Petition for Writ of Certiorari — Adams v. Driscoll

-_orei& OF THE CLERK

In The

Supreme Court of the United States

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ROSS ADAMS,

Petitioner,

V.

DAVID & BARBARA DRISCOLL,

RUEL & PATRICIA GALBREATH,

: Respondents.

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On Petition For A Writ of Certiorari

To The United States Court of Appeals

For the Eleventh Circuit

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PETITION FOR A WRIT OF CERTIORARI .

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Ross Adams

3691 Old Bald Mountain Road

Blairsville, Georgia 30512

(706) 745-3679

Fax: (706) 745-2320

er Ce a ae | =

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QUESTIONS PRESENTED

| Whether federal courts have jurisdiction over storm water discharge

citizen suits under the clean water act in the absence of an applicable

effluent standard or limitation promulgated by the EPA or EPD, to

which the federal court can compart the discharge of storm water by

the defendant.

Whether a plaintiff who shows only that he uses and enjoys a pri-

vately owned body of water upstream from a navigable water used

by the public, and who makes no showing that he uses the public

navigable water, and who makes no showing the sediments ever

reaches a body of water used by the public, has standing to bring a

citizen’s suit under the clean water act.

Whether it is fair for a person to file suit against another person on

behalf of the United States of America and the defendant be found

guilty without having a jury trial.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

AUTHORITY

United States Constitution Article III, section 2, clause 3

United States Constitution Article VII

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PETITION FOR A WRIT OF CERTIORARI

Petitioner Ross Adams, respectfully petitions this Court for a

writ of certiorari to review the judgement of the United States Court

of Appeals for the 11th Circuit in this case.

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OPINIONS BELOW

The opinion of The United States Court of Appeals is reported

in Appendix A. The opinion of The United States District Court is

reported in Appendix B.

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JURISDICTION

The court of appeals entered its judgment on July 23, 1999. The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

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PROVISIONS INVOLVED

The Clean Water Act

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STATEMENT OF THE CASE

Toward the end of 1994, the petitioner used money he obtained

through a bank loan to purchase 76 acres of land in Union County,

State of Georgia. Union County is the petitioner’s county of resi-

dence. The petitioner contracted with a timber-harvesting company

called Sparks Lumber Company to harvest the saw timber off this

property. At some point during the operation, Sparks Lumber Com-

pany hired a man named Bobby Thomas to build roads to transport

the harvested timber away from the 76-acre location. At the end of

November 1995, Sparks Lumber Company ended its timber-harvest-

ing operation on the land.

After Sparks Lumber Company completed its timber-harvesting

operation, the petitioner hired a man named Emory Brackett to slash

cut the remaining timber. This process went on until June of 1996.

All land disturbing activities were done during the forestry opera-

tions.

The petitioner continues to maintain a county-approved sedi-

mentation and erosion control plan on the land in question. No legal

action or fines have ever been imposed by any county, state, or fed-

eral governmental agencies for his land development activities.

However, David Driscoll and Barbara Driscoll, residents of

Florida, filed suit against the petitioner, alleging that he had violated

the Clean Water Act. Donald Stacks, an attorney specializing in

environmental law, represented the Driscoll’s.

The Driscoll’s own a vacation home below the petitioner’s land.

They have a small pond beside the vacation home. The stream that

feeds this pond originates from a mountain spring on the petitioner’s

land. While Sparks Lumber Company built roads on the petitioner’s

land in 1994-1995, silt washed down from the petitioner’s land and

accumulated in the Driscoll’s pond.

When the petitioner discovered that the Driscoll’s were unhappy

with the accumulation of silt in their pond, he offered to repair the

pond.

The Driscoll’s refused the petition’s offer and filed suit. Ruel

and Patricia Galbreath, who own land used for vacationing that ad-

joins the Driscoll’s property, filed suit in conjunction with the

Driscoll’s. The pond on the Galbreath’s property is fed by the water

runoff from the Driscoll’s pond.

The question at hand is whether the petitioner violated the Clean

Water Act. Opinions are conflicting. In The United States District

Court, Judge O’Kelley ruled in favor of Adams, in accordance with

the magistrate court opinion. In The United States Court of Ap-

peals, Judge Ed Carnes ruled in favor of the Driscoll’s and

Galbreath’s.

The petitioner has not received a trial by jury in this case, de-

spite his efforts to procure one. However, this right is afforded him

by The United States Constitution.

Article III, section 2, clause 3 of the United States Constitution

states: “The trial of all crimes, except in cases of impeachment, shall

be by jury, and such a trial shall be held in the state where the crimes

shall have been committed. . .”

Article VII of the United States Constitution states: “In Suits at

common law, where the value in controversy shall exceed twenty

dollars, the right of trial by jury shall be preserved, and no fact tried

by a jury, shall be otherwise re-examined in any Court of the United

States, than according to the rules of the common law.”

Donald Stacks, council for the Driscoll’s and the Galbreath’s,

cites several cases in his brief that are totally irrelevant in this case.

In fact, most of the precedents he cites apply to the discharge of

chemical waste by factories, not the washing of natural sediment

into a pond. The discharge of chemical waste into streams, rivers,

and oceans is of great concern, but one cannot equate natural sedi-

ment (dirt) to the deliberate discharge of man-made chemical waste.

The ridiculous nature of this case merits it be thrown out of court.

The petitioner has always been and continues to be, sensitive to

the need for environmental law. The plethora of environmental is-

sues that confront us-deforestation, air pollution, acid rain, water

pollution, among many others-certainly need our immediate atten-

tion. But to misapply the laws we have put in place to remedy envi-

ronmental problems further retards our efforts to improve our situa-

tion: The purpose of environmental law is to procure a safe, cleaner

environment for ourselves and our children, not to allow one human

being to unjustly take from another. Environmental law should never

be used to allow a plaintiff to capitalize on the assets of others. With

a large monetary award, the Driscoll’s and the Galbreath’s will cer-

tainly capitalize on the petitioner’s assets, and set a precedent for

more lawsuits similar to this one in the future.

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REASONS FOR GRANTING THE PETITION

A Supreme Court ruling regarding the interpretation of The Clean

Water Act would help mediate contradictory judgments by lower

courts, as exemplified in this case.

Any action by the Supreme Court would aid county, state, and

federal officials in interpreting and enforcing The Clean Water Act

in its proper form. Present circumstances merit such a ruling, since

there is much confusion among authorities as to how the law should

be interpreted.

The need for environmental law is great, but the need to enforce

it properly is even greater. As this case exemplifies, some will try to

capitalize on the assets of others, not in the sense of improving the

conditions for which laws are made, but for personal financial gain.

Lower courts should not consider disputable facts without a trial,

especially when there is so much to lose in terms of reputation and

money. The petitioner works for no large corporation; he does not

have several million dollars to hire a team of attorneys to represent

him, nor does he have a large amount of cash on hand to pay court

fees and settlements.

There is much to be reconciled in this case, in the interest of

truth. There are witnesses who have not yet testified, as well as

photographs and other evidence not yet seen by a judge.

In the interest of justice, the petitioner respectfully requests a

trial by jury before he loses the ability to support his family.

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CONCLUSION

The petitioner was granted a motion to dismiss, in the United

States Federal District Court, Northern District of Georgia. At the

United States Federal District Court, the Driscoll and Galbreath

motion for summary judgement was denied.

The plaintiffs appealed this decisiontethe | 1th Circuit Court of

Appeals. As a result, both decisions of the lower courts were re-

versed and a ruling was entered against the petitioner.

In the interest of justice, the petition for a writ of certiorari should

be granted.

Respectfully submitted,

Ross Adams

App. |

APPENDIX A

United States Court of Appeals

Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

Thomas K. Kahn In Replying Give Number

Of Case And Names of Parties

July 23, 1999

MEMORANDUM TO COUNSEL OR PARTIES

RE: 98-8532-CC Driscoll v. Adams

DC DKT NO.: 96-00175 2-CV-WCO

Enclosed is a copy of the court’s decision filed today in this appeal.

Judgement has this day been entered pursuant to Rule 36 of the Fed-

eral Rules of Appellate Procedure. Fed.R.App.P. 39, 40 and 41, and

the corresponding circuit rules govern cost, petitions for rehearing

and mandate respectively.

To be timely, a petition for rehearing or for rehearing a suggestion of

en banc consideration must be received in the clerk’s office within

twenty-one (21) days of the date of this opinion and judgement, ex-

cept that: in CIVIL cases in which the United States or an agency or

officer thereof is a party, the time within which any party may seek

rehearing shall be FORTY-FIVE (45 DAYS) after entry of judg-

ment. See Fed.R.App.P.40(a). No additional time for service by

mail is permitted. See 11th Cir.R. 40-2.

If attorney’s fees on appeal are authorized by law they must be sought

App. 2

by filing a petition for attorney’s fees with this office within four-

teen (14) days of the date of this letter. Davidson v. City of Avon

Park, 848 F.2d 172, 174 n.4 (11th Cir., 1998). :

Pursuant to Fed.R.App.P.39,

Sincerely, ,

THOMAS K. KAHN, Clerk

Reply To: Nancy Gilman (404) 335-6151

Encl.

OPIN-1A (1-1999) [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-8532

D. C. Docket No. 2:26-CV-175-WCO

DAVID & BARBARA DRISCOLL, and

RUEL & PATRICIA GALBREATH,

Plaintiffs-Appellants,

App. 3

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 judgement

to defendant Ross Adams on their Clean Water Act claim, which

arose out of Adams’ discharge of allegedly polluted storm water 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 pollutant into a navi-

gable water as defined by the Act. We reject both of those argu-

ments and reverse the district court’s grant of summary judgement.

App. 4

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 Driscoll’s

property. The Spiva Branch stream flows downhill from Adams’

property through a pond on the Driscoll’s property and then through

another pond on the Galbreath’s property, before merging with the

Nottely River, which flows across the Georgia-Tennessee border and

unites with the Tennessee River. The Driscoll’s and Galbreath’s claim

in their complaint, and the magistrate judge found, that storm water

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, in-

stalled storm pipes, and cut and removed timber. Adams then pro-

ceeded to develop the property, putting gravel on the roads, building

culverts and check dams to channel the storm water runoff, and di-

viding 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 stabi-

lize 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 preventative mea-

sures 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 work on his property.

After all of the timber harvest and much of the development were

App. 5

already completed, he filed for the required state permit in Septem-

ber 1996. He did not obtain a county development permit until Feb-

ruary 1997, two months after the filing of the complaint in this law-

suit. As for federal law requirements, Adams never obtained a Na-

tional 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 storm water permit

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

plaintiffs contend, however, that other NPDES permits were avail-

able, including an individual storm water 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, 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 judgement. 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 judg-

ment. 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).

App. 6

Il. 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 contents 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” AP-

PLY WHERE THE NPDES PERMITS REQUIRED FOR LAW-

FUL 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 un-

lawful.” 22 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 Ad-

ministrator 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. Pursu-

ant to that program, the Georgia Environmental Protection Division

(“EPD”) has attempted several times over the past few years to issue

a general NPDES storm water discharge permit. Unlike an indi-

App. 7

vidual 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 storm water permits be-

cause of court challenges brought by concerned citizens. Thus, the

general NPDES storm water discharge permit is not and never has

been available.

The plaintiffs argued in their briefs to us that although the gen-

eral storm water discharge permit was not available to Adams, other

acceptable NPDES permits, including an individual storm water dis-

charge permit and other 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 storm water

discharge permits in Georgia. The record is equally devoid of any

evidence suggesting that other general of individual NPDES point

source discharge permits for storm water discharge were being is-

sued in Georgia.

Thus, the issue in this case is whether 131 1(a)’s zero-discharge

standard applies to a discharger who could not obtain a NPDES per-

mit because none was available. The Court has previously addressed

the implications of unavailable NPDES permit under the Clean Wa-

ter 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 storm water without an NPDES

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

because JMS had implemented state-of-the-art sedimentation con-

trol devices in accordance with all state and local requirements. See

id. at 1526. JMS had not obtained the required NPDES permit, how-

App. 8

ever, because it was not available from the Georgia EPD. See id, at

1525.

In order to determine whether JMS had violated the Clean Wa-

ter 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 commit-

ment 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) compli-

ance with the zero-discharge standard was factually impossible be-

cause there would always be some storm water 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 make it clear that all four of the ele-

ments were essential to the exception. See id.

Two of the Hughey elements are lacking in this case. First, un-

like the discharger in Hughey, who had “made every good-faith ef-

fort to comply with the Clean Water Act and all other relevant pollu-

tion control standards” by implementing pollution-control measures

and obtaining local permits, id., in this case Adams did little or noth-

App. 9

ing to limit erosion or storm water discharge before beginning con-

struction. He sought none of the required permits until after consid-

erable damage has been done to the Driscoll’s and Galbreath’s prop-

erties. Second, we emphasized in Hughey that “‘[t]he facts of this

case necessarily limit our holding to situations in which the storm

water discharge is minimal, as it was here.” Id. By contrast, in this

case the amount of Adams’ storm water discharge and the resulting

damages 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 dispari-

ties 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 dis-

charge 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 recog-

nized in that case, “[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.” 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 other-

wise be impossible to develop their land without causing some dis-

charge: the developer must be in good faith compliance with all state

and locai requirements prior to any discharge and must reduce the

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

App. 10

a developer to take the steps required to qualify for the Hughey ex-

ception - after all, the developer in that case took them - Adams’

impossibility argument fails.

We note that our readings in Hughey of the Clean Water Act as

prohibiting (with one narrow exception) all discharges without a

permit is consistent with the Fifth Circuit decision published almost

contemporaneously with Hughey. In Sierra Club, Lone Star Chap-

ter v. Cedar Point Oil Co., Inc., 73 F.3d 546 (Sth Cir. 1996), the

Sierra Club sued Cedar Point Oil under the citizen suit provision of

the Clean Water Act, alleging that Cedar Point’s discharges of pro-

duced 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 F3d at 550-51. The EPA had never

issued a permit for produced water discharges or promulgated spe-

cific 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 his-

tory of the Act, concluding that the history supported its interpreta-

tion 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

App. 11

pollutants without a permit would only lie where EPA had is-

sued 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 stat-

ute, as explained by the legislative history.

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 pro-

vision 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 au-

thority contained in [1342, which provides for NPDES permits].”

Id. at 560 & n.27 (quoting S. Rep. No. 414, 92nd Cong., Ist 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’ posi-

tion that the Clean Water Act’s zero-discharge standard does not

apply where the required NPDES permit is not available. We de-

cline to extend the narrow exception recognized in Hughey to cover

the circumstances presented in this case.

<<

App. 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 rea-

sons. First, he argues that the materials he discharged into the Spiva

Branch stream was not a “pollutant” under the Clean Water Act.

Second, he contends there was no “discharge of pollutant” within

the meaning of the Act, both because the storm water 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

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, cellular 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 grading and clearing, it falls within the de-

scription.” 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 lim-

ited to, any pipe, ditch, channel, tunnel, conduit” and so on. 40 C.F.R.

122.2. here, it is undisputed that Adams collected storm water by

pipes and other means, and that the storm water, 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

App. 13 :

the term “navigable waters” as follows:

The CWA [Clean Water Act] defines “navigable waters” as “wa-

ters of the United States, including territorial seas.” 33 U.S.C.

1362(7). This broad definition “makes it clear that the term ‘navi-

gable’ as used in the Act is of limited import” and that with the

CWA Congress chose to regulate waters that would to be deemed

navigable under the classical understanding of that term... .

Consequently, courts have acknowledged that ditches and ca-

nals, 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” un-

der the Clean Water Act, even if it flows only intermittently.

Ill. CONCLUSION

We REVERSE both the district court’s award of summary judg-

ment to Adams and the denial of summary judgment to the plaintiffs

on the Clean Water Act claim, VACATE the district court’s dis-

missal of the state law claims, and REMAND for further proceed-

ings consistent with this opinion.

App. 14

United States Court of Appeals

Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

In Replying Give Number

Thomas K. Kahn

Of Case And Names of Parties

Clerk

September 17, 1999

MEMORANDUM TO COUNSEL OR PARTIES

RE: 98-8532-CC Driscoll v. Adams

DC DKT NO.: 96-001-75 2-CV-WCO

The enclosed order has been entered on petition(s) for rehearing.

See Rule 41, Federal Rules of Appellate Procedure, and Eleventh

Circuit Rule 41-1 for information regarding issuance and stay of

mandate.

Sincerely,

THOMAS K. KAHN, Clerk

Reply To: Karen Turner/ck (404) 335-6172

Enc

App. 15

REHG-1 (1-1999)

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 98-8532-CC

DAVID DRISCOLL, BARBARA DRISCOLL,

RUEL GALBREATH, and PATRICIA GALBREATH,

Plaintiffs-Counter-Defendants-Appellants,

versus

ROSS ADAMS,

Defendant-Counter-Claimant-Appellee.

On Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR RE-

HEARING EN BANC

(Opinion ,11thCir., 19, F.2d ).

Before: EDMONDSON AND CARNES, Circuit Judges, and

WATSON*, Senior Judge

App. 16

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member of this

panel nor other Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5),

the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

UNITED STATE CIRCUIT JUDGE

ORD-42(6/95)

*Honorable James L. Watson, Senior Judge for the U.S. Court of

International Trade, sitting by designation.

Appendix B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

GAINESVILLE DIVISION

DAVID and BARBARA DRISCOLL

RUEL and PATRICIA GALBREATH._ : CIVIL ACTION

NO.

2:96-cv-175-

WCO

Plaintiffs

ROSS ADAMS

App. 17

Defendant

JUDGMENT

This action having come before the court, Honorable William

C. O’Kelley, Senior United States. District Judge, for consideration

of magistrate’s report and recommendation, and the Court having

adopted the report and recommendation as the order of the Court

DENYING plaintiffs’ motion for summary judgment and GRANT-

ING defendant’s motion for summary judgment, it is

ORDERED AND ADJUDGED that the plaintiffs, David and

Barbara Driscoll and Ruel and Patricia Galbreath, recover nothing

of the defendant, ROSS ADAMS, that the action be dismissed and

that the defendant recover of the plaintiffs costs of this action.

Dated at Gainesville, Georgia, this 30th day of March, 1998.

LUTHER D. THOMAS, CLERK

By:

Deputy Clerk

Filed & entered in Clerk’s Office

This 30th day of March, 1998.

LUTHER D THOMAS, CLERK

By:

Deputy Clerk

App. 18

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

GAINESVILLE DIVISION __,

DAVID and BARBARA DRISCOLL

RUEL and PATRICIA GALBREATH =: CIVIL ACTION NO.

2:96-cv-175-WCO

Plaintiffs

ROSS ADAMS

Defendant

ORDER

The captioned case is before the court for consideration of the

magistrate judge’s report and recommendation [50-1]. The report

and recommendation was filed on February 10, 1998. The magis-

trate judge recommends that the plaintiffs’ motion for summary judg-

ment be denied [32-1] and defendant’s motion to dismiss, treated

herein as a motion for summary judgment, be granted [21-1]. Plain-

tiffs filed objections to the report and recommendation on February

20, 1998. The court heard oral argument on the pending motions on

March 23, 1998.

This case arises out of construction activities undertaken by de-

fendant on defendant’s property. Plaintiffs sued defendant alleging

violations of the Federal Clean Water Act (CWA) as well as various

state law claims. The magistrate judge recommends that plaintiffs’

claim under CWA be dismissed pursuant to Hughey v. JMS Devel-

opment Corp., 78, F.3d 1523 (11th Cir. 1996). The magistrate judge

App. 19

further recommends that plaintiffs’ state law claims be dismissed

for lack of jurisdiction. See Faucher v. Rodziewicz, 891 F.2d 864

(11th Cir. 1990). This court agrees.

After careful review of plaintiffs’ objections, the court is satis-

fied that the magistrate judge’s report and recommendation is accu-

rate as a matter of law and fact. Accordingly, the court hereby

ADOPTS the report and recommendation as the order of this court

[50-1]. Plaintiffs’ motion for summary judgment is hereby DENIED

[32-1]. Defendant’s motion to dismiss, treated herein as a cross

motion for summary judgment, is hereby GRANTED [21-1].

IT IS SO ORDERED this 25th day of March, 1998.

WILLIAM C. O’KELLEY

Senior United States District Judge