In re the Complaint of Ingram Barge Co. (194 F. Supp. 3d 766, 2016)

United States District Court for the Northern District of Illinois 2016-07-13

Navigation and Navigable Waters The Public Health and Welfare Shipping

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Court Judge:

Before the Court are several motions relating to the April 18, 2013 barge allision at the Marseilles Dam located near Marseilles, Illinois. The United States has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), or, alternatively, for summary judgment pursuant to Federal Rule of Civil Procedure 56(a), as to all claims and counterclaims against it arising from this incident. (R.747). In particular, the United States seeks immunity from liability pursuant to the Flood Control Act, 33 U.S.C. § 702c, or, alternatively, pursuant to the discretionary function exception. Ingram, IMS, MESD, and various individual claimants oppose this motion. (R.800; R.803; R.804; R.807). The United States has separately moved the Court to dismiss Ingram’s contract and promissory estoppel claims. (R.750).

For the following reasons, the Court denies the United States’ motion with respect to the Flood Control Act, but grants the United States’ motion with respect to the discretionary function exception. (R.747). The Court finds that the United States cannot be held liable in tort for allegations arising from Lockmaster Rodriguez’s operation of the dam gates during the attempted canal transit' on April 18, 2013. The Court further grants the United States’ motion to dismiss Ingram’s promissory estoppel allegations (Count III), but denies the United States’ motion with respect to Ingram’s breach of contract allegations (Count II). (R.750).

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a claim if it lacks subject matter jurisdiction over it. See Aljabri v. Holder, 745 F.3d 816, 818 (7th Cir.2014) (“we are required to consider subject-matter jurisdiction as the first question in every case ... and we must dismiss this suit if such jurisdiction is lacking”) (citations omitted); see also Fed. R.Civ.P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”). In reviewing a Rule 12(b)(1) motion to dismiss, courts take all well-pleaded factual allegations in the complaint as true. Smith v. United States, 196 F.3d 774, 776 n. 1 (7th Cir.1999). Courts may, however, “properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Calderon v. United States, 123 F.3d 947, 951 n. 2 (7th Cir.1997).

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining summary judgment motions, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The party seeking summary judgment has the burden of establishing that there is no genuine dispute as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After “a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 255,106 S.Ct. 2505 (quotation omitted). A court’s “job when assessing a summary judgment motion is not to weigh evidence, make credibility determinations, resolve factual disputes and swearing contests, or decide which inferences to draw from the facts.” Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir.2014).

STATEMENT OF FACTS

This admiralty case arises from an unsuccessful attempt by the M/V Dale A. Heller (“Dale Heller”), owned by Petitioner Ingram Barge Company (“Ingram”), to navigate past the Marseilles Dam during a high-water situation with a fourteen-barge tow. Other maritime vessels agreed to assist the Dald Heller in this navigation attempt, including: (1) the M/V Loyd Murphy (“Loyd Murphy”), operated by Inland Marine Service, Inc. (“IMS”) and owned by American Commercial Lines, LLC (“ACL”); (2) the M/V City of Ottawa, a United States Army Corps of Engineers (“Corps”) vessel; and (3) the M/V Creve Coeur, another Corps vessel. While traversing Illinois River Mile 247.0 near the Dam, the Dale Heller’s tow broke apart, and seven of its barges either allided with the dam or sank upriver from it. Subsequent to this incident, the river waters overtopped the surrounding earthen dike and flowed into the town of Marseilles, causing substantial damage to real and personal property. The United States now seeks immunity from all resulting damages claims. The Court looks to the following facts in analyzing the United States’ immunity arguments.

1. The Illinois Waterway

A. General Facilities

The Illinois Waterway (“ILWW”) is a 327-mile stretch of connected rivers, channels, and canals that run from Lake Michigan to the juncture of the Illinois and Mississippi Rivers in Grafton, Illinois. (R.747-1, US Rule 56.1(a)(3) Stmt. Facts ¶ 9). Since the 1800s, the federal and state governments have authorized the creation of canals within the ILWW to serve various functions, including navigation, sanitation, and flood control. (Id. ¶¶ 10-16). Together, the Corps and a state entity — the Metropolitan Water Reclamation District of Greater Chicago (“MWRD”) — own, operate, and/or maintain several flood and sewage control and navigation facilities within this system, including the Lockport Lock and Dam, Lockport Controlling Works, the Chicago River Lock and Controlling Works, and the T.J. O’Brien Lock and Controlling Works. (Id. ¶¶ 17-30; R.800-1, Ingram Rule 56.1(b)(3)(B) Stmt. Facts ¶¶ 33-39; R.806, Claimants Rule 56.1(b)(3)(B) Stmt. Facts ¶¶ 33-39). The MWRD and the Corps also have constructed specific tunnels and reservoir facilities within the ILWW for flood storage purposes. (R.747-1, US Rule '56.1(a)(3) Stmt. Facts ¶¶ 40-44).

B. Marseilles Lock and Dam

The Marseilles Lock and Dam is one of six Corps-owned locks and dams along thé ILWW. (Id. ¶ 47). The Marseilles Pool, upstream of the Dam, receives all waters drained from upriver of Dresden Island, the nearest Corps facility. (Id. ¶¶ 49-51). The Marseilles Dam is designated as a run-of-the-river facility, meaning that the pool is not designed for flood water storage. (Id. ¶ 54). Indeed, the project has no upriver flood storage capacity. (R.802, IMS Rule 56.1(b)(3)(C) Stmt. Additional Facts ¶ 9). The Master Water Control Manual for the Marseilles Lock and Dam (“Marseilles Water Control Manual”) makes this clear, reciting, “[The] Marseilles Lock and Dam is operated strictly as a run-of-the-river facility with no provision for storage. It is operated as a navigation structure to provide the required nine-foot minimum channel from Marseilles Lock and Dam to Dresden Island Lock and Dam, a distance of approximately 27 river miles.” (R. 747-4, Dep. Ex. 24 at USA-00043024). Pool volume curve studies demonstrate that “there is little or no potential for regulation of this project to achieve flood-control benefits.” (Id. at USA-00042994). The Marseilles Lock and Dam serves no federally authorized flood control purpose. (R.800-1, Ingram Rule 56.1(b)(3)(C) Stmt. Additional Facts ¶ 1; R.806, Claimants Rule 56.1(b)(3)(C) Stmt. Additional Facts ¶ 1).

The Marseilles Water Control • Manual continues, “The Marseilles Lock and Dam project was authorized, designed, constructed, and is regulated, to maintain navigation on the Illinois Waterway. The dam is operated to maintain a normal pool elevation ... in order to provide a nine-foot navigation channel[.]” (R. 802-1, Dep. Ex. 24 at USA-00043012). The Corps maintains pool elevation by opening and closing the Marseilles Dam’s eight tainter gates, each of which is 60 feet wide and 16 feet high. (R.747-1, .US Rule 56.1(a)(3) Stmt. Facts ¶¶ 53, 55). As the river level rises, .the Corps opens the gates to allow additional water to flow through. (7A).According to the Marseilles Lock and Dam Operations handbook, “this pool shall be carried as near as possible to 483.25 and should not be permitted to exceed that elevation without permission from higher authority.” (Id. ¶ 142) (citing R.747-4, Dep. Ex. 25 at USA-00001118). The Marseilles lockhouse uses a one-page grid to determine where to set each of the eight gates when maintaining the regulated pool elevation. (Id. ¶ 144). In high water conditions, the lockhouse procedure (according to the one-page grid) is to open the gates as high as necessary to discharge incoming waters and to keep the Marseilles Pool at an elevation close to 483.2 feet. (Id. ¶ 146). The Marseilles Water Control Manual, however, permits deviations from normal pool regulation in the event of an emergency. (Id. ¶¶ 154-55). It also permits “unplanned minor deviations” from normal regulation. (R. 747-4, Dep. Ex. 24 at USA-00043016). Pertinent federal regulations also permit the lockmaster to depart from regulations, as he deems necessary, in the event of an emergency. (R.747-1, US Rule 56.1(a)(3) Stmt. Facts ¶ 150) (citing 33 C.F.R. § 207.300(a)).

According to correspondence from private and government engineers, the Marseilles Dam and the earthen dike do provide limited, practical flood damage protection. (R.747-1, US Rule 56.1(a)(3) Stmt. Facts ¶ 57) (citing R.747-4, US Ex. 7 at USA-00010192 (1932 Corps Letter to the Mayor of Marseilles, “[The earthen dike] has been properly designed to resist the highest anticipated floods ... The construction of the levee will be a positive relief from the floods”); R.747-4, US Ex. 8 at USA-00032768-79 (1974 Letters from Engineering Firm to the Mayor of Marseilles and to the Federal Insurance Administration, “The dam on the Illinois River at Marseilles acts as an effective Protection structure against the 100 year flood ...” and “The dam on the Illinois River at Marseilles ... is used [for flood control] in times of high rains”)). The lockmaster’s job description further provides, in part, that “[d]uring emergencies and flood periods,” he or she “is responsible for [the] implementation of actions to negate or reduce impact on the facility, adjacent area, and communities.” (R. 747-5, US Ex. 45 at US-00008222). In addition, he or she is “responsible for the safety of property, personnel, and public” at the site. (Id.). Lockmaster Larry Rodriguez confirmed, however, that assisting navigation is the “paramount purpose” of the Marseilles Lock and' Dam. (R.648, Rodriguez Dep. Tr. at 57).

II. The Ballards Island Flotilla

A. River Conditions Throughout April 16-18, 2013

On April 16, 2013, the Dale Heller departed Channahon, Illinois, headed southbound on the Illinois River with fourteen barges in tow. At that time, the National Weather Service predicted that the Illinois River would rise to a crest below “action level” and would begin falling thereafter. (R.800-1, Ingram Rule 56.1(b)(3)(B) Stmt. Facts ¶ 78; R.800-2, Dep. Ex. 391, Recreated NWS Hydrograph).

At 7:35 a.m. on April 17, the Dale Heller arrived at Ballards Island, upriver of the Marseilles Dam. The Dale Heller’s captain — Captain White — informed an Ingram dispatcher that he planned to hold at Bal-lards Island until the gates were lowered to 17-18 feet total opening. (4/17 VDR 4, t/s 9:06 a.m.). Captain White’s “rule of thumb” with respect to navigating a fourteen-barge tow past the Marseilles Dam was to attempt such a transit only when the dam gates were opened 18 feet or less. (R.651, White Dep. Tr. at 20-22). The water levels, however, continued to rise. The Marseilles lockhouse increasingly opened the dam gates throughout April 17 and 18 in response to these rising water levels. (R.747-1, US Rule 56.1(a)(3) Stmt. Facts ¶ 81) (citing hydrology records).

In the early evening on April 17, the Loyd Murphy and its fifteen-barge tow locked through the Marseilles Lock, headed northbound. After an unsuccessful attempt to moor below Gum Creek — less than one mile upriver from the Dam — the Loyd Murphy’s captain, Anthony Ice (“Ice”), radioed over to Captain White to discuss- whether the Loyd Murphy could also position itself at Ballards Island until the water levels reduced. The Loyd Murphy subsequently joined the Dale Heller at Ballards Island, connecting the two tows into one 29-barge flotilla. (R.744, Opinion at 5-6).

By early morning on April 18, however, the Dale Heller and the Loyd Murphy were having trouble holding the flotilla at Ballards Island. (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶¶ 99-101). As hy-drograph evidence shows, the river rose above “action level” by midnight on April 18, hitting minor “flood stage” status in the morning, and continuing to rise into moderate flood stage status by the afternoon. (Id. ¶¶ 63-66) (citing R.747-6, US Ex. 54, Recreated Hydrograph). Captain White would not transit past the Marseilles Dam, however, due to his concern about outdraft conditions associated with a total gate opening of more than 17-18 feet. (Id. ¶ 79). He acknowledged that he may need to cut his barges free — a move which would have resulted in the barges striking the Marseilles Dam. (Id. ¶¶ 102-03).

Throughout that morning, Captain Ice contacted both private and governmental assist boats — including the Nancy S., the City of Ottawa, the City of Joliet, and the Cody Boyd — to request additional horsepower in holding the combined tow upriver of the Dam. Captain Ice also oversaw rigging operations, including the ultimately unsuccessful attempt, to tie the combined tow to some trees on Ballards Island. (R.744, Opinion at 8-9). The last tree securing the flotilla gave way between 2:00 and 3:00PM. (4/18 VDR 2, t/s 14:25).,

Elsewhere during this time, the MWRD closed all ILWW intake points from Lake Michigan and reversed the flow at several upriver facilities after reaching maximum flood storage capacity. (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶¶ 87-90). Between midnight April 18 through midnight April 19, 3 to 5 inches of rain fell in the Illinois River basin upstream of Marseilles! (Id. ¶ 67; R.747-4, Dep. Ex. 420, Hildebrand Analysis at Fig. 14). Throughout the morning of April 18, Corps employee and ILWW Acting Project Manager, Michael Zerbonia (“Zerbonia”), “mostly acted as the [Peoria] flood area engineer; coordinating people going out, answering calls from municipalities, from levee districts, reporting upwards status of our locks and dams, et cetera.” (R.747-6, US Ex. 51, Zerbonia Dep. Tr. at 29-31, 92).

B. The IRCA Call

At approximately 2:00PM on April 18, a River Industry Action Committee (“RIAC”) call convened,. followed by an Illinois River Carrier’s Association (“IRCA”) conference call. Representatives of Ingram, ACL, the Corps, and the United States Coast Guard, among others, participated on the April 18 IRCA call. After discussing lock closures and river conditions, the IRCA participants discussed the .situation at Ballards Island — in particular, about the Dale Heller’s need for an action plan with respect to its tow. (R.744, Opinion at 10-11). According to Craig Hess— Lockmaster Rodriguez’s direct supervisor and IRCA participant — the Corps agreed to assist the Dale Heller once they understood that the Marseilles Dam was in danger. (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶ 169; see also R.747-5, US Ex. 46, Hess Dep. Tr. at 56-58 (“and that’s when we said yes, do what you can do to help them, you know, keep them from ... coming down into the dam”)).

Eventually, the IRCA participants devised a plan whereby the Corps would lower the dam gates in order to facilitate the transit of the Dale Heller and its tow into the Marseilles Canal. (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶109). The agreement to lower the gates responded to Ingram’s concern for the outdraft impacting the Dale Heller’s tow as it neared the dam. (Id. ¶ 111). The Corps was concerned, however, about the potential flooding of Marseilles if the gates were held down for too long. (Id. ¶ 112). The Corps shared this concern on the IRCA call, and subsequently with the crews of the Dale Heller and the Loyd Murphy. (Id. ¶¶ 112-14). In agreeing to lower the dam gates,. Lock-master Rodriguez effectively agreed to deviate from the 'standard, one-page gate setting grid, because “this was a different situation^]” (R.648, Rodriguez Dep. Tr. at 204:2-21).

Rodriguez testified that he made the decision of how much gate to close, although he did not perform any pool calculations in rendering that decision. (Id. at 194, 217-18). Rodriguez told the IRCA participants, “I can give you 16 feet.” (Id. at 192-93). As the Court previously recognized, the parties dispute “the exact agreement on gate settings — specifically, whether they had agreed to reduce the gates by 16 feet, or to 16 feet, and for how long. (Compare, e.g., R.676, US Rule 56.1(b)(3)(B) Stmt. Facts ¶¶40, 42, 48, 49, 64 with R.678, Ingram Rule 56.1(b)(3)(B) Stmt. Facts ¶¶40, 42, 48, 49, 64).” (R.744, Opinion at 11).

Following the IRCA call, pilots, captains, and/or deckhands from the Dale Heller, the Loyd Murphy, the City of Ottawa, and the Cody Boyd attended a meeting aboard the City of Ottawa to discuss the action plan. (R.744, Opinion and 12-13). The tactical plan following that meeting was for the City of Joliet to transit into the Canal with its two barges, the Loyd Murphy and the Cody Boyd to move the Loyd Murphy’s tow across the river — where the Cody Boyd would hold it — and for the Loyd Murphy, the City of Ottawa and the Creve Coeur-to then help the Dale Heller transit into the Canal with its fourteen barges. The Creve Coeur subsequently arrived at Ballards Island, carrying Corps supervisor Jeff Griffin (“Griffin”). (Id. at 13-14). Griffin joined Captain Ice in the wheelhouse of the Loyd Murphy prior to the transit.

III. The Attempted Canal Transit on April 18, 2013

Before the transit started, Captain Ice stated on the'radio, “Jeff [Griffin] says he’s got the phone ready waiting to shut the dam off when need be ... once we start easing down, I’ll have Jeff make the call. I don’t want to keep it shut down for too long.” (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶ 115) (citing 4/18 VDR 2, t/s 16:59). Around 5:00PM, the Dale Heller and the assist vessels began their southbound transit to the Canal. (Id. ¶ 119). At this time, the Morris river gauge registered approximately 71,000 cubic feet per second of water moving downriver. (Id. ¶ 66). It is undisputed that the lowering of the dam gates caused the water levels to rise. (Id. ¶¶ 120-21).

During the transit, Captain White observed that the water was rising quickly in the vicinity of Snug Harbor, upriver of the Marseilles Dam. (R.651, White Dep. Tr. at 148-52). He testified, “The water [was] coming up quick ... but the town wasn’t flooded.” (Id. at 150). According to Griffin, around 5:15PM — after seeing the water level rise on the right descending bank of the river — he spoke with Captain Ice, who directed him to call Lockmaster Rodriguez to raise the gates back up by half. (R.747-5, US Ex. 32, Griffin Dep. Tr. at 239; see also id. at 264 (testifying that the water was “getting close” to the levee)). In his Coast Guard interview subsequent to the incident, Griffin stated that Captain Ice had shared Griffin’s mid-transit concern about the rising water levels. (R.821-2, US Rule 56.1(b)(3)(C) Reply to IMS ¶ 25).

Radio recordings reflect that, around this time, Captain Ice stated, “I’m telling him to open up a little bit more gate because they’re starting to flood up into those houses already.” Captain White responded, “Ok.” Captain Ice continued, “If you look, that ladder’s already under water over there.” (4/18 VDR 2, t/s 17:28:22, 17:28:30). On Ice’s direction, Griffin called Rodriguez and relayed the message to open the gates by half. (R.747-5, US Ex. 32, Griffin Dep. Tr. at 142-48, 253). Ice, on the other hand, denied telling Griffin to raise the gates. (R.649, Ice Dep. Tr. at 220-23, 276-80, 327). He testified that he “fumbled with [his] words” on the radio and agreed to the gate-raising idea only after Griffin “was hounding and hounding [him] about it.” (Id. at 222). Ice testified that he told Griffin, “It’s a bad idea, but if you need to open the gates, open up a couple feet on the far side.” (Id. at 280). Captain Ice denied observing any flooding during the transit. Rather, he repeated statements, by Griffin over the radio. (Id, at 232-34) (Ice to vessel crews: “We got quite a bit of extra water when they backed that dam up, but he. just opened up the dam. They’re starting to flood the town”).

It is undisputed that Rodriguez opened the dam gates on account of the call from Griffin. (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶ 130; R.648, Rodriguez Dep. Tr. at 247:14-16 (“[Q]. And you did that because Jeff Griffin gave you an order to do so? [A]. Yes”)). According to Rodriguez, Griffin did not give any reason for this order and, in particular, did not mention flooding. (R.648, Rodriguez Dep. Tr. at 263:7-12, 274:12-17, 281:3~6). Rodriguez, himself,- did not observe any flooding during the transit. (Id. at 255:2-5). Based on his camera observations, he “had no concerns about Marseilles ... I was watching the top of the cell. As long as the water didn’t hit to the top of the cell, I wasn’t concerned about Marseilles flooding ... It never got to that level.” (Id. at 280:6-281:2, 281:18-19; see also 247:17-248:1 (“[Q]. And at the time Jeff Griffin gave you that order, you know and you knew back then that there was no pool elevation that was even close to the top of the cell, correct? [A]. Yes”)).

Rodriguez’s second-level supervisor— Michael Zerbonia — testified that Rodriguez had the authority to ignore Griffin’s gate-setting instruction or recommendation. (R.747-6, US Ex. 51, Zerbonia Dep. Tr. at 217:14-21; R.747-1, US Rule 56.1(a)(3) Stmt. Facts ¶ 166). Federal regulations and Corps documents, too, reflect that Rodriguez was under no obligation to follow Griffin’s instruction relating to the operation of the dam. (R.800-1, Ingram Rule 56.1(b)(3)(C) Stmt. Additional Facts ¶¶ 3-4; R.802, IMS Rule 56.1(b)(3)(C) Stmt. Additional Facts ¶¶ 13-14). In particular, 33 C.F.R. § 207.300(a) provides, in part:

The loekmaster shall be ■ charged with the immediate control and management of the lock, and of the area set aside as the lock area, including the lock approach channels. He/she shall see that all laws, rules, and regulations for the use of the lock and lock area are duly complied with, to which end he/she is authorized to give all necessary orders and directions in accordance therewith, both to employees of the government and to any and every person within the limits of the lock and lock area, whether navigating the lock or not. No one shall cause any movement of any vessel, boat, or other floating thing in the lock or approaches except by or under the direction of the lockmaster or his/her assistants, •

33 C.F.R. § 207.300(a). Griffin, himself, testified that he was “never delegated the duty or the responsibility to determine when [the] gates should be opened or closed” and that, ultimately, it “would be the lockmaster’s decision to raise the gates if necessary because of flooding.” (R.802-5, Griffin Dep. Tr. at 127-28).

Rodriguez testified- that he followed Griffin’s order “as per instruction” from Griffin’s direct supervisor, Brady Beck-man, despite both of them being outside his “chain of command.” (R.648, Rodriguez Dep. Tr. at 127-30; 342-43). Neither Griffin nor Beckman had any expertise in lock and dam operations. (Id. at 129). Beckman, for his part, denied telling Rodriguez “to take orders from [Griffin] about gate operation.” (R.801-1, US Ex. 12, Beckman Dep. Tr. at 50-51). He did, however, speak with both Rodriguez and Griffin to ensure “that they were going to be talking to one another” to facilitate “clear communication between the tow and the dam and the operator of the dam.” (Id. at 49-50). -

At his deposition, Rodriguez agreed that Griffin- — who was aboard the Loyd Murphy during the transit — had a perspective on the tow that he did not have at the lockhouse. (R.648, Rodriguez Dep. Tr. at 341-42). Rodriguez went along with Griffin’s instruction because they “were dealing with an emergency” in a high-water situation. (Id. at 343-46; see also id. at 340, 297). His supervisors — Craig Hess and Mike Zerbonia — agreed that the situation on April 18, 2013 was an “emergency situation.” (R.747-5, US Ex. 46, Hess Dep. Tr. at 108-09; R.747-6, US Ex. 51, Zerbonia Dep. Tr. at 218). Other Corps and Coast Guard personnel agreed. (R.821, US Reply Br. at 23 n.20 (citing deposition testimony)). Captain White, Port Captain Henle-ben, and Pilot Shrader also agreed. (R.651, White Dep. Tr. at 351; R.646, Henleben Dep. Tr. at 178; R.821-1, Shrader Dep. Tr. at 72).

After Rodriguez raised the dam gates around 5:20PM, the water level began to fall. (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶ 131). The Dale Heller and the assist vessels continued their southbound transit to the Canal. (Id. ¶ 133).

IV. The Allision and Resulting Damages

Around 5:30PM, as the City of Ottawa and the first row of barges crossed into the Canal, the head of the Dale Heller tow turned towards the dam. (R.747-1 US Rule 56.1(a)(3) Stmt. Facts ¶ 134). The right side of the barges hit a concrete wall running alongside the Canal entrance, breaking the rigging that connected the first five barges. (Id. ¶ 135). Several of those barges struck the dam. (Id. ¶ 136). Eventually, the wires connecting the Dale Heller to the remaining barges broke, resulting in several more barges abiding with the dam. (Id. ¶ 137). The allision rendered one dam gate inoperable, and four of the barges sank just upriver of the dam. (Id, ¶¶ 138-39). By the morning of April 19, the river water overtopped the earthen dike and flowed into the town of Marseilles. (Id. ¶ 140).

The United States claims that it experienced subsequent damage to the Dam and its components, damage to the Lock and its components, damage to the earthen dike running along the northern shoreline, and general obstruction of navigation on the Illinois River, seeking recovery from Ingram and/or IMS. (See generally R.374). Individual claimants, meanwhile, seek to recover from the United States, Ingram, and/or IMS for their resulting property damage. (See, e.g., R.474, MESD Am. Claim). Ingram, on the other hand, seeks indemnity, cargo loss, and salvage expenses from the United States as a result of this incident. (See, e.g., R.165). The United States now moves to dismiss these claims and counterclaims, arguing that the Flood Control Act shields it from liability relating to its April 18, 2013 flood-control efforts. In the alternative, the United States argues that Lockmaster Rodriguez’s conduct in operating the dam gates was discretionary and policy-based and, therefore, the United States is immunized from tort liability pursuant to the discretionary function exception. The Court addresses each argument, in turn.

ANALYSIS

I. Immunity under the Flood Control Act

The Flood Control Act of 1928 provides, in part, that “[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any placet.]” See 33 U.S.C. § 702c. This provision bars recovery where the federal government “would otherwise be liable under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.” Cent. Green Co. v. United States, 531 U.S. 425, 428-29, 121 S.Ct. 1005, 148 L.Ed.2d 919 (2001) (quoting United States v. James, 478 U.S. 597, 599, 106 S.Ct. 3116, 92 L.Ed.2d 483 (1986)).

A. Applicable Legal Principles

In Central Green, the Supreme Court examined the meaning of the term “floods or flood waters,” in particular, “whether those words encompass all the water that flows through a federal facility that was designed and is operated, at least in part, for flood control purposes.” 531 U.S. at 427, 121 S.Ct. 1005. The Ninth Circuit in Central Green had held that immunity attached because the facility at issue — the Madera Canal — was part of the Central Valley Project, and flood control was one of the purposes served by that project. Id. at 431, 121 S.Ct. 1005. In so holding, the Ninth Circuit had looked to language from the Supreme Court’s decision in James-specifically, that “the terms ‘flood’ and ‘flood waters’ apply to all waters contained in or carried through a federal flood control project for purposes of or related to flood control[.]” See James, 478 U.S. at 605, 106 S.Ct. 3116. In Central Green, the Supreme Court disavowed this broad “related to” dictum from James, which had supported a judicial focus on “whether the damage relates in some, often tenuous, way to a flood control project, rather than whether it relates to floods or flood waters.” 531 U.S. at 430, 436-37, 121 S.Ct. 1005 (quotations omitted); see also Fryman v. United States, 901 F.2d 79, 81 (7th Cir.1990) (“James was so broadly written that it cannot be applied literally”). The Central Green Court reversed and remanded the Ninth Circuit decision, concluding that “courts should consider the character of the waters that cause the relevant damage rather than the relation between that damage and a flood control project.” 531 U.S. at 437, 121 S.Ct. 1005.

After Central Green, courts must consider “the character of the waters that cause the relevant damage and the purposes behind their release” in analyzing Section 702c immunity. Id. at 434, 121 S.Ct. 1005. The Fifth Circuit interpreted this Central Green holding in In re Katrina Canal Breaches Litigation, 696 F.3d 436 (5th Cir.2012). In particular, the Fifth Circuit characterized the immune “character” of the relevant waters as “the heart of the Section 702c inquiry.” Id. at 445-46 (“[A]fter Central Green, waters have the immune character of ‘flood waters’ if the government’s link to the waters is through flood-control activity. That is to say, the government’s acting upon waters for the purpose of flood control is flood-control activity, and flood-control activity is what gives waters an immune ‘character’ ”). The Fifth Circuit also examined the purpose of the wáter’s release. See id. at 444-45 (citing Graci v. United States, 456 F.2d 20, 26 (5th Cir.1971)). Other courts have shared this “purpose” focus—that is, “whether the water was released for a purpose related to flood control.” Judy Kroshus v. United States, No. 3:08-CV-0246-LDG-RAM, 2011 WL 4501121, at *6 (D.Nev. Sept. 26, 2011) (“The Central Green Court did not reject a nexus between immunity and a congressionally authorized purpose of flood control. Rather, it redirected the inquiry from whether a flood control project was flated. to the cause of the damage, to whether the damaging water was related to flood control”).

Ultimately, the Court must decide whether the United States was engaged in a “flood-control activity” resulting in damage by flood waters. See Central Green, 531 U.S. at 434, 121 S.Ct. 1005. The United States argues that the “waters of the Illinois River were undeniably at flood levels and the action of the Corps in changing the gates before, during, and after the transit were taken upon such flood waters.” (R.747-3, US Opening Br. at 39). The claimed damages, therefore, are “directly tied to the flood waters the Corps was attempting to pass through the dam.” (Id. at 32). Viewing the broader evidence in the light most favorable to the non-movants, however, the Court cannot draw this conclusion at the summary judgment stage. The Court addresses each of the arguments made by the non-movants and the United States, in turn.

B. Nature of the Marseilles Lock and Dam

Non-movants urge the Court to examine Section 702c immunity by reference to the nature of the Marseilles Lock and Dam project. In particular, they argue that flood immunity is not applicable here because the Marseilles Lock and Dam project is a navigation project, not a federal flood control project. Indeed, the record reflects—and the United States does not dispute—that the Marseilles Lock and Dam is a run-of-the-river facility, with no upriver flood storage capacity, no federally-authorized flood control purpose, and no potential to achieve flood-control benefits. (See R.802-1, Dep. Ex. 24 at USA-00043012 (The Marseilles Lock and Dam project was authorized, designed, constructed, and is regulated, to maintain navigation on the Illinois Waterway. The dam is operated to maintain a normal pool elevation ... in order to provide a nine-foot navigation channel”))-

The nature of the Marseilles Lock and Dam as a navigation project, however, is not dispositive on the immunity inquiry. Under Central Green, courts must “consider the character of the waters that cause the relevant damage rather than the relation between that damage and a flood control project.” 531 U.S. at 437, 121 S.Ct. 1005. Contrary to the United States’ suggestion, though, the Court does not read this language as precluding all consideration of the project’s navigational nature within the Court’s Section 702c analysis. In Central Green itself, the Supreme Court rejected the concept that all water flowing through the Central Valley Project was “flood water” simply “because flood control is among the purposes served by the project,” See 531 U.S. at 434, 121 S.Ct. 1005; see also California v. United States, 271 F.3d 1377, 1384-85 (Fed.Cir.2001) (interpreting Central Green and- recognizing that the government was not immune from suit “solely because the Madera Canal was part of the Central Valley Project, and therefore tenuously related to flood control” when “the true purpose of the facility that caused the damage was irrigation”).

The Court therefore looks to the authorized purpose of the Marseilles Lock and Dam as one aspect informing its Section 702c determination of the character of the waters that caused the damage at issue and the purpose behind their release. See Central Green, 531 U.S. at 434, 121 S.Ct. 1005. Indeed, as non-movants observe, other courts continue to confirm a nexus “between immunity and a congressionally authorized purpose of flood control.” Judy Kroshus, 2011 WL 4501121 at *6; see also In re Katrina, 696 F.3d at 444-45 (recognizing the principle that Section 702c immunity does not attach where the alleged flood water damage is “caused by the negligence of the United States unconnected with any flood control project”) (citing Grad, 456 F.2d at 26 (“the immunity from liability for floodwater damage arising in connection with flood control works was the condition upon which the government decided to- enter into the area of nationwide flood control programs”)).

C. Flood Control Efforts on the Illinois River

The United States, in turn, urges the Court to examine Section 702c immunity by reference to the general flood conditions on the Illinois River throughout April 17-18, 2013. As the record establishes, Northern Illinois had experienced heavy rainfall and the MWRD had reached maximum flood storage capacity at key ILWW facilities by early morning on April 18. The United States does not, however, specifically connect these upriver facilities to the Marseilles Lock and Dam with respect to the flood waters as they existed prior to the allision. Without more, neither the fact that the Marseilles Pool “receives” all waters drained from upriver of Dresden Island, nor that the Marseilles Lock and Dam is “on the ILWW,” establishes that Section 702c immunity attaches to its waters. See generally Central Green, 531 U.S. at 428, 121 S.Ct. 1005 (rejecting the concept that immunity attached “solely because [the Madera Canal] is a branch of the Central Valley Project”); see also Morton v. United States, No. CV 09-877-PHX-FJM, 2010 WL 3981129, at *1 (D.Ariz. Oct. 8, 2010) (“Simply because waters are in some way related to a flood control project is insufficient” to warrant immunity). Here, as in Katrina, the government has failed to demonstrate that the Marseilles Lock and Dam is “so interconnected” with the upriver flood control effort “as to make it part” of that effort. In re Katrina, 696 F.3d at 448 (analyzing claims related to the dredging of the Mississippi River Gulf Outlet (“MRGO”), a shipping channel). To the contrary, as noted above, the record reflects that the Marseilles Lock and Dam serves no flood control function.

The United States likens the Marseilles Lock and Dam, instead, to the “17th Street Canals” at issue in Katrina, which were a part of the Corps’ Lake Pontehartrain and Vicinity Hurricane Protection Plan' (“LPV”). In affirming immunity, the Fifth Circuit specifically recognized that these canals were “designed to prevent flooding either by creating drainage or by preventing storm surge with levees, and were fully incorporated [by Congress] in the LPV plan.” Id. at 448. None of these considerations — congressional approval and incorporation into a flood control plan, and/or specific designation as a flood prevention facility — apply to the Marseilles Lock and Dam. See Kibler v. United States, 46 F.Supp.3d 844, 860 (C.D.Ill.2014) (interpreting In re Katrina). The Court is not convinced, therefore, that the Corps’ activities on the Marseilles Lock and Dam entitle it to immunity as a matter of law based on a tenuous connection to a “greater flood control project.”

D. Character of the Damaging Waters

The record contains, however, some recreated hydrograph evidence indicating that the Marseilles Pool had reached “flood stage” status by the morning of April 18. (R.747-1, US Rule 56.1(a)(3) Stmt. Facts ¶¶ 62-66; R.747-6, US Ex. 54, Recreated Hydrograph). The. waters remained above “flood stage” until after the allision. (Id. ¶ 64). This demonstration favors the attachment of immunity. See Central Green, 531 U.S. at 436, 121 S.Ct. 1005 (“It is relatively easy to determine that a particular release of water that has reached flood stage is ‘flood water’ ” within the meaning of Section 702c) (analyzing James).

A “flood stage” label alone, however, does not trigger automatic immunity under Section 702c. Rather, as the Seventh Circuit instructs, there must be some causal nexus between these “flood waters,” the alleged governmental negligence, and the resulting damages. See Fryman, 901 F.2d at 81 (“If § 702c has limits, they have to do with causation”). In James, for example, the Supreme Court clarified that the Corps had released the “flood stage” reservoir waters as “part of the flood control function of the Millwood facility,” and that such release “created a swift, strong current toward the underwater discharge” which pulled the three respondents through the tainter gates. James, 478 U.S. at 599-600, 106 S.Ct. 8116 (emphasis added). The Court, thus, does not read Section 702c as shielding the government from all liability for acts causing damage by flood waters, where those acts are untied to a flood-control activity.

In Katrina, for example, the Fifth Circuit reasoned that the “the government’s acting upon waters for the purpose of flood control is flood-control activity, and flood-control activity is what gives waters an immune ‘character.’ ” Id. The Katrina court thus recognized immunity for any “flood-control activity engaged in by the government, even in the context of a project that was not primarily or substantially related to flood control.” Id. at 447. With respect to claims arising from the dredging of the MRGO, for example, the Fifth Circuit held that immunity did not apply because “the flood waters that destroyed the plaintiffs’ property were not released by any flood-control activity or negligence therein.” Id. at 448. Katrina thus instructs that a “flood waters” label, alone, does not confer Section 702c' immunity.

Here, as in Katrina, if the government was engaged in a “flood-control activity” at the Marseilles Lock and Dam at the time of the allision — even despite the facility’s undisputed nature as a federal navigation project — the government is immune from liability arising from the damaging waters. See id. at 447-48; Central Green, 531 U.S. at 434, 121 S.Ct. 1005 (Section 702c “directs us to determine the scope of the immunity conferred, not by the character of the federal project or the purposes it serves, but by the character of the waters that cause the relevant damage and the purposes behind their release”). As the United States’ own authorities make clear, however, a governmental “flood control function” — and the nexus of that function to the waters and to the injury — is critical to the Section 702c inquiry. See Kibler, 46 F.Supp.3d at 863.

E. Purpose of the Water’s Release

The Court must thus decide whether the Corps was engaged in a “flood-control activity” at the time of the allision — that is, whether the Corps was “acting upon [the] waters for the purpose of flood control[.]” In re Katrina, 696 F.3d at 446. After reviewing the record, material factual disputes exist with respect to this issue, precluding the Court from granting summary judgment based on Section 702c immunity in favor of the United States. See Scott, 550 U.S. at 380, 127 S.Ct. 1769.

The United States argues that the “now-criticized actions of the Corps were taken to facilitate the passage of flood waters and to mitigate the risk of flood damage.” (R.747-3, US Opening Br. at 38). In particular, the United States points to record evidence indicating that: (1) during flood periods, the lockmaster is responsible for implementing “actions to negate or reduce [the] impact on the facility, adjacent area, and communities;” (2) the Marseilles lock-house increasingly opened the dam gates throughout April 17 and 18 in response to rising water levels; (3) near the start of the transit, the closing of the dam gates caused the water level to rise; (4) during the transit, Griffin observed the rising waters and discussed a potential flooding concern with Captain Ice; (5) Rodriguez raised the dam gates on account'of the call from Griffin; (6) the raising of the dam gates during the transit caused the water level to fall;. (7) the allision resulted in one inoperable dam gate, and four sunken barges upriver of the dam; and (8) by April 19, the river waters overtopped the earthen dike and flowed into Marseilles.

Non-movants disagree with the characterization of these activities as “flood control” activities. Rather, non-movants contend that the Corps undertook the complained-of actions in order to facilitate navigation generally and, in particular, to facilitate the passage of the Dale Heller tow into the Canal. In particular, non-movants point to record evidence indicating that: (1) the.lockmaster exercises “full regulatory authority in controlling river traffic through the facility;” (2) the Marseilles Lock and Dam is a navigational project, operated to maintain a normal pool elevation of 483.25 in order to provide a navigation channel; (3) throughout April 17 and 18, Lockmaster Rodriguez “manipulate^] the gates so that the pool was at 483.00” (R.648, Rodriguez Dep. Tr. at 229-32); (4) on the afternoon of April 18, the IRCA participants devised a plan whereby the Corps would lower the dam gates to facilitate the transit of the Dale Heller and its tow into the Canal; (5) Rodriguez closed the dam gates in response to Ingram’s navigational concern for outdraft conditions; (6) Captain lee did not share any flooding concern with Griffin during the transit; and (7) Rodriguez raised the gates per Griffin’s instruction, not because Griffin mentioned flooding or because Rodriguez, himself, observed any flooding.

Ultimately — when viewing the record in the light most favorable to the non-mov-ants — an issue of fact exists with respect to whether the Corps “acted upon” the Marseilles waters for the purpose of flood control. The Court recognizes that, in this particular case, navigation and flood control are not “wholly unrelated” activities, especially with respect to the mid-transit gate-raising issue. See In re Katrina, 696 F.3d at 447 (holding that “a negligent government activity ... wholly unrelated to flood control [and which] causes a flood” does not merit Section 702c immunity). As the Court previously recognized, conflicting evidence exists “on who made — or who should have made — the ultimate decision on whether, why, and when to raise the Dam gates during the transit.” (R.744, Opinion at 15) (emphasis added). Ultimately, the Court agrees with IMS that Lock-master Rodriguez’s “actions, observations, and understandings” are uniquely relevant to whether he raised the dam gates — ■ “act[ing] upon the waters” — for flood control purposes. His deposition testimony indicates that he did not. (R.648, Rodriguez Dep. Tr. at 247, 263, 274, 281, 255, 280-81).

According' to Rodriguez, the Corps agreed to provide assist vessels and to lower the dam gates in order “to assist the Dale Heller[.]”- (Id. at 329). He later testified that “other than that boat coming in, my priority — my top' priority, was not flooding Marseilles.” (Id. at 333). Even construing flood prevention as a “top priority,” however, the fact remains that — in his mid-transit gate operations — Rodriguez “wasn’t concerned about Marseilles flooding ... It never got to that level.” (Id. at 280:6-281:2). Material factual disputes surrounding the gate-raising issue preclude the Court from granting summary judgment in favor of the United States based on Section 702c immunity. The Court cannot say, as a matter of law, that the damaging floodwaters were released “on account of flood-control activity or negligence therein,” as opposed to a failed navigation operation or negligence therein. See In re Katrina, 696 F.3d at 444.

The United States’ cited authorities are distinguishable. In Bierer-Carter v. United States, for example, the plaintiff “fail[ed] to provide any other explanation as to why the gate lifts were opened,” aside from flood control purposes. 806 F.Supp.2d 1245, 1252-53 (S.D.Fla.2011). Here, non-movants specifically contest the United States’ evidence and point to an additional explanation for the gate movements: facilitating navigation. The Court likewise finds unavailing'the United States’ reliance on AO. Smith Corporation v. United States. In AO. Smith, although the federal dam at issue was not a “flood control project,” other factors — including the use of a “surcharge pool” to reservoir flood waters, and the prioritization of flood control over “all other operating objectives” - during flood periods — led the court to find that the Corps had engaged in “flood control activity involving flood waters.” A.O. Smith Corp. v. United States, No. 3:12-0429, 2013 WL 771919, at *3 (M.D.Tenn. Feb. 28, 2013), aff'd, 774 F.3d 359 (6th Cir.2014). By contrast, here, the Marseilles Lock and Dam does not have any flood storage capacity, the relevant manuals do not prioritize flood control over navigation (or any other objective), and — perhaps most importantly — the claims against the United States do not allege negligence in responding to heavy rains on the Illinois River, or in operating the dam for a flood control purpose. Contra id, at *3-4 (The conduct challenged in this case is the Defendant’s operation of Old Hickory Dam in the days leading up to and during the May 2010 floods[,]” including the government’s failure to implement its own “ ‘Flood Regulation’ instructions”). Given these distinctions, AO. Smith is not instructive on the application of Section 702c immunity here.

Based on the foregoing- analysis, the Court finds that the United States is not entitled to Section 702c immunity under Central Green as a matter of law.

II. Immunity under the Discretionary Function Exception

The United States also moves for immunity under the discretionary, function exception. This doctrine shields the United States from tort- liability with respect to “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a); see also United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). “The discretionary function exception is an exception to the waiver of sovereign immunity granted in the Federal Tort Claims Act, 28 U.S.C. § 2680. Though not a part of the [Suits in Admiralty Act], the discretionary function exception is impliedly contained in that waiver of sovereign immunity as well.” Cassens v. St. Louis River Cruise Lines, Inc., 44 F.3d 508, 510-11 (7th Cir. 1995). The United States now seeks dismissal of any claims based on Lockmaster Rodriguez’s operation of the dam gates during the attempted Canal transit, After reviewing applicable legal principles and the record evidence, the Court finds that Rodriguez’s conduct — even if negligent— was discretionary and policy-based, and, therefore, subject to immunity from tort liability.

A. Applicable Legal Principles

1. Waiver of the Affirmative Defense

The discretionary function exception is an affirmative defense to liability that the government must plead and prove. Keller v. United States, 771 F.3d 1021, 1023 (7th Cir.2014). “To support summary judgment under the exception, the government must offer evidence that shows beyond reasonable dispute that its conduct was shielded by the exception.” Id.

As an initial matter, Ingram argues that the government has waived this defense by failing to raise it in an answer or other pleading, citing Stewart v. United States, 199 F.2d 517 (7th Cir.1952). In Stewart, the Seventh Circuit rejected as untimely the government’s attempt to invoke this defense after reaching a liability judgment in the action. In response, the United States observes that it pled affirmative defenses of lack of waiver of sovereign immunity and lack of subject matter jurisdiction in numerous answers, and has filed the present pre-trial motion relating to one doctrine under those umbrellas. This posture and timing, the United States argues, distinguishes this case from Stewart.

The Court need not decide whether the United States erred in failing to plead the discretionary function exception as a specific affirmative defense under the doctrine of sovereign immunity. The Court permits the affirmative defense here, where Ingram has failed to demonstrate that it has been prejudiced by the government’s timing in asserting this defense and where extensive discovery has occurred on the issue. See Glob. Tech. & Trading, Inc. v. Tech Mahindra Ltd., 789 F.3d 730, 732-33 (7th Cir.2015) (district courts may “authorize a litigant to assert an affirmative defense despite its omission from the answer” where there is no “reduction in the plaintiffs ability to meet the defense on the merits”); Carter v. United States, 333 F.3d 791, 796 (7th Cir.2003) (“The failure to plead an affirmative defense in the answer works a forfeiture only if the plaintiff is harmed by the defendant’s delay in asserting it”).

Ingram asks the Court to ■ “assume” harm because fact discovery has already closed. (R.800, Ingram Response Br. at 20, citing Bd. of Trustees of Plumbers’ Local Union No. 93 U.A. v. Encotech Const. Servs., Inc., No. 07 C 1901, 2010 WL 1994472, at *4 (N.D.Ill. May 14, 2010)). Unlike in Encotech, however, the discovery conducted in this action covered the scope and nature of the Corps’ authority and discretion in operating the dam gates on April 18, 2013. Contra 2010 WL 1994472 at ⅜4 (“To allow Defendants to raise this contractual defense now, after discovery has closed, would deprive Plaintiffs of the opportunity to conduct discovery as to consideration issue”). Indeed, Ingram’s 2014 discovery requests demanded the production of documents “that describe the authority and duties of the Lockmaster at Marseilles Lock & Dam on April 18, 2013.” (R.821-1, Ex. 1, US Response to Ingram RFP at ¶7). In response, the United States produced relevant Corps manuals and documents. (Id.). In addition, Ingram deposed several government witnesses about the existence and scope of Rodriguez’s discretion, including Rodriguez himself, Griffin, and their respective supervisors. Ingram’s brief recites this evidence in opposing the United States’ motion for immunity based on the discretionary function exception. IMS and the Claimants similarly recite this evidence.

Given the discovery conducted with respect to the scope and nature of Lockmas-ter Rodriguez’s authority and discretion— and Ingram’s failure to substantiate its naked prejudice claim — the Court permits the affirmative defense. See Williams v. Lampe, 399 F.3d 867, 871 (7th Cir.2005) (a party “cannot establish prejudice merely by showing that the case has progressed significantly since the defendants answered his complaint”).

2. The Gaubert Two-Part Test

The Supreme Court has set forth a two-part test to determine whether challenged governmental conduct falls within the purview of the discretionary function exception.

First, the exception “covers only acts that are discretionary in nature, acts that involve an element of judgment or choice[J” Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (citing Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). “The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive.” (Id.) (quotations omitted). On the other hand, “if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.” Id. at 324, 111 S.Ct. 1267.

Second, even if the challenged conduct involves an element of judgment or choice, courts must inquire “whether that judgment is of the kind that the discretionary function exception was designed to shield.” Id. at 322-23, 111 S.Ct. 1267. Because the exception’s purpose is to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,” the exception “protects only governmental actions and decisions based on considerations of public policy.” Id. (citations and quotations omitted). “When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion,” however, “it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Id. at 324, 111 S.Ct. 1267.

B. The Gaubert Analysis

1. The Challenged Conduct Was Discretionary in Nature

The Court first inquires “whether the challenged actions were discretionary, or whether they were instead controlled by mandatory statutes or regulations,” Gaubert, 499 U.S. at 328, 111 S.Ct. 1267, and examines each proffered source of applicable policy.

First, a federal statute vests in the Secretary of the Army the duty “to prescribe such regulations for the use, administration, and navigation of the navigable waters of the United States as in his judgment the public necessity may require for the protection of life and property, or of operations of the United States in channel improvement[.]” See 33 U.S.C. § 1. As the Supreme Court noted in Gaubert, “it ■will most often be true that the general aims and policies of the controlling statute will be evident from its text.” 499 U.S. at 324, 111 S.Ct. 1267. Here, the statute affords discretion to the Secretary of the Army to determine which regulations to prescribe in implementing its dual aims. See 33 U.S.C. § 1 (“as in his judgment the public necessity may require”).

Second, the relevant regulation promulgated pursuant to 33 U.S.C. § 1 provides:

(a) Authority of lockmasters—

(1) Locks staffed with Government personnel. The provisions of this paragraph apply to all waterways in this section except for Cordell Hull Lock located at Mile 313.5 on the Cumberland River in Tennessee. The lockmas-ter shall be charged with the immediate control and management of the lock, and of the area set aside as the lock area, including the lock approach channels. He/she shall see that all laws, rules, and regulations for the use of the lock and lock area are duly complied with, to which end he/she is authorized to give all necessary orders and directions in accordance therewith, both to employees of the government and to any and every person within the limits of the lock and lock area, whether navigating the lock or not. No one shall cause any movement of any vessel, boat, or other floating thing in the lock or approaches except by or under the direction of the lock-master or his/her assistants. In the event of an emergency, the lockmaster may depart from these regulations as he deems necessary. The lockmasters shall also be charged with the control and management of federally constructed mooring facilities.

33 C.F.R. § 207.300(a)(1). Ingram reads this provision as setting forth mandatory duties on the part of the lockmaster— specifically, a non-discretionary duty to communicate “clearly and accurately” about dam conditions. Some courts have read this text — charging the lockmaster with control and management of the lock and lock area — as imposing an affirmative duty “to advise river pilots accurately and completely of conditions at a lock” and requiring such pilots “to defer to the orders and directions of the lockman.” Complaint of Walker’s Midstream Fuel & Serv. Co., 636 F.Supp. 339, 350 (W.D.Ky.1986). Even assuming that courts may imply lockmaster duties under this provision, the text of 33 C.F.R. § 207.300(a)(1) does not, itself, prescribe a specific course of conduct as contemplated under step one of Gaubert. See 499 U.S. at 322, 111 S.Ct. 1267 (“The requirement of judgment or choice is not satisfied if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow”) (citation omitted); see also Freeman v. United States, 556 F.3d 326, 339 (5th Cir.2009) (“We conclude that these (and similar) responsibilities were so general that they too fail to prescribe a nondiscre-tionary course of action”); Rosebush v. United States, 119 F.3d 438, 442 (6th Cir.1997) (“The relevant inquiry is whether the controlling statutes, regulations and administrative policies mandated that the Forest Service maintain its campsites and fire pits in any specific manner”); cf. Ochran v. United States, 117 F.3d 495, 500 (11th Cir.1997) (“the use of the word ‘shall’ in describing the responsibilities of the AUSA does not necessarily mean that the Guidelines left no room for the AUSA to exercise judgment or choice”). In fact, the regulation makes clear that the lockmaster “may depart” from the regulations of § 207.300 “as he deems necessary” in “the event of an emergency.” See 33 C.F.R. § 207.300(a)(1). This regulation does not mandate a specific action by Lockmaster Rodriguez in operating the dam gates. Non-movants fail to identify any other federal regulation — or specific provision of § 207.300 — applicable to the Court’s analysis.

Third, Claimants point to a specific provision of the Marseilles Water Control Manual permitting “unplanned minor deviations from the normal regulation of the pool, although they are not considered emergencies.” (R. 747-4, Dep. Ex. 24 at USA-00043016). According to Claimants, Rodriguez’s supervisors — Hess and Zerbo-nia — approved one such minor deviation (lowering the gates for the transit). Instead of following “the specific, mand