217 F.3d 928 (7th Cir. 2000)
Kurt Froebel,    Plaintiff-Appellant,v.George E. Meyer, et al.,    Defendants-Appellees.
No. 98-3925
In the  United States Court of Appeals  For the Seventh Circuit
Argued May 14, 1999Decided June 28, 2000Rehearing and Rehearing En bancDenied July 28, 2000.

Appeal from the United States District Court   for the Eastern District of Wisconsin.  No. 97-C-654--Lynn Adelman, Judge. [Copyrighted Material Omitted]
Before Flaum, Easterbrook, and Diane P.  Wood, Circuit Judges.
Diane P. Wood, Circuit Judge.


1
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.


2
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.


3
* 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.


4
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.


5
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.


6
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.


7
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.


8
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.


9
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

10
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.


11
* 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.


12
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).


13
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

14
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.


15
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:


16
(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).


17
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).


18
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.


19
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.


20
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 . . . .


21
Restatement (2d) Judgments sec. 26(1)(c).


22
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.


23
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.


24
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).


25
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 enjoinWDNR 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.


26
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.


27
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:


28
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.


29
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.


30
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.


31
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

32
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.


33
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).


34
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.


35
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.


36
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.


37
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.


38
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.


39
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).


40
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.


41
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

42
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


43
Affirmed.

