Hughey v. JMS Development Corp.

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-8402, 94-8855.

Terence D. HUGHEY, Plaintiff-Appellee,

v.

JMS DEVELOPMENT CORPORATION, Defendant-Appellant.

Terrence D. HUGHEY, Plaintiff-Appellee, Cross-Appellant,

v.

JMS DEVELOPMENT CORPORATION, Defendant-Appellant, Cross-Appellee.

April 1, 1996.

Appeals from the United States District Court for the Northern
District of Georgia. (No. 1:92-CV-2051-RHH), Robert H. Hall, Judge.

Before ANDERSON and CARNES, Circuit Judges, and OWENS*, District
Judge.

OWENS, District Judge:

I. INTRODUCTION

Appellant JMS Development Corporation ("JMS") is the developer

of a 19.2-acre residential subdivision in Gwinnett County, Georgia.

Appellee Terence D. Hughey ("Hughey") is a Gwinnett County

homeowner admittedly opposed to all development in Gwinnett County,

one of metropolitan Atlanta's fastest growing areas. Hughey's

first effort to prevent development of JMS's residential

subdivision was an unsuccessful suit in state court filed during

the course of construction. After the subdivision had been

completed, Hughey sued JMS in United States District Court alleging

that JMS's completed subdivision was continuing to violate the

*
Honorable Wilbur D. Owens, Jr., U.S. District Judge for the
Middle District of Georgia, sitting by designation.
Clean Water Act by allowing storm (rain) water runoff without

possessing a National Pollutant Discharge Elimination System

("NPDES") permit setting forth the conditions under which storm

(rain) water could be discharged.

The undisputed evidence showed that JMS submitted its

subdivision plans and specifications to Gwinnett County for

approval and on March 31, 1992, obtained a county permit to begin

construction. The undisputed evidence further showed that a Clean

Water Act NPDES permit was not then available in the State of

Georgia from the only agency authorized to issue such

permits—Georgia's Environmental Protection Division. The district

court nevertheless found that the Clean Water Act absolutely

prohibited the discharge of any storm (rain) water from JMS's

completed subdivision in the absence of an NPDES permit. Relying

on this finding and rejecting the uncontroverted testimony that

some storm (rain) water discharge beyond the control of JMS would

naturally occur whenever it rained, the district court issued

permanent injunctive relief pursuant to Federal Rule of Civil

Procedure 65(d). The injunction ordered that JMS "not discharge

stormwater into the waters of the United States from its

development property in Gwinnett County, Georgia, known as

Rivercliff Place if such discharge would be in violation of the

Clean Water Act."

The district court also fined JMS $8,500 for continuing

violations of the Clean Water Act and awarded Hughey more than

$115,000 in attorney fees and costs under 33 U.S.C. § 1365(d).

From those orders and judgment of the district court, JMS appeals.
 II. BACKGROUND

A. The Clean Water Act

In 1972 Congress passed the Clean Water Act ("CWA")

amendments, 33 U.S.C. §§ 1251-1387, to remedy the federal water

pollution control program which had "been inadequate in every vital

aspect" since its inception in 1948. EPA v. State Water Res.

Control Bd., 426 U.S. 200, 203, 96 S.Ct. 2022, 2024, 48 L.Ed.2d 578

(1976). The amended CWA absolutely prohibits the discharge of any

pollutant by any person, unless the discharge is made according to

the terms of a National Pollutant Discharge Elimination System

("NPDES") permit. 33 U.S.C. § 1311(a). This "zero discharge"

standard presupposes the availability of an NPDES permit, allowing

for the discharge of pollutants under the conditions set forth in

the permit. Id. § 1342(a)(1). NPDES permits are usually available

from the Environmental Protection Agency ("EPA"); however, 33

U.S.C. § 1342(c)(1) suspends the availability of federal NPDES

permits once a state permitting program has been submitted and

approved by the EPA. Thus, if a state administers its own NPDES

permitting program under the auspices of the EPA, applicants must

seek an NPDES permit from the state agency. See 33 U.S.C. §

1342(c)(1); Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49,

108 S.Ct. 376, 98 L.Ed.2d 306 (1987).

On June 28, 1974, the State of Georgia was authorized by EPA

to administer an NPDES program within its borders. The Georgia

agency responsible for administration of that program is the

Environmental Protection Division ("EPD") of the Georgia Department

of Natural Resources. EPA-issued NPDES permits are thus not
available in Georgia.

Even though the absolute prohibition in Section 1311(a)

applied to storm water discharges, for many years the discharge of

storm (rain) water was a problem that the EPA did not want to

address.1 The EPA complained that administrative concerns

precluded a literal application of the CWA's absolute

prohibition—if the CWA applied to storm (rain) water discharges,

the EPA would be required to issue potentially millions of NPDES

permits. Years of litigation ensued when the EPA promulgated NPDES

permit regulations exempting uncontaminated storm water discharges

from the CWA. See, e.g., Costle, supra note 1.

The congressional response to this baffling situation was the

Water Quality Act, Pub.L. No. 100-4, 101 Stat. 7 (1987) (codified

as amended in scattered sections of Title 33 U.S.C.), which amended

the CWA to provide specifically that "storm water" discharges were

within the CWA's proscription. See 33 U.S.C. § 1342(p). Because

of the administrative nightmare presented by the inclusion of storm

(rain) water discharges, Congress chose a phased-in approach. "The

purpose of this approach was to allow EPA and the states to focus

their attention on the most serious problems first." NRDC v. EPA,

966 F.2d 1292, 1296 (9th Cir.1992).

The phased-in approach established a moratorium until October

1
Under the CWA, the term "pollutant" is inclusive of "rock,
sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water." Id. § 1362(6). When rain water
flows from a site where land disturbing activities have been
conducted, such as grading and clearing, it falls within this
description. See, e.g., Natural Resources Defense Council, Inc.
v. Costle, 568 F.2d 1369, 1377 (D.C.Cir.1977); 40 C.F.R. § 122.2
(defining pollutant).
1, 1992, on requiring permits for most storm water discharges.

Id.; Water Quality Act, § 402(p), 33 U.S.C. § 1342(p). However,

"discharge[s] associated with industrial activity"2 were excepted
from this moratorium. Water Quality Act, § 402(p)(2)(B), 33 U.S.C.

§ 1342(p)(2)(B). Section 402(p)(2)(B) required the EPA no later

than February 4, 1989, to establish regulations setting forth

permit application requirements for industrial storm water

discharges. Those seeking such permits were to file an application

no later than February 4, 1990, and permit applications were to be

rejected or accepted by February 4, 1991. Id.

EPA failed to meet the statutory timetable, so it extended the

deadline for submitting a permit application until October 1, 1992.

The Natural Resources Defense Council ("NRDC") sued the EPA for

granting this extension. The Ninth Circuit Court of Appeals

granted NRDC's request for declaratory relief, but denied

injunctive relief, stating the "EPA will duly perform its statutory

duties." NRDC v. EPA, 966 F.2d at 1300. On September 3, 1992, the

EPA confirmed the Ninth Circuit's faith by issuing its final

general permits for storm water discharges associated with

industrial activity; applicants were to submit their request for

2
Under EPA guidelines, "storm water discharge associated
with industrial activity" is inclusive of construction activity,
which is in turn defined as "clearing, grading and excavation
activities except: operations that result in the disturbance of
less than five acres of total land area which are not part of a
larger common plan of development or sale." 40 C.F.R. §
122.26(b)(14)(x). This regulation, to the extent it sought to
exempt from the definition of "industrial activity" construction
sites of less than five acres, was invalidated on the grounds
that it was arbitrary and capricious. NRDC v. EPA, 966 F.2d
1292, 1305-06 (9th Cir.1992). Even so, the regulation still
provides that industrial activity is inclusive of construction.
a permit by no later than October 1, 1992.

Since a state agency's action in advance of that taken by the

EPA might be disapproved as inconsistent with the EPA's eventual

position, Georgia EPD has always followed the EPA's lead in the

promulgation of NPDES permits. See generally Georgia EPD's Amicus

Brief, at 5. Consistent with this approach, Georgia EPD began the

public notice portion of the storm (rain) water discharge permit

promulgation process only after the EPA had acted. On September

23, 1992, less than one month after the EPA had issued its general

permits, Georgia EPD issued public notice of its intent to issue

two general permits, one of which would cover storm water

discharges from construction activities involving land-disturbing

activities of five acres or more. An affidavit from the section

chief of Georgia EPD's Water Protection Branch summarized the state

of the law in Georgia up to that time: "[N]o NPDES program for

issuing NPDES permits has been in place [in Georgia] for storm

water runoff from construction activities."

B. The JMS Residential Subdivision

In early 1992—when NPDES permits covering storm (rain) water

were not available in Georgia—JMS planned to develop its 19.2-acre

residential subdivision and for that purpose submitted its plans

and specifications to Gwinnett County. In developing these plans

and specifications, JMS hired a firm of consulting engineers, who

were to supervise the design and control of sedimentation control

measures and help ensure that JMS remained in compliance with

relevant pollution control requirements.

On March 31, 1992, JMS received a permit from Gwinnett County
 3
authorizing it to conduct land-disturbing activities. In

accordance with requests from state and county officials, JMS spent

more than $30,000 installing state of the art sedimentation control

devices, including silt fences, check dams, vegetation, sloping,

and a sedimentation retention basin. The erosion and sedimentation

control measures met or exceeded Gwinnett County's requirements.

Prior to beginning construction, JMS had done everything

possible to comply with the legal requirements of building a small

residential subdivision. On the county level, County Inspector

George Michael Fritcher deposed that JMS was in compliance; at the

state level, David Word, Chief of EPD's Water Protection Branch,

stated that EPD would not (could not) have done anything with

respect to an NPDES permit for storm water discharges even if JMS

had applied for one prior to beginning the development; and at the

federal level resort to the EPA was foreclosed to JMS because, as

noted, Georgia's NPDES program exists in lieu of the federal NPDES

program.

With Gwinnett County's blessing, JMS began to clear, grade,

and grub the property for the construction of streets, gutters, and

storm sewers. JMS channelled its discharge of rain water as

dictated by the county permit requirements. The discharges that

3
According to David Tucker, Development Review Manager for
Gwinnett County, this permit served as "authorization for
land-disturbing activity as required by the Development
Regulations of Gwinnett County[, which] has the authority to
administer [Georgia's] Soil Erosion and Sedimentation Control Act
of 1975 in Gwinnett County. As part of this permitting
procedure, JMS Development Corporation submitted a soil erosion
and sedimentation control plan which was approved by the Gwinnett
County Planning and Development." See also Billew Affidavit;
Ballard Affidavit (exh. A).
occurred, as noted by the district court, were minimal and posed

"no threat to human health." Further, much of the damage caused by

the discharges would have been "reversed with the passage of a

relatively short amount of time." Within this 19.2-acre

subdivision, approximately 4.64 acres were disturbed by actual

construction of storm sewers, curb, guttering, and streets.

Once all subdivision construction had been completed and the

storm sewers, curbing, guttering, and streets had been dedicated or

conveyed to Gwinnett County, a plat of the completed subdivision

showing approval by Gwinnett County's various agencies was recorded

in the land records of Gwinnett County on August 6, 1992. JMS was

from this point forward engaged in no further construction or land

disturbing activities.

C. Hughey's Clean Water Act Civil Action

On August 28, 1992, Hughey sued JMS under the citizen's suit

provision of the Clean Water Act, 33 U.S.C. § 1365,4 alleging that

JMS had violated the CWA by discharging storm (rain) water from a

"point source" on its property into "the waters of the United

States" without an NPDES permit. See 33 U.S.C. §§ 1311, 1342.

Hughey alleged that JMS's discharges of storm (rain) water were in

association with industrial activity. See 40 C.F.R. §

122.26(b)(14)(x) (industrial activity includes construction, which

4
Section 1365(a) authorizes any citizen to "commence a civil
action on his own behalf—(1) against any person ... who is
alleged to be in violation of (A) an effluent standard or
limitation under this chapter...." The section further provides
that "effluent standard or limitation" is inclusive of "an
unlawful act under subsection (a) of section 1311 of this title."
Section 1311(a) makes it unlawful to discharge any pollutant
without an NPDES permit.
in turn encompasses clearing, grading, and grubbing). Because

JMS's construction activities were considered "industrial" by EPA

regulations, Hughey contended that JMS was required to have an

NPDES permit. See Water Quality Act, Section 402(p)(2)(B)

(establishing permit deadline for discharges associated with

industrial activities). To the extent JMS had discharged without

a permit, Hughey argued that JMS was subject to the "zero

discharge" standard imposed by Section 1311(a). Hughey's complaint

sought a declaratory judgment that JMS was liable under the CWA, as

well as injunctive relief against JMS in several forms.

Contemporaneously with his complaint Hughey filed a motion for a

temporary restraining order ("TRO"), which the court granted after

hearing from both sides on August 31, 1992.

Hughey's factual allegations were that JMS's activities caused
5
two watercourses to become muddied during rainfall events. The

first of these watercourses is a small stream6 that originates on

JMS's property and traverses neighboring land for close to nine

hundred (900) feet before emptying into the Yellow River, which is

the second flow of water involved. Twenty-eight hundred (2800)

feet below the stream's confluence with the Yellow River lives Mr.

5
The court notes as an aside that a question of fact existed
concerning the degree to which JMS was responsible for increased
turbidity levels in these two watercourses during rainfall
events. This pivotal question of fact was not decided by a jury
as demanded by JMS, but rather by the district judge. See infra
note 13.
6
At least one expert at trial described the stream as a wet
weather flow, and indeed, JMS's consulting engineer stated in his
affidavit that United States Geological Survey Maps do not even
delineate this unnamed tributary as a stream at all. JMS
described the stream as ranging from three to seven feet in
width.
Hughey, who owns and resides on land abutting the Yellow River.

JMS initially responded to the complaint with a motion to

dissolve the TRO and a motion for summary judgment. JMS conceded

that rain water had run off its property and that it did not have

an NPDES permit authorizing discharges under the CWA. However, JMS

showed that no such permit was available from any government agency

and that it had in fact obtained every permit that was available

prior to initiating construction.7 JMS then answered the complaint
denying liability under the CWA and demanding a jury trial.

On November 9, 1992, the district court denied JMS's motions

to dissolve the TRO, to dismiss the complaint, and for summary

judgment. The district court granted Hughey's motion for

preliminary injunctive relief, finding that JMS was potentially

liable for storm (rain) water discharges made subsequent to October

1, 1992. The preliminary injunction prohibited JMS from

7
The consulting engineers hired by JMS, in addition to
seeking (and obtaining) county land disturbing permits,
eventually applied for an NPDES permit from Georgia EPD on
September 28, 1992, after Hughey had filed this action. Georgia
EPD responded by saying no action would (could) be taken with
respect to the notice of intent. David Word, Chief of the Water
Protection Branch of Georgia EPD, commented on the effect of
JMS's application:

EPD has received a notice of intent to comply with the
general permit from JMS Development Corporation for its
subdivision in Gwinnett County, Georgia. No action
will be taken on this notice of intent until a general
permit becomes effective. Therefore, at this time
[10/8/92], no further action is required or necessary
on the part of JMS Development Corporation to be
authorized to discharge storm water into waters of the
State of Georgia from the subject property.

Word Aff., at ¶ 10 (emphasis supplied). Georgia EPD simply
did not have a permit to issue, either before, during, or
after the subdivision's development. JMS presented this
evidence to the district court in its motion to dismiss.
"discharg[ing] storm water into waters of the United States from

its development property in Gwinnett County, Georgia, known as

Rivercliff Place, without a National Pollutant Discharge

Elimination System permit permitting such discharge."

More than one year later, on December 15, 1993, the district

court found JMS liable under the CWA for storm (rain) water

discharges into the stream on thirteen dates in 1992—June 8, 14,

30; July 1, 2; August 13, 16; September 4, 5, 27, 28; and

October 4, 8. The court further found that JMS once, on June 8,
1992, discharged storm water into the Yellow River itself. These

violations according to the district court were continuing (albeit

minimal), see Order of 2/24/94, at 4, 8, and became the basis for

the court's permanent injunction several months later, which issued

on February 24, 1994.8 Defendant in that order was instructed not

to

discharge stormwater into the waters of the United States from

8
Although Georgia EPD stated in its amicus brief to the
district court on October 27, 1992, that it expected to issue
general NPDES permits covering storm (rain) water discharges by
December 1992, such a permit was still not available as of the
date on which the district court granted permanent injunctive
relief.

Georgia EPD did issue its general permit; however, Mr.
Hughey appealed the issuance of that permit in a separate
action to the Board of Natural Resources for the State of
Georgia, alleging both procedural and substantive defects in
the general permit.

The administrative law judge remanded the permit to the
Director of Georgia EPD because of Georgia EPD's failure to
comply with procedural rules. In addition, the ALJ noted
that a remand was also necessary for the Director to
consider turbidity levels for storm (rain) water discharges.
Due to Mr. Hughey's appeal, there was still no NPDES permit
available in Georgia for the discharge of storm (rain) water
when the district court entered the permanent injunction.
 its development property in Gwinnett County, Georgia, known as
Rivercliff Place if such discharge would be in violation of
the Clean Water Act.

(emphasis supplied). On account of JMS's specific violations of

the CWA, the district court required JMS to pay $8,500 in civil

penalties to Hughey.9 Lastly, the court ordered JMS to pay Hughey

more than $115,000 in attorney fees and costs pursuant to 33 U.S.C.

§ 1365(d).

III. ISSUES ON APPEAL

JMS argues that the broad, generalized language of the

injunction, which in effect says nothing more than to "obey the

law," is violative of the standard of specificity required by

Federal Rule of Civil Procedure 65(d). JMS's second contention is

that it should not be punished for failing to secure an NPDES

permit when no such permit was available. Finally, JMS objects to

the award of attorney fees and costs.10 JMS has not objected,

however, to the fact that it did not receive a jury trial on the

question of liability.

IV. STANDARD OF REVIEW

Although the grant of permanent injunctive relief is

generally reviewed for an abuse of discretion, "if the trial court

misapplies the law we will review and correct the error without

9
Hughey concedes that requiring payment of civil penalties
to him was clear error by the district court. Civil penalties
under the Clean Water Act can only be paid to the United States
Treasury. Atlantic States Legal Foundation v. Tyson Foods, 897
F.2d 1128, 1131 n. 5 (11th Cir.1990).
10
Hughey filed a cross appeal complaining that $115,000 was
an insufficient award. When JMS was forced into bankruptcy, the
cross appeal was automatically stayed under 11 U.S.C. § 362. See
Appellee's Brief, at xiv n. 1. For the reasons that follow, we
need not consider the merits of that appeal.
deference to that court's determination." Wesch v. Folsom, 6 F.3d

1465, 1469 (11th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct.

696, 126 L.Ed.2d 663 (1994). See also Guaranty Fin. Svcs., Inc. v.

Ryan, 928 F.2d 994, 998 (11th Cir.1991) ("if the court misapplied

the law in making its decision [to grant the preliminary

injunction] we do not defer to its legal analysis"). We review

questions of law de novo. Bechtel Const. Co. v. Secretary of

Labor, 50 F.3d 926, 931 (11th Cir.1995).

V. DISCUSSION

A. Liability Under the Clean Water Act

As noted, the CWA imposes a "zero discharge" standard in the

absence of an NPDES permit. 33 U.S.C. § 1311(a). The question is

whether Congress intended for this zero discharge standard to apply

in the circumstances of this case.

In interpreting the liability provisions of the CWA we

realize that Congress is presumed not to have intended absurd

(impossible) results. United States v. X-Citement Video, Inc., ---

U.S. ----, ----, 115 S.Ct. 464, 468, 130 L.Ed.2d 372 (1994);

Towers v. United States (In re Pacific-Atlantic Trading Co.), 64

F.3d 1292, 1303 (9th Cir.1995). Courts will not foolishly bind

themselves to the plain language of a statute where doing so would

"compel an odd result." Green v. Bock Laundry Mach. Co., 490 U.S.

504, 509, 109 S.Ct. 1981, 1984, 104 L.Ed.2d 557 (1989). For, " "it

is one of the surest indexes of a mature and developed

jurisprudence not to make a fortress out of the dictionary; but to

remember that statutes always have some purpose or object to

accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning.' " Public Citizen v. United States

Department of Justice, 491 U.S. 440, 454-55, 109 S.Ct. 2558, 2567,

105 L.Ed.2d 377 (1989) (quoting Cabell v. Markham, 148 F.2d 737,

739 (2d Cir.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165

(1945)). Cf. Green v. Bock Laundry Mach. Co., 490 U.S. at 527-30,

109 S.Ct. at 1994-95 (Scalia, J., concurring) ("We are confronted

here with a statute which, if interpreted literally, produces an

absurd, and perhaps unconstitutional, result. Our task is to give

some alternative meaning to the [language] ... that avoids this

consequence....").

Our jurisprudence has eschewed the rigid application of a law

where doing so produces impossible, absurd, or unjust results.

"[I]f a literal construction of the words of a statute would lead

to an absurd, unjust, or unintended result, the statute must be

construed so as to avoid that result." United States v. Mendoza,

565 F.2d 1285, 1288 (5th Cir.1978) (citing Church of the Holy

Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36

L.Ed. 226 (1892)); see also United States v. Castro, 837 F.2d 441,

445 (11th Cir.1988). "[E]ven when the plain meaning did not

produce absurd results but merely an unreasonable one plainly at

variance with the policy of the legislation as a whole this Court

has followed [the purpose of the act], rather than the literal

words." Perry v. Commerce Loan Co., 383 U.S. 392, 400, 86 S.Ct.

852, 857, 15 L.Ed.2d 827 (1966) (internal quotation marks omitted).

As is often the case, the legislature will use words of

general meaning in a statute,

words broad enough to include an act in question, and yet a
consideration of the whole legislation, or of the
 circumstances surrounding its enactment, or of the absurd
results which follow from giving such broad meaning to the
words, makes it unreasonable to believe that the legislator
intended to include the particular act.

Public Citizen, 491 U.S. at 454, 109 S.Ct. at 2566-67 (quoting

Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12

S.Ct. 511, 512, 36 L.Ed. 226 (1892)) (emphasis supplied). Thus,

this court has found that

[g]eneral terms should be so limited in their application as
not to lead to injustice, oppression, or an absurd
consequence. It will always, therefore, be presumed that the
legislature intended exceptions to its language which would
avoid results of this character. The reason of the law in
such cases should prevail over its letter.

Zwak v. United States, 848 F.2d 1179, 1183 (11th Cir.1988) (quoting

Sorrells v. United States, 287 U.S. 435, 447, 53 S.Ct. 210, 214, 77

L.Ed. 413 (1932)). For instance, common sense says that a law

making it a felony for a prisoner to escape from jail "does not

extend to a prisoner who breaks out when the prison is on fire—"for

he is not to be hanged because he would not stay to be burnt.' "

United States v. Kirby, 74 U.S. (7 Wall.) 482, 487, 19 L.Ed. 278,

280 (1869).

In this case, once JMS began the development, compliance with

the zero discharge standard would have been impossible. Congress

could not have intended a strict application of the zero discharge

standard in section 1311(a) when compliance is factually

impossible. The evidence was uncontroverted that whenever it

rained in Gwinnett County some discharge was going to occur;

nothing JMS could do would prevent all rain water discharge.

George Fritcher, the county inspector charged with monitoring JMS's

compliance with Gwinnett County's development permit, deposed that
it was simply impossible to stop sediment from leaving the

subdivision when there was a rainfall event. "[Z]ero discharge of

storm water will never be achieved because rainfall must find its

way back into the streams and rivers of this state." Georgia EPD

Amicus Brief, at 13 (emphasis supplied). Doug Ballard, president

of JMS, similarly testified on cross-examination by Hughey's

counsel that he could not stop the rain water that fell on his

property from running downhill, and that nobody could. The rain

that fell on his property "is designed to go down those curbs and

designed to go down those pipes and unless you go out there and

collect it in your hand some way or other it's going to have to go

somewhere."

Moreover, JMS obtained from Gwinnett County a development

permit that was issued pursuant to the County's authority under

Georgia's Soil Erosion and Sedimentation Control Act of 1975

("SESCA"), O.C.G.A. §§ 12-7-1 et seq. That Georgia statute, like

the CWA, limited stormwater discharges during the applicable

period. See O.C.G.A. § 12-7-6(18) (1992). Moreover, Georgia EPD's

proposed standards for a general NPDES permit for stormwater

discharges are similar to the standards for stormwater discharges

contained in SESCA. David Word, the Chief of the Water Protection

Branch of Georgia EPD, testified by affidavit that "the general

NPDES permit proposed for stormwater runoff from construction

activities ... will require permitees to perform certain erosion

and sedimentation control practices, [which are] currently required

under authority of the Erosion and Sedimentation Control Act of

1975." Accordingly, the fact that JMS was issued a development
permit by Gwinnett County suggests that JMS would have been able to

obtain an NPDES permit from Georgia EPD, had such a permit been

available.

The facts of this case necessarily limit our holding to

situations in which the stormwater discharge is minimal, as it was

here. The district court found that JMS's "discharges pose no

threat to human health, and that much of the damage [caused by such

discharges] will be reversed with the passage of a relatively short

amount of time."

This was not a case of a manufacturing facility that could

abate the discharge of pollutants by ceasing operations. Nor did

the discharger come to court with unclean hands: JMS made every

good-faith effort to comply with the Clean Water Act and all other

relevant pollution control standards. The discharges were minimal,

and posed no risk to human health. In sum, we hold that Congress

did not intend (surely could not have intended) for the zero

discharge standard to apply when: (1) compliance with such a

standard is factually impossible; (2) no NPDES permit covering

such discharge exists; (3) the discharger was in good-faith

compliance with local pollution control requirements that

substantially mirrored the proposed NPDES discharge standards; and

(4) the discharges were minimal. Lex non cogit ad impossibilia:

The law does not compel the doing of impossibilities. B LACK'S LAW

DICTIONARY 912 (6th ed. 1990).

Practically speaking, rain water will run downhill, and not

even a law passed by the Congress of the United States can stop

that. Under these circumstances, denying summary judgment to JMS
was an error of law. Cf. Menzel v. County Utilities Corp., 712

F.2d 91, 95 (4th Cir.1983) (refusing to impose CWA liability for

discharges during period in which effectiveness of NPDES permit was

stayed by state court, since subjecting discharger to liability

would serve no statutory purpose).

B. The Permanent Injunction—Federal Rule of Civil Procedure 65

In addition to the fact that an injunction based upon an

erroneous conclusion of law is invalid, see United States v.

Jefferson County, 720 F.2d 1511, 1520 n. 21 (11th Cir.1983), Rule

65(d) of the Federal Rules of Civil Procedure mandates dissolution

of the injunction.

Rule 65(d) sets forth the standards of specificity that every

injunctive order must satisfy.

Every order granting an injunction shall set forth the reasons
for its issuance; shall be specific in terms; [and] shall
describe in reasonable detail, and not by reference to the
complaint or other document, the act or acts sought to be
restrained....

Rule 65 serves to protect those who are enjoined

by informing them of what they are called upon to do or to
refrain from doing in order to comply with the injunction or
restraining order. As a result, one of the principal abuses
of the pre-federal rules practice—the entry of injunctions
that were so vague that defendant was at a loss to determine
what he had been restrained from doing—is avoided. The
drafting standard established by Rule 65(d) is that an
ordinary person reading the court's order should be able to
ascertain from the document itself exactly what conduct is
proscribed.

11A WRIGHT, MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D

§ 2955 (1995) (footnotes omitted). In addition to giving those

enjoined "fair and precisely drawn notice of what the injunction

actually prohibits," Epstein Family Partnership v. K-Mart Corp., 13

F.3d 762, 771 (3d Cir.1994), the specificity requirement of Rule
65(d) serves a second important function:

Unless the trial court carefully frames it orders of
injunctive relief, it is impossible for an appellate tribunal
to know precisely what it is reviewing. We can hardly begin
to assess the correctness of the judgment entered by District
Court here without knowing its precise bounds. In the absence
of specific injunctive relief, informed and intelligent
appellate review is greatly complicated, if not made
impossible.

Schmidt v. Lessard, 414 U.S. 473, 476, 94 S.Ct. 713, 715, 38

L.Ed.2d 661, 664 (1974).

Consistent with the two foregoing purposes, appellate courts

will not countenance injunctions that merely require someone to

"obey the law." Payne v. Travenol Laboratories, Inc., 565 F.2d

895, 897-98 (5th Cir.), cert. denied, 439 U.S. 835, 99 S.Ct. 118,

58 L.Ed.2d 131 (1974).11 "Broad, non-specific language that merely

enjoins a party to obey the law or comply with an agreement ...

does not give the restrained party fair notice of what conduct will

risk contempt." Epstein Family Partnership, supra. Because of the

possibility of contempt, an injunction "must be tailored to remedy

the specific harms shown rather than to enjoin all possible

breaches of the law." Id. (internal quotation marks omitted). An

injunction must therefore contain "an operative command capable of

"enforcement.' " Longshoremen's Ass'n. v. Marine Trade Ass'n., 389

U.S. 64, 73-74, 88 S.Ct. 201, 206-07, 19 L.Ed.2d 236, 244 (1967).

See also United States Steel Corp. v. United Mine Workers, 598 F.2d

363, 368 (5th Cir.1979) (party subject to contempt proceeding may

defend on basis that compliance was not possible).

11
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981), the Eleventh Circuit adopted as precedent the
decisions of the Fifth Circuit rendered prior to October 1, 1981.
 Here, the district court's order granting permanent injunctive

relief only stated:

Defendant shall not discharge stormwater into the waters of
the United States from its development property in Gwinnett
County, Georgia, known as Rivercliff Place if such discharge
would be in violation of the Clean Water Act.

(emphasis supplied).

Not only was this an "obey the law" injunction, it was also

incapable of enforcement as an operative command. The court's

order merely required JMS to stop discharges, but failed to specify

how JMS was to do so. Discharges, though not defined by the order,

occurred only when it rained, and any discharge was a violation of

the order. Rain water ran into the subdivision's

government-approved streets and storm sewers; then into the small

stream that started on the subdivision property; on into a

tributary stream; and eventually into the Yellow River. Was JMS

supposed to stop the rain from falling? Was JMS to build a

retention pond to slow and control discharges? Should JMS have

constructed a treatment plant to comply with the requirements of

the CWA?

The injunction's failure to specifically identify the acts

that JMS was required to do or refrain from doing indicates that

the district court—like the CWA, the EPA, Georgia EPD, and Mr.

Hughey—was incapable of fashioning an operative command capable of

enforcement. As such, we must vacate this "obey the law"

injunction.12

12
Hughey contends that the injunction contains the requisite
specificity by reference to the prior orders granting
injunctive-type relief, i.e., that the permanent injunction
merely continued in place what previous orders had already done.
C. Award of Attorney Fees and Costs

A court issuing any final order in a Clean Water Act

citizen's suit "may award costs of litigation (including reasonable

attorney and expert witness fees) to any prevailing party or

substantially prevailing party, whenever the court determines such

award is appropriate." 33 U.S.C. § 1365(d). A prevailing or

substantially prevailing party is one who prevailed "in what the

lawsuit originally sought to accomplish." Washington Public

Interest Research Group v. Pendleton Woolen Mills, 11 F.3d 883, 887

(9th Cir.1993).

The district court here awarded Hughey more than $115,000 in

attorney fees and costs. However, for the reasons stated above

Hughey's citizen suit has not accomplished its original objective.

Hughey is not a prevailing or substantially prevailing party and is

thus not entitled to an award of attorney fees and costs. See Save

Our Community v. United States EPA, 971 F.2d 1155, 1167 (5th

Cir.1992) (where district court erred in finding defendant liable

under the CWA, the award of attorney fees based thereon was also

inappropriate).

VI. CONCLUSION

Imposing liability upon JMS under these circumstances was a

miscarriage of justice. It is inconceivable that Congress

intended, let alone foresaw, a result such as this under the Clean

See, e.g., Keyes v. School Dist. No. 1., Denver, Colo., 895 F.2d
659 (10th Cir.1990), cert. denied, 498 U.S. 1082, 111 S.Ct. 951,
112 L.Ed.2d 1040 (1991). We doubt that such an exception exists,
unless in very rare, exceptional cases. A person enjoined by
court order should only be required to look within the four
corners of the injunction to determine what he must do or refrain
from doing. That was not the case here.
Water Act. Environmentally safe waters are of vital importance to

this nation as is evident from the fact that Congress enacted an

entire statutory scheme to address the problem. Nevertheless,

[t]he inability of [Georgia EPD] to meet its statutory
obligations has distorted the regulatory scheme and imposed
additional burdens which must be equitably distributed. This
task is a difficult one because of the nature of the available
options. Either the affected discharger must be compelled to
risk potential enforcement proceedings in spite of [the
complete unavailability of an NPDES permit], or society must
tolerate slippage of an interim pollution abatement deadline.

Republic Steel Corp. v. Train, 557 F.2d 91, 94 (6th Cir.1977).

Balancing these concerns on the basis of the record before us, we

refuse to place the burden on JMS.

The orders imposing statutory penalties and attorney fees and

costs were premised on the finding that JMS was liable under the

CWA. Because we REVERSE this finding of liability, those orders

are VACATED.

The injunctive relief issued by the district court on February

24, 1994, was improper not only because it was premised on an error

of law, but also for the alternative reasons that the injunction

lacked the specificity required by Rule 65(d), and compliance with

its terms was impossible. Accordingly, the permanent injunction is

DISSOLVED.13

13
Because JMS has not raised the jury trial question, we
will not address it now for the first time, although it would
appear to require summary reversal on the issue of liability.
See Tull v. United States, 481 U.S. 412, 107 S.Ct. 1831, 95
L.Ed.2d 365 (1987) (defendants under the CWA have Seventh
Amendment right to a jury trial on questions of liability).

Because we have determined that JMS cannot be liable no
matter who files the complaint, we do not discuss JMS's
challenge to the propriety of the citizen's suit. See,
e.g., Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49,
108 S.Ct. 376, 98 L.Ed.2d 306 (1987) (citizen suits should
 IT IS SO ORDERED.

CARNES, Circuit Judge, concurring:

I concur in all of the Court's holdings and opinion except for

Part V.B. What the Court says there about Rule 65(d) and "obey the

law" injunctions may be correct, or it may be incorrect, but it is

certainly dicta. Given our holding that the plaintiff in this case

is not entitled to any relief at all, it matters not whether the

relief he was given would have been in proper form if he had been

entitled to some relief.

be interstitial, not intrusive); Northwest Environmental
Advocates v. Portland, 11 F.3d 900, vacated, 56 F.3d 979
(9th Cir.1995) (initially deciding citizen suits were
unauthorized when challenging water quality standards in an
NPDES permit, latter opinion found citizen suits were not so
limited); Proffitt v. Rohm & Haas, 850 F.2d 1007, 1014 n.
11 (3rd Cir.1988) (refusing to decide whether scope of
citizen suits was limited).

We also decline to address the issues of Hughey's
standing, JMS's substantive due process challenge, and the
fee award's lodestar calculation, as they are rendered
unnecessary by the holding herein.