John W. Mrosek v. City of Peachtree City

Case: 15-10289 Date Filed: 11/13/2015 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-10289
Non-Argument Calendar
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D.C. Docket No. 3:12-cv-00094-TCB

JOHN W. MROSEK,
LEE M. MROSEK,

Plaintiffs-Appellants,

versus

CITY OF PEACHTREE CITY,
MAYOR DON HADDIX,
GEORGE DIENHART,
Individually and as Member of the Peachtree City Council,
ERIC IMKER,
Individually and as Member of the Peachtree City Council,
KIM LEARNARD,
Individually and Member of the Peachtree City Council,
VANESSA FLEISCH,
Individually and as Member of the Peachtree City Council,

Defendants-Appellees.
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________________________

Appeal from the United States District Court
for the Northern District of Georgia
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(November 13, 2015)

Before WILSON, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

John and Lee Mrosek (the Mroseks) appeal the district court’s grant of

summary judgment to the city of Peachtree City, four members of the Peachtree

City Council, and Mayor Don Haddix (collectively, the City), in the Mroseks’

lawsuit alleging that the City violated the Federal Water Pollution Control Act

(Clean Water Act), 33 U.S.C. § 1365(a), as well as several Georgia laws, by failing

to do maintenance and repairs on a stream, pond, and dam (Stream, Pond, and

Dam, respectively) located partially on the Mroseks’ property. After thorough

consideration of the briefs and review of the record, we affirm.

I.

“We review the district court’s grant of summary judgment de novo,

viewing the materials presented and drawing all factual inferences in a light most

favorable to the non-moving party.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d

1220, 1225 (11th Cir. 2005). Summary judgment is properly granted if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

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matter of law.” Fed. R. Civ. P. 56(a). “The mere existence of a scintilla of

evidence in support of the [nonmovant’s] position will be insufficient; there must

be evidence on which the jury could reasonably find for the [nonmovant].”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986).

II.

The Clean Water Act “allows states to implement their own permit programs

. . . and Georgia has done so.” Parker v. Scrap Metal Processors, Inc., 386 F.3d

993, 1005 (11th Cir. 2004). Georgia obtained a permit under the National

Pollutant Discharge Elimination System (NPDES) permit program, which

“impose[s] limitations on the discharge of pollutants, and establish[es] related

monitoring and reporting requirements.” See Friends of the Earth, Inc. v. Laidlaw

Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174, 120 S. Ct. 693, 701 (2000); accord

Driscoll v. Adams, 181 F.3d 1285, 1288 (11th Cir. 1999). Peachtree City, as a

small municipal separate storm sewer system operator (MS4) under NPDES permit

regulations, filed the requisite Notice of Intent with the Georgia Environmental

Protection Division in order to discharge stormwater into navigable waters under

the general NPDES permit. 64 Fed. Reg. 235 p. 68722. As a result, Peachtree

City is subject to the Clean Water Act and NPDES permit requirements of

stormwater management. See Driscoll, 181 F.3d at 1288.

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In 2001, the Atlanta Regional Commission published a three-volume

guidebook called the Georgia Stormwater Management Manual (Blue Book) in

order to provide guidance on stormwater runoff. While the Blue Book has no

independent regulatory authority, the City’s local ordinance, which brings the

municipality into compliance with the NPDES permit, incorporates the standards

set forth in the Blue Book. See Peachtree City, Ga., Code of Ordinances

(hereinafter Ordinance) pt. II, app. B, art. X, § 1011(a)(6).

Of relevance to the instant appeal, the Ordinance is applicable to any “new

development” or “redevelopment.” The Ordinance defines “new development” as

“a land development activity on a previously undeveloped site.” Id. § 1011(a)(7).

“Redevelopment” is “a land development project on a previously developed site, . .

. exclud[ing] . . . exterior changes or improvements which do not materially

increase or concentrate stormwater runoff, or cause additional nonpoint source

pollution.” 1 Id. The Ordinance does not apply to “[r]epairs to any stormwater

management facility or practice deemed necessary by the city engineer.” Id.

§ 1011(a)(2)(b)(iv).

III.

1
As relevant here, one of the following criteria must also be met: “(i) New development that
involves the creation of 5,000 square feet or more of impervious cover, or that involves other
land development activities of one acre or more; [or] (ii) [r]edevelopment that includes the
creation, addition or replacement of 5,000 square feet or more of impervious cover, or that
involves other land development activity of one acre or more . . . . ” Id. § 1011(a)(2)(a).
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It is undisputed that the Stream, Pond, and Dam were constructed prior to

publication of both the Blue Book in 2001 and enactment of the Ordinance in

2007. See id. § 1011. Thus, they do not constitute new development or

redevelopment. See id. §§ 1011(a)(2)(a), (a)(7). And the Mroseks point to no

authority stating that the Ordinance or the Blue Book standards are retroactively

applicable to stormwater facilities already in existence when the Ordinance was

enacted or the Blue Book was published. Accordingly, the City would only have

to bring the Stream, Pond, and Dam into compliance with the Ordinance and the

Blue Book standards if some new development or redevelopment affected

stormwater runoff to the Stream, the Pond, or the Dam. See id. § 1011(a)(2)(a).

In 2011, a neighboring church (Church) located near the Stream, Pond, and

Dam expanded the parking lot on its property and built a detention pond designed

to mitigate stormwater runoff issues. The Mroseks argue that this expanded

parking lot, which added over 100,000 square feet of impervious surface, should be

considered new development or redevelopment that causes stormwater to run off

into the Stream, Pond, and Dam, bringing them within the purview of the

Ordinance. However, the Mroseks did not establish that this redevelopment

triggered the City’s obligation under the Ordinance to retrofit the Stream, Pond,

and Dam because they did not present sufficient evidence showing that stormwater

from the expanded parking lot ran into those areas. A redevelopment must

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“materially increase” stormwater runoff in order to fall within the definition of

“redevelopment” under the Ordinance. Id. § 1011(a)(7). The City presented

evidence that the Church built its own detention pond, which accounted for any

additional runoff created by the parking lot. Moreover, a 2011 Integrated Science

& Engineering, Inc. study (ISE Study), completed before construction of the

expanded parking lot began, concluded that if the Church built an onsite detention

pond, stormwater runoff to the Pond would not increase. In contrast, the Mroseks

presented only an affidavit from an engineer, citing to the ISE Study and stating

that the Church improvements had “some impact” on the Pond. They did not

provide any qualitative data in support of that statement. This is insufficient to

show that the Church’s expansion affected the Stream, Pond, and Dam such that

retrofitting was required under the Ordinance and Blue Book standards. See

Anderson, 477 U.S. at 252, 106 S. Ct. at 2512.

Further, even if the Church’s expansion caused an increase in stormwater

runoff, such that retrofitting was required, § 1011(a)(2)(b)(iv) permitted the City to

defer maintenance because the City engineer deemed deferral necessary. See

Ordinance pt. II, app. B, art. X, § 1011(a)(2)(b)(iv). The evidence showed that the

City had solicited regular studies and assessments of the Pond and Dam, and based

upon those reports (which concluded the Dam was not in imminent danger of

failure) and the City’s lack of funding, the City engineer determined that repairs

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would be completed in the future. The Mroseks presented no evidence to show

that the City failed to assess the Stream, Pond, or Dam, or that the reports were

wrong. They therefore failed to establish that the City engineer’s determination to

defer maintenance was outside the discretion granted by the Ordinance. See

Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990) (“A [nonmoving party]

may not rest upon mere allegations or denials of his pleadings, but must set forth

specific facts showing that there is a genuine issue for trial.” (internal quotation

marks omitted)).

The Mroseks argue that the deference accorded to the City engineer exceeds

the discretion permitted to MS4s under the NPDES regulations. However, the

Environmental Protection Agency explains that “MS4s need the flexibility to

optimize reductions in storm water pollutants on a location-by-location basis” and

that the City may consider various factors in its evaluative process, including

“implementation schedules, current ability to finance the program, . . . and capacity

to perform operation and maintenance.” 64 Fed. Reg. 235, p. 68754. Therefore,

the City’s decision to defer maintenance was not a violation of its NPDES permit

or the Clean Water Act. 2

2
The Mroseks also argue that the deference accorded to the City engineer under the Ordinance
violates the terms of the Blue Book incorporated in the Ordinance. However, the Ordinance
specifically contemplates the inclusion of additional local rules. See Ordinance pt. II, app. B, art.
X, § 1011(a)(6) (“The city will utilize the policy, criteria and information including technical
specifications and standards in the latest edition of the [Blue Book] and any relevant local
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IV.

The district court did not err in granting summary judgment to the City.

There was no genuine dispute of material fact with respect to the City’s

responsibility to undertake maintenance and repairs of the Stream, Pond, and Dam,

and the Mroseks failed to establish that the City’s failure to do so immediately was

a violation of the Ordinance, the standards set forth in the Blue Book, or the Clean

Water Act. They did not present sufficient evidence that the new development or

redevelopment by the neighboring Church affected stormwater runoff to the

Stream, Pond, or Dam, such that the City was required to bring them into

compliance with its Ordinance and the Blue Book standards.3 Accordingly, we

affirm.

AFFIRMED.

addenda, for the proper implementation of the requirements of this [O]rdinance.” (emphasis
added)).
3
We decline to consider the Mroseks’ argument that the Ordinance is preempted by the Clean
Water Act because the Mroseks raised it for the first time on appeal. “This court has repeatedly
held that an issue not raised in the district court and raised for the first time in an appeal will not
be considered.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(internal quotation marks omitted).
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