Trial Court Grants Summary Judgment to Defendant in Clean Water Act Case

Lee Welborn’s defendant, who rerouted a small stream without a permit to do so, obtained an order on January 4, 2012 granting summary judgment in a Clean Water Act case.  The co-defendant sold the adjoining downstream parcel of land to the plaintiffs, who used the building next to the stream as a warehouse.  In September 2009, the building flooded when the stream came out of its banks, and the plaintiffs sued in federal court.  In an unusual procedural move, the plaintiffs moved for summary judgment on the Clean Water Act violation. In response, Lee obtained an expert hydrologist who concluded that the 500 year flood would have flooded the plaintiffs’ building whether the stream was in its original channel or in its new location.  The co-defendant filed its motion for summary judgment in response.  Prior to the expiration of time for the defendants to file their dispositive motions, Judge Harold Murphy considered the expert hydrologist’s undisputed affidavit and entered an Order granting summary judgment to all defendants.  Plaintiffs have appealed the court’s ruling to the Eleventh Circuit Court of Appeals.