Jurors in Georgia recently awarded landowners $135.5 million in damages, including $125 million in punitive damages, for siltation and sedimentation of a pond caused by development of a solar energy farm on an adjoining piece of property.  How did this happen?

Shaun and Amie Harris through a corporate entity, H&L Farms, LLC, purchased 1630 acres of land (H&L Farm), including a 21 acre lake, in Stewart, Georgia in March 2021.  The prior owner, Kawikee Refuge, LLC, was controlled by Jim Butler and Joel Wooten, the attorneys who ultimately represented the Harrises in this dispute. In 2020, prior to selling H&L Farm to the Harrises, Butler and Wooten sold adjacent, upstream property (Lumpkin Property) that they also owned to Silicon Ranch Corporation (SLC), the solar platform for Royal Dutch Shell, Plc of the Netherlands, for development of a solar farm to power a Facebook data center in Georgia.  As part of the sale to SLC, Butler and Wooten retained rights to harvest timber on the Lumpkin Property, something they undertook for four months before selling H&L Farm to the Harrises.

SLC leased the Lumpkin Property to subsidiary and together they contracted with IEA Constructors, Inc. (IEA) to design and build the solar farm. IEA contracted with Westwood Professional Services, Inc (Westwood) to provide design and engineering services for the solar farm.  Part of Westwood’s design services included analyzing the existing hydrology of the Lumpkin property and any impacts the hydrology may have in the design of the solar farm.

Beginning on April 1, 2021, after the Harrises purchased H&L Farm, a series of rain events, both major and minor, inundated the streams leading to H&L Farm and the lake with silt and sediment.  Photographs included in the complaint showed the contrast of the clear water in the lake before construction of the solar farm began and the murky, red water after construction began.

After one of those rain events, the Georgia Environmental Protection Department (EPD)  issued a violation to IES on the basis that the amount of silt discharged from the Lumpkin Property and consequent turbidity violated State standards.  The EPD determined that sedimentation ponds were improperly designed, installed and maintained by IEA.  IEA admitted to the violation and agreed to make repairs.  Unfortunately, a series of rain events after the EPD’s action resulted in more silt and sediment from the Lumpkin Property being deposited onto H&L Farm and into the lake.

In July 2021, IEA and/or SLC retained a contractor to enter H&L Farm to clean-up some of the siltation on the creeks leading to the lake.  According to the Harrises, the work was undertaken without their permission and without a permit from the State.  The result of the work was additional turbidity and sedimentation of the lake.

In August 2021, a mere 5 months after purchasing H&L Farm, the Harrises filed suit in United States District Court for the Middle District of Georgia, asserting claims against SLC and IEA for nuisance, trespass, and negligence, against Westwood for professional negligence, and against all of them for wanton reckless, consciously indifferent and intentional acts.  The Harrises also sought a permanent injunction to prevent discharge of additional sediment from the Lumpkin Property onto H&L Farm.

The case was tried to a jury and a verdict rendered on April 28, 2023 in two parts, one dealing with liability and actual damages and another dealing with punitive damages, only.  The jury found all parties but Westwood liable, allocating 30% responsibility to SLC, 30% to IEA, and 40% to IEA’s parent company.  The jury awarded the Harrises $9.0 million in compensatory damages for loss of enjoyment and use of H&L Farm and $1.5 million to repair H&L Farm.  The jury then awarded $125 million in punitive damages to the Harrises, with SLC allocated $25 million and IEA and its parent company each allocated $50 million.  On May 3, 2023, the Court issued judgment on the verdict.

In addition, the Court issued an injunction against SLC and IEA to expeditiously eliminate the transport of future sediment from the Lumpkin Property to H&L Farms, prepare a full hydrologic study for the watershed basins, develop a complete erosion and sedimentation plan for the Lumpkin Property, retain a testing firm to perform turbidity sampling in the watershed areas, prepare a stormwater management report, and work with the Court-appointed special master to achieve compliance with all provisions of the injunctive order.

The results of the Harrises’ lawsuit indicate that redirection and impoundment of surface waters along with siltation and sedimentation control are frequently undervalued risks in the construction process.  While Texas law would have allowed the Harrises to assert similar causes of action, it would have also given the Harrises statutory claims against SLC for violation of the Texas Water Code.  The attorneys in our Austin and Dallas offices have significant experience litigating surface water claims, both at the administrative and court levels.  Please contact us at info@gstexlaw.com with any questions you may have.

Legal Disclaimers

This blog is made available by Gerstle Snelson, LLP for educational purposes and to provide general information about the law, only.  Neither this document nor the information contained in it is intended to constitute legal advice on any specific matter or of a general nature.  Use of the blog does not create an attorney-client relationship with Gerstle Snelson, LLP where one does not already exist with the firm.  This blog should not be used a substitute for competent legal advice from a licensed attorney.

©Gerstle Snelson, LLP 2023.  All rights reserved.  Any unauthorized reprint or use of this material is prohibited.  No part of this blog may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system without the express written permission of Gerstle Snelson, LLP.