                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT         FILED
                            ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                         07/23/99
                                     No. 98-8532
                                                                      THOMAS K. KAHN
                              ________________________                    CLERK

                         D. C. Docket No. 2:96-CV-175-WCO


DAVID & BARBARA DRISCOLL, and
RUEL & PATRICIA GALBREATH,
                                                                 Plaintiffs-Appellants,

                                           versus

ROSS ADAMS,
                                                                 Defendant-Appellee.

                              ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                          _________________________
                                  (July 23, 1999)

Before EDMONDSON and CARNES, Circuit Judges, and WATSON*, Senior
Judge.

CARNES, Circuit Judge:




       *
         Honorable James L. Watson, Senior Judge for the U.S. Court of International Trade,
sitting by designation.
      Plaintiffs David and Barbara Driscoll and Ruel and Patricia Galbreath appeal the

district court’s award of summary judgment to defendant Ross Adams on their Clean

Water Act claim, which arose out of Adams’ discharge of allegedly polluted

stormwater into a stream running from his property to ponds on their properties.

Adams argues that the district court was correct in concluding that he is not subject to

liability under the Clean Water Act because the Act imposed an impossible condition

by requiring him to obtain a discharge permit that was unavailable in the state of

Georgia. He also maintains that his discharge falls outside the scope of the Act

because it was not a point source discharge of a pollutant into a navigable water as

defined by the Act. We reject both of those arguments and reverse the district court’s

grant of summary judgment.

                   I. FACTS AND PROCEDURAL HISTORY

      At all times relevant to this case, Adams owned 76 acres of land in the North

Georgia mountains. David and Barbara Driscoll owned approximately five acres

adjacent to Adams’ property, and Ruel and Patricia Galbreath owned about two acres

adjacent to the Driscolls’ property. The Spiva Branch stream flows downhill from

Adams’ property through a pond on the Driscolls’ property and then through another

pond on the Galbreaths’ property, before merging with the Nottely River, which flows

across the Georgia-Tennessee border and unites with the Tennessee River. The


                                           2
Driscolls and Galbreaths claim in their complaint, and the magistrate judge found, that

stormwater washed mud, silt, sand, and other materials from Adams’ property into the

Spiva Branch stream and thence into the plaintiffs’ two ponds while Adams was

harvesting timber and developing his property.

      Adams harvested timber on his property from March 1995 to November 1995.

During the harvest, he cut and graded roads, installed storm pipes, and cut and removed

timber. Adams then proceeded to develop the property, putting gravel on the roads,

building culverts and check dams to channel the stormwater runoff, and dividing the

property into residential lots for vacation homes. The harvest and development caused

erosion of mud, sand, and other materials on his property. Adams concedes that he did

little to stabilize his property or prevent erosion until the spring of 1996, after the

erosion had already caused a considerable amount of damage to the plaintiffs’

properties.   He says his delay in taking preventive measures was the result of

inclement weather and winter cold.

      Adams failed to seek the proper approval from any federal, state, or local

government agency before starting to work on his property. After all of the timber

harvest and much of the development were already completed, he filed for the required

state permit in September 1996. He did not obtain a county development permit until

February 1997, two months after the filing of the complaint in this lawsuit. As for


                                          3
federal law requirements, Adams never obtained a National Pollutant Discharge

Elimination System (“NPDES”) permit, which is required for lawful pollutant

discharge under the Clean Water Act. The parties agree that an NPDES general

stormwater permit was not available because of a legal challenge to the permit. The

plaintiffs contend, however, that other NPDES permits were available, including an

individual stormwater permit and both general and individual point source discharge

permits.

      The plaintiffs filed this lawsuit in December 1996 against Adams for violations

of the Clean Water Act, 33 U.S.C. §§ 1251-1376 (1994), pursuant to its citizen suit

provision, 33 U.S.C. § 1365. They also included in their complaint pendent state law

claims for nuisance, trespass, and negligence, among other things. They filed a motion

for summary judgment, and Adams filed a motion to dismiss, which the district court

treated as a cross motion for summary judgment. The court denied the plaintiffs’

motion and granted Adams’, stating that the requirement of an “NPDES permit was an

impossible condition . . . [and] [t]here were no approved federal standards for how

much sand, silt and mud could be in the released water.” After disposing of the federal

law claim, the court declined to retain supplemental jurisdiction over the state law

claims and dismissed them without reaching the merits. The plaintiffs appealed.




                                          4
      We review de novo the district court’s award of summary judgment. See B.R.L.

Equip. Rentals Ltd. v. Seabring Marine Indus., Inc., 168 F.3d 413, 415 (11th Cir.

1999). We also review de novo the district court’s conclusions of law. See Brooks v.

Miller, 158 F.3d 1230, 1236 (11th Cir. 1998).

                                  II. DISCUSSION

      Adams raises essentially two issues on appeal. First, he argues that the Clean

Water Act’s prohibition on pollutant discharge does not apply where the NPDES

permit required to make the discharge lawful under the Act is not available. Second,

he contends that his discharges in this case did not fall within the scope of prohibited

pollutant discharges under the Act. We will address each contention in turn.

A. DOES THE CLEAN WATER ACT’S PROHIBITION ON “THE DISCHARGE
   OF ANY POLLUTANT BY ANY PERSON” APPLY WHERE THE NPDES
  PERMIT REQUIRED FOR LAWFUL DISCHARGE IS NOT AVAILABLE?

      The Clean Water Act provides, “Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any

pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a). Of the excepted

sections, the only one potentially applicable in this case is § 1342, which establishes

the National Pollutant Discharge Elimination System and authorizes the Administrator

of the EPA to issue permits under this system that allow the permit holder to discharge

limited quantities of pollutants under prescribed conditions.        See 33 U.S.C. §


                                           5
1342(a)(1). If the Administrator approves a state’s permit program, the state may

assume control of NPDES permitting for that jurisdiction. See 33 U.S.C. § 1342(b).



      Georgia has an approved state NPDES permit program. Pursuant to that

program, the Georgia Environmental Protection Division (“EPD”) has attempted

several times over the past few years to issue a general NPDES stormwater discharge

permit. Unlike an individual permit, which would apply to an individual discharger,

the general permit would apply to an entire class of dischargers. To obtain coverage

under a general permit, a would-be discharger could file a Notice of Intent form with

the EPD. The EPD has been unable to implement any of its proposed general

stormwater permits because of court challenges brought by concerned citizens. Thus,

the general NPDES stormwater discharge permit is not and never has been available.



      The plaintiffs argued in their briefs to us that although the general stormwater

discharge permit was not available to Adams, other acceptable NPDES permits,

including an individual stormwater discharge permit and both general and individual

point source discharge permits, were available. Their counsel conceded at oral

argument, however, that nothing in the record supports their contention that the EPD

had ever actually issued any individual NPDES stormwater discharge permits in


                                          6
Georgia. The record is equally devoid of any evidence suggesting that other general

or individual NPDES point source discharge permits for stormwater discharge were

being issued in Georgia.

      Thus, the issue in this case is whether § 1311(a)’s zero-discharge standard

applies to a discharger who could not obtain an NPDES permit because none was

available. This Court has previously addressed the implications of an unavailable

NPDES permit under the Clean Water Act.            We did so in      Hughey v. JMS

Development Corp., 78 F.3d 1523 (11th Cir. 1996), where the plaintiff sued developer

JMS under the Clean Water Act for discharging stormwater without an NPDES

permit. See Hughey, 78 F.3d at 1524. The discharge was minimal, because JMS had

implemented state-of-the-art sedimentation control devices in accordance with all state

and local requirements. See id. at 1526. JMS had not obtained the required NPDES

permit, however, because it was not available from the Georgia EPD. See id. at 1525.



      In order to determine whether JMS had violated the Clean Water Act, we began

our analysis with the text of the Act, concluding that “[t]he amended CWA absolutely

prohibits the discharge of any pollutant by any person, unless the discharge is made

according to the terms of [an NPDES] permit.” See id. at 1524. But our commitment

to the plain language of the Act was tempered by the well-established canon that


                                          7
“Congress is presumed not to have intended absurd (impossible) results.” Id. at 1529.

In an effort to strike a balance, we established a narrow exception to the general rule

of liability for discharges without an NPDES permit where: 1) compliance with the

zero-discharge standard was factually impossible because there would always be some

stormwater runoff from an area of development; 2) there was no NPDES permit

available to cover such discharge; 3) the discharger was in good-faith compliance with

local pollution control requirements, which substantially mirrored the proposed

NPDES discharge standards; and 4) the discharges were minimal. See id. at 1530.

Thus, while acknowledging the Clean Water Act’s zero-discharge standard, the

Hughey decision, in light of the material facts of that case, recognizes a narrow

exception to that standard for any minimal discharge that occurs despite a developer’s

best efforts to reduce the amount of it and comply with applicable law. See id. We

made it clear that all four of the elements were essential to the exception. See id.

      Two of the Hughey elements are lacking in this case. First, unlike the discharger

in Hughey, who had “made every good-faith effort to comply with the Clean Water Act

and all other relevant pollution control standards” by implementing pollution-control

measures and obtaining local permits, id., in this case Adams did little or nothing to

limit erosion or stormwater discharge before beginning construction. He sought none

of the required permits until after considerable damage had been done to the Driscolls’


                                           8
and Galbreaths’ properties. Second, we emphasized in Hughey that “[t]he facts of this

case necessarily limit our holding to situations in which the stormwater discharge is

minimal, as it was here.” Id. By contrast, in this case the amount of Adams’

stormwater discharge and the resulting damage were substantial. Indeed, the plaintiffs

proffered evidence indicating that approximately 64 tons of sediment were deposited

into their ponds as a result of Adams’ activities. The factual disparities between

Hughey and this case compel the conclusion that the exception recognized in Hughey

does not apply here.

       Adams argues that even if the Hughey exception does not apply, the Clean

Water Act should not be interpreted to impose a default zero-discharge standard where

no NPDES permit is available. He contends, in essence, that if the Act is interpreted

as requiring a discharge permit which cannot be obtained, then the law requires an

impossibility, with the net result being there is no restriction on his right to discharge.

That contention is inconsistent with the Hughey opinion and our understanding of the

law.

       We agree with Hughey that, but for the limited exception recognized in that case,

“[t]he amended CWA absolutely prohibits the discharge of any pollutant by any




                                            9
person, unless the discharge is made according to the terms of [an NPDES] permit.”1

Id. at 1524. That decision staked out a path developers wishing to avoid liability can

follow where no permit is available and where it would otherwise be impossible to

develop their land without causing some discharge: the developer must be in good-faith

compliance with all state and local requirements prior to any discharge and must

reduce the discharge to a minimum. See id. at 1530. Because it is feasible for a

developer to take the steps required to qualify for the Hughey exception – after all, the

developer in that case took them – Adams’ impossibility argument fails.

      We note that our reading in Hughey of the Clean Water Act as prohibiting (with

one narrow exception) all discharges without a permit is consistent with a Fifth Circuit

decision published almost contemporaneously with Hughey. In Sierra Club, Lone Star

Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546 (5th Cir. 1996), the Sierra Club sued



       1
        Several other courts also have concluded, albeit not in the context of
administratively unavailable permits, that obtaining a permit is the only way a discharger
can avoid violating the Act. See, e.g., E.P.A. v. California ex rel. State Water Resources
Control Bd., 426 U.S. 200, 205, 96 S. Ct. 2022, 2025 (1976) (“Under the NPDES, it is
unlawful for any person to discharge a pollutant without obtaining a permit and
complying with its terms.”); Natural Resources Defense Council, Inc. v. Costle, 568 F.2d
1369, 1375-76 (D.C. Cir. 1977) (“There are innumerable references in the legislative
history [of the Clean Water Act] to the effect that the Act is founded on the ‘basic
premise that a discharge of pollutants without a permit is unlawful and that discharges not
in compliance with the limitations and conditions for a permit are unlawful.’ Even when
infeasibility arguments were squarely raised, the legislature declined to abandon the
permit requirement.” (quoting 118 Cong. Rec. 10215 (1972))).


                                            10
Cedar Point Oil under the citizen suit provision of the Clean Water Act, alleging that

Cedar Point’s discharges of produced water (a by-product of oil and gas drilling which

consists of water and chemicals used in the drilling process) into Galveston Bay

without an NPDES permit violated the Clean Water Act. See Sierra Club, Lone Star

Chapter, 73 F.3d at 550-51. The EPA had never issued a permit for produced water

discharges or promulgated specific effluent limitations for the “Coastal Subcategory”

of oil and gas producers, to which Cedar Point belonged. See id. at 552-53. Cedar

Point argued that because of the EPA’s failure in that regard, it could not be liable for

violating the Clean Water Act. See id. at 559.

      The Fifth Circuit rejected Cedar Point’s position. Like we did in Hughey, the

Fifth Circuit observed that the plain language of the Clean Water Act imposes liability

for discharges without a permit and facially admits of no exception where the required

permit is not available. See id. The court went on to examine the legislative history

of the Act, concluding that the history supported its interpretation of the text. The

court stated:

      We agree with Cedar Point that Congress initially intended that a citizen
      suit based on a violation of § 1311(a) for discharging pollutants without
      a permit would only lie where EPA had issued a relevant effluent
      limitation or permit; that is, where the defendant was discharging
      pollutants without a permit because he had failed to obtain a permit that
      was available, rather than because EPA had failed to issue such permits.
      This intent is clearly established by the inclusion of particular dates in the
      statute, as explained by the legislative history.

                                           11
Id. at 559-60. The court determined, however, that Congress did not intend for the

unavailability of an NPDES permit to excuse discharges indefinitely. Congress

provided that the citizen suit provision would become effective almost nine months

after enactment of the Clean Water Act, in order to allow “sufficient time . . . for the

State and Federal governments to develop fully, and execute the authority contained

in [§ 1342, which provides for NPDES permits].” Id. at 560 & n.27 (quoting S. Rep.

No. 414, 92d Cong., 1st Sess. 81 (1971)) (emphasis omitted). Because that effective

date and others have long since passed, and Congress has not postponed them or placed

any other restrictions on bringing suit, the court concluded it would defeat

Congressional intent to extend those dates indefinitely. See id. at 560-61.

      The Fifth Circuit’s decision in Sierra Club, Lone Star Chapter reinforces our

interpretation of the Clean Water Act in Hughey. For the reasons set forth in those two

decisions, we reject Adams’ position that the Clean Water Act’s zero-discharge

standard does not apply where the required NPDES permit is not available.2 We

decline to extend the narrow exception recognized in Hughey to cover the

circumstances presented in this case.




       2
        In reaching this conclusion, we decline Adams’ invitation to adopt the Seventh
Circuit’s decision in Stream Pollution Control Board of the State of Indiana v. United
States Steel Corp., 512 F.2d 1036 (7th Cir. 1975).

                                           12
     B. DID ADAMS’ DISCHARGES FALL WITHIN THE SCOPE OF
  PROHIBITED POLLUTANT DISCHARGES UNDER THE CLEAN WATER
                           ACT?

      Adams also contends that this court should affirm the district court’s award of

summary judgment to him for two additional reasons. First, he argues that the material

he discharged into the Spiva Branch stream was not a “pollutant” under the Clean

Water Act. Second, he contends there was no “discharge of a pollutant” within the

meaning of the Act, both because the stormwater runoff did not come from a “point

source,” and because the Spiva Branch stream, being a small-volume stream that flows

only intermittently, is not a navigable water. These two contentions are without merit.



      As to the first one, the definition of “pollutant” in the Act is broad, including,

among other things, “rock, sand, cellar dirt and industrial, municipal, and agricultural

waste. . . .” 40 C.F.R. § 122.2. Sand and silt were two of the primary constituents of

the sediment deposited in the plaintiffs’ ponds as a result of the runoff from Adams’

property. Moreover, the Hughey court specifically held that “[w]hen rain water flows

from a site where land disturbing activities have been conducted, such as grading and

clearing, it falls within this description.” Hughey, 78 F.3d at 1525 n.1.

      As to Adams’ second contention, a “point source” includes “any discernible,

confined and discrete conveyance, including but not limited to, any pipe, ditch,


                                          13
channel, tunnel, conduit” and so on. 40 C.F.R. § 122.2. Here, it is undisputed that

Adams collected stormwater by pipes and other means, and that the stormwater was

discharged into the stream. Furthermore, the Spiva Branch stream is a “navigable

water” within the meaning of the Act. In United States v. Eidson, 108 F.3d 1336 (11th

Cir. 1997), we described the expansive reach of the term “navigable waters” as

follows:

      The CWA [Clean Water Act] defines “navigable waters” as “waters of the
      United States, including the territorial seas.” 33 U.S.C. § 1362(7). This
      broad definition “makes it clear that the term ‘navigable’ as used in the
      Act is of limited import” and that with the CWA Congress chose to
      regulate waters that would not be deemed navigable under the classical
      understanding of that term. . . . Consequently, courts have acknowledged
      that ditches and canals, as well as streams and creeks, can be “waters of
      the United States” under § 1362(7). Likewise, there is no reason to
      suspect that Congress intended to exclude from “waters of the United
      States” tributaries that flow only intermittently.

Eidson, 108 F.3d at 1341-42 (holding that a man-made drainage ditch was a navigable

water under the Clean Water Act) (citations omitted). Thus, the Spiva Branch stream

is a “navigable water” under the Clean Water Act, even if it flows only intermittently.

                                III. CONCLUSION

      We REVERSE both the district court’s award of summary judgment to Adams

and the denial of summary judgment to the plaintiffs on the Clean Water Act claim,

VACATE the district court’s dismissal of the state law claims, and REMAND for

further proceedings consistent with this opinion.

                                          14
