Jones Creek Investors, LLC v. Columbia County (98 F. Supp. 3d 1279, 2015)

ORDER

LISA GODBEY WOOD, Chief Judge.

Plaintiff Jones Creek Investors alleges that activities occurring upstream from its pond, Willow Lake, have inundated Willow Lake with sediment, which in turn causes the golf course it operates to become flooded with murky water every time it rains. While Jones Creek Investors initially brought suit against a drove of Defendants, only two remain: Defendants Columbia County, Georgia, and CSX Transportation, Inc. Plaintiff alleges that these two Defendants’ upstream activities have caused significant damages to its property and business, and seeks relief under the Clean Water Act and certain state law claims. Plaintiff also alleges that Defendant Columbia County’s lax enforcement of its municipal discharge permitting system contributed to its damages. Plaintiff Savannah Riverkeeper, who alleges that the damages extend beyond Willow Lake and into the Savannah River downstream, joins Plaintiff Jones Creek Investors in the latter CWA claim against Columbia County.

Both remaining Defendants have filed Motions for Summary Judgment, and these motions are ripe for adjudication. Dkt. no. 412 (Columbia County); Dkt. no. 415 (CSXT). Additionally, Plaintiff Jones Creek Investors has filed Rule 72(a) Objections to the Magistrate Judge’s October 29, 2014 Order granting in part Defendants’ request to exclude new expert testimony proffered by Plaintiffs- in the midst of summary judgment briefing and after the close of discovery. Dkt. no. 468.

For the reasons stated below, Plaintiff’s Rule 72(a) Objections are OVERRULED. Defendant CSXT’s Motion for Summary Judgment (Dkt. no. 415) is GRANTED in its entirety. Defendant Columbia County’s Motion for Summary Judgment (Dkt. no. 412) is GRANTED as to the Clean Water Act claims (Counts 1-3), and the Court directs Plaintiff JCI and Defendant Columbia County to file supplemental briefing in regards to Counts 10, 11, and 13 against Columbia County.

FACTUAL BACKGROUND

In Columbia County, Georgia, a small tributary begins at former Defendant Marshall Square’s Planned Unit Development property. This tributary, “SI,” flows approximately 1.7 miles southeast through private property and a culvert beneath Defendant CSXT’s rail line. About 300 feet upstream from Plaintiff JCI’s pond, known as Willow Lake, SI merges with Jones Creek (“S2”). The combined channel (“S3”) flows a bit further before meeting with another tributary, “S4.” S4 then flows into Willow Lake, which was formed in 1985 by damming and impounding Jones Creek downstream from its confluence with SI and S4. Dkt. no. 412-21 (“Robertson Report”), pp. 4-5. When released from the Willow Lake Dam, Jones Creek wends another 1.3 miles before joining the Savannah River.

Plaintiffs Savannah Riverkeeper and Jones Creek Investors

Plaintiff Savannah Riverkeeper is a membership organization that advocates for the water quality of the Savannah River. Bonitatibus Dep. M^l-ISTS. Many of its members fish and boat on the Savannah River. See, e.g., Dkt. no. 434-19 (“Sancken Aff.”), ¶ 4. The Riverkeeper entered this case solely to bring Clean Water Act claims against Defendant Columbia County, whose alleged failure to police its MS4 system, the Riverkeeper argues, has negatively impacted its members’ use and enjoyment of the Savannah River. See Dkt. no. 434-21 (“Bonitatibus Aff.”), ¶ 12.

Plaintiff Jones Creek Investors, LLC (“JCI”) owns and operates the Jones Creek Golf Course. Willow Lake, which is approximately 6.3 acres at full pool, is both an aesthetic feature and a water hazard for the Golf Course. Willow Lake is also the primary water supply for the Golf Course’s irrigation. Dkt. no. 434-3 (“Kimsey Report”), p. 2.

JCI purchased the Golf Course in 2008. A short time later, JCI began to notice increased storm water flows and deposits of sediment into Willow Lake. Dkt. no. 434-23 (“Mundy Aff.”), ¶ 5. In fall of 2009, JCI also noticed that “even minor rain-events were resulting in significant impacts on Willow Lake and the Golf Course, including flooding of parts of the Golf Course.” Id. Since 2010, even an average rainfall of one inch or more will cause flooding on holes 11 and 13 at the Golf Course. When the flooding subsides, mud, dirt, and sediment remain on the greens and the golf cart paths. Dkt. no. 434-55 (“Hemann Aff.”), ¶ 12. JCI usually must close the “back nine” holes for a few days after a flood to let the mud dry so it may be cleaned off the course. Id. Obviously, this sediment-laden flooding makes the Golf Course unappealing for many of JCI’s potential customers. Id. SI 13.

Part of the problem, JCI believes, is that Willow Lake has become so inundated with sediment over the years that its storage capacity is significantly diminished. See Dkt. no. 434-83 (“Robertson Dep.”), 134:3-9. While the development of the Jones Creek subdivision surrounding the Golf Course from 19862002 admittedly caused heavy sedimentation to accumulate in Willow Lake, JCI claims that those developers responsible for the sediment covered some or all of the costs of having Willow Lake dredged in 1996 and 2003. Since then, JCI alleges that Willow Lake has re-filled with sediment, and one of its experts estimates that 23,484 cubic yards of sediment had been deposited in Willow Lake as of April, 2010. Dkt. no. 415-14 (“Pruitt Report”), p. 14. Additionally, Willow Lake’s reduced capacity requires JCI to rely on it less for irrigation during its peak irrigation needs in the summer. Dkt. no. 434-16 (“Mundy Dep.”), 82:12-84:22. This rationing can impact the health of the Golf Course’s grass. Id.

Facts Concerning Columbia County

Plaintiffs bring two theories of liability against Columbia County for its alleged contribution to the sedimentation. First, Plaintiffs allege that Columbia County, which was in charge of policing and enforcing the County’s “MS4” discharge permitting system, effectively failed at that task in violation of the CWA (Count I, Compl. ¶¶ 195-230). The MS4 permitting system lies at the end of a regulatory labyrinth and is discussed in more detail below. Second, Plaintiff JCI alleges that Columbia County owned a parcel of land that contributed to downstream sedimentation, and is thus responsible for not adequately preventing that parcel from discharging sediment and other pollutants into Willow Lake and Jones Creek’s tributaries and other waters. (Counts II and III, Compl. ¶¶ 231-14; 245-58).

The land in question is a 26 acre tract (the “County Property”) that Columbia County obtained in July 2010 from the former Marshall Square Defendants in a zoning dispute settlement. Plaintiffs’ expert Dr. Pruitt affied that the County Property has virtually no vegetation to help prevent runoff, and that drainage patterns on the property in fact carry surface water runoff from the exposed soil areas into SI. Dkt. no. 434-4 (“Pruitt Aff.”), ¶ 4. Additionally, the County Property lacks the appropriate Best Management Practices, or BMPs, to help prevent sediment discharges. Columbia County’s own inspector admitted that he would have reported this failure on an inspection report. Dkt. no. 434-64 (“Eastman Dep.”), 113:1-9.

Facts Concerning the CSX Crossing

CSXT maintains a rail line that crosses over SI. The rail line sits on an embankment, and SI flows through a culvert built into the embankment.

This culvert used to be made of brick. In May 2009, a Columbia County employee observed that the downstream side of the brick culvert at the CSX crossing had failed and informed CSXT of the condition. Dkt. no. 434-57 (“Palmer Dep.”), 41:21-25; 43:2-3. When CSXT’s inspector investigated the culvert, he noticed that the wooden floor in the culvert had rotted away, causing the downstream outlet to settle and the embankment to slough away. Dkt. no. 434-69 (“Granger Dep.”), 20:21-24. Also, the roof of the culvert had collapsed, causing riprap to fall into the culvert. Id. 64:12-16.

To fix the culvert, CSXT obtained a “Nationwide permit” from the Army Corps of Engineers for the repair work. Dkt. no. 434-78 (“Adkins 30(b)(6) Dep.”), 14:2-6. CSXT replaced the failed culvert with two tubular culverts 72 inches in diameter. Id. 41:18-21. Plaintiffs’ experts allege that the selection and installation of these culverts caused SI to gain too much velocity downstream of the crossing, in turn causing heavy flooding and embankment erosion that contributed to the sedimentation of SI and its downstream waterways. See Dkt. no. 434-11 (“Supplemental Pruitt Report”). Additionally, the replacement project itself resulted in significant sediment discharges into SI.

During construction, CSXT issued a “slow order” that required trains passing over the embankment to slow down from the maximum allowable speed of 35 mph to either 10 or 25 mph. While the slow order slowed down the rail traffic, it did not interrupt it completely. Dkt. no. 434-75 (“Harmon Dep.”), 25:20-25.

DISCUSSION

I. A Preliminary Matter: Plaintiffs Rule 72(a) Objections to the Magistrate Judge’s October 29, 2014 Order

Plaintiff JCI has objected to the Magistrate Judge’s October 29, 2014 Order (Dkt. no. 467) excluding certain evidence and testimonies. Dkt. no. 468. Particularly, Plaintiff objects to the Magistrate Judge’s exclusion of Ray Mundy’s testimony as it relates to damages, Andy Hinds’s supplemental impact analysis, and Dr. Pruitt’s updated sediment measurements in Willow Lake. An understanding of the reasoning and impact of the Magistrate Judge’s October 29, 2014 Order will require a brief review of the relevant procedural background.

a. Prior Orders and the Parties’ Responses

The Magistrate Judge issued an omnibus Order addressing several Daubert and related motions in limine on December 23, 2013. Dkt. no. 365. Relevant to the present motion, that Order excluded as unreliable all opinions by Dan Troutman, an expert in environmental remediation, whom Plaintiffs sought to call to provide testimony regarding the scope of work and related costs of remediating the streams and golf course, dredging Willow Lake, and repairing the sediment-clogged irrigation system. Id. at - 38-50. Because Trout-man’s cost estimates were the foundation of Plaintiff JCI’s damages ease, the Magistrate Judge noted the resulting “Troutman gap” in the impact analysis and directed the parties to “proceed forthwith to the summary judgment stage and address the timing and method of revising the analysis after the presiding District Judge decides the larger issues of whether the analysis is relevant and whether it improperly assumes a lengthier damages period than ante-litem law allows.” Id. at 5354. This Court, in a second Daubert Order affirming the Magistrate Judge’s decisions, agreed with that approach and explained that, if the Court deemed the analysis relevant, “the Court will at least allow Plaintiffs to make easy modifications to the analysis that require, for example, the mere changing of sources for historical cost information from Mr. Troutman to the lay witness that was Mr. Troutman’s source. Plaintiffs may proceed now with preparing a revised analysis, as requested.” Dkt. no. 395, p. 3.

Two weeks after this Court issued the second Daubert Order, JCI supplemented its interrogatory responses by increasing the amounts claimed in multiple categories of damages. Inter. Resp. to County, Dkt. no. 420-1, p. 6. Relatedly, JCI later disclosed more than a dozen new witnesses and vendors whose testimony would support JCI’s damages clai.m, Suppl. Init. Discs., Dkt. no. 420-2, p. 1; Inter. Resp. to CSXT, Dkt. no. 420-3, p. 1, and also produced new damages documents that included new remediation and repair estimates, JCI Disc. Letter, Dkt. no. 420-4; Chadworks Est„ Dkt. no. 420-5; Scott Est., Doc. no. 420-6.

Defendants moved to exclude the opinions of these newly identified witnesses in June 2014. Dkt. nos. 420, 422. Shortly thereafter, JCI served on Defense counsel a revised impact analysis by Andrew Hinds that incorporated some of the new cost estimates discussed above, along with a new estimate for dredging Willow Lake. Rev. Impact Analysis, Dkt. no. 425-1. JCI did not provide Defense counsel with any expert disclosures for the new experts in compliance with Rule 26(a)(2)(B). Instead, JCI has designated Ray Mundy, President of Jones Creek Golf Club, to testify as a surrogate regarding the cost estimates prepared by these new experts and as the source of some of the information found in Hinds’s revised impact analysis. JCI claims that this designation shields the new experts from classification as expert witnesses. JCI also claims this practice is permissible under the business manager comments to Federal Rule of Eiddence 701, but Defendants moved to have Mundy’s testimony excluded.

Meanwhile, on May 30, 2014, Columbia County moved for summary judgment and argued with respect to the inverse condemnation and takings claims that JCI cannot prove a nuisance rising to the level of a taking of property because Dr. Pruitt only measured sediment in Willow Lake once in 2010. Dkt. no. 413, pp. 41-42. Without additional measurements, Columbia County argued, “one would have to speculate as to whether that volume has changed or guess at the amount of any such hypothetical change.” Id. at 42.

However, exactly one month after Defendants pointed out this potential evidentiary gap in Plaintiffs’ inverse condemnation and takings claims, Dr. Pruitt returned to the golf course and remeasured the volume of sediment in Willow Lake. See Pruitt Aff., Dkt. no. 429-10. Dr. Pruitt issued a report detailing his new measurements, Dkt. no. 429-19 (“July 2014 Pruitt Report”), which Plaintiffs submitted in opposition to Defendants’ summary judgment motions. Defendants sought to have this new report excluded as well.

b. The Magistrate Judge’s October 29, 2014 Order

Thus, in light of the prior Daubert Orders and Parties’ subsequent filings, there were several new evidentiary issues for the Magistrate Judge to consider in his October Order. Among those were Mundy’s fitness to proffer aggregated expert testimony as a lay witness under the auspices of Federal Rule of Evidence 701, the admissibility of Hinds’s revised impact analysis, and the admissibility of Dr. Pruitt’s second measurement of the sediment in Willow Lake. The Magistrate Judge granted Defendants’ challenges to all three admissions.

First, the Magistrate Judge concluded that Plaintiff JCI’s attempt to aggregate previously undisclosed expert testimony into one lay witness, Mundy, under Rule 701 was improper. The Magistrate Judge noted that the strategy “ignores the undisputed fact that Mr. Mundy did not prepare these estimates and relies entirely upon others for their calculation,” including several of the contractors who provided estimates for remediation, repairs, and dredging Willow Lake. MJ Order 12. “Mr. Mundy parrots these estimates for the first time in an affidavit dated July 11, 2014. He never bothers to explain how the estimates were calculated or mention the people who actually calculated them based on their personal expertise and knowledge.” Id. The Magistrate Judge did not accept JCI’s arguments that JCI happened to contract with these experts for purely operational reasons “in the ordinary course of business, to prepare opinions of the same ilk just scrutinized and declared unreliable by the Court in the [prior] Daubert Orders. Based on the timing and substance of these new estimates, the Court [found] that JCI hired these vendors to replace the unreliable estimates in furtherance of this litigation rather than in the ordinary course of business.” Id. The Magistrate Judge additionally concluded that the new estimates were based on specialized knowledge within the scope of Rule 702 to which Mundy could not testify, that designating Mundy to present these opinions inappropriately sidesteps the requirements for post-discovery presentation of evidence under Federal Rule of Civil Procedure 26(e), and that Mundy could not present the aggregated expert testimonies under Federal Rule of Evidence 701 via the business managers doctrine discussed in the advisory committee notes to Rule 701. Id. at 13-15.

Second, the Magistrate Judge concluded that Hinds’s revised impact analysis did not simply remedy the “Troutman gap” by substituting sources of historic cost information, as the Court contemplated in the second Daubert Order, but was rather a wholesale reconstruction of JCI’s damages case. The Magistrate Judge rejected JCI’s argument that the revised impact analysis was actually a required supplementation under Rule 26(e), which allows for supplementation of expert reports only when necessary to correct material errors or omissions caused by inadvertence or the receipt of new information. Id. at 4-12; Fed.R.Civ.P. 26(e).

And finally, the Magistrate judge excluded Dr. Pruitt’s second measurement of sediment in Willow Lake. The Magistrate Judge reasoned that despite JCI’s argument that, yet again, this supplementation was required under Rule 26(e) because the sedimentation of Willow Lake was “ongoing,” there was nothing preventing Dr. Pruitt from taking the second measurement earlier during discovery (and, notably, before Defendants pointed out its absence in their motion for summary judgment). Furthermore, the Magistrate Judge found that exclusion of the second measurement was required under Rule 37(c)(1), which requires evidence to be excluded if it is not properly provided pursuant to Rule 26(a) or (e) unless the failure to provide the information “was substantially justified or harmless.”

Plaintiff has objected to all three of these conclusions. Dkt. no. 468. Both Defendants have responded, Dkt. no. 472 (Columbia Count); Dkt. no. 474 (CSXT), to which JCI has replied, Dkt. no. 476.

c. Standard of Review

When a magistrate judge rules on a nondispositive pretrial discovery matter, parties may object to that ruling and seek review from the presiding district judge under Federal Rule of Civil Procedure 72(a). See Fed.R.Civ.P. 72(a). In reviewing the magistrate judge’s order, the district judge must “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Id. The clearly erroneous or contrary to law standard “is exceedingly deferential.” Jackson v. Deen, CV 412-139, 2013 WL 3991793, at *2 (S.D.Ga. Aug. 2, 2013) (citing Pigott v. Sanibel Dev., LLC, CV 07-0083-WS-C, 2008 WL 2937804, at *5 (S.D.Ala. July 23, 2008)). “A ruling is clearly erroneous where either the magistrate judge abused his discretion or the district court, after reviewing the entirety of the record, is left with a definite and firm conviction that a mistake has been made.” Id. (citations omitted). “A decision by the magistrate judge is contrary to law where it either fails to follow or misapplies the applicable law.” Id. (citations omitted),

d. Plaintiffs Objections

i. Mundy’s Testimony Under Rule 701

The central issue raised by JCI’s objection to the Magistrate Judge’s conclusion that Mundy cannot offer certain damages testimony as a lay witness concerns the differences between Rules 701 and 702. Under Rule 701, a non-expert lay witness may offer an opinion that is “(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R.Evid. 701. Under Rule 702, a qualified expert may offer expert testimony that is based on scientific, technical, or specialized knowledge under certain circumstances. Fed.R.Evid. 702. However, a Rule 702 expert must be disclosed during discovery in accordance with Federal Rule of Civil Procedure 26(a)(2). Here, JCI did not disclose Mundy or any of the contractors who provided the cost estimates to repair damages to the golf course as experts. However, JCI seeks to tender Mundy’s testimony regarding these estimates as a Rule 701 witness because, as the advisory committee’s comments to Rule 701’s 2000 amendments note,

most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business.

Fed.R.Evid. 701 advisory committee’s note (2000 Amendments) (citations omitted).

JCI objects to the Magistrate Judge’s conclusion that Mundy cannot offer testimony under Rule 701 regarding the remediation damages, and argues that this conclusion is contrary to law. The thrust of JCI’s argument is that Mundy, as the golf course’s general manager, has personal knowledge of and has participated in the courses’ day-to-day business affairs, including the solicitation, formation, and receipt of the estimates in question. Thus, JCI argues, Mundy may testify under Rule 701 (as opposed to Rule 702) regarding the negative impacts the golf course has suffered and the cost estimates to fix these problems. Interestingly, JCI makes the convenient argument that Mundy is qualified under Rule 701 to testify as to the cost estimates themselves, but that he is not qualified (and will not offer) any testimony regarding what exactly the cost estimates contemplate in terms of what needs to be done to fix the damage to the golf course. Dkt. no. 468, p. 12. Indeed, JCI admits that “there are certain types of solutions that require an expert to explain what the solution is [and] how it works.” Id.

To support this argument, JCI relies in part on the Eleventh Circuit’s decision in Tampa Bay Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 32Q F.3d 1213 (11th Cir.2003). In Tampa Bay, the court affirmed a trial court’s conclusion that three officers of a shipbuilding company were competent to testify under Rule 701 as to the reasonableness of an amount billed to a customer for ship repairs. Id. at 1223. The court reasoned that the officers could testify that the billed amounts were reasonable because they directly participated in the repair project, prepared the original estimate for the work, and determined the final amount to bill themselves. Id.

Tampa Bay is clearly distinguishable from the present case — Mundy is not testifying regarding the reasonableness of an estimate that he himself produced based on his own personal knowledge and experience. Instead, he seeks to proffer as reasonable the estimates that third-party (and undisclosed) experts produced based on their own “scientific, technical, or other specialized knowledge.” See Fed.R.Evid. 702(a). The Magistrate Judge drew attention to Tampa Bay’s statement that subsection (e) of Rule 701, which prevents a lay witness from offering an opinion “based on scientific, technical, or other specialized knowledge within the scope of Rule 702” “was an attempt to ‘eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing.’ ” Tampa Bay, 320 F.3d at 1222 (quoting Fed. R.Evid. 701 advisory committee’s note (2000 Amendments)).

The Magistrate Judge correctly concluded that the cost estimates and damages testimony JCI seeks to proffer through Mundy as a lay witness is actually expert testimony only admissible through Rule 702 because that testimony is not based on Mundy’s day-to-day activities as general manager of the golf course. Rather, this particular damages testimony is based on the specialized knowledge of the various experts who generated the costs estimates. JCI did not disclose Mundy or any of these contractors as expert witnesses under Federal Rule of Civil Procedure 26(a)(2), and cannot now evade those requirements by aggregating various experts’ testimonies under one professed lay witness.

ii. Revised Impact Analysis

The Magistrate Judge concluded that Hinds’s Revised Impact Analysis must be excluded for at least three reasons: First, the Court’s prior Daubert Orders merely authorized JCI to substitute sources for historic cost information in order to fill the “Troutman gap,” but JCI, through its Revised Impact Analysis, instead replaced the historic sources with newer sources who provided higher estimates for the repairs. Second, Federal Rule of Civil Procedure 26(e) does not permit supplementation to add points that could have been made in the original expert report or to otherwise shore up weaknesses or inadequacies, and there is no reason why the new assumptions and methodologies used in the second report could not have been adopted and disclosed in the first during the discovery period. Third, Rule 37(c) only allows supplemental information to be added to expert reports outside of Rule 26(e)’s procedures where the failure to follow Rule 26(e) “was substantially justified or harmless,” and here it was neither.

JCI contends that these findings are clearly erroneous. JCI suggests that the Magistrate Judge misunderstands what it is trying to accomplish with the Revised Impact Analysis because JCI tried to kill two birds with one stone in the new report, which simultaneously relied on the same historical sources of information that Troutman had previously relied on (as permitted by the previous Daubert Orders) while also incorporating revised data provided by those sources pursuant to Rule 26(e). See Dkt. no. 468, p. 20.

But even if the Revised Impact Analysis seeks to pair historic cost information with new, “supplemental” cost information, JCI has still failed to show that Rule 26(e) permits this supplementation. Even though the sedimentation may be ongoing, the Magistrate Judge correctly noted that the original Impact Analysis was nevertheless able to consider the future financial impact of the sedimentation. Thus, there was no reason why the new methodologies included in the revised impact analysis could not have been included in the original. The Magistrate Judge’s conclusion on this point, then, is not clearly erroneous.

iii. Dr. Pruitt’s Second Sediment Measurements

JCI argues that the Magistrate Judge’s conclusion that Dr. Pruitt’s second sediment measurement, taken in July, 2014 after briefing on Defendants’ motions for summary judgment had already begun, is clearly erroneous because Dr. Pruitt could not have obtained this measurement at an earlier time. Under JCI’s theory, each measurement taken of an ongoing nuisance is unique and, therefore, an appropriate supplement to expert testimony under Rule 26(e)(2). Furthermore, JCI argues that it did not scurry to find new evidence of sedimentation in response to Columbia County’s motion for summary judgment, but rather simply allowed Dr. Pruitt to update his report and measurements in anticipation of trial.

In its Objection, JCI argues that it was erroneous for the Magistrate Judge to assume that it produced Dr. Pruitt’s second sedimentation measurement in response to Columbia County’s motion for summary judgment because JCI had already produced other evidence of the ongoing nature of the sedimentation in the form of photographs and eyewitness testimony. However, while it is true that JCI has produced other observational evidence that sediment is entering Willow Lake, this observational evidence is not measureable evidence of sedimentation like that found in Dr. Pruitt’s second report. More tellingly, the observational evidence may not, in fact, rebut Columbia County’s argument on summary judgment (which was filed before Dr. Pruitt took his second set of measurements) that “whether there has been a measurable addition of sediment to Willow Lake, or in what amount, is wholly speculative and does not support a claim of damages.” Dkt. no. 413, p. 42 (emphasis added); see also id. at 41 (“Moreover, to the extent that JCI alleges an ongoing taking of property, JCI has wholly failed to show that any quantifiable amount of sediment has either discharged from any Columbia County property or deposited itself into Willow Lake — let alone within the twelve months preceding the ante litem notice.”) (emphasis added).

Thus, given the procedural setting of Dr. Pruitt’s second sediment measurement, it was not clearly erroneous for the Magistrate Judge to conclude that the new report was an attempt to “avert summary judgment by ‘supplementing’ an expert report with a ‘new and improved’ expert report.” MJ Order 18 (quoting Gallagher v. S. Source Packaging, LLC, 568 F.Supp.2d 624, 631 (E.D.N.C.2008)).

e. Conclusion

Plaintiffs have failed to show in any of their three objections that the Magistrate Judge’s conclusions in the October 2014 Order were clearly erroneous or contrary to law. Plaintiffs’ Objections (Dkt. no. 472) are therefore OVERRULED, and the Court will proceed to the summary judgment analysis accordingly.

II. Summary Judgment Standard

Summary judgment is required where “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 fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Investor Grp. v. FindWhat.com, 658 F.3d 1282, 1307 (11th Cir.2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute over such a fact is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In making this determination, the court is to view all of the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000). However, where the nonmovant’s own sworn testimony contradicts the more favorable testimony of another witness, the court must accept the nonmovant’s version of the events. Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir.2005).

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To satisfy this burden, the movant must show the court that there is an absence of evidence to support the nonmoving party’s case. Id. at 325, 106 S.Ct. 2548. If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

III. Non-CWA Claims against CSXT Transportation, Inc.

The Court will address Plaintiff JCI’s CWA claims against CSXT together with • its claims against Columbia County below. Here, the Court will address the state and non-CWA federal claims against Defendant CSXT.

a. State Law Claims and ICCTA Preemption

CSXT argues that the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”), 49 U.S.C. § 10101 et seq., expressly preempts JCI’s state law tort claims. In its March 28, 2013 Order denying CSXT’s motion to dismiss, this Court held that Plaintiffs’ allegations in their Complaint ruled out any finding of preemption at that stage in litigation. Dkt. no. 228, pp. 48-51. With the benefit of discovery since that prior finding, along with subsequent and persuasive opinions from other district courts and the Surface Transportation Board, the Court holds that the ICCTA preempts Plaintiffs’ state law claims against CSXT. These include the state tort law claims alleged in Counts 6-9, the claim of inverse condemnation under state law alleged in Count 10, the state law claim for punitive damages in Count 12, and the request for attorney’s fees under state law found in Count 13. (JCI brings Counts 10 and 13 against Columbia County as well, and those claims are discussed below.)

In passing the ICCTA, Congress expressly preempted state law regulation of rail transportation. Congress granted the Surface Transportation Board (“STB”) exclusive jurisdiction over rail transportation, rail carriers, and rail facilities. 49 U.S.C. § 10501(a)(2)(b). Specifically, the ICCTA provides the STB with exclusive jurisdiction over:

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State ...

§ 10501(a)(2)(B). “Transportation” is defined as

(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property, or both, by rail, regardless of ownership or an agreement concerning use ...

§ 10102(9)(A) (emphasis added).

“Congress narrowly tailored the ICCTA pre-emption provision to displace only ‘regulation,’ i.e., those state laws that may reasonably be said to have the effect of ‘managing’ or ‘governing’ rail transportation, ... while permitting the continued application of laws having a more remote or incidental effect on rail transportation.” Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir.2001) (editorial marks removed). Courts often find themselves parsing specific claims against rail carriers to see if the state law giving rise to the claim effectively “governs” rail transportation. There are several such cases that the Court may look to for guidance. However, “[a]s the agency with authority delegated from Congress to implement the provisions of the [ICCTA], the STB is ‘uniquely qualified to determine whether state law ... should be preempted.’ ” CSX Transp., Inc. v. Ga. Pub. Serv. Com’n, 944 F.Supp. 1573, 1584 (N.D.Ga.1996) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 496, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (giving similar deference to the FDA’s determination of the Medical Device Amendments’ preemption of state law)). The Court will look first to a recent ruling from the STB regarding ICCTA preemption before considering how other courts have analyzed the question.

On October 31, 2014, the STB found that claims under Missouri state law seeking compensation from a railroad for flooding and property damaged allegedly caused by the improper design, construction, and maintenance of the rail line and support structures were preempted by the ICCTA. Thomas Tubbs et al.-Petition for Declaratory Order, S.T.B. No. FD 35792, 2014 WL 5508153, *1 (October 31, 2014) {“Tubbs ”). In Tubbs, a rail line owned by BNSF Railway Company ran along an earthen embankment between the petitioners’ 550 acres of farmland and the Missouri River. Id. The embankment served as a dam for occasional floodwaters from the Missouri River, and BNSF had recently raised the embankment and fortified the track structure by placing rock and riprap alongside the track in preparation for anticipated flooding. Id. Despite these efforts, flood-waters breached the embankment when the Missouri River flooded in the summer of 2011. Id. The petitioners alleged that the breach washed away the soil on their farm, and sought damages under state law for trespass, nuisance, negligence, inverse condemnation, and statutory trespass. Id. Petitioners’ theory of liability was that BNSF’s negligent design, construction, and maintenance of its rail line caused their damages. Id. at *2.

The STB decided that the ICCTA preempted the petitioners’ state law tort claims because the claims were “based on alleged harms stemming directly from the actions of a rail carrier, BNSF, in designing, constructing, and maintaining an active rail line-actions that clearly are part of ‘transportation by rail carriers’ and therefore subject to the Board’s exclusive jurisdiction under § 10501(b).” Id. at *4. The STB reasoned that the petitioners’ claims would work against the purpose of § 10501(b) preemption, which seeks to prevent “a patchwork of state and local regulation from unreasonably interfering with interstate commerce,” because those claims would interfere “with the railroad’s ability to uniformly design, construct, maintain, and repair its railroad line.” Id. at *5.

The Board distinguished some federal cases where courts found that the ICCTA did not preempt the plaintiffs’ claims. Particularly, the Tenth Circuit in Emerson v. Kansas City Southern Railway Co. had held that a railroad’s decision to discard old wooden railroad ties into a drainage ditch was not related to the movement of passengers or property and therefore was not part of rail transportation under § 10102(9). 503 F.3d 1126, 1130-33 (10th Cir.2007). As such, the plaintiffs’ claims that the discarded ties blocked the flow of water and caused flooding on their property were not preempted by the ICCTA. Id. In Tubbs, the STB held that, unlike the situation in Emerson, BNSF’s actions were an integral part of rail transportation as they involve the railroad’s design, construction, and maintenance of its lines. Tubbs, 2014 WL 5508153 at *5. In contrast to Emerson, the Board found several instances where federal courts had found that state law claims for damages allegedly caused by a railroad’s construction or design of its facilities are preempted. See, e.g., Maynard v. CSX Transp., Inc., 360 F.Supp.2d 836, 841-42 (E.D.Ky.2004) (negligence claims related to flooding allegedly caused by construction and maintenance of tracks preempted); In re Katrina Canal Breaches Consol. Litigation, CV No. 05-4182, 2009 WL 224072, at *5 (E.D.La.2009) (negligence claims related to flooding allegedly caused by design and construction of the roadbeds and other areas of track).

With the STB’s own understanding of the reach of its authority in mind, the Court will also consider other courts’ delineation of the border between preempted claims that seek to “regulate transportation” and unpreempted claims that do not. In the Eleventh Circuit, the Court of Appeals .explained that Congress, in enacting the ICCTA preemption provision, only sought to displace “regulation, i.e., those state laws that may reasonably be said to have the effect of ‘managing’ or ‘governing’ rail transportation, while permitting the continued application of laws having a more remote or incidental effect on rail transportation.” Fla. E. Coast Ry. Co. v. City of W. Palm Beach, 266 F.3d 1324, 1331 (11th Cir.2001)- (editorial marks and citations omitted). In light of this understanding, the Eleventh Circuit held that the ICCTA did not preempt generally applicable zoning ordinances enforced against a private party leasing property from a railroad for non-rail transportation purposes. Id. Conversely, in a case factually analogous to this one, the United States District Court for the District of South Dakota held that claims for damages flowing from BNSF’s allegedly negligent design and construction of a culvert running beneath a track were preempted because “[c]laims challenging a railroad facility’s design or construction fall within the ICCTA’s express preemption provision.” Waubay Lake Farmers Ass’n v. BNSF Ry. Co., CV No. 12-4179, 2014 WL 4287086, at *6 (D.S.D. Aug. 28, 2014).

In light of these authorities, the question becomes: do JCI’s claims seek to effectively “manage” or “govern” CSXT’s rail transportation, or do they impose merely a “remote or incidental” effect on that transportation? Upon CSXT’s prior motion to dismiss, this Court held that JCI’s complaint could fairly be interpreted to allege claims that do not affect “transportation” under the ICCTA. Dkt. no. 228, p. 51. However, discovery provided evidence in the record that clearly shows that the culvert in question is inextricably linked to rail transportation.

JCI’s initial observation, as recorded in its Notice of Intent letter to CSXT (which the Court did not consider at the motion to dismiss stage), was that “[i]n June, 2010, we observed a significant dip in the railroad tracks at this crossing apparently due to the loss of supporting soils.” Dkt. no. 94-1, p. 3. JCI’s observation buttresses Sparks’ affidavit testimony that “continued collapse of the culvert could have further undermined the embankment, which in turn would have undermined the track itself, causing a track misalignment which can result in a derailment.” Sparks Aff., Dkt. no. 415-2, ¶ 13. To respond to this risk, CSXT says it had to act quickly to replace the failed culvert. . Rod McFate, the engineer who oversaw construction, says that “CSXT’s swift response was motivated by a concern for maintaining the safety of the track and train traffic, and also out of concern for upstream and downstream landowners, all of which would have been affected by any catastrophic failure of the embankment.” McFate Aff., Dkt. no. 415-3, ¶ 9. While the trains were still able to run across the track during the construction, CSXT had to issue a “slow order” slowing the trains down to 10 miles per hour for 143 days and to 25 miles per hour for an additional eight days. Id. at ¶ 15. McFate also testified that if CSXT were forced to “realign” the new culverts such that they no longer erode the bank downstream from the CSX crossing, as JCI is requesting, such a project would require more “slow orders” to protect the workers and the train traffic because “any modification to the culverts and embankment will require workers to be in close proximity to the track; and any work on the embankment could pose a threat to the track’s structure.” Id. at ¶ 16.

JCI makes several references to the record in arguing that the replacement of the culvert is not inextricably linked to the rail or, alternatively, that there are at least questions of material fact regarding this connection. All of JCI’s claims are inapposite. First, JCI claims that there is a dispute of material fact over who discovered the failed culvert-CSXT employee Hank Harmon, as CSXT claims, Dkt. no. 415, p. 6, or Columbia County employee Jacques Palmer, as JCI claims, Dkt. no. 434, SI 23. But the question of who discovered the failed culvert is not material for the preemption analysis — the reason for replacing it is.

Second, JCI makes much of the fact that trains were still able to run during the construction of the new culverts, albeit at a lower speed. JCI argues that such minimal effect on “rail transportation” is too “incidental” to confer ICCTA preemption. However, this argument misconstrues the scope of ICCTA preemption which, as the STB and federal courts have held, is intended to include actions that “involve the railroad’s design, construction, and maintenance of its lines.” Tubbs, 2014 WL 5508153 at *5. The fact that CSXT did not have to re — route trains from this line when it installed the new culverts has no bearing on whether or not the installation involved “the railroad’s design, construction, and maintenance of its lines.” As CSXT has shown, it replaced the culvert precisely because failing to do so would result in further erosion of the embankment and, ultimately, risk the integrity of the track itself. Such a project is certainly inextricably intertwined with railway transportation.

In sum, replacing the failed culvert at the CSXT crossing was not some incidental or peripheral venture CSXT undertook that was unrelated to its railway transportation services. The replacement was an integral and necessary repair to the railway infrastructure. Any state tort claims against CSXT for damages resulting from this construction to its infrastructure effectively govern CSXT’s ability to keep its rail lines in safe, working order. As such, JCI’s state law claims against CSXT stemming from the failure, construction, design, and operation of the culverts are preempted by the ICCTA. CSXT’s motion for summary judgment is GRANTED as to Counts 6, 7, 8, 9,10,12, and 13.

b. Federal Takings Claims

JCI claims that the flooding and accumulation of sediment afflicting its property as a result of CSXT’s replacement of the failed culvert amounts to a taking under the Fifth Amendment, pursuant to the Fourteenth Amendment. Plaintiff brings this inverse condemnation claim through 42 U.S.C. § 1983.

A § 1983 claim has two elements: “(1) conduct committed by a person acting under color of state law; and (2) that conduct deprived a person of rights, privileges, or immunities secured by the Constitution of the United States.” Bus. Realty Inv. Co. v. Insituform Techs., Inc., 564 Fed.Appx. 954, 956 (11th Cir.2014). Where, as here, a plaintiff seeks to bring an inverse condemnation claim against a private party, the first inquiry is whether the private party can be said to have acted under color of state law, and the second is whether the conduct the plaintiff complains of amounts to an unconstitutional taking of private property. Because JCI has failed to show that CSXT was acting under color of state law when it replaced its culvert, the Court’s analysis begins and ends with the state action inquiry.

“Only in rare circumstances can a private party be viewed as a state actor for section 1983 purposes.” Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.2001). The Eleventh Circuit has held that for a court to hold that private parties are State actors for § 1983 purposes, courts must first conclude that one of the following three conditions is met:

(1) the State has coerced or at least significantly encouraged the action alleged to violate the Constitution (“State compulsion test”); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (“public function test”); or (3) “the State had so far insinuated itself into a position of interdependence with the private parties that it was a joint participant in the enterprise” (“nexus/joint action test”).

Id. (editorial marks removed) (quoting NBC, Inc. v. Comms. Workers of Am., 860 F.2d 1022, 1026-27 (11th Cir.1988)). Here, JCI claims that CSXT is a state actor under the nexus/joint action test. Dkt. no. 461, p. 11 (citing the nexus/joint action test as enumerated in Warren v. Gov’t Nat. Mortg. Ass’n, 611 F.2d 1229, 1232 (8th Cir.1980)).

Under the nexus/joint action test, the Court must ask “whether the state has so far insinuated itself into a position of interdependence with the private parties that it was a participant in the enterprise. To charge a private party with state action under this standard, the governmental body and private party must be intertwined in a symbiotic relationship.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1278 (11th Cir. 2003) (quoting Rayburn, 241 F.3d at 1348) (quotations and editorial marks omitted). This symbiotic relationship must involve “the specific conduct of which the plaintiff complains.” Id.

Here, the “specific conduct” JCI complains of for its federal takings claim is that CSXT failed to maintain its 100 year old culvert, which eventually failed and caused eroded sediment to enter JCI’s property. Additionally, when CSXT replaced the failed culvert, it did so in a way that altered the hydrologic dynamics of the stream running under the CSX crossing, causing even more sediment to erode from downstream embankments and deposit into Willow Lake.

JCI argues that CSXT is a state actor for purposes of this condemnation because (1) as a railroad, it has been granted the power to condemn property under Georgia Code section 46-8-121; and (2) per the Georgia Court of Appeals, the right of condemnation comes with the reciprocal exposure to inverse condemnation suits. See Foskey v. Vidalia City Sch., 258 Ga. App. 298, 574 S.E.2d 367, 371 (2002) (“The exercise of eminent domain is a constitutional grant which requires a judicial proceeding in the form of a condemnation action to sue in superior court as well as the reciprocal to be sued for inverse condemnation.”).

JCI’s theory for CSXT’s § 1983 liability does not satisfy the nexus/joint action test. Georgia Code section 46-8-121 does not grant railroads a power of condemnation coextensive with the State’s, but merely grants access to Georgia’s condemnation procedures only after the proposed condemnation is first approved by the Georgia Railroad Commission, which is itself a regulatory arm of the state of Georgia. Ga. Code Ann. § 46-8121. JCI has failed to point to any evidence in the record or otherwise argue how CSXT’s ability to request a right of condemnation from the state in some circumstances creates a “symbiotic relationship” between the state and CSXT as to the failure and installation of its culverts. For example, there is no evidence in the record that CSXT used its condemnation power to obtain the portion of its line crossing Stream SI. Indeed, aside from making the state’s condemnation procedures available to CSXT (but only with the state’s prior approval), the state of Georgia, as far as the record is concerned, had absolutely no involvement with CSXT’s alleged failure to maintain the aging culvert or with its decision to replace it. Section 46-8-121 is simply too tenuous a connection to show that Georgia has “so far insinuated itself into a position of interdependence with [CSXT] that it was a participant” in the culvert’s allegedly negligent maintenance and replacement. See Focus on the Family, 344 F.3d at 1278.

Additionally, Foskey’s statement that the power of condemnation comes with a reciprocal exposure to inverse condemnation suits does not support JCI’s suggestion that a limited, statutory grant of that power gives rise to § 1983 liability in every colorable occurrence of inverse condemnation. Foskey was concerned with whether a certain public entity, a school district, had the status and capacity to enter Georgia state courts as a legal entity. Foskey, 574 S.E.2d at 371-72. Foskey’s holding does not touch on federal civil rights claims, state action, or the nexus/joint action test. The Georgia Court of Appeals mentioned the power of condemnation by analogy only, and that discussion has no bearing on when or whether private entities become “state actors” for purposes of § 1983 under Eleventh Circuit’s “nexus/joint action” test.

Thus, JCI has failed to meet its burden to show that CSXT was acting under color of state law when it committed the specific acts complained of in JCI’s complaint. CSXT’s motion for summary judgment is GRANTED as to Count 11.

IV. The Clean Water Act Claims

Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the waters of the United States. 33 U.S.C. § 1251(a). The CWA makes it illegal to introduce pollutants from any point source into the navigable waters of the United States without a permit. §§ 1311(a), 1342.

Section 301 is the “cornerstone” of the CWA. That section prohibits all discharges of any pollutant other than those that comply with specified provisions of the CWA. § 1311; Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 486 F.3d 638, 645 (9th Cir.2007), rev’d and remanded sub nom. on other grounds by Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 129 S.Ct. 2458, 174 L.Ed.2d 193 (2009). Section 402 of the CWA establishes the National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. § 1342. The NPDES requires a permit for any discharge of any pollutant from a point source into waters of the United States. Id. The NPDES also requires compliance with that permit. Id.

The Administrator of the Environmental Protection Agency (“EPA”) has initial authority to issue NPDES permits. § 1342(a). However, the CWA allows each state to establish its own NPDES permit program if that program “meets the standards set forth in the Clean Water Act and is approved by the Administrator of the EPA.” Black Warrior Riverkeeper, Inc. v. Cherokee Mining, LLC, 548 F.3d 986, 989 (11th Cir.2008) (citing 33 U.S.C. § 1342(b)).

An entity’s failure to comply with the conditions of either the EPA — or state-issued NPDES permit subjects the entity to civil, criminal, or administrative enforcement proceedings and sanctions. Id. (citing 33 U.S.C. § 1319). The EPA and the appropriate state authorities can enforce compliance with state-issued permits. Id. In certain circumstances, a private citizen can sue violators of EPA — or state-issued NPDES permits in what is known as a “citizen suit.” Id.-, 33 U.S.C. § 1365(a).

a. Count I: Columbia County’s Alleged Violation of the CWA by the Discharge of Pollutants From the Columbia County MS4 System

Plaintiffs JCI and Savannah Riverkeeper jointly bring a citizen suit against Colombia County for an alleged violation of the County’s NPDES permit. As a preliminary matter, though, Columbia County argues that Savannah Riverkeeper does not have standing to bring this claim alongside JCI.

i. Plaintiff Savannah Riverkeeper has Standing to Sue

To demonstrate standing, Plaintiff Savannah Riverkeeper has the burden to show (1) an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Environmental Servs., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Black Warrior River-keeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1278-80 (11th Cir.2015). Savannah Riverkeeper will have standing to sue on behalf of its members if its members would have standing to sue in their own right, the interests at stake are germane to Savannah Riverkeeper’s purpose, and neither the claim asserted nor the relief requested requires the participation Savannah Riverkeeper’s members in the lawsuit. Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693; Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d at 1278-80. Savannah Riverkeeper has satisfied these requirements.

First, Savannah Riverkeeper has shown that its members have suffered an. injury in fact. “Environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.” Friends of the Earth, 528 U.S. at 183, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)); see also Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d at 1278-80. While mere “conclusory allegations” and “general averments” that one of an organization’s members uses unspecified portions of a large tract of territory are insufficient to overcome a standing challenge at the summary judgment stage Friends of the Earth, 528 U.S. at 183-84, 120 S.Ct. 693 (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)), affidavits and testimony asserting that a defendant’s conduct and the members’ concerns about that conduct directly affects those affiants’ recreational, aesthetic, and economic interests will satisfy the injury in fact inquiry. Id.

Here, Savannah Riverkeeper has submitted affidavits and testimony from its officers and members showing that the sediment at the confluence of Jones Creek and the Savannah River has directly affected their interests in the rivers’ water quality. Riverkeeper Tonya Bonatatibus affied that sediment deposited at the convergence of the rivers created a shallow channel and increased vegetation, making it hard to navigate a kayak on Jones Creek. Bonatatibus Aff., Dkt. no. 434-21, ¶ 4. Ms. Bonatatibus can no longer lead recreational and commercial kayaking tours on that part of the water. Id. at ¶¶ 3-4. Also, Savannah Riverkeeper member Dr. Ted Weatherred affied that the sediment is forming a delta at the confluence of the rivers, where his house is located, and that this sediment is having an impact on his use and enjoyment of the Savannah River and Jones Creek while also diminishing his enjoyment of the aesthetics of the waters and the surrounding natural setting of the rivers. Dr. Weatherred Aff., Dkt. no. 443 (SEALED), ¶¶ 3-7.

Second, Savannah Riverkeeper has satisfied the traceability element. To show traceability in a Clean Water Act case, “a plaintiff need not prove that their injury can be traced to specific molecules of pollution emitted by the alleged polluter. It is enough that a plaintiff ‘show that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged’ in the specific geographic area of concern.” Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d at 1280 (citing Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir.2000) (en banc)). Savannah Riverkeeper has provided photographic and eyewitness evidence that sediment is coming from Columbia County’s property, entering SI, flowing into Willow Lake, and ultimately flowing into the Savannah River. See, e.g., Mundy Aff., Dkt. no. 434-23, ¶¶34, 47-50; Dkt. no. 434 ¶¶ 89-91.

Columbia County argues that Savannah Riverkeeper has not shown a “genuine nexus” between the sediment flowing from Columbia County’s property and the sediment appearing in the Savannah River. However, the scientific certainty that Columbia County seeks is not necessary for purposes of establishing standing — all Savannah Riverkeeper must show is “ ‘that a defendant discharges a pollutant that causes or contributes to the kinds of injuries alleged’ in the specific geographic area of concern,” and this it has done. See Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d at 1280.

Third, Savannah Riverkeeper’s injury is redressable. Plaintiffs in this case seek injunctive relief and civil penalties pursuant to the CWA for Columbia County’s alleged violations.

Finally, Savannah Riverkeeper, as an organization, has shown that it has standing to sue on behalf of its members, because some of its members have standing to sue in their own'right and the purpose of the organization is to act as an advocate of water quality for the Savannah River. Bonitatibus Dep. 14:21-15:13.

ii. Whether Plaintiffs May Recover Against Columbia County for its Allegedly Dilatory Efforts in Enforcing its MS4 Permitting System

Plaintiffs allege that Columbia County violated its MS4 permit by failing to implement and enforce “a SWMP designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable.” Plaintiffs’ theory is that the “maximum extent practicable” standard requires Columbia County to enforce the SWMP such that the discharge of pollutants is actually reduced to the maximum extent practicable. Dkt. no. 460, p. 4. It argues that Columbia County failed to adequately enforce the SWMP, and thus violated a term of its NPDES permit. Columbia County counters that the “maximum extent practicable” standard does not require it to enforce the SWMP such that pollutant discharges are actually reduced to the maximum extent practicable. Rather, that standard only applies to the design of the SWMP it is tasked to enforce. Thus, while the SWMP must be “designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable,” Columbia County argues that it has a measure of executive discretion in how it enforces the SWMP, and need not enforce it such that pollutant discharges are actually reduced to the “maximum extent practicable.”

Thus, the Court’s first inquiry in assessing Count I is whether the “maximum extent practicable” standard is an effluent standard and a condition of Columbia County’s NPDES pe