* Decided by a quorum, 28 U.S.C. § 46(d). Judge Jerre Williams heard argument as a member

of the panel but subsequently recused.

1 This case originally proceeded on behalf of SOC and the City of Ferris. In the district court's

grant of the application for preliminary injunction, the court found that while SOC had standing,

the City of Ferris was not an appropriate party to the suit. Save Our Community v. EPA, 741

F.Supp. 605, 611 (N.D.Tex.1990).

2 Trinity Valley Reclamation, Inc., is a wholly-owned subsidiary of Waste Management of

North America, Inc., which is in turn a wholly-owned subsidiary of Waste Management, Inc. In

the proceedings below, the Waste Management entities were collectively referred to as Waste

Management by both SOC and the court. However, because the Waste Management entities

refers to themselves as Trinity on appeal, to alleviate confusion, we likewise do so.

3 SOC is an unincorporated association of individuals organized and existing to oppose

expansion of the Skyline landfill. Members of SOC reside in the cities of Ferris, Dallas, and

Palmer, and in rural areas in Ellis and Dallas Counties. SOC seeks to promote the protection of

the wetlands in and around its members' communities. SOC's members assert that they enjoy the

wildlife, aesthetics, open space, ecological and other values of the wetlands, which have been and

may or will be drained and/or filled, and are directly and beneficially interested in the continued

protection, preservation, and enhancement of these values. United States Court of Appeals,

Fifth Circuit.

No. 91–7012.

Save Our Community, et al., Plaintiffs,

SAVE OUR COMMUNITY, Plaintiff–Appellee,

v.

U.S. ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants–Appellants.

Sept. 14, 1992.

Appeals from the United States District Court for the Northern District of Texas.

Before POLITZ, Chief Judge, and DUHÉ, Circuit Judge. * *

R CURIAM:

Appellee, Save Our Community ("SOC"), 1 brought suit challenging the draining of sev e ral

ponds on the site of a proposed expansion of a 73–acre landfill (the "Skyline Landfill") near the City

of Ferris, Texas, operated by appellant Trinity Valley Reclamation, Inc. (collectively "Trinity"). 2

SOC 3 sought a preliminary injunction and a declarat o ry judgment that Trinity violated the Clean

Water Act ("CWA"), 33 U.S.C. §§ 1251 et seq., by failing to obtain a permit pursuant to section 4044 The Corps and the EPA jointly administer the CWA section 404 regulatory program. The

CWA confers broad authority to the Corps and the EPA to regulate activities involving a

discharge of dredged or fill material into the nation's waters, including wetlands. 57 Fed.Reg.

26894 (1992) (to be codified at 33 C.F.R. pts. 323 & 328 and 40 C.F.R. pts. 110, 112, 116, 117,

122, 230, 232, and 401) (proposed June 16, 1992). Under the Memorandum of Agreement

between the EPA and the Corps delineating jurisdictional authority under the CWA with regard to

standard permit applications, the Corps makes most of the jurisdiction decisions though it must

abide by EPA guidance. A tracking system is also provided whereby the Corps supplies the EPA

with a record of all its jurisdictional determinations to enable the EPA to review decisions. See

Memorandum of Agreement Betw een the Department of the Army and the Environmental

Protection Agency Concerning the Determination of the Geographic Jurisdiction of the Section

404 Program and the Application of the Exemptions Under Section 404(f) of the Clean Water

Act (Jan. 19, 1989). of the Act before starting to drain the ponds. SOC also sought a declaration that appellants the

United States Army Corps of Engineers ("Corps") and the United States Environmental Protecti on

Agency ("EPA") (collectively "Federal defendants") either failed to perform a duty to enforce section

404 provisions or incorrectly interpreted the CWA by determinin g t hat draining is not a regulated

activity under the Act. The district court held as a matter of law that the draining activity required

a permit. It issued a permanent injunction. We reverse.

I. FACTS

Trinity owns and operates the Skyline Landfill located near Ferris, Texas. In contemplation

of expanding the landfill to encompass a total area of 340 acres, Trinity solicited an opinion from the

Corps in May of 1987 as to whether the Co rps had jurisdiction over any portion of the proposed

expansion area as constituting waters of the United States. The area included seven man-made

ponds. The Corps determined these ponds were waters of the United States, and, as such, were

protected under the CWA. The EPA subsequently sent a letter to Trinity concurring in the Corps'

determinatio n and advising it of the need for a permit if any discharge into these ponds was

contemplated. 4

Since filling the ponds with landfill would violate the CWA, Trinity began draining the ponds

by the use of a mechanical pump, ut ilizing the water extracted to irrigate the sod covering areas of5 According to a recent commentary, draining a wetland without attaining a section 404 permit

has emerged as a common vehicle to destroy wetlands. Comment, Pumping With the Intent to

Kill: Evading Wetlands Jurisdiction Under Section 404 of the Clean Water Act Through

Draining, 40 DePaul L.Rev. 1059, 1080 (1991). In essence, the draining is accomplished, as in

the instant case, through the installation and use of a mechanical pump or other dewatering

device. Consequently, the water is drained out of the wetland, destroying the water, soil, and

vegetation conditions necessary to characterize the area as "waters of the United States," subject

to protection by the CWA.

6 After Trinity was advised that the ponds, in their present condition, were jurisdictional waters

fringed with wetlands, Trinity met with officials from the Corps, the EPA, and the Fish and

Wildlife Service (FWS) on several occasions to discuss Trinity's plans to drain these ponds. All

three agencies advised Trinity that no permit was required for Trinity's draining activities as long

as Trinity did not discharge any pollutants into any jurisdictional waters of the United States.

Trinity maintains that it is committed to wetlands protection and preservation. It is

cognizant that its plan to de-water the ponds will result in some loss of wetland habitat

(arguably all), and, consequently, has sought voluntarily to propose to replace the ponds

with a high-quality wetlands wildlife habitat elsewhere on Trinity's property in an area

adjacent to Ten Mile Creek. Trinity has submitted its proposed Wetlands Development

Plan to the Corps, the EPA, and the FWS for their review and comment. According to

Trinity, it has been verbally advised by representatives from these agencies that the new

proposed wetlands wildlife habitat "will be superior to the existing water-filled pits

[ponds]."

7 On May 30, 1991, Trinity applied to the Corps for a permit for the draining of the ponds at

issue in the instant case, the destruction and removal of the rubble dams, and the creation of new

replacement wetlands elsewhere. The permit application anticipates that the discharge of

"dredged or fill material for this project will included discharges resulting from the pumping of

water, removal of the rubble dams and dredging of the benthic soils from existing impoundments

A–F."

According to the Federal defendants, though the SOC, the amici curiae, the

Environmental Defense Fund ("EDF") and National Wildlife Federation ("NWF") appear

to take the application as an indication that the draining of the ponds requires a permit, the the existing landfill. 5 According to Trinity, maintaining a proper sod cover over the existing landfill

necessitated irrigation, and the ponds provided the only water a vailable in the area. Moreover,

Trinity, as well as the Corps, expressed a concern that the rubble dams crea ting the ponds were

unstable, and thus were a risk to public safety, further necessitating the removal of water from the

ponds. More important, Trinity planned to drain the ponds and utilize these areas for landfill

purposes. 6 Unsure whether this pumping activity would ever fully drain the ponds, Trinity asserts,

and the Corps concurs, that Trinity subsequently would seek another determination from the Corps

as to whether these drained areas still constituted waters of the United States prior to ut ilizing the

areas for landfill purposes. 7application and notice do not support the inference. Although Trinity may drain the ponds

without a permit if no discharge occurs, it would be easier for Trinity if the project would

progress without the need to prevent discharges. Further, as Trinity also concedes, it is

unclear whether Trinity will be able to drain the ponds completely or that the pond sites

will cease to be wetlands regardless of Trinity's careful draining. Thus, the Corps suggests

that it was wise to apply early for a permit.

8 Ultimately, after a four-week hearing in April, and after voluminous post-hearing briefing by

all parties, TDH denied Trinity's landfill expansion permit application on August 8, 1990. Trinity's

motion for rehearing was denied on February 20, 1991. During the course of this pumping operation, the result of which had lowered the surface area

of the ponds down from 20 to 10 acres, Trinity, in January 1989, applied to the Texas Department

of Health ("TDH") for a permit to expand the Skyline Landfill from 73 acres to 340.399 acres. The

TDH referred along the application to the Fish and Wildlife Service of the United States Department

of the Interior (FWS) for its review. FWS replied that there was "an apparent attempt to circumvent

the regulations" on the part of Trinity, and re co mmended t hat "in the interest of fish and wildlife

resources and wetland conservation

... the permit application be denied." FWS expressed its concerns

regarding the project, and reported that it "noted a variety of wildlife using the ponds on our on-site

visit including leopard frogs, beave r, and various birds." FWS also drew Trinity's attention to the

depositing of fill material occurring in one of the ponds.

On April 2, 1990 , claiming that the draining activity required a permit from the Corps

pursuant to Section 404 of the CWA, the City of Fe rris and SOC filed their Original Complaint,

Application for Temporary Restraining Order, and Application for Preliminary Injunction under the

citizen suit provision of the CWA. They so ught to enjoin the further removal of water from the

ponds. The City of Ferris and SOC also asked for a declaration that t he Corps and the EPA had

either misinterpreted the CWA by concluding that Trinity did not require a section 404 permit to drain

the ponds or had failed in their duties under section 404. The next day, citing the need to prevent

further dra inage o f t he ponds, the district court issued a TRO enjoining Trinity from draining or

otherwise altering wetlands located on the Skyline Landfill property. 8In the weeks that followed, the EPA and the Corps filed a Moti on to Dismiss arguing that no

permit was required for Trinity's draining activity. Nonetheless, on May 3, 1990, the district court

rendered it s decision in a published opinion, S ave Our Community v. EPA, 741 F.Supp. 605, 61 7

(N.D.Tex.1990), enjo ining Trinity from "draining, dredging, building on, discharging into or

otherwise altering, by any means, the seven ponds classified as wetlands ... unless and until Trinity

procures a § 404(b) permit from the Corps for the activities listed above, or until the entry of final

judgment o r unt il further order of this Court." Because it believed that, "in light of its ruling, the

Corps and the EPA [would] carry out their duty to make a determination under § 404(b)," it refused

to grant injunctive relief against the Corps or the EPA.

In reaching this conclusion, the d ist rict court engaged in a policy-based analysis of the

CWA—its legislative history, regulatory guidelines issued pursuant to it, and particula r language

excised from cases applying it. Focusing nearly entirely on the clearly destructive aspects of Trinity's

draining project, and offended by wh at it perceived to be a direct subterfuge of section 404 by

permitting a landowner to drain a wetland and then claim "[p]ermit for what wetland?", the district

court held:

[A]s a matter of law that pursuant to the Clean Water Act, its regulations, and relevant case

law § 404(b) of the Act requires a permit wh ere draining a wetland presents the threat of

significant alteration or destruction of the wetland.

741 F.Supp. at 615.

Despite a fact finding that "[s]ome minor discharges ha[d] occurred," and ignoring the urging

of amici curiae—the Environmental Defense Fund and t he National Wildlife Federation—to "consider

a supplemental basis for its ruling that takes into account discharges," the dis tri ct court refused to

consider the issue of discharge in making its decision: "Because the Court decides that the draining

activities in this case require a § 404(b) permit, it need not rule on the issue of whether a de minimis

discharge requires a permit." I d. at 613 n. 11. Because the parti es continued to refer to al l eged9 As a peripheral argument, SOC contends that the Federal defendants lack standing to appeal

because the district court declined to grant relief against them. In order to have standing to

appeal, a party must be aggrieved by the judicial action from which it appeals. See Deposit

Guaranty National Bank, Jackson, Mississippi v. Roper, 445 U.S. 326, 333, 100 S.Ct. 1166,

1171, 63 L.Ed.2d 427 (1980). In response, the Federal defendants concede that they potentially

lack standing to appeal. They contend, however, that since they side with Trinity who has the

requisite standing, the matter is of little import. Second, they are entitled to appeal because they

were party to the suit below. In any case, they conclude, they could always file their briefs as

amicus curiae. See Fed.R.App.P. 29. Further, the Federal defendants assert that SOC's argument

that the district court correctly determined that it had jurisdiction over the government (an issue

not on appeal) is somewhat inconsistent with its argument that the district court's judgment is not

binding on the government and therefore not appealable. discharges in subsequent proceedings, the court continued to menti o n them. But it always found

them irrelevant to its decision.

On June 13, 1990, SOC moved for summary judgment and a permanent injunction, claiming

that no genuine disputed i ssue o f fact remained following the district court's prior ruling. At this

juncture, once again, Trinity and the Federal defendants contended th at t he district court lacked

jurisdiction over the subject matter because Trinity's draining activity did not require a section 404

permit. The district court, however, found jurisdiction and awarded summary judgment and a

permanent injunction. It ordered SOC attorney's fees be paid by Trinity as well as costs. The court

asserted that if Trinity's activity is "viewed as a whole," it unquestionably requires a permit.

According to the court, "[t]o divorce the drainage of the wetlands from their subsequent filling with

waste matter is to be blinded by abstraction s and to ignore the actual controversy between the

parties."

On appeal, Trinity challenges the district court's ruling that draining activities that significant ly

alter wetlands require a

sect io n 404 permit. Trinity also takes issue with the district court's

assessment of SOC's attorneys' fees, expenses, and court costs against it.

II. DISCUSSION

A. Standing 9Because the resolution of this issue has no bearing on the substantive case, we

need not explore it further.

10 The CWA confers standing to the limits of the Constitution. Under the CWA, "any citizen

may commence a civil action." 33 U.S.C. § 1365(a). A "citizen" is "a person or persons having

an interest which is or may be adversely affected." Id. § 1365(g). As a preliminary mat t er, Trinity challenges SOC's Article III standing to sue as seeking

enforcement of the CWA under the Act's citizen suit provision. 10 Standing analysis focuses upon

"[w]hether a party has a sufficient st ake in an otherwise justiciable controversy to obtain judicial

resolution of that controversy." S ierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 1364, 31

L.Ed.2d 636 (1972). SOC seeks to represent the interests of its members. Such "representational

standing" is appropriate where: "(a) its members would otherwise have standing to sue in their own

right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither

the claim asserted nor the relief requested requi r es the participation of individual members in the

lawsuit." O 'Hair v. White, 675 F.2d 680, 691 (5th Cir.1982) (en banc) (quoting Hunt v. Washington

State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977)).

Trinity asserts that SOC's individual members lack standing to pursue this suit on their own;

consequently, SOC as an organization lacks standing. The Supreme Court in V alley Forge Christian

College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct.

752, 758, 70 L.Ed.2d 700 (1982), enunciated the requirements for individual standing:

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to

"show that he personally has suff ered so me actual or threatened injury as a result of the

putatively illegal conduct of the defendant,"

... and that the injury "fairly can be traced to the

challenged action" and "is likely to be redressed by a favorable decision."

In its complaint, SOC defined its raison d'être as "promoting the protection of the wetlands in and

around their communities." Further, SOC supported with affidavits the assertion that its members

resided in the vicinit

y of, or owned property near the wetlands on the Skyline Landfill, and enjoyed

"the wildlife, aesthetics, open space, eco lo gical and other values of the wetlands, ... and [were]

directly and beneficially interested in the co ntinued protection, preservation, and enhancement ofthese values."

We find that SOC has stated an injury sufficient to satisfy the first element of the standing

requirement under Valley Forge. The Supreme Court held in M orton, 405 U.S. at 734–35, 92 S.Ct.

at 1366, that harm to aesthetic, environmental, or recreational in t erest s is sufficient to confer

standing, provided that the party seeking review is among the injured. Further, as the Third Circuit

recently acknowledged, "[t]hese injuries need not be large, an "ident ifiable trifle' will suffice." P ublic

Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3rd

Cir.1990) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP),

412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973)), cert. denied,

––– U.S.

––––, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991).

As the district court noted, other Courts have consistently recognized this low threshold for

sufficiency of injury. S ee, e.g., United States v. Metropolitan St. Louis Sew er District (MSD), 883

F.2d 54, 56 (8th Cir.1989) (conferring representative standing where two of the group's named

members alleged that many of the 25,000 members have visited, crossed, and frequently observed the

river, as well as periodically have used it for rec r eational purposes); S ierra Club v. Simkins

Industri es, Inc., 847 F.2d 1109, 1112 n. 3 & 1113 (4th Cir.1988) (finding injury to aesthetic and

environmental interests sufficient w h ere pollution would affect river along which a single group

member hiked), cert. denied, 491 U.S. 904, 109 S.Ct. 3185, 105 L.Ed.2d 694 (1989); F riends of the

Earth v. Consolidated Rail Corp., 768 F.2d 57, 61 (2d Cir.19 85) (ho lding that two affidavits

testifying to the recreational use of the river and finding the pollution offensive to aesthetic values

sufficient to demonstrate injury).

With the first element of the Valley Forge test satisfied, w e turn now to the second

factor—whether the injuries suff ered by SOC's members are "fairly traceable" to Trinity's alleged

fa i lure to obtain a permit. Trinity acknowledges that its activities on the Skyline Landfill have11 Our standing analysis need not apply the reasoning recently employed by the Supreme Court

in Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695

(1990). There, the Court faced a question of statutory, as distinguished from constitutional

standing, see Pow

ell Duffryn, 913 F.2d at 84 (Aldisert, J., concurring) (recognizing

constitutional/statutory distinction in Lujan ), and addressed alleged violations under NEPA, the

APA, and the Federal Land Policy and Management Act of 1976 ("FLPMA"), but not the CWA.

As the Court noted, neither the FLPMA nor NEPA provides a private right of action for

violations of its provisions—thus judicial review of agency action was possible only if authorized

by § 10(a) of the APA. 497 U.S. at ––––, 110 S.Ct. at 3185. Because the CWA does specifically

provide such a private right of action, 33 U.S.C. § 1365(a), we properly employ a constitutional

standing analysis, as opposed to a statutory analysis under the APA. reduced the total acreage of the ponds by half, and that the FWS has reported that, "[b]ecause the

upper ponds have been drained, they now have considerably less value for wildlife." Further, as the

Third and Fourth Circuits have suggested, the "fairl y traceable" element does not require that the

plaint iffs "show to a scien t ific certainty that defendant's effluent, and defendant's effluent alone,

ca used t he precise harm suffered by the plaintiffs." P owell Duffryn, 913 F.2d at 72; N atural

Resources Defense Co uncil, Inc. v. Watkins, 954 F.2d 974, 980 n. 7 (4th Cir.1992). Under the

developed tests, we find the second element satisfied.

To meet the third requirement, SOC's members must demonstra t e t hat t heir injuries are

"likely to be redressed by a favorable decision." The redressability factor focuses upon the connection

between the plaint iff's injury and the judicial relief sought. A llen v. Wright, 468 U.S. 737, 753 n. 19,

104 S.Ct. 3315, 3325 n. 19, 82 L.Ed.2d 556 (1984). It is obvious the third element is sat isfied.

Enjoining Trinity's activities would redress the injuries suffered by SOC's members by preventing the

further destruction of the wetlands.

We conclude that the district court held properly that SOC, as a representational

organization, had standing to bring this suit. SOC has shown more than a mere "general interest in

environmental preservation." 11

B. Statutory Coverage

SOC maintains that because Trinity's continued draining of, discharging into, and ultimate12 The term "discharge of a pollutant" is defined by the statute as constituting "any addition of

any pollutant to navigable waters from any point source...." 33 U.S.C. § 1362(12). The CWA

then, in turn defines "pollutant" as the following:

The term "pollutant" means dredged spoil, solid waste, incinerator residue,

sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt

and industrial, municipal, and agricultural waste discharged into water.

33 U.S.C. § 1362(6).

13 Dividing authorizing jurisdiction between the EPA and the Corps, the CWA allocates

responsibility to the Corps to issue permits for the discharge of dredged or fill material into

navigable waters pursuant to section 404 (33 U.S.C. § 1344). The EPA, on the other hand, is

responsible for issuing permits for all other discharges of pollutants under section 402 (33 U.S.C.

§ 1342). filling of the wetlands without a permit is a violation of sections 301 and 404 of the CWA, there is

also federal question jurisdiction. Trinity contends that because section 505, the citizen's suit

provision, refers to a violation of an effluent standard, limitation or order, SOC is precluded from

bringing suit against Trinity for failure to seek a permit. Trinity argues that without a discharge of

effluent no violation exists, and no jurisdiction is created.

Passed in 1972 with the stated objective of restorin g and maint aining the integrity of the

waters of the United States, the CWA seeks to achieve this goal "by the application of increasingly

more stringent "effluent limitations' designed to reduce gradually the amount of pollutants discharged

into waterways." S ierra Club v. Shell Oil Co., 817 F.2d 1169, 1173 (5th Cir.), cert. denied, 484 U.S.

985, 108 S.Ct. 501, 98 L.Ed.2d 500 (1987). In precise language, the CWA prohibits "the discharge

of any pollutant by any person" except as authorized by specific secti ons of the Act. 33 U.S.C. §

1311(a). 12 Specific authorization includes the discharge of "dredged or fill material" pursuant to a

permit issued under section 404 of the CWA. 13 33 U.S.C. § 1344(a). Any discharge of this material

wit ho ut such a permit is, of course, prohibited. Violations of the provisions of the CWA, may be

redressed through a private citizen enforcement action:

any citizen may commence a civil action on his own behalf—(1) against any person ... who

is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B)an order issued by the Administrator or a State with respect to such a standard or limitation....

33 U.S.C. § 1365(a). Thus, the CWA "intertwines the jurisdiction o f t he dist rict court with the

grounds for relief in a citizen enforcement action." S ierra Club, 817 F.2d at 1171. Wi thout the

violation of either (1) an effluent standard or limitation under the CWA, or (2) an order issued with

respect to these standards and limit at io ns, the district court lacks jurisdiction to act. The basic

question is: do these requirements constitute the sole ground for coverage under the statute? The

decision of the district court went beyond these two defined violations and found that draining a

wetland, per se, requires a permit under section 404 of the CWA. No discharge was relied upon as

any part of the justification by the court of its decision.

In int erpreting the statute to determine whether it covers a violation as recognized by the

district court, "we begin, of course, with the words of the statute." Phillips v. Marine Concrete

Structures, Inc., 895 F.2d 1033, 1035 (5th Cir.1990). In so doing, our function "is to construe the

language so as to give effect to the intent of Congress." U nited States v. American Trucking Ass'ns,

310 U.S. 534, 542, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940). The district court, in its

interpretation of the CWA, relied heavily, if not entirely upon the Act's legislative history to divine

its congressional intent. However, "[t]he most persuasive evidence of Congressional intent is the

wording of the statute." Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir.1977).

By its clear and unambiguous terms, the CWA proscribes "the discharge of any pollutant by

any person" into the waters of the United St at es, 33 U.S.C. § 1311(a) (emphasis added). It then

specifically requires a permit, with exceptions irrelevant in this case, "for the discharge of dredged

or fill material " into these waters, 33 U.S.C. § 1344(a) (emphasis added). The conclusion is

inescapable. The existence of discharge is not critical. The discharge must be of effluent or dredged

or fill material. The discharge of effluent is not, as SOC urges, merely an aggravating factor when

addressing whether or not a section 404 permit is required. On the face of the statute, it is the

requirement for statutory coverage.The plain language of a statute cannot be wholly bypassed on the way to an interpretation

of its more indeterminate legislative history. "Where the statute is so lucid, we need not look to the

legislative history for further guidance." P hillips

, 895 F.2d at 1035. While legislative history

admittedly aids in discerning the parameters and purpose of an ill-defined statute, "[i]n the absence

of a "clearly expressed legislative intention to the contrary,' the language of the statute itself "must

ordinarily be regarded as conclusive.' " U nited States v. James, 478 U.S. 597, 606, 106 S.Ct. 3116,

3121, 92 L.Ed.2d 483 (1986) (quoting Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447

U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). We concl ude that the statutory

provisions are clear and unambiguous.

Throughout the course of this case, the EPA and the Corps have vigorously agreed with the

conclusion that the CWA only addresses discharges of effluent. The unequivocal language found in

their own regulations and guidelines promulgated pursuant to section 404(b) of the Act bolsters this

contention:

The purpose of these Guidelines is to restore and maintain the chemical, physical, and

biological integrity of waters of the United Sta t es t hrough the control of discharges of

dredged or fill material.

40 C.F.R. 230.1(a);

These Guidelines have been developed

... under section 404(b)(1) of the Clean Water Act (33

U.S.C. 1344). The Guidelines are applicable t o the specification of disposal sites for

discharges of dredged or fill material into waters of the United States.

40 C.F.R. 230.2(a). S ee also 33 C.F.R. 320.2(f) (describing the Corps' authority pursuant to section

404 of the CWA "to issue permits, after notice and opportuni ty for public hearing, for the discharge

of dredged or fill material into the waters of the United States at specified disposal sites"). Further,

33 C.F.R. 323.1 describes the Corps' program as the regulation of "discharge of dredged or fill

material into waters of the United States".We acc o rd substantial weight to these interpretations, as "[a]n agency's construction of a

statute it is charged with enforcing is entitled to deference if it is reasonable and not in conflict with

the expressed intent of Congress." U nited States v. Riverside Bayview Homes, Inc., 474 U.S. 121,

131, 106 S.Ct. 455, 461, 88 L.Ed.2d 419 (1985) (citing Chemical Manufacturers Ass'n v. Natural

Resources Defense Council, Inc., 470 U.S. 116, 125, 105 S.Ct. 1102, 1107–08, 84 L.Ed.2d 90

(1985)); C

hevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–45,

104 S.Ct. 2778 , 2781–83, 81 L.Ed.2d 694 (1984)). Even if we would have arrived at a different

interpretation, "if the agency's int erpretation i s reasonabl e the court m

ust respect i

t." A voyelles

Sportsmen's League, Inc. v. Marsh ( Avoyelles III ), 715 F.2d 897, 910 (5th Cir.1983) (citing Udall

v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965)).

Recognition of t he "discharge" requirement as the triggering mechanism for section 404

coverage is by no means novel. Courts have consistently applied section 404 only after finding that

discharges of effluent into navigable waters were involved. S ee, e.g., Riverside Bayview Homes, Inc.,

474 U.S. at 124, 106 S.Ct . at 458 (holding wetlands property to be subject to Corps' section 404

permitting authority after Corps sought to enjoin placement of fill materials on wetland area); U nited

States v. Tilton, 705 F.2d 429, 430 (11th Cir.1983) (enjoining the further discharge of fill material

"consisting of woodchips, pine bark and soil" without a section 404 permit); F lorida Rock Industries,

Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986) (holding that if there was no discharge of

pollution, then the Corps "had no statutory authority to act" under section 404), cert. denied, 479

U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); U nited States v. Larkins, 657 F.Supp. 76, 80, 85

(W.D.Ky.1987) (requiring a section 404 permit for the "use of earthmoving equipment to construct

earthen dikes and levees on wetlands," which had resulted in "unauthorized deposition of material into

water of the United States " ), aff'd 852 F.2d 189 (6th Cir.1988), cert. denied, 489 U.S. 1016, 109

S.Ct. 1131, 103 L.Ed.2d 193 (1989).

The cases relied upon by the district court in ruling that a discharge is not required to triggert he coverage of section 404 belie the court's conclusion. S ee Save Our Commun ity v. EPA, 741

F.Supp. at 613–15. Beginning with A voyelles Sportsmen's League v. Marsh, 715 F.2d 897, 923–24

(5th Cir.1983), the district court apparently did not view as critical the fact that in addressing the

landowners' land clearing a ct ivit ies in A voyelles, this Court held that the district court "correctly

decided that the landclearing activities on the [wetland t ract ] constituted a discharge within the

meaning of the [CWA]." Affirming that the bulldozers and backhoes used in the landclearing were

"point sources" that created discharges by collecting "into windrows and piles material that may

ult ima t ely have found its way back into the waters," 715 F.2d at 922, this Court held "that the

material discharged in this case was "fill,' if not "dredged,' material and hence [was] subject to the

Corps' regulation under section 404, as long as the activities did not fall within the section 404(f)

exemption." Id. at 924.

Next, the district court construed our decision in Save Our Wetlands, Inc. v. Sands, 711 F.2d

634, 647 (5th Cir.1983) to stand for the proposition that a section 404 permit will not be required

when an activity will not convert or destroy wetlands by materially affecting their drainage patterns.

So, conversely, the district court inferred that when wetlands are converted or destroyed in this way,

a section 404 permit is required. Again, this reliance is misplaced. Our decision in S ands that a

section 404 permit was not requi red t urned instead upon the Corps' determination that, under the

facts and circumstances of that case, the "materials" produced by the clearing of wooded swampland

"[did] not qualify as dredged or fill materials under [the Corps'] definitions." 711 F.2d at 647.

Consequently, it was not, as the district court contended, the fact that the wetlands in Sands would

not be entirely destroyed that distinguishes that case from Avoyelles Sportsmen's League v.

Alexander, 473 F.Supp. 525 (E.D.La.1979) (" Avoyelles I" ). Instead, as we specifically noted in

Sands, "[t]he definition of fill material highlights the fundamental difference that exists between this

case and the Avoyelles decision." 711 F.2d at 647.

Thus, in these cases and all the other cases upon which the district court relied, the holdingswere based upon a finding of a discharge of pollutants. We must conclude that without the existence

of an effluent discharge of some kind, there is no coverage under section 404. There is no jurisdiction

for the agencies or the courts to act. We must remind again that the federal government has not

taken upon itself to resolve all environmental issues which arise in the United States. Save Barton

Creek Ass'n v. Federal Highw ay Administration, 950 F.2d 1129, 1144 (5th Cir.) cert. denied,

–––

U.S. ––––, 112 S.Ct. 3029, 120 L.Ed.2d 900 (1992).

Determining whether a discharge of effluent occurred in this case, therefore, becomes crucial.

The activity at issue here involved the draining of wetlands via the use of a mechanical pump. Trinity

ut ilized the water pumped to irrigate the sod cover on the landfill. While filling activity was

indisputably contemplated after the draining had caused the area to lose its wetlands characteristics,

Trinity undertook to avoid any and all discharges of fill, or other material, during the draining phase.

Both the EPA and the Corps assured Trinity that if no discharges would be involved, then the

removal of water from the ponds did not constitute a regulated activity under the CWA, and thus did

not require a section 404 permit.

Few cases involve the narrow issue of whether the removal of water from wetlands constitutes

a discharge and requires a permit from the Corps. The dearth of case law on this issue is no t

surprising. We have found no suit in which the Corps undertoo k t o prevent the removal of water

from wetlands. In a case solidly controlling, we held that the deliberate draining of a swamp is not

a discharge of fill material. In O rleans Audubon Society v. Lee, 742 F.2d 901 (5th Cir. 1984), the

Orleans Au dubo n So ciety sued the New Orleans District of the Corps of Engineers to require the

Corps to take action to prevent the draining of a cypress-tupelo gum swamp by C.I.T. Corporati on.

By draining and later filling the wetland area, C.I.T. intended to convert the tract for residential use.

Orleans contended that the installation of two drainage culverts between a wetlands area and an

adjacent drainage canal to accomplish the draining "violated the CWA because they resulted in the

depositing of dredged or fill material into either the C.I.T. tract itself or into the [drainage canal]...."14 Specifically, "[t]he Corps' on-site investigator reported that he found "no evidence of any

discharges regulated under section 404 of the Clean Water Act.' " 742 F.2d at 910.

15 At oral argument, SOC contended that the recapture provision in section 404(f)(2) should be

read broadly, in essence, to apply outside of the context of section (f)(1). According to SOC, the

recapture provision states that "[a]ny discharge of dredged or fill material into the navigable

waters incidental to any activity" that converts a wetland requires a permit. Thus, since Trinity's

drainage operation has as its purpose changing the use of the subject waters where "the reach of

such waters" may be reduced, compliance with CWA via a permit is necessary. Under this

interpretation, any discharge, even if de minimis, requires regulation. Although we need not

decide this issue today, we point out that the argument contrasts with our decisions in Avoyelles

III, 715 F.2d at 926 (stating that "[r]ead together, the two parts of section 404(f) provide a

narrow exemption for agricultural and silvicultural activities that have little or no adverse effect

on the nation's waters"). In Orleans, the statutory exemption under section 404(f) was not

directly at issue, but we intimated its narrow application. Id. at 910. The record explicitly showed, however, that only clear water flowed through the culverts

into the canal, 14 i.e., no discharges of effluent occurred. We held in agreement with the Corps'

determination that there was no section 404 requirement for C.I.T. to obtain a permit for the drainage

operation: "Clear water is not within the definition of a pollutant under the CWA." Id. at 910.

Orleans further argued that section 404(f)(2) (related to dredged or fill materi al o nly)

prohibited the drainage of the water from the C.I.T. tract. The drainage, Orleans maintained, was

"incidental to an activity which is intended to b ring about the conversion of a wetland, the C.I.T.

swamp, into non-wetland area which can then be developed into a residential area without

governmental approval." I d. n. 16. We found that, although cognizant of this possibility, as was the

Corps, we could not require an exercise of nonexistent jurisdiction. We said that "Section 404(f)(2)

applies only when dredged or fill material has been discharged, and water is simply not dredged or

fill material. Orleans' assertion that vegetation from the tract (which, it argues, constitutes a

pollutant) was also being removed th rough the cul verts was not supported by the record." 1 5 I

d.

(emphasis in original).

The district court undertook to distinguish Orleans' pivotal holding. Our finding in the body

of the opinion was that, absent a finding of discharge, draining activity that converts a wetland does

not trigger section 404 jurisdiction requiring a permit. Instead, the district court focused upon ourdismissal of Orleans' claim that section 404(f)(2) applied. This limitation of the scope of O rleans led

the district court to the conclusion that "the [ Orleans ] court restricted its discussion to the limit ing

clause of § 404(f), which provides for very narrow exceptions to the permit requirement." S ave Our

Community, 741 F.Supp. at 615 n. 17. Thus, the district court held, "[t]he O rleans court's brief

analysis cann ot be understood to mean that the Act permits the wanton destruction of wetlands

through draining activities. However, to the extent that O rleans conflicts with Avoyelles III, Save

Our Wetlands, and York, this Court follows the path cleared by the latter decisions." I d. We did not,

however, limit our holding to the application of section 404(f). Furthermore, our reading of these

later cases fails to discern any divergence from our Orleans approach.

As an alternative argument to its assertion that drainage alone requires a permit, SOC

contends that even if draining without a dis charge is not regulated under the CWA, discharging

pollutants certainly is. According to SOC, the district court made a finding of fact that there were

some "minor" discharges. S ave Our Community, 741 F.Supp. at 609, Finding of Fact No. 14. SOC

relies primarily on two observations by the FWS. First, it cites FWS' May 27, 1989 correspondence

to the TDH recommending the denial Trinity's landfill permit application:

Pumped water has been discharged into a makeshif t dit ch resulting in significant erosion

above the ditch's outfall to Pond F and subsequent deposition of fill material in Pond F.

Second, it cites other FWS correspondence t o Trinit y on February 22, 1990, reiterating similar

contentions:

Regarding siltation, the most prominent example noted by our staff in a site-visit on March

14, 1989, was the deposition of recently eroded soil in Pond F resulting from water pumped

from Pond A into a make-shift ditch.

Trinity counters first by stating that by the district court's own admissi on, whether m i nor

discharges have occurred or not was declared to be irrelevant to the district court's decision. The

only basis for the court's prohibition against draining was its determination that draining is a regulated16 The Federal defendants express a similar concern. They assert that the district court did not

rely on the existence of a discharge as the basis for its permanent injunction, and in fact made it

clear that such a discharge was immaterial to its decision. Further, since the district court's

finding of a discharge was based solely on two letters from the Fish and Wildlife Service, this can

"hardly form a firm basis" for a conclusion that discharge has in fact occurred. They assert,

nonetheless, that if this Court accepts the argument that the CWA requires permits only for

discharge of a pollutant, the appropriate remedy would be to remand to the district court for

reconsideration under a correct interpretation of the CWA—potentially, whether a discharge has

occurred. activity under section 404. 16 Second, it asserts that the district court's finding concerning discharge

is clearly erroneous. Under S tate of Missouri ex rel. Ashcroft v. Department of the Army, Corps of

Engineers, 526 F.Supp. 660, 678 (W.D.Mo.1980), aff'd, 672 F.2d 1297, 1304 (8th Cir.1982), as a

matter of law, erosion of soil as a result of releases of water is simply not a discharge regulated by

the CWA. Third, finding of minor discharge is not equivalent to a finding of a violation of section

301(a). According to Trinity, many minor discharges are authorized pursuant to broad nationwide

permits issued under section 404(e), 33 U.S.C. § 1344(e), and 33 C.F.R. § 330.5.

Trinity also urges that a genuine dispute concerning material facts remains on the issue as to

whether any discharge at all occurred. At the district court level, Trinity disputed the factual accuracy

of the discharge s finding by proffering an affidavit from Trinity's Environmental Engineer

Manager–Texas stating that Trinity would not discharge any dredged or fill material into the pond

areas without a determination that those areas were not jurisdictional waters, if they were, a section

404 permit would be obtained from the Corps.

First, we emphasize that it is not contested that the district court relied exclusively on its

finding of draining, not discharge, to find section 404 jurisdiction. The Federal defendants urge and

even Trinity concedes, denial of the summary judgment and the remand is necessary to resolve this

disputed factual issue. As to Trinity's second assertion, SOC seeks to characterize t he siltation

alleged as redeposited wetlands material. It cites to A voyelles III, 715 F.2d at 923, for t h e

proposition that the term "discharge" under the section 404 regulations covers the redep o siting of

materials taken from the wetlands. Faced with an incomplete factual record on this issue, we also17 Proposed rules concerning a de minimis discharge are in the commentary phase. In the

commentary, the Corps and the EPA note that the de minimis exclusion serves in part "to avoid

duplicative regulation of dredging itself in waters within the jurisdictional scope of the Rivers and

Harbors Act." As the Corps and the EPA concede, however, "[o]ver the years, application of this

"de minimis' language has become problematic, especially when applied to activities which did not

involve dredging for the purposes of maintaining navigation in traditionally navigable waters." 57

Fed.Reg. at 26895. Under its proposed rules, the new language would undertake to clarify by

providing:

[A]part from the exclusion for "normal dredging operations," the term "discharge

of dredged material" includes any discharge, i.e., addition or redeposition, of

excavated material into waters of the United States which is incidental to any

activity, including mechanized landclearing, ditching, channelization, or other

excavation, which has or would have the effect of destroying or degrading any area

of the waters of the United States. The term "discharge of dredged material" does

not include de minimis soil movement incidental to activities which do not or

would not have such an effect."

Id. must leave its determination for the district court.

Third, SOC maintains that contrary to Trinity's contentions, the discharges observed by FWS

are subject to section 404 jurisdiction, even if they constitute de minimis discharges. A d e minimis

exception is not explicitly mentioned under section 404. But it is recognized in regulations exempting

from section 404's permit requirement those activities invo lving only de minimis discharge. The

Corps' current definition of "discharge of dredged material," at 33 C.F.R. 323.2(d), provides that " de

minimis, incidental soil movement occurring during normal dredging operations" is not considered

to be within this regulatory definition. Further, the EPA's regulations contain a similar definition with

the same exclusion. S ee 40 C.F.R. 232.2(e). 17 Because it is unclear from the record the extent of or

if any prohibited discharge has occurred, we need not now consider the issue of the extent to which

de minimis discharges require permits under section 404 of the CWA.

C. Attorneys' Fees

The district court awarded SOC attorneys' fees, expenses, and court costs as the prevailing

party in this lawsuit. See 33 U.S.C. § 1365(d). Since we determine that the district court erred in

finding that Trinity's activities required a permit under section 404, the award of attorneys' fees toSOC was not justified. See Chemical Manufacturers Ass'n v. United States EPA, 885 F.2d 1276,

1279 (5th Cir.1989) ("an award is usually "appropriate' when a party has advanced the goals of the

statute invoked in the litigation").

III. CONCLUSION

We hold that the wetlands draining activity per se does not require a section 404 permit under

the CWA, as only activities invo lving discharges of effluent necessitate o bt aining such a permit.

Consequently, we dissolve the injunction. Further, viewing the evidence and drawing all inferences

in the light most favorable to Trinity, the non-moving party, we conclude that there are disputed

issues of material fact regarding th e existence of the exact nature of a discharge alleged. B ozé v.

Branstetter, 912 F.2d 801, 804 (5th Cir.1990) (per curiam). Because the existence, nature, and

extent, including redepositing, of an alleged discharge was not considered by the district court, we

reverse the summary judgment and remand to the court, as coverage of the statute turns upon this

determination. We find the mandate of the statute is clear.

INJUNCTION DISSOLVED, SUMMARY JUDGMENT REVERSED. REMANDED.