Tammy L. Shaw, 3L

The Eleventh Circuit recently found a landowner liable for damages from runoff under the Clean Water Act (CWA) even though the necessary stormwater discharge permit was not available. The suit was brought by upland landowners after timber harvesting and development left a mountain stream choked with mud, silt and sand. The court held that the resultant stormwater runoff was a pollutant under the CWA, leaving the landowner responsible even though the state did not issue general stormwater permits.

 The plaintiffs owned property on a Georgia mountain with ponds fed by the Spiva Branch stream. Defendant Adams began harvesting timber, cutting and grading roads, and placing pipes to route stormwater runoff downhill through the Spiva Branch. The development resulted in erosion of mud, sand and other materials washing into the plaintiffs' ponds. The damage and the failure of Adams to seek proper regulatory approval led the plaintiffs to seek relief.

 Under the CWA, a discharger must obtain a permit to authorize certain discharges of pollutants.¹ A developer like Adams can obtain a general stormwater permit (which applies to a class of dischargers) or an individual stormwater permit (which applies to an individual discharger) for stormwater runoff. In addition, for discharges from a point source such as a pipe or concentrated area, a developer must obtain a point source permit. Because Georgia had not issued general stormwater permits, Adams successfully argued that compliance with the CWA placed an impossible condition upon him, relieving him of liability under the statute.

The Appeal
The plaintiffs appealed, arguing that Adams could have obtained other permits in lieu of the general stormwater permit, including an individual stormwater permit and a point source discharge permit. This appeal raised two issues: (1) whether the CWA prohibition on pollutant discharge applies when a permit is not available; and (2) whether the stormwater discharge in this case is included under the CWA.
 To decide the issues, the Eleventh Circuit applied the following test. A discharger without a permit is excused from liability if four factors are present: (1) compliance with the CWA discharge prohibition is impossible; (2) no permit is available; (3) the discharger complies with local pollution control requirements; and (4) the discharges are minimal.² The court found that Adams' discharge failed to meet two requirements: first, Adams did little to limit erosion and runoff before construction and neglected to seek any permits until after damage to the adjacent properties; and second, the stormwater discharge and damage were substantial, amounting to about 64 tons of sediment deposited into the plaintiffs' ponds. While obtaining a general stormwater permit would have been impossible for Adams under the circumstances, the court held that it was feasible for him to meet the four requirements. Thus, Adams was not excused from liability.

Defining "Pollutant" and Nonpoint Source Pollution
Adams further argued that the stormwater runoff from his property did not constitute a "pollutant" under the provisions of the CWA. The court found otherwise, citing federal regulations that list "rock, sand, cellar dirt, and industrial, municipal, and agricultural waste . . .", as pollutants.³ In addition, the court followed precedent holding that rain water falls within the description of "pollutant" when it is flowing from a site where land-disturbing activities are conducted.

 Finally, Adams argued that the stormwater runoff of his property did not constitute discharge from a "point source" and that the Spiva Branch was not a navigable waterway. The court disagreed, finding the pipes and dams used to channel runoff to be clearly discernible point sources. Because the CWA broadly defines navigable waters, the court found no indication that Congress intended to exclude small tributaries that flow intermittently, such as the Spiva Branch.

 This case confirms that developers in Georgia, Florida and Alabama must make efforts to limit stormwater discharge before beginning development and obtain permits when available.

For a review of the EPA stormwater discharge rule, see page 10.

ENDNOTES

1. 33 U.S.C. § 1342(a)(1) (1999).
2. See Hughey v. JMS Development Corp., 78 F.3d 1523 (11th Cir. 1996).
3. 40 C.F.R. § 122.2 (1999).

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