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

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, Supreme Court, U. &

yn fe OCT 1 1975

whe MICHAEL RODAK, JR, Ci FR

Ocroper Term. 1975 won lsrheartcinnthane Rectcinl

No. 74-1435

Tae EnvimonMENTAL Prorection AGENCY, ET AL.,

Petitioners,

vs.

PEOPLE OF THE SraTe or CatiFornia, Ex Rev. Strate Water

Resources Controt Boarp, anp Stare or WasHrxcTon,

ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Brief for the Respondent, State of California

Evettze J. YouncER

Attorney General of the

State of California

Cart BoronKay

Assistant Attorney General

Roperick WALSTON

Deputy Attorney General

Ricwarp C. Jacoss

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Tel: (415) 557-3920

Attorneys for

Respondent,

State of California.

—————————— EEE

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 04108

SUBJECT INDEX

Page

Summary of Argument .. 1

I ieeerateterrtiriaii icin 4

I. The Language, Structure and Objectives of the

Water Act Indicate That Federal Dischargers

Must Comply with State Permit Programs

Adopted Under the Act oo... ccccccccccccesssecsesoeeseeoees

A. The Primary Purpose of the 1972 Amend-

ments to the Water Act Was to Provide

Standards for Effluent Limitations Rather

Than Ambient Water Quality, to Provide for

the Development of Such Standards for

Individual Dischargers by a Permit System

and to Make the States Primarily Respon-

sible for the Administration of the Permit

System ..

B. Section 402(b), by Itself, Obligates Federal ©

Dischargers to Comply With State NPDES

Permit Programs, and Section 313 Confirms

and Clarifies That Obligation ..........................

C. The Administrator’s Authority to Issue Per-

mits to Federal Dischargers Is Based on the

Same Provisions Which Provide Such Au-

thority to the States, and Thus the Adminis-

trator Has No Greater Authority Than the

States to Issue Such Permits ...000.00. eee.

D. Other Statutory References Indicate That

the Word “Requirements” in Section 313

Includes Permits Issued Under Section 402 ..

E. Exemptions for Federal Dischargers from

State Programs Adopted Under Sections 308

and 306 Do Not Extend to State Permit Pro-

grams Adopted Under Section 402(b) ............

il Sussecr Inpex

Page

F. The Petitioner’s Distinction Between “Sub-

stantive” and “Procedural” Requirements Is

Administratively Unworkable, and Not Sup-

Te Oe ait eT

G. The Legislative History of the Water Act

Does Not Indicate That Federal Dischargers

Are Exempt from NPDES Programs Oper-

ated by the States Under Section 402(b) ......

H. The Administrator’s Interpretation of the

1972 Amendments Is, of Itself, Not Entitled

To Weight in Construing the Meaning and

Effect of the Amendments .0.0..0.0....-.--cccscceocseoeeee

II. The Constitutional Principles Contained in The

Supremacy Clause and Plenary Powers Clause

Do Not Bar the Issuance of State Permits to

Federal Dischargers Under the Water Act, Be-

cause the States Are Carrying Out Congressional

Policy in The Manner Directed by Congress ........

III. Although The States’ Authority to Issue Per-

mits to Federal Dischargers Under the Water

Act May Be Helpful in Analyzing Their Author-

ity to Do So Under the Air Act, Their Authority

Under the Air Act Sheds No Light on the

Extent of Their Authority Under the Water Act..

i PL ee ee = Oe

TABLE OF AUTHORITIES

CasEs

Pages

Alabama v. Seeber, 502 F.2d 1238 (5th Cir. 1972), cert.

I i 40

Askew v. American Waterways Operators, Inc., 411

Ee ae eee ND 23

California v. Davidson, 3 E.R.C. 1157 (N.D. Cal.

re ee Tee nT: 17, 23

California v. Department of the Navy, 371 F. Supp. 82

I a cnt 17

Continental Casualty Co. v. United States, 314 U.S.

SE) IIIT: bsedhibaliescsibieeniheienecstinisiainliadlaeitleaienairhcttaaeactis 28

James v. Dravo Contracting Co., 302 U.S. 134 (1937)... 48

Johnson v. Maryland, 254 U.S. 51 (1920) ..00. 43, 45

Kentucky ex rel. Hancock v. Ruckelshaus, 492 F.2d

I I ie al 50, 52

Kentucky ex re!. Hancock v, Train, No. 74-220 .............. 50

Mayo v. United States, 319 U.S. 441 (1943) 000. _ 43

MeCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 4

New York Dept. of Social Services v. Dublino, 413

ee I itctersichtiniindichitechtninnnsnenctisiniianinanniniisinbiginnniais 41

Ohio v. Thomas, 173 U.S. 276 (1889) 20.0... cecccccceeeseeeeeeee 43, 44

Paul v. United States, 371 U.S. 245 (1963) 00 43

Red Lion Broadcasting Co. v. Federal Communica-

tions Commission, 395 U.S. 367 (1969) 0.02... 41

Silas Mason Co. v. Tax Comm’n, 302 U.S. 186 (1937)... 43

State of California v. Morton, S-2924 (E.D. Cal.) ........ 24

iv TABLE OF AUTHORITIES

Udall v. Tallman 380 U.S. 1 (1964) oo cece 41

United States v. Allegheny County, 322 U.S. 174

(1944) _..... ° iiceiaiainhlichbiiiditianes 25

United States v. Sharpnack, 355 U.S. 286 (1958) ........ 46, 47

Van Brocklin v. Tennessee, 117 U.S. 151 ( 1886) .......... 25

Zemel v. Rusk, 381 U.S. 1 (1965) 0... cceccecccscececceceeseseeee. 41

Constitution, STaTuTEs AND REGULATIONS

United States Constitution:

Art. I, See. 8, Cl. 17 aaiinsiiatiiiiaes —

Act of June 30, 1948, 62 Stat. 1155 0 eee. 6

Act of July 9, 1956, 70 Stat. 498 2c ceccecceceeceeeees 6

Act of Oct. 2, 1965, 79 Stat. 908 2.0... eccccceeeeeeeseeeee 7, 49, 50

Act of Apr. 3, 1970, 84 Stat. 91.0000 cece 7, 49

33 U.S.C. 1160(c) (1) (1970) once ecececcccececececesececeeee 7

lt 7

ey UND CR ccetiiRincesenteeeecssnsntiensnensesmesmertissene 7

Clean Air Act of 1970, 84 Stat. 1676 et seq.

42 U.S.C. 1857 et seq.

Sec. 101, 42 U.S.C. 1857 (a) (3) cece cc ccecceceeeeeeees 50

Sec. 109, 42 U.S.C. 185 76-4 once cceececnececeeceseeeees 49, 50

Sec. 110, 42 U.S.C. 186705 nanan necencccceccseeeceesens. 49, 50

Sec. 110(a)(2)(B), 42 U.S.C. 1857¢-5(a)(2)(B).. 50

Sec. 111(¢), 42 U.S.C. 1857¢-6(@) occ ecccceccecceeceeeees 28

See. 114(b), 42 U.S.C. 1857¢-9(b) oe eee cceeceeees 28

See. 116, 438 UGC. 166708 ccc 50

Sec. 304(f), 42 U.S.C. 1857h-2(f) ooo cececceeeeeee 20

MOO, NEB, GB UC, BOGE nan acccececcncceeeeseecesees 4, 5, 49, n52

OO, SOG, GB WTC, BTID anc cccccecceeccceenseereeeneeesees 52

Federal Water Pollution Control Act Amendments of

1972, 86 Stat. 816 et seq., 33 U.S.C. (Supp. III) 1251

et seq.

TABLE OF AUTHORITIES v

Pages

Sec. 101, 33 U.S.C. (Supp. TIT) 1252 2. 9, 50

See. 101(f), 33 U.S.C. (Supp. ITT) 1251(f) .00000000.... 36

Sec. 201, 33 U.S.C. (Supp. ITT) 1281 20... 9

Sec. 301, 33 U.S.C. (Supp. TIT) 1312 00... 9, 16, 22, 32

Sec. 302, 33 U.S.C. (Supp. ITT) 1312 0000... 9, 16, 22, 32

See. 303, 33 U.S.C. (Supp. TTT) 1313.00.00... 9, 16, 22, 32

Sec. £06, 33 U.S.C. (Supp. ITT) 1316 0... in passim

Sec. 307, 33 U.S.C. (Supp. ITT) 1317 .............. 14, 16, 20, 32

See. 308, 33 U.S.C. (Supp. ITI) 1318 ............ 2, 26, 27, 28, 29

Sec, 313, 33 U.S.C. (Supp. ITT) 1323 0... .in passim

Sec. 401, 33 U.S.C. (Supp. ITT) 1341 2. 20

Sec. 401(a), 33 U.S.C. (Supp. ITT) 1341(a) 00... 31

Sec. 402, 33 U.S.C. (Supp. ITT) 1342 0. in passim

See. 402(a), 33 U.S.C. (Supp. ITT) 1342(a) 0000... 11, 36

Sec. 402(b), 33 U.S.C. (Supp. ITI) 1342(b) ........ in passim

See. 402(b) (1), 33 U.S.C. (Supp. IIT) 1342(b) (1)... 46

See. 402(b)(2)(B), 33 U.S.C. (Supp. ITT) 1342(b)

IIIT cinsslislbesbtetieinhalleetibahcnlicia ies beiasilhdRtaciesta thd theta adetad eh eeeee 30

See. 402(b)(7), 33 U.S.C. (Supp. ITI) 1342(b) (7)

wibiadinineiaidenmapemndmaeninaiainaditinds 11, 39, 50

Sec. 402(c), 33 U.S.C. (Supp. ITT) 1342(e) 00... 46

Sec. 402(c) (3), 33 U.S.C. (Sup. ITT) 1342(¢)(3) ... = 11

Sec. 402(d), 33 U.S.C. (Supp. ITT) 1319(d) 200000... 11

See. 502, 33 U.S.C. (Supp. ITT) 1362 0000. 24

Sec. 502(11), 33 U.S.C. (Supp. ITT) 1362(11)..22, 32, 33, 50

See, 502(12), 33 U.S.C. (Supp. ITT) 1362(12) 0000... 22

Sec. 502(17), 33 U.S.C. (Supp. ITI) 1362 (17) ............ 33

Sec. 502(19), 33 U.S.C. (Supp. ITT) 1362(19) 00... 22

Sec. 505, 33 U.S.C. (Supp. TIT) 1365 0. 19, 39

See. 505(f), 33 U.S.C. (Supp. ITT) 1365(f)..2, 19, 32, 40, 51

Sec. 509(b) (1)(D), 33 U.S.C. (Supp. ITT) 1369(b)

RP eecenseieceinnninstsncienitaiaapserntnineiattaanabieaiinotatnrtaciiianniies 52

Sec. 510, 33 U.S.C. (Supp. ITT) 1370.00... in passim

vi TaBLE OF AUTHORITIES

Pages

Refuse Act of 1899

Se PEs GUT III sctccciniactatsncresinousiesteitinadimensinrinasaauae 9

Federal Tort Claims Act

EI ee ee ee ee 47

Outer Continental Shelf Act, 43 U.S.C. 1333(a) ( 47

40 C.F.R.:

I 41

Federal Register:

I 42

38 Fed. Reg. 34793-34797 ooo... cccccceccceeceeceececeseeeeee 42

California Codes:

Cal. Wat. Code §§ 13020-13387 ooo. ccecececceeeecoeee- 35, 48

CONGRESSIONAL

Conf. Rep. (S. Rep. No. 92-1236), 92d Cong., 2d Sess.

Ee aN cre cl RN AEN EOS ee: 11, 30, 39

H.R. Rep. No, 91-127, 91st Cong., 2d Sess. (1970)........ 17

H.R. Rep. No, 91-1783, 91st Cong., 2d Sess. (1970) .... 51

H.R. Rep. No, 92-911, 92d Cong., 2d Sess. (1972) ..in passim

H.R. 11896, 92d Cong., 2d Sess. (1972) oo. -.eeecececeeeeoeee 11

S. Rep. No. 92-414, 92d Cong., Ist Sess. (1971) ......in passim

108 Cong. Ree. 16894, 92d Cong., 2d Sess. (1972) .......... 24

117 Cong. Ree. 38798-38800, 92d Cong., 1st Sess.

| i Bee ean te ae ee ee ATI Ee TONE 9,10

118 Cong. Rec. 16894, 92d Cong., 2d Sess. (1972) ........ 24

120 Cong. Rec. S 16644 (daily ed. Sept. 16, 1974) .......... 25

Executive Orders:

CEE ee ee er eee oT 42

TaBLE OF AUTHORITIES vii

MISCELLANEOUS

Pages

Comment, Local Control of Pollution from Federal

Facilities, 11 8. Diego L. Rev. 972 (1974) ................ 9

Federal Water Pollution Control Act Amendments of

1972: Ambiguity as a Control Device, 10 Harv.

es Be CID ccetccatceccectnecncemecennestinnmncnnccenses 9

Note, Federal Water Pollution Control Act Amend-

ments of 1972, 1973 Wis. L. Rev. 893, (1973) ............ 9

2A Sutherland, Statutory Construction (4th ed.) ........ 41

Committee Print, A Legislative History of the Water

Pollution Control Act Amendments of 1972, 93d

Cong., 2d Sess. (1973) :

ee Ss SITE cecernisnieiientineinisiadncssemnetsnseonenenane 11, 29, 40

Be SCI ticerencininieininsnciennsensnenianticememmmmenmnine 11, 30

ee ED diccrcrntenienennuniminincietenminenmemensnanel 29, 30

I, Ties GI cece cecesccscscnccencseccenssenscssseusnessens 39, 48, 53

8 eS 9

I incr nrnreninnccenctnsidibiennnibbeninnninnueiaiianee 22

a eerie ice dlansinscatanmnnentiinn 11, 29

I TIED ns saisiericnctieuseensanbnissenionnmanineneneennn 6

Be BI tociiniiciassesccssmmnpenenmesenemmmentcennal in passim

Sn I, IE as srnicateinsiecennenstommeieneenemsaeiasnate 9,11

eG IER STI sscinidibicerisenntinnespentiutnndieipeiesiennniuimmenianen 15

Supreme Court of the United States

Ocroser Term, 1975

No. 74-1435

Tae EnvmonMEnTAL Protection AGENCY, ET AL.,

Petitioners,

vs.

Prop.e or THE State or Cauirrornia, Ex Rev. Stare Water

Resources Controt Boarp, anp State or WasHINGTON,

ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Brief for the Respondent, State of California

SUMMARY OF ARGUMENT

The central purpose of the 1972 amendments to the Fed-

eral Water Pollution Control Act was to provide, first, for

the development of standards for effluent discharges rather

than ambient water quality, and, second, for the develop-

ment of standards for individual dischargers by the issu-

ance of permits. The states are authorized to adopt pro-

grams for the issuance of permits under section 402(b) of

the act. Nothing in that section provides an exemption for

federal dischargers from such state programs.

Moreover, section 313 of the act requires federal dis-

chargers to comply with state “requirements respecting

control and abatement of pollution to the same extent that

any person is subject to such requirements, including the

payment of reasonable service charges.” That section con-

firms and clarifies the obligation of federal dischargers to

comply with state permit programs under section 402(b).

Section 313 is not intended to limit federal compliance to

effluent “limitations” and “standards” adopted by the states

under the act, as contended by the petitioners; those terms

are used in a precise sense in the act, and Congress would

have used those terms in section 313 if it had intended for

the section to be so limited.

The authority of the Administrator of the Environmental

Protection Agency to issue permits to federal dischargers,

in states where he operates his own permit program, is

based on sections 402 and 313, the same sections which

provide such authority to the states. Thus, if the Adminis-

trator has authority to issue permits to such dischargers,

so do the states. Otherwise, such dischargers would be free

of any permit control under the act.

Other statutory references support this view. Section

505(f) specifically describes a “requirement” in section 313

as including a permit issued under section 402. Section

510 specifically distinguishes between a “requirement re-

specting control or abatement of pollution”—the phrase

used in section 313—and a “standard or limitation,” thus

undercutting the petitioner’s position that these phrases

are synonymous. The reference to “reasonable service

charges” in section 313 denotes charges levied by the states

for permit applications submitted by federal dischargers,

thus indicating that states have authority to issue permits

to such dischargers. Sections 308 and 306, which provide

exemptions for federal dischargers from certain state pro-

grams under the act, do not imply an exemption for such

inl a i i itil

dischargers from state permit programs under section

402(b), and indeed such an exemption was expressly re-

jected by Congress.

The petitioner’s interpretation of the act is administra-

tively impractical. The petitioner concedes that the states

have authority to formulate the “effluent limitations”—

consisting of conditions relating to numerical and time

limitations—in permits issued to federal dischargers. It is

administratively unsound to deny the states authority to

issue the permit containing such conditions. The states

achieve no additional “control” over federal dischargers

by their authority to issue such permits, since any such

“control” results from their authority to formulate and

administer the conditions in such permits, not to issue the

permit itself.

The act’s legislative history is silent concerning the issues

in this case. Any inferences in this history support the

position of the respondents, not the petitioner.

The Administrator’s interpretation of the states’ au-

thority under the act is, per se, entitled to no weight in

construing such authority.

The federal principles found in the Supremacy Clause

and Plenary Powers Clause are helpful in defining the

limits of state authority where the state acts pursuant to

its inherent, reserved powers in furtherance of a policy

peculiar to the state, but not where—as here—it acts pur-

suant to a congressional directive in furtherance of a na-

tional policy set by Congress. Further, Congress built

ample safeguards into the act to limit the intrusion of

states upon federal activities and enclaves, and these safe-

guards fulfill the purposes of these constitutional prin-

ciples.

Section 118 of the Clean Air Act, in defining the obliga-

tion of federal agencies to comply with state “require-

ments” under that act, contains language similar to that

found in section 313 of the Federal Water Pollution Con-

trol Act. The similarity between these and other sections

of the acts might justify a harmonious construction of

sections 313 and 118. However, the dissimilarities between

the acts, particularly with respect to the states’ express

authority to issue permits under the water act, might

justify the opposite result. In any event, the water act was

amended in 1972 to remove any ambiguities which remain

in the air act. Accordingly, section 118 might be construed

in light of the meaning of section 313, but not vice versa.

ARGUMENT

Il. The Language, Structure and Objectives of the Water Act

The petitioner argues that this case hinges on the mean-

ing of section 313 of the Federal Water Pollution Control

Act (the “water act”), which requires federal agencies and

instrumentalities to comply with federal and state “require-

ments respecting control and abatement of pollution .. . .”

33 U.S.C. (Supp. ITI) §§ 1251-1376, 1323. He argues that

this section must be interpreted similarly to section 118 of

the Clean Air Act (the “air act”), 42 U.S.C. §§ 1857-1858a,

1857f, which uses similar language in describing the obliga-

tion of federal agencies under that act. Finally, he asserts

that the word “requirements” in these sections denotes

“substantive” requirements, such as effluent “limitations”,

but not “procedural” requirements such as permits.

The petitioner fundamentally misconceives the language,

structure and objectives of the water act. By focusing on

the meaning of section 313, he ignores the fact that this

ease hinges principally on the meaning of section 402 of

the water act, 33 U.S.C. (Supp. ITI) § 1342, which author-

izes states to issue permits under the act; section 313,

rather than imposing an independent obligation on federal

agencies, only confirms and clarifies the obligation imposed

on such agencies by section 402. By reading section 313 in

light of section 118 of the air act, he ignores the fundamen-

tally different approaches of the water and air acts to the

problem of pollution; this difference derives from the fact

that—although the acts were substantially similar prior to

1972—the water act was fundamentally restructured by

amendments passed in that year, and the air act was not.

By distinguishing between permits and effluent “limita-

tions,” the petitioner ignores the fact that the mechanism

by which such “limitations” are formulated and applied

to individual dischargers is by the permit system estab-

lished in section 402. To fully appreciate the extent to

which the petitioner misconceives the water act, it is neces-

sary to first trace the historical evolution of the act to

fully understand its purposes.

The water act, amended extensively since its passage in

1948, has provided for increasingly tough2r controls over

water polluters, in an effort to eradicate the national cancer

of water polution. An underlying theme of ‘he act, since its

original passage, has been that the states hive the primary

responsibility for achieving that goal.’ Until 1972, however,

the act failed to provide clear and effective directives as to

how that goal was to be achieved.

The original 1948 act provided that the U. 8. Surgeon

General was to develop “programs” for the prevention of

water pollution, 62 Stat. 1155 (1948). The programs were

to be enforced by abatement actions brought by the states,

id, at 1156, and by federal officials in instances where the

states failed to act, id. at 1156-1157. The act declared a

congressional policy to “recognize, preserve, and protect

the primary responsibilities and rights” of the states to

prevent water pollution. 7d. at 1155. No mention was made

of the types of programs which were to be adopted and

enforced under the Act, much less the obligation of fed-

eral dischargers under the act.

The act was amended in 1956 to enlarge the authority of

the states to meet their responsibilities under the act, and

to provide for increased cooperation between federal and

state agencies towards that end. The amendments author-

ized each state to develop a “plan,” subject to approval

of the Surgeon General, setting forth methods for improv-

ing water quality. 70 Stat. 498, 500 (1956). The plan was

to be enforced by abatement actions brought by state or

federal officials. 7d. at 504-505. Federal dischargers were

1. Senate Report No. 92-414, discussing the proposed amend-

ments to the act, commented:

“For more than two decades, Federal legislation in the field

of water pollution control has been keyed primarily to an im-

portant principle of publie policy: The States shall lead the

national effort to prevent, control and abate water pollution.

As a corollary, the Federal role has been limited to support

of, and assistance to, the States.” S. Rep. No. 92-414, 92nd

Cong., Ist Sess. 1 (1971), 2 Legis. Hist. 1419.

“Legis. Hist.” refers to the legislative history of the water act

compiled by the Environmental Policy Division of the Library

of Congress in two volumes. See A Legislative History of the

Water Pollution Control Act Amendments of 1972 (Comm. on

Publ. Works Print, 1973).

directed to “cooperate” with the states, to the extent “prac-

ticable and consistent with the interests of the United States

and within any available appropriations.” Jd. at 506. The

admonition was repeated that the states bear the “pri-

mary responsibilities and rights” for preventing water pol-

lution. Id. at 498. However, the amendments failed to pro-

vide clear directives as to how the states were to attain that

objective, and largely gave federal dischargers the option of

voluntarily complying with such programs as the states

might develop.

Amendments in 1965 and 1970 strengthened and clarified

the authority of the states, and the obligation of federal dis-

chargers to comply with their exercise of authority. The 1965

amendments authorized the states to adopt “water quality

standards,” which included both “water quality criteria”

and a “plan” for the “implementation and enforcement” of

the criteria. 79 Stat. 903, 908 (1965).? The “standards” were

to be enforced by abatement actions brought by state or

federal officials. Jd. at 909. The 1970 amendments obligated

federal dischargers to comply with such “standards.” 84

Stat. 91, 107 (1970).* These amendments were thus similar

to the amendments to the air act passed in 1970. The latter

amendments authorize the states to adopt a “plan” for the

“implementation” and “enforcement” of the “ambient air

quality standards” provided in that act, 42 U.S.C. §§ 1857e-

4, 1857¢-5, and provide for the enforcement of such plans

by abatement actions brought by state or federal officials,

2. These provisions were codified in 33 U.S.C. 1160(c) (1)

(1970).

3. This provision was codified in 33 U.S.C. § 1160(b) (1970).

4. This provision was codified in 33 U.S.C. § 1171(a) (1970).

id, at §§ 1857c-5, 1857¢-8, 1857d.° As a result of these amend-

ments to the water and air acts, the acts—prior to 1972—

sought to achieve similar objectives by similar means.

However, the pre-1972 amendments to the water act still

failed to provide an adequate response to the problem of

water pollution. By providing standards for “water qual-

ity,” the amendments focused on the quality of the waters

receiving discharges of effluent, not on the quality of the

effluent itself. Thus, the primary concern of the amendments

was the formulation of ambient water quality standards

generally applicable to all who discharge effluent into a par-

ticular body of water, not the formulation of standards ap-

plicable to individual dischargers within that category. In

a sense, the amendments focused on the effects, rather than

the causes, of water pollution, Many states, unsure of their

rights and duties under the act, failed to diligently seek the

development of standards for individual dischargers, with

the result that the standards in many states reflected the

lowest legitimate water uses, such as industrial uses. To

fill the resulting void in effective water quality control,

federal officials began vigorously enforcing the Refuse

Act of 1899, which prohibits the discharge of any matter

into the nation’s navigable waters except pursuant to a

federal permit. 33 U.S.C. § 407 (1899). To restore the

balance between federal and state control over water

quality, and to strengthen such control, Congress sub-

stantially re-constructed the water act by amendments

passed in 1972. See generally H.R. Rep. No. 92-911, 92d

5. However, the amendments to the water and air acts were

different in that the water act provided that the “standards” were

to be developed by the states, and the air act provides that the

“standards” are to be developed by thé Administrator of the

Environmental Protection Agency. Compare 79 Stat. 903, 908

(1965), as codified in 33 U.S.C. § 1160(c) (1) (1970), with 42

U.S.C. § 1857¢-4(a) (1).

Cong., 2d Sess. 124-128 (1972), 1 Legis. Hist. 811-815; S.

Rep. No. 92-414, 92d Cong., Ist Sess. 69-73 (1971), 2 Legis.

Hist, 1487-1491; 117 Cong. Rec. 38798-38800, 92d Cong.,

Ist Sess. (1971) (remarks of Senator Edmund Muskie).*

The 1972 amendments radically altered the focus of the

act, by providing for standards applicable to individual dis-

chargers through a permit system.’ First, the amendments

authorize the Administrator of the Environmental Protec-

tion Agency (the “Administrator”) and the states to de-

velop “limitations” and “standards” for discharges of

effluent, 33 U.S.C. (Supp. III) §§1311, 1312, 1313,

1316, 1317*, a change from the pre-1972 focus ‘on

ambient water quality standards. Second, the amendments

provide, in section 402, that these limitations are to be tai-

lored to individual dischargers by a program denominated

as the National Pollutant Discharge Elimination System

(“NPDES”). Jd. at § 1342. Under that system, no person

may discharge pollutants from a point source, such as

a pipe or outfall, into the nation’s navigable waters

except pursuant to an NPDES permit. Jd. at §§ 1811,

6. See also Note, Federal Water Pollution Control Act Amend-

ments of 1972, 1973 Wis. L. Rev. 893, 893-895 (1973) ; Note, Fed-

eral Water Pollution Control Act Amendments of 1972: Ambiguity

as a Control Device, 10 Harv. Jour. on Leg. 565, 571-572 (1973) ;

Comment, Local Control of Pollution from Federal Facilities, 11

S. Diego L. Rev. 972 (1974).

7. These standards are provided in Title III of the act, com-

mencing at section 301, 33 U.S.C. (Supp. IIT) § 1311. The act also

provides for research and related programs in Title I, commencing

at section 101, id. at § 1251, and for federal grants for construction

works in Title II, commencing at section 201, id. at § 1281.

8. The Administrator is to develop “effluent limitations” by

1977 and 1983, based on the “best practicable” and “best available”

technology, respectively. 33 U.S.C. (Supp. IIT) § 1311(b). The

states may nonetheless adopt more stringent “effluent limitations”

than those developed by the Administrator. Id. at §§ 1311(b) (1)

(C), 1313(e), 1370.

1362(12). Conditions are to be imposed in such permits

after administrative hearings, to assure the discharger’s

compliance with the act. Jd. at § 1342(a). To assure com-

pliance by federal dischargers with this permit system,

section 313 was added to direct such dischargers to comply

with state and federal “requirements respecting control

and abatement of pollution to the same extent that any

person is subject to such requirements ... .” Jd. at § 1323.

Thus, the permit system is the central mechanism by which

the act’s objectives are to be achieved.® After long and

frustrating experimentation, Congress finally fashioned a

statutory scheme which—by utilizing a permit system—

provides a suitably forceful response to the problem of

water pollution.

Under the 1972 amendments, the states are expected to

bear the major responsibility for administering the NPDES

permit system. As Senator Muskie declared during the

congressional debate:

“What it [the bill] does 1s continue the Federal Gov-

ernment’s authority with respect to major polluters

... until such time as the States can develop perma-

nent authority of their own. At that time it is the

expectation of this bill and of this administration to

have the States assume that permanent authority

and to administer the law directly.” 117 Cong. Ree.

38845, 92d Cong., Ist Sess. (1971).?°

9. Senator Edmund Muskie, the Senate floor leader for the

1972 amendments, summarized “the two major changes” in the

act as “the change from water quality standards to effluent limits

as the control mechanism, and the use of the permit system against

the discharge of pollutants.” 117 Cong. Rec. 38799, 92d Cong., 1st

Sess. (1971).

10. The Senate report commented on section 402 as follows:

“Tt is expected that the States will play a major role in the

administration of this p }

“The Committee believes that, after a transition period dur-

ing which the State program and capability will be upgraded,

Accordingly, although section 402(a) authorizes the Ad-

ministrator to develop his own permit program for each

state, 33 U.S.C. (Supp. ITI) § 1342(a), section 402(b)

authorizes each state to develop its own permit program

to replace that of the Administrator, id. at § 1342(b). Once

a state program is developed, the Administrator “shall”

approve the program if it meets the standards of the act,

ibid.," and “shall” thereupon suspend its own permit pro-

gram in that state, id at § 1342(c).% The Administrator has

no discretion to withhold approval of a state permit pro-

gram which meets the act’s standards,” and each state thus

has the option of making its own permit progrem applic-

able within the state.

the program should be administered by those States with pro-

grams which meet the requirements of this Act.

“Therefore, the bill provides that after a State submits a

program which meets the criteria established by the Admin-

istrator pursuant to regulations, the Administrator shall sus-

pend his activity in such State under the Federal permit

program. The Administrator would periodically assess the

performance of the State program and have the authority to

withdraw this delegation upon finding that the State is not

carrying out its program properly.” S. Rep. No. 92-414, 92nd

Cong., Ist Sess. 71 (1971), 2 Legis. Hist. 1489.

11. The Administrator may withdraw approval of a state per-

mit program if the state fails to adequately operate and enforce

the program. Id. at § 1342(c) (3).

12. Permits are to be enforced by actions brought by the Ad-

ministrator or the states for injunctive relief, fines and civil pen-

alties. Id. at §§ 1319(c), 1319(d), 1342(b) (7).

13. H.R. 11896, the bill which originally passed the House,

provided that the Administrator “may” approve a state permit

program which meets the act’s standards. H.R. 11896, 92d Cong.,

2d Sess. § 402(a)(5) (1972), 1 Legis. Hist. 1054. The Conference

Committee changed the word “may” to “shall,” in order to require

the Administrator to approve such a program “instead of only

permitting the Administrator to do so.” Conf. Rep. (S. Rep. No.

92-1236), 92d Cong., 2d Sess. 139 (1972), 1 Legis. Hist. 322.

The 1972 amendments, although fundamentally altering

the focus of the act, nonetheless preserve certain existing

features of the pre-1972 act. In particular, section 303(e)

allows states to develop “water quality standards” and

“implementation plans”, subject to the Administrator’s

approval, if such contain “efiluent limitations” which are

at least as stringent as those adopted by the Administrator.

Id. at §1313(e). Thus, section 303(¢) retains the states’

old authority to develop standards for ambient water

quality, and section 402(b) gives the states new authority

to make these standards applicable to individual discharg-

ers by a permit system.

Moreover, the 1972 amendments provide that the states’

authority to administer the NPDES permit system is a

floor, not a ceiling, with respect to their efforts to prevent

water pollution. Section 510 emphasizes that the states may

develop a more stringent “standard,” “limitation” or

“requirement” than those otherwise provided in the act.

33 U.S.C. (Supp. IIT) § 1370. Thus, the act’s oft-repeated

declaration that the states bear the “primary responsi-

bilities and rights” in preventing water pollution, reiter-

ated in the 1972 amendments, id. at §1251(b), is not a

hollow tribute to the states’ sovereignty, but an accurate

characterization of the overall statutory scheme.

Thus, as we have demonstrated, the 1972 amendments

provide for the development and administration of both

generalized standards applicable to all dischargers within

a particular class, and particularized standards made ap-

plicable to each discharger within the class by a permit

system. The Administrator is primarily responsible for

the development of generalized standards, with the states

retaining authority—under sections 303(e) and 510—to

develop more stringent standards than those of the Ad-

ministrator, Under section 402(b), the states are primarily

responsible for developing and administering particular-

ized standards for individual dischargers by the NPDES

permit system; the Administrator is to assume this re-

sponsibility only until it is assumed by the state, and only

thereafter if the state fails to fulfill it. Whether federal

dischargers must comply with particularized standards

developed by the states under the NPDES system depends

on the meaning and effect of sections 402(b) and 313, a

question which we shall now examine more closely.

B. Section 402(b), by Itself, Obligates Federal Dischargers to Comply With

State NPDES Permit Programs, and Section 313 Confirms and Clarifies That

Obligation.

The petitioner essentially contends that section 402 con-

templates a dual permit program, with the Administrator

issuing permits to federal dischargers and the states—

after approval of their permit programs—issuing permits

to all other dischargers. Nothing in the act suggests this

result, however. Section 402(b), in authorizing states to

develop permit programs, provides no exemption: for

federal dischargers from such programs, 33 U.S.C. (Supp.

IIT) § 1342(b). Nor does that section authorize the Ad-

ministrator, in approving a state permit program, to with-

hold approval to the extent that the program is applicable

to federal dischargers. Ibid. Further, section 402(c), in

directing the Administrator to suspend his own permit

program upon approval of a state program, does not

authorize the Administrator to continue his permit pro-

gram with respect to federal dischargers. 7d. at § 1342(c).

Thus, there is no authority whatsoever in section 402, or

elsewhere in the act, for the dual permit program proposed

by the petitioner. That section clearly contemplates that

all dischargers—including federal dischargers—shall be

subject to state permit programs adopted under the act.

If any confirmation of our conclusion is necessary, it

is found in section 313, which requires federal dischargers

to comply with federal and state “requirements respecting

control and abatement of pollution to the same extent that

any person is subject to such requirements, including the

payment of reasonable service charges.” 33 U.S.C. (Supp.

IIT) § 1323. The section, in requiring compliance with state

“requirements” respecting the “control and abatement” of

pollution, obviously includes permits issued by the states

under section 402(b), for such permits are the primary

means by which water pollution is to be controlled under

the act.*® In requiring such compliance “to the same extent

14. Section 313 provides in full :

“Each department, agency, or instrumentality of the exec-

utive, legislative, and judicial branches of the Federal Gov-

ernment (1) having jurisdiction over any property or facility,

or (2) engaged 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 abatement 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 a requirement if he determines it to be in the para-

mount 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 title. No such exemptions shall be granted

due to lack of appropriation unless the President shall have

specifically requested such appropriation as a pat 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 President’s making a new determination. The

President shall report each January to the Congress all ex-

emptions from the requirements of this section granted dur-

ing the preceding calendar year, together with his reason for

granting such exemption.”

15. The Senate report, in commenting on section 402, stated:

“(T]he most effective control mechanism for point sources

that any person is subject to such requirements,” the sec-

tion obviously insures that federal dischargers will be

subject to the same permit program as other dischargers;

this reference confirms the lack of authority for the dual

permit program proposed by the petitioner. Nothing in

section 313 supports the petitioner’s claim that the section

only includes “substantive” requirements, not “proce-

dural” requirements; by definition, both terms are sub-

divisions of the word “requirements,” and hence encom-

passed within the statutory phraseology. Thus, section

313, rather than imposing an obligation on federal dis-

chargers independently of other provisions of the act, con-

firms and clarifies the obligation of such dischargers to

comply with permit programs adopted by the states under

section 402(b). The section was intended to forestall any

claim, such as that asserted by the petitioner here, that

federal dischargers are exempt from such programs.”

The petitioner asserts, however, that section 313 is only

intended to require federal dischargers to comply with

those state “requirements” authorized under section 303(e)

of the act, 33 U.S.C. (Supp. IIT) §1313(e). Brief for the

Petitioners (hereinafter “Pet. Brief”), 18. That section,

as we have seen, authorizes states to retain their pre-1972

authority to adopt ambient “water quality standards,”

of discharge is one which will provide for the establishment of

conditions of effluent control for each somes “ —w pr

A t or equivalent program, properly implemented an

fully atilising the resources of the State and Federal Govern-

ment should provide for the most expeditious water pollution

elimination program.” S. ro No. 92-414, 92d Cong., 1st Sess.

72 (1971), 2 Legis. Hist. 1490. (Emphasis added.)

16. Section 313 also requires compliance by federal dischargers

with other types of permits, licenses and control measures issued

. A states for the prevention of water pollution, in addition to

DES permits issued under section 402(b). See n. 23, infra.

which are defined in the section as including effluent “limita-

tions” and “standards” under the new act. The terms

“effluent limitations” and “standards” are used in a precise

and artful sense in the act; these terms denote authority

given to the Administrator in sections 301, 302, 303, 306

and 307, and authority given to the states in section 303(e)

—repeated in sections 510 and 30i1—to adopt more strin-

gent “limitations” and “standards” than those of the Ad-

ministrator.*’ If Congress had intended to limit section 313

to such “limitations” and “standards,” it would have em-

ployed those terms, or at least made reference to those

sections. Instead, by using the broader phrase “require-

ments respecting control and abatement of pollution,” Con-

gress clearly intended to reflect the states’ broader author-

ity to adopt NPDES permit programs under section 402.

Indeed, in view of the importance which Congress attached

to such programs in achieving the act’s goals, it would be

anomalous to read section 313 as precluding reference to

such programs. Hence, the phraseology of the section

contradicts the interpretation suggested by the petitioner.

Our conclusion is also supported by the history of sec-

tion 313. That section succeeded section 21(a) of the pre-

17. Section 301 authorizes the Administrator to develop “efflu-

ent limitations” at selected target dates, and subdivision (b) (1)

(ec) thereof authorizes the state to develop more stringent “effluent

limitations.” 33 U.S.C. (Supp. III) § 1311(b). Section 302 author-

izes the Administrator to develop “effluent limitations” for

specific bodies of water. Id. at § 1312. Section 303, and particular!

subdivision (e) thereof, authorizes the states, subject to the Ad.

ministrator’s approval, to develop “water quality standards,” in-

eluding “effluent limitations.” Id. at §§ 1313(a), 1313(e). Section

306 authorizes the Administrator to develop “national standards of

performance” for new sources of water pollution. 7d. at § 1316.

Section 307 authorizes the Administrator to develop “toxie and

pretreatment effluent standards.” Id. at § 1317. Section 510 author-

izes the states to develop a more stringent “standard” and “limi-

tation” than those of the Administrator. 7d. at § 1370. (All em-

phasis has been added.)

1972 act, which required federal dischargers to comply

with state “water quality standards.” 84 Stat. 91, 107

(1970).2* Since the states’ pre-1972 authority to adopt

“water quality standards” was preserved by section 303(e),

section 21(a) need not have been changed if—as contended

by the petitioner—the 1972 amendments were intended only

to preserve the obligation of federal dischargers to comply

with state “water quality standards.” Hence, by changing

the focal reference from “water quality standards” in sec-

tion 21(a) to “requirements” in section 313, Congress

clearly indicated its intent that the latter section is not

limited to “water quality standards” adopted by the states

under section 303(e).

C. The Administrator's Authority to Issee Permits to Federal Dischargers Is

Provisions

The petitioner, in asserting that the “requirements” de-

scribed in section 313 do not include permits issued under

section 402, overlooks the fact that this result would free

federal dischargers from any permit control under the act,

whether exercised by the states or the Administrator. The

Administrator’s authority to issue permits to federal dis-

chargers, in states where he operates his own permit pro-

gram, is based on sections 402 and 313, the same provisions

which provide such authority to the states. Section 402(a)

gives the Administrator his authority to operate a permit

program, and section 313 requires compliance by federal

18. Although section 21(a) made no specific reference to the

authority of the states, the legislative history of the section in-

dicates that state as well as federal “standards” were included

within its ambit. H.R. Rep. No. 91-127, 91st Cong., 2d Sess. 19

(1970) ; California v. Davidson, 3 E.R.C. 1157 (N.D. Cal. 1971) ;

California v. Department of the Navy, 371 F. Supp. 82, 83 (N.D.

Cal. 1973) (dictum).

dischargers with state and federal “requirements.” Nothing

in these sections distinguishes between the authority of the

Administrator and the states, with respect to the issuance

of permits to federal dischargers. The distinction between

their authority depends solely on whether the Administra-

tor has approved a state permit program, not on the iden-

tity of the discharger. Hence, the Administrator’s authority

to issue permits to federal dischargers is based on the

identical provisions which provide such authority to the

states, and he has no greater power to issue such permits—

in states where he operates his own permit program—than

the states have elsewhere.

Thus, the Administrator faces an unenviable dilemma,

which he has yet to even acknowledge. Either the word

“requirements” in section 313 includes permits issued under

section 402, or it does not. If it does, then the states have

authority to issue permits to federal dischargers. Other-

wise, the word “requirements” would be given a varying

meaning, depending on whether the permits are issued by

the states or the Administrator. Nothing in the act supports

such a whimsical, vagarious construction of that term.

On the other hand, if the word “requirements” in section

313 does not include permits issued under section 402, fed-

eral dischargers would not be bound to comply with permits

issued by the states or the Administrator. This result would

give such dischargers the option of voluntarily complying

with the act’s permit system, an option which was clearly

not intended by the 1972 amendments. In fact, Congress

took particular note of the unresponsiveness of federal

dischargers to the nation’s water quality goals, and the

need to strengthen—not weaken—controls over such dis-

chargers. S. Rep. No. 92-414, 92d Cong., Ist Sess. 67

(1971), 2 Legis. Hist. 1485. To assure that federal dis-

chargers comply with the NPDES system, section 313

specifically directs such dischargers to comply with state

and federal requirements “to the same extent that any

person is subject to such requirements.” Thus, such dis-

chargers must comply with systems operated by the states

—in instances where the Administrator has approved such

systems—as fully as they must comply with systems op-

erated by the Administrator. The petitioner, by distinguish-

ing between “requirements” in section 313 and permits

issued under section 402, has ignored the double-edged

implications of such a distinction.

D. Other Statutory References Indicate That the Word “Requirements” in Sec-

tion 313 Includes Permits Issued Under Section 402.

in sections 505, 510 and 313 itself, Congress has provided

further indications of the interrelationship between the

word “requirements” in section 313 and permits issued un-

der section 402.

1. Section 505. Section 505(f), which provides for citi-

zen suits to enforce the act, describes an “effluent standard

or limitation” as including “a permit or condition thereof

issued 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).” 33 U.S.C. (Supp. III) § 1365(f).

(Emphasis added.) This provision expressly equates a

“requirement” in section 313 with a permit issued under sec-

tion 402, and thus clearly contradicts the petitioner’s argu-

ment that the two sections are mutuaily exclusive.

We are unable to understand the petitioner’s discussion

of section 505(f). He first points out that the reference to a

“requirement” in that section appears at the end of a list of

six categories—the last of which is a “permit” issued under

section 402—which may be enforced by a citizen suit. Pet.

Brief, 31-32. He then argues, apparently, that since not all

of the first five categories can be classified as a “require-

ment,” the sixth category cannot be so classified either. /bid.

His conclusion, aside from the fact that it is a non sequitur,

is based on a misreading of the section. The word “require-

ment” in the sixth category does not refer to all, or even

any, of the first five categories, but only refers to a “per-

mit” described in the sixth category.’® In other words, the

word “requirement” is intended to clarify the meaning of

the sixth category, not the preceding five. Thus, section

505(f), on its face, explicitly reads section 313 into section

402.”

2. Section 510. Section 510, in describing the extent of

state authority under the act, specifically distinguishes be-

tween a “standard or limitation” in subdivision (1)(A), and

a “requirement respecting control or abatement of pollu-

19. Section 505(f) provides in full:

“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 301 of this

title; (2) an effluent limitation or other limitation under sec-

tion 301 or 302 of this title; (3) standard of performance

under section 306 of this title; (4) prohibition, effluent stand-

ard or pretreatment standards under section 307 of this

title; (5) certification under section 401 of this title; or (6)

a permit or condition thereof issued under section 402 of this

title, which is in effect under this chapter (including a require-

ment applicable by reason of section 313 of this title).”

20. The petitioner also claims that section 505(f) is “bor-

rowed directly” from section 304(f) of the air act, 42 U.S.C.

§ 1857h-2(f). Pet. Brief, 31. However, the petitioner fails to

note that the provision in the air act contains no reference to a

“permit,” but merely defines a “requirement” as included within

a “control or prohibition respecting a motor vehicle fuel or fuel ad-

ditive.” Thus, whatever the other similarities between these pro-

visions in the water and air acts, the provision in the water act

expressly ties a “requirement” to a “permit,” and the air act does

not.

tion” in subdivision (1)(B). 33 U.S.C, (Supp. III) § 1370.”

The reference to a “standards or limitation” obviously con-

notes those “standards” and “limitations” described else-

where in the act. Hence, the reference to a “réquirement

respecting control or abatement of pollution” in section 510

—which is similar to the phrase appearing in section 313—

obviously connotes more than such “standards” and “limi-

tations.” Thus, section 313 is not limited to the “standards”

and “limitations” described elsewhere in the act, but also

includes permits issued under section 402.

The petitioner argues, however, that the word “require-

ment” in section 510 has a different meaning than the word

“requirements” in section 313. Pet. Brief, 22-23. He points

out that the word “requirements” in section 313 inferenttatly --:

includes the “standards” and “limitations” described else-

where in the act, and that the word “requirement” in section

510 is differentiated from, and hence arguably excludes,

such a “standard” or “limitation.” Jbid. He concludes that

section 510, so interpreted, sheds no light on the meaning of

section 313.

21. Section 510 provides in full:

“Except as expressly provided in this chapter, nothing in

this chapter (1) preclude or deny the right of any State

or political subdivision thereof or interstate agency to adopt

or enforce (A) any standard or limitation respecting dis-

charges of pollutants, or (B) any requirement respecting con-

trol or abatement of pollution ; except that if an effluent limi-

tation, or other limitation, effluent standard, prohibition,

pretreatment standard, or standard of performance is in effect

under this chapter, such State or political subdivision or inter-

state agency may not adopt or enforce any effluent limitation,

or other limitation, effluent standard, prohibition, pretreat-

ment standard, or standard of performance which is less

stringent than the effluent limitation, or other limitation,

effluent standard, prohibition, pretreatment standard, or stan-

dard of performance under this chapter; or (2) be construed

as impairing or in any manner affecting any right or juris-

diction of the States with respect to the waters (including

boundary waters) of such States.”

The petitioner’s argument ignores both the language

and purposes of section 510, however. The purpose of the

section is to insure that the act will not be construed as

preempting the states from adopting “standards,” “limi-

tations” and “requirements” at least as stringent as those

otherwise provided in the act.”” Thus, the disjunctive ref-

erence to a “standard or limitation,” and a “requirement

respecting control or abatement of pollution,” assures that

the states retain the power to impose higher “standards”

and “limitations” than those imposed by the Administrator

under seetions 301, 302, 303, 306 and 307, as well as higher

“requirements”—in the form of permits, licenses and other

forms of pollution control—than those imposed by the Ad-

ministrator or the states under the NPDES system estab-

lished by section 402(b).% By making specific reference

22. The report of the House of Representatives commented on

section 510 as follows:

“The Committee considers section 510 to be of extreme im-

portance in assuring the States of the right to adopt or enforce

provisions at least as strict as those established in this legisla-

tion. Thus, the Committee rejected in most instances sugges-

tions for preemption by the Federal Government and pre-

empted the States only where the situation warranted it based

upon the urgent need for uniformity such as in section 312(f)

relating to marine sanitation devices.” H.R. Rep. 92-911, 92d

Cong., 24 Sess. 136 (1972), 1 Legis. Hist. 823.

23. The NPDES system established by section 402 is limited to

the “discharge of a pollutant,” 33 U.S.C. (Supp. ITI) §§ 1342(a)

(1), 1311(a), a phrase defined in the act as a discharge into navi-

gable waters from a “point source,” such as a pipe or outfall. Jd. at

§ 1362 (12). This term is differentiated in the act from “pollution,”

which is defined as “the man-made or man-induced alteration of

the chemical, physical, biological, and radiological integrity of

water.” Id. at § 1362(19). Hence, although the phrase “discharge

of a pollutant” is limited to point source discharges, the word

“pollution” is not so limited, but also includes, for example, run-

offs from agricultural lands.

Section 510, in subdivision (1)(B), uses the word “pollution”

rather than the phrase “discharge of a pollutant,” thus insuring

to a “standard or limitation” in section 510, Congress

sought to forestall arguments by those who might argue

that the states may adopt systems—such as permit or licensing

systems—to prevent water pollution which is not caused by point

source discharges. Section 313 also uses the word “pollution” rather

than the phrase “discharge of a pollutant,” thus insuring that

federal agencies must comply with such state systems. If Congress

had intended otherwise, it certainly would have so expressed its

intention in section 313, rather than using a general phrase—‘re-

quirements respecting control and abatement of pollution”—virtu-

ally identical to that appearing in section 510. Thus, section 313

requires federal compliance with state programs adopted under

both sections 402(b) and 510.

This conclusion is also supported by the legislative history of

section 313. According to that history, the section is “similar to

one in existing law,” a reference to section 21(a) of the pre-1972

act. 84 Stat. 91, 107 (1970); S. Rep. No. 92-414, 92d Cong., 1st

Sess. 67 (1971), 2 Legis. Hist. 1485. Since section 21(a) antedated

the passage of the 1972 amendments, which initiated the NPDES

permit system, that section obviously required federal compliance

with state control measures other than NPDES programs, and two

federal district courts in California have so held. See California v.

Davidson, 3 E.R.C. 1157 (N.D. Cal. 1971); California v. Depart-

ment of the Navy, 371 F. Supp. 82, 83 (N.D. Cal. 1973) (dictum) ;

ef. Askew v. American Waterways Operators, Inc., 411 U.S. 325,

331 n. 3 (1973) (“requirements” in section 311 of the water act

held to include a state “licensing” system different from the

NPDES system).

This issue is important in states which, although not operating

their own NPDES programs, operate other permit or licensing

systems designed to control “pollution,” and seek to require federal

agencies to comply with such programs. This issue is also impor-

tant, however, in states which operate their own NPDES pro-

grams, and seek to control “pollution” that does not result from

point source discharges. For instance, California presently seeks

to require a federal agency, the U. S. Bureau of Reclamation, to

comply with conditions—designed to prevent “pollution” resul

from salinity intrusion—imposed by California in permits issu

to the federal agency to appropriate water for tion pur-

poses in California. Since salinity intrusion does not result from a

point source di , an NPDES permit is not required for such

an appropriation of water. However, salinity intrusion clearly

results in “pollution” within the act’s meaning. This conclusion

ap from Senator Muskie’s remarks during the congressional

debates to the effect that “it is the intent of the conferees and of the

bill that such salt water intrusion is pollution as defined in section

that the word “requirement” does not include those terms,

that the word should be construed—in the manner urged

by the petitioner here—without reference to its common

and ordinary meaning. Congress’ intent to provide such

clarity should not be construed as a basis for interpreting

the effect of sections 510 and 313 differently. Its effort to

strengthen the states’ authority in section 510 should not

be used to limit their authority in sections 402 and 313.

Hence, the word “requirement” in section 510 clearly means

the same thing as the word “requirements” in section 313.

It is not without significance that the petitioner, although

disagreeing with this interpretation, has failed to provide

an alternative meaning of the word “requirement” in sec-

tion 510.

3. Section 313. Section 313, after describing the obliga-

tion of federal dischargers to comply with state “require-

ments,” provides a clarifying example by using the phrase

“including the payment of reasonable service charges.” 33

U.S.C. (Supp. III) § 1323. The clear meaning of the phrase

is that Congress intended to authorize federal dischargers

to pay fees to a state for permit applications, such as ap-

plications for permits under section 402(b).* Such fees con-

502 of the bill.” 118 Cong. Rec. 16894, 92d Cong. 2d Sess. (1972).

Hence, California may require a permit for the appropriation of

such water pursuant to its broader powers in sections 510 and 313.

This issue is now in litigation in a federal district court in Califor-

nia. See State of California v. Morton, S-2924 (E.D. Cal.). The

Court need not address this issue in this case, of course, as this case

only involves the authority of the states to apply their NPDES

programs to federal dischargers.

24. Our construction of the phrase is supported by a recent

statement of Senator Howard Baker, a member of the Senate Com-

mittee on Public Works which drafted the water act. Senator

Baker stated:

“Tt is my recollection that the language on payment of such

charges was intended to authorize Federal agencies’ compli-

tain certain characteristics of a tax, and a state is without

power to levy a tax on federal agencies in the absence of

congressional authorization. See, e.g., United States v. AL

legheny County, 322 U.S. 174 (1944) ; Van Brocklin v. Ten-

nessee, 117 U.S. 151 (1886). Congress intended to assure

such authorization by inserting the clarifying phrase in

section 313.8

The petitioner argues, however, that the phrase was

inserted in section 313 only to authorize federal dischargers

to pay charges to local agencies attendant to the collection

and treatment of sewage from federal facilities. Pet. Brief,

24. Such charges are voluntarily incurred by the federal

discharger as the result of an agreement with the local

agency for sewage services; in the absence of such an

agreement, a federal agency is not under an obligation

to accept such services, nor a local agency under an ob-

ligation to provide such services. There can be no ques-

tion of the authority of federal agencies, aside from the

effect of section 313, to pay for services which they volun-

tarily receive under an agreement. Hence, as the Ninth

Circuit properly noted, the petitioner’s interpretation of

the phrase in section 313 would render it superfluous. 511

F.2d at 970.

ance with such requirements even if, for example, this meant

that an agency had to pay a charge or fee to a State as part

of a requirement that the agency obtain a State effluent per-

mit under section 402 of the act.” 120 Cong. Rec. S 16644

(daily ed. Sept. 16, 1974).

25. Federal dischargers have applied for permits from Cali-

fornia’s water agencies for several years prior to the passage of the

1972 amendments, and have paid the filing fees required by Cali-

fornia law. Appendix, 37, 40, 41. Congress may have been aware

of this administrative practice, and intended to codify it by insert-

ing the “reasonable service charges” phrase in section 313.

The petitioner concedes that it “might have been unnec-

essary” for Congress to authorize federal dischargers to

pay charges to local agencies for sewage services. Pet.

Brief, 24. However, he suggests that Congress, by author-

izing only the payment of service charges which are “rea-

sonable,” may have inserted the phrase to prevent local

agencies from assessing unreasonable service charges on

federal dischargers. Jd. at 24-25. This interpretation over-

looks the fact that local agencies cannot impose any service

charges on federal dischargers for sewage services, whether

reasonable or not, unless such dischargers seek such serv-

ices and agree to such charges. Hence, there is no need for

legislation to protect such dischargers from “unreasonable”

service charges.

Moreover, the petitioner’s interpretation is inconsistent

with the basic purpose of section 313. The section, in direct-

ing that federal dischargers “shall” comply with state

requirements to the same extent that others are “subject”

to such requirements, obligates federal dischargers to com-

ply with certain state laws, rather than protects them from

this obligation. The purpose of the section was to combat

the unresponsiveness of such dischargers to the nation’s

water quality goals, not the states’ efforts to meet those

goals. S. Rep. No. 92-414, 92d Cong., Ist Sess. 67 (1971),

2 Legis. Hist. 1485. It can hardly be suggested that the

section, or any part thereof, was intended to relax the

restraints imposed on federal dischargers under the act.

F "Secrlons 300 and 308 Do Not Extend to Store Permit Programs Adopted

Under Section 402(b).

The petitioner argues that the states are unable to de-

velop permit programs with respect to federal dischargers

which meet the standards set forth in section 402(b). Pet.

Brief, 25-29. That section requires, as a condition of the

Administrator’s approval of a state permit program, that

the state have “adequate authority,” inter alia, to “apply,

and insure compliance with,” the provisions of sections

308 and 306, and to “inspect, monitor, enter and require

reports” under section 308. 33 U.S.C. (Supp. III) §§ 1342

(b)(1)(A), 1342(b)(2)(B). Section 308, which authorizes

the Administrator to inspect, monitor and enter a discharg-

er’s facilities in enforcing certain provisions of the act, id.

at § 1318, also authorizes the states to develop procedures

for inspection, monitoring and entry, but exempts federal

dischargers from such procedures. Id. at § 1318(c). Section

306, which authorizes the Administrator to develop “na-

tional standards of performance” for new sources of water

pollution, id. at § 1316, authorizes the states to develop a

procedure for applying and enforcing such standards, but

exempts federal dischargers from such a procedure. /d. at

§ 1316(c). Since, concludes the petitioner, the states are

unable to develop permit programs for federal dischargers

which meet the standards of section 402(b), Congress did

not intend for the states to apply such programs to fed-

eral dischargers.”

However, the petitioner’s argument is unsupported by

the language, purposes or legislative history of section

402(b). That section authorizes a state program entirely

different from the programs authorized under sections 308

and 306. The fact that Congress provided an express ex-

emption for federal dischargers under the latter sections

shows that Congress knew how to exempt such dischargers

from state programs. The fact that no similar exemption

was expressly provided for federal dischargers from state

permit programs under section 402(b) shows that no such

26. The petitioner notes that the Ninth Circuit, in the decision

below, failed to consider this argument. Pet. Brief, 26 n. 55. The

petitioner fails to note, however, that he failed to present this

argument to the Ninth Circuit.

exemption was intended. Cf. Continental Casualty Co. v.

United States, 314 U.S. 527, 533 (1942). If Congress had

intended to exempt such dischargers from state permit

programs, it would undoubtedly have so provided with the

clarity which appears in sections 308 and 306. Thus, the

fact that exemptions were expressly given to federal dis-

chargers in the latter sections strengthens—not, as con-

cluded by the petitioner, weakens—the conclusion that a

similar exemption was not intended under section 402(b).

Therefore, although states may not independently monitor

federal facilities under section 308, or develop new source

performance standards for federal dischargers under sec-

tion 306, they can acquire similar authority under section

402(b) in instances where their permit program is approved

by the Administrator.

It can hardly be suggested that Congress’ failure to pro-

vide an express exemption for federal dischargers in section

402(b) is the product of accident rather than design. The

NPDES permit system conceived in that section is the cen-

tral mechanism by which the act’s objectives are to be

achieved, as we have seen. Moreover, the programs author-

ized under sections 308 and 306, and the exemptions for fed-

eral dischargers from such programs, are patterned after

identical programs and exemptions found in the air act. See

42 U.S.C. §§ 1857¢-6(c), 1857¢-9(b). However, the air act

does not provide for a program similar to the NPDES per-

mit program found in the water act. This strengthens the

inference that a state NPDES program, which is the major

innovation of the 1972 amendments to the water act, is fully

applicable to federal dischargers.

In fact, the language of section 402(b) itself fails to sup-

port the petitioner’s position. That section requires, as a

condition of the Administrator’s approval of a state permit

program, that the state have “adequate authority” to issue

permits which insure compliance with the requirements of

sections 308 and 306. 33 U.S.C. (Supp. IIT) § 1342(b). The

quoted reference is clarified by the language of the preced-

ing sentence, which requires that “the laws of such State”

provide “adequate authority” to carry out the program. /bid.

Thus, the section does not require that the state have in-

dependent authority under sections 308 and 306 to operate

programs under those sections. Rather, the section only re-

quires that state law itself provide authority to the appro-

priate state agency to operate such programs, as part of the

NPDES program. The ianguage relied on by the petitioner

was merely intended to require the state to build certain

features into its permit structure, not to limit the size or

scope of the structure. It was intended only to require a

state program to attain a minimum level of acceptability,

not to impose a maximum level of authority.”

If any confirmation of our view is necessary, it is found

in the legislative history of section 402(b) itself. That sec-

tion, as originally passed by the House of Representatives,

expressly exempted federal dischargers from the states’

authority under an approved NPDES program to “inspect,

monitor, enter and require reports” under section 308. H.R.

11896, 92d Cong., 2d Sess. § 402(a)(5) (1972), 1 Legis. Hist.

1054. However, this exemption was eliminated by the Con-

ference Committee, and was omitted from the bill which

27. This conclusion is also supported by the House Report,

which discussed section 308 as follows:

“The individual States a in the permit program

authorized by section 402 are required by section 402 to have

the authority to inspect, monitor, enter, and require [reports]

to at least the same extent as required in section 308. Such

State actions are not a delegation of Federal authority.” H. R.

Rep. 92-911, 92d Cong., 2d Sess. 114, 1 Legis. Hist. 801.

The report thus makes clear that the reference in section 402(b)

to section 308 is not an incorporation of the limitation included

in the latter section, but a reference to the powers necessary under

state law for approval of an NPDES permit system.

Congress finally approved.” The House—in exempting fed-

eral dischargers from one of the elements required to be in-

cluded in a state permit program—clearly intended for such

dischargers to be subject to the remaining elements, includ-

ing the element relating to new source performance stand-

ards under section 306. More importantly, the Conference

Committee—in removing the exemption—clearly intended

for such dischargers to subject to all elements of a state

permit program.

Congress’ decision to give the states authority under

section 402(¢b) which they independently lack under sec-

tions 308 and 306, is based on sound public policy. The

primary purpose of allowing a state to enter federal fa-

cilities, monitor federal operations and inspect federal

records is to allow the state to acquire information in

issuing, administering and enforcing NPDES permits

applicable to federal dischargers.” Thus, there is

28. As originally passed by the House, section 402 (b) (2) (B)

provided that, as a condition for the Administrator’s approval of

a state permit program, the state must have authority, “except

with respect to sources owned or operated by the United States,

to inspect, monitor, enter, and require reports to at least the same

extent as required im section 308 of this Act.” H.R. 11896, 92d

Cong., 2d Sess. § 402(b)(2)(B) (1972), 1 Legis. Hist. 1056. The

Conference Committee subsequently noted, in commenting on that

section :

“Subsection (b)(2)(B) is revised to remove the exception

for federally-owned and operated point sources from inspee-

tion, monitoring and reporting requirements.” Conf. Rep. (S.

PA > oe 92d Cong., 2d Sess. 139 (1972), 1 Legis.

ist.

29. The House report noted that the purpose of such monitor-

ing was “basically for control of the discharge of pollutants and

not the gathering of data,” and that the right to inspect “is lim-

ited to control of Sutetee peels son et Se ee

standard setting.” Pet. Brief, 30 n. 60.

little reason to give a state such control over federal dis-

chargers if the Administrator—rather than the state—ad-

ministers the NPDES permit program in that state. The

same reason does not apply, however, in instances where the

state operates its own NPDES program, It would be difficult

for a state to effectively administer its NPDES program if

it lacks authority over a class of dischargers—federal dis-

chargers—which, according to the act’s legislative history,

have been notoriously unresponsive to the nation’s water

quality goals.* Moreover, as we shall discuss fully below,

the specific procedures which the states must follow in

adopting, administering and enforcing their NPDES pro-

grams limit the extent to which they can interfere with fed-

eral operations. For these reasons, Congress wisely chose

not to exempt federal dischargers from state NPDES pro-

grams, as it exempted such dischargers from lesser state

programs under the act.*

30. See quotation in text on page 53, infra.

31. The petitioner also notes that federal dischargers are ex-

empt from section 401(a) of the water act, which requires- appli-

eants for federal licenses and permits—if such authorize discharges

into navigable waters—to secure a certification from the state that

the discharge will be in compliance with certain provisions of the

act. 33 U.S.C. (Supp. III) § 1341(a). The section also provides

that the Administrator shall give such a certification in instances

where the state lacks authority to do so. Ibid. The petitioner does

not claim that a state certification under section 401(a) is a neces-

sary requisite of a state-issued permit under section 402(b), but

only that the programs authorized by the sections are “analogous.”

Pet. Brief, 33. Howe-er, the fact that Congress expressly exempted

federal dischargers from the states’ authority to issue certifications

under section 401(a), and expressly gave such authority to the

Administrator, demonstrates anew that Congress knew how to

exempt such dischargers from state control. Hence, the exemption

in that section strengthens the conclusion that no such exemption

was intended under section 402(b). Thus, the exemption for fed-

eral dischargers in section 401(a) is another example of the limita-

tions, such as those also found in sections 308 and 306, which

Congress placed on states which do not administer their own permit

programs under section 402(b).

F. The Petitioner's Distinction Between “Substantive” and “Procederai” Re-

quirements Is Administratively Unworkabie, and Not Supported by the Act.

The weakness of the petitioner’s theory of this case is

particularly apparent in its actual operation. He concedes

that the states may impose “substantive” requirements—

in the form of “effluent limitations”—against federal dis-

chargers, but denies their authority to subject such dis-

chargers to “procedural” requirements, such as permits

issued under section 402(b). This suggested distinction

ignores the fundamental interrelationship between “sub-

stantive” and “procedural” requirements under the act,

and the extent to which the power to issue the one implies

the power to issue the other.

An “effluent limitation” is defined in the act as a restric-

tion imposed by the states or the Administrator on “quan-

tities, rates, and concentrations of chemical, physical, bio-

logical, and other constituents” discharged from point

sources into navigable waters. 33 U.S.C. (Supp. IT)

§ 1362(11). Hence, an “effluent limitation” includes numeri-

cal limitations on the quantity and quality of pollutants

which may be discharged into receiving waters. Such limi-

tations are to be developed, first, for categories and classes

of dischargers by regulations issued by the Administrator

or the states, id. at §§ 1311, 1312, 1313, 1316, 1317, 1370,

and, second, for individual dischargers by the issuance of

NPDES permits under section 402, id. at § 1342. In fact,

section 505(f), as we have noted, describes an “effluent

limitation” as including a “permit or condition thereof

issued under section 402 of this Act... .” Id. at § 1365(f).

Thus, an “effluent limitation” may even include a permit

issued to a discharger, but at least includes limitations on

the quality and quantity of effluent discharges inserted as

a condition in the permit.”

32. Under California’s water quality program, such numerical

measurements typically include, inter alia, maximum and mimimum

Re ee te

An “effluent limitation” is also defined in the act as “in-

cluding schedules of compliance.” Jd. at § 1362(11). The

latter phrase is in turn defined as “a schedule of remedial

measures including an enforceable sequence of actions or

operations leading to compliance with an effluent limita-

tion.” Jd. at § 1362(17). Hence, an “effluent limitation” in-

cludes not only numerical limitations on the quantity and

quality of effluent discharges, but also time limitations—

to be enforced by specific remedial measures—within which

such numerical limitations must be met. Since the numeri-

cal limitations may be inserted as conditions in a permit,

the time limitations may also be so inserted. Thus, the

petitioner, by conceding the states’ authority to develop

“effluent limitations” applicable to federal dischargers, con-

cedes the states’ authority to formulate conditions—relat-

ing both to numerical and time limitations—for permits

issued to such dischargers.

The states’ authority to formulate such conditions im-

plies authority to administer its conditions as well. Other-

wise, a state would be unable to change its conditions in

light of changed circumstances, such as a change in the

quality of the effluent discharge or of the receiving waters.

If a state lacked flexibility to thus change its conditions,

it would have no recourse but to bring a legal action when-

ever the conditions were violated. Thus, to deprive a state

of its administrative remedies, in instances when federal

dischargers violate conditions formulated by the states,

would limit the state to pursuit of its judicial remedies.

This result would, of course, promote litigation between

state and federal agencies, rather than promote reconcilia-

levels of acidity (“pH”), maximum levels of bio-chemical oxygen

demand (“BOD”) and maximum levels of suspended solids which

may be permissibly contained in discharges of effluent by a par-

ticular disecharger over a particular period of time.

tion of their differences by administrative means. Hence,

the states clearly have authority not only to formulate con-

ditions applicable to federal dischargers, but to administer

such conditions as well.

The authority to formulate and administer such condi-

tions clearly implies authority to conduct an administrative

hearing for that purpose. Such a hearing enables the state

to evaluate the many factors—such as the nature of the

activity resulting in the effluent discharge and the nature

of the receiving waters—that bear upon the numerical lim-

itations to be included as such conditions. For instance,

discharges from a lumber mill create different problems

than discharges from a municipality providing sewage

service to a large metropolitan area; discharges into a

shallow, interior stream create different problems than dis-

charges into the ocean. Further, such a hearing enables

the state to evaluate other factors—such as the discharg-

er’s capacity to meet these numerical limitations—which

bear upon the time limitations to be included as conditions

in the permit. Finally, such a hearing enables the state,

in instances when its limitations are violated, to ascertain

the precise reasons for the violation, thus assisting the

state in determining what course of action to take in ad-

ministering the limitations.

Thus, a federal discharger, unfettered by the obligation

to participate in administrative hearings conducted by the

state, could prevent the state from acquiring, or even know-

ing of, information relevant to the formulation and admin-

istration of “effluent limitations,” notwithstanding the

petitioner’s concession that such dischargers are subject

to such limitations.”

33. The impracticality of the petitioner’s position becomes par-

ticularly apparent when viewed in light of California’s NPDES

The petitioner argues, however, that section 313 is

“silent” as to how the states are to formulate and admin-

ister conditions for permits issued to federal dischargers,

and thus that such dischargers need only “cooperate” with

the states by supplying such information as, in the opinion

of the discharger, is sufficient for that purpose. Pet. Brief,

30 n. 60.*%* Section 313, however, is not “silent” on this sub-

ject, but rather—by requiring federal dischargers to com-

ply with state requirements “to the same extent that any

person is subject to such requirements”—requires federal

dischargers to participate in administrative hearings con-

ducted by the states to the same extent that others must so

participate. Since California’s NPDES program, which has

program, the first to be approved by the Administrator. Cal. Wat.

Code §§ 13370-13389 (Supp. 1975). Under California’s program,

any person who discharges, or proposes to discharge, pollutants

into navigable waters in California must submit a report of the

discharge to the appropriate regional water quality control board.

Id. at § 13376. Thereafter, the conducts a hearing to deter-

mine whether, and under what conditions, to issue “requirements,”

the equivalent of a permit, to the discharger. Id. at §§ 13374,

13377-13379. The requirements, which are subject to review .every

five years, id. at § 13380, must insure compliance with the effluent

limitations and standards contained in the federal water act, id. at

§§ 13377, 13379. If the nature of the discharge changes, the re-

quirements must be modified or terminated. Id. at § 13381. If the

requirements are violated, the board, after a further hearing, may

issue a cease-and-desist order. Id. at §§ 13301, 13386(b), 13387(a).

If the cease-and-desist order is violated, the board may seek judi-

cial relief. Id. at §§ 13385, 13386, 13387. Thus, if the board cannot

conduct an administrative hearing in issuing its requirements, it

cannot effectively formulate the contents of such requirements.

If, when its requirements are violated, it cannot conduct an ad-

ministrative hearing in issuing a cease-and-desist order, it cannot

adapt its requirements to new exigencies, and thus cannot effec-

tively administer its requirements.

34. According to the petitioner, the obligation of federal dis-

chargers to “ te” with the states is based solely on an execu-

tive order ieee tor the President, and a federal regulation issued

by the Administrator. Pet. Brief, 30 n. 60. Under this interpreta-

tion, this obligation could thus be withdrawn at the whim of the

President or the Administrator.

Ee eT en a ee

been approved by the Administrator, requires all discharg-

ers to participate in such hearings, section 313 imposes the

same obligation on federal dischargers in California. In

fact, the act specifically authorizes a “public hearing” to

be conducted for the purpose of formulating “conditions”

in NPDES permits. 33 U.S.C. (Supp. IIT) § 1342(a).

We thus conclude that the states—through the adminis-

trat've hearing process—may formulate and administer

conditions in permits issued to federal dischargers. Given

this conclusion, it would be unwise, from the standpoint of

sound administrative practice, to forbid the states to issue

the permit which contains such conditions, Otherwise, a

federal discharger would be required to go to the state to

obtain its conditions, go to the Administrator to obtain its

permit, and go back to the state to have its conditions

changed. Such an unprecedented bifurcation of the admin-

istrative process serves no useful purpose, and is awkward,

cumbersome and inefficient. The act provides, to the con-

trary, that:

“Tt is the national policy that to the maximum extent

possible the procedures utilized for implementing this

Act shall encourage the drastic minimization of paper-

work 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.” Jd. at § 1251(f).*

Thus, Congress clearly intended that the authority to for-

mulate and administer conditions in a permit, and the

35. Additionally, the House report commented on section 402

as follows:

“A system of permits which requires duplicative effort or

destroys the initiative of the States and local governments is

wasteful and non-productive.” H.R. Rep. No, 92-911, 92d

Cong,. 2d Sess. 125 (1972), 1 Legis. Hist. 812.

authority to issue the permit itself, would reside in the

same agency.

In fact, the petitioner, in urging a bifurcation of the

administrative process, does not defend this result as con-

sistent with sound administrative practice. Rather, he

argues that the authority to issue a permit—as contrasted

with the authority to conduct an administrative hearing—

enables the state to acquire “control” over federal dis-

chargers, and that this result is inimical to the doctrine of

sovereign immunity. Pet. Brief, 30 n. 60. We will fully

explore below the extent to which Congress, rather than

forbidding such state “control,” tightly cireumscribed it by

providing limited exemptions for federal dischargers from

state permit programs, and by imposing restrictions on the

states in the adoption, administration and en*orcement of

such programs. For the moment, however, we need only

note that whatever “control” a state acquires over federal

dischargers under the act derives from their authority to

formulate and administer conditions in permits issued to

federal dischargers, not their authority to issue the permit

itself. The conditions in such permits—relating to the

numerical and time limitations applicable to the discharger

—define the nature of the discharger’s obligation. Thus, the

issuance of the permit itself is merely a ministerial act. If

a state may define the nature of the obligation for federal

dischargers—as conceded by the petitioner—it acquires no

greater “control” over such dischargers by performing the

ministerial act of issuing a permit describing the obligation.

If the doctrine of sovereign immunity has been waived

sufficiently to allow the states to determine the steps which

must be taken by federal dischargers in controlling water

pollution, there is no reason to retain the doctrine with

respect to the issuance of a permit setting forth those steps.

Hence, the petitioner’s distinction between “substantive”

and “procedural” requirements, which must be rejected for

sound administrative reasons, is not supported by any con-

stitutional reasons.

Since the petitioner concedes the states’ authority to

develop the “substantive” contents of permits issued to

federal dischargers, one might wonder why the parties in

this case are so concerned about the states’ ministerial

authority to issue the permit itself. The answer lies in

the fact that the petitioner—by seeking to deprive states,

such as California, of authority to conduct administrative

hearings for federal dischargers—is seeking to deprive

such states of the means to formulate and administer the

conditions which comprise the “substantive” contents of

the permits. Hence, the petitioner, although conceding in

theory the states’ authority to impose conditions, seeks in

practice to deny the states the benefit of that concession.

The petitioner apparently seeks to create a de facto void

which he hopes to fill by formulating and administering his

own conditions. In fact, many federal dischargers in Cali-

fornia, endorsing the petitioner’s interpretation of the act,

are now refusing to comply with any conditions imposed

by California.” Thus, this case, rather than presenting a

narrow procedural question, presents the broad question

whether the states or the Administrator will be primarily

responsible for controlling water pollution by federal

agencies. Congress has already answered this question, by

directing such agencies to comply with state requirements

36. For instance, the U. S. Air Force operates the Norton Air

Force Base and Point Arena Radar Station in California. The Air

Force refuses to seek NPDES permits from California in discharg-

ing waste from the bases into California’s waters. The Adminis-

trator has issued permits for discharges from both bases, and has

refused to insert conditions in the permits as requested by Cali-

fornia’s water quality control board. Appendix, 37, 41, 47, 51.

One ne oe

i a a a tie 1 la neem em ems meee

“to the same extent that any person is subject to such

requirements. ... ” 33 U.S.C. (Supp. ITI) § 1323. The peti-

tioner, by seeking to expand his power at the expense of

the states, is seeking to circumvent a clear expression of

the congressional intent.”

G. The Legislative History of the Water Act Does Not Indicate That Federal

Dischargers Are Exempt from NPDES Programs Operated by the States

Under Section 402(b).

We thus conclude that nothing in the water act, viewed in

light of its language, structure and objectives, supports the

petitioner’s claim that federal dischargers are exempt from

permits issued by the states under section 402(b). However,

the petitioner argues that his claim is supported by the

act’s legislative history. He notes that the congressional

committee reports preceding the act’s passage, in describing

the effect of section 313, made reference to “effluent limi-

tations,” “other limitations,” “effluent standards”—and even

“requirements”—but made no reference to permits issued

under section 402(b). H.R. Rep. No. 92-911, 92d Cong., 2d

Sess. 118-119 (1972), 1 Legis. Hist. 805-806; S. Rep. No. 92-

414, 92d Cong., Ist Sess. 67 (1971), 2 Legis. Hist. 1485; Conf.

Rep. (S. Rep. No. 92-1236), 92d Cong., 2d Sess. 135 (1972),

37. We are baffled by the petitioner’s additional argument that

section 505, which authorizes suits by private citizens to enforce

the act, also provides authority for the states to enforce their

effluent limitations against federal dischargers, and that in this

way Congress took care of the “loophole” caused by the states’

inability to enforce their permits against such dischargers. 33

U.S.C. (Supp. III) § 1365; Pet. Brief, 30 n. 61. The act contains

no such “loophole” except under the petitioner’s interpretation.

Section 402(b)(7) authorizes the states to adopt procedures for

the enforcement of their permit programs, including procedures

for abatement and for civil and criminal penalties. 33 U.S.C.

(Supp. III) § 1342(b)(7). Therefore, the act contemplates that

the states will enforce their effluent limitations by enforcing their

own permits under section 402(b)(7), not that the states will

enforce their limitations by the remedies made available to private

citizens in section 505.

1 Legis. Hist. 318; Pet. Brief, 34-38. According to the peti-

tioner, this shows that the states lack authority to issue

permits to federal dischargers under the act.

A more accurate analysis of these reports, however, war-

rants the conclusion that the reports are silent with respect

to the issues in this case. The random scraps of termin-

ology collected by the petitioner reveal only that federal

dischargers are subject to effluent limitations issued by the

states, not whether such dischargers must comply with

permits issued by the states in achieving that objective.

Thus, the reports summarize the act’s goals, and do not

spell out the method by which these goals are to be attained.

In the words of the Fifth Circuit, in considering similar

reports relevant to the air act, the reports are “more accu-

rately read as a statement of the ultimate goal of the pro-

vision rather than as a road map of how to get there.”

Alabama v. Seeber, 502 F.2d 1238, 1246 (5th Cir. 1972), cert.

pending, No. 75-851.

In fact, the references to “effluent limitations” in the

committee reports imply the power to issue a permit, rather

than the opposite. We have already noted that the authority

to issue such limitations is equivalent to the authority to

impose conditions in a permit, which in turn implies author-

ity to issue a permit. These powers are so fundamentally

interrelated, so vitally linked in the functioning of

a continuous and ongoing process, as to be incapable of the

facile distinction urged by the petitioner. In fact, section

505(f), which describes an “effluent standard or limitation”

as including a permit issued under section 402, 33 U.S.C.

(Supp. IIT) §1365(f), perhaps indicates the sense in which

the committee reports made reference to “effluent limi-

tations” and “standards.” In any event, whether these

terms include a permit, they clearly imply the issuance

of a permit.

— es

H. The Administrator's Interpretation of the 1972 Amendments Is, of Itself,

Not Entitied to Weight in Construing the Meaning and Effect of the

Amendments.

A well-established rule of statutory construction requires

weight to be given to a long-standing interpretation of a

statute by the agency charged with its enforcement. See,

e.g., Zemel v. Rusk, 381 U.S. 1 (1965) ; Udall v. Tallman, 380

U.S. 1 (1964). The petitioner argues that his position, which

is supported by a regulation issued by the Administrator,

40 C.F.R. § 125.2(b) (1973), thus gains force ffom this rule

of construction, Pet. Brief, 39-40.

However, this rule of construction has no significance in

this litigation.** First, the purpose of the rule is to give

weight to an administrative interpretation rendered con-

temporaneously with the statute’s passage, or an interpre-

tation which has been unchallenged for such a period of

time as to justify the conclusion that the interpretation cor-

responds with the congressional intent. 2A Sutherland,

Statutory Construction (4th ed.) 251-252, 255. Here, how-

ever, the Administrator issued his regulation substantially

after the passage of the 1972 amendments, the regulation

was immediately challenged by the states in this litigation

and comparatively little time has elapsed since the regula-

tion was issued.** Second, the Administrator’s regulation

38. The interpretation of Senator Howard Baker, a member of

both the Senate and conference committees which considered the

bills which were finally enacted, is obviously entitled to more

weight than that of the Administrator, and the senator’s interpre-

tation supports the position of the states in this case. See n. 24,

supra.

39. The petitioner’s citations on this point are inapposite. See

Pet. Brief, 40 n. 76. In Red Lion Broadcasting Co. v. Federal

Communications Commission, 395 U.S. 367, 382 (1969), the Court

gave effect to “thirty years of consistent administrative construc-

tion left undisturbed by Congress .. . .” Similarly, in New York

Dept. of Social Services v. Dublino, 413 U.S. 405, 420 (1973), the

Court gave effect to a “settled administrative pvolicy.” In Zemel v.

Rusk, 381 U.S. 1 (1965), the Court recognized an administrative

construction of more than forty years’ duration.

was rendered after California applied for approval of its

NPDES program, and after the Administrator approved

the program.* This sequence suggests that the Administra-

tor’s regulation was issued to bolster his position in antici-

pation of the litigation now before the Court. Third, the

states—rather than the Administrator—have the primary

responsibility for adopting, administering and enforcing

NPDES programs, as we have seen. Thus, the interpre-

tation given by the states to their authority under the water

act should, under this rule of construction, carry no less

weight than that of the Administrator. Fourth, and most

importantly, the issue in this case is of such national im-

portance that it should not be resolved in favor of the peti-

tioner, as against the states, merely because the petitioner

says so, For all these reasons, the rule of construction cited

by the petitioner, which offers judicial guidance in many

cases, offers no such guidance here.**

ll. The Constitutional Principles Contained in the Supremacy

Clause and Plenary Powers Clause Do Not Bar the Issuance

of State Permits to Federal Dischargers Under the Water Act,

Because the States Are Carrying Out Congressional Policy in

the Manner Directed by Congress.

The petitioner argues that this case should be decided in

accordance with the traditional principles of federalism con-

40. California applied to the Administrator for approval of its

NPDES permit program on February 15, 1973, and provided sup-

plementary information on April 10, 1973. Appendix, 15. The

program was approved by the Administrator on May 14, 1973. Id.

at 18-19. The Administrator issued his regulation, limiting the

effect of state NPDES permit programs to non-federal dischargers,

on May 22, 1973. 38 Fed. Reg. 13530 (1973).

41. The petitioner also points out that his position is sustained

by a presidential executive order. Exec. Order No, 11752, 38 Fed.

Reg. 34793-34797 (1973); Pet. Brief, 40 n. 77. However, as noted

by the Ninth Circuit, this executive order was issued after this

litigation had commenced, a sequence which suggests that the exec-

utive order was intended to strengthen the petitioner’s position in

this case. 511 F.2d at 971 n. 13.

—— —— ~— eee

eC A a 3

CO ———————_—————

tained in the Supremacy Clause and Plenary Powers Clause

of the U. S. Constitution, which—in the absence of con-

gressional authorization—prohibit the states from regu-

lating federal activities or federal enclaves. Pet. Brief, 17-

20.% We do not assert, of course, that the states have power

to regulate federal activities on federal enclaves, or else-

where, in the absence of congressional authorization;

rather, we assert that such authorization is found in the

water act. We do not, and could not, urge that conflicts be-

tween federal and state law be resolved in favor of state

law; rather, we urge that no such conflict exists here, that

the position of the states in this case is based fully on fed-

eral law. Nor does the petitioner claim to perceive any such

conflict, given our interpretation of the water act. Rather,

he claims only that constitutional principles have tradi-

tionally operated to bar state regulation of federal activi-

ties or enclaves, and that this tradition should be followed

in this case in the absence of a clear and unambiguous

congressional expression to the contrary. Pet. Brief, 17-20.

42. Under the Supremacy Clause, a state may not interfere

with the performance of a federal function, in the absence of con-

geen authorization. U. 8. Const., Art. VI, Cl. 2; McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316 (1819); Johnson v. Maryland,

254 U.S. 51 (1920); Ohio v. Thomas, 173 U.S. 276, 283 (1889);

Mayo v. United States, 319 U.S. 441, 446 (1943). Under the

Plenary Powers Clause, Congress has “exclusive” legislative power

over federal enclaves, and a state may not apply its laws on such

enclaves in the absence of congressional authorization. U. S. Const.,

Art. I, § 8, Cl. 17; Paul v. United States, 371 U.S. 245, 263 (1963) ;

James v. Dravo Contracting Co., 302 U.S. 134 (1937); Silas Mason

Co. v. Tax Comm’n, 302 U.S. 186 (1937).

However, Congress acquires “exclusive” legislative power over a

federal enclave only if the state “consents” to federal acquisition

of the enclave, or thereafter “cedes” its legislative authority over

the enclave to the federal government. Paul v. United States, supra

at 264; James v. Dravo Contracting Co., supra at 141-142; Silas

Mason Co. v. Tax Comm’n, supra at 197. Thus, the Plenary Powers

Clause does not bar state regulation of a federal enclave in in-

stances where the state has not given such “consent” or otherwise

“ceeded” its authority. Ibid.

We believe, of course, that Congress has clearly and un-

equivocally indicated that federal dischargers are subject to

state permit programs under the act. Moreover, the oft-

repeated federal principles cited by the petitioner have

traditionally been applied in cases where the state asserted

its own inherent, reserved powers to achieve a policy

peculiar to the state; the only question in those cases was

whether Congress meant to tolerate the exercise of such

powers over federal activities or enclaves. For instance, in

Ohio v. Thomas, 173 U.S. 276 (1889), the state sought to

regulate the sale and use of oleomargarine at a federal sol-

diers’ home, pursuant to its police power ; the Court rejected

the states’ position on grounds that Congress did not intend

for the state to so apply its laws. These constitutional

principles are of less help in this case, however. Here, the

states—rather than acting pursuant to their reserved

powers to achieve policies set by the states—are acting pur-

suant to a congressional directive to achieve a national goal

set by Congress. The power asserted by the states in this

ease thus flows from the congressional power, as contained

in the water act, not from the states’ police powers or other

residual powers. Having been enlisted by Congress to spear-

head the nationwide fight against water pollution, the states

are functioning as Congress’ own legions, not as defenders

of their own bastions of sovereignty. California seeks only

to fulfill its role as an instrument of congressional policy,

in implementing a permit system denominated as the

National Pollutant Discharge Elimination System. Nothing

in the constitutional principles cited hy the petitioner sug-

gests an inference that the states may not so act, even to

the extent of regulating federal activities and enclaves.

Underlying these constitutional principles, of course, is

the fear that a state may impose undue burdens on the per-

formance of federal functions, thus impeding the objec-

tives of federal law. See, e.g., Johnson v. Maryland, 254 U.S.

51 (1920). We could respond simply that Congress con-

cluded that the objectives of the water act outweigh the risks

of such burdens. Or we could respond that, since the states

convededly have authority to impose such burdens by virtue

of their authority to impose “substantive” limitations on

federal dischargers, little additional burden results from

their “procedural” authority to issue permits.** However,

neither response wholly dispels the fear that some states,

in moments of unbridled enthusiasm, might impose condi-

tions on federal dischargers which unduly impair the per-

formance of federal functions, or even threaten the national

interest.

Congress, aware of this danger, avoided it not by prevent-

ing the states from exercising any control over federal dis-

chargers, but rather by building safeguards in the act to

limit the extent of such control. Section 313, for example,

authorizes the President to exempt effluent sources of

federal agencies from state permit programs if such is in

the “paramount interest” of the United States. 33 U.S.C.

(Supp. ITI) § 1323. The section also authorizes the President

to provide such an exemption if funds are unavailable to

meet the act’s requirements, but only if such funds were

requested by the President but not approved by Congress.

Ibid. These provisions allay any fear that the states will un-

duly impair the performance of vital federal functions, and

thus serve to protect the same national interests as the con-

stitutional principles cited by the petitioner.

Moreover, additional safeguards are found in the elab-

orate procedures devised by Congress for the adoption,

43. The Ninth Cireuit, in the case below, characterized the

function of such permits as to “certify” compliance with the “limi-

tations” and “standards” of the act. 511 F.2d at 968.

administration and enforcement of state permit programs.

First, the act provides that a state NPDES permit program

must contain nine elements, none of which—as noted by the

petitioner—may be excluded at the option of the state. 33

U.S.C. (Supp. ITI) §§ 1342(b) (1)-1342(b) (9) ; Pet. Brief, 25

n. 54. Second, the act provides for extensive federal review

of such programs, both before and after their adoption. For

instance, such programs cannot become effective unless

approved by the Administrator, 33 U.S.C. (Supp. IT)

§ 1342(b), and such approval must be withdrawn if the state

fails to properly administer its program, id. at § 1342(c).

The Administrator can disapprove the issuance of an indi-

vidual permit by the state, id. at § 402(d)(2), and can en-

force a state permit if the state fails to do so, id. at § 1319.

Thus, the states’ discretion under the act is sufficiently cir-

cumscribed to dispel any fear that the states will unduly

impair the performance of federal functions. If such an

impairment nonetheless results, Congress retains the ulti-

mate power to revoke the authority of the states, individ-

ually or collectively, under the act.

This statutory scheme thus fails to present the constitu-

tional concerns raised in cases where Congress has adopted

state law as a form of “surrogate” federal law.** For in-

stance, in United States v. Sharpnack, 355 U.S. 286 (1958),

the Court considered the constitutionality of the Assimila-

tive Crimes Act of 1948, which made the laws of each state

—including laws yet to be enacted—applicable on federal

enclaves within the state. The Court, in upholding the con-

stitutionality of the act, noted that such state laws become

part of the body of the federal law, and stated:

44. There are other examples of such federal laws. See, e.g.,

Outer Continental Shelf Act, 43 U.S.C. § 1333(a)(2); Federal

Tort Claims Act, 28 U.S.C. § 1346(b).

ee cet | ee os ae ee ee

“This procedure is a practical accommodation of the

mechanics of the legislative functions of State and

Nation in the field of police power where it is especially

appropriate to make the federal regulation of local con-

duct conform to that already established by the State.”

Id. at 294.

Here, Congress did not even proceed to the constitutional

brink, as it did in the Sharpnack case. The water act does

not assimilate the varying and random laws of the state

into a disjointed body of federal law; rather, it provides

specific procedures which the states must follow in achieving

a specific national objective, and provides for federal review

of state action. Rather than blindly dumping all the states’

laws into a federal hopper, the act carves out a narrow

pathway for the states to tread in arriving at a particular

destination, and employs a federal guide to assure that the

states do not lose their way.

In authorizing the states to bear the primary burden

in preventing water pollution, and directing federal dis-

chargers to comply with state requirements towards that

end, Congress achieved an accommodation between federal

and state interests which significantly contributes to the

act’s objectives. Many states have acquired a keen famili-

arity, borne out of long experience, with local water quality

problems. These problems vary from state to state, and

community to community. For instance, the water quality

problems of the populous, industrial northeastern states

contrast sharply with those of the semi-arid, agrarian west-

ern states. Congress obviously did not intend—except as

otherwise expressly provided in the act—for the Adminis-

trator to develop national standards for federal discharg-

ers, oblivious to state and local water needs and uses.

Rather, Congress intended for such dischargers to bear,

equally with other dischargers, the burdens imposed b.

state and local communities. It would be difficult to achieve

the act’s objective if some dischargers were exempted from

the standards which are applied to others. To the contrary,

Congress intended that “Federal facilities shall be a model

for the Nation,” and “shall be required to meet all require-

ments as if they were private citizens.” H.R. Rep. No. 92-

911, 92d Cong., 2d Sess, 118-119 (1972), 1 Legis. Hist.

805-806.

Moreover, many states have acquired abundant resources

—in terms of skills, manpower and experience—in the field

of water quality control, and Congress obviously intended

to marshal and deploy these resources in the fight against

water pollution.” It is doubtful if the Administrator, with

his many environmental concerns and limited staff, could

easily duplicate these resources in most states. Finally,

Congress may also have believed that the states are less

likely to be sensitive to those internal bureaucratic pres-

sures which federal dischargers may exert on the Adminis-

trator—himself a member of the federal bureaucracy—and

thus are more likely to be sensitive to the public interest

itself. For all these reasons, the act produces not only a

total national commitment to the problem of water pollution,

at all levels of government, but also a practical and workable

solution to the problem.

45. For instance, California’s NPDES permit program, adopted

in 1972, supplements, and is similar to, a stringent and highly

effective water quality control act adopted in 1969, the Porter-

Cologne Act. Cal. Wat. Code §§ 13020-13361. The latter act also

provides for the issuance of “requirements,” the equivalent of per-

mits, to individual dischargers. [bid. That act superseded Califor-

nia’s first statutory effort at water quality control, the Dickey Act,

which was enacted in 1949. 1949 Cal. Stat., ch. 1549. The success

of California’s water quality programs is perhaps best revealed by

the Administrator’s comment that California’s “actions in the past

have shown that water quality can be controlled.” Appendix, 18.

Authority Under the Air Act Sheds No Light on the Extent

of Their Authority Under the Water Act.

Section 313 of the water act is similar to section 118 of

the air act, which provides that federal agencies must

comply with state “requirements respecting control and

abatement of air pollution to the same extent that any

person is subject to such requirements.” 42 U.S.C. § 1857f.

The petitioner argues that, because of the similarity of these

sections, they must be construed similarly, Pet. Brief, 14,

21. He also argues that, because section 118 was enacted

prior to section 313, the latter section must be given the

same meaning as the former. /bid. He thus concludes that

the Court should reach the same conclusion in this case

and in Kentucky ex rel. Hancock v. Ruckelshaus, 492 F.2d

1172 (6th Cir, 1974), cert. granted sub. nom. Kentucky ex

rel. Hancock v. Train, No. 74-220.

The difficulty with the petitioner’s argument is that it

ignores the fundamentally different approaches of the

water and air acts to the problem of pollution. This differ-

ence results from the fact that the water act was substan-

tially amended in 1972, and the air act was not. Prior to

the 1972 amendments, the approaches of the acts were

virtually identical. Both acts provided for the development

of ambient “standards” for polluters, and for state

“plans” to “implement” the “standards.” Compare 79 Stat.

903, 908 (1965), with 42 U.S.C. §§ 1857¢-4, 1857-5. The

46. Although section 118 of the air act requires federal agen-

cies to comply with “requirements,” the pre-1972 water act re-

quired such agencies to comply with water quality “standards.”

Compare 42 U.S.C. § 1857f, with 84 Stat. 91, 107 (1970). This

difference evidently derives from the fact that the ambient

“standards” of the acts were defined differently. Under the air act,

authority of the states to tailor these “standards” to indi-

vidual polluters, including federal agencies, by a permit

system arose only by implication.

However, the 1972 amendments to the water act removed

any ambiguities concerning the states’ authority to issue

permits under that act. The amendments expressly author-

ize the states to develop limitations for individual dis-

chargers by an NPDES permit program, and provide no

exemption for federal dischargers. In this context, section

313 clearly confirms the obligation of federal dischargers

to comply with such permit programs. This clarity is not

found in section 118, of course, since the air act contains no

equivalent permit system.

We do not necessarily resist the conclusion, however,

that sections 313 and 118 should be read similarly. Indeed,

there are many similarities in the language, structure and

legislative history of the acts which support this conclu-

sion.” Perhaps the 1972 amendments to the water act,

“standards” are different from the “plans” by which they are im-

plemented. 42 U.S.C. § 1857e-4, 1857¢-5. However, under the pre-

1972 water act, “standards” included the “plan” to implement the

“water quality criteria” of the act. 79 Stat. 903, 908 (1965). Thus,

Congress apparently used the word “requirements” in the air act

to insure that federal agencies are subject to such “plans,” but was

content to use the word “standards”—which already included such

“plans”—in the pre-1972 water act.

47. For instance, both acts provide that the “primary” respon-

sibility for preventing pollution rests with the states. Compare

33 U.S.C. hae. III) § 1251(b), with 42 U.S.C. § 1857(a) (3).

Both contain a section authorizing the states to develop a more

stringent “standard or limitation,” and a more stringent “require-

ment” respecting the “control and abatement” of pollution than

those otherwise provided in the acts. Compare 33 U.S.C. (Supp.

III) = with 42 U.S.C. § 1857d-1. Both allow states to adopt

“schedules” for “compliance” with the plans or re developed

by the states under the acts. Compare 33 U.S.C. (Supp. IT)

§ 1362(11), with 42 U.S.C. § 1857¢-5(a) (2) (B).

The legislative history of both acts is also similar. The congres-

sional reports describing the effect of section 313 made reference

which removed the ambiguities which might still remain

in the air act, provide a clue to the meaning of the air act,

with respect to the issues in this and the Kentucky case;

perhaps the NPDES permit system fathered by the water

act is an approximation of the type of program which

Congress expected the states to develop in adopting “imple-

mentation plans” under the air act. However, the converse

is not true. The air act, which lacks the clarity found in

the 1972 amendments to the water act, sheds no light on

the meaning of those amendments, with respect to the

issues here. Thus, if sections 313 and 118 are to be inter-

preted harmoniously, section 118 must be interpreted in

light of the meaning of section 313, not—as contended by

the petitioner—vice versa.

Another option is open to the Court, of course. The

fundamental dissimilarities of the water and air acts, par-

ticularly with respect to the states’ authority to adopt

NPDES permit programs under the water act,** might be

to “effluent limitations,” “standards,” and so forth. See pp. 38-39,

supra, The congressional reports describing the effect of section 118

made reference to “applicable standards of air quality and emis-

sions.” Conf. Rep. (H.R. Rep. No. 91-1783), 91st Cong., 2d Sess.

48 (1970). None of these reports indicated whether the states may

issue permits to federal agencies.

48. The acts contain dissimilarities other than with respect to

the states’ authority to adopt NPDES permit programs. For in-

stance, section 505(f) of the water act describes an “effluent stand-

ard or limitation” as including a “permit” issued under section

402, and the latter as including a “requirement” under section 313.

33 U.S.C. (Supp. IIT) § 1365(f). Section 313 of the water act

provides an example of such “requirements” by using the phrase

“including the payment of reasonable service charges.” Id. at

§ 1323. No similar provisions are found in the air act.

Additionally, the water act expressly allows the states to enforce

their permit programs by injunctions and civil and criminal pen-

alties. Id. at § 1342(b)(7). The air act, by way of contrast, does

not indicate how the states are to enforce the “implementation

plans” adopted under that act. Also, the water act expressly allows

construed as denoting a congressional intent that sections

313 and 118 are to be construed differently. Under this

approach, the states would have authority to issue permits

to federal agencies under the water act, but not under the

air act. Because of these options, the Ninth Circuit, in up-

holding the states’ position in this case, properly observed

that its decision is consistent with an affirmance or reversal

of the Sixth Circuit’s decision in the Kentucky case. 511

F.2d at 973.

Therefore, the petitioner, in arguing that sections 313

and 118 must be read harmoniously, ignores the funda-

mentally different contexts of these sections, and oversim-

plifies the task which faces the Court. Rather than pro-

ceeding on the assumption that the sections must be read

in pari materia, the Court must examine the similarities

and dissimilarities of the acts to determine whether that

assumption is correct, Because of the greater clarity found

in the water act, section 313 might illuminate the meaning

of section 118, but the reverse is not true. Thus, the issues

in this case may be helpful in resolving the issues in the

Kentucky case, but the issues in that case provide no

guidance here.

CONCLUSION

The water act reposes in the states the primary respon-

sibility in achieving the national goal of improved water

quality, and prevention of water pollution. The Adminis-

trator is to act as a general overseer of the states’ actions

the states to bring actions against the Administrator to compel

adoption of a state permit program. Id. at § 1369(b)(1)(D). The

air act, however, does not expressly indicate that the states may

bring actions against the Administrator to compel adoption of

a state implementation plan, although such authority is arguably

found in sections 118 and 304 of that act. 42 U.S.C. §§ 1857f,

1857h-2.

in meeting that responsibility, and—in instances where a

state fails to meet it—to assume it directly. He is not,

however, to assume responsibility over a class of dis-

chargers—federal dischargers—in instances where a state

is meeting its responsibility in the manner intended by

Congress.

Indeed, the states cannot adequately meet the respon-

sibility entrusted to them if they lack authority to control

water pollution by federal dischargers. Without minimizing

the extent to which other dischargers—particularly indus-

trial and municipal dischargers—have contributed to the

nation’s water quality problem, federal dischargers have

also significantly contributed to the problem. As Congress

noted :

“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.” 8. Rep. No. 92-414, 92d Cong.,

ist Sess. 67 (1971), 2 Legis. Hist. 1485. Accord, H.R.

Rep. No. 92-911, 92d Cong., 2d Sess. 118 (1972), 1

Legis. Hist. 805.

In California, for example, the Navy, which operates a

series of bases that ring San Francisco Bay, is among the

largest polluters of the bay. To immunize federal dis-

chargers from the states’ water quality effort, by immu-

nizing them from the permit programs which form the very

heart of that effort, would impede the states in achieving

the very goal which Congress—after years of experimenta-

tion and months of debate—deemed to be of the highest

national importance.

California, in developing a stringent water quality pro-

gram based on the NPDES system, has properly responded

to the congressional mandate contained in the water act.

The petitioner, in seeking to prevent the application of

that program to federal dischargers, is seeking to limit the

effect of California’s program, and to expand his power at

California’s expense. His effort shows little regard for the

clear expression of congressional intent found in the water

act, and denies California the control and responsibility

over her resources envisioned by Congress, If the Adminis-

trator wishes to change the act, his remedy is with Congress,

not the courts. We thus urge affirmance of the judgment of

the Ninth Circuit.

luVELLE J. YOUNGER

Attorney General of the

State of California

Cart Boronkay

Assistant Attorney General

Roperick WALSTON

Deputy Attorney General

Ricnarp C. Jacoss

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Tel: (415) 557-3920

Attorneys for

Respondent,

State of California.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.