Full opinion text
OPINION AND ORDER PAUL R. CHERRY, United States Magistrate Judge. This matter is before the Court on (1) Defendant Hawk Development Corporation’s Motion for Summary Judgment [DE 90], filed on March 1, 2011; (2) a Motion of Defendants Jack Kovich and Innovative Enterprises, Ltd. for Summary Judgment on Plaintiffs’ Complaint pursuant to Fed. R.Civ.P. 56(a) [DE 93], filed on March 4, 2011; (3) Plaintiffs’ Motion for Partial Summary Judgment Against Defendants Jack Kovich, Innovative Enterprises, Ltd., Robert Stiglich, Stillwater Properties, LLC, and Hawk Development Corp. [DE 100], filed by Plaintiffs Stillwater of Crown Point Homeowner’s Association, Inc., individually and on behalf of its members; Roger P. Mahoney; Kent Kolodziej; Kevin J. McKenna; and Margaret McKenna on March 4, 2011; (4) Plaintiffs’ Request for Oral Argument [DE 103], filed on March 4, 2011; (5) Defendants Innovative Enterprises, Ltd. and Jack Kovieh’s Request for Oral Argument [DE 125], filed on April 19, 2011; (6) a Motion to Strike Portions of the Affidavits of Eric P. Ellingson and Martin S. Mann [DE 135], filed by Plaintiffs on April 28, 2011; and (7) Defendant Hawk Development Corp.’s Motion to Strike Paragraph 5(d) and 6 of the Affidavit of Jonathan Jones [DE 139], filed on May 17, 2011. All the motions are fully briefed and ripe for ruling. This is the story of two subdivisions and three road crossings in Crown Point, Indiana. The Stillwater of Crown Point Subdivision (“Stillwater Subdivision”) was developed by Stillwater Properties, LLC, Innovative Enterprises, Ltd., Robert Stiglich, and Jack Kovich. The Pine Hill Subdivision (“Pine Hill”) was developed by Hawk Development Corp. Located near the border of the Stillwater Subdivision and Pine Hill is Smith Ditch. Three road crossings — Greenview Place, Stillwater Parkway, and Crooked Creek Trail — span Smith Ditch. The crossings at Greenview Place and Stillwater Parkway are contained within the Stillwater Subdivision. The crossing at Crooked Creek Trail connects the Stillwater Subdivision and Pine Hill, with Hawk constructing a “stub section” of the crossing up to the property line, and Stillwater Properties, LLC constructing the remainder of the crossing, including that portion that spans the channel of Smith Ditch. Each crossing was constructed by placing fill material in Smith Ditch and the adjacent wetlands along with two thirty-six inch culverts to convey the flow of water in Smith Ditch under the crossings. In September 2008, flooding occurred in the subdivisions as water backed up behind the crossings, adversely affecting homes in the subdivisions, including those of Kent Kolodziej in Pine Hill and Roger P. Mahoney and Kevin J. and Margaret McKenna in Stillwater Subdivision. PROCEDURAL BACKGROUND On June 4, 2009, Plaintiffs filed a Complaint against Jack Kovich, Innovative Enterprises, Ltd. (“Innovative Enterprises”), Robert Stiglich, Stillwater Properties, LLC, Hawk Development Corp. (“Hawk”), and the City of Crown Point, Indiana (“City”), seeking injunctive relief and damages. Plaintiffs allege that, in 2008, the Stillwater Subdivision and at least one home in Pine Hill were affected by flooding and allege that the construction of the three crossings of the Smith Ditch created the flooding condition that caused the damages. In Count I, Plaintiffs bring a Clean Water Act (“CWA”) citizen suit pursuant to 33 U.S.C. § 1365(a), alleging that Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk’s discharges of fill material to construct the crossings of Smith Ditch at Greenview Place and Still-water Parkway violate the general and specific conditions set forth in the CWA § 401 water quality certification issued by the Indiana Department of Environmental Management (“IDEM”) and the CWA § 404 permit issued by the U.S. Army Corps of Engineers and, therefore, violate an effluent standard or limitation under the CWA. Count I further alleges that Kovich, Innovative Enterprises, Stiglich, and Stillwater Properties, LLC’s discharge of fill material to construct the crossing of Smith Ditch at Crooked Creek Trail without a CWA § 401 water quality certification and CWA § 404 permit violates an effluent standard or limitation under the CWA. Finally, Count I alleges that Hawk’s discharge of fill material to construct the stub portion of the crossing of Smith Ditch at Crooked Creek Trail within Pine Hill violates the conditions set forth in the CWA § 404 permit issued by the Corps and therefore violates an effluent standard or limitation under the CWA. In Count II, Plaintiffs allege a breach of the Wetlands Restriction and Covenants by Kovich, Innovative Enterprises, Stiglich, and Stillwater Properties, LLC by their development of undersized culverts at the three crossings. In Count III, Plaintiffs allege a breach of the implied warranty of habitability by Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk because these Defendants knew or should have known that there were latent defects in the Stillwater Subdivision and Pine Hill, including but not limited to, the inability of the culverts placed in the three crossings to prevent Smith Ditch, a natural watercourse, from flooding homes and common areas in the Stillwater Subdivision and Pine Hill during or following a heavy rain. Count IV alleges negligence per se against Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk for violating their duties under the Indiana Flood Control Act and the City of Crown Point Flood Control Ordinance to obtain a floodway construction permit pursuant to Indiana Code § 14-28-l-22(c) before developing the three crossings. In Count V, Plaintiffs’ negligence claim alleges that Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk breached the duty owed to Plaintiffs to exercise reasonable care in undertaking, approving, and upgrading the development of streets and drainage infrastructure in the Stillwater Subdivision and Pine Hill. Finally, in Count VI, Plaintiffs allege that the three crossings constitute public and private nuisances, and that Kovich, Innovative Enterprises, Stiglich, Stillwater Properties, LLC, and Hawk’s development and authorization of the three crossings are unlawful pursuant to the City of Crown Point Flood Control Ordinance and are an unreasonable use of the land. Hawk filed an Answer on August 6, 2009. Innovative Enterprises and Kovich filed an Answer on August 14, 2009. The City of Crown Point filed an Answer on September 1, 2009. Robert Stiglich filed an Answer on November 30, 2009. On October 9, 2009, a Clerk’s Entry of Default was entered against Stillwater Properties, LLC. On November 16, 2009, Defendant Stillwater Properties, LLC was severed as a party defendant for purposes of 28 U.S.C. § 636(c), and the case against Stillwater Properties, LLC only remains pending before Chief Judge Philip P. Simon. As the remainder of the parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case, this case was reassigned to the undersigned Magistrate Judge. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c). SUMMARY JUDGMENT STANDARD The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(e). Rule 56(c) further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “[Sjummary judgment is appropriate — in fact, is mandated — where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir.1994) (citations omitted). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325, 106 S.Ct. 2548. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325, 106 S.Ct. 2548; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir.1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir.1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has “produced sufficient evidence to support a conclusion that there are no genuine issues for trial,” then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc., 914 F.2d 107, 110-111 (7th Cir.1990) (citations omitted); see also Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1261 (7th Cir.1993). Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed.R.Civ.P. 56(e)(2); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir.1994). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials — including the facts considered undisputed — show that the movant is entitled to it ....” Fed.R.Civ.P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts,” but must “come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56(e)). In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir.2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir.1995). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505. ANALYSIS In their Motion for Partial Summary Judgment, Plaintiffs seek judgment against Kovich, Innovative Enterprises, Stiglich, and Hawk under the Clean Water Act; against Kovich, Innovative Enterprises, and Stiglich under the Declaration of Restrictions on Land Use and Restrictive Covenants of Stillwater Subdivision; and against Kovich, Innovative Enterprises, Stiglich, and Hawk under a theory of breach of the implied warranty of habitability. Plaintiffs are not seeking summary judgment against the developers on claims of negligence per se, negligence, or nuisance. Plaintiffs’ claims against the City of Crown Point are addressed in a separate Opinion and Order. Also before the Court are Hawk’s Motion for Summary Judgment and Kovich and Innovative Enterprises’ Motion for Summary Judgment, each of which seeks summary judgment on all of Plaintiffs’ claims. The Court first considers the cross motions of Hawk and Plaintiffs and then turns to the cross motions of Kovich/Innovative Enterprises and Plaintiffs. A. Hawk Development Before addressing the cross motions for summary judgment, the Court first addresses two evidentiary motions to strike in relation thereto, one filed by Plaintiffs and one by Hawk. 1. Motions to Strike Under the Federal Rules of Civil Procedure, an affidavit “used to support or oppose a motion for summary judgment must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify to the matters stated.” Fed.R.Civ.P. 56(c)(4). On summary judgment, the Court does not consider parts of an affidavit that fail to comply with the rule. See Cooper-Schut v. Visteon Auto. Sys., 361 F.3d 421, 429 (7th Cir.2004). a. Affidavits of Eric P. Ellingson and Martin S. Mann In their Motion to Strike, Plaintiffs ask the Court to strike paragraph 8 of the Affidavit of Eric P. Ellingson and paragraph 5 of the Affidavit of Martin S. Mann. Hawk designated both affidavits in support of its Motion for Summary Judgment. 1) Paragraph 8 of the Affidavit of Eric P. Ellingson In his Affidavit, Eric P. Ellingson, C.P.G., P.W.S., discusses the steps his company, Earth Source, Inc., took to address the permitting for the work being performed in relation to the wetlands within Pine Hill. In paragraph 7, Ellingson avers that a copy of the 401/404 applications that had been submitted to IDEM and the U.S. Army Corps of Engineers on September 5, 2001, was also “submitted to the Indiana Department of Natural Resources, Water Division, via certified mail, for review and determination of permit requirements administered by Division of Water, specifically construction within a floodway.” Hawk SJ Br., Exh. E. Then, in paragraph 8, Ellingson avers: “The Indiana Department of Natural Resources Division of Water determined that no permit was required.” Id. Plaintiffs argue that the statement in paragraph 8 purports to repeat the Indiana Department of Natural Resources’ (“IDNR”) determination regarding permit requirements and, therefore, is inadmissible hearsay. Hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fed. R.Evid. 801. Hawk argues that the statement is not being offered for the truth of the matter asserted (whether the statement was true or false) but rather to establish that the statement was made. Hawk reasons that the statement is offered for context and to show the effect on Ellingson’s state of mind, suggesting that “Mr. Ellingson heard from IDNR that no floodway construction permit was necessary; he made no further attempts to secure a permit that was not needed.” Hawk Resp. to Mot. to Strike, p. 2. Paragraph 8 is a conclusion necessarily based on hearsay. First, there is no statement either in Ellingson’s Affidavit or in Hawk’s briefs that Ellingson “made no further attempts to secure a permit” as the result of a statement from IDNR that no floodway construction permit was required. Rather, paragraph 8 of Ellingson’s Affidavit is offered in Hawk’s brief for the truth of the matter asserted, namely for the fact that IDNR reviewed the application and determined that no permit was required. In its brief in support of summary judgment, Hawk cites to Ellingson’s Affidavit for the statement: “The Application for 401/404 Permit submitted by Earth Source Inc. on behalf of Hawk Development was reviewed by the Indiana Department of Natural Resources to determine the need for a Floodway Construction Permit.” Hawk SJ Br., p. 8. Hawk relies on this fact to show that no floodway construction permit from the IDNR was necessary and, thus, that Hawk did not violate the Indiana Flood Control Act. Nor does the apparent verbal statement of the unknown individual from IDNR fall within the exception in Federal Rule of Evidence 803(8) for “public record and reports,” which provides, in relevant part, an exception to the hearsay rule for “[rjecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report .... ” Fed.R.Evid. 803(8). Hawk has not produced the “records, reports, statements, or data compilations” upon which Ellingson may have relied. Therefore, the Court grants the Motion to Strike as to paragraph 8 of Ellingson’s Affidavit and orders that paragraph 8 is stricken. 2) Paragraph 5 of the Affidavit of Martin S. Mann In paragraph 5 of his undated Affidavit, Martin S. Mann, P.E., states: “The Indiana Department of Natural Resources reviewed construction plans that included the portion of the Crooked Creek Trail constructed by - Hawk Development as a part of a Section 401/404 permit review and did not notify Hawk Development that a Construction in a Floodway Permit would be required for construction.” Hawk SJ Br., Exh. J, ¶5. Plaintiffs argue that this paragraph contains at least two hearsay statements — that someone told Mann that IDNR reviewed construction plans and that someone told Mann that IDNR did not notify Hawk that a floodway construction permit would be required. Plaintiffs argue that there are no grounds to apply a hearsay exclusion or exception and that no public record possibly reviewed by Mann has been offered to support either statement contained within paragraph 5. Hawk responds that, even if these statements are hearsay, experts are permitted to consider inadmissible evidence in formulating their opinions under Federal Rule of Evidence 703. “[W]hen an expert testifies, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted if those facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” United States v. Thornton, 642 F.3d 599, 607 (7th Cir.2011) (internal quotation marks omitted) (citing United States v. Moon, 512 F.3d 359, 361 (7th Cir.2008) (quoting Fed.R.Evid. 703)). However, the facts in paragraph 5 of Mann’s Affidavit are not being offered only to support his opinion but rather are used in Hawk’s brief for the truth of the matter asserted, namely that IDNR did not notify Hawk that it would need a permit for construction in a floodway: “No Floodway Construction Permit was required by the Indiana Department of Natural Resources.” Hawk SJ Br., p. 8. Notably, Hawk has not explained how these out-of-court statements by an unidentified person at IDNR were used by Mann to form his opinion. Accordingly, the Court grants the Motion to Strike as to paragraph 5 of Mann’s Affidavit and orders that paragraph 5 is stricken. b. Affidavit of Jonathan E. Jones In turn, Hawk seeks to strike paragraphs 5(d) and 6(b)-(f) of the Affidavit of Plaintiffs’ expert Jonathan E. Jones, P.E., D.WRE. Paragraph 4 of the Affidavit provides that Jones was retained by Plaintiffs to review and comment on the affidavits and associated reports filed on March 1, 2011, by Tammy St. Clair, M.S., P.E. and by Mann in this case. In paragraph 5, Jones then lists the tasks he undertook to perform the requested analysis, including in paragraph 5(d), “Phone conversation with a representative of IDNR concerning IDNR’s role in the review of section 401/404 permits.” PI. Resp. to Hawk SJ, Exh. 6, p. 2. Hawk argues that this statement is inadmissible hearsay. However, the statement in paragraph 5(d) relays only the fact that Jones had a conversation and the topic of the conversation, which is within his personal knowledge; paragraph 5(d) does not include any out of court statements by the IDNR representative. Therefore, the Motion to Strike is denied as to paragraph 5(d). As for Paragraph 6 of the Affidavit, Hawk argues that paragraphs 6(b)-6(f) should be stricken as untimely as the opinions were not previously offered by Jones and the expert report deadline in this ease was July 2, 2010. Specifically, Hawk argues that Jones’ original May 21, 2010 report did not contain Jones’ opinion in paragraph 6(b) regarding a comparison of the elevations, in paragraph 6(c) that the elevations prove that fill was placed within the floodway, in paragraph 6(d) that the construction by Hawk impedes the flow within the floodway from a 100 year rain event (the previous report referenced only “culverts” impeding the flow), in paragraph 6(e) that Hawk Development did not notify IDNR of the proximity of the proposed fill and Smith Ditch, and in paragraph 6(f) that IDNR should have been contacted for a floodway construction permit determination. Hawk argues that the opinions in these paragraphs were not previously disclosed in accordance with Federal Rule of Civil Procedure 26(a)(2)(B)(i), nor are they supplements under Federal Rule of Civil Procedure 26(a)(2)(D)(ii) served within thirty days of the report issued by Mann and served on Plaintiffs within the expert report deadline. Thus, Hawk requests that the opinions be stricken pursuant to Federal Rule of Civil Procedure 37(c)(1). Paragraphs 6(b)-(d) of Jones’ April 15, 2011 Affidavit are comprised of new opinions that specifically address the Pine Hill stub portion of the Crooked Creek Trail (as opposed to the Stillwater Subdivision portion), which was not discussed separately from the Crooked Creek Trail as a whole in Jones’ original report. Plaintiffs argue that these paragraphs of the Affidavit do nothing more than clarify his original opinions about Crooked Creek Trail generally, including the Crooked Creek Trail on both sides of the property line. Plaintiffs also contend that the theory of liability in the Affidavit — a violation of the Flood Control Act-is not new. The Court finds that Jones’ opinions in paragraphs 6(b)-(d) of the April 15, 2011 Affidavit are new and are not simply an extension of the opinions of his original May 21, 2010 report. Nowhere in his original report does Jones discuss or examine the separate impact of the Pine Hill stub portion of the Crooked Creek Trail by itself; he studies only the Crooked Creek Trail crossing as a whole. In contrast, the April 15, 2011 Affidavit describes specific measurements of the fill area for the Pine Hill stub portion of the Crooked Creek Trail, compares the pre- and post-development road elevation at the Pine Hill property line on the Crooked Creek Trail, and draws conclusions about the impact the Pine Hill stub portion of the crossing, on its own, has on the passage of the regulatory 100 year flood in Smith Ditch. Plaintiffs argue that, to the extent these opinions in Jones’ Affidavit are new, they are so only to rebut the new opinions offered by Mann and Ellingson in their Affidavits submitted by Hawk on March 1, 2011, in support of summary judgment. Having reviewed Mann’s original July 29, 2010 report and his March 1, 2011 Affidavit, Mann’s opinions in paragraph 4 of the latter regarding the specific impact of Pine Hill’s stub portion of the Crooked Creek Trail crossing were conclusively stated in his original report on pages 9, 11, 13, and 15. Therefore, the opinions in paragraphs 6(b)(d), which are being offered to rebut Mann’s opinions first set forth in his July 29, 2010 report, are untimely pursuant to Rule 26(a)(2)(D)(ii), which provides that a party must disclose an expert’s opinions “intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party’s disclosure.” Any new calculations or analysis by Jones regarding the impact of the stub portion of the Crooked Creek Trail in Pine Hill should have been made within 30 days of Mann’s original July 29, 2010 report. Notably, Mann’s July 29, 2010 report explicitly recognizes that Jones’ report “did not address or mention any connection between the issues associated with the subject stream crossings of Smith Ditch and the stub to Crooked Creek Trail constructed by Hawk Development within Pine Hill Subdivision.” Hawk SJ Br., Exh. J, p. 8. Similarly, Jones’ opinions in paragraphs 6(e) and 6(f) contain opinions not contained within his original report, and they are not clarifications of his original report. As noted earlier, the face of Jones’ April 15, 2011 Affidavit acknowledges that he is providing new opinions in that he was asked by Plaintiffs to “review and comment on the affidavits and associated reports filed on March 1, 2011” by St. Clair and Mann. St. Clair’s and Mann’s affidavits were premised on their earlier disclosed reports. Any opportunity to provide rebuttal testimony by Jones to those reports expired thirty days after St. Clair’s and Mann’s reports were produced. Therefore, the Court grants the Motion to Strike as to paragraphs 6(b)-(f) of Jones’ April 15, 2011 Affidavit and orders that paragraphs 6(b)-(f) are stricken. 2. Material Facts Hawk began developing Pine Hill in 2001. Hawk hired Earth Source, Inc. to prepare and file applications for permits regarding the wetlands in Pine Hill. On September 5, 2001, Earth Source prepared and filed on Hawk’s behalf an Application for § 401/404 Permit for this project with the Indiana Department of Environmental Management (“IDEM”) and the U.S. Army Corps of Engineers respectively. The September 5, 2011 cover letter to IDEM shows at the bottom that a copy of the letter and the § 401 permit application that were sent to IDEM was also sent to the Indiana Department of Natural Resources (“IDNR”). The cover letter does not ask IDNR to perform a review of the application. The application submitted on September 5, 2001 did not include the stub portion of the Crooked Creek Trail contained within Pine Hill. In a letter dated October 9, 2001, Hawk’s petition for approval of Pine Hill Phase 3 was approved for secondary plat approval by the Crown Point Plan Commission Board subject to the enclosed recommendations of the City Engineer. At the same time Hawk was requesting approval for Pine Hill from the City of Crown Point, Stiglich was requesting approval of Phase V of Stillwater Subdivision. As a condition of the secondary plat approval, the developers of the Stillwater Subdivision and Pine Hill were asked to build a roadway connecting the two subdivisions, which became the Crooked Creek Trail. On May 2, 2002, Earth Source, on behalf of Hawk, filed an Amended Application for § 401/404 Permit (“Amended Application”) with IDEM and the U.S. Army Corps of Engineers to address the construction within Pine Hill of the stub road at Crooked Creek Trail that extended to the border between Pine Hill and the Stillwater Subdivision. The Amended Application requested permission to install 40 cubic yards of fill to the easterly wetland area of Smith Ditch. IDEM and the U.S. Army Corps of Engineers approved the Amended Application on November 15, 2002, and December 18, 2002, respectively. Hawk was never notified by the IDNR Division of Water that a permit was required by the IDNR and no violation notice was ever sent by IDNR. However, there is no evidence of record that a copy of the Amended Application was sent to the IDNR. Unlike the September 5, 2001 letter, which listed the IDNR as receiving a copy of the § 401 permit application sent to IDEM based on the “cc” line at the bottom of the letter, the cover letter for the Amended Application, dated May 7, 2002, lists copies being sent to Todd Eleven, an employee of Hawk, and the U.S. Army Corps of Engineers but does not list IDNR. Hawk did not separately seek a permit for construction in a floodway from the IDNR prior to constructing the Pine Hill portion of the crossing. The CWA § 404 permit issued to Hawk by the U.S. Army Corps of Engineers requires, among other things, that the discharge of fill for the Pine Hill portion of the Crooked Creek Trail crossing must not permanently restrict or impede the passage of normal or expected high flows in Smith Ditch. See PL Br., Exh. 15 (Regional General Permit, Public Notice, File No. 99-100-003-0, issued February 11, 2000). For its portion of Crooked Creek Trail, Hawk installed fill material to the easterly wetland area of Smith Ditch. This portion of Crooked Creek Trail constructed by Hawk within Pine Hill was paved with asphalt, and cement curbs were installed. Hawk’s construction of Crooked Creek Trail was limited to the wetland area within Pine Hill Subdivision as described in the Amended Application for § 401/404 Permit. The Pine Hill and Stillwater Subdivision portions of Crooked Creek Trail meet and join at the property line between the two subdivisions. Stiglich, through Stillwater Development, Inc.’s contractors, constructed the Stillwater Subdivision portion of Crooked Creek Trail by placing All in the wetland and the channel of Smith Ditch and by placing two 36-inch culverts in the channel of Smith Ditch. This portion of the crossing was not paved. The developers of Stillwater Subdivision submitted a request to IDNR for a floodway determination, and the IDNR responded with a letter setting forth its official determination regarding the location of the floodway and the need for a floodway construction permit. There was no partnership agreement between Hawk and Stillwater Properties, LLC regarding the construction at the crossings over Smith Ditch. The channel portion of Smith Ditch where the culverts are located is outside of Pine Hill; the stub road in the Pine Hill subdivision constructed by Hawk ends 55 feet from the channel of Smith Ditch and the culverts installed by Stillwater Developers. Hawk’s construction of the stub portion of the Crooked Creek Trail took place in 2002; the construction of Stillwater Subdivision portion of the crossing took place in 2004. Plaintiffs’ expert, Jonathan E. Jones, P.E., D.WRE, opines that the channel and banks of the Smith Ditch are a “floodway” as that term is defined under Indiana law and IDNR regulations and that the upstream drainage area at the Crooked Creek Trail is located within the floodway of Smith Ditch. Jones opines that the stub portion of the Crooked Creek Trail road constructed by Hawk is partially within the Smith Ditch floodway as it appears on the August 1997 DNR-issued floodway map. Jones further opined that the 40 cubic yards of fill was placed by Hawk in approximately 2,180 square feet of wetland area directly adjacent to Smith Ditch, as shown on the May 7, 2002 amended § 404 permit application prepared by Earth Source. Jones compared the Hawk portion of the Crooked Creek Trail length from the § 404 permit and his company’s generated geo-referenced maps and determined that they show approximately the same road length, which further supports his finding that the fill area associated with the § 404 permit is within the 1997 IDNR floodway boundary. In contrast, Hawk’s expert, Martin S. Mann, P.E. opines that, based on an overlay of the floodway boundary contained in an August 1997 DNR-issued floodway map for UNT Main Beaver Dam Ditch onto an aerial photograph depicting the portion of the Crooked Creek Trail constructed by Hawk Development, it appears that there is no encroachment into the floodway by the portion of Crooked Creek Trail constructed by Hawk. He further opines that, based on a review of documents and an inspection of the site, the HECRAS (Hydrologic Engineering Center-River Analysis System) modeling data revealed zero impact on upstream flood elevations as the upstream elevations from the base line model did not increase as a result of adding the portion of Crooked Creek Trail constructed by Hawk Development within the Pine Hill subdivision to the base line model. Jones opines in his original May 21, 2010 expert report that Crooked Creek Trail as a whole, as constructed, will result in an increase of the 100 year frequency flood elevation just upstream of the Crooked Creek Trail crossing of at least 3.89 feet. According to Jones, the pre-developed 100 year frequency flood elevation at this location is 698.86 feet. In contrast, the post-development 100 year frequency flood elevation is 702.80 feet. Plaintiffs’ and Hawk’s experts have both opined that larger crossings are necessary in order for the crossing to be approvable by IDNR pursuant to Indiana Code § 14-28-l-22(e). Jones also opines that Smith Ditch is a tributary of Beaver Creek, the drainage basin for which includes Stillwater Subdivision and Pine Hill, as well as areas upstream. Jones opines that the channel of Smith Ditch and the surrounding wetlands are “navigable waters” as that term is defined in 33 U.S.C. § 1362(7). The other two crossings of Smith Ditch at Greenview Place and Stillwater Parkway are removed from any border with Pine Hill, and Hawk performed no construction at or near either crossing. The IDNR issued a Notice of Violation to the City of Crown Point in January 2011 for the three crossings of Smith Ditch, including the Crooked Creek Trail, finding that the crossings violate the Indiana Flood Control Act because they are in a floodway but were not permitted. On March 9, 2009, Plaintiffs gave timely notice of the alleged CWA violations to Hawk pursuant to 33 U.S.C. § 1365(b). Neither the Environmental Protection Agency (“EPA”) nor IDEM has commenced a civil or criminal action against Hawk to require compliance with the applicable effluent standards and limitations. Plaintiff Kolodziej purchased his home in August 2004. He was not the original owner. Pursuant to the restrictive covenants for Pine Hill, dated November 21, 2003, no construction was permitted in Pine Hill without the written approval of Hawk. Kolodziej’s residence has a basement door entrance elevation of 700.32 feet. The plat survey of Kolodziej’s home indicates that the “Prop[osed] Finish Grade Elev[ation] @ front line of house” would be 708.15 feet. The plans also indicate that the lot would slope from a high of about 708.15 feet at the front of the house to 699.0 feet at the back of the lot, and that the house would have a walk out basement. During September 2008, water flooded several Pine Hill and Stillwater Subdivision residents’ homes and caused damage. During the September 2008 event, storm-water backed up behind the road crossings, overtopped roads in Stillwater, and caused water to enter the homes of residents in Stillwater Subdivision and Pine Hill, including Kolodziej’s home. Kolodziej suffered personal property and other losses of at least $31,983 and additional losses to his real property, including the costs associated with the construction of an earthen barrier in his backyard to prevent future flooding. 3. Analysis Hawk seeks judgment in its favor on all of Plaintiffs claims, asserting that there is no evidence Hawk violated the Clean Water Act, that Hawk violated the Indiana Flood Control Act and the City of Crown Point Flood Control Ordinance, that the work performed by Hawk in Smith Ditch adversely affected the flow of water in Smith Ditch, or that the damages claimed by individual Plaintiff homeowners McKenna and Kolodziej were caused by the work performed by Hawk at the Crooked Creek Trail. In their Motion for Partial Summary Judgment, Plaintiffs contend that Hawk violated the § 401 and § 404 Clean Water Act permits and breached the implied warranty of habitability by failing to provide an adequate drainage system for Smith Ditch runoff. a. Clean Water Act In Count I of their Complaint, Plaintiffs allege that the work performed by Hawk within the Pine Hill subdivision related to the stub portion of the Crooked Creek Trail violates the Federal Clean Water Act (“CWA”). Hawk contends that Plaintiffs have not designated any evidence to show that Hawk is in violation of the permits it properly obtained under the CWA. The objective of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Under the CWA, the “discharge of any pollutant by any person” is strictly prohibited, except in compliance with one of the permitting schemes set forth in the CWA, including the “wetlands” discharge permit program in 33 U.S.C. § 1344. See Greenfield Mills, Inc. v. Macklin, 361 F.3d 934, 947 (7th Cir.2004) (quoting 33 U.S.C. § 1311(a)); United States v. Huebner, 752 F.2d 1235, 1239 (7th Cir.1985), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88 L.Ed.2d 50. “[Discharge of pollutant” is defined by the Act to mean “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). “Pollutant” includes fill material such as rock and dirt. Id. at § 1362(6). Section 1344 authorizes the Secretary of the Army, through the Army Corps of Engineers, to “issue permits ... for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” Rapanos v. United States, 547 U.S. 715, 723, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (quoting 33 U.S.C. § 1344(a), (d)). Section 1344 further provides that “[cjompliance with a permit issued pursuant to this section, including any activity carried out pursuant to a general permit issued under this section, shall be deemed compliance, for purposes of sections 1319 and 1365 of this title, with sections 1311, 1317, and 1343 of this title.” 33 U.S.C. § 1344(p). Civil penalties of up to $25,000 a day may be imposed for each violation of a condition or limitation in a permit issued by the Secretary of the Army. Id. at § 1319(d). In addition, a private cause of action is available for citizens under 33 U.S.C. § 1365. The section authorizes citizens, like Plaintiffs in this case, to file a civil action against any person “who is alleged to be in violation of ... an effluent standard or limitation ....” Id. at § 1365(a)(1). A term or condition in a permit issued under CWA § 404 or a water quality certification issued under CWA § 401 is an “effluent standard or limitation” that can be enforced by way of a citizen suit under § 1365. Section 1365(f) defines “effluent standard or limitation” as “an unlawful act under subsection (a) of section 1311, ... certification under section 1341, ... and a permit or condition thereof issued under section 1342 of this title.” Id. at § 1365(f). The undisputed evidence is that Hawk, with the assistance of Earth Source, obtained § 401 and § 404 permits from IDEM and the U.S. Army Corps of Engineers in November and December 2002, respectively, related to the Amended Application that included Pine Hill’s stub portion of the Crooked Creek Trail. Hawk placed fill in the wetlands of Smith Ditch to construct the Pine Hill portion of the Crooked Creek Trail. However, Todd Eleven, an employee of Hawk, and Ellingson, a certified professional geologist and professional wetland scientist who is President of Earth Source, both state that the work performed by Hawk complied with the terms of the permits issued. In contrast, Plaintiffs argue that the fill placed by Hawk violates the terms of the CWA permit because it was performed in a floodway without authorization from IDNR. Hawk obtained authorization from the U.S. Army Corps of Engineers under Regional General Permit No. 99-100-003-O. General Condition Number 17 of the permit provides: The permittee shall, to the maximum extent practicable, design the project to maintain pre-construction downstream flow conditions. Furthermore, the work must not permanently restrict or impede the passage of normal or expected high flows (unless the primary purpose is to impound water) and that the structure or discharge of fill must withstand expected high flows. The project must provide, to the maximum extent practicable, for retaining excess flows from the site and for establishing flow rates from the site similar to preconstruction conditions. PL Resp. to Hawk SJ, Exh. 14, p. 6. This condition applies to the stub portion of the crossing because it was constructed by placing fill materials into waters of the United States. This condition reflects (and incorporates) the Army Corps of Engineers’ duty to protect floodplains: In accordance with the requirements of Executive Order 11988, district engineers, as part of their public interest review [applicable to all applications for Corps permits] should avoid to the extent practicable, long and short term significant adverse impacts associated with the occupancy and modification of floodplains, as well as the direct and indirect support of floodplain development whenever there is a practicable alternative. For those activities which in the public interest must occur in or impact upon floodplains, the district engineer shall ensure, to the maximum extent practicable, that the impacts of potential flooding on human health, safety, and welfare are minimized, the risks of flood losses are minimized, and, whenever practicable the natural and beneficial values served by floodplains are restored and preserved. 33 C.F.R. § 320.4(0(2) (1997). Plaintiffs reason that, if Hawk had applied for and obtained a floodway construction permit from IDNR prior to commencing construction of the Pine Hill stub portion of the crossing, the Pine Hill portion of the crossing would not violate RGP No. 99-100-003-0 Condition No. 17 because IDNR would have required much larger culverts. In support, Plaintiffs reference Jones’ opinion that the undersized culverts in the Smith Ditch at the Crooked Creek Trail crossing cause the flood elevations to increase by nearly 4 feet upstream from the crossing when the IDNR has determined that fill that causes the flood elevation to increase by 0.15 feet or more “adversely affect[s] the efficiency of and unduly restrict[s] the capacity of the flood-way.” Thus, Plaintiffs contend that, because the Pine Hill portion of the crossing violates the letter and intent of RGP No. 99-100-003-0 Condition No. 17, it violates § 1311(a). As an initial matter, there is an issue of fact as to whether the stub portion of the crossing is even in the floodway because Plaintiffs’ expert, Jones, opines that the Pine Hill portion of the Crooked Creek Trail is within the Smith Ditch floodway and Hawk’s expert, Mann, opines that the Pine Hill stub portion is not within the floodway. Hawk further designates Mann’s opinion that the stub portion of the crossing constructed by Pine Hill does not adversely affect the efficiency or capacity of the floodway. Def. Br., Exh. J, pp. 17, 19 (pages 9, 11 of July 29, 2010 report). Mann reviewed documents in this case and determined that the HECRAS modeling data developed by IDNR, Short Elliott Hendrickson, Inc., and Wright Water Engineers, Inc. revealed zero impact on the upstream flood elevations, with the upstream elevations remaining the same for both the base line model and the model that included the portion of Crooked Creek Trail constructed by Hawk within Pine Hill. Mann is a trained Professional Engineer, Flood Control Engineer, Floodplain Engineer, and Drainage Engineer. He opines that construction outside of the floodway does not adversely affect the efficiency or capacity of the floodway and does not create an unreasonable hazard to the safety of life or property. He also opines that the portion of Crooked Creek Trail constructed by Hawk did not contribute to the flooding in September 2008. In his report, he noted that photos of the September 2008 flood damages at Crooked Creek Trail “appear to confirm that the damage occurred just west of the end of the stub road constructed by Hawk Development within Pine Hill subdivision. Therefore it is our opinion that the construction of the portion of the roadway by Hawk did not contribute to the flooding in September 2008.” PI. Resp. to Hawk SJ, p. 13. However, as argued by Plaintiffs, the foundation of Mann’s opinion regarding the effect of the stub portion on the efficiency and capacity of the floodway is based on his finding that the crossing is outside the floodway, which is in dispute. Mann did not conduct any independent engineering computations or modeling for his report. Therefore, the Court finds that Plaintiffs have raised a genuine issue of material fact as to whether the Pine Hill stub portion of the road, by itself, “permanently restricts] or impede[s] the passage of normal or expected high flows ... and that the structure or discharge of fill must withstand expected high flows.” RGP No. 99- 100-003-0, Condition No. 17. Plaintiffs have also designated Jones’ original opinion that IDNR would not have permitted the existing crossing because its “severely undersized culverts cause flood elevations to increase by nearly 4 feet upstream of the crossing,” PL Resp. to Hawk SJ, p. 20. Although Jones original report did not separate out the impact of the Pine Hill stub portion of the crossing, and that portion of the crossing did not include the culverts, his opinion can be reasonably read to be an assessment of the impact of the crossing as a whole on the passage of normal or expected high flows. Thus, it is possible that, if Hawk had submitted an application to the IDNR for a floodway permit, the stub portion of the crossing would not violate RGP No. 99-100- 003-0, because the IDNR would have considered the impact of both portions of the crossing and would have required much larger “culverts” or would have required different conditions for the stub portion of the crossing. However, the Court is not persuaded, and Plaintiffs have not offered any law, that Hawk is liable for the portion of the Crooked Creek Trail crossing in the Still-water Subdivision. Plaintiffs suggest that Hawk should have ensured that Stiglich applied for a permit for the Stillwater Subdivision portion of the crossing. The undisputed evidence shows that there was no partnership agreement between Hawk and Stillwater Properties, LLC regarding the construction at the crossings over Smith Ditch. There is no evidence that Hawk was involved with any aspect of the Still-water Subdivision portion of the Crooked Creek Trail Crossing that included the undersized culverts. The fact that the two portions of the Crooked Creek Trail were built in compliance with the City’s request and that Hawk knew that its portion of the crossing would meet the Stillwater Subdivision portion to eventually form a single crossing of Smith Ditch does not render Hawk liable for the portion of the crossing built by the Stillwater Subdivision developers. Nevertheless, the Court finds that Plaintiffs have raised a genuine issue of material fact as to whether the stub portion of the Crooked Creek Trail in Pine Hill “permanently restrict[s] or impede[s] the passage of normal or expected high flows ... and that the structure or discharge of fill must withstand expected high flows” in violation of RGP No. 99-100-003-0 Condition No. 17. Therefore, the Court denies Hawk’s Motion for Summary Judgment and denies Plaintiffs’ Motion for Partial Summary Judgment on Count I of Plaintiffs’ Complaint, leaving Plaintiffs’ CWA claim against Hawk for trial. b. State Law Claims In Count IV of their Complaint for negligence per se, Plaintiffs allege that Hawk violated its duties under the Indiana Flood Control Act to obtain a floodway construction permit pursuant to Indiana Code § 14-28-l-22(e) before developing its portion of the crossing at Crooked Creek Trail. Pursuant to Indiana law, a person is liable under a theory of negligence per se if that person 1) violates a duty imposed by statute or ordinance; 2) where the statute or ordinance intended to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has occurred; and 3) the violation proximately causes the plaintiff’s injuries. Erwin v. Roe, 928 N.E.2d 609, 616 (Ind.Ct.App.2010); see also Kho v. Pennington, 875 N.E.2d 208, 212-13 (Ind.2007). Negligence per se does not mean liability per se. Id. A plaintiff must still prove causation and damages just as in any other negligence claim. Am. United Life Ins. Co. v. Douglas, 808 N.E.2d 690, 704 (Ind.Ct.App.2004) (citing City of Gary v. Smith & Wesson, Corp., 801 N.E.2d 1222, 1245 (Ind. 2003)). The Indiana Flood Control Act provides that, a person desiring to: (1) erect, make, use, or maintain a structure, an obstruction, a deposit, or an excavation; or (2) suffer or permit a structure, an obstruction, a deposit, or an excavation to be erected, made, used, or maintained; in or on a floodway must file with the director a verified written application for a permit accompanied by a nonrefundable fee of two hundred dollars ($200). Ind.Code § 14-28-l-22(c). An applicant must receive such a permit before beginning construction. Id. at § 14-28-l-22(e). Once an application is received, IDNR can issue a permit for the construction only if the applicant has clearly proven that the structure, obstruction, deposit, or excavation will not do any of the following: (1) Adversely affect the efficiency of or unduly restrict the capacity of the flood-way. (2) Constitute an unreasonable hazard to the safety of life or property. (3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources. Id. A structure, deposit, or obstruction “adversely affect[s] the efficiency of or unduly restricts] the capacity of the flood-way” if it causes the 100-year flood elevation in the floodway to rise by 0.15 feet or more. 312 IAC 10-2-3. The Flood Control Act also provides that no person may “erect, make, use, or maintain in or on any floodway, or suffer or permit the erection, making, use, or maintenance in or on any floodway, a structure, an obstruction, a deposit, or an excavation” that will cause any of the conditions proscribed in Indiana Code § 14-28-l-22(e), except as authorized by Indiana Code § 14-28-1-26.5, which applies to the placement of mobile homes and construction of residences. Ind.Code § 14-28-1-20. At the time of the development of Pine Hill, Hawk relied on Eric Ellingson at Earth Source, Inc. to determine the permits necessary for the development of work being performed specific to the wetlands in Pine Hill. On September 5, 2001, Earth Source prepared and filed on Hawk’s behalf an Application for § 401/404 Permit for this project with IDEM and the U.S. Army Corps of Engineers. The September 5, 2011 cover letter shows that a copy of the letter and the 401 permit application that were sent to IDEM was also sent to the IDNR. The cover letter does not ask IDNR to perform a review of the application. More importantly, the original application did not include the stub portion of the Crooked Creek Trail contained within Pine Hill. After the City of Crown Point required the developers of the two subdivisions to build the Crooked Creek Trail crossing, Earth Source, on behalf of Hawk on May 2, 2002, filed an Amended Application for § 401/404 Permit (“Amended Application”) with IDEM and the U.S. Army Corps of Engineers to address the construction within Pine Hill of the stub road at Crooked Creek Trail that extended to the border between Pine Hill and the Stillwater Subdivision. The Amended Application requested permission to install 40 cubic yards of fill to the easterly wetland area of Smith Ditch. IDEM and the U.S. Army Corps of Engineers approved the Amended Application on November 15, 2002, and December 18, 2002, respectively. Hawk argues that it was never notified by the IDNR Division of Water that a floodway permit was required and that no violation notice was ever sent by IDNR. Hawk’s expert, Mann, states that, if a review of a 401/404 application reveals the need for a floodway permit, the IDNR notifies the applicant. However, there is no evidence of record that a copy of the Amended Application was sent to the IDNR. Unlike the September 5, 2001 letter, which listed the IDNR as receiving a copy of the 401 permit application sent to IDEM based on the “cc” line at the bottom of the letter, the cover letter for the Amended Application, dated May 7, 2002, lists copies being sent to Todd Eleven, an employee of Hawk, and the U.S. Army Corps of Engineers, but does not list IDNR. There is no evidence of record that Hawk separately sought a permit for construction in a floodway from the IDNR prior to constructing the Pine Hill portion of the crossing. Therefore, Plaintiff has demonstrated that Hawk did not apply for an IDNR floodway permit. An unexcused violation of the Flood Control Act and the Flood Control Ordinance “constitutes negligence per se if the statute or ordinance is intended to protect the class of persons in which the plaintiff is included and to protect against the risk of the type of harm which has occurred as a result of its violation.” Kho, 875 N.E.2d at 212-13 (citation and internal quotation marks omitted). The Flood Control Act and Flood Control Ordinance are intended to protect the citizens of Indiana and of the City of Crown Point (like Plaintiffs) from the hazards of development in flood-ways. Ind.Code §§ 14-28-1-1, 14-28-1-22(e); Crown Point Ordinance 1638, section 1. The Flood Control Act sets out its purpose explicitly in the section entitled “Legislative intent”: (1) The loss of lives and property caused by floods and the damage resulting from floods is a matter of deep concern to Indiana affecting the life, health, and convenience of the people and the protection of property. To prevent and limit floods, all flood control works and structures and the alteration of natural or present watercourses of all rivers and streams in Indiana should be regulated, supervised, and coordinated in design, construction, and operation according to sound and accepted engineering practices so as to best control and minimize the extent of floods and reduce the height and violence of floods. (2) The channels and that part of the flood plains of rivers and streams that are the floodways should not be inhabited and should be kept free and clear of interference or obstructions that will cause any undue restriction of the capacity of the floodways. Ind.Code § 14-28-1-1. In addition, the Flood Control Act sets forth the factors that IDNR considers in determining whether to allow a permit applicant to construct in a floodway. (e) An applicant must receive a permit from the director for the work before beginning construction. The director shall issue a permit only if in the opinion of the director the applicant has clearly proven that the structure, obstruction, deposit, or excavation will not do any of the following: (1) Adversely affect the efficiency of or unduly restrict the capacity of the floodway. (2) Constitute an unreasonable hazard to the safety of life or property. (3) Result in unreasonably detrimental effects upon fish, wildlife, or botanical resources. Ind.Code § 14-28-1-22. Similarly, the Flood Control Ordinance explicitly sets forth its purposes and the type of harm it is designed to prevent: The purpose of this ordinance is to guide development in the flood hazard areas in order to reduce the potential for loss of life and property, and to reduce the potential for health and safety hazards .... [T]he City of Crown Point adopts the following floodplain management regulations in order to ... prevent unwise developments from increasing flood or drainage hazards to others ... [and] to protect human life and health from flood hazards .... Ordinance 1638, Section 1. The Flood Control Ordinance accomplishes this purpose by, among other things, requiring developers to obtain permits from the IDNR for construction activities conducted in a floodway. The Plaintiffs, as residents of the City of Crown Point and property owners immediately adjacent to the floodway, are within the class of people the Flood Control Act and Flood Control Ordinance were enacted to protect from flooding hazards as occurred in September 2008. They deserve the safety protections mandated by these minimum requirements for floodway construction in order to prevent an unduly restricted floodway from creating unreasonable hazards to the safety of their lives, property, and botanical resources. Finally, to avoid summary judgment in favor of Hawk on this claim of negligence per se and their other state law tort claims of negligence and nuisance, Plaintiffs must raise a genuine issue of material fact as to causation. As set forth in the previous section, there is an issue of material fact as to whether the Pine Hill stub portion of the Crooked Creek Trail crossing is, in fact, in the Smith Ditch floodway, which in turn undermines Mann’s opinion that the stub portion of the crossing does not impede or restrict the floodway. There is also a genuine issue of material fact as to the extent of the Plaintiffs’ damages caused by any violation of the Indiana Flood Control Act and the Crown Point City Ordinance by Hawk’s construction of the stub portion of Crooked Creek Trail without a floodway permit. Therefore, the Court denies Hawk’s motion for summary judgment on the negligence per se claim in Count IV of Plaintiffs’ Complaint, the negligence claim in Count V, and the nuisance claim in Count VI. c. Implied Warranty of Habitability In Count III of their Complaint, Plaintiffs allege that Hawk developed storm water drainage improvements on the raw land in order to develop Pine Hill and that Hawk knew or should have known that there were latent defects in Pine Hill, including but not limited to the inability of the culverts at the three Crossings to prevent Smith Ditch, a natural watercourse, from flooding homes and common areas in Pine Hill. Plaintiffs only attempt to hold Hawk liable for the damage to Plaintiff Kolodziej’s home. Plaintiffs seek summary judgment on this claim in their motion; Hawk does not address this claim in its motion. The Court has set forth the legal standard for applying the implied warranty of habitability to developers in Part B.2.e below, including that an important factor in applying the warranty to developers is whether the developer know or should have discovered the latent defect. Kolodziej lives in Pine Hill, developed by Hawk. The Stillwater developers’ contractors built their portion of the Crooked Creek Trail, including the installation of the culverts, in 2004. Kolodziej purchased his home, which was built by Mirar Development, in 2004. Plaintiffs have offered no evidence that Hawk knew of the potential for flooding in Pine Hill. The Kolodziej home was purchased in 2004, and the flood did not occur until 2008. It is Plaintiffs’ contention that the flooding was caused by the construction in Smith Ditch, not a flaw inherent in the land. Based on this timing, Hawk argues that it could not have known of the condition currently complained of by Kolodziej, nor did Hawk have an opportunity to conceal the condition from Kolodziej. Plaintiffs reason that, if Hawk had contacted the IDNR regarding a floodway permit, they would have known that the Smith Ditch floodway extended into Pine Hill and that the Pine Hill portion of the Crooked Creek Trail would be constructed in a floodway. As noted above, there is a question of fact as to whether the stub portion of the Crooked Creek Trail is in the floodway a