Posted By James J. Periconi, Esq. on June 18, 2012
The Fifth Circuit Court of Appeals held that the Clean Water Act does not allow citizen suits to enforce the conditions of a § 404 Permit. See Atchafalaya Basinkeeper v. Chustz, No. 11-30471 (5th Cir. Apr. 25, 2012).
A § 404 Permit, issued by the Army Corps of Engineers (“Corp”), gives the permittee the right to discharge dredged or fill materials into waters of the United States. In this case, the plaintiffs sued the Atchafalaya Basin Program and its Acting Director, alleging that the Program violated the conditions of its § 404 Permit by failing to maintain appropriate gaps in its “spoil banks” (large piles of dredged material that must be deposited along the sides of the Bayou) in order to allow the natural water flow and flooding necessary to sustain certain wetland plant life of the Bayou Postillion in Iberia Parish, Louisiana.
The Clean Water Act’s citizen suit provision, § 505, allows citizen suits for “an unlawful act under subsection (a) of section 301 of this title.” See CWA § 505(f)(1). Section 301(a) provides that “except as in compliance with this section and sections , , , , , and  of this title, the discharge of any pollutant by any person shall be unlawful.” Section 505(f)(6) allows citizen suits for violations of “a permit or condition thereof issued under section  of this title.”
Thus, reading the plain language of the Clean Water Act, the Fifth Circuit easily decided that § 505 does not allow for citizens to sue for violations of § 404 (fill permits), but only for violations of § 402 (NPDES permits):
It would be especially odd for Congress to provide citizen suits for §  permit condition violations so plainly in the text of § (f)(6) and simultaneously to bury the right to sue for § 1344 permit condition violations within a tri-level maze of statutory cross-references. If Congress had intended to allow citizen suits for §  permit condition violations, it did not need to resort to the complicated method Appellants urge. Instead, it could have simply added another subsection to § (f), providing the same right to sue for §  permit condition violations that it provided for §  permit condition violations in § (f)(6).
Following the Supreme Court of the United States’ “warning to lower courts not to infer private rights of action from such oblique statutory interpretations,” the Fifth Circuit concluded that “Congress has relied on the Corps to enforce the permits it issues for more than 100 years, and there are no strong indicia of congressional intent to provide citizen suits for §  permit condition violations.” Thus, in deciding an issue of first impression, the Fifth Circuit upheld the lower court’s dismissal of the plaintiffs’ Clean Water Act citizen suit.