In a case with potentially significant repercussions, on April 25, 2012, the Fifth Circuit ruled that private citizens cannot sue under the Clean Water Act’s citizen suit provisions to enforce the terms of a U.S. Army Corps of Engineers wetland permit (as opposed to suits for the filling of a wetland without a permit). In Atchafalaya Basinkeeper v. Chustz, the court was faced with a lawsuit by private citizens alleging that the Atchafalaya Basin Program had failed to comply with the terms of its Section 404 wetland permit, issued by the Corps under CWA §1344 to allow the Basin Program to dredge Bayou Postilion and leave the dredged spoil along the banks of the Bayou. While the Court’s rationale was somewhat technical and dry, its decision is a significant limitation on citizen suit enforcement within the Fifth Circuit and could have significant repercussions should it be adopted by other circuits.

Starting with the statutory mandate – that the CWA citizen suit provision (under §1365(a)(1)) authorizes private litigation against anyone alleged to be in violation of a CWA effluent limitation or standard – the court turned its attention to identifying those limitations and standards. Thankfully, Congress specifically defined them in §1356(f), identifying seven different categories, all by reference to other provisions of the CWA. The plaintiffs sought to sue under the first category (§1356(f)(1)), which grants citizens the right to sue for an unlawful act under §1311(a) (which itself makes discharges of any pollutant by any person illegal unless in compliance with CWA sections 1312, 1316, 1317, 1328, 1342 or 1344). With this as the jurisdictional basis for Plaintiff’s claims, the Court rejected the suit, ruling that noncompliance with permit terms under section 1344 is not an “unlawful activity” under §1311(a), and that therefore no citizen suit remedy is provided under §1365.

The core of the Court’s rationale is the “established rule of statutory interpretation that no provision should be construed to be entirely redundant.” Since another provision, §1365(f)(6), specifically calls out violations of permits or permit terms under §1342 as an unlawful act for which citizens can sue, the Court reasoned that allowing the suit to go forward would create a redundancy within §1365. The Court’s full reasoning was as follows:

The Court first implied the equivalence for its purposes of citizen suits related to violations of permit terms under sections 1344 (discharges of fill) and 1342 (discharges of all other pollutants). It then reasoned that if §1356(f)(1) was needed to authorize discharges in violation of §1342 (and §1344) permits, then §1356(f)(6), which specifically authorizes suits under §1342, would be completely redundant. Plaintiffs attempted to refute this argument by stating that §1311(a) uses the word “discharges” and §1356(f)(6) does not, meaning that §1356(f)(1) and §1356(f)(6) are not redundant – under the Plaintiff’s interpretation, §1356(f)(1) authorizes suit for discharge violations and §1356(f)(6) authorizes suit for all non-discharge-related violations of §1342.

The Court felt this argument parsed things too closely – establishing a right to sue based on the absence of the word “discharge” in a separate and distinct part of the CWA – and would require someone seeking to interpret §1356(f)(6) to turn to §1311 for elucidation, something he or she would never otherwise do. Further supporting its rationale, said the Court, was the fact that Congress was quite clear that citizen suits were available in response to §1342 claims. Given this clarity, it would have been odd for Congress to bury in §1356(f)(1), the right for citizens to bring suit regarding §1344 claims, said the Court.

Notwithstanding the mélange of numbers and internal statutory references, the Court’s decision is significant. In the Fifth Circuit, at least, even though citizens may be able to sue if a third party fills a wetland without a permit, enforcement of “mere” noncompliance with the terms of a wetland permit is solely in the hands of the government (and, therefore, given prior agreements between the Corps and EPA, in the hands of the Corps).