If you had hoped to take administration of the Clean Water Act into your own hands, you may be out of luck.
The Fifth Circuit Court of Appeals ruled on Thursday that the Clean Water Act does not allow citizen suits to enforce the conditions of a §1344 permit.
The Atchafalaya Basinkeeper and the Louisiana Environmental Action Network (the appellants, collectively) are private entities with an interest in protecting Bayou Postillion in Iberia Parish, Louisiana. They sued the Atchafalaya Basin Program (Program), alleging that the Program violated the conditions of a permit issued to it by the Army Corps of Engineers (Corps) under the Clean Water Act’s 33 U.S.C. §1344.
The Corps issued the Program a permit, allowing it to dredge Bayou Postillion in Iberia Parish, Louisiana. Dredging activities such as those allowed under the Program’s permit result in “spoil banks,” which are large piles of dredged material that must be deposited along the sides of the Bayou. According to the complaint, the Program violated the conditions of its permit 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.
Here, the appellants claimed a private right to sue the Program for violating a condition of a permit. The district court concluded that §1365 does not allow such a citizen suit, and the Fifth Circuit Court of Appeals affirmed that decision.
The Clean Water Act allows citizen enforcement of certain specific and limited types of violations. Section 1365(a)(1), the Act’s citizen-suit provision, provides, in relevant part, that “any citizen may commence a civil action on his own behalf … (1) against any person … who is alleged to be in violation of … an effluent standard or limitation under this chapter.” Section 1365(f), in turn, provides a seven-part definition of “effluent standard or limitation under this chapter.”
Two of §1365(f)’s grounds for citizen suit are relevant here. First, §1365(f)(1) allows citizen suits for “an unlawful act under subsection §1311(a), which provides that “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 unlawful.” Second, §1365(f)(6) allows citizen suits for violations of “a permit or condition thereof issued under §1342.”
The appellants, however, did not satisfy either of these criteria, according to the courts. That doesn’t mean that there is no recourse for the alleged Program violations. The Corps can still enforce §1344, as well as the conditions of the permits it issues.
- Atchafalaya Basinkeeper, et al v. Stephen Chustz (Fifth Circuit Court of Appeals)
- Fifth Circuit Katrina Suit: No Qualified Immunity for Corps Under FCA (FindLaw’s Fifth Circuit Blog)
- FindLaw’s Fifth Circuit Blog (FindLaw)
- Atchafalaya Basin Program (Department of Natural Resources)