevention Plan ("SWPPP"). 62. A SWPPP must include erosion and sediment control measures during construction. 63. Upon information and belief, the SWPPP was designed and prepared by OBG. 64. Upon information and belief, the SWPPP was not properly designed or engineered to prevent erosion or to prevent sediment from entering the Stream and ultimately the Ponds. 65. MCWA and its contractors, including but not limited to Christa, LeChase and Villager, were required to comply with the terms of the General Permit, including the SWPPP. 66. Upon information and belief, Defendants failed to comply with the terms of the General Permit, including the SWPPP, by allowing sediment to flow into the Stream and onto Plaintiffs' Property. 8 FILED: MONROE COUNTY CLERK 12/15/2017 11:07 AM INDEX NO. E2017003246 NYSCEF DOC. NO. 4