Petition — EPA v. California Ex Rel. State Water Resources Control Bd.

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In the Supreme Court of the United States

OCTOBER TERM, 1974

No.

THE ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

PETITIONERS

Vv.

PEOPLE OF THE STATE OF CALIFORNIA ex rel.

STATE WATER RESOURCES CONTROL BOARD AND

STATE OF WASHINGTON, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the Environ-

mental Protection Agency and its Administrator,

petitions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Ninth Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App. A, in-

fra, pp. la-29a) is reported at 511 F.2d 963.*

Under the Federal Water Pollution Control Act original

jurisdiction is in the court of appeals. 33 U.S.C. (Supp. II)

1369 (b) (1) (D).

2

JURISDICTION

The judgment of the court of appeals (App. C, in-

fra, pp. 35a-36a) was entered on February 13, 1975.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether the Federal Water Pollution Control Act,

as amended in 1972, requires federal facilities that

discharge water pollutants to obtain state water pol-

lution control permits to continue operating; or wheth-

er it is sufficient for the federal facilities to comply

with state substantive water pollution control require-

ments.

STATUTES AND REGULATION INVOLVED

Section 313 of the Federal Water Pollution Control

Act, as added, 86 Stat. 875, 33 U.S.C. (Supp. IT)

1323, provides as follows:

Each department, agency, or instrumentality

of the executive, legislative, and judicial branch-

es of the Federal Government (1) having juris-

diction over any property or facility, or (2) en-

gaged in any activity resulting, or which may

result, in the discharge or runoff of pollutants

/ shall comply with Federal, State, interstate, and

‘ local requirements respecting control and abate-

ment of pollution to the same extent that any

person is subject to such requirements, including

the payment of reasonable service charges. The

President may exempt any effluent source of any

department, agency, or instrumentality in the

executive branch from compliance with any such

3

a requirement if he determines it to be in the

saline interest of the United States to do so;

except that no exemption may be granted from

the requirements of section 306 or 307 of this

Act. No such exemptions shall be granted due

to lack of appropriation unless the President

shall have specifically requested such appropria-

tion as a part of the budgetary process and the

Congress shall have failed to make available

such requested appropriation. Any exemption

shall be for a period not in excess of one year,

but additional exemptions may be granted for

periods of not to exceed one year upon the Presi-

dent’s making a new determination. The Presi-

dent shall report each January to the Congress

all exemptions from the requirements of this sec-

tion granted during the preceding calendar year,

together with his reason for granting such ex-

emption.

Sections 505, 509(b), and 510 of the Federal Wa-

ter Pollution Control Act, as added, 86 Stat. 888, 892,

and 898, 33 U.S.C. (Supp. II) 1365, 1369(b), and

1370, in pertinent part, are reprinted in Appendix

B, infra, pp. 30a-34a.

Section 125.2(b) of Title 40, C.F.R., provides as

follows:

The regulations in this part do not prescribe

policy or procedures for the issuance of per-

mits by States under programs approved by

the Administrator pursuant to section 402(b) of

the Act. Such State programs do not cover

agencies and instrumentalities of the Federal

Government and Indian activities on Indian lands

under the jurisdiction of the United States.

4

STATEMENT

hen the States of California and Washington sub-

mitted their water pollution abatement programs to

' the Environmental Protection Agency (EPA), the

| EPA Administrator approved the States’ programs,

_ thus shifting authority to issue a permit from the

_ EPA ‘to the States, except as to federal facilities,

_ which are excepted from state permit programs by

= (b). The States thereafter filed peti-

ns for review in the court of appeals, challenging

the Administrator’s action insofar as it withheld

from the States the authority to require permits for

federal facilities. California and Washington _con-

tended that Section 313 of the Federal Water Pollu-

tion Control Act (“the Act”), 33 U.S.C. (Supp. IT)

1323, subjected federal facilities to the administra-

tive procedures of state permit programs.

The court of appeals held that “the 1972 amend-

ments to the Federal Water Pollution Control Act

clearly mandate a federal agency duty of full com-

pliance with all aspects of state permit programs”

(App. A, infra, p. 28a). Therefore, the court declared

invalid 40 C.F.R. 125.2(b), insofar as that provision

exempted federal facilities from State permit pro-

cedures, and directed the Administrator to recon-

sider the disapproved portions of the permit pro-

grams submitted by California and Washington and

to act expeditiously in a manner consistent with its

opinion (App. A, infra, p. 29a). In so holding, the

court noted that the language of Section 313, which is

5

central to these cases, is virtually identical to the

language Of Section 118 of the Clean Air Act, as \

amended, 42 U.S.C. 1857f (App. A, infra, pp. 23a-

24a), and explicitly recognized thet the Fifth and

Sixth Circuits had arrived at conflicting interpreta-

tions of Section 118 of the Clean Air Act (App. A,

infra, p. 24a).*

REASONS FOR GRANTING THE WRIT

The decision below, holding that federal facilities

are subject to state water pollution permit require- —_

ments, is contrary to the decision of the Sixth, Cir-

cuit in Kentucky v. Ruckelshaus, 497 F. 2d 1172

(certiorari granted sub nom. Kentucky v. Train,

March 17, 1975, No. 74-220), which concerned the

same issue in the context of air pollution, As the

court of appeals here noted, the language of the fed-

eral facilities provision in the Federal Water Pollu-

tion Control Act, 33 U.S.C. (Supp. II) 1323, is nearly

the same as that in the Clean Air Act, 42 U.S.C.

1857f. Moreover, the statutory scheme is basically

the same in both Acts. In each, the state is to submit —~

to the EPA a plan for the abatement of pollution, If

the EPA approves the state plan, the authority for

administration and enforcement is, in general, dele-

gated to the state. Hence, the language of the two

, 502 F.2d 1238 (C.A. 5), petition for

PB pot eng 74-851 (holding that federal ——.

are subject to state permit procedures) ; Kentucky v. a el-

shaus, 497 F.2d 1172 (C.A. 6), certiorari granted su on

Kentucky v. Train, March 17, 1975, No. 74-220 (holding :

federal facilities are not subject to state permit procedures).

6

federal facilities provisions, which is substantial]

identical, should be interpre 4

ent with each other. ne

At various levels of litigation there are now a

substantial number of cases involving federal facili-

ties and Section 313 of the Federal Water Pollution

Control Act or Section 118 of the Clean Air Act.’

These cases present important questions concerning

federal-state relationships with respect to environ-

mental matters.

The issue in regard to the Water A regard

to the Clean Air Act, is not whether a should

sa abated. The federal government agrees that as to

/on-exempt facilities it must meet all substantive

' Water pollution standards set by the state. Rather

the question is the degree of state control authorized

by Congress over federal facilities, particularly mili-

tary installations. The applicability of state water

*In addition to this case and the Seeber and Kentuc

cases there are /llinois v. Department of Defense, aa a

Civ. No. 74-C-3122 (Joliet Army Ammunition Plant, air pol

lution) ; Illinois v. Department of Defense, N.D. Ill., Civ. N

74-C-1147 (Fort Sheridan, water pollution) ; Illinois v. Rosing,

N.D. Ill., Civ. No. 74-C-1618 (Joliet Army Ammunitica Plan

water pollution) ; Fowinkle v. United States, E.D. Tenn oe

No. 6837 (Volunteer Army Ammunition Plant, air pollution) :

United States v. Pennsylvania Environmental Heari Board,

M.D. Pa., Civ. No. 73-454 (Scranton Army bneaaen Plan

water pollution); California v. Stastny, 382 F. Su —

(C.D. Cal.), appeal pending, C.A. 9, No. 12-2905 (Longbeach

Naval base, air pollution); County of Milwaukee v Veterans

Administration Center, 357 F. Supp. 192 (E.D. Wisc.), mo-

tion for reconsideration pending (Veterans Admin j

building, air pollution). i ae

7

pollution permit programs to federal facilities could

result in the transfer to state governments of signifi-

eant control over federal facilities. We submit that,

as in the Clean Air Act cases, there is an insufficient

basis in the Federal Water Pollution Control Act

for imputing to Congress an intent to bring about

so far-reaching a change in the distribution of gov-

ernmental power within the federal system.

The Fifth and Sixth Circuits have given conflicting

constructions to Section 118 of the Clean Air Act

(see note 2, supra). This Court has granted the

petition for a writ of certiorari in the Sixth Circuit

case (Kentucky v. Train), and a petition for certio-

rari is pending in the Fifth Circuit case (Seeber v.

Alabama). Therefore, in order to assure a consistent

treatment of like statutory provisions, the instant

ease should be considered by this Court when it con-

siders the Clean Air Act case.‘ If, as we contend in

‘The court of appeals sought to avoid the conflict between

the Fifth and Sixth Circuits over Section 118 of the Clean

Air Act by suggesting a distinction between the Water Act and

the Clean Air Act based in part on Sections 505(f) (6) and

510 of the Water Act, which concern state enforcement

powers (App. A, infra, pp. 21a-23a). The court’s focus upon

those provisions suggests an absence of corresponding sec-

tions of the Clean Air Act. But the Clean Air Act has similar

provisions. Sce Section 304 (f) of the Clean Air Act, 42 U.S.C.

1857h-2(f), corresponding to Section 505(f) (6), 33 U.S.C.

(Supp. II) 1365(f) (6), of the Water Act; and Section 116

of the Clean Air Act, 42 U.S.C. 1857d-1, corresponding to

Section 510, 33 U.S.C. (Supp. Il) 1370, of the Water Act.

That Section 313 of the Water Act requires federal facili-

ties to pay “reasonable service charges,” while the Clean Air

Act contains no such provision, is not a basis for distinguish-

these cases, federal facilities are not subject to state

permit programs regarding air pollution there is no

apparent reason why they nevertheless should be sub-

ject to such state programs regarding water pollu-

tion.

Within the states included in the Ninth Circuit

there are more than 1,800 major and medium federal

installations that may be affected by the decision be-

low.’ Thus, in the Ninth Circuit itself this case has

important consequences and since the same issue is

pending consideration in the context of the Clean Air

Act, a definitive resolution by this Court of the

question presented here is warranted.

ing the two statutes (App. A, infra, pp. 15a-17a). States have

sewerage systems for handling water pollutants but no com-

parable services are provided for air pollutants and Congress

decided only that federal facilities should pay reasonable

charges to the states for use of their sewerage systems.

* More than 1,000 are located within the States of Washing-

ton and California. “Major” facilities have one million-plus

square feet of floor area and “medium” facilities have 1,500

to one million square feet, without regard to acreage. (Figures

supplied by the Environmental Protection Agency based on

G.S.A. real property inventory of June 30, 1970.)

9

CONCLUSION

For the foregoing reasons the petition for a writ

of certiorari should be granted.

Respectfully submitted.

RoBerRT H. BORK,

Solicitor General.

WALLACE H. JOHNSON,

Assistant Attorney General.

EDMUND B. CLARK,

RAYMOND W. MUSHAL,

Attorneys.

ROBERT V. ZENER,

General Counsel,

Environmental Protection Agency.

May 1975.

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 73-2466

PEOPLE OF THE STATE OF CALIFORNIA ex rel.

STATE WATER RESOURCES CONTROL BOARD,

PETITIONER

v8.

THE ENVIRONMENTAL PROTECTION AGENCY, and Rus-

SELL E. TRAIN, as Administrator of the Environ-

mental Protection Agency, RESPONDENTS

Nos. 73-2486

74-1189

STATE OF WASHINGTON AND ITS DEPARTMENT OF

ECOLOGY, PETITIONER

v8.

THE ENVIRONMENTAL PROTECTION AGENCY, and RUs-

SELL E. TRAIN, as Administrator of the Environ-

mental Protection Agency, United States of Amer-

ica, RESPONDENTS

OPINION

[February 13, 1975]

On Petition to Review a Decision of the Administrator

of the Environmental Protection Agency

2a

Before: WRIGHT and CHOY, Circuit Judges, and

BURNS, District Judge.*

WRIGHT, Circuit Judge:

Are federal agencies and enclaves within Califor-

nia and Washington required to comply with state

procedural requirements with respect to control of

water pollution? We hold that they are and we di-

rect the respondent administrator to proceed accord-

ingly and to reconsider the application of the state

agencies of Washington and California.

Section 313 of the 1972 Amendments to the Fed-

eral Water Pollution Control Act [hereinafter “the

Act,” 33 U.S.C. §§ 1251-1376 (Supp. II, 1972)] di-

rects that federal agencies “shall comply with ..

State . . . requirements respecting control and abate-

ment of pollution.” But the issue before us is wheth-

er federal agencies should submit to the procedural

requirements for securing discharge permits which

State regulatory bodies may impose on local dis-

charges under section 402 of the statute, which is also

sometimes referred to as the Clean Water Act.

. Section 402 of the Act [33 U.S.C. § 1342] estab-

lished the National Pollutant Discharge Elimination

System [hereinafter NPDES]. Thereunder, the Ad-

ministrator of the Environmental Protection Agency

[hereinafter “the Administrator’] is delegated the

initial responsibility for issuing permits for dis-

* Of the District of Oregon.

8a

charges of pollutants into the navigable waters’ of

the United States.

The Act contemplates, however, that the states will

assume primary responsibility for operation of the

1 Congress has used the phrase “navigable waters of the

United States” in several different senses, ranging from the

narrowest and most literal interpretation of that phrase

(“navigable in fact”) to the most expansive one permitted

by the constitutional grant, U.S. Const. Art. I, sec. 8, cl. 3.

Compare, e.g., The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870)

with Kalur v. Resor, 335 F. Supp. 1, 11 (1971). Cf. also

Gibbons v. Odgen, 22 U.S. (9 Wheat.) 1 (1824). Section

502(7) of the Act [33 U.S.C. § 1362(7)] speaks of the term

“navigable waters” as encompassing “the waters of the United

States, including the territorial seas.” S. Conf. Rep. No. 92-

1236, 1972 U.S. Code Cong. & Admin. News 3821. Thus Con-

gress clearly meant to extend the Act’s jurisdiction to the

constitutional limit, to include all tributaries of rivers which,

“when combined with other waters or systems of transporta-

tion, . . . the commerce on such waters would have a sub-

stantial economic effect on interstate commerce.” Report of the

Conference Committee on S. 2770, reported in A Legislative

History of the Water Pollution Control Act Amendments of

1972, 166, 178 (Comm. on Publ. Works Print, 1973) [here-

inafter cited as Legislative History].

The Act thus contemplates regulation of any activity with-

in the class of streams noted above or the class of pollution

discharges into such streams, without regard to whether

either the particular discharge or the individual receiving

waters discernibly affect interstate commerce. See United

States v. Ashland Oil & Transportation Co., 364 F. Supp. 349

(W.D. Ky. 1973); United States V. Holland, 6 E.R.C. 1388

(M.D. Fla. 1974). The legislative history expressly discloses

an intention to avoid the limitations on implementation of the

1965 Act which had been occasioned by a narrow interpreta-

tion of the phrase “navigable waters” as used in that Act.

S. Rep. No. 92-414, 1972 U.S. Code Cong. & Admin. News

$742.

4a

NPDES permit system. Section 402(b) of the Act

[33 U.S.C. § 1342(b)] provides for approval by the

Administrator of state-submitted permit programs

which are adequate to ensure compliance with the

federal standards set out in the Act. After approv-

ing a state program, the Administrator is required

to suspend his issuance of discharge permits “as to

those navigable waters subject to [that state’s] pro-

gram.” Section 402(c)(1) of the Act [33 U.S.C.

§ 1342(c) (1)].

Petitioners (California and Washington) chal-

lenged the Administrator’s limited approval of their

proposed permit programs in original actions autho-

rized by Section 509(b) (1) (D) of the Act [83 U.S.C.

§ 1369(b)(1)(D)]. Both states claim error because

the Administrator’s approval exempted federal agen-

cies and instrumentalities from compliance with their

proposed permit programs. We ordered the cases con-

solidated for purposes of the government’s briefing

and oral argument.

We have determined that the interpretation ad-

vanced by petitioners, that the Act provides for state

regulation of federal as well as state dischargers, is

correct. Hence we declare invalid those portions of 40

C.F.R. 125.2(b) that exclude federal facilities dis-

charging pollutants into navigable waters from com-

pliance with any state permit program operating

under NPDES. We direct the Environmental Protec-

tion Agency and its Administrator to include hence-

forth in any otherwise approvable permit program

submitted to it by the governors of the States of

5a

Washington or California, the authority to issue

permits for all discharges by federal facilities within

their respective jurisdictions.

A. THE STATUTE.

Modern federal legislation in the area of water

pollution control began in 1948 with the enactment

of the initial version of the Federal Water Pollution

Control Act, ch. 758, 62 Stat. 1155. The Act was

amended in 1956, 1965, 1966, and 1970 as well as

1972, each set of amendments seeking to establish “

more comprehensive and effective national system fot

encouraging and aoe of waste

i into the nation’s waters.

arr 9 same time, all successive versions of the

Federal Water Pollution Control Act have reflected

a consistent federal policy that the primary gars

bility and right to control water pollution lies pee

the states. See generall~ S. Rep. No. 92-414, =

U.S. Code Cong. & Admin. News 3668, 3669-70. :

a corollary, the federal role has primarily been are

as one of supporting and assisting state efforts in this

id.

— 21(a) of the 1970 amendments to the Act

(collectively dubbed the Water Quality oe

Act of 1970, Pub. L. 91-224, 84 Stat. 91) app =

this policy of primary state responsibility for wa :

pollution control to federal agency dischargers. .

required federal agencies having jurisdiction over

properties, or engaged in public work oe to

comply with “applicable water quality standards” as

6a

well as with the more gen

poses behind the ieiihiien. heer genome

In reporting favorably what becam

version of the 1970 amendments, the fing acon

tee on Public Works noted that Section 21(a) would

require federal agencies to take “immediate and ap-

propriate steps to insure compliance with applicable

Federal, State and local water quality standards

subject to the availability of appropriations and the

needs of the United States.” H.R. Rep. No. 91-127

es U.S. Code Cong. & Admin. News 2691, 2736.

The final bill which emerged from conference ‘re-

moved any discretion based on availability of ap-

propriations, and thus required compliance by federal

agencies subject only to “the paramount interest of

the United States as determined by the President.”

Id. at 2740. The interpretation of Section 21 (a)

suggested by this legislative history (that federal

agencies must comply with local pollution abatement

standards and guidelines “unless and until the Presi-

dent may determine otherwise”) was judically ap-

proved in California v. Davidson, 3 E.R.C. 1157, 1158

(N.D. Cal. 1971) (refusing to dismiss an action b

the State of California against the Army’s rnd

manding general at Fort Ord, seeking injunctive re-

lief and damages for the installation’s violation of

the state’s waste discharge limitations).

Section 21(a) was replaced in 1972 by Section

313 of the 1972 Amendments, 33 U.S.C. § 1323,

Ta

which set out the compliance requirement for federal

agencies in the following language:

Each department, agency, or instrumentality of

the executive, legislative, and judicial branches

of the Federal Government (1) having jurisdic-

tion over any property or facility, or (2) en-

gaged in any activity resulting, or which may

result, in the discharge or runoff of pollutants

shall comply with Federal, State, interstate, and

and local requirements respecting control and

abatement of pollution to the same extent that

any person is subject to such requirements, in-

cluding the payment of reasonable service

charges. The President may exempt any effiuent

source of any department, agency, or instru-

mentality in the executive branch from com-

pliance with any such a requirement if he de-

termines it to be in the paramount interest of

the United States to do so; except that no

exemption may be granted from the require-

ments of section 1316 or 1317 of this title. No

such exemptions shall be granted due to lack of

appropriation unless the President shall have

specifically requested such appropriation as a

part of the budgetary process and the Congress

shall have failed to make available such re-

quested appropriation.

The legislative history behind Section 313 shows

that Congress considered that section “similar to one

in existing law.” S. Rep. No. 92-414, 1972 U.S.

Code Cong. & Admin. News 3733. Several supple-

mentary affidavits submitted by petitioner State of

California indicate that some federal installations

8a

may in fact be refusing in certain instances to com-

ply with water quality standards established by state

administrative boards.’ However, respondents are

willing to concede, at least in principle, that Section

313 does command deference to the substantive ef-

fluent limitations and standards promulgated by

States pursuant to the Act.

In determining whether Section 313 commands a

like federal deference to procedures for obtaining

state NPDES permits, California v. Davidson, supra,

may again be of some guidance. In that case Dis-

trict Judge Weigel held that California’s assertion

that the Army had refused to bring one of its fa-

cilities into compliance with “requirements” promul-

* An affidavit of Bill Dendy, Executive Officer of the Cali-

fornia State Water Resources Control Board, is attached to

the reply brief of petitioner California. It details two recent

occasions where the Administrator has issued permits for the

discharge of pollutants by federal agencies (Norton Air Force

Base and the U.S. Bureau of Reclamation) without including

conditions in the permit as requested by the interested state

regulator agencies. Instead, the Administrator is continuing

to screen such state-requested permit conditions, and apply

his own notions of “best practicable” and “best available”

technology and of what constitutes compliance “to the fullest

extent possible” in issuing permits to federal agencies, rather

than the standards suggested by the state. Cf. Sections 301 (b)

(1) and (b) (2) of the Act, 33 U.S.C. §§ 1811 (b) (1) & (b)

(2). See also note 12, infra; S. Rep. No. 92-414, supra note 1

at 3733:

“Evidence received in hearings disclosed many inci-

dents of flagrant violations of air and water pollution

requirements by Federal facilities and activities. Lack of

Federal leadership has been detrimental to the water

pollution control effort.”

gated by a California regional water quality control

board stated a good cause of action for injunctive

relief under Section 21(a) of the 1970 amendments

to the Act [the former 33 U.S.C. § 1171(a) (1970) I.

Since the regional boards determine “substantive’

requirements applicable to specific waste discharges

via administrative hearings which are ordinarily par-

ticipated in by the discharger,’ the inference might

be drawn that Section 21(a) required compliance

with state administrative procedures as well.

Any such inference that federal agencies must

comply with “procedural” as well as substantive state

discharge permit requirements could only be strength-

ened by the language of the section of the 1972

amendments which replaced Section 21(a), considered

in Davidson. Section 21(a) had required only that

federal agencies comply with “applicable water quality

standards,” without specifying whether compliance

was limited to the substantive content of the “‘stand-

° orter-Cologne Act, Cal. Water Code §§ 13020 et seq.,

onal - the California legislature in 1969, authorizes —

fornia’s regional water quality control boards to issue = :

ards, or “requirements,” applicable to waste discharges whic |

might affect the state’s waters. /d. § 13263. The regiona

boards conduct administrative proceedings, which are =

ticipated in by the applicant, and issue “requirements” appli-

“ae @ ans teste end the State Water Resources

Control Board, which must issue water appropriation 4

mits, are required to comply with the provisions of the Cali-

fornia Environmental Quality Act, Cal. Publ. Resources Code

§§ 21000 et seq. The State Board is also statutorily required

to consider “the public interest.” Cal. Water Code §§ 1253,

1255, 1257.

10a

ards” referred to, and without specifying whether

those standards included state standards. Section

313 changed the word “standards” to “requirements,”

and expressly made reference to “State” and “local”

requirements.

B. CONDITIONS REQUIRED FOR A STATU-

TORY WAIVER OF EXCLUSIVE FEDERAL

LEGISLATIVE JURISDICTION.

Standing by itself, however, this reasoning would

be insufficient to allow us to conclude that the Act

requires federal agencies to comply with procedures

for obtaining permits under state programs satisfy-

ing the criteria of Section 402(b). Our ability to

reach such a determination is limited by the plenary

powers clause (U.S. Const. Art. I, sec. 8, el. 17),

which gives Congress exclusive legislative authority

over federal enclaves. It is further limited by the

supremacy clause (U.S. Const. Art. VI, cl. 2), ac-

cording to which federal law cannot be subordinated

to state regulation within the areas of Congress’ ex-

clusive legislative powers.

It is, of course, well established that Congress may

waive exclusive legislative jurisdiction over the ac-

tivities of federal enclaves in deference to state reg-

ulation of those activities, at least so long as in doing

so it does not undermine its ultimate legislative con-

trol over these areas. Paul v. United States, 371

U.S. 245, 263 (1963); United States v. Sharpnack,

355 U.S. 286 (1958) ; See also Mayo v. United States,

lla

319 U.S. 441 (1943); Maun v. United States, 347

F.2d 970 (9th Cir. 1965).

But waivers of exclusive federal jurisdiction, like

waivers of sovereign immunity, are to be strictly

construed. Cf. Larson v. Domestic & Foreign Com-

merce Corp., 337 U.S. 682 (1949). In order for us

to hold in favor of petitioners, therefore, we must

find that the claimed waiver of exclusive federal

jurisdiction is clear and unambiguous, and also that

it is not unduly broad or irrevocable.

C. THE SCOPE OF THE CLAIMED WAIVER

Respondents point to the language of the plenary

powers clause itself in arguing that Congress can-

not delegate to states the authority to regulate fed-

eral facilities. On this point, however, we find per-

suasive the language in a recent case, Illinois v.

Department of Defense, Civil No. 73 C 2081 (N.D.

Ill., July 18, 1974) (unpublished memorandum filed

with court by respondents) :

The Plenary Powers Clause grants Congress

the power “[t]o exercise exclusive Legislation

_. . over all Places purchased by the Consent

of the Legislature of the State in which the

same shall be, for the Erection of Forts, Maga-

zines, Arsenals, dockyards and other needful

Buildings.” The defendants argue that the term

“exclusive” means literally that the State can-

not be permitted to exercise any power in regard

to these enclaves. In support thereof they cite

three dictionary definitions of the meaning of

12a

the word, “exclusive,” which is inappropriate.

This reliance is ill founded, for while literal

meanings may be helpful, they hardly measure

the breadth or historical significance of the

clauses of the Constitution.

Id., at 5.

A delegation to the states of permit-issuing au-

thority over federal agencies would, to be sure, in-

volve the states to a far greater extent in the regula-

tory process than would an incorporation of their

evolving substantive standards into federal law (the

type of legislation upheld in United States v. Sharp-

nack, supra). However, Paul, supra, at 263 clearly

indicates that states may engage in actual regula-

tory activities if allowed by specific Congressional

action. This would seem a natural extension of the

power of Congress to delegate substantive lawmak-

ing authority as in Sharpnack. As the Supreme

Court noted in Carlson v. Landon, 342 U.S. 524, 542

(1952), “Congress can only legislate so far as is

reasonable and practicable, and must leave to execu-

tive officers the authority to accomplish its purpose.”

The Congressional purpose behind the Water Pol-

lution Control Act is clear: “to restore and main-

tain the chemical, physical, and biological integrity

of the Nation’s waters.” [33 U.S.C. §1251(a).]

The strong state interest in controlling pollution has

been recognized by the Supreme Court, see Illinois

v. City of Milwaukee, 406 U.S. 91, 104, 107 (1972),

as well as in the Act itself, see Section 101(b) of the

Act [33 U.S.C. § 1251(b)].

13a

Thus any delegation of permit-issuing responsi-

bilities under the Act would merely involve “the

selection of an alternative means for achieving the

purposes of the Act.” Illinois v. Department of De-

fense, supra, at 7. Since Congress has the power to

subject federal agencies to substantive state stand-

ards, see United States v. Sharpnack, supra, we can

see no reason why Congress cannot utilize -state

regulatory bodies to certify whether the affected

agencies are in compliance with those standards.*

Several limitations embodied in the Act itself dem-

onstrate Congress’ efforts to ensure that the Act’s

grant of permit-issuing authority to the states, under

Section 402(b), could in no way undermine the

federal government’s ultimate power over its own

instrumentalities and over interstate commerce by

the constitutional grant of authority over these areas

to Congress. First, the Act in no way seeks to limit

Congress’ ability to reassert exclusive control over the

affected federal areas. Nor does it seem that in

practice Congress would be politically compelled to

retain the Act in its present form, if states attempted

significant incursions into the federal prerogative.

Secondly, Section 402(b) allows the Administrator

to withhold or withdraw approval of state programs

which do not meet clearly defined guidelines set out

in Section 402(a) of the Act.’ Finally, as noted

*Cf. Alabama v. Seeber, 502 F.2d 1238, 1248 (5th Cir.

1974).

’ However, the Administrator’s role following approval of

a state permit program is a very limited one. Sections 402

l4a

previously, Section 313 allows the President to ex-

empt any effluent source from the provisions of the

Act, where for any reason (other than a lack of

appropriated funds) he deems it in the paramount

national interest that a source not be covered. Sec-

tion 313 of the Act [33 U.S.C. § 1323].

D. THE CLARITY OF THE WAIVER.

Having determined that Congress had the power

to compel agencies within its “exclusive” legislative

jurisdiction to seek state discharge permits, we now

consider whether it acted in a sufficiently unequivocal

manner for us to conclude that it clearly intended

to do so. See, e.g., United States v. King, 395 U.S.

1, 4 (1969). We find the language of waiver suffi-

ciently clear and free from ambiguity.

Both sides point to the Act’s legislative history as

supportive of their respective positions. However,

it is admitted that that part of the record pertaining

to Section 313 is silent as to the meaning of that

section’s “shall comply with . . . State . . . require-

ments” admonition.

Nor do we find any other legislative history sur-

rounding the Act which conclusively establishes

whether Congress did or did not intend to distinguish

between substantive and procedural requirements in

(d) (2) (A) and (B) of the Act [33 U.S.C. §§ 1842 (d) (2) (A)

and (B)] allow the Administrator to prevent issuance of a

state permit only if the proposed discharge would adversely

affect a downstream state, or if the permit is inconsistent with

the Administrator’s guidelines under § 402(a).

lda

defining the federal agency compliance duty with

state permit programs. “Confronted with this am-

biguity, we rely on the words of [Section 313], the

scheme of the Act as a whole, and what we discern

to be the Congressional purpose, as the best guides

to interpreting the section.” Alabama v. Seeber,

502 F.2d 1238, 1247 (5th Cir. 1974) (discussed

infra).

If taken in isolation, certain parts of the legisla-

tive history would seem to indicate that the “require-

ments” language of Section 313 refers simply and

solely to substantive water quality standards. For

example, the committee report accompanying the

House version of the Act stated:

This section [Section 313] requires that Fed-

eral facilities meet the same effluent limitations,

other limitations, performance standards, toxic

effluent standards and thermal discharge regula-

tions as private sources of pollution, unless the

Federal facility is specifically exempted by the

President.*

However, the last clause in the sentence containing

the disputed “requirements” language would seem to

indicate that the above legislative history of Section

313 should be viewed as a mere summary of the Act’s

major provisions, and not taken as dispositive of

*H. Rep. No. 92-911, Legislative History at 805. Similar

language was found in the Senate committee reports accom-

panying S. 2770, eventually passed in lieu of the House bill.

See S. Rep. No. 92-414, supra note 1, at 3733-34; S. Conf.

Rep. No. 92-1236, supra note 1, at 3812-13.

16a

Congressional intent.’ That clause requires federal

agencies to comply with state requirements respect-

ing pollution control and abatement just as any other

discharger, “including the payment of reasonable

service charges.”

Respondents contend that these “reasonable serv-

ice charges” refer to those for state and local sew-

age treatment hookups. We disagree. Although the

legislative history of Section 313 is silent regarding

the meaning of the “‘reasonable service charges” lan-

guage, it seems the better interpretation is to read

it as referring to charges incident to state permit

programs. Even if we were to read the word “re-

quirements” in Section 313 to mean “effluent stand-

ards and limitations,” as respondents contend we

should, interpreting the “reasonable service charge”

language to refer to municipal waste disposal charges

would create a non sequitur.

Moreover, interpreting “reasonable service charges”

to refer to charges associated with state permit pro-

grams would be in accord with the canon of statutory

construction that, where language in a statute can

be given two possible interpretations, that interpre-

tation should be chosen which does not render the

language meaningless.’ Although a state’s taxing

power cannot operate within the confines of a federal

enclave without the consent of the United States,

* Accord, Comment, Local Control of Pollution from Fed-

eral Facilities, 11 San Diego L. Rev. 972, 991 (1974).

8See J. Sutherland, Stats. and Statutory Construction

§ 46.06 (4th ed. C. Stands 1972).

17a

Mississippi River Fuel Corp. v. Mouton, 390 F.2d

34, 35 (5th Cir. 1968), no serious contention has

ever been made that subordinate governmental bodies

must supply public utility services to federal agencies

free of normal user charges. Hence, there would be

no need for Congress to explicitly direct federal

agencies to pay their full share of municipal sewer

system costs. On the other hand, any permit pro-

gram charges might be sufficiently in the nature of

a tax that specific federal consent would be required

before they could be certified as “properly payable”

federal obligations.

Reading “reasonable service charges” to mean

charges for administering state permit programs

finds some support in past state administrative prac-

tices as well. Among the federal applicants for waste

discharge “requirements” from California’s regional

water quality control boards,’ several have paid the

filing fees required by state law.” (The State of

Washington assesses no fee for processing discharge

permit applications under the Act.) Congress may

have been aware of this sporadic record of com-

pliance, and have sought to ensure that in the future

federal agencies would uniformly contribute their

full share to the cost of processing their applications

under state permit programs.

Section 313 also requires federal agencies to comply

with state pollution control requirements “to the

® See note 3, supra.

© See affidavit of Bill Dendy, cited in note 2, supra.

18a

same extent that any person is subject to such re-

quirements.” Hence, the extent of the federal agency

compliance duty can only be gauged from the type

of program that section 402 of the Act demands that

states institute for private dischargers.

Sections 402(a)(1) and 402(a)(2) of the Act [33

U.S.C. §§ 1842(a)(1) and (2)] sketch the type of

state permit scheme contemplated by Congress. They

provide for the imposition of “conditions” on per-

mits. Such conditions can realistically be expected

to be developed only in the type of administrative

proceeding in which the permit requirements can be

tailored to the specific discharger.“ Since this type

of administrative proceeding requires cooperation by

the discharger in order to be effective, an interpre-

tation of Section 313, which did not compel federal

agencies to comply with the procedural requirements

of state permit programs would also jeopardize their

conceded duty to comply with the substance of state

water pollution control efforts.”

“In programs modeled after the California NPDES pro-

gram, the first to be approved by the Administrator follow-

ing the Act’s passage, the process is initiated by the discharger

submitting a report of an actual or contemplated discharge

to an administrative board. Thereafter the board conducts

a hearing concerning the discharge, and develops limitations,

requirements, and conditions with which the discharger must

comply as a condition of obtaining and retaining the permit.

It is thus by the administrative process that discharges are

brought to the state’s attention, and applicable quantitative

and qualitative standards developed.

12 We disagree with the assumption in Kentucky v. Ruckel-

saus, 497 F.2d 1172, 1177 (6th Cir. 1974), that a permit has

19a

In other words, without federal agency participa-

tion in the regular state administrative process, it

would be difficult to determine what substantive

standards were properly applicable. Consequently,

unless they are forced to seek discharge permits like

any other dischargers, federal agencies will not be

complying with state requirements—substantive or

procedural—“to the same extent as any person sub-

ject to such requirements,” thus undermining the

purpose of Section 313.

We have already noted, however, the Administra-

tor’s apparent concession that federal agencies are

bound by “substantive” state requirements. It is

therefore possible that his position is not that fed-

eral agencies may bypass state administrative pro-

cesses, but only that after all effluent standards and

limitations have been determined for a federal dis-

charger, it is up to the Administrator and not the

states to issue the permit incorporating these stand-

ards.”

nothing to do with air (or water) quality. See Comment, supra

note 7, at 986.

18 This position would appear to be consistent with Execu-

tive Order No. 11752, 3 C.F.R. 380 (1974).

Respondents’ reliance on it is misplaced. In the first place,

even if we accept respondents’ contention that this executive

order constitutes an administrative interpretation of Section

3138, but see contra Alabama V. Seeber, 502 F.2d at 1249, the

normal rule attaching significance to the manner in which a

statute is interpreted by the agency charged with its enforce-

ment is inapplicable here. That rule is based on the assump-

tion that Congress’ long-standing failure to overturn the

agency’s interpretation indicates congressional acquiescence

20a

This interpretation of Section 313’s command

should also be rejected. When we are faced with two

alternative readings of an act, we should be reluctant

to attribute to Congress a conscious choice in favor

of the less efficient one,’* at least when there is no

constitutional compulsion to do so. This is especially

in that interpretation. See Zemel v. Rusk, 381 U.S. 1, 11

(1965). In this case, the executive order was issued too re-

cently for Congress to have undertaken contrary amendatory

action.

Secondly, in finding support for its holding in Executive

Order 11752, the court in Kentucky v. Ruckelshaus pointed

out that the above-noted rule of statutory construction is of

particular importance where supported by the legislative

history of the act to which the order refers. 497 F.2d at

1176. Here, however, it is admitted that the legislative history

is silent as to the question presented regarding the correct

interpretation of Section 313.

Finally, the fact that Executive Order No. 11752 was issued

more than four months after petitioner California brought this

suit suggests that the order was issued in response to it. For

this reason also it is entitled to less weight.

Nor can Executive Order No. 11752 be considered an exer-

cise of the President’s authority under Clean Air Act §118

and §313 of the Water Pollution Control Act to exempt

facilities from certain requirements. “Exercise of that author-

ity contemplates a case by case determination that the exemp-

tion is in the paramount interest of the United States.”

Alabama v. Seeber, 502 F.2d at 1249.

1* Nowhere in the language of Section 402, establishing the

NPDES, is there any suggestion that the Administrator may

establish a dual permit system, administered in part by a

state and in part by himself. The legislative history of Section

313 also is devoid of any indication that Congress intended

to allow the Administrator to retain partial permit issuing

authority.

2la

the case, when we consider the admonition of Section

101(f) of the Act, 33 U.S.C. § 1251(f):

It is the national policy that to the maximum

extent possible the procedures utilized for im-

plementing this chapter shall encourage the dras-

tic minimization of paperwork and interagency

decision procedures, and the best use of available

manpower and funds, so as to prevent needless

duplication and unnecessary delays at all levels

of government.

As with Section 402, Section 510 of the Water

Pollution Control Act has no counterpart in the Clean

Air language construed in Kentucky v. Ruckelshaus,

497 F.2d 1172 (6th Cir. 1974), and California v.

Stastny, 4 E.R.C. 1447 (C.D. Cal. 1972), appeal

pending, 9th Circuit 0. 72-2905. Section 510 pro-

vides :

State authority

Except as expressly provided in this chapter,

nothing in this chapter shall (1) preclude or

deny the right of any State or political sub-

division thereof or interstate agency to adopt

or enforce (A) any standard or limitation re-

specting discharges of pollutants, or (B) any

requirement respecting control or abatement of

pollution; except that if an effluent limitation,

or other limitation, effluent standard, prohibition,

pretreatment standard, or standard of perform-

ance is in effect under this chapter, such State

or political subdivision or interstate agency may

not adopt or enforce any effluent limitation, or

other limitation, effluent standard, prohibition,

pretreatment standard, or standard of perform-

22a

ance which is less stringent than the effluent

limitation, or other limitation, effluent standard,

prohibition, pretreatment standard, or standard

of performance under this chapter; or (2) be

construed as impairing or in any manner affect-

ing any right or jurisdiction of the States with

respect to the waters (including boundary

waters) of such States.

The above language undercuts respondents’ theory

that “effluent limitations” and “requirements” were

meant to be considered interchangeable terms within

the framework of the Water Pollution Control Act.

It specifically distinguishes between a “standard” or

“limitation” respecting discharges of pollutants, in

subdivision (1)(A), and a “requirement respecting

control or abatement of pollution” in (1) (B).

Moreover, Section 510 implicitly grants to states

the right to develop more stringent standards than

the Administrator might apply to a federal agency

discharger. Thus, even if Section 313 were held to

require federal agencies to seek permits from the

Administrator rather than from the states, Section

510 would compel compliance with those state stand-

ards which were stricter than the Administrator’s.

But as noted above, Section 510 would in practice

be rendered ineffectual by such an interpretation for

state permit program compliance is essential both to

establishment of discharge standards and to detec-

tion of discharge violations.

Considered in the light of Sections 402 and 510,

other sections in the Act afford added support to

petitioners’ interpretation of the term “requirements”

28a

in Section 313, though the significance of each would

have been less certain apart from these two sections,

For example, several provisions of the Act use the

terms “effluent limitations” and “standards” in a

very precise sense.’ Other sections expressly exempt

federal agencies from their requirements.** And one

section, Section 1104 of the Act [83 U.S.C. § 1344],

sets up a separate permit program, run by the Sec-

retary of the Army rather than by the states, for

discharges of dredged or fill material into navigable

waters. Consequently, it would appear that the ref-

erence in Section 313 to federal agency compliance

with state “requirements,” was purposeful and ar-

tistic, and was meant to refer to those requirements

which state administrative agencies might adopt un-

der their express Section 402 authorizations.

This view is supported by Section 505(f) of the

Act [33 U.S.C. § 1865(f)], which also shows that the

Act’s drafters meant to draw a distinction between

the two terms. Section 505(f) explicitly distinguishes

between an “effluent standard o1 iiimtation’ and other

types of “limitation” or “standard,” on the one hand,

and a “requirement applicable by reason of Section

313” on the other.

It is true that other courts are in disagreement as

to what effect should be given language in the Clean

Air Act of 1970 [42 U.S.C. §$§ 1857-18577 (1970) ],

8 F.g., see Sections 301, 302, 303, 306, 307 and 315 of the

Act [33 U.S.C. §§ 1311, 1312, 1313, 1316, 1317, 1325).

* See Sections 306(c), 308(c), 401(a) (6) of the Act [33

U.S.C. §§ 1816(c), 1318(c), 13841(a) (6) ].

24a

portions of which are substantially identical to the

language of Section 313 and of several other sections

of the 1972 Water Pollution Control Act Amend-

ments. Compare Alabama v. Seeber, supra, with

Kentucky v. Ruckelshaus, 497 F.2d 1172 (6th Cir.

1974), and California v. Statny, supra. At issue in

those cases was whether Section 118 of the Clean

Air Act [42 U.S.C. §1857f], which lacks only the

“reasonable service charges” language of Section 313,

requires federal agencies to seek state permits for

air pollutant emissions.

In Seeber, the majority relied on Section 118 to

hold unjustified the refusal of TVA and Army officials

to apply for such permits. This was contrary to the

prior holdings in California v. Statsny and Kentucky

v. Ruckelshaus. In the Kentucky case, a unanimous

Sixth Circuit panel had refused to order various

TVA and other federal officials to seek state permits

before operating air polluting equipment. The Ken-

tucky court found “no congressional intent” to sub-

ject federal instrumentalities and agencies to state

adminitsartive regulations,” and concluded that:

In the absence of a clear congressional pur-

pose to subject federal agencies to state regula-

tion, the district court was prevented by the

Supremacy Clause from granting the injunctive

relief sought by the plaintiff.

Id. at 1176. In Stastny, the district court arrived at

the same conclusion in a short memorandum decision.

We do not feel compelled to anticipate this court’s

ruling on the appeal in Stastny by adopting either the

25a

Fifth or the Sixth Circuit’s position. We recognize

the strong structural and terminological similarities

between the Clean Air Act and the 1972 Water Pol-

lution Control Act Amendments. Moreover, it seems

likely that these similarities were intentional. Never-

theless, we feel that our conclusion—that Section 313

requires full federal agency compliance with state

water pollutant discharge permit programs—would

not be inconsistent with either an affirmance or a re-

versal of the district court’s decision in Stastny.

As we have noted, the Water Pollution Control] Act

Amendments do contain significant provisions indi-

cating a waiver of exclusive federal jurisdiction for

which no counterparts are to be found in the Clean

Air Act. The “reasonable service charges” clause of

Section 313, the permit program of Section 402, and

Section 510, containing the Act’s “State Authority”

provisions, are the most important examples of these.

Furthermore, although the language of Section 505

(f), discussed supra, closely parallels that of Sec-

tion 304(f) of the Clean Air Act," there is also here

critical additional language which seems too over-

come the EPA’s contention that Congress intended to

incorporate a substantive-procedural distinction into

the Section 313 compliance requirement. Section 505

(f) [33 U.S.C. § 1365(f)] provides:

“(f) For purposes of this section, the term ‘ef-

fluent standard or limitation under this chapter’

means (1) effective July 1, 1973 an unlawful

act under subsection (a) of section 1311 of this

1 42 U.S.C. § 1857h-2(f).

26a

title; (2) an effluent limitation or other limita-

tion under section 1311 or 1312 of this title; (3)

standard of performance under section 1316 of

this title; (4) prohibition, effluent standard or

pretreatment standards under section 1317 of this

title; (5) certification under section 1341 of this

title; or (6) a permit or condition thereof is-

sued under section 1342 of this title, which is in

effect under this chapter (including a require-

ment applicable by reason of section 1323 of this

title).”

The linking of the Section 402 permit scheme with

the Section 313 “requirements” language in Subsec-

tion 505(f)(6) clearly indicates that state permit

programs give rise to a separate category of require-

ments, non-compliance with which will subject federal

agencies (and others) to suit under Section 505(e),

just as “substantive” noncompliance will. Consequent-

ly, the inclusion of Subsection 505(f)(6) in Section

505, the Act’s primary enforcement section, dispels

any ambiguity as to Congress’ intention to require

full compliance with the procedural requirements of

state pollution contro] initiatives as well as with the

substance of their programs.

This dual compliance requirement seems natural,

when considered in light of Section 510, discussed

supra, which sets out the broad powers allowed states

under the Act to promulgate stricter regulations than

those required by the federal government. Further-

more, as we have noted, the practical effect of read-

ing Section 313 so as to compel only “substantive”

federal agency compliance would be to render state

27a

permit programs ineffectual as to those dischargers,

both substantively and procedurally.

Finally, we find no bar to this action under the

doctrine of sovereign immunity. Petitioner states pro-

ceeded in this action under Section 509(6) (1) (d).

Since that section explicitly provides for challenges

to the Administrator’s “determinations” regarding

state programs, there can be no doubt as to Con-

gress’ consent to suits of the type before us.

Respondents assert that petitioners’ remedy, if any,

lay under the “citizen suit” provisions of Section

505. We find this argument unpersuasive both as a

matter of statutory construction and as a question of

efficient judicial administration.

In the first place, we note that implicit in respond-

ents’ contention are the premises that petitioners are

only concerned that federal agencies do in fact meet

the substantive requirements of state permit pro-

grams, and that all the states are really seeking to

accomplish in this case can be attained by case-by-

case attacks on the occasional instances of substantive

noncompliance. As we have already noted, however,

the states have a significant interest in ensuring pro-

cedural as well as substantive compliance with their

permit programs.

Moreover, assuming without deciding the additional

premise of respondents that a state is technically a

“person” entitled to sue under Section 505, a state

might nevertheless prefer to seek an advance de-

termination of the scope of federal agency compli-

ance duties under Section 509. What is challenged

28a

here is not a failure to perform any single “act” or

“duty”, as much as the Administrator’s general mis-

interpretation of the scope of state regulatory ju-

risdiction under the Act. An action to spell out the

scope of state authority granted by the Act seems

to be the exact type of challenge that Congress must

have contemplated in enacting Section 509. An in-

terpretation that Congress intended thai such a chal-

lenge be deferred until the states had first attacked

individual violations of their programs would waste

judicial resources as well as conflict with the Act’s

intent to let the states take the lead in attacking

water pollution at the earliest possible ime.

E. CONCLUSION.

In conclusion, the 1972 amendments to the Federal

Water Pollution Control Act clearly mandate a fed-

eral agency duty of full compliance with all aspects

of state permit programs. We are aware that the

Act retains some phraseology which courts, in in-

terpreting the Clean Air Act, have found too incon-

clusive to support the clear waiver of federal legisla-

tive jurisdiction which is necessary to overcome the

presumption of exclusive federal jurisdiction under

the plenary powers clause. But the 1972 version of

the Water Pollution Control Act introduces several

important terminological and structural changes from

the Clean Air Act language. It also differs signifi-

cantly from the Clean Air Act in the comprehensive-

ness of the administrative scheme it ordains. These

distinctions help manifest the congressional purpose

that states be in the vanguard of the national attack

on water pollution,” as California v. Davidson, supra,

found to have been the recurrent theme of federal

water pollution control efforts. They also suggest a

clear congressional choice to rely on state regulatory

and enforcement agencies to carry out this effort.

Where a construction finding a waiver of exclusive

federal jurisdiction would support the stated congres-

sional purpose, then it seems to us that a purported

waiver should be “construed, if not liberally, at least

sensibly.” See H. Hart and H. Wechsler, The Federal

Courts and the Federal System 1351 (2d ed. 1973).

In this case, Congress left no question as to its in-

tent that states should take the lead in water pollu-

tion control efforts, and that states should view the

compliance schedules and standards in Section 402 (a)

as floors, not ceilings, for their own Section 402(b)

programs. Thus we act in accordance with the clear

intent of Congress as well as with the plain language

of the statute in holding that federal dischargers

within a state’s jurisdiction must comply fully with

state permit programs satisfying the Section 402

conditions for approval by the Administrator.

We direct the Administrator to reconsider the ap-

plications of the States of Washington and California

to the extent that he previously withheld approval

from such proposed programs, and to act expedi-

tiously on those previously disapproved portions of

the applications in a manner not inconsistent with

the views expressed in this opinion.

18 See Section 101(b) of the Act [83 U.S.C. § 1251(b)].

Cf. Alabama v. Seeber, 502 F.2d at 1244-45.

30a 8la

APPENDIX B (A) prior to sixty days after the

Section 505 of the Federal Water Pollution Con- Satan Of Gs Aaiee, a)

trol Act (“the Act”), as added, 86 Stat. 888, 33 to the State in which the alleged viola-

U.S.C. (Supp. II) 1365, provides in pertinent part:

tion occurs, and (iii) to any alleged

‘ ‘ P m violator of the standard, limitation, or

order, or

(B) if the Administrator or State

has commenced and is diligently prose-

cuting a civil or criminal action in a

court of the United States, or a State

to require compliance with the stand-

ard, limitation, or order, but in any

such action in a court of the United

States any citizen may intervene as a

matter of right.

(2) under subsection (a) (2) of this sec-

tion prior to sixty days after the plaintiff

has given notice of such action to the Ad-

ministrator,

except that such action may be brought immedi-

ately after such notification in the case of an ac-

tion under this section respecting a violation of

sections 306 and 307(a) of this Act. Notice

under this subsection shall be given in such man-

ner as the Administrator shall prescribe by

regulation.

(c)(1) Any action respecting a violation by a

discharge source of an effluent standard or limi-

tation or an order respecting such standard or

limitation may be brought under this section only

in the judicial district in which such source is

located.

(a) Except as provided in subsection (b) of

this section, any citizen may commence a civil

action on his own behalf—

(1) against any person (including (i)

the United States, and (ii) any other gov-

ernmental instrumentality or agency to the

extent permitted by the eleventh amendment

to the Constitution) who is alleged to be in

violation of (A) an effluent standard or limi-

tation under this Act or (B) an order issued

by the Administrator or a State with respect

to such a standard or limitation, or

(2) against the Administrator where

there is alleged a failure of the Administra-

tor to perform any act or duty under this

Act which is not discretionary with the Ad-

ministrator.

The district courts shall have jurisdiction, with-

out regard to the amount in controversy or the

citizenship of the parties, to enforce such an

effluent standard or limitation, or such an order,

or to order the Administrator to perform such

act or duty, as the case may be, and to apply

any appropriate civil penalties under section

309(d) of this Act.

(b) No action may be commenced—

(1) under subsection (a) (1) of this sec-

tion—

82a

(2) In such action under this section, the Ad-

ministrator, if not a party, may intervene as a

matter of right.

* « * * »

(f) For purposes of this section, the term

“effluent standard or limitation under this Act”

means (1) effective July 1, 1973, an unlawful

act under subsection (a) of section 301 of this

Act; (2) an effluent limitation or other limita-

tion under section 301 or 302 of this Act; (3)

standard of performance under section 306 of

this Act; (4) prohibition, effluent standard or pre-

treatment standards under section 307 of this

Act; (5) certification under section 401 of this

Act; or (6) a permit or condition thereof is-

sued under section 402 of this Act, which is in

effect under this Act (including a requirement

applicable by reason of section 313 of this Act).

(g) For the purposes of this section the term

“citizen” means a person or persons having an

interest which is or may be adversely affected.

(h) A Governor of a State may commence a

civil action under subsection (a), without regard

to the limitations of subsection (b) of this sec-

tion, against the Administrator where there is al-

leged a failure of the Administrator to enforce

an effluent standard or limitation under this Act

the violation of which is occurring in another

State and is causing an adverse effect on the pub-

lic health or welfare in his State, or is causing

a violation of any water quality requirement in

his State.

33a

Section 509(b) of the Act, as added, 86 Stat. 892,

33 U.S.C. (Supp. II) 1369(b), provides:

(1) Review of the Administrator’s action

(A) in promulgating any standard of perform-

ance under section 306, (B) in making any de-

termination pursuant to section 306(b)(1)(C),

(C) in promulgating any effluent standard, pro-

hibition, or treatment standard under section

307, (D) in making any determination as to a

State permit program submitted under section

402(b), (E) in approving or promulgating any

effluent limitation or other limitation under sec-

tion 301, 302, or 306, and (F) in issuing or

denying any permit under section 402, may be

had by any interested person in the Circuit Court

of Appeals of the United States for the Federal

judicial district in which such person resides or

transacts such business upon application by such

person. Any such application shall be made with-

in ninety days from the date of such determina-

tion, approval, promulgation, issuance or denial,

or after such date only if such application is

based solely on grounds which arose after such

ninetieth day.

(2) Action of the Administrator with respect

to which review could have been obtained under

paragraph (1) of this subsection shall not be sub-

ject to judicial review in any civil or criminal

proceeding for enforcement.

Section 510 of the Act, as added, 86 Stat. 893, 33

U.S.C. (Supp. II) 1370, provides:

Except as expressly provided in this Act, noth-

ing in this Act shall (1) preclude or deny the

34a

right of any State or political subdivision there-

of or interstate agency to adopt or enforce (A)

any standard of limitation respecting discharges

of pollutants, or (B) any requirement respecting

control or abatement or pollution, except that

if an effluent limitation, or other limitation, ef-

fluent standard, prohibition, pretreatment stand-

ard, or standard of performance is in effect un-

der this Act, such State or political subdivision

or interstate agency may not adopt or enforce

any effluent limitation, or other limitation, ef-

fluent standard, prohibition, pretreatment stand-

ard, or standard of performance which is less

stringent than the effluent limitation, or other

limitation, effluent standard, prohibition, pre-

treatment standard, or standard of performance

under this Act; or (2) be construed as impair-

ing or in any manner affecting any right or ju-

risdiction of the States with respect to the wa-

ters (including boundary waters) of such States.

35a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 73-2466

PEOPLE OF THE STATE OF CALIFORNIA ex rel.

STATE WATER RESOURCES CONTROL BOARD,

PETITIONER

v8.

THE ENVIRONMENTAL PROTECTION AGENCY, and RUS-

SELL E. TRAIN, as Administrator of the Environ-

mental Protection Agency, RESPONDENTS

Nos. 73-2486

74-1189

STATE OF WASHINGTON AND ITS DEPARTMENT

OF ECOLOGY, PETITIONER

vs.

THE ENVIRONMENTAL PROTECTION AGENCY, and RUS-

SELL E. TRAIN, as Administrator of the Environ-

mental Protection Agency, United States of Amer-

ica, RESPONDENTS

OPINION

[February 13, 1975]

J UDGMENT

On Petition For Review of A Decision

of the Environmental Protection Agency

36a

This cause came on to be heard on the transcript

of the record from the United States Environmental

Protection Agency and was duly submitted.

ON CONSIDERATION WHEREDOF it is now here

ordered and adjudged by this Court that the order

of the said Environmental Protection Agency in this

cause be and it hereby is remanded and the respond-

ent Administrator shall proceed accordingly to re-

consider the applications of the state agencies of

Washington and California.

[SEAL]

Clerk of the Court

By /s/ Susan White

Deputy

WW Uv. S. GOVERNMENT PRINTING orrice; 1975 s7se96 162