In the
United States Court of Appeals
For the Seventh Circuit

No. 98-3925

Kurt Froebel,

Plaintiff-Appellant,

v.

George E. Meyer, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-654--Lynn Adelman, Judge.


Argued May 14, 1999--Decided June 28, 2000



  Before Flaum, Easterbrook, and Diane P.
Wood, Circuit Judges.

  Diane P. Wood, Circuit Judge. In 1992,
the Wisconsin Department of Natural
Resources ("WDNR") completed the process
of destroying Funk’s Dam, which had
blocked the Oconomowoc River for nearly
150 years. After the dam was removed,
silt and sediment that had built up over
nearly 150 years damaged the river
downstream from the former dam. Kurt
Froebel believed that these actions
violated state environmental laws, so he
sought a Wisconsin administrative order
requiring the defendants to fix the
problem. His efforts were stymied both
there and on appeal to the Wisconsin
courts.

  Froebel then turned to federal court,
where he filed the complaint in this
action under the citizen suit provision
of the Clean Water Act ("CWA"), 33 U.S.C.
sec. 1365 (1994). The district court held
that Froebel’s suit was not barred by
claim preclusion, but that his complaint
should be dismissed for failure to state
a claim. We agree that dismissal was
proper, but for largely different
reasons. Froebel’s claims, except those
against Waukesha County, are indeed
barred by claim preclusion. We agree that
Froebel has not stated a claim against
the county, and we therefore affirm the
district court’s judgment in its
entirety.

I

  Funk’s Dam was built in 1850. It dams
the Oconomowoc River near the town of
Merton, Wisconsin. Over the next 115
years, it was rebuilt twice, but in 1965
it washed out and was not repaired. In
1971, WDNR informed the dam’s owner,
Gerald Quinn, that it needed to be fixed,
but Quinn refused and in 1975 the dam
washed out again. Quinn again failed to
comply with the agency’s orders,
prompting WDNR in 1982 to declare the dam
unsafe and abandoned. At that point, the
agency indicated that it intended to
remove the dam. However, WDNR did not
have access to the funds necessary for
removal until nearly ten years later.

  Finally, in August 1992, WDNR began the
drawdown process and conducted hearings
concerning the dam’s removal. On October
2, removal began. In devising its removal
strategy, WDNR relied on two studies
conducted by its employees. The first was
a 1986 sediment survey conducted by
employee Mike Bozek. The goal of the
survey was to try to predict the amount
of silt and soft sediment that would be
sent down the river after the dam was
removed. Based on his study, Bozek
recommended that WDNR construct a
sediment pit upstream from the dam. The
other study was a drawdown plan prepared
by WDNR Assistant Dam Safety Engineer
William Sturtevant. Sturtevant’s plan
recommended pumps and siphons to remove
sediment, as well as traps both upstream
and downstream from the dam. Based on the
minimal consequences to the river if
these plans were followed, WDNR decided
that an environmental impact analysis
would be unnecessary.

  Unfortunately, the dam removal did not
proceed in nearly as orderly a fashion as
it would have if either Bozek’s or
Sturtevant’s plan had been followed. WDNR
officials and contractors concluded that
Sturtevant’s recommendations were not
feasible given the conditions surrounding
Funk’s Dam, but they do not appear to
have spent a great deal of time
developing alternatives. No upstream
sediment trap was put in place, and the
downstream trap was inadequate for the
task (though this may be because Bozek’s
study severely underestimated the likely
sediment flow after removal). Moreover,
there is at least some indication that
WDNR’s contractor took silt from the
downstream trap and, rather than
transporting it down river, pumped it
right back into the channel near the dam.
The consequences of all of this for the
Oconomowoc River were severe--muck and
silt bars replaced the gravel spawning
grounds for indigenous fish and much of
the local flora was buried under a foot
of silt.

  Meanwhile, the North Lake Management
District ("District") filed a petition
for a contested case hearing to challenge
WDNR’s actions. Froebel, an area resident
who frequently used that region of the
river for hunting and fishing,
intervened. The District and WDNR
settled, leaving Froebel as the sole
plaintiff against WDNR. The first step
was an administrative hearing before
Wisconsin Administrative Law Judge
Jeffrey Boldt. Froebel requested an order
requiring WDNR to undertake remedial
steps to repair damage done to the river.
However, ALJ Boldt concluded that WDNR
had acted within the discretion conferred
by Wisconsin statutes and refused to
order any remedial actions. Under
Wisconsin’s administrative review
statute, Froebel’s next stop was the
circuit court (Wisconsin’s first level of
courts) for Waukesha County. That court
affirmed the ALJ’s conclusions, also
finding that a provision of Wisconsin’s
dam removal code conferred upon WDNR the
discretion to remove the dam as it saw
fit. Froebel appealed to the Wisconsin
Court of Appeals, which also affirmed.
Froebel v. Wis. Dept. of Natural
Resources, 579 N.W.2d 774 (Wis. Ct. App.
1998). The appellate court reasoned that
since Froebel did not show that WDNR had
acted contrary to any Wisconsin statute,
the circuit court could not order
injunctive relief against it.

  Having no luck in Wisconsin courts,
Froebel then brought a citizen’s suit
under the CWA. See 33 U.S.C. sec. 1365.
He sued WDNR, as well as Sturtevant and
WDNR Secretary George Meyer
(collectively, the "state defendants"),
alleging that WDNR’s actions violated
both Section 402, 33 U.S.C. sec. 1342,
and Section 404, 33 U.S.C. sec. 1344, of
the CWA. Section 402 establishes the
National Pollutant Discharge Elimination
System ("NPDES"), which creates a
permitting program for the discharge of
pollutants. Froebel contends that the
silt that was sent through the dam is a
pollutant and that WDNR thus violated
Section 402 by failing to comply with the
permit requirement. Section 404 regulates
the discharge of fill materials into
navigable waters and creates a permitting
scheme administered by the U.S. Army
Corps of Engineers. Froebel argues that
the removal of Funk’s Dam led to a
discharge of fill materials for which
WDNR should have sought a permit.

  Additionally, Froebel added a new
defendant in his federal complaint,
Waukesha County. The county was not
involved in the removal of Funk’s Dam,
but it owned the property on which the
dam was located at the time Froebel
brought his federal suit. Froebel
concedes that Waukesha County had nothing
to do with the events of 1992, but he
argues that the county continues to
violate Sections 402 and 404 because the
particles that naturally flow down the
river past the point where the dam used
to be constitute both a pollutant and
fill material.

  The district court dismissed WDNR on
sovereign immunity grounds. In Froebel’s
favor, it ruled both that the action
against Meyer and Sturtevant was a proper
application of Ex parte Young, 209 U.S.
123 (1908), and that the Wisconsin
judgment did not have the effect of
precluding Froebel’s federal claims.
Having won these battles, Froebel
nonetheless lost the war: the district
court ultimately ruled that Froebel had
failed to state a claim under either
Section 402 or Section 404. Froebel now
appeals everything except the dismissal
of WDNR.

II

  Since Wisconsin courts have already
rendered a judgment in an action between
Froebel and WDNR, claim preclusion is an
obvious concern. By not having raised his
CWA claims before either the Wisconsin
administrative law judge or the Wisconsin
courts, Froebel may now be precluded from
asserting a Clean Water Act violation in
conjunction with the very same dam
removal that formed the basis of his
earlier Wisconsin action.

A

  Before we examine claim preclusion,
however, we must first address a waiver
problem created by the defendants’
briefing strategy. On appeal, only
Waukesha County raises a preclusion
argument. The state defendants dedicate
their entire brief to the merits of
Froebel’s Section 402 and 404 claims, as
well as their argument that they enjoy
sovereign immunity. Ordinarily, this
would be a substantial problem, since
arguments not raised in a brief are
usually deemed waived. See, e.g., Hentosh
v. Herman M. Finch University of Health
Sciences/The Chicago Medical School, 167
F.3d 1170, 1173 (7th Cir. 1999); Finance
Investment Co. (Bermuda) Ltd. v. Geberit
AG, 165 F.3d 526, 531 (7th Cir. 1998);
Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999). The state defendants did not
even coordinate their briefing with that
of the county and indicate that they were
adopting the county’s preclusion argument
by reference, as they might have done.
See Fed. R. App. P. 28(i); Bruner Corp.
v. R.A. Bruner Co., 133 F.3d 491, 498 n.7
(7th Cir. 1998). Under the circumstances,
we think it inappropriate to extend the
County’s preclusion arguments to the
state defendants.

  Nonetheless, the fact that the district
court ruled in the defendants’ favor, and
explicitly addressed the preclusion
issue, saves them from themselves.
Because their position on appeal seeks
only to maintain the status quo, we apply
"a degree of leniency" to the state
defendants’ failure to raise all possible
grounds for affirming the lower court.
See Schering Corp. v. Illinois
Antibiotics Co., 89 F.3d 357, 358 (7th
Cir. 1996) (noting that "[t]he urging of
alternative grounds for affirmance is a
privilege rather than a duty"). This
means that so long as the state
defendants did not waive their preclusion
argument by failing to present the issue
to the district court, we may consider
it. Door Systems, Inc. v. Pro-Line Door
Systems, Inc., 83 F.3d 169, 173 (7th Cir.
1996).
  From that standpoint, the state
defendants are on firm ground: they
raised their preclusion argument before
the district court. In addition, our
consideration of this point vis a vis the
state defendants (as opposed to the
County) will not prejudice Froebel. The
fact that Waukesha County raised the
argument on appeal means that Froebel was
prepared to meet the point. Indeed, he
addresses it in his reply brief, where he
makes the erroneous point that the County
would have had to file a cross-appeal to
preserve the right to attack the district
court’s ruling on this issue. No cross-
appeal is necessary unless the appellee
wants the court of appeals to alter the
judgment, not just the reasoning, of the
district court. See Stone Container Corp.
v. Hartford Steam Boiler Inspection &
Ins. Co., 165 F.3d 1157, 1159 (7th Cir.
1999).

B

  Under 28 U.S.C. sec. 1738, federal
courts must give the judgments of state
courts the same full faith and credit
that those judgments would receive in the
rendering state’s courts, as long as the
state judgment satisfied constitutional
due process requirements. Kremer v.
Chemical Constr. Corp., 456 U.S. 461,
481-82 (1982). See also Matsushita Elec.
Indus. Co. v. Epstein, 516 U.S. 367, 373
(1996); Marrese v. American Academy of
Orthopaedic Surgeons, 470 U.S. 373, 380
(1985). Even if the state court formally
would not have had jurisdiction to hear
the later claim, because it fell within
the exclusive jurisdiction of the federal
courts, sec. 1738 requires the federal
court to analyze the case by asking what
preclusive effect the state would give
the first judgment in analogous
circumstances. Marrese, 470 U.S. at 380.
The question for us is therefore whether
the Wisconsin courts would find the CWA
action Froebel has brought precluded by
his prior litigation. We conclude that
they would.

  The Wisconsin Supreme Court recently
summarized its approach to deciding when
a subsequent action is barred in Sopha v.
Owens-Corning Fiberglas Corp., 601 N.W.2d
627 (Wis. 1999). There the court
indicated that three factors had to be
present in order to preclude the later
action:
(1) identity between the parties or their
privies in the prior and present suits;
(2) prior litigation resulted in a final
judgment on the merits by a court with
jurisdiction; and (3) identity of the
causes of action in the two suits.

Id. at 637. See also Northern States
Power Co. v. Bugher, 525 N.W.2d 723, 728
(Wis. 1995).

  The first question is therefore whether
the parties here are the same, legally
speaking, as the parties who participated
in the Wisconsin proceedings. The answer
is yes, because of the way Wisconsin
treats challenges to administrative
action. While the Wisconsin action named
only WDNR, Froebel’s current action is
targeted at not only WDNR but also Meyer
(in his official capacity), Sturtevant
(in his individual capacity), and
Waukesha County. Under Wisconsin
preclusion law, Meyer and Sturtevant are
viewed as identical to WDNR since
Froebel’s complaints against them concern
only their actions as employees of the
agency. See Northern States Power, 525
N.W.2d at 728 (finding identity of
parties in prior suit against agency and
action against officers acting in their
official capacities); Lindas v. Cady, 499
N.W.2d 692, 699 (Wis. Ct. App. 1993)
(holding that a suit against an employer
generally precludes subsequent suits
against the employees, even in their
individual capacities, when the conduct
forming the basis of the complaint was
part of the employees’ job functions),
aff’d on other grounds, 515 N.W.2d 458
(Wis. 1994).

  Waukesha County is different. There is
no indication from the record that
Waukesha County (which is a party to this
case only because it owns the land on
which Funk’s Dam used to sit) had
anything to do with either the decision
to remove the dam or Froebel’s litigation
in the Wisconsin courts. It is therefore
unlikely that if Froebel were to bring a
suit solely against the county in
Wisconsin court that the court would
dismiss his case on claim preclusion
grounds. Moreover, the county and WDNR
defendants were represented by different
counsel both in the district court and on
appeal, a fact that the Wisconsin Supreme
Court suggests is important in evaluating
whether parties are identical for
preclusion purposes. See Northern States
Power, 525 N.W. 2d at 728. Because the
County cannot satisfy the first factor,
Froebel’s claims against it are not
barred; we discuss them below.

  The third factor--identity of the causes
of action--is also satisfied under
Wisconsin’s transactional approach to
claim preclusion. Under this approach,
"the claim extinguished includes all
rights of the plaintiff to remedies
against the defendant with respect to all
or any part of the transaction, or series
of connected transactions, out of which
the action arose." Northern States Power,
525 N.W.2d at 729, quoting Restatement
(2d) of Judgments sec. 24(1) (1982). The
Wisconsin courts focus on facts, not
legal theories, to determine whether an
action is precluded. See Northern States
Power, 525 N.W.2d at 729 ("[T]he number
of substantive theories that may be
available to a plaintiff is immaterial--
if they all arise from the same factual
underpinnings they must all be brought in
the same action or be barred from future
consideration."). Here, Froebel is
complaining about the procedures employed
in the 1992 removal of Funk’s Dam, just
as he did before the Wisconsin ALJ and
courts. The two cases arise out of the
same transaction or series of
transactions.

  We have saved the second factor for last
because it presents additional
complications. The Wisconsin proceedings
plainly ended in a final judgment on the
merits of Froebel’s challenge to WDNR’s
conduct in removing Funk’s Dam. The fact
that Froebel’s first case began in an
administrative setting does not change
this fact. Acharya v. Am. Fed’n of State,
County, and Municipal Employees, 432
N.W.2d 140, 142 (Wis. Ct. App. 1988).
Compare City of Chicago v. Intern.
College of Surgeons, 522 U.S. 156 (1997)
(supporting removal jurisdiction in a
case that began as an administrative
proceeding, that was appealed to the
state circuit court where federal claims
were added to the administrative review
issues, and that was then removed to
federal court). On the other hand, the
judgment must have been rendered "by a
court with jurisdiction." That phrase
implicates one of the exceptions to the
rule against claim splitting recognized
by the Restatement (Second) of Judgments,
which the Wisconsin Supreme Court
normally follows. See, e.g., Sopha, 601
N.W.2d at 637. Section 26 of the Second
Restatement outlines exceptions to the
general rule against claim splitting, and
one of those exceptions is as follows:
(c) The plaintiff was unable to rely on a
certain theory of the case or to seek a
certain remedy or form of relief in the
first action because of the limitations
on the subject matter jurisdiction of the
courts or restrictions on their authority
to entertain multiple theories or demands
for multiple remedies or forms of relief
in a single action, and the plaintiff
desires in the second action to rely on
that theory or to seek that remedy or
form of relief . . . .

Restatement (2d) Judgments sec. 26(1)(c).


  Froebel argues that this was precisely
his problem in the Wisconsin proceedings:
he is now presenting a federal Clean
Water Act claim that, he says, would not
have been entertained in the state
proceedings because of limitations on the
authority of those tribunals. If that
were true, then it is our best guess that
Wisconsin itself would permit this later
suit, and thus it could proceed in
federal court. Compare Crossroads
Cogeneration Corp. v. Orange & Rockland
Utilities, Inc., 159 F.3d 129, 140 (3d
Cir. 1998) (finding that New York courts,
which also follow the transactional
approach to claim preclusion, would so
rule). But, unlike the litigant in
Crossroads, Froebel never even asked the
Wisconsin administrative or judicial
tribunals to entertain his CWA claims,
and it appears to us that, had he asked,
they could have done so.

  The first indication that this is true
comes from Northern States Power, in
which the Supreme Court of Wisconsin
considered a claim preclusion problem
similar to the one presented in this
case. There, a Wisconsin taxpayer failed
to raise a federal constitutional
challenge to a decision by the Wisconsin
Department of Revenue denying a claimed
deduction, instead relying solely on its
interpretation of the governing Wisconsin
statute. Northern States Power, 525
N.W.2d at 726. The taxpayer then brought
a claim under 42 U.S.C. sec. 1983 against
various state officials, alleging that
the state tax was unconstitutional as
applied to its case. The Wisconsin
Supreme Court held that the Section 1983
suit was barred by claim preclusion
because the taxpayer failed to raise the
federal constitutional issue before
either the state administrative agency or
the reviewing courts. This, of course, is
a precise parallel to Froebel’s case:
after failing to raise any Clean Water
Act issues in state proceedings, he now
wishes to vindicate federal rights in a
subsequent suit.

  The district court concluded that
Northern States Power was distinguishable
from Froebel’s situation because it
believed that the Wisconsin
administrative tribunal and courts in
Northern States Power had the authority
to grant the requested relief, whereas
here the Wisconsin Court of Appeals
indicated that neither the administrative
agency nor the state lower court could
grant Froebel’s request for an
injunction. As a result of this
conclusion, the district court thought
that it would be fundamentally unfair to
apply preclusion to Froebel’s current
claim because of the limits on the
Wisconsin courts’ remedial powers. The
district court was right to raise these
equitable considerations, since
"Wisconsin law does not treat res
judicata as an ironclad rule which must
be implacably applied whenever its
literal requirements are met, regardless
of any countervailing considerations."
Sopha, 601 N.W.2d at 638, quoting Patzer
v. Board of Regents, 763 F.2d 851, 856
(7th Cir. 1985). See also McCourt v.
Algiers, 91 N.W.2d 194, 196 (Wis. 1958)
(indicating that res judicata may not
apply where relitigation is necessary to
prevent unfairness).

  That said, we believe that the district
court misinterpreted the Wisconsin
courts’ reasons for disposing of
Froebel’s claim. Wis. Stat. sec.
227.57(9), which prescribes the
procedures for judicial review of agency
actions, allows the reviewing court "to
provide whatever relief is appropriate
irrespective of the original form of the
petition." In the Wisconsin litigation,
Froebel contended that this section
granted the reviewing court the power to
enjoin WDNR and compel a restoration of
the affected region of the Oconomowoc
river. The court of appeals rejected this
claim, but did so because "the circuit
court found that the ALJ had correctly
interpreted the law and found no other
grounds upon which to set aside or modify
the agency decision." Froebel, 579 N.W.2d
at 780-81. In other words, the Wisconsin
circuit court could not enjoin the
defendants because it found no legal
basis for doing so. Along the same lines,
the court of appeals held that Wis. Stat.
sec. 227.57(2) requires a reviewing court
to affirm an agency decision "unless the
court finds a ground" for setting it
aside or modifying it. Id. So, the reason
that WDNR could not be enjoined was that
Froebel had not presented a legal basis
for doing so.

  The federal Clean Water Act might have
provided such a basis. Other Wisconsin
cases indicate that it is permissible to
raise federal environmental law in state
administrative litigation. See, e.g.,
Badger Paper Mills, Inc. v. Wis. Dept. of
Natural Resources, 452 N.W.2d 797, 800
(Wis. Ct. App. 1990) (requiring party to
raise Clean Water Act arguments before
ALJ prior to seeking state judicial
review). Supposing that Froebel’s claim
that the state defendants had violated
the Clean Water Act is correct, ALJ Boldt
may have concluded that WDNR was acting
illegally. Froebel could have further
argued this point to the Wisconsin state
courts. Under yet another section of the
Wisconsin administrative review
provisions, Wis. Stat. sec. 227.57(8), a
reviewing court "shall reverse or remand
the case to the agency if it finds that
the agency’s exercise of discretion . . .
is otherwise in violation of a
constitutional or statutory provision."
There is no reason to think that Froebel
could not have argued to both the ALJ and
the circuit court that the Wisconsin
provisions as interpreted by WDNR
violated the federal Clean Water Act. If
he prevailed, then the Wisconsin courts
would have concluded that WDNR’s removal
of Funk’s Dam was "otherwise in violation
of a constitutional or statutory
provision." That would have offered a
basis in law to modify the ALJ’s decision
and, under sec. 227.57(9), fashion
appropriate relief.

  Furthermore, the Wisconsin courts’
reasoning in disposing of Froebel’s claim
makes it clear that the outcome of his
state case could have been very different
had he chosen to raise the Clean Water
Act arguments that he makes here. Both
the Wisconsin circuit and appellate
courts upheld WDNR’s actions by reference
to Wis. Stat. sec. 31.187(1), which
provides:

The department may remove or cause to be
removed, in such manner as it deems fit,
old and abandoned dams in streams in this
state, upon giving 60 days’ notice in
writing to the owner thereof, if the
owner can be found.

The court of appeals concluded that the
authority to remove dams "as it deems
fit" confers on WDNR nearly unfettered
discretion with respect to dam removal.
Froebel, 579 N.W. 2d at 781.

  However, there is no doubt that
Wisconsin cannot give discretion to its
administrative agencies to violate
federal law, since such a statute would
run contrary to the Supremacy Clause. See
U.S. Const. Art. VI, sec. 2. If Froebel’s
substantive claim--that WDNR violated
both Section 402 and Section 404 of the
Clean Water Act--is correct, then Wis.
Stat. sec. 31.187 cannot extend to WDNR
the complete discretion that the
Wisconsin courts found. See, e.g., Ray v.
Atlantic Richfield Co., 435 U.S. 151, 158
(1978) ("[A] state statute is void to the
extent that it actually conflicts with a
valid federal statute."). We presume that
Wisconsin officials and courts would have
faithfully applied federal standards if
Froebel had given them the chance. Idaho
v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261, 274 (1997). So, if Froebel is right
on the merits, we doubt that the
Wisconsin courts would have interpreted
Wis. Stat. sec. 31.187 to give the agency
the authority to act anyway.

  In short, Northern States Power
indicates that Froebel’s present action
against the state defendants could have
been entertained in the earlier Wisconsin
proceeding. For those who are keeping
score, we note that we have now made
equivalent findings with respect to this
aspect of claim preclusion for each of
the three states within the circuit. See
Button v. Harden, 814 F.2d 382 (7th Cir.
1987) (Illinois law); confirmed by
Stratton v. Wenona Community Unit Dist.
No. 1, 551 N.E.2d 640, 646-47 (Ill.
1990); Leal v. Krajewski, 803 F.2d 332,
335 (7th Cir. 1986) (Indiana law); Atkins
v. Hancock County Sheriff’s Merit Board,
910 F.2d 403 (7th Cir. 1990) (Indiana
law, following Leal). Here, we find that
all three requirements of Wisconsin’s
rule for claim preclusion are satisfied,
and Froebel’s new suit is barred.

III

  Finally, we consider Froebel’s claims
against Waukesha County. Unfortunately
for Froebel, the same lack of county
involvement in the dam removal that saved
his case from preclusion also undercuts
both of the CWA theories that he
presented in his complaint.

  Froebel’s first CWA claim is based on
Section 402 of the CWA, requiring a
permit for "the discharge of any
pollutant, or combination of pollutants."
33 U.S.C. sec. 1342(a)(1). "Discharge of
a pollutant," in turn, is defined as "any
addition of any pollutant to navigable
waters from any point source." 33 U.S.C.
sec. 1362(12)(A). "Point source" is also
a defined term; it means "any
discernible, confined, and discrete
conveyance, including but not limited to
any pipe, ditch, channel, tunnel,
conduit, well, discrete fissure,
container, rolling stock, concentrated
animal feeding operation, or vessel or
other floating craft, from which
pollutants are or may be discharged." 33
U.S.C. sec. 1362(14).

  We have not specifically decided whether
and when a dam can serve as a point
source, but several other circuits have
dealt with this issue and all have
concluded that, at least under some
circumstances, a dam can meet the
statutory definition of point source.
Committee to Save Mokulumne River v. East
Bay Municipal Utility District, 13 F.3d
305, 308 (9th Cir. 1993); National
Wildlife Federation v. Consumers Power
Co., 862 F.2d 580, 584 (6th Cir. 1988);
National Wildlife Federation v. Gorsuch,
693 F.2d 156, 165 n.22 (D.C. Cir. 1982);
Missouri ex rel. Ashcroft v. Department
of the Army, 672 F.2d 1297, 1304 (8th
Cir. 1982). In concluding that a dam is a
"point source," these other courts have
looked at the outlets from the dam
itself, such as spillways, pipes, and
valves. See, e.g., Committee to Save
Mokulumne River, 13 F.3d at 308, Gorsuch,
693 F.2d at 165.

  Our case, at least as far as Waukesha
County goes, presents a very different
problem. Funk’s Dam is mostly gone, and
the supposed "point source" is really
nothing more than the hole through which
the Oconomowoc River now flows
unrestrained. Froebel’s theory is that
the former dam impoundment and a portion
of a river channel can constitute a
"point source" just because there used to
be an artificial structure at that spot.
Such a reading, however, has a number of
problems. The first and most obvious is
that the definition of "discharge of a
pollutant" requires that the pollutant
flow "to navigable waters from any point
source." The most natural reading of this
language is that the point source is
distinct from navigable water.

  The structure of the CWA’s definition of
"point source" (a "discernible, confined,
and discrete conveyance . . . from which
pollutants are or may be discharged")
connotes the terminal end of an
artificial system for moving water,
waste, or other materials. See United
States v. Plaza Health Laboratories, 3
F.3d 643, 646 (2d Cir. 1993) (noting that
the definition "evoke[s] images of
physical structures and instrumentalities
that systematically act as a means
ofconveying pollutants from an industrial
source to navigable waterways"). If, for
example, Waukesha County were
precipitating silt from the impoundment
into a pile on the riverbank, then
pumping it back into the waterway using a
pipe, the pipe would be a point source.
Whether there would be an addition as
understood in Section 402 we need not
decide.

  Finally, our reading is further
reinforced by the fact that we apply a
broad construction to the term "navigable
water." United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 133
(1985); Village of Oconomowoc Lake v.
Dayton Hudson Corp., 24 F.3d 962, 964
(7th Cir. 1994). Compare Solid Waste
Agency of Northern Cook County v. U.S.
Army Corps of Engineers, 191 F.3d 845
(7th Cir. 1999), cert. granted 68
U.S.L.W. 3719 (U.S. May 23, 2000) (No.
99-1178) (raising the question, not at
issue here, whether the navigable waters
encompass all areas used as habitat by
migratory birds). The broad reach of
"navigable waters" pushes the natural
reading of "point source" back to the
point at which an artificial mechanism
introduces a pollutant. If, for example,
an industrial polluter operated a
facility that dumped waste into a pond
that feeds a tributary to a river that
flows to the ocean, the facility would be
the point source. Otherwise, any point at
which one waterway empties into another
could be construed as a "point source,"
subjecting unsuspecting owners of these
confluences to liability when pollutants
flow downstream.

  Froebel’s other CWA claim against the
county is based on Section 404, 33 U.S.C.
sec. 1344, which establishes a permitting
system for discharging dredged or fill
material. He argues that the removal of
the dam, as well as the ongoing scouring
action of the river water as it passes
through what used to be the Funk’s Dam
impoundment, constitutes a discharge of
dredged or fill material that requires a
permit.

  The problem with Froebel’s theory is
that there is nothing in either the
regulations or the case law interpreting
Section 404 that indicates that a
landowner can fall within the permit
requirement for a "discharge" by doing
absolutely nothing at all. A "discharge
of dredged material" refers to "any
addition of dredged material . . .
including redeposit of dredged material
other than incidental fallback"
intonavigable water. 33 C.F.R. sec.
323.2(d)(1). Similarly, a "discharge of
fill material" is "the addition of fill
material into waters of the United
States." 33 C.F.R. sec. 323.2(f). The
reference to "addition" and "redeposit"
strongly suggest that a Section 404
permit is required only when the party
allegedly needing a permit takes some
action, rather than doing nothing
whatsoever (as Waukesha County has done
here).

  Froebel’s theory is that as water passes
through the opening where Funk’s Dam used
to be, it scours silt off of the bottom
of the impoundment (the dredging), then
deposits it downstream (the discharge or,
alternatively, the fill for which Section
404 mandates a permit). It is not at all
difficult to imagine that water could be
used to dredge or fill a riverbed when a
person directs the water for that
purpose. However, Froebel presents no
authority for the proposition that
dredging can be a purely passive
activity. He relies heavily on United
States v. M.C.C. of Florida, Inc., 772
F.2d 1501, 1506 (11th Cir. 1985). But
M.C.C. just holds CWA is not limited to a
narrow conception of dredging or filling-
- active, purposeful digging. In M.C.C.,
it was the churning action caused by the
defendant’s boat operations that was the
source of the dredging that the court
found to fall within Section 404. But the
point is that the defendant was doing
something. So, while it is possible that
the state defendants have engaged in
unlawful dredging by removing Funk’s Dam
and allowing the Oconomowoc River to
clean out the impoundment, Waukesha
County has not.

  Section 404, its underlying regulations,
and cases applying its terms all have a
common element that is lacking in
Froebel’s claims against Waukesha County-
-active conduct that results in the
discharge of dredged or fill material. If
the county were to pile silt on the
riverbank and deliberately allow rainfall
to wash it into the stream, then Section
404 might become relevant. Here, however,
Froebel’s claim would essentially require
Waukesha County to seek a permit to do
nothing but continue to own the land. As
even Froebel conceded at oral argument,
that cannot be a correct interpretation
of Section 404.

IV

  Because Froebel’s suit against the state
defendants is barred by the judgment in
the prior Wisconsin proceedings and his
complaint does not state a cause of
action against Waukesha County, the
judgment of the district court is
Affirmed.
