Driscoll v. Adams

• Citation: 181 F.3d 1285
• Decision Date: 23 July 1999
• Docket Number: No. 98-8532,98-8532
• Parties: (11th Cir. 1999) David & Barbara DRISCOLL, and Ruel & Patricia Galbreath, Plaintiffs-Appellants, v. Ross ADAMS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1285

181 F.3d 1285 (11th Cir. 1999)

David & Barbara DRISCOLL, and Ruel & Patricia Galbreath, Plaintiffs-Appellants, v. Ross ADAMS, Defendant-Appellee.

No. 98-8532.

United States Court of Appeals, Eleventh Circuit.

July 23, 1999.

Appeal from the United States District Court for the Northern District of Georgia. No. 2:96-CV-175-WCO, William C. O'Kelley, Judge.

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

CARNES, Circuit Judge:

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 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 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.

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. 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 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 "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...