CITIZEN SUIT WATCH: Fifth Circuit Precludes Clean Water Act Citizen Suits To Enforce Section 404 Permit Conditions

A three judge panel of the U.S. Court of Appeals for the Fifth Circuit held that the Clean Water Act's citizen suit provision (33 U.S.C. § 1365) does not provide for suits to enforce the conditions of a permit issued under section 404 (33 U.S.C. § 1344) of the Act, thereby affirming a lower court's dismissal of a suit, Atchafalaya Basinkeeper v. Chustz, No. 11-30471 (5th Cir. Apr. 25, 2012), brought by two environmental groups. The court recently agreed to publish the opinion, thus solidifying its precedential value.

Analyzing the statutory language, the Fifth Circuit concluded that allowing citizen suits to enforce section 404 permit conditions would render portions of the citizen suit provision entirely redundant. This decision appears to be the first time a federal appeals court has interpreted the Clean Water Act to foreclose such citizen suits. The holding reinforces that the U.S. Army Corps of Engineers, not citizen plaintiffs, is responsible for the enforcement of section 404 permits.

The plaintiff organizations, Atchafalaya Basinkeeper and the Louisiana Environmental Action Network, originally filed suit in the U.S. District Court for the Western District of Louisiana, alleging that the Atchafalaya Basin Program ("Program") was violating the conditions of a Clean Water Act section 404 permit issued by the Corps. The permit in question authorized the Program to undertake dredging activities that would result in "spoil banks," i.e., piles of dredged material that are deposited along the sides of Bayou Postillion in Iberia Parish, Louisiana. The plaintiffs claimed that the Program violated its permit conditions by "failing to maintain appropriate gaps in its spoil banks to allow the natural water flow and flooding necessary to sustain certain wetland plant life."  The district court dismissed the plaintiffs' action, holding that the Clean Water Act's citizen suit provision does not allow for citizen suits to enforce Section 404 permit conditions.

On appeal, the Fifth Circuit affirmed the lower court's dismissal, agreeing that citizen plaintiffs cannot bring suits premised on alleged violations of the conditions of a section 404 permit. In a short opinion, the Fifth Circuit focused on the language in two sections within the Act's citizen suit provision: 33 U.S.C. §§ 1365(f)(1) and 1365(f)(6). Section 1365(f)(1) allows citizens to bring suit based on an unlawful act under 33 U.S.C. § 1311(a), which prohibits the discharge of pollutants except in compliance with specific sections of the Clean Water Act, including sections 402 and 404. Section 1365(f)(6), on the other hand, allows citizen plaintiffs to bring suit based on violations of "a permit or condition thereof issued under" section 402, but not section 404.

Although the statute does not expressly confer the right to bring suit based on violations of section 404 permit conditions, the plaintiffs argued that section 1365(f)(1)'s reference to "unlawful acts" under 33 U.S.C. § 1311(a) includes not just citizen suits based on unpermitted discharges (i.e., discharges without section 402 or 404 permits), but also suits based on violations of conditions set forth in such permits. The Fifth Circuit rejected the plaintiffs' interpretation, finding that it would render the language in section 1365(f)(6) redundant. The Court emphasized that Congress plainly authorized citizen suits based on section 402 permit condition violations in section 1365(f)(6). The Court concluded that if Congress also had intended to allow citizen suits for section 404 permit condition violations, it could have simply said so in plain terms elsewhere within section 1365(f). In the Court's view, Congress would have not have "bur[ied] the right to sue for [section 404] permit condition violations within a tri-level maze of statutory cross-references," contrary to plaintiffs' suggestion.¹

The Fifth Circuit concluded by observing that the Supreme Court has warned lower courts not to infer private rights of action from "oblique statutory interpretations." Specifically, the Supreme Court has declared that "where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it. In the absence of strong indicia of a contrary congressional intent, we are compelled to conclude that Congress provided precisely the remedies it considered appropriate."² Applying this principle to the Clean Water Act's citizen suit provision, the Fifth Circuit explained that Congress has relied on the Corps to enforce section 404 permits for over 100 years, and "there are no strong indicia of congressional intent to provide citizen suits for [section 404] permit condition violations."

The Atchafalaya Basinkeeper decision resolved an issue of first impression and confirms an important limitation on citizen plaintiffs' ability to bring suits to enforce conditions of certain types of Clean Water Act permits. Whether other circuit courts recognize this limitation in future decisions remains to be seen.

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¹ The plaintiffs argued that 33 U.S.C. § 1311(a) only prohibits "discharges" in violation of sections 402 and 404.  They further argued that section 1365(f)(6) does not mention the term "discharges" and thus, Congress intended to limit suits under section 1365(f)(6) to non-discharge related permit condition violations. In other words, the plaintiffs suggested that section 1365(f)(1) provides for citizen suits for discharge-related violations of both section 402 and 404 permit conditions, while section 1365(f)(6) covers only non-discharge related section 402 permit condition violations.

² Middlesex Cnty. Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 14–15 (1981).