Jurisdictional Statement — Minnesota, Etc. v. Clifford L. Alexander, Secretary of the Army

Supreme Court brief1977

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Text

A em

Supieme Court, U. S,

~ FILED

. |

IN THE | |

Supreme Court of the Anite wratey "0m

October Term, 1976

** -%6§-1030

STATE OF MINNESOTA, by its Attorney General

WARREN SPANNAUS, and its

POLLUTION CONTROL AGENCY,

Appellant,

vs.

MARTIN R. HOFFMAN, Secretary,

DEPARTMENT OF THE ARMY, et al.,

Appellees.

ON APPEAL FROM, AND PETITION FOR CERTIORARI TO,

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

JURISDICTIONAL STATEMENT

WARREN SPANNAUS

Attorney General

State of Minnesota

RICHARD B. ALLYN

Solicitor General

- ELDON G. KAUL

Assistant Attorney General

WILLIAM P. DONOHUE

JAY M. HEFFERN

Special Assistant

Attorneys General

1935 West County Road B2

Roseville, Minnesota 55113

Telephone: (612) 296-7342

Attorneys for Appellant

224-7631 — Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 — 224-7631

INDEX

| PAGE

JURISDICTIONAL STATEMENT ... . | 2

CITATION TO OPINION BELOW...._..—cl._ .._. 2

EEE TLR De aN Eel Ae DS a er

CIEE UMNO EEEED ccc cccccccccsccecccecees 4

STATEMENT OF THE CASE............cccccccees 4

1. The Factual Setting _. 4

2. The Statutory Scheme . 5

ie ta ee eas 5

b. Minnesota Law. ._—s«—a=—aizdczcséwww...... 7

3. The Proceedings Below _. 8

SUBSTANTIALITY OF FEDERAL QUESTIONS... 9

1. Section 313 of the FWPCA is a Clear and Unam-

biguous Waiver of Federal Immunity from State

Regulation Which Requires Federal Entities to

Comply with State Water Quality Standards. ..... 11

2. Compliance With State Standards by the Corps

is Consistent With the Expressed Policy of the

Act and Essential to Achieving the Act’s Objec-

GR. ccdccdbadutine de Ginddansaceadcuccédecssces 14

3. Compliance With State Standards as Mandated

by the FWPCA Will Not Interfere with the Corps’

Responsibility to Maintain Navigation. .......... 15

CONCLUSION er re ae cs 17

APPENDICES

PAGE

A Complaint, dated April 17, 1975 ................. A-1

B District Court’s Opinion, dated October 9,1975 ...-—s-_ A-11

C Eighth Circuit Court of Appeals’ Opinion,

dated October 28,1976... A-24

D(1) Judgment of Eighth Circuit _—" of inl

dated October 28, 1976 ....—-—s—.. . A-45

D(2) Notice of Appeal to the United States Susvsne

Court (State of Minnesota), dated January 7, 1977. A-46

E Article VI, Clause 2, United States Constitution

(Supremacy Clause) ........ ee

F(1) Federal Water Pollution Cited os

Amendments of 1972, Section 101 .. .... - A-48

F(2) Federal Water Pollution Control Act

Amendments of 1972, Section 313 ___. eee

F(3) Federal Water Pollution Control Act

Amendments of 1972, Section 402 ............... A-51

F(4) Federal Water Pollution Control Act

Amendments of 1972, Section 404 _. pieces A-58

F(5) Federal Water Pollution Control Act

Amendments of 1972, Section 502. iai(‘(isstst A-59

F(6) Federal Water Pollution Control Act

Amendments of 1972, Section 510... .—s—ai.. A-63

F(7) Federal Water Pollution Control Act

Amendments of 1972, Section 511... sists .. .. A638

Gaa> bee Gee See =... ..................., O®

G(2) Minn. Stat. $115.08 ...................... A-€68

G(3) Minn. Stat. §115.45 ae ae ee _.. A-T6

G(4) Minn. Reg. WPC 15 , .... A-76

G(5) Minn. Reg. WPC 25 | A-108

TABLE OF CASES .

Askew v. American Waterways Operators, Inc.

411 U.S. 325 (1973) .......... he 9, 10

City of Detroit, et al. v. a Cumpenation

of American, et al., 355 U.S. 489 (1958)

SE, Ge ee CUED iccdcceccvccevecécecx 3

Doran v. Salem Inn, Inc. 422 U.S. 922 (1975) 3

El] Paso v. Simmons, 379 U.S. 497 (1965) ............ 3

Environmental Protection Agency v. California ex rel.

Water Resources Control Board, 426 U.S. 200

GY Dacha Gedesadsccdeddesuuas 2, 3, 9, 10, 11, 12, 18, 14

Fornais v. Ridge Tool Co., 400 U.S. 41 (1970) __.. 3

Hancock v. Train, 426 U.S. 167 (1976) . 9, 10, 11, 12, 13

Huron Portland Cement Co. v. City of Detroit

re es

Kern-Limerick, Inc. v. Scurlock

ay US. 100 (ieee) .......... 2: eer 11

Leiter Minerals, Inc. v. United States

352 U.S. 220, reh. den. 352 U.S. 1019 (1957) 3

Mayo v. United States, 319 U.S. 441 (1943) _. 11

Pacific Coast Dairy v. Department of Agriculture,

3i8 U.S. 285 (1943) ..... .... nt ee 11

State of Minnesota, Spannaus v. ae

401 F. Supp. 524 (D. Minn, 1975) 2, 4, 12,17

State of Minnesota by Spannaus v. Hoffman

543 F.2d 1198 (8th Cir., 1976) _. 2,12

UNITED STATES CONSTITUTION

Article V1, Clause 2 (Supremacy Clause) |

iii

FEDERAL STATUTES | PAGE

PAGE g502(11) ES N82 ne

TY ee ee ES

28 U.S.C. §1254(1) aera tp eat eee cman 3 | aaa Be ue a?’

28 U.S.C. $1254(2) Se era en ee * 3 | ae

meee |, s,s ee 2 aS B15

UO. OND... .. .«.-...xcksac une arn Clean Air Act, 42 U.S.C. §1857 (Supp. IV, 1975)... . 18

UGG. 008 ....... . .:.. che eee 2 aS 13

Federal Water Pollution Control Act Amendments 3 C.F.R. ch. IV _.. | 16

of 1972, 86 Stat. 816, 33 U.S.C. §1251 et seq. Executive Order No. 11752, 3 CFR. ch. IV, p. 380

ss Pe ae (1974) ny | 16

Oe hk eee eee 3° 33 C.F.R. §209.120(e) (4) (ii) 12

ee ee en cuwececcces 12

$101(b) ......... wi ove dllew ee ee 14 88 C.F.R. §209.145(b) ..........00.cccecccceeeeces 12

ee Se 6 40 C.F.R.§120.10 | 8

een 6

ok. ........ ‘ MINNESOTA STATUTES AND REGULATIONS

Ome st. .. cscs ceseusae 6 .

OUD... 5... cavcvaiveunsumusuu tl uaa Minnesota Statutes:

Se 8, 14, 15 Minn. Stat. $116 et seq. (1974) 7

ae et | den SLIS.O1 .. a 8

ne 6 ' $116.01 subd. 4 8

OOO 5 occu sccsou- usu tesene SL1S.68 ... 8

““ i 6 $115.08 subd. 10 7

ee $116.07 | 7

$313 eee 8,4, 11, 12, 18, 14, 16 | $115.46 8,7

$318 a SC 5,6 Minn. Stat. $116 et seq. (1974) 7

Oi a fia

$404 ithe 8,5, 12,18

ee 3

ee eee a ee

iv Vv

Minnesota Regulations :

Minn. Reg. WPC 1 through 32

Minn. Reg. WPC 2 ..

Minn. Reg. WPC 3

Minn. Reg. WPC6....

Minn. Reg. WPC 15 ..

Minn. Reg. WPC 15(c)(2) ©

Minn. Reg. WPC 18 ..

Minn. Reg. WPC 25 .

Minn. Reg. WPC 28 7

Minn. Reg. WPC 29..........

Minn. Reg. WPC 34 .

Minn. Reg. WPC 36 _.

Minn. Reg. WPC 37

OTHER SOURCES

S. Rep. No. 92-414 (1971) .

2 Legislative History of the Federal Water Pollution

Control Act, Sen. No. 93-1 (1973) .

YANIINQN WON ON NAA A

IN THE

Supreme Court of the Gnited States

October Term, 1976

STATE OF MINNESOTA, by its Attorney General

WARREN SPANNAUS, and its

POLLUTION CONTROL AGENCY,

Appellant,

vs.

MARTIN R. HOFFMAN, Secretary,

DEPARTMENT OF THE ARMY, et al.,

Appellees,

ON APPEAL FROM, AND PETITION FOR CERTIORARI TO,

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

JURISDICTIONAL STATEMENT

This is an appeal froim the final judgment of the Eighth Cir-

cuit Court of Appeals which held that the Federal Water Pol-

lution Control Act Amendments of 1972 ' do not require the

United States Army Corps of Engineers to comply with Minne-

sota’s water quality standards and effluent limitations during

1 86 Stat. 816, 33 U.S.C. §1251 et seq. (Supp. IV, 1975).

the Corps’ dredging operations within Minnesota.” In the al-

ternative, Appellant seeks review of the Court of Appeals’

judgment by writ of certiorari and respectfully requests this

Court to consider this document as a petition for a writ of

certiorari.

CITATION TO OPINION BELOW

The opinion of the District Court is reported at 401 F.Supp.

524; the opinion of the Eighth Circuit Court of Appeals at 543

F.2d 1198. The text of these opinions is set forth in Appendix

B and C, respectively, pages A-11 to A-45.

JURISDICTION

1. The Nature of the Proceeding. Appellant instituted

this action in the Third Division of the Federal District Court

for the District of Minnesota seeking a declaratory judgment

that the Corps of Engineers’ dredging activities within the

State of Minnesota must be carried out in compliance with

State laws and regulations. The complaint is set forth in Ap-

pendix A. The proceedings below were instituted pursuant

to 28 U.S.C. §2201. Jurisdiction was based on 33 U.S.C. §1365,

28 U.S.C. $1331 and 5 U.S.C. §§701 et seq.

2. The Judgment or Decree Sought to Be Reviewed. On

October 9, 1975, the District Court, on cross-motions for sum-

mary judgment, granted Appellant’s (Plaintiff-Appellee be-

low) motion and denied Appellees’ (Defendants-Appellants

2 The Court of Appeals also held that the Corps was not required

to obtain discharge permits from Minnesota. The permit issue has

been settled by this Court in Environmental Protection Agency v.

California ex rel State Water Resources Control Board, 426 U.S.

200 (1976). Therefore, Appellant does not appeal from that portion

of the Court of Appeals’ decision.

below) motion. Notice of Appeal was filed on November 14,

1975. The Eighth Circuit Court of Appeals reversed the Dis-

trict Court and entered judgment for Appellees on October

28, 1976 (Appendix D(1), pages A-45 to A-46). The Notice of

Appeal to this Court was filed in the United States Court of

Appeals for the Eighth Circuit on January 4, 1977 (Appendix

D(2), pages A-46 to A-47).

3. The statutory provision which confers jurisdiction on

this Court to review by direct appeal cases in the courts of ap--

peal is 28 U.S.C. §1254(2).°

4. Cases believed to sustain this Court’s jurisdiction in-

clude: City of Detroit, et al. v. Murray Corporation of Ameri-

ca, et al., 355 U.S. 489, (1958) reh. den. 357 U.S. 913 (1958).*

5. Statutes and Regulations involved in this appeal.

Supremacy Clause of the United States Constitution, Article

VI, Clause 2; Sections 101, 313, 402, 404, 502, 510 and 511 (33

U.S.C. §§1251, 1323, 1342, 1344, 1362, 1370 and 1371) of the

Federal Water Pollution Control Act Amendments of 1972,

86 Stat. 816, 33 U.S.C. §$1251 et seq.; Minn. Stat. §§115.01,

115.03 and 115.45; Minn. Regs. WPC 15 and 25. These statutes

and regulations are set forth in Appendices E, F and G re-

spectively, pages A-47 to A-117.

8 If this Court determines that a direct appeal does not lie, Appel-

lant respectfully urges the Court to consider this jurisdictional

_ statement as a petition for certiorari. 28 U.S.C. §2103. In addition,

jurisdiction to review by writ of certiorari cases in the courts of

appeal is conferred on this Court by 28 U.S.C. §1254(1).

4If this Court determines that a direct appeal does not lie, the

cases believed to sustain this Court’s jurisdiction to review by

writ of certiorari include: Environmental Protection Agency v.

v. California ex rel State Water Resources Control Board, 426 U.S.

200 (1976); Doran v. Salem Inn. Inc., 422 U.S. 922 ‘1975); Forna’s

v. Ridge Tool Co., 400 U.S. 41 (1970); El Paso v. Siramons, 379 U.S.

497 (1965); Leiter Minerals, Inc. v. U.S., 352 U.S. 220, reh. den. 352

U.S. 1019 (1957).

QUESTIONS PRESENTED

The ultimate question presented by this appeal is whether

the Federal Water Pollution Control Act Amendments of 1972

(hereafter “FWPCA” or “Act”) require the Corps of Engi-

neers to comply during its dredging operations in Minnesota

with the State’s water quality standards and effluent limita-

tions, Specifically, this appeal raises the issues of:

1. Whether Section 313 of the FWPCA is a clear and un-

equivocal waiver of federal immunity from state regulation?

2. Whether Section 313 of the FWPCA requires the Corps

of Engineers to comply with Minnesota’s water quality stan-

dards and effluent limitations?

STATEMENT OF THE CASE

1. The Factual Setting

The facts in this case are undisputed * ard are more fully

set forth in Appendix A. Briefly, the Corps of Engineers con-

ducts extensive dredging operations within Minnesota. These

dredging activities involve removing portions of the bottom

sediments of lakes and rivers and depositing the removed sedi-

ments into other portions of lakes or rivers or on land. This

operation causes the pollutants in the bottom sediment to be

redissolved and resuspended in the water. The effect of this

dredging on Minnesota’s waters is to degrade the water and

to produce a habitat that is harmful to the growth, reproduc-

tion and survival! of water dwelling organisms. These dredging

activities result in violations of Minnesota water quality stan-

dards and effluent limitations.

5 At oral argument before the District Court, the parties agreed that

there were no issues of material fact. State of Minnesota, Span-

naus v. Callaway, 401 F. Supp. 524, 526, n. 1 (D. Minn. 1975).

2. The Statutory Scheme

This case involves the Federal Water Pollution Control Act

Amendments of 1972° (hereafter “FWPCA” or “Act”) and

the interrelationship of that Act with Minnesota’s water pol-

lution statutes and regulations.

a. The FWPCA

In 1972, Congress recognized that prior efforts at abating

and eliminating water pollution in the United States had been

ineffective. After a two year study, the Senate Committee on

Public Works concluded that “the national effort to abate and

control water pollution has been inadequate in every vital as-

pect.” * In response to this problem, Congress enacted the

FWPCA. This Act established a comprehensive and complex

program designed to attack the various sources and causes

of water poiiution.

At the outset, Congress established as a national goal the

elimination of the discharge of pollutants into the nation’s

navigable waters by 1985.° To attain this goal, the FWPCA

established a number of regulatory programs. Thus, the Act

includes permit programs for point source ® discharges,'®

dredged and fill material,'' and federal aquaculture projects. '*

In addition, there is a federal grants program for the construc-

6 86 Stat. 816, 33 U.S.C. §1251 et seq. (Supp. IV, 1975). :

7S. Rep. No. 92-414, p. 7 (1971), 2 Legislative History of the Water

Pollution Control Act Amendments of 1972, Ser. Ne. 93-1, p. 1425

(1973) (hereafter “Leg. Hist.’’).

% Section 101(a) (1), 33 U.S.C. §1251(a)(1) (Supp. IV, 1975).

® Point sources are defined by section 502(14), 33 U.S.C. §1362(14)

(Supp. IV, 1975) as “any discernible, confined and discrete con-

veyance . . . from which pollutants are or may be discharged.”

19 Section 402, 33 U.S.C. §1342 (Supp. IV, 1975).

11 Section 404, 33 U.S.C. §1344 (Supp. IV, 1975).

12 Section 318, 33 U.S.C. §1328 (Supp. IV, 1975).

tion of waste treatment works,'* and a planning program for

the control of non-point source water pollution.'* Further,

the Act adopted effluent limitations '° as the primary water

pollution control standard. However, the system of water

quality standards that had been established for interstate

waters under the prior act were expressly continued in

force.'® The Act provides that all “discharges of pollutants”

are unlawful,'’ unless the discharge is in compliance with ap-

propriate effluent limitations,'* water quality related effluent

limitations,'® national standards of performance for new

sources,*° effluent standards for toxic pollutants,?' federal

aquaculture permits,** and federal or state NPDES permits.?°

In essence, the FWPCA rejects the view that there is social

utility in using the nation’s waters as a waste disposal and

treatment system.** The Act requires treatment of those

wastes prior to entry into the water and mandates that water

pollution must be eliminated to the fullest extent that tech-

nology will permit.

18 Sections 201 through 207, 33 U.S.C. §§1281 through 1287 (Supp. IV,

1975).

'4 Section 208, 33 U.S.C. §1288 (Supp. I'V, 1975).

(5 Section 502(11), 33 U.S.C. §1362(11) defines “effluent limitations” .

as restrictions on “quantities, rates and concentrations of chemi-

cal, physical, biological and other constituents” of discharges from

point sources.

'® Section 303(a) (1), 33 U.S.C. §1313(a) (1) (Supp. IV, 1975).

‘7 Section 301(a), 33 U.S.C. §1311(a) (Supp. IV, 1975).

'* Section 301(b), 33 U.S.C. §1311(b) (Supp. IV, 1975).

'® Section 302, 33 U.S.C. §1312 (Supp. IV, 1975).

2” Section 306, 33 U.S.C. §1316 (Supp. IV, 1975).

21 Section 307, 33 U.S.C. §1317 (Supp. IV, 1975).

22 Section 318, 33 U.S.C. §1328 (Supp. IV, 1975).

23 Section 402, 33 U.S.C. §1342 (Supp. IV, 1975).

242 Leg. Hist. at 1274.

b. Minnesota Law

Minnesota has vigorously carried out its responsibilities

and duties under the FWPCA. The State has adopted a com-

prehensive set of water pollution laws.*° These include ad-

ministration of the NPDES permit program and the Federal

construction grants program. In addition, the state has its own

state permit program*" for the operation and construction

of disposal systems and a state construction grants program

to supplement the federal grants.** In essence, the State has

an effective program for the regulation and control of water

pollution.

The principal State laws at issue in this case are Minn. Stat.

§115.45 (1974) and Minn. Reg. WPC 15. Minn. Stat. $115.45

imposes a duty upon every person to comply with “all regula-

tions, . . . and to do and perform all acts and things within

his or its power required to effectuate, carry out and ac-

complish the purposes of such provisions, regulations . . . .”

Person is defined by Minnesota law ** to include “any govern-

mental subdivision.”

Minn. Reg. WPC 15, a regulation duly adopted by the Min-

nesota Pollution Control Agency,*" contains both water quali-

ty standards and effluent limitations, which, Appellant con-

tends, apply to the Corps of Engineers’ dredging operations

in Minnesota.*” This regulation has been approved by EPA

25 Minn. Stat. ch. 115 and 116 et seq.; Minn. Regs. WPC 1 through

32, 34, 36 and 37.

26 Minn. Stat. §115.07 (1974), Minn. Reg. WPC 36.

27 Minn. Reg. WPC 34.

28 Minn. Stat. §115.03 subd. 10 (1974).

2® Minn. Reg. WPC 15 is set forth in Appendix G (4), pages A-76 to

A-108.

30 Minn. Regs. WPC 2, 3, 6, 18, 28 and 29 also apply to lakes and

rivers dredged by the Corps.

as conforming to the requirements of §303 of the FWPCA.*!

Minn. Reg. WPC 15(c) (2) prohibits the discharge of sewage,

industrial wastes or other wastes *? into any interstate waters

of the State “. . . so as to cause any nuisance conditions, such

as significant amounts of floating solids, . . . excessive sus-

pended solids, materia! discoloration, . . . or other offensive

or harmful effects.”

3. The Proceedings Below

On April 17, 1975, Minnesota brought an action for a dec-

laratory judgment against the United States Army Corps of

Engineers and Howard H. Callaway, Secretary of the

Army ; Lieutenant General William C. Gribble, Chief of Engi-

neers; and Colonel Max Noah, District Engineer, both indi-

vidually and in their official capacities. The suit sought a de-

termination that the FWPCA requires the Corps’ dredging

operations within Minnesota be carried out in compliance with

state laws and regulations.

The Corps moved to dismiss on July 11, 1975, alleging that

the District Court lacked subject matter jurisdiction and that

the complaint failed to state a claim upon which relief could

be granted. At oral argument, the parties agreed that there

were no issues of material fact and that the case should be con-

sidered as if submitted on cross motions for summary judg-

ment.

$140 C.F.R. §120.10 (1976); letter dated November 6, 1973. f

Francis Mayo, Regional ‘Administrator, Region V, U.S. EPA to

ol a anna Anderson, Minnesota.

2 Minn. Stat. 5.01 subd. 4 (1974) defi n ? ‘

call including Fy ) nes “other waste’ as specifi-

ng these proceedings, Martin R. Hoffm

H. Callaway as Secretary of the Army. a

On October 9, 1975, the District Court granted Minnesota’s

motion for summary judgment and denied the Corps’ motion.

The Corps filed its Notice of Appeal to the Eighth Circuit

Court of Appeals on November 14, 1975.

The Court of Appeals, on October 26, 1976, reversed the Dis-

trict Court and held that the FWPCA does not require the

Corps to obtain a discharge permit from Minnesota for its

dredging operations or to comply with Minnesota’s water pol-

lution statutes and regulations during the Corps’ dredging ac-

tivities. Minnesota filed its Notice of Appeal to this Court on

January 4, 1977.

SUBSTANTIALITY OF FEDERAL QUESTIONS

This case presents this Court with the opportunity to define

fully the proper relationship between the federal government

and the states with respect to state environmental law. The

Court began this task in Hancock v. Train** and EPA v. Cali-

fornia ex rel. State Water Resources Control Board**® when

it addressed the issue of federal compliance with state per-

mitting procedures. This appeal raises the remaining impor-

tant issue that is essential to a complete understanding of

federal-state relationships in the field of pollution control;

federal compliance with substantive state environmental stan-

dards. As this Court recognized in Hancock and California,

the issue of federal compliance with state law is important

and presents substantial questions. |

The states historically have had a substantial interest in

regulating and protecting their own waters. Askew v. Ameri-

84 426 U.S. 167 (1976).

35 426 U.S. 200 (1976).

can Waterways Operators, Inc., 411 U.S. 325 (1973).** Con-

gress, wren it enacted the FWPCA, recognized that the states

were primarily responsible for regulating water pollution and

clearly and unequivocally preserved the states’ authority to

adopt and enforce water pollution standards. Further, this

Court’s opinions in Hancock** and California** support

the conclusion that federal entities must comply with substan-

tive state pollution requirements.

The Court of Appeals, however, in reversing the District

Court, applied the rationale of Hancock and California not

only to state pollution permitting requirements but also to

state substantive water pollution control standards. This con-

clusion is contrary to the FWPCA’s express language, the

Act’s legislative history, and the Hancock and California deci-

sions.

Therefore, the questions presented by this appeal are im-

portant to the states not only because of their traditional role

of protecting their own waters but also because this Court will

authoritatively resolve the substantial question of the federal

government’s compliance with the states’ substantive water

pollution control statutes and regulations.

5® See also Huron Portland Cement Co. v. City of Detroit, 362 U.S.

440 (1960), involving air pollution.

57 426 U.S. 167 (1976).

5® 426 U.S. 200 (1976).

1. Section 313 of the FWPCA is a Clear and Unambiguous

Waiver of Federal Immunity from State Regulation

Which Requires Federal Entities to Comply with State

Water Quality Standards

Section 313°%° of the FWPCA expressly directs the federal

government to comply with state standards. Although the

usual rule, based on the Supremacy Clause of the United States

Constitution,*® is that the federal government is immune from

state regulation,*! it is clear that Congress may waive this

immunity and allow the state regulation of federal instrumen-

talities. Mayo v. United States, 319 U.S. 441 (1943); Pacific

Coast Dairy v. Department of Agriculture, 318 U.S. 285

(1948). This waiver is found when Congress by specific action

or a clear mandate authorizes state regulation. Kern-Limerick,

Inc. v. Scurlock, 347 U.S. 110 (1954).

Section 313 is the only provision in the FWPCA that ad-

dresses the relationship between the federal government and

the states regarding compliance with water pollution control

requirements. This section is a clear and unambiguous waiver

of federal immunity and expressly mandates all federal en-

tities to comply with state requirements respecting the control

and abatement of pollution. The language of the section is ex-

plicit and mandatory:

Each department, agency or instrumentality of the execu-

tive, legislative and judicial branches of the federal gov-

ernment ... shall comply with federal, state, interstate,

and local requirements respecting control and abatement

of pollution... .

(Emphasis added.)

39 33 U.S.C. §1323 (Supp. IV, 1975).

40 Article VI, Clause 2.

41 Hancock v. Train, supra, at 179; EPA v. California, supra, at 211.

There is no doubt that the Corps of Engineers is an in-

strumentality of the federal government. Consequently, sec-

tion 313 directs the Corps to comply with state requirements

respecting control and abatement of pollution.*? As the Dis-

trict Court stated, §313 is an “unqualified order to comply.” *?

Despite the clear language of §313, the Court of Appeals

concluded “. . . that there was insufficient evidence for find-

ing Congressional authorization for state regulation .. .”

of the Corps’ dredging activities.‘* In reaching this conclu-

sion, the Court of Appeals relied upon section 404 ** of the Act

and this Court’s opinions in Hancock and California. This reli-

ance is misplaced.

Section 404 is silent with respect to the Corps’ obligations

to comply with the State’s water quality and effluent stan-

dards. There is absolutely no indication in that section that

the Corps or anyone else is immune from state regulation. Sec-

tion 404 merely establishes a permit program for the disposal

of dredged and fill material.‘* Thus, the Court of Appeals’ con-

clusion that section 404 precludes compliance with state stan-

42 The Corps’ own regulation for the administration of the §404 per-

mit program provides that federal dischargers must comply with

state standards. 33 C.F.R. §209.120(e)(4)(ii) (1976). While the

Corps procedurally processes its own projects under 33 C.F_R.

§209.145 (1974), that regulation cites §313 of the Act as applicable

to the Corps. 33 C.F.R. §209.145(b) (1974).

= a . en Se v. Callaway, supra, at 530.

oO nnesota by Spannaus v. Hoffman, supra, '

45 33 U.S.C. §1344 (Supp. IV, 1975). —_n

#6 When Congress intended federal dischargers not to comply with

state requirements, they expressly exempted the federal govern-

ment. Thus, section 306(c), 33 U.S.C. §1316(c), which authorizes

states to develop a procedure for applying and enforcing new

source performance standards, expressly exempts federal dis-

chargers. Similarly section 308(c), 33 U.S:C. §1318(c), which per-

mits the states to develop procedures for the inspection, monitor-

ing and entry onto a discharger’s premises, also exempts the fed-

deral government. It is obvious that Congress knew how to exempt

federal facilities from state regulation. If Congress had intended

= ae Li = ye ieee By water quality standards and

ons, they wo ave express!

an exemption in the Act. ' ete ss

dards is erroneous and contrary to the express language of

both section 313 and section 404.

Further, the Court of Appeals has misunderstood the legal

significance of the Hancock and California decisions. Those

cases involved whether federal instrumentalities were re-

quired to comply with state permitting requirements; essen-

tially whether the federal government was required to follow

state procedural requirements. The Court of Appeals relied

on those cases in reaching its conclusion that the federal gov-

ernment is not required to comply with either state procedural

or substantive requirements. This conclusion is not sustainable

by the language in those cases. In Hancock, this Court ob-

served “[t]he parties rightly agree that §118 *’ obligates fed-

eral installations to conform to state air pollution standards -

or limitations. . . .”** (Emphasis added.) Similarly, in

California the Court quoted with approval the conclusion of

the lower court that “‘. . . the legislative history of Section

313 refers simply and solely to substantive’ standards... .” *®

Thus, it is clear that Congress in section 313 waived federal

immunity from state regulation and ordered all federal en-

tities to comply with all water pollution standards—federal,

state and local. The Court of Appeals erred in not so holding.

Finally, the effect of the Court of Appeals’ decision is to

read into §313 an exemption for the Corps where none exists.

This results in rendering that section a nullity as applied to

ihe Corps. It is illogical to conclude that Congress explicitly

directed all federal instrumentalities to comply with state pol-

lution standards but implicitly intended to exclude the Corps,

47 Section 118 of the Clean Air Act is virtually identical to §313. EPA

v. California, supra, at 212.

48 Hancock v. Train, supra, at 181.

49 EPA v. California, supra, at 215.

a major federal discharger. The inescapable conclusion is that

section 313 requires the Corps to comply with State water

quality standards and effluent limitations during its dredging

operations.

2. Compliance With State Standards by the Corps is Con-

sistent With the Expressed Policy of the Act and Essen-

tial to Achieving the Act’s Objective

Congress declared in §101(b) of the FWPCA that national

policy was “to recognize, preserve and protect the primary

responsibility of the states to prevent, reduce, and eliminate

pollution.” °° This declaration recognizes the traditional in-

terest of the states in protecting their own waters. Further,

Congress established as a national goal the elimination of the

discharge of pollutants into the nation’s navigable waters by

1985.°' Finally, section 510 of the Act®? expressly preserves

the states’ authority to adopt or enforce any standard or limi-

tation, including more stringent ones, respecting discharges

of water pollutants. Congress was obviously aware that state

regulation had to be an integral part of any national pollution

control program. Thus, Congress ensured that state authority

in this area was not diminished. In fact, as this Court observed

in California, section 510 was intended to strengthen state au-

thority.**

In addition, the state standards which federal instrumen-

talities must comply with are federally approved standards.

Section 303 of the Act ** requires the states to develop and

adopt water quality standards that are satisfactory to the

— 33 1 USC. §1251(b) (Supp. IV, 1975).

on 101 (a) (1), 33 U.S.C. §1251(a) (1) (Supp. IV,

5233 U.S.C. §1370 (Supp. IV, 1975). ” —

53 EPA v. California, supra, at 218.

54 33 U.S.C. §1312 (Supp. IV, 1975).

United States Environmental Protection Agency (EPA).

Thus, this case does not present the situation where the states

are attempting to force the federal government to comply with

unreasonable local restrictions. To the contrary, Appellant

seeks compliance with standards that have been approved by

a major federal agency.°*®

The Court of Appeals’ holding is contrary to this express

Congressional policy and effectively undermines the national

goal of eliminating the discharge of pollutants into the na-

tion’s waters by 1985. Compliance by all sources—federal,

state and local—with the states’ water quality and effluent

standards is an essential step in achieving this “no-discharge

goal.” It is absurd to conclude that Congress charged the states

with the primary responsibility for achieving the national “no-

discharge” goal but precluded them from requiring federal

dischargers, a major source of pollution, to comply with the

states’ substantive water pollution control standards, the criti-

cal means for meeting that goal.

3. Compliance With State Standards as Mandated by the

FWPCA Will Not Interfere with the Corps’ Responsibil-

ity to Maintain Navigation

Appellant recognizes that the Corps has an obligation to

maintain navigation. The FWPCA acknowledges that duty.°°

However, compliance with state water pollution standards

only requires the Corps to discharge their duties in an en-

55 1f a state fails to adopt water quality standards, section 303 re-

quires the Administrator of EPA to promulgate the water quality

standards for the state. Thus, if Minnesota had not adopted stan-

dards for her waters, the Administrator of EPA would have been

required to do so by the FWPCA. The Corps could not have ob-

jected to compliance with EPA standards on the basis of the al-

leged federal immunity.

56 Section 511, 33 U.S.C. §1371 (Supp. 1V, 1975).

vironmentally sound manner. This compliance is necessary

if the national goal of eliminating the discharge of pollu-

tants *’ into navigable waters by 1985 is to be achieved.

Congress recognized the possibility that compliance by fed-

eral agencies, such as the Corps, with state standards might

severely affect the activities of the federal government. Con-

sequently, Congress expressly provided that an exemption

from state pollution control requirements may be granted by

the President when he determines that an exemption would

be in the “paramount interest of the United States.” 5* There-

fore, if the Corps found that compliance with Minnesota’s

standards adversely impacted the Corps’ duty to maintain

navigation, they could apply for a Presidential exemption. The

Corps has not sought a Presidential exemption from the re-

quirements of section 313 and none has been granted. In fact,

to the contrary, the President has directed federal agencies

to ensure that their facilities conform to “Federal, State, inter-

state and local water quality standards and effluent limita-

Ge cease ™

Therefore, the Court of Appeals’ concern that the Corps’

compliance with state standards would interfere with its duty

to maintain navigation is unfounded. The FWPCA creates a

method for exempting compliance on a case-by-case basis if

circumstances warrant it. The Corps should be required to fol-

low those procedures. As the District Court observed, com-

pelling the Corps to comply with state requirements “. . .

57 Since “dredged spoil” is specifically defined b

y §502(6), 33 U.S.C.

7 he Game oe of py a “pollutant,” the Pave va slanaies

ult in a f pol

waters a ae rge of pollutants to the navigable

$ tion 313, 33 U.S.C. §1323 (Supp. IV, 1975).

5® Exec. Order No. 11752, 3 C.F.R. ch. IV, p. 380 (1974).

rea —

would merely require . . . the Corps . . . to accomplish [its]

mission in compliance with effluent limitations established

pursuant to the Act.” °°

CONCLUSION

For the reasons set forth, the Court should note probable

jurisdiction, or grant certiorari, and set the case down for

plenary consideration with briefs on the merits and oral argu-