Amicus Brief — Minnesota, Etc. v. Clifford L. Alexander, Secretary of the Army

FilFOD

JAN 2S i977

IN THE | MICHAEL RODAK, JR, CLERK |

Supreme Court of the Gnited States an

OCTOBER TERM, 1976

No.

STATE OF MINNESOTA, by its Attorney General,

WARREN SPANNAUS, and its Pollution Control

Agency,

Appellants,

VS.

MARTIN R. HOFFMAN, as Secretary of the Army, et al.,

Appellees.

On Appeal From, and Petition for Certiorari to, the

United States Court of Appeals for the Eighth Circuit

BRIEF AMICI CURIAE OF THE SIERRA CLUB AND THE IZAAK

WALTON LEAGUE OF AMERICA, INC., IN SUPPORT OF

APPELLANTS’ JURISDICTIONAL STATEMENT

RICHARD N. FLINT

300 Roanoke Building

Minneapolis, Minnesota 55402

Telephone: (612) 339-9501

OF COUNSEL:

FORD M. ROBBINS

KAY SILVERMAN

STEPHEN J. SNYDER

Attorneys for Amici Curiae Sierra

Club and The Izaak Walton

League of America, Inc.

1977—Northwest Brief Printing Co., 316 Chicago Avenue, Minneapolis 55415—338-5078

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE ........... 2

SUBSTANTIALITY OF THE ISSUE PRESENTED 5

A. The Dredging Activities of the United States

Army Corps of Engineers Present a Real and

Present Danger to the Citizens of the Several

IN ell a ee a Se 5

B. A Review by this Court at this Time Would

Settle a Substantial Controversy and Prevent

Peapetitinows Litigatios. .. 2... cece cc cccces 5

C. The Issue of Whether Federal Agencies, Includ-

ing the United States Army Corps of Engineers,

Must Comply With State Substantive Limita-

tions and Standards Under the Federal Water

Pollution Control Act is One of First Impres-

ee ee 6

D. Consideraiion of This Case by This Court at

the Present Time Will Advance the Partner-

ship Being Forged Between the State and Fed-

eral Governments in Restoring the Quality of

Our Waters and Thereby Enhancing the Health

and Well-being of Our Citizens. ........... 7

Argument:

THE DREDGING OPERATIONS OF APPEL-

LEE WITHIN MINNESOTA ARE SUBJECT TO

MINNESOTA’S SUBSTANTIVE :EFFLUENT

LIMITATIONS AND WATER QUALITY STAN-

DARDS, WHICH WERE PROMULGATED PUR-

SUANT TO THE FEDERAL WATER POLLU-

TION CONTROL ACT AMENDMENTS OF 1972. 7

A. Congress Clearly Expressed its Policy and Es-

tablished the Regulatory Authority of the States

With Regard to Effluent Limitations and Wa-

ter Quality Standards in the Federal Water

Pollution Control Act Amendments of 1972.

B. The Decision of the Eighth Circuit In Minne-

sota v. Hoffman Flies in the Face of This

Court’s Decision in EPA v. California. .....

C. The Decision of the United States Court of

Appeals for the Eighth Circuit that Appellees

are Totally Immune from State Substantive Re-

quirements is Contrary to the Federal Water

Control Pollution Act Amendments of 1972

Re Bree a CI, gg civic cievcnuuneecs

OE ibe bs pWddGes ch vbeLade cena sa

TABLE OF AUTHORITIES

Case Authority:

EPA v. California, — U.S. —, 96 S. Ct. 2022, 48

L.Ed. 2d 578 (1976) ...4, 6, 9, 10, 11, 12, 13, 14,

Hancock v. Train, — U.S. —, 96 S. Ct. 2006, 48

i & Pp - Ei. Speer cere cet 4, 6, 10,

State of Minnesota v. Hoffman, 543 F.2d 1198 (8th

ls SY Su ENS ie bokeh des oe, 4,

Statutory Authority:

Federal Water Pollution Control Act Amendments of

1972, 33 U.S.C.A. §§1251 et. seq. ity aie

alas bats ohare ok Goer >% 536 7, 8 & ih, 1.14

13

15

15

13

13

15

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No.

STATE OF MINNESOTA, by its Attorney General,

WARREN SPANNAUS, and its Pollution Control

Agency,

Appellants,

vs.

MARTIN R. HOFFMAN, as Secretary of the Army, et al.,

Appellees.

On Appeal From, and Petition for Certiorari to, the

United States Court of Appeals for the Eighth Circuit

BRIEF AMICI CURIAE OF THE SIERRA CLUB AND THE IZAAK

WALTON LEAGUE OF AMERICA, INC., IN SUPPORT OF

APPELLANTS’ JURISDICTIONAL STATEMENT

The Sierra Club and the Izaak Walton League of

America, Inc., as amici curiae pursuant to Rule, 42 of the

rules of this Court, respectfully submit that the Appeal of

the State of Minnesota in the instant appeal should be

fully heard by the Court. The amici curiae submit that

Appellants’ reasons for requesting review show a need for

consideration of the decision below by this honorable

Court.

2

INTEREST OF THE AMIC/ CURIAE

The interest of the Sierra Club and the Izaak Walton

League of America, Inc. in the federal agency jurisdic-

tional question presented herein is twofold:

1. The Sierra Club, a national conservation organiza-

tion, is a non-profit California corporation with its prin-

cipal place of business in the City and County of San

Francisco, California, and has a membership in excess of

150,000 members. The purposes of the Sierra Club are to

enhance and protect by all lawful means the natural re-

sources and human environment of the United States and

the earth in general; to explore, enjoy and preserve scenic

resources of the United States and its forests, water, wild-

life and wilderness; to undertake and to publish scientific,

literary and educational studies concerning them; to edu-

cate the people with regard to the national and state navi-

gable rivers and streams, forests, parks, monuments and

other natural resources of a special scenic beauty and to

enlist public interest and cooperation in protecting them.

The Izaak Walton League of America, Inc., (herein-

after referred to as the League) is a long-established citizen

organization concerned with the environment and the

preservation and use of natural resources. The League

sponsors and actively involves itself in programs ranging

from local conservation projects to programs involving the

entire spectrum of environmental interests; from wilderness

and wildlife to urban matters such as water quality, air

quality, solid waste and rapid transit. The upper Mississippi

River has been especially important to the League with

its strong membership in Iowa, Illinois, Minnesota and

Wisconsin. The League has been extensively involved in

—— ~

3

considering the impact of a 9-foot navigation channel on

the upper Mississippi. It has insisted that commerce on the

river not devastate wildlife resources and recreational op-

portunities. The League is especially interested in the im-

pact of dredge removal and disposal on river recreational

and wildlife opportunities. Problems involved with the cur-

rent methods of disposal include the suspension of toxic

materials in the river, the choking off of a fresh water

supply in backwater areas by disposal, and increased

turbidity and its possible effects on aquatic vegetation and

animal life.

2. The Sierra Club and the League are, in addition,

vitally interested in assuring that water pollution control

standards established by the United States and the re-

spective states be enforced so as to provide the greatest

degree of protection to United States water resourcs.

The impact of dredge removal and disposal on the ecol-

ogy, recreation and wildlife as supported by United States

water resources is of major concern to the Sierra Club and

the League. Water is a finite resource. The quality of wa-

ter affects the health, welfare and quality of life of each

citizen of the United States and the quality of many of its

industries. Because water quality affects United States citi-

zens and industry, Congress in 1972 enacted Amendments

to the Federal Water Pollution Control Act* to strengthen

its efforts to meet the need for water quality, declaring as

a national goal that “the discharge of pollutants into the

navigable waters be eliminated by 1985.’ The Amend-

1The Act was first passed in 1948, Act of June 30, 1948, 62 Stat. 1155,

and has been frequently amended. See annotation following 33 U.S.C.

$1251 (Supp. IV). Before the 1972 Amendments, the Act was codi-

fied at 33 U.S.C. §§1151 ef. seq.

28101(aX1), 33 U.S.C.A. §1251(aX(1) (1976) (emphasis added).

4

ments were aimed at achieving maximum limitations on

effluents discharged into navigable waters as well as

achieving acceptable water quality standards.* A National

Pollution Discharge Elimination System was established

as a means of achieving and enforcing the effluent limita-

tions.‘ Congress also desired that “every federal agency

provide national leadership in the control of water pollu-

tion in [its] operations.”

In the instant proceedings, the State of Minnesota seeks

inter alia to require that the United States Army Corps

of Engineers abide by Minnesota’s water pollution control

standards promulgated pursuant to the Federal Water Pol-

lution Control Act, as amended. The Eighth Circuit

Court of Appeals, in a clear misreading of both the Act

and this Court’s recent decisions in Hancock v. Train’

and EPA v. California,* has held that the Corps of Engi-

neers need not follow Minnesota’s substantive water pol-

lution control standards.’ As a result, the clear mandate

of the Act has been ignored and the congressional goal

that the discharge of pollutants into the navigable waters

of the United States be eliminated by 1985 will not be

attained to the serious detriment of all citizens of the United

States.

It is perhaps unusual that an overriding federal objec-

tive is to be achieved by subjecting federal agencies in

certain instances to state substantive laws. But in enacting

the Federal Water Pollution Control Act Amendments of

§102(a), 33 U.S.C.A. §1252(a) (1976).

*§402, 33 U.S.C.A. $1342 (1976).

Senate Report quoted in EPA v. California, — U.S. —, 48 L.Ed.2d

578, 585 (1976).

*State of Minnesota v. Hoffman, 543 F.2d 1198 (8th Cir. 1976).

7 U.S. —, 96 S. Ct. 2006, 48 L.Ed.2d 555 (1976).

5— U.S. —, 96 S. Ct. 2022, 48 L.Ed.2d 578 (1976).

®*State of Minnesota v. Hoffman, 543 F.2d 1198 (8th Cir. 1976).

5

1972, Congress recognized that water quality conditions

varied greatly from place to place, and that the rate and

level of cleanup might therefore vary from state to state.

Accordingly, Congress established certain minimum stan-

dards and authorized the states to promulgate stricter stan-

dards. At the same time, Congress directed that federal

agencies be subject to these stricter state standards, unless

expressly exempted by the President of the United States.

SUBSTANTIALITY OF THE ISSUE PRESENTED

A. The Dredging Activities of the United States Army

Corps of Engineers Present a Real and Present

Danger to the Citizens of the Several States.

The threat of pollution from the dredging activities of

the Corps of Engineers will endanger the health and wel-

fare of the citizens of the numerous states in which the

dredging is conducted. The pollution has already seriously

lowered the water quality in Minnesota and has adversely

affected the natural environment of its rivers and lakes.

B. A Review by This Court at This Time Would Settle

a Substantial Controversy and Prevent Repetitious

Litigation.

The issue in the instant appeal will arise repeatedly be-

cause the Federal Water Pollution Control Act (FWPCA)

Amendments allow the individual states to establish efflu-

ent limitations and water quality standards for navigable

waters within their jurisdictions. It is possible that all fifty

states may adopt limitations and standards and then seek

compliance by federal agencies, including the Corps of

Engineers. Briefs by amici in the instant case indicate the

extent of the controversy. |

6

C. The Issue of Whether Federal Agencies, Including

the United States Army Corps of Engineers, Must

Comply With State Substantive Limitations and

Standards Under the Federal Water Pollution Con-

trol Act is One of First Impression Before This Court.

In Hancock v. Train, the EPA conceded that federal

agencies must comply with state substantive requirements

under the Clean Air Act: “The parties rightly agree that

§118 obligates federal installations to conform to state air

pollution standards or limitations and compliance sched-

ules." As shown above, the EPA made the same con-

cession for state effluent limitations and water quality stan-

dards under the Federal Water Pollution Control Act in

EPA vy. California.“ Thus, this Court has not decided the

important issue presented in the instant appeal. Moreover,

because the Eighth Circuit reached its decision without

reopening briefing or oral argument after this Court’s de-

cisions in Hancock v. Train and EPA v. California, the

application of those leading decisions to the issue presented

in the instant appeal has never been argued before any

federal court.

996 S. Ct. at 2013, 48 L.Ed.2d at 566 (emphasis added).

196 S. Ct. at 2027, 48 L.Ed.2d at 588. '

7

D. Consideration of This Case by This Court at the

Present Time Will Advance the Partnership Being

Forged Between the State and Federal Govern-

ments in Restoring the Quality of Our Waters and

Thereby Enhancing the Health and Well-being of

Our Citizens.

Effective implementation of the congressional policy un-

derlying the Amendments to the Federal Water Pollution

Control Act would be enhanced if this Court at this time

declared the validity of the federal and state partnership

to restore the quality of our waters.

ARGUMENT

THE DREDGING OPERATIONS OF APPELLEE WITHIN

MINNESOTA ARE SUBJECT TO MINNESOTA’S SUBSTAN-

TIVE EFFLUENT LIMITATIONS AND WATER QUALITY STAN-

DARDS, WHICH WERE PROMULGATED PURSUANT TO THE

FEDERAL WATER POLLUTION CONTROL ACT AMENDMENTS

OF 1972.

A. Congress Clearly Expressed its Policy and Estab-

lished the Regulatory Authority of the States With

Regard to Effluent Limitations and Water Quality

Standards in the Federal Water Pollution Control

Act Amendments of 1972.

Congress significantly strengthened the Federal Water

Pollution Control Act by the 1972 Amendments.” The

congressional declaration of policy expressly set forth in

the 1972 Amendments established the environmental con-

cerns of Congress and its desire that individual states have

12§§101 et. seq., 33 U.S.C.A. §§1251 et. seq. (1976).

the primary right and responsibility to eliminate water

pollution:”

(a) The objective of this chapter is to restore and

maintain the chemical, physical, and biological integ-

rity of the Nation’s waters. In order to achieve this

objective it is hereby declared that, consistent with

the provisions of this chapter—(1) it is the national

goal that the discharge of pollutants into the naviga-

ble waters be eliminated by 1985;

* * a

(b) It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate pol-

lution ....

Section 313 of the Amendments declares in clear and

unambiguous language that federal departments and

agencies engaged in any activity which may cause the dis-

charge of pollutants shall comply with state requirements

related to the control and abatement of pollution to the

same extent as any private person:*

Each department, agency, or instrumentality of the

executive, legislative, and judicial branches of the

Federal Government (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 fees. The President

may exempt any effluent source of any department,

13§101(a) & (b), 33 U.S.C.A. §1251(a) & 1976) (emphasis added

1#§313, 33 U.S.C.A. $1323 (1976) (cophaste added ,

9

agency, Or instrumentality in the executive branch

from compiiance with any such a requirement if he

determines it to be in the paramount interest of the

United States to do so....

The term “pollutant,” used within Section 313, is defined

by the Amendments to include “dredged spoil,” and other

waste items.** This Court has held that the phrase “State

requirements” of Section 313 does not include the option-

al permit programs authorized under the National Pollu-

tant Discharge Elimination System (NPDES).” The Sierra

Club and the League do not contest that portion of the

Eighth Circuit’s opinion dealing with permit programs.

However, Congress meant by Section 313 that state *sub-

stantive effluent limitations and other water quality stan-

dards shall govern federal activities and also the activities

of private persons. The contrary holding by the Eighth

Circuit in the instant case would render Section 313 mean-

ingless. The Sierra Club and the League as amici curiae

to this Court, submit that Congress meant what it said.

Moreover, in EPA v. California this Court has already

decided that state substantive requirements are binding

upon all federal activities.

B. The Decision of the Eighth Circuit in Minnesota v.

Hoffman Flies in the Face of This Court's Decision

in EPA v. California.

In EPA v. California, this Court construed a portion of

the Federal Water Pollution Control Act Amendments of

1972 and decided whether federal installations discharg-

15§502(6), 33 U.S.C.A. §1362(6) (1976).

EPA v. California, 96 S. Ct. 2022, 48 L.Ed.2d 578 (1976).

10

ing water pollutants within a state must secure permits

from that state or from the Environmental Protection

Agency. A similar issue concerning the related Clean Air

Act was decided at the same time in Hancock v. Train.”

The Supreme Court held in both cases that a state permit

system was not one of the “requirements” with which fed-

eral installations must comply.

Mr. Justice White, writing for the Court, analyzed the

1972 Amendments and explained that two major changes

had been effected. First, the Amendments established max-

imum effluent limitations and acceptable water quality

standards. Second, the Amendments created the National

Pollutant Discharge Elimination System which established

a permit system to be administered either by EPA or by

the states. This Court held that Section 313—which re-

quires all federal departments, agencies, and instrumentali-

ties to comply with state requirements respecting control

and abatement of pollution—did not comprehend the

NPDES state permit programs.

In reaching his conclusion in EPA v. California, Mr.

Justice White explained that Section 313 does not obligate

federal departments and agencies to comply with state

procedural requirements, as opposed to state substantive

requirements. In fact, the EPA through Justice Depart-

ment attorneys conceded that federal departments and

agencies were bound by the state substantive require-

ments:*

1796 S. Ct. 2006, 48 L.Ed.2d 555 (1976).

896 S. Ct. at 2027, 48 L.Ed.2d at 588 (emphasis added). Defendants’

brief to the Eighth Circuit in the instant case also conceded that, at

a minimum, federal agencies must comply with state effluent limita-

tions and water quality standards: “[WJhether, as a general rule, Sec-

tion 313 requires federal agencies to comply with State laws requiring

discharge permits or only State effluent limitations and water quality

11

EPA’s position is that the Amendments made clear

“only that facilities of the executive, legislative and

judicial branches operating within the states must

comply with the applicable effluent limitations and

compliance schedules promulgated by the particular

state pursuant te its EPA—approved implementa-

tion plan,” as incorporated in EPA—issued permits

not that they comply with “state regulations demand-

ing that sources of discharges—including federal

facilities—obtain discharge permits.”

Mr. Justice White quoted favorably from the Ninth Cir-

cuit’s examination of legislative history of the 1972

Amendments to conclude that:”

“[C]ertain parts of the legislative history would seem

to indicate that the ‘requirements’ language of Sec-

tion 303 refers simply and solely to substantive”

standards, to effluent limitations and standards and

schedules of compliance.

He noted that Section 510 of the Amendments permitted

the states to set more restrictive standards, limitations, and

requirements than those imposed upon the Amendments.

The presence of stronger standards, reasoned Mr. Justice

White, did not mean that state permits must be obtained

by federal agencies, but did mean that federal permits

must be utilized to enforce the state standards:”

standards is now before the United States Supreme Court in EPA, et

al v. People of California, ex rel. State Water Resources Board, et al,

.... The argument of EPA in that case . . . is hereby adopted and

incorporated herein. Brief for the Appellants, at 21 (January 1976)

ol May the government now in good faith contest that

all federal agencies and departments are in fact required to comply

with state effluent limitations and water quality standards?

S. Ct. at 2029, 48 L.Ed.2d at 589. ;

S. Ct. at 2031-32, 48 L.Ed.2d at 590-92 (emphasis added).

38

12

Section 510 quite plainly was intended to strengthen

State authority. It may also have been intended to per-

mit the States to impose stricter standards and efflu-

ent limitations on federal installations than would

have been imposed under an EPA permit in the ab-

sence of an approved state NPDES program. But this

hardly answers the question before us, which is wheth-

er these higher standards are to be enforced through

a State rather than an EPA permit system.

* * x

We must also assume that Congress contemplated

that there may be some States, which would elect not

to develop an NPDES program but would nonethe-

less determine—as §510 permits—to adopt water

quality standards or other limitations stricter than

those EPA itself had promulgated and would other-

wise apply. This being the case, Congress must have

contemplated that EPA was capable of issuing per-

mits in that State—to both federal and non-federal

— of enforcing those stricter stan-

The presence of EPA as a permit-issuing authority

means that although federal dischargers are not se-

curing state NPDES permits they are nevertheless be-

ing subjected to the administrative authority of a

federal agency which is required to make a State's

“more stringent liinitation[s], including those neces-

sary to meet water quality standards, treatment stan-

dards, or schedules of compliance” part of the con-

ditions of the permits it must issue.

In short, this Court held in EPA v. California, and the

United States conceded, that State effluent limitations and

water quality standards shall be enforced through federal

permits for federal agencies and departments.

13

The contrary conclusion of the Eighth Circuit in Min-

nesota v. Hoffman that “there is insufficient evidence to

meet the clear and unequivocable standard for finding

Congressional authorization for state regulation . . .,

whether by authorization under the NPDES or indepen-

dently thereof,’™ is contrary to both the express language

of Section 313 and this Court’s decision in EPA v. Cali-

fornia.

C. The Decision of the United States Court of Appeals

for the Eighth Circuit That Appellees Are Totally

immune From State Substantive Requirements Is

Contrary to the Federal Water Control Pollution

Act Amendments of 1972 and EPA v. California.

The instant case was submitted for decision before the

Eighth Circuit on May 12, 1976. Approximately one

month later this Court issued its two important decisions

in EPA v California and Hancock v. Train. Unfortunately,

despite the important contributions of this Court’s guid-

ance in those two cases, the Eighth Circuit did not reopen

the instant case for additional briefings or arguments. In-

stead, on October 28, 1976, the Eighth Circuit decided

both the procedural (permit) and substantive (effluent lim-

itations and water quality standards) requirements ques-

tions adversely to the State of Minnesota. The Sierra Club

and the League submit that the Eighth Circuit would have

been assisted in its interpretation of EPA v. California if

the instant case had been reopened for additional briefing.

For example the Eighth Circuit chose to rely upon Sec-

tion 404 of the amendments,” which concerns only a per-

21543 F.2d 1198, 1209 (8th Cir. 1976).

22§404, 33 U.S.C.A. §1344 (1976).

14

mit program for the Corps of Engineers and not substan-

tive standards, to support its conclusion that the Corps is

not required to follow state effluent limitations and water

quality standards. Section 404, while allowing -the

Corps of Engineers to assist in promulgating standards with

regard to proposed discharges of dredged or filled ma-

terial, was not enacted to enable the Corps to become a

fiefdom unto itself. The Corps’ standards promulgated

pursuant to Section 404 must be reviewed by the adminis-

trator of the Environmental Protective Agency to deter-

mine that they are in accordance with EPA environmental

standards. The EPA, in turn, must take into considera-

tion state effluent limitations and water quality standards

in its review of the Corps’ proposed standards.* Adequate

briefing of that issue after EPA v. California would have

shown the Eighth Circuit the important distinction between

substantive and procedural standards.

— 33 U.S.C.A. §1344(b) (1976).

15

CONCLUSION

The Eighth Circuit Court of Appeals has erroneously

construed the 1972 Amendments to the Federal Water

Pollution Control Act and has failed to apply the law set

forth in EPA v. California. The resulting decision in Min-

nesota v. Hoffman is of immense concern to environmental

groups such as the Sierra Club and the Izaak Walton

League. We respectfully request that this Court hear the

appeal of the State of Minnesota and reverse the court

below.

Respectfully submitted,

RICHARD N. FLINT

Attorney for the Sierra Club and

The Izaak Walton League of

America, Inc.

300 Roanoke Building

Minneapolis, MN 55402

Telephone: (612) 339-9501

OF COUNSEL:

FORD M. ROBBINS

KAY SILVERMAN

STEPHEN J. SNYDER