                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1714



FRIENDS OF THE EARTH, INCORPORATED; CITIZENS
LOCAL    ENVIRONMENTAL    ACTION    NETWORK,
INCORPORATED,

                                              Plaintiffs - Appellees,

           versus


GASTON COPPER RECYCLING CORPORATION,

                                               Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:92-cv-02574-MJP)


Argued:   October 30, 2007                 Decided:   February 7, 2008


Before WILLIAMS, Chief Judge, TRAXLER, Circuit Judge, and Louise W.
FLANAGAN, Chief United States District Judge for the Eastern
District of North Carolina, sitting by designation.


Remanded by unpublished per curiam opinion.


ARGUED: Jeffrey M. Gaba, GARDERE, WYNNE & SEWELL, L.L.P., Dallas,
Texas, for Appellant.     Kathleen L. Millian, TERRIS, PRAVLIK &
MILLIAN, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Stacy
R. Obenhaus, GARDERE, WYNNE & SEWELL, L.L.P., Dallas, Texas, for
Appellant. Bruce J. Terris, Carolyn Smith Pravlik, Aamra S. Ahmad,
TERRIS, PRAVLIK & MILLIAN, L.L.P., Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Gaston Copper Recycling Corporation (“Gaston”) appeals an

order imposing civil penalties against it in a citizen suit brought

by Friends of the Earth (“FOE”) and Citizens Local Environmental

Action Network (“CLEAN”) under the Clean Water Act (“CWA” or “the

Act”), see 33 U.S.C.A. §§ 1251-1387 (West 2001 & Supp. 2007).   We

order a limited remand for factual findings relating to whether FOE

and CLEAN (together, “Plaintiffs”) continue to have standing to

prosecute this suit.



                                I.

                                A.

     The CWA provides that “[e]xcept as in compliance with [the

Act], the discharge of any pollutant by any person shall be

unlawful.” 33 U.S.C.A. § 1311(a) (West 2001). The Act established

the National Pollutant Discharge Elimination System (“NPDES”) to

authorize the issuance of permits for the discharge of limited

quantities of effluents, see 33 U.S.C.A. § 1342 (West 2001 & Supp.

2007), and individual states are allowed to issue NPDES permits

with the approval of the Environmental Protection Agency, see id.

§ 1342(b).    The State of South Carolina has established an NPDES

program administered by the Department of Health and Environmental

Control (“DHEC”).   See S.C. Code Ann. § 48-1-100 (1987).




                                 3
     The CWA is subject to private enforcement as well as public

enforcement, in that “any citizen may commence a civil action on

his own behalf . . . against any person . . . alleged to be in

violation of . . . an effluent standard or limitation under this

chapter.”   33 U.S.C. § 1365(a) (West 2001).   Proof of liability may

result in an award of injunctive relief and the imposition of civil

penalties payable to the United States treasury.     See id.

                                 B.

     Gaston is a South Carolina corporation that owned and operated

a metals smelting plant in Gaston, South Carolina.       When Gaston

purchased the plant in 1990, it was already covered by an NPDES

permit issued to the prior owner.      The permit allowed Gaston to

discharge non-contact cooling water and treated stormwater into the

Boggy Branch of Bull Swamp Creek.     Boggy Branch is a tributary of

Bull Swamp Creek, which, in turn, flows into the North Fork of the

Edisto River.   The permit set effluent limitations and monitoring

requirements and required quarterly reporting of the monitoring

results.    Gaston continued to operate under the original permit

until March 1, 1991, when a new permit was issued.

     The new permit contained Phase I limits, which were effective

from March 1, 1991, to May 31, 1992, and Phase II limits, which

were effective from June 1, 1992, until expiration of the permit.

The Phase I effluent limits were largely the same as those of the

previous permit.   They applied to total suspended solids, oil and


                                 4
grease, iron, cadmium, copper, lead, mercury, nickel, zinc, and

polychlorinated biphenyls (“PCBs”).           They also contained limits on

“flow,” meaning the amount of wastewater that could be discharged

per day.     The Phase II limits were stricter for cadmium, copper,

lead,   mercury,   zinc,   and   pH,    and    contained   a   limitation   on

biochemical oxygen demand (“BOD”).            The permit contained specific

requirements for monitoring and reporting and included a schedule

of compliance for Gaston to satisfy its Phase II effluent limits.

That schedule required Gaston to submit a preliminary engineering

report by March 31, 1991; submit final plans and specifications by

September 1, 1991, for any waste water treatment plant upgrade

needed to meet Phase II discharge limits; and meet those Phase II

limits by June 1, 1992.     The 1991 permit remained in effect until

June 1997.

     Despite the September 1, 1991, deadline, Gaston did not submit

the required final plans and specifications detailing its planned

improvements until December 23, 1991.            DHEC approved the plans in

May 1992 and issued a draft permit modification, moving back the

effective date of the Phase II effluent limits until March 14,

1993.      Following   a   public      hearing    regarding    the   proposed

modification, DHEC modified the permit in March 1993 to require

compliance with the Phase II limits by April 2, 1993.           Gaston began

building its wastewater treatment upgrade in mid-July 1992.




                                       5
     On July 13, 1992, Plaintiffs sent Gaston a letter (“the notice

letter”) alleging that Gaston had violated and continued to violate

its permit’s requirements “in at least the instances set forth in

[an] attached chronological list of permit violations.”   J.A. 485.

The attached list identified a total of eight violations of Phase

I effluent limitations from July 1990 to September 1991 for flow,

mercury, and PCBs.   The letter further alleged that “[i]n addition

to the attached list of violations, there appear to be instances in

which the facility has failed to comply with the monitoring and

reporting requirements of the permit. However, the extent of these

violations cannot be determined from the information available.”

J.A. 485.   The letter also informed Gaston that it had failed to

meet its deadline for submitting its final plans and specifications

to meet the Phase II limitations and failed to make modifications

to its facility to meet the Phase II limits by June 1, 1992.    It

alleged that, as a result, “in June 1992, the facility will have

violated its permit limits at least as to pH, copper, PCBs, and

mercury.”   J.A. 486.

     Plaintiffs subsequently filed this citizens suit complaint on

September 14, 1992, alleging that Gaston had been discharging

pollutants into a South Carolina waterway in violation of the terms

of its permit in that it had failed to comply with its discharge

limits, failed to monitor and report its discharge properly, and

failed to adhere to its compliance schedule.     Plaintiffs sought


                                 6
declaratory and injunctive relief, as well as the imposition of

civil penalties and other statutory relief.               In its answer, Gaston

denied    Plaintiffs’    principal      allegations         and     asserted    that

Plaintiffs    lacked    standing   to   prosecute         the    action.   At    the

conclusion of a six-day bench trial, Gaston also argued, inter

alia, that Plaintiffs had failed to prove any violations of which

they had provided the statutorily required notice prior to filing

suit.    See 13 U.S.C.A. § 1365(b).

      The district court declined to rule on the merits of the suit

and instead dismissed the complaint for lack of standing.                        The

district court determined that Plaintiffs failed to show that any

of   their   members   had   suffered       an   injury    fairly    traceable    to

Gaston’s challenged conduct.         See Friends of the Earth, Inc. v.

Gaston Copper Recycling Corp., 9 F. Supp. 2d 589, 600-01 (D.S.C.

1998).

      A divided panel of this court affirmed on appeal. See Friends

of the Earth, Inc. v. Gaston Copper Recycling Corp., 179 F.3d 107,

116 (4th Cir. 1999). However, we subsequently granted rehearing en

banc and reversed the district court decision, holding that CLEAN

had established standing through its member Wilson Shealy.                       See

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204

F.3d 149, 155-64 (4th Cir. 2000) (en banc).                     We remanded to the

district court for further proceedings, including reconsideration

of whether FOE also had standing in light of the then-recently


                                        7
issued Friends of the Earth, Inc. v. Laidlaw Environmental Services

(TOC), Inc., 528 U.S. 167 (2000). See Gaston Copper Recycling, 204

F.3d at 161 n.1.

     On remand, the district court found that Gaston violated its

effluent limitations for a total of 91 days.       Phase I discharge

violations found by the district court concerned levels of pH,

cadmium, zinc, and iron, while Phase II discharge violations

concerned the same pollutants as well as oil and grease and copper.

However, the court determined that because DHEC had agreed to delay

the effective date of the Phase II effluent limits, Gaston was not

required to comply with those stricter limits until April 2, 1993,

and thus was not liable either for exceedances of those limits or

failures to report such exceedances prior to that date.      The court

also found 396 monitoring violations and 323 violations for failing

to   report   discharge   exceedances   and   monitoring   violations.

Finally, the court found that Gaston violated its schedule of

compliance for 54 days.    Finding that Gaston had made a good-faith

effort to comply with its permit and that it obtained no economic

benefit from its non-compliance, the district court imposed a civil

penalty of $2,340,000 and required Gaston to pay Plaintiffs’

attorneys’ fees and costs.       The district court entered final

judgment on July 21, 2003.

     Several post-trial motions followed. On July 23, 2003, Gaston

moved to amend the judgment with a filing that stated:


                                  8
            Defendant moves the Court, pursuant to Federal Rules
       of Civil Procedure, Rule 52(b) and 59(e), to amend its
       findings of fact and alter or amend its judgment in
       accordance therewith. This Motion will be supported by
       a memorandum which will be submitted in the time frame
       established by the Court.

J.A. 238.    On the same date Gaston moved for an extension of time

to file an accompanying memorandum. The district court granted the

extension on July 30, 2003.        Then, on August 1, 2003, Gaston filed

a motion (“the notice motion”) in which Gaston asked the district

court to alter or amend its findings on the grounds that “the Court

erred in calculating the civil penalty amount by including matters

not covered by the notice letter served by the plaintiffs.”             J.A.

266.

       Plaintiffs   and   Gaston   both   also   made   post-trial   motions

relating to standing. On August 1, 2003, Plaintiffs moved to amend

the judgment pursuant to Rules 52(b) and 59(e) to reflect that

Shealy had died prior to the judgment but that Plaintiffs continued

to have standing through FOE and CLEAN member Jones and FOE member

McCulloch.    Plaintiffs requested that if the district court was

unable to conclude based on the then-existing record that both

Plaintiffs continued to have standing, Plaintiffs should be allowed

to supplement the record.      Plaintiffs sought to present affidavits

from Shealy’s widow and son asserting that they were members of

CLEAN and adopting Shealy’s testimony as their own.             Plaintiffs

also sought to present an affidavit from Jones describing his

continued use of the Edisto River since the trial.          Gaston opposed

                                      9
Plaintiffs’ motion and moved on August 29, 2003, for relief from

the judgment on the ground that Plaintiffs no longer had standing

to prosecute this case after Shealy’s death (“the Rule 60 motion”).

      On September 16, 2005, the district court granted Plaintiffs’

August 1, 2003, motion to amend the judgment to reflect that Shealy

had died but that Plaintiffs continued to have standing through

Jones and McCullough.            Apparently in light of that ruling, the

district court denied Plaintiffs’ request to supplement the record.

On   May   22,    2006,    the   district    court   denied   Gaston’s    motions

challenging the amount of the civil penalty and claiming that

Plaintiffs no longer had standing after Shealy’s death.                    Gaston

then filed a notice of appeal on June 20, 2006.



                                        II.

      While Gaston’s appeal was pending, Plaintiffs filed a motion

in this court seeking dismissal of the appeal except insofar as it

challenged the district court’s denial of the Rule 60 motion.                   We

deferred ruling on this motion until after oral argument.                  We now

deny it.

      As we have explained, the district court entered judgment

against Gaston on July 21, 2003. It is undisputed that Plaintiffs’

August     1,    2003,    Rule   52(b)/59(e)   motion   tolled   the     time   for

appealing.        See Fed. R. App. P. 4(a)(4).          Because the district

court granted this motion by order entered September 16, 2005,


                                        10
Plaintiffs contend that the time for appealing expired 30 days from

that date.     See Fed. R. App. P. 4(a)(1)(A)(ii).                    Since Gaston did

not appeal by that time, Plaintiffs argue that we lack jurisdiction

to consider an appeal of the judgment and possess jurisdiction to

review only the denial of its Rule 60 motion.

      Gaston notes, however, that it had filed the notice motion on

August 1, 2003, within 10 court days of entry of the judgment.

Gaston argues that its motion also tolled the time for appealing

the   final    judgment,       see   Fed.     R.    App.      P.    4(a)(4),      just   as

Plaintiffs’ motion tolled the appeal period.                        Because the notice

motion was not denied until May 22, 2006, and because Gaston filed

its   notice    of    appeal    within   30       days   of    that    denial,      Gaston

maintains its appeal of the final judgment was timely.

      Plaintiffs respond, in turn, that the notice motion was

insufficient under Rule 7 of the Federal Rules of Civil Procedure

to toll the time for filing an appeal.                   We disagree.

      Rule     7(b)    requires      that     a     motion         “shall   state    with

particularity the grounds therefor, and shall set forth the relief

or order sought.”         Fed. R. Civ. P. 7(b)(1).                  Although Rule 7(b)

applies   to    motions    under     Rule   59,      Rule     7     “does   not   require

ritualistic detail but rather a fair indication to court and

counsel of the substance of the grounds relied on.”                         Fed. R. Civ.

P. 59 advisory committee’s note (1966 amendment).




                                         11
     The Appendix of Forms contained within the Federal Rules of

Civil Procedure provides examples of documents that “are sufficient

under the rules.”      Fed. R. Civ. P. 84.   These forms “are intended

to indicate the simplicity and brevity of statement which the rules

contemplate.”    Id.    Form 19 illustrates the liberal standard the

rules impose for determining the sufficiency of motions and thus

confirms the sufficiency of the notice motion.      For example, Form

19 shows that a motion to dismiss is sufficiently detailed if it

seeks dismissal “because the complaint fails to state a claim

against defendant upon which relief can be granted.”      Fed. R. Civ.

P. App. Form 19.

     Here, Gaston’s motion stated,

          Defendant moves the Court, pursuant to Federal Rules
     of Civil Procedure, Rule 52(b) and 59(e), to amend its
     findings of fact and alter or amend its judgment in
     accordance therewith. The grounds for this Motion are
     that the Court erred in calculating the civil penalty
     amount by including matters not covered by the notice
     letter served by the plaintiffs.

J.A. 266.      This motion clearly provided more specificity than

Appendix Form 19 regarding the description of the legal basis for

the motion.*    Additionally, the record reflects that long before

judgment was entered against it, Gaston fully articulated its

position (in proposed findings of fact and conclusions of law) that

Plaintiffs’ failure to provide adequate notice prevented the court


     *
      Plaintiffs contend that a Rule 52(b)/59(e) motion must state
its grounds more specifically than a 12(b)(6) motion, but we know
of no reason why that would be the case.

                                   12
from finding Gaston liable for any of the violations eventually

found by the district court.               See J.A. 62-67.      Under these

circumstances, no purpose would be served by requiring Gaston to

restate this position in its post-trial motion.            We therefore hold

that the motion was sufficient under Rule 7(b), that it tolled the

time for appealing the final judgment, and that Gaston’s appeal of

the final judgment was timely.



                                     III.

       We now turn to Gaston’s jurisdictional challenge.                Gaston

contends that the district court erred in holding that Plaintiffs

continued to have standing to prosecute this suit after Shealy’s

death prior to the entry of judgment.            We remand to the district

court for further proceedings regarding this issue.

       Article   III   of   the   Constitution    restricts   federal    court

jurisdiction to the resolution of “cases” and “controversies,” and

the requirements of establishing Article III standing enforce this

jurisdictional restriction.         See Elk Grove Unified Sch. Dist. v.

Newdow, 542 U.S. 1, 11 (2004).              “The standing requirement is

designed to guarantee that the plaintiff has a sufficient personal

stake in the outcome of a dispute to render judicial resolution of

it appropriate.”       Emery v. Roanoke City Sch. Bd., 432 F.3d 294, 298

(4th   Cir.   2005)    (internal   quotation     marks   omitted).      When   a

plaintiff dies and no other plaintiff maintains a continuing


                                      13
interest in the litigation, the federal courts no longer have

jurisdiction over the case. See Laidlaw Envtl. Servs., 528 U.S. at

192.

       Here, Plaintiffs are both associations consisting of their

individual members.      An association has

       standing to bring suit on behalf of its members when:
       (a) its members would otherwise have standing to sue in
       their own right; (b) the interests it seeks to protect
       are germane to the organization’s purpose; and, (c)
       neither the claim asserted, nor the relief requested,
       requires the participation of individual members in the
       lawsuit.

Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333,

343 (1977).    There is no dispute in this case regarding the latter

two elements.      The jurisdictional issue here involves only the

first   element.     The   question,        then,   is   whether   any    of   the

Plaintiffs’    members     satisfies    the     general     requirements       for

individual standing.

       To demonstrate that its members have standing, an organization

bears the burden of proving that:           1) at least one of its members

has suffered an actual or threatened injury; 2) the injury is

“fairly traceable” to the defendant’s actions; and 3) the injury

will likely be redressed if it prevails in the lawsuit.                  Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal

quotation marks and alteration omitted).

       The Supreme Court has made clear that a plaintiff need not

show a traditional trespass on property or tortious injury to


                                       14
satisfy the actual-or-threatened-injury requirement.                See Gaston

Copper   Recycling,    204   F.3d   at    154.      Rather,   damage     to    an

individual’s    “aesthetic    or     recreational      interests”      may     be

sufficient.     Id.    However, “because these and other noneconomic

interests may be widely shared, the Supreme Court has cautioned

that   environmental    plaintiffs    must   themselves       be    ‘among    the

injured.’”     Id.    Otherwise, the case or controversy requirement

would be essentially meaningless.         See id.

       Gaston maintains that Plaintiffs have not established that

their members are “among the injured” because they have not shown

that the members have the proper connection to the affected water.

We conclude that the record is not sufficiently clear for us to

decide whether that is true.

       According to his testimony, Jones, a member of CLEAN and FOE,

is a retailer of canoes, kayaks, and other outdoor equipment and

provides canoe trips for the general public.            His business takes

canoe trips that he often leads on the Edisto River downstream from

Gaston’s discharge point.      Jones testified that guides on a canoe

trip tend to go into the water, as do the clients.                 Clients also

picnic and fish.      Jones testified that he was concerned about the

quality of the rivers in which he canoes because his “business is

very much dependent upon the public’s perception that water quality

is good.” J.A. 446. Regarding his understanding of water quality,

Jones testified that “on the Edisto the heavy metals that may be


                                     15
present from the Gaston Copper plant pose a very real concern.”

J.A. 446.   Jones stated that his belief regarding the amount of

pollution in the river affected his enjoyment of canoeing and

swimming in that he had “greater confidence in [his] ability to

market [his] trips to the general public when [he was] taking

people into an area [where] they [would] have a quality experience

and [where] their health is going to be not threatened by the

quality of the water.”   J.A. 447.      Jones stated that in light of

the pollution that may be flowing from Gaston’s plant, he was

“concerned” about the quality of the water at issue even “aside

from [his] business interests.”    J.A. 449.

     McCullough, an FOE member, testified that he boated and scuba-

dived in “Pond Pond,” J.A. 452, and that he was planning to dive

again downstream from that area.       He testified that he planned to

go canoeing on the Edisto in Colleton State Park.        He described

both locations as being downstream of Edisto’s North Fork.       When

asked about whether he was concerned about the quality of the water

in which he boated and went scuba-diving, McCullough stated that he

“would like to dive in water that is relatively clean” and that he

was “concerned about all waters in South Carolina that [he went

scuba-diving in] having contaminants, especially heavy metals [and]

pesticide runoff.”   J.A. 453.       He said that if he knew water

contained contaminants, he would be less likely to dive in it and

if he “thought the water was polluted, [he] would be less likely to


                                  16
go canoeing in that particular spot and . . . would go to a

different spot that [he believed] would be less polluted or not

polluted at all.”        J.A. 455.

      Gaston argues that Jones’s and McCullough’s concern for the

water they use is not a sufficiently concrete injury to establish

standing in the absence of evidence that the water quality was

actually affected.        We disagree.       A plaintiff is not required to

present     “additional    scientific     proof   [of   actual    harm    to   the

environment] where there was a direct nexus between the claimant

and   the    area   of    environmental      impairment.”        Gaston   Copper

Recycling, 204 F.3d at 159.          That point is illustrated by Sierra

Club v. Cedar Point Oil Co., 73 F.3d 546 (5th Cir. 1996), a

decision we cited with approval in our previous en banc opinion in

the present case, see Gaston Copper Recycling, 204 F.3d at 159-60.

There, the Fifth Circuit held that citizens’ concern about water

quality in Galveston Bay sufficed as injury in fact where “[t]wo of

the affiants live near Galveston Bay and all of them use the bay

for recreational activities.” Cedar Point Oil Co., 73 F.3d at 556.

The court held that it was sufficient that “the affiants expressed

fear that the discharge . . . will impair their enjoyment of these

activities because these activities are dependent upon good water

quality.”     Id.

      Relying on Friends of the Earth v. Crown Central Petroleum

Corp., 95 F.3d 358 (5th Cir. 1996), Gaston also contends that


                                        17
Jones’s and McCullough’s testimony was insufficient to establish

standing.     In Lujan, the Supreme Court explained that a “plaintiff

claiming    injury   from   environmental    damage    must   use   the   area

affected by the challenged activity and not an area roughly ‘in the

vicinity’ of it.”        Lujan, 504 U.S. at 565-66.      In Crown Central,

the   Fifth    Circuit    applied   that   principle    to    conclude    that

downstream users located 18 miles and three tributaries from the

point of discharge could not establish standing since injury could

not be fairly traceable to a discharger based simply on the “truism

that water flows downstream.”       Crown Cent. 95 F.3d at 361.          Gaston

argues here that Plaintiffs have established only that their

members used water downstream of the point to which its discharge

flowed, and that that is not sufficient to satisfy the Lujan

standard.

      We are unable, considering the current state of the record, to

determine whether Plaintiffs’ members have a sufficient connection

to the affected area.        In our previous en banc decision in this

case, we held that CLEAN established standing because Shealy owned

a home and lake four miles downstream from Gaston’s discharge and

“that Gaston Copper’s discharges can impact the receiving waterway

for a good distance downstream--well past Shealy’s property and on

down to the Edisto River itself.”           Gaston Copper Recycling, 204

F.3d at 158.     In reaching that conclusion, we relied primarily on

evidence of an official written response from DHEC to the owner of


                                     18
a piece of property at the location where Bull Swamp Creek flows

into the Edisto River.       The owner asked if the runoff would reach

his property.    The response stated that the runoff would, in fact,

“go to Boggy Branch to Bull Swamp to the Edisto River” and added

that “[t]he confluence of Bull Swamp and the Edisto River is 16.5

miles   [from   the   polluting   facility].”         Id.   at   158   (internal

quotation marks & alteration omitted).

     Regarding Jones, Plaintiffs established that Gaston’s runoff

flowed into the North Fork of the Edisto River and that Jones used

waters of the Edisto’s North Fork.         Concerning which part of the

North Fork Jones used, Jones testified:

     [W]e canoe from the main stem, an area that is described
     as Green Pond Church, to Colleton State Park. Another
     area is from Shill’s . . . Bridge to the Edisto Gardens
     in Orangeburg, and another is from a location called
     Rowesville down to a location called Branchville.

J.A. 442-43.     Jones testified that he believed that all of these

areas were downstream of Bull Swamp Creek.            Like Jones, McCullough

did not specifically testify that he had used, or even planned to

use, waters between Gaston’s facility and the Bull Swamp Creek.

     Gaston observes that in our previous en banc decision, we

stated that the confluence of Bull Swamp Creek and the Edisto River

was “the acknowledged outer perimeter of the discharge zone,”

Gaston Copper Recycling, 204 F.3d at 158.             Gaston maintains that

because   Jones’s     and   McCullough’s   use   of    the   North     Fork   was

downstream of that confluence, they used waters only “roughly ‘in


                                     19
the vicinity’ of” the affected area.                    Lujan, 504 U.S. at 566.

Gaston’s argument fails to take into account the context of the

statement on which it relies. The DHEC response that we referenced

in our previous opinion did not purport to identify the farthest

point    downstream    to   which        the   runoff    proceeded.       Rather,    it

addressed    only     whether      the    runoff      proceeded   as     far   as   the

confluence of Bull Swamp Creek and the North Fork of the Edisto

River.     DHEC acknowledged that it did proceed that far, and DHEC

had no reason to discuss to what extent the runoff proceeded

further.      Thus,     our     description        of    the   confluence      as   the

“acknowledged outer perimeter of the discharge zone” conveyed only

that it was the farthest point that DHEC had acknowledged the

runoff proceeded, not that DHEC acknowledged that that was the

farthest point the runoff reached.

     The problem we are left with, however, is that we cannot

determine whether Jones or McCullough had the requisite connection

to waters in the affected area without knowing either that they

used the waters at the confluence of Bull Swamp Creek and the

Edisto’s    North   Fork      or   knowing      how     much   farther   beyond     the

confluence that the runoff proceeded and where, in relation to this

point, the waters that Jones and McCullough used and planned to use

were.    We therefore order a limited remand so that the district

court may resolve these factual issues.                  Because the scope of our

remand is narrow and this case has been pending for such a very


                                           20
long time, we request a response from the district court as soon as

is practical.



                                IV.

     In sum, we deny Plaintiffs’ motion for partial dismissal of

this appeal, and we order a limited remand to the district court.



                                                          REMANDED




                                21
