Sierra Club, Lone Star Chapter, Plaintiff-Counter v. Cedar Point Oil Company Inc., Defendant-Counter Claimant-Appellant. Sierra Club, Lone Star Chapter, Plaintiff-Counter v. Cedar Point Oil Company Inc., Defendant-Counter Claimant-Appellee

These consolidated appeals arise from an action brought by Sierra Club, Lone Star Chapter ("Sierra Club"), against Cedar Point Oil Company ("Cedar Point") under the citizen suit provision of the Clean Water Act ("CWA"), 33 U.S.C. Sec. 1365. Sierra Club alleged that Cedar Point was violating the CWA by discharging produced water into Galveston Bay without a permit and sought civil penalties and an order enjoining the unpermitted discharge. Cedar Point counterclaimed for abuse of process. Before trial, the district court granted summary judgment in favor of Sierra Club on the issue of Cedar Point's liability under the CWA and dismissed Cedar Point's counterclaim. After a bench trial, the district court assessed a civil penalty of $186,070. Cedar Point appeals. The district court also enjoined the discharge of produced water from Cedar Point's oil and gas production operations without a permit; however, the court later modified this injunction to allow Cedar Point to continue the unpermitted discharge. Sierra Club appeals this modification. We affirm in all respects the judgment of the district court.

1. "Produced Water"

This lawsuit concerns the legality of the disposal of a by-product of the oil and gas production process: "produced water." Produced water originates as source water trapped in underground geological formations with oil and gas. When a well is drilled into a formation, the extraction of oil and gas also brings the water to the surface. During extraction, chemicals used in the drilling process become mixed with the water. The result is produced water.1

Part of the production process involves the separation of the produced water from the extracted oil and gas. After separation, the operator must dispose of the produced water. The available methods of disposal include reinjection into an underground reservoir, land disposal, evaporation, and discharge into surface waters. Produced water is the highest volume waste source in offshore oil and gas production operations.2

Cedar Point is a Mississippi corporation that owns and operates an oil and gas well and associated facilities in the Cedar Point field ("the field"), which is located in Galveston Bay in Chambers County, Texas.3 John McGowan ("McGowan"), Cedar Point's principal shareholder, purchased the field from Chevron Corporation ("Chevron") on July 1, 1989. At that time, the field contained twenty-two abandoned wells and three producing wells. McGowan shut down the producing wells approximately one month after he purchased the field. On January 1, 1991, McGowan transferred the field to Cedar Point.4 Later that year, Cedar Point drilled its first well since acquiring the field: state well 1876.5 Cedar Point began producing oil and gas from this well on September 10, 1991.

Cedar Point began to discharge produced water into Galveston Bay at approximately the same time that it began production from state well 1876. This discharge continued through the trial of this action in May 1994, except that the discharge was temporarily suspended between April and August of 1992. Throughout this period, the average daily discharge ranged between 500 to 1200 barrels per day.6 Cedar Point's produced water contained, inter alia, barium, benzene, zinc, chlorides, sulfate, bicarbonate, ammonia, naphthalene, phenolic, radium, oil and grease. Cedar Point disposed of its produced water in the following manner: (1) the oil, gas, and water mixture produced from state well 1876 was piped to a platform in Galveston Bay for the first phase of separation; (2) after the initial separation, the remaining mixture was then piped to shore where more oil was separated in a series of tanks; (3) the produced water was then transferred to settling pits so that some constituents could settle out of the water; and (4) the remaining produced water was drained out of the pits and discharged through a pipe over the bulkhead into Galveston Bay.7

Between August 1971 and July 1989, Chevron discharged produced water from the onshore separating facility pursuant to a permit issued by the Texas Railroad Commission ("the Railroad Commission"). This permit set limitations only on the oil and grease content of the produced water that was being discharged. After McGowan purchased the field, the Railroad Commission transferred Chevron's Commission permit to McGowan. The letter from the Railroad Commission authorizing this transfer stated that a permit from the Environmental Protection Agency ("EPA") may be required for the discharge of produced water under the National Pollutant Discharge Elimination System ("NPDES"). David Russell ("Russell"), who reviewed the transferred permit for McGowan, testified that he did not read this sentence in the letter; however, he did review Chevron's files, which did not reveal any NPDES permit or NPDES permit application in the twenty-year period of Chevron's ownership of the field. Based on this review, Russell did not apply for a NPDES permit for McGowan at that time.

After McGowan transferred the field to Cedar Point in 1991, Russell commenced negotiations with the Railroad Commission to transfer McGowan's Commission permit to Cedar Point. This negotiation took several months, apparently because Cedar Point and the Railroad Commission disputed the terms of the Commission permit that Cedar Point would ultimately receive. Cedar Point finally obtained a Commission permit in September 1992, again establishing limitations only on the oil and grease content of the produced water that was being discharged.8 According to Russell, while he was negotiating the terms of this permit, Railroad Commission employees informed him that oil and gas operators in Galveston Bay were being sued for discharging produced water into the bay without a NPDES permit. Also, the final Commission permit that Cedar Point received in September 1992 advised that a NPDES permit may be required for the discharge of produced water and that EPA was considering prohibiting such discharges. Accordingly, on October 15, 1992, Cedar Point applied to EPA for a NPDES permit for its produced water discharges.

By letter dated November 5, 1992, EPA informed Cedar Point that its application for a NPDES permit had been reviewed and determined to be administratively complete. Since this acknowledgment, however, EPA has failed to act on the application. On December 30, 1992, Russell submitted a request to EPA under the Freedom of Information Act ("FOIA"),9 asking whether EPA had ever issued a permit for the discharge of produced water in Texas. On February 4, 1993, EPA responded that it had issued two such permits. The first permit was a general permit10 that applied to oil and gas operators in the "Offshore Subcategory" in Louisiana and Texas and established limitations on the oil and grease content of discharged produced water.11 The second permit was also a general permit that applied to oil and gas operators in the "Onshore Subcategory" in Louisiana, New Mexico, Oklahoma, and Texas; this permit established an absolute prohibition on the discharge of produced water by these entities.12 Neither of these permits applied to Cedar Point because Cedar Point is in the "Coastal Subcategory."13 In fact, at that time the only regulation that EPA had promulgated that applied to the discharge of produced water by Coastal Subcategory operators was an effluent limitation on the oil and grease content of discharged produced water;14 however, EPA had never implemented this limitation through a general permit or individual permits. As a result, none of Cedar Point's produced water discharges was authorized by a NPDES permit.

By letter dated December 16, 1992, Sierra Club informed Cedar Point that the discharge of produced water without a NPDES permit violated the CWA and that Sierra Club planned to seek monetary penalties and an order enjoining Cedar Point's unpermitted discharges.15 In response to this letter, Cedar Point filed an action against Sierra Club and EPA in the United States District Court for the Southern District of Mississippi. In its complaint, Cedar Point alleged, inter alia, that Sierra Club had "threatened" Cedar Point with a citizen suit and, impliedly, that EPA and Sierra Club were conspiring to deprive Cedar Point of unspecified constitutional rights. Specifically, Cedar Point requested the district court to issue an order that: (1) required EPA to respond to Cedar Point's then-unanswered FOIA request; (2) required EPA to rule upon Cedar Point's application for a NPDES permit; and, (3) enjoined Sierra Club from filing a citizen suit against Cedar Point. On July 12, 1993, the district court dismissed Cedar Point's claims against Sierra Club.16

Sierra Club filed the present action against Cedar Point on April 20, 1993, in the United States District Court for the Southern District of Texas. In its complaint, Sierra Club prayed for: (1) a judgment declaring that Cedar Point's unpermitted discharges of produced water into Galveston Bay violated the CWA; (2) a permanent injunction prohibiting future unpermitted discharges; and (3) penalties for past unpermitted discharges. The district court immediately entered an Order for Accelerated Discovery, requiring the parties to make certain disclosures without waiting for discovery requests. This order directed, inter alia, that the parties disclose at least ninety days prior to trial the expert testimony that they would offer at trial.

Cedar Point filed its answer and a counterclaim against Sierra Club on August 18, 1993. The counterclaim alleged that Sierra Club's lawsuits against Cedar Point and other oil and gas operators in the bay constituted an abuse of process. Cedar Point sought compensatory damages for the emotional distress suffered by its officers and directors and $10,000,000 in punitive damages. Sierra Club moved to dismiss this counterclaim. The district court ultimately entered an order granting Sierra Club's motion on the grounds that, because Sierra Club's citizen suit was not frivolous, it could not be the basis for a claim for abuse of process.

Sierra Club then filed a motion for partial summary judgment on the issue of Cedar Point's liability under the CWA. In response, Cedar Point filed a cross-motion for partial summary judgment on the issues of its liability, Sierra Club's ability to state a claim under the CWA, and Sierra Club's standing to sue. The district court entered an order granting Sierra Club's motion for partial summary judgment and denying Cedar Point's similar motion on the liability issue. Specifically, the court found as a matter of law that Cedar Point had discharged pollutants without a NPDES permit in violation of the CWA. The court also denied Cedar Point's motion on the issue of Sierra Club's standing to sue. In this regard, the court found that the affidavits submitted by Sierra Club established that some of its members had suffered injuries in fact that were fairly traceable to Cedar Point's discharge of produced water, and therefore were sufficient to defeat a motion for summary judgment.

Sierra Club also filed a motion to strike Cedar Point's designation of experts that it would offer at trial. In this motion, Sierra Club alleged that Cedar Point had failed to comply with that part of the district court's discovery order requiring "written report[s] prepared and signed by the witness[es] which include[ ] a complete statement of all opinions to be expressed and the basis and the reasons therefor." Specifically, Sierra Club complained that the reports submitted by Cedar Point were so substantively inadequate that Sierra Club would be substantially prejudiced if the court allowed these witnesses to testify. The court granted Sierra Club's motion to strike Cedar Point's experts, finding that Cedar Point had failed to comply with its discovery order.

The issues of the penalties to be assessed against Cedar Point for its past violations and Sierra Club's request for injunctive relief were tried to the bench. The court issued its opinion and judgment on May 27, 1994. First, the court imposed a civil penalty of $186,070 based on the economic benefit that accrued to Cedar Point because of its failure to comply with the CWA--i.e., the money it saved by not constructing a disposal system that would have resulted in zero discharge. Second, the court enjoined Cedar Point from discharging produced water from its operations at the field into Galveston Bay until it obtained a NPDES permit.17 Finally, the court awarded Sierra Club $60,000 in attorneys' fees as the prevailing party in the litigation.18 The court later increased this award to $82,956.86. Cedar Point timely filed its notice of appeal from this judgment as well as the court's pretrial rulings, including the dismissal of Cedar Point's counterclaim and the partial summary judgment on the issue of Cedar Point's liability under the CWA.

On January 9, 1995, EPA published a final NPDES general permit covering the discharge of produced water by operators in the "Coastal Subcategory" in Louisiana and Texas, including Cedar Point.19 This permit imposed, inter alia, an absolute prohibition on the discharge of produced water, effective February 8, 1995. Along with the permit, however, EPA issued an administrative compliance order that qualified somewhat this effective date.20 The compliance order recognized that many operators would have to reinject their produced water in order to comply with the permit's "No Discharge" provision. Because existing reinjection well operators, state permitting authorities, and drilling contractors would probably be unable to meet the demand for reinjection occasioned by the terms of the permit, complete compliance by all covered operators would necessarily be delayed until well after the February 8 effective date. Accordingly, the order directed the permittees to "[c]omplete all activities necessary to attain full and continuance [sic] compliance with [the "No Discharge" requirement] as soon as possible, but in no case later than January 1, 1997;" however, this order only applied to operators covered by the permit who would be discharging produced water on the effective date of the permit, February 8, 1995.21

Cedar Point could not discharge produced water on February 8 because the district court's injunction order prevented it from doing so without penalty. Accordingly, on January 30, 1995, Cedar Point filed a motion to amend or supplement the court's final judgment to allow it to discharge produced water without penalty on the effective date of the permit and thereafter so that it could take advantage of the two-year "grace period." The district court granted this motion and amended its May 27, 1994 opinion to allow the requested discharge. Sierra Club timely filed a notice of appeal from the court's order amending the injunction.

In its appeal from the judgment of the district court, Cedar Point raises the following points of error: (1) Sierra Club lacks standing to bring this action; (2) Sierra Club has failed to state a claim under the citizen suit provision of the CWA; (3) Cedar Point's discharges of produced water into Galveston Bay do not violate the CWA; (4) the district court erred in striking Cedar Point's designation of experts and excluding their testimony; (5) the district court erred in calculating the amount of the penalty imposed and in awarding attorneys' fees to Sierra Club; and (6) the district court erred in dismissing Cedar Point's counterclaim for abuse of process. We address each of these arguments in turn.

Cedar Point's first argument on appeal is that Sierra Club lacks standing to bring this citizen suit. Specifically, Cedar Point argues that Sierra Club members have not shown the requisite "injury in fact" nor have they demonstrated that the alleged injury is "fairly traceable" to Cedar Point's discharge. Rather, Cedar Point claims that the affidavits submitted by Sierra Club members showed only a concern over produced water discharges into Galveston Bay, but not an injury from those discharges, much less an injury traceable to Cedar Point's discharges in particular. We review a district court's holding on the issue of standing de novo.22 MD II Entertainment, Inc. v. City of Dallas, 28 F.3d 492, 497 (5th Cir.1994); United States v. $38,570 U.S. Currency, 950 F.2d 1108, 1111 (5th Cir.1992).

An organization such as Sierra Club has standing to bring an action on behalf of its members where: (1) the organization's members would have standing to sue individually; (2) the organization is seeking to protect interests that are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires the organization's members to participate in the lawsuit. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977); National Treasury Employees Union v. U.S. Dep't of Treasury, 25 F.3d 237, 241 (5th Cir.1994); Save Our Community v. U.S.E.P.A., 971 F.2d 1155, 1160 (5th Cir.1992). The parties do not dispute that Sierra Club satisfies the second and third prongs of this test. Rather, it is the standing of individual members of Sierra Club that is at issue.

In order to establish individual standing, a person must show that: (1) he has suffered an actual or threatened injury as a result of the actions of the defendant; (2) the injury is "fairly traceable" to the defendant's actions; and (3) the injury will likely be redressed if he prevails in his lawsuit. Save Our Community, 971 F.2d at 1160 (quoting Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758-59, 70 L.Ed.2d 700 (1982)). There is no question that an injunction would redress the injuries allegedly suffered by Sierra Club members who visit and recreate in Galveston Bay. Therefore, we focus on the "injury in fact" and "fairly traceable" requirements.

a. "Injury in Fact"

Sierra Club submitted affidavits from three of its members in response to Cedar Point's standing challenge. These affiants described how they use Galveston Bay for various recreational activities, including swimming, canoeing, and bird watching. Also, two of the affiants commented that they live near the bay. With respect to produced water, each affiant made the following statement:

I am familiar with "produced water" that is being discharged into Galveston Bay by oil and gas production facilities located on the Bay. I am concerned that the discharge of produced water adversely affects the water quality and the wildlife of the bay. Therefore, I am concerned that the continued discharge of produced water will impair my ability to enjoy the activities in which I participate.

Only one of the affiants, Tommy Douglas ("Douglas"), indicated that he had participated in activities in the vicinity of Cedar Point's discharge. None of the affiants stated that Cedar Point's produced water in particular had impaired or threatened to impair his use of the bay.

Cedar Point makes much of the fact that the affiants expressed "concern" that the discharge of produced water will impair their ability to engage in recreational activities. Such language, Cedar Point argues, stated only an interest in eliminating produced water discharges into Galveston Bay, and not an injury in fact. We find no merit in this contention. Whether the affiants were "concerned" or "believed" or "knew to a moral certainty" that produced water would adversely affect their activities on the bay is a semantic distinction that makes little difference in the standing analysis. The requirement that a party demonstrate an injury in fact is designed to limit access to the courts to those "who have a direct stake in the outcome," Valley Forge Christian College, 454 U.S. at 473, 102 S.Ct. at 759 (quoting Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972)), as opposed to those who "would convert the judicial process into 'no more than a vehicle for the vindication of the value interests of concerned bystanders.' " Id. (quoting United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973)). Sierra Club's affiants are concerned, but they are not mere "bystanders." Two of the affiants live near Galveston Bay and all of them use the bay for recreational activities. All of the affiants expressed fear that the discharge of produced water will impair their enjoyment of these activities because these activities are dependent upon good water quality. Clearly, Sierra Club's affiants have a "direct stake" in the outcome of this lawsuit.

That this injury is couched in terms of future impairment rather than past impairment is of no moment. The Supreme Court has expressly held that a "threatened injury" will satisfy the "injury in fact" requirement for standing. Id., 454 U.S. at 472, 102 S.Ct. at 759 (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979)); see also Sierra Club v. Simkins Indus., Inc., 847 F.2d 1109, 1113 & n. 4 (4th Cir.1988) (noting that affidavit establishing threat of future injury met Article III standing requirements), cert. denied, 491 U.S. 904, 109 S.Ct. 3185, 105 L.Ed.2d 694 (1989). Also, at least one of the affiants did claim to have suffered a past injury: Mark Muhich ("Muhich") stated that, during a number of his bird watching trips in Galveston Bay, he had observed discolored water, oil, and grease, and had detected unpleasant odors; he also asserted that polluted water impaired his enjoyment of bird watching. The Third Circuit has held that this precise sort of injury satisfies the "injury in fact" requirement for standing. Public Interest Research Group of New Jersey, Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 71 (3rd Cir.1990) (finding sufficient injury where plaintiff organization submitted affidavit of member who stated that he was offended by brown color and bad odor of water body adjacent to park where he went bird watching), cert. denied, 498 U.S. 1109, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991).

Moreover, we have held that affidavits similar to those submitted by Sierra Club were sufficient to satisfy the "injury in fact" requirement in a citizens suit brought under the CWA. In Save Our Community, the plaintiff organization supported its standing argument with affidavits by some of its members who owned property or lived in the vicinity of the wetlands that were being drained by the defendant. These affiants stated that they enjoyed "the wildlife, aesthetics, open space, ecological and other values of the wetlands, ... and [were] directly and beneficially interested in the continued protection, preservation, and enhancement of these values." Id. at 1160-61. In holding that these affidavits demonstrated a constitutionally sufficient injury in fact, we noted that "harm to aesthetic, environmental, or recreational interests is sufficient to confer standing, provided that the party seeking review is among the injured." Id. at 1161 (citing Sierra Club v. Morton, 405 U.S. at 734-35, 92 S.Ct. at 1366). We also recognized that "[t]hese injuries need not be large, an identifiable trifle will suffice." Id. at 1161 (quoting Powell Duffryn, 913 F.2d at 71 (internal quotations omitted)). Given this low threshold requirement,23 we hold that the affidavits submitted by Sierra Club are sufficient to satisfy the "injury in fact" prong of the test for standing.

b. "Fairly Traceable"

Cedar Point further argues that, even if the affidavits submitted by Sierra Club do establish an injury, they do not establish that the injury is fairly traceable to Cedar Point's discharge of produced water. In this regard, Cedar Point focuses on the affidavits of Douglas and Muhich. Cedar Point notes that Douglas, the only affiant who stated that he engaged in activity in the vicinity of Cedar Point's discharge, failed to assert that Cedar Point's produced water in particular injured him in any way. Cedar Point also notes that Muhich, the only affiant who claimed to observe discolored water and foul odors, did not allege that he made these observations in that part of Galveston Bay near Cedar Point's discharge. Accordingly, Cedar Point urges that Sierra Club has not met the "fairly traceable" requirement of standing.

The Third Circuit has articulated a three-part test for establishing that an injury is "fairly traceable" to a defendant's discharge in a citizen suit under the CWA. Powell Duffryn, 913 F.2d at 72. According to this test, the plaintiff must "show[ ] that a defendant has (1) discharged some pollutant in concentrations greater than allowed by its permit (2) into a waterway in which the plaintiffs have an interest that is or may be adversely affected by the pollutant and that (3) the pollutant causes or contributes to the kinds of injuries alleged by the plaintiffs." Id. While an overly broad application of this test may be problematic, see infra n. 24, its application to this case is useful.

Applying this test to Douglas, we find that Sierra Club has established that his injury is fairly traceable to Cedar Point's discharge. First, because Cedar Point does not even have a permit for its discharges of produced water, any discharge exceeds that which is allowed under the CWA. Second, Douglas asserted in his affidavit and testified that he has canoed and participated in educational trips in the vicinity of Cedar Point's discharge, and that he intends to continue these activities in this area in the future. These assertions establish Douglas's interest in that part of Galveston Bay around Cedar Point's discharge. With respect to whether produced water does or may adversely affect Galveston Bay, Sierra Club presented expert testimony that Cedar Point's produced water was typical in many respects, and that typical produced water has harmful effects on water quality and marine life.

Finally, produced water contributes to the types of injuries alleged by Douglas, including his fear that the harmful effects on water quality and the ecosystem will impair his ability to enjoy canoeing and observing wildlife. Contrary to Cedar Point's suggestion, the Constitution does not require Sierra Club to produce an affiant who claims that Cedar Point's discharge in particular injured him in some way. We have noted that "the fairly traceable element does not require that the plaintiffs 'show to a scientific certainty that [the] defendant's effluent, and [the] defendant's effluent alone, caused the precise harm suffered by the plaintiffs.' " Save Our Community, 971 F.2d at 1161 (quoting Powell Duffryn, 913 F.2d at 72). Given the number of entities discharging chemicals into Galveston Bay, it would be virtually impossible for any of Sierra Club's members to trace his injuries to Cedar Point's discharge in particular. Rather, it is sufficient for Sierra Club to show that Cedar Point's discharge of produced water contributes to the pollution that impairs Douglas's use of the bay. See Natural Resources Defense Council, Inc. v. Watkins, 954 F.2d 974, 980 (4th Cir.1992); Powell Duffryn, 913 F.2d at 72 n. 8. Therefore, we hold that Sierra Club has, by Douglas's affidavit, met the "fairly traceable" requirement for standing.24

Cedar Point also contends that Sierra Club has failed to state a claim under the citizen suit provision of the CWA because Sierra Club has not alleged that Cedar Point is violating an effluent limitation or permit provision promulgated by EPA.25 We review the issue of whether a plaintiff has stated a claim under the same standard used by the district court: A claim may not be dismissed unless it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994); Carney v. RTC, 19 F.3d 950, 954 (5th Cir.1994).

As authority for its position, Cedar Point cites to the following language from our decision in Save Our Community v. U.S.E.P.A., 971 F.2d 1155 (5th Cir.1992) (per curiam):

Without the violation of either (1) an effluent standard or limitation under the CWA, or (2) an order issued with respect to these standards and limitations, the district court lacks jurisdiction to act.

Id. at 1162. With respect to the constituents of Cedar Point's produced water, EPA has only promulgated an effluent limitation on the oil and grease content.26 Because Cedar Point's discharges have always complied with this limitation, Cedar Point argues that Sierra Club has failed to state a claim.

Also, Cedar Point contends that Sierra Club has failed to state a claim with respect to the discharges of the other constituents of Cedar Point's produced water separately or for the discharge of produced water as a whole because EPA has not established an applicable effluent limitation or permit for those discharges. Cedar Point reasons that, because there is no effluent limitation or permit in place for these discharges, there can be no violation of a limitation, as required by Save Our Community. In support of this contention, Cedar Point notes that the Southern District of Texas has held that the discharge of a pollutant without a permit is not unlawful under the CWA unless EPA has adopted a relevant effluent standard or permit limitation. United States v. GAF Corp., 389 F.Supp. 1379, 1386 (S.D.Tex.1975). Cedar Point emphatically asserts that this interpretation represents the way that Congress intended the CWA to work.

We find Cedar Point's arguments to be without merit. First, Cedar Point urges a result contrary to the plain language of the CWA. As we noted in Save Our Community, the citizen suit provision of the CWA states that:

[A]ny citizen may commence a civil action on his own behalf ... 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. Sec. 1365(a)(1). The term "effluent standard or limitation," however, is expanded in a later subsection:

For purposes of this section, the term "effluent standard or limitation under this chapter" means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title....

33 U.S.C. Sec. 1365(f). Section 1311(a) provides:

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.

33 U.S.C. Sec. 1311(a). Among those sections listed for which compliance is necessary to make the discharge of a pollutant lawful, Sec. 1342 provides for NPDES permits that regulate the discharge of pollutants. Therefore, the discharge of any pollutant without a NPDES permit is an unlawful act under Sec. 1311(a). The Supreme Court has interpreted Sec. 1311 and Sec. 1342 in this way. City of Milwaukee v. Illinois, 451 U.S. 304, 310-11, 101 S.Ct. 1784, 1789, 68 L.Ed.2d 114 (1981) ("[I]t is illegal to discharge pollutants into the Nation's waters except pursuant to a permit."). Reading these sections together with Sec. 1365(a) and (f), it is clear that a citizen may bring an action under the CWA against any person who is allegedly discharging a pollutant without a NPDES permit.