ELR Citation: ELR 21532
No(s). 91-7012 (5th Cir. Sep 14, 1992)

The court holds that the act of draining a wetland without a discharge of pollutants does not require a Federal Water Pollution Control Act (FWPCA or the Act) §404 permit. The court also dissolves an injunction, which was originally obtained by an environmental citizens group, which prevented a landfill operator from further removing water from artificially created ponds on its proposed landfill expansion site. The court first holds that the citizens group had Article III standing to seek enforcement of the FWPCA under the Act's citizen suit provision. The group satisfied the requirements of organizational standing by showing more than a mere general interest in environmental preservation, and by stating a sufficient injury that was fairly traceable to the landowner's failure to obtain a permit and that is likely to be redressed by enjoining the activities at the landfill that would cause further destruction of the wetlands. The court then holds that draining wetlands without the discharge of effluent is not regulated by the FWPCA. The FWPCA §404 expressly requires a discharge of effluent to trigger the §404 permit requirements. The court also remands the case, concluding that there are disputed issues of material fact regarding the existence, nature, and extent of an alleged discharge. Finally, because the lower court erred in requiring a §404 permit where there was no discharge of effluent, the court holds that the prior award of attorney fees to the citizens group is unjustified.

[The lower court decision is published at 21 ELR 20046. Litigation briefs in the appeal to the Fifth Circuit are digested at ELR PEND, LIT. 66199.

Counsel for Plaintiff
Frederick Addison III
Locke, Purnell, Rain & Harrell
2200 Ross Ave., Ste. 2200, Dallas TX 75201
(214) 740-8000

Counsel for Defendants
Sharon Mattox
Vinson & Elkins
1900 First City Tower, 1001 Fannin St., Houston TX 77002
(713) 758-1062

Edward Shawaker
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090

Before POLITZ, Chief Judge, and DUHE, Circuit Judge.^*

PER CURIAM.