# Petition — Weinberger v. Romero-Barcelo > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2169%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 - **Citation:** 456 U.S. 305 ## Text Office-Supreme Court, U.S, FILED 80-1990 In the Supreme Court of OCTOBER TERM, 1 CASPAR WEINBERGER, ET AL., PETITIONERS V. CARLOS ROMERO-BARCELO, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS ‘ FOR THE FIRST CIRCUIT WADE H. MCCREE, JR. Solicitor General ANTHONY C. LIOTTA Acting Assistant Attorney General EDWARD J. SHAWAKER ANNE S. ALMY Attorneys Department of Justice Washington, D.C. 20580 (202) 683-2217 QUESTION PRESENTED Whether injunctions to require immediate cessation of discharges in violation of the Clean Water Act are manda- tory under the standards articulated in TVA v. Hill, 437 U.S. 153 (1978), and not subject to the traditional equitable diseretion of the district court. 1In addition to the Secretary of Defense, the defendants below in- cluded the Secretary of the Navy, the Chief of Naval Operations, the Commander in Chief of the Atlantic Fleet, the Commandant of the Ma- rine Corps, the Carribbean Commander of the Atlantic Fleet, the Commandant of the Coast Guard, and “unnamed John Doe Defend- ants.” In addition to Carlos Romero-Barcelo, the Governor of the Com- monwealth of Puerto Rico, the original plaintiffs below included the Mayor, of Vieques, the Commonwealth Environmental Quality Board, MisiQm Industrial de Puerto Rico, Inc., and individual fishermen/residents of Vieques: Luis Medina, Jesus Medina, Mario Antolino Félix, Cristébal Medina, Severino Ventura Cintrén, Héctor Medina, Cristébal Medina, Jr., Enrique Garcia, Antonio Ayala Gonzalez, Angel Ventura and Daniel Medina. Plaintiffs-intervenors in- cluded: Carlos A. Zenén, Mario Félix, Mariano Rivera Guishard, Alicio Ayala Sota, Francisco Medina Meléndez, Esmeraldo Meléndez and Santos Rios, fishermen who are residents of Vieques, the ‘Asociacién de Pescadores de Vieques, Inc.,” a cooperative of Vieques fishermen, and “Fundacién Argeuolégica, Antropolégica e Histérica de Puerto Rico,” a non-profit corporation involved in research and preservation of historical and prehistorical cultural resources (App. C, infra, 54a). I III TABLE OF CONTENTS Page % AM . 1 / ô»B—O»»»ů!.·.... ⸗⅛„ panveesan 1 õ«;oOÜͤOꝛ 1 Ü 1 I ͤ ͤ / ͤ „„ 2 Reasons for granting the petit ion. 5 . ³˙·1iůĩůů⸗ͤĩ Ae 16 ;öÜͤ%ö;ẽ é:U·o n T — ] ]% 1a e 52a .o Lee eer errr e e e yy yee 53a een ee dent 169 . eee ee e ee 17la TABLE OF AUTHORITIES Cases: Consolidation Coal v. Costle, 604 F.2d 239 ... 5, 10 E. I. du Pont de Nemoure & Co. v. Train, 430 AER ˙² A ²² T 12 Hecht Co. v. Bowles, 321 U.S. 32111. 10-11 Milwaukee v, Illinois, No. 79-408 (Apr. 28, %% „b 5 Monongahela Power Co. v. EPA, 586 F. 2d SU US aedGRs sc cbbnedecsecesedds %% 9, 10 National Rifle Ass’n v. Kleppe, 425 F. Supp. e err 13 Realty Income Trust v. Eckerd, 564 F.2d 447 . 10 Republic Steel Corp. v. Costle, 581 F.2d 1228 . 9 Reserve Mining Co. v. EPA, 514 F.2d 492.... 8 State Water Resources Board v. Train, 559 Dr · 8 5, 10 TVA v. Hill, 437 U. S. 1588. 5, 6, 7, 8, 14 United States v. Kennebec Log Driving Co., 491 F. 2d 562, on remand, 399 F. Supp. 754 . 8 IV Cases (continued): Page United States v. Rohm & Haas Co., 500 F.2d 167, cert. denied, 420 U.S. 962............. 8 United States ex rel. Greathouse v. Dern, 289 c sth ddue eae ty 11 Statutes and regulations: Clean Air Act Amendments of 1977, 42 U. S. C. oe „„ 2 Coastal Zone Management Act, 16 U.S.C. 1451 Ey;·˙ bbb 2 Endangered Species Act, 16 U.S.C. (& Supp. % ²˙²˙*˙⸗ 'ae . n 2, 4 Section 2(b), 16 U. S. C. 1531(b) .......... 7 Section 2(c), 16 U.S.C. 1531(c)........... 7 Section 7, 16 U.S.C. 1536 ......... 4, 5, 6, 7,9 Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. (& Supp. IIT) 1251 et rr 2 b e 1, 2, 3, 171a Section 101(a), 33 U.S.C. 12510) ... 11-12, 171a Section 301(a), 33 U. S. C. 1311(a) . 11-5, 7, 8, 171a Section 301(b), 33 U. S. C. (& Supp. III) % ĩ ( c§˙c˖ ccc 12, 171a Section 301(b)(1), 33 U. S. C. r 11-9, 171a Section 304(b), 33 U.S.C. (Supp. III) SA ĩ˙ĩ˙¼ è —»⁰v: . 12, 173a Section 309, 33 U.S.C. 13199. 10, 173a Section 309(a)(1), 33 U.S.C. (Supp. III) r See 11, 173a Section 309(a)(5)(B), 33 U.S.C. (Supp. IIT) ps 10, 173a-174a Section 309(b), 33 U.S.C. 1819(b) .... 8, 10, 174a Section 313(a), 33 U.S.C. (Supp. III) „.... 7, 8, 14, 15, 174a-175a Section 401(a), 33 U.S.C. (Supp. III) re 13, 1754-176 Section 402(a), 33 U. S. C. 1342) 13, 15, 177a V Statutes and regulations (continued): Page Section 502(6), 33 U.S.C. 1362(6)... 4, 177a-178a Section 502(12), 33 U.S.C. 1362(12)... 4, 178a Section 502(14), 33 U.S.C. (Supp. III) TO ere ere 4, 178a Section 504(a), 33 U.S.C. (Supp. III) Nias ⸗ ccc „ 8, 178-179 a Section 505(b)(1)(A), 33 U.S.C. „ ns 13, 179a Section 505(b)(1)(B), 33 U.S.C. / ¼ A 0 9, 180a Section 505(c), 32 U. S. C. 13651) (2) . . . 11, 180a Marine Mammal Protection Act, 16 U.S.C. 1361 ——.w Abe 2 Migratory Bird Treaty Act, 16 U.S.C. 703 et P ͥ aA n b ll 13 National Environmental Policy Act, 42 U. S. C. r 2, 14 National Historie Preservation Act, 16 U.S.C. ;é²—B³ũ “˙ ü——[ 0e 2 Noise Control Act of 1972, 42 U. S. C. 4901 et DO ea cS Picks dd 2 Resource Conservation and Recovery Act, 42 Se oss sb wiiee Rkavave enes 2 Rivers and Harbors Appropriation Act of 1899 (Refuse Act), 33 U.S.C. 401 et seq.......... 3 Section 13, 33 U.S.C. 40 8 40 C. F. R.: e 11 / ²˙—ö— . ·˙· m 12 Miscellaneous: A Legislative History of the Water Pollution Con- trol Act Amendments of 1972, 93d Cong., Ist %% ²˙ A debe ceresdonesctye 8, 9, 12 VI Miscellaneous—Continued: Page Exec. Order No. 11593, 36 Fed. Reg. 8921 (1971) re- printed in 16 U.S.C. 470 note 2, 3, 4 Exec. Order No. 12088, 43 Fed. Reg. 47707, 47709 %%% A 15 „ 3 Hearings on Federal Water Pollution Control Act Amendments of 1977 Before the Subcomm. on Environmental Pollution of the Senate Comm. on Environment and Public Works, 95th Cong., Ist , ⅛è⅛ʃorTœ WNC TEG now 4 dud cee Baw Cede ee 10 H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972) . 12 H.R. Rep. No. 93-412, 93d Cong., Ist Sess. (1973) . 7 S. Rep. No. 92-414, 92d Cong., Ist Sess. (1971) ... 8 S. Rep. No. 93-307, 93d Cong., Ist Sess. (1973) 7 7 Moore’s Federal Practice 2d ed. 1980) ........... 11 In the Supreme Court of the United States OCTOBER TERM, 1980 No. CASPAR WEINBERGER, ET AL., PETITIONERS Vv. CARLOS ROMERO-BARCELO, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT The Solicitor General, on behalf of the Secretary of De- fense and other officials of the Department of Defense, pe- titions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra, la—5la) is not yet reported. The opinion of the district court (App. C, infra, 58a-168a) is reported at 478 F. Supp. 646. JURISDICTION The judgment of the court of appeals was entered on Jan- uary 26, 1981 (App. D, infra, 169a-170a). A timely petition for rehearing was denied on February 27, 1981 (App. B, infra, 52a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED The pertinent provisions of the Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. (& Supp. IID 1251 et seq., are reprinted in App. E, infra, 171a—180a. 1 2 STATEMENT This case concerns the Navy’s use of part of Vieques Is- land, Puerto Rico, as a range for air-to-ground, naval gun- fire support (NGFS) and amphibious weapons training. The island, located off the southeast coast of Puerto Rico, is ap- proximately 20 miles long and has an average width of 4 miles. It consists of approximately 33,000 acres, of which the United States owns more than 25,000 acres. For many years, the Department of the Navy has used a small portion of the eastern end of the island for weapons training. The remaining Navy-held land is used primarily as a buffer zone. (See App. C, infra, 57a, 6la, 63a, 167a—168a.) The weapons training facilities located on Vieques are crucial to the national defense. The installations on and around the island are the only facilities available to the naval vessels and crews of the Atlantic Fleet that provide an opportunity to train under conditions closely resembling actual combat. All Atlantic Fleet vessels assigned to the Mediterranean and the Indian Ocean must complete their training at Vieques to become operational. Cessation of Navy activity on Vieques would cripple the service’s ability to perform the tasks assigned to it by the National Security Council. (See App. C, infra, 163a-165a.) On March 1, 1978, the Governor of Puerto Rico, Carlos Romero-Barcelo, and others initiated a suit seeking to en- join continued use of the island for weapons training. In his complaint, the Governor charged the Navy with violations of almost every piece of major environmental legislation enacted by Congress in the last decade. These included the National Environmental Policy Act (NEPA), 42 U.S.C. (& Supp. III) 4321 et seq.; the Clean Water Act, 33 U.S.C. (& Supp. III) 1251 et seq.; the Clean Air Act Amendments of 1977, 42 U.S.C. (Supp. III) 7401 et seg.; the Noise Control Act of 1972, 42 U.S.C. 4901 et seq.; the Resource Conser- vation and Recovery Act, 42 U.S.C. 6901 et seq.; the En- dangered Species Act, 16 U.S.C. (& Supp. ITI) 1531 et seg. the National Historic Preservation Act, 16 U.S.C. 470 et seq. (and Exec. Order No. 11593, 36 Fed. Reg. 8921 (1971) reprinted in 16 U.S.C. 470 note, which implements that Act); the Coastal Zone Management Act, 16 U.S.C. 1451 et 3 seq.; and the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq. In addition, the Governor claimed violations of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. 401 et seg., various amendments to the United States Constitution, and congressional and presidential di- rectives concerning cessation of Navy operations on the neighboring island of Culebra (see App. C, infra, 55a—56a). The district court held an extensive hearing on the merits of these allegations. On September 17, 1979, the court filed a comprehensive decision and order (App. C, infra, 58a—168a). It found the Navy in violation of NEPA for failure to file an Environmental Impact Statement (EIS) or a reviewable environmental record to support a decision not to file such a statement (id. at 155a—159a). It held the Navy to be in violation of the Clean Water Act, 33 U.S.C. (& Supp. III) 1251 et seq., for occasionally and inad- vertently discharging ordnance into coastal waters without a National Pollutant Discharge Elimination System (NPDES) permit (App. C, infra, 79a-81a). It also found the Navy had failed to comply fully with Exec. Order No. 11593, supra, as it had not nominated historic sites to the National Register (App. C, infra, 134a-138a). It ordered the Navy to file for an NPDES permit, to nominate historic sites to the National Register and to comply with the provi- sions of NEPA (id. at 165a).? All other claims, including re- quests for injunctive relief, were dismissed (ibid.). On appeal, the court of appeals affirmed the district court on most issues.* The court, however, disagreed with the 2The Navy prepared an environmental impact statement; in January 1981, the Secretary of the Navy reviewed the statement and made a formal decision to continue using the weapons training facilities located on Vieques. 46 Fed. Reg. 12773 (1981). The Navy also submitted 34 historic sites to the Keeper of the National Register and requested his opinion on their eligibility to be placed on the Register. Also, on December 28, 1979, the Department of the Navy filed an ap- plication for an NPDES permit with the Environmental Protection Agency. In addition to the Clean Water Act issue presented in this petition, the court of appeals remanded issues under the Endangered Species Act and the National Historic Preservation Act to the district court for 4 district court on the proper standards for fashioning equita- ble or injunctive relief to remedy violations of the Clean Water Act (App. A, infra, 48a-49a). The district court had held that the Navy was in violation of the Act because it did not have an NPDES permit covering the occasional deposit of ordnance into the coastal waters around Vieques.* These deposits occur in connection with NGFS and air-to-ground further consideration (App. A, infra, 51a). The district court had found that the Navy’s use of Vieques did not violate Section 7 of the Endangered Species Act (ESA), 16 U.S.C. 1536 (App. C, infra, 126a-131a). The Navy had not obtained a biological opinion from the Fish and Wildlife Service at the time of trial. (The regulations creating the biological opinion process were promulgated on January 4, 1978 43 Fed. Reg. 870 (1978), less than two months before the complaint was filed in this case; during the district court hearing, the ESA was amended on November 10, 1978, 16 U.S.C. (Supp. II) 1531 et seq., to incorporate features of those regulations.) Subsequent to trial, the Fish and Wildlife Service issued an opinion agreeing with the district court. The court of appeals remanded to permit judicial review of the biological opinion and to consider other related issues (App. A, infra, 38a—42a). The district court had also ruled that a cultural resources survey of Vieques satisfied the Navy’s obligation to “locate” historic sites under Exec. Order No. 11593, supra. The court of appeals vacated that de- termination, and remanded to the district court to consider what addi- tional survey effort should be required (App. A, infra, 42a-47a). The petitioners do not consider that either of these rulings present any issue ripe for review by this Court. The Clean Water Act defines pollutant to include “munitions” See- tion 502(6), 33 U.S.C. 13626). A “point source” means “any discerni- ble, confined and discrete conveyance, including but not limited to any * * * vessel * from which pollutants are or may be discharged” Section 502(14), 33 U.S.C. (Supp. III) 1362(14). Under these defini- tions, shells and bombs released from naval ships and aircraft can be deemed pollutants discharged from point sources. The firing of ord- nance into waters outside the territorial sea (three miles), however, is not subject to the Clean Water Act. See Section 502(12), 33 U.S.C. 1362(12). Because the literal language of the definitions of the Clean Water Act covers inadvertant release of shells and bombs into the coastal waters off Vieques, and the Environmental Protection Agency was willing to develop an appropriate NPDES permit, the petitioners did not appeal the district court ruling that the Clean Water Act was vio- lated. Before this suit was filed, however, the Navy had not antic- 5 training when the land-based targets are missed, and the ordnance hits the water. The district court found that this violation of the Clean Water Act was technical, and there was no evidence that Navy activity had any significant ad- verse environmental effect on the waters (App. C, infra, 80a, 162a). Accordingly, the district court ordered the Navy to obtain a permit but declined to enjoin the Navy ac- tivity on Vieques pending issuance of a permit (App. C, infra, 162a, 165a). The court of appeals, however, ruled that the district court had no discretion to refrain from issuing an injunction against activity that violates the Clean Water Act (App. A, infra, 48a-49a). It deemed the prohibition against unlicensed discharges of pollutants in Section 301(a), 33 U.S.C. 1311(a), to be a “congressional ordering of priori- ties” (App. A, infra, 48a) similar to Section 7 of the Endan- gered Species Act considered in TVA v. Hill, 437 U.S. 153, 194 (1978). Accordingly, it vacated the remedy devised by the district court and remanded with directions to enter an appropriate injunction (App. A, infra, 49a). REASONS FOR GRANTING THE PETITION The decision of the court of appeals conflicts in principle with decisions of the Fourth Circuit, which reaffirm the power of the courts to withhold injunctive relief to remedy violations of the Clean Water Act when such relief would be inequitable. State Water Control Board v. Train, 559 F. 2d 921 (1977); Consolidation Coal Co. v. Costle, 604 F.2d 239 (1979).5 Unless reversed, the decision below will result in a significant adverse impact on military preparedness; more- over, the precedent established will unnecessarily disrupt a wide variety of federal and private activities in the First ipated that an NPDES permit might be required for such activities, partly because the EPA has not issued effluent guidelines or permits for similar activities. Seg note 10, infra, page 13. 5 Moreover, this Court recently characterized a state enforcement action that did not seek the immediate cessation of discharges in viola- tion of the Act as an action “contemplated by the Act.” Milwaukee v. Illinois, No. 79-408 (Apr. 28, 1981), slip op. 16. 6 Circuit,* and in any other circuits that follow the decision below. These serious adverse effects are the result of a mis- application of this Court’s decision in TVA v. Hill, 437 U.S. 153 (1978) and a serious misconception of the function of the statutory provision for presidential exemptions from the requirements of the Clean Water Act. 1. In TVA v. Hill, supra, 437 U.S. at 194, this Court ruled that the federal courts lacked discretion to deny injunctive relief against a federal action that would violate Section 7 of the Endangered Species Act, 16 U.S.C. 1536. Section 7 requires federal agencies to “insure that actions authorized, funded, or carried out by them do not jeopard- ize the continued existence of [any] endangered species * * * or result in the destruction or modification of habitat of such species which is determined * * * to be critical.” The challenged federal action was closing the gates to the Tellico Dam; it was conceded that this action would result in the elimination of the known population of snail darters—an endangered species—and destruction of the species’ critical habitat (437 U.S. at 161-163). In discussing the discretion of the lower federal courts to deny relief, this Court acknowledged that, as a general rule, courts are “not mechanically obligated to grant an in- junction for every violation of law” (437 U.S. at 193). But this Court determined that, in the ESA, Congress “has de- cided the order of priorities” and has made it “abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities” (id. at 194). Accordingly, the Court ruled that a federal court was pow- erless to strike a different balance between competing in- terests. The source of the congressional ordering of priori- ties was found in Section 7 of the Endangered Species Act, which contains a clear congressional ordering of priorities between two distinct interests: federal actions and the con- tinued existence of endangered species. Since the court’s decision did not turn on the particular language of the Clean Water Act (App. A, infra, 48a-Aga), the same rationale may require the injunction of technical violations of other environmental statutes. 7 The federal action at issue in TVA v. Hill, supra, moreo- ver, would have directly and irrevocably harmed interests protected by the ESA. The purposes of the ESA include “to provide a means whereby the ecosystems upon which en- dangered species and threatened species depend may be conserved” and “to provide a program for the conservation of such endangered species * * *” (Section 2(b), 16 U.S.C. 1531(b)). Another purpose was to direct federal agencies to use their authorities to protect endangered species (Section 2(c), 16 U.S.C. 1531(c)). See H.R. Rep. No. 93-412, 93d Cong., ist Sess. 10 (1973); S. Rep. No. 93-307, 93d Cong., Ist Sess. 6 (1973). Closing the gates of the Tellico Dam, and destruction of the snail darter, would have been directly and fundamentally in conflict with the purposes of the Act. In sum, the result in TVA v. Hill, supra, was dictated by two factors. First, Congress had already considered, and specifically provided for, a conflict between the needs of endangered species and other interests of the federal government. It had struck the balance in favor of the listed species and the courts were powerless to reconsider that decision. Second, the violation of Section 7 was substantial. The TVA action would not only have failed to comply with the terms of Section 7, but also would have destroyed an endangered species and its critical habitat. Thus, to imple- ment the purposes and policies of the ESA, an injunction restraining the TVA action had to be issued. The court of appeals’ broad application of the analysis of TVA v. Hill, supra, to violations of the Clean Water Act is unsupported by either of these two factors. a. There is no congressional “ordering of priorities” here. The Clean Water Act does not contain any explicit congressional statement, similar to Section 7 of the ESA, subordinating other federal interests to the preservation of water purity. In contrast to the flat ban on the destruction of critical habitats in Section 7, the Clean Water Act is de- signed to control discharges of pollutants by subjecting them to a licensing program (Section 301(a) of the Act, 33 U.S.C. 1311(a)). And Section 313(a), 33 U.S.C. (Supp. III) 1323(a), imposes a duty on federal agencies to comply with water pollution abatement requirements “in the same man- ner, and to the same extent as any non-governmental entity .“ Neither Section 301(a) nor Section 3180) imposes any duty on federal agencies or restrictions on federal ac- tions that do not apply equally to all other dischargers of pollutants, Thus, unless the restrictions of Section 301(a) are deemed to override every competing interest held by anyone in the Nation, the Clean Water Act does not contain an “ordering of priorities” which the Courts are powerless to alter, The Act cannot reasonably be read as imposing such overriding restrictions. While Congress expected the Clean Water Act to be vigorously enforced, there is nothing in the Act or its history to suggest that Congress intended to limit the traditional role of the courts in the enforcement process, Cf. TVA v. Hill, supra, 487 U.S, at 198-194," There is instead strong evidence the Congress contem- plated that the federal courts would exercise their usual eq- uitable discretion in fashioning “appropriate relief, including a permanent or temporary injunction” against vi- olations of the Act (Section 309(b) of the Act, 33 U.S.C, 1319(b).® The legislative history shows that in developing the enforcement acheme of the Act, Congress intentionally drew on the enforcement mechaniams developed under Section 18 of the Rivers and Harbors Ap- propriation Act of 1899 (the Refuse Act), 33 U.S.C, 407, See 8, Rep. No, 92-414, 92d Cong., lat Seas, 63 (1971), reprinted in A Legislative History of the Water Pollution Control Act Amendments of 1972, 98d Cong., lat Seas, 1481 (1978) (“Legislative History”), See also Legisla- tive History 1306, Under that Act, injunctions requiring immediate cessation of discharges in violation of the Act were not automatic, In- stead, courts carefully fashioned appropriate relief to vindicate the purposes of the statute with due regard to the surrounding facts and circumstances, See, ¢.g., Reserve Mining Co, v. EPA, 614 F.2d 492, 635-587 (8th Cir, 1975); United States v. Rohm & Haas Co,, 500 © Dd 167, 196 (6th Cir, 1974), cert, denied, 420 U.S, 962 (1975); United States v. Kennebec Log Driving Co., 491 F.2d 562, 571 (let ir, 1978), on remand, 399 F. Supp. 754, 759 (D. Me. 1975). *Congress did specify certain circumstances when discharges of pollutants were to be immediately enjoined. In Section 504(a), 33 U.S.C, (Supp, II] 1364(a), it authorized the Adininistrator of the En- vironmental Protection Agency to bring suit “to immediately restrain” 9 The entire structure of the Clean Water Act confirms the need for flexibility in developing “appropriate” enforcement mechanisms, and the history of the development of the cur- rent version of the Act confirms congressional recognition of that need, The Act sets out a complicated and phased system of pollution abatement punctuated with statutory deadlines, When the statute was first enacted in 1972, Con- gress was aware that the deadlines might prove to be unattainable, See Legislative History 174-175, In fact, the original deadlines, requiring the best practicable control technology and secondary treatment by 1977 (Section 801(b)(1), 33 U.S.C, 1811(b)(1)), were not met by approxi- mately 20% of major industrial dischargers and 60% of major municipal dischargers in the nation, Environmental Quality—1979 at 118-114, As the 1977 deadline ap- proached, the EPA realized that many dischargers would not be able to comply with the requirements of the Act through no fault of their own, EPA, however, was not au- thorized to issue NPDES permits that delayed compliance beyond July 1, 1977, See Republic Steel Corp, v. Costle, 581 F. 2d 1228, 1232 (6th Cir, 1978), The Agency developed a program of extending the compliance period through prosecutorial restraint, It issued an Extended Compliance Schedule Letter (ECSL) to deserving dischargers, pledging not to bring an enforcement action as long as the discharger complied with the extended schedule of progress, See Monongahela Power Co, v. EPA, 586 F.2d 318, 320 (4th Cir, 1978). When Congress considered the 1977 Amendments to the Act, administration spokesmen recommended against a broad extension of the date of compliance, They argued that prosecutorial discretion in federal enforcement would discharges of pollutants that he finds to be causing or contributing to “an imminent and substantial endangerment to the health of persons or to the welfare of persons * .“ This provision is the only section of the Clean Water Act that approaches the congressional ordering of pri- orities this Court found in Section 7 of the Endangered Species Act, It also is strong evidence that Congress did not expect that a rule of au- tomatic, immediate restraint would be applied to other violations of the Act, 10 protect a discharger unable to comply despite reasonable efforts, They also suggested that courts deciding citizens suits to enforce the Act (see 83 U.S.C, 1865(b)(1)(B)) would not take “drastic action” against such a polluter if the fed- eral and state authorities had decided that enforcement was not appropriate, Hearings on Federal Water Pollution Control Act Amendments of 1977 Before the Subcomm., on Bnvironmental Pollution of the Sen te Comm, on Envi- ronment and Public Works, 95th Cong., Ist Seas, (Pt. 9) 649 (1977), See State Water Control Board v. Train, supra, 659 F.2d at 927; Consolidation Coal Co, v. Costle, supra, 604 F.2d at 246, Based on these representations, Congress codified the ECSL program by amending 33 U.S.C, 1819, which governs enforcement and remedies for violations of the Act, to authorize the EPA to grant exten- sions to April 1, 1979 (Section 809(A)(5)(B), 38 U.S.C, (Supp. III) 1819(a)(5)(B)). See Monongahela Power Co, v. EPA, supra, 586 F.2d at 820-821, This legislative history demonstrates that neither EPA nor the Congress believed that the Clean Water Act re- quires the issuance of an injunction to terminate every technical violation of its requirements, If distriet courts lacked discretion to refuse to require immediate cessation of discharges in violation of the Act, prosecutorial restraint by the government would be of little value, Citizens, either by filing a suit or intervening in an ongoing federal action, could overturn the government's discretionary decision simply by demanding that the court issue an immediate ces- sation order, If Congress had so interpreted the Act, it would have been forced to take emergency action in 1977 to prevent the possibility of wholesale shutdowns of major in- dustries and municipal wastewater treatment works, b. An injunction forbidding unlicensed discharges into the coastal waters is not necessary to vindicate the policies of the Clean Water Act. Equitable relief of some sort is presumptively appropri- ate to remedy violations of the Clean Water Act, The con- tent of the equitable decree, however, is not necessarily im- mediate cessation of discharges violating the Act, Instead, courts must fashion “appropriate” relief (83 U.S.C. 11 1319(b)): relief that adequately vindicates the purposes and policies of the Clean Water Act with due regard to equita- ble principles. See Realty Income Trust v. Eckerd, 564 F.2d 447, 456-457 (D.C. Cir. 1977); see generally Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944); United States ex rel. Greathouse v. Dern, 289 U.S. 352, 360-361 (1933); 7 Moore’s Federal Practice J 65. 1813] at 65-133 to 65-140.1 (2d ed. 1980). If the EPA is a party to the civil action, either as the plaintiff in a federal enforcement action or as an intervenor in a citizens suit (see 33 U.S.C. 1365(c)(2)), the court will have the recommendation of the Administrator as to the ap- propriate form of equitable relief.“ Ordinarily, we would expect a district court to defer to the EPA’s judgment of an appropriate remedial order absent a finding that the EPA’s request is arbitrary or capricious or ignores relevant fac- tors. In cases such as this, where the EPA is not a party to an action and has not otherwise addressed the question of an appropriate remedy (through, for example, a compliance order (33 U.S.C. (Supp. III) 1319(a)(1)), a district court must fashion a remedy independently. The touchstone of any order must be to attempt to bring the discharger into compliance with the Act. But the surrounding facts and cir- cumstances should be evaluated to create an equitable rem- edy that both vindicates the purposes and policies of the Clean Water Act and applies general equitable principles. The remedy ordered by the district court satisfies these standards. Although the court directed the Navy to apply for a NPDES permit, it declined to enjoin the Navy activity which results in discharges pending issuance of the permit. This order vindicates the purposes of the Clean Water Act „In developing a remedial program, the Administrator considers such factors as the practicality of a time schedule for compliance, good faith of the discharger, national uniformity of treatment for classes and categories of dischargers and competing interests in health, safety and welfare. And, while lack of environmental damage is not a defense to violation of the Clean Water Act, the likelihood of irreparable degrada- tion of water quality would suggest rigorous remedial action. Cf., 40 C. F. R. 123. ge). 12 by bringing the Navy into compliance with the Act, and re- flects a proper balance of the equitable factors involved. The overall purpose of the Clean Water Act is to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters” (Section 101(a), 33 U.S.C. 1251(a)). The word integrity “refers to a condition in which the natu- ral structure and function of ecosystems is maintained” (H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 76 (1972), re- printed in Legislative History 763. An ecosystem whose structure and function is natural was defined as “one whose systems are capable of preserving themselves at levels be- lieved to have existed before irreversible perturbations caused by man’s activities” (H.R. Rep. No. 92-911, supra, at 77, reprinted in Legislative History 764. The district court found that “the activities of defendant Navy are not causing any appreciable harm to the Vieques ecology” (App. C, infra, 162a). The evidence presented at trial es- tablished that the Navy’s activity on Vieques—including the occasional, inadvertant release of ordnance into the coastal waters—does not adversely modify the ability of the waters to sustain animal or plant life through turbidity, sedimentation or changes in chemical composition (App. C, infra, 80a, 115a—126a). The coral reef and seagrass sys- tems in waters surrounding the island were found to be healthy, functioning components of the marine environ- ment. Therefore, an injunction was not necessary to pro- tect the aquatic environment. There was, moreover, no evidence that the Navy activity violated any standards and limitations of the Clean Water Act other than the permit requirement. The district court found, and the court of appeals affirmed, that the Navy ac- tivity complied with Puerto Rico water quality standards (App. A, infra, 18a-22a; App. C, infra, 8la-86a). The EPA has not issued effluent limitations for occasional de- posits of ordnance pursuant to Sections 301(b) and 304(b) of the Act, 33 U.S.C. (& Supp. III) 1311(b) and 1314(b). See E. I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 130-133 (1977). In fact, no effluent limitations have been promulgated for activities resembling depositing ordnance unintentionally in coastal waters. See 40 C. F. R. Part 400 et 13 seq. In these circumstances, an injunction restraining the Navy activity would prohibit what the agency adminis- tering the Clean Water Act ultimately may find acceptable in issuing an NPDES permit. In addition, the Navy has acted in good faith to comply with the requirements of the law. It had not been con- tended by anyone, prior to this suit, that the incidental re- lease of ordnance into the coastal waters is subject to the permit requirements of the Clean Water Act. The EPA made several inspection visits to Vieques to ascertain the Navy’s compliance with various environmental laws. The Puerto Rico Environmental Quality Board communicated with the EPA concerning the Navy’s compliance with the Act, but did not suggest that a NPDES permit was re- quired for the release of ordnance. In fact, the first inkling the Navy received that anyone thought that a NPDES per- mit was required was the complaint which was filed in this suit without satisfying the sixty-day notice requirement of Section 505(b)(1)(A), 33 U.S.C. 13650b)(1) (A). 1% After the district court decision, the Navy expeditiously filed an ap- plication for a NPDES permit with the EPA. The delay in issuing the permit has rested with the EPA, which has to devise ad hoc conditions for the permit pursuant to Section 402(a), 33 U.S.C. 1342(a); that delay may continue due to Puerto Rico’s reluctance to certify compliance with local water quality standards. See Section 401, 33 U.S.C. (Supp. IIT) 1341(a). Finally, there are significant and exceptionally strong eq- uitable considerations arguing against the imposition of an injunction in this case. The district court properly declined to enter injunctive relief that would have a profound ad- 10 In a somewhat similar situation, problems associated with the de- posit of shot into the water by duck hunters who miss their targets have been regulated by the Secretary of the Interior under the Migra- tory Bird Treaty Act, 16 U.S.C. 703 et seq. See National Rifle Ass’n v. Kleppe, 425 F. Supp. 1101 (D.D.C. 1976), aff'd, 571 F.2d 674 (D.C. Cir. 1978). The EPA aided the Department of the Interior in devel- oping these regulations; there was no suggestion that duck hunters need an NPDES permit to comply with the Clean Water Act. 14 verse impact on the ability of the Atlantic Fleet to satisfy its national security obligations. The Navy weapons train- ing facilities in and around Vieques are unique in the Atlan- tic. They provide the Atlantic Fleet with the opportunity to train under conditions resembling actual combat. The quali- ty of training experience offered by the Vieques facilities cannot be duplicated by use of other Navy target ranges. In addition, every vessel from the Atlantic Fleet assigned to active duty in the Mediterranean or the Indian Ocean must qualify its guns on the Vieques NGFS range. (See App. C, infra, 164a—165a.) In light of these considerations, the court of appeals’ jus- tification of an injunction on the grounds that the permit process might turn up evidence of more extensive environ- mental harm is chimerical. It is the primary purpose of the NEPA to develop and disclose information on the environ- mental impacts of federal activities. An EIS has been pre- pared, see note 2, supra, and it discloses no significant ad- verse effects on the coastal waters from the challenged deposits of ordnance. There is no reason to expect a differ- ent result in the permit process. In sum, the court of appeals’ opinion reflects a clear mis- understanding not only of TVA v. Hill, supra, but also of the purposes, policies and procedures of the Clean Water Act. 2. Contrary to the court of appeals’ somewhat cavalier assumption (App. A, infra, 49a), the possibility of a presi- dential exemption pursuant to Section 313(a), 33 U.S.C. (Supp. III) 1323(a), does not adequately protect the various federal interests involved. Section 313(a) aut vizes the President to “exempt any effluent source of a..y depart- ment * * * in the executive branch from compliance with any * * * requirement if he determines it to be in the para- mount interest of the United States to do so * * *.”1! This 11The exemption may not exceed a year, but may be renewed if a new presidential determination is made. Annual reports to Congress are required. In addition, the President may “issue regulations ex- empting from compliance with the requirements of this section any weaponry, equipment, aircraft, vessels, * * * or other classes or cate- 15 provision is evidently intended to provide for relief only in extraordinary circumstances, when the requirements of the Act are inconsistent with essential federal activities. 12 Ac- cordingly, Exec. Order No. 12088, 43 Fed. Reg. 47707, 47709 (1978), provides that the EPA Administrator and the Director of the Office of Management and Budget will me- diate exemption requests submitted by agency heads. Ex- emptions are granted by the President only if the conflict between pollution control standards and crucial federal ac- tivities cannot be resolved through the development of a practicable remedial program. The court of appeals’ decision seriously undermines this policy of accommodation. If violations of the Clean Water Act—and of other similar environmental statutes (see note 6, supra)—result in automatic immediate cessation orders, federal agencies will be strongly motivated to apply for presidential exemptions at the first indication that their critical facilities or activities may be in violation of applica- ble statutes or regulations. To wait until efforts at accom- modation are completed would hazard an abrupt disruption of federal programs that may be vital to the health, safety and welfare of the American people. gories of property * * * which are owned or operated by the Armed Forces of the United States * * * and which are uniquely military in nature” (Section 313a, 33 U.S.C. (Supp. III) 1323(a)). The President must reconsider the need for any such regulations at three year inter- vals; none have been issued to date (ibid.). 12For example, the Act expressly provides “{njo such exemptions shall be granted due to lack of appropriation unless the President shall have specifically requested such appropriation * * * and the Congress shall have failed to make available such requested appropriation” (33 U.S.C. (Supp. IIT) 1323(a)). 1 The federal agency is required to certify in the exemption request that it cannot meet the applicable pollution control standards. Because the EPA has not yet developed general effluent limitations to apply to the occasional deposit of ordnance into coastal waters, and military needs preclude awaiting the development of particularized limitations pursuant to Section 402 (33 U.S.C. 1342), the non-existence of any ap- plicable standards would probably satisfy that requirement in this case. 16 Finally, the reliance of the court below on the possibility of an exemption shifts the burden of devising an equitable and practical remedial program from the courts to the Of- fice of the President. Exemptions, of course, may be uncon- ditional; such exemptions may, however, unnecessarily delay federal agency compliance with the requirements of the Clean Water Act. If, for that reason, the Office of the President conditions an exemption on compliance with re- medial action, it will in effect be formulating an equitable decree to satisfy the purposes and policies of the Clean Water Act. It is the role of the courts to fashion appropri- ate equitable relief for violations of federal law. The federal courts should not abdicate that responsibility and shift it to the Office of the President in the absence of a clear con- gressional direction to do so. CONCLUSION The petition for a writ of certiorari should be granted. The Court may wish to consider summary reversal. Respectfully submitted. WADE H. MCCREE Solicitor General ANTHONY C. LIOTTA Acting Assistant Attorney General EDWARD J. SHAWAKER. ANNE S. ALMY Attorneys MAV 1981 Appendix A UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 79-1626 CARLOS ROMERO-BARCELO, ETC., ET AL., PLAINTIFFS-APPELLANTS, V. HAROLD BROWN, ET AL., DEFENDANTS-APPELLEES. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [HoN. JUAN R. TORRUELLA, U.S. District Judge] (478 F. Supp. 646) Before CoFFIN, Chief Judge, CAMPBELL AND BOWNES, Circuit Judges. January 26, 1981 BOWNES, Circuit Judge. The Commonwealth of Puerto Rico appeals from the district court’s denial of its request for a comprehensive injunction against the United States Navy’s military training operations on the Island of Vieques, a municipality of the Commonwealth. Armed with a battery of federal and state laws, Puerto Rico! alleged 1 Appellants—Governor Carlos Romero-Barcelo on behalf of the Commonwealth of Puerto Rico; Radames Tirado Guevara, Mayor of Vieques; and the Board on Environmental Quality—are hereinafter collectively referred to either as Puerto Rico or the Commonwealth. la 2a that the Navy’s? activities in and around Vieques cause ir- reparable injury to the island’s ecology and its inhabitants. More specifically, Puerto Rico claims that the Navy’s oper- ations pollute the island’s air and its coastal waters, threat- en the habitats of endangered species and many of the is- land’s irreplaceable historical sites, and diminish the productivity of the island’s fishing and agricultural re- sources. The Commonwealth also claimed that the Navy transferred certain training activities from the island of Culebra to Vieques, contrary to congressional and execu- tive directives. After an extensive trial, the district court ordered the Navy to obtain a NPDES permit, prepare an environmental impact statement and obtain a determina- tion on the eligibility of certain historical and prehistoric sites on the island for inclusion in the National Register of Historie Places. The court otherwise ruled in the Navy's favor and refused to enjoin the training operations. Barcelo v. Brown, 478 F. Supp. 646 (D.P.R. 1979). Before turning to the issues raised by Puerto Rico on appeal, we briefly sketch some ‘basic characteristics of the island and the Navy’s activities. VIEQUES The island of Vieques lies six miles off the southeastern coast of Puerto Rico and approximately nine miles directly south of the island of Culebra. Situated on an east-west axis, Vieques is nearly twenty miles long with an average width of four miles. Of total area of approximately 33,000 acres, the Navy owns 25,231.72 acres, or slightly more than 76% of the island. Certain features of the island’s ecology deserve particu- lar mention. Fringe and offshore coral reefs are found in the coastal waters of Vieques, primarily off the northern, 2Appellees—Harold Brown, Secretary of Defense; W. Graham Claytor, Jr., Secretary of the Navy; James L. Holloway, Chief of Naval Operations; I.C. Kidd, Jr., Commander in Chief of the Atlantic Fleet; and Louis H. Wilson, Commandant of the Marine Corps—are herein- after collectively referred to as the Navy. ga eastern and southern shores. Seagrass flourishes along the ocean floor adjacent to the coasts: the largest concentration runs from Punta Caballo on the north coast eastward around Punta Arenas to the southwest coast. There are also several large mangrove stands located along the shores: in the west near Punta Arenas and in the south around Puerto Mosquito, Puerto Ferro and Ensenada Honda. Three of the seven bioluminescent bays known to exist in the world are located along the southern coast—Puerto Mosquito, Puerto Ferro, and Bahia Tapon. Of the animal species living on Vieques, six are desig- nated by the U.S. Fish and Wildlife Service as either “en- dangered” of “threatened.” 50 C. F. R. § 17.11. The “endan- gered” are the manatees, the brown pelicans, the leatherback turtles and the hawksbill turtles. Considered “threatened” are the green turtles and the loggerhead tur- tles. At least some of the nesting sites favored by the peli- cans and the turtles are located within the areas where the Navy conducts its training operations. The human history of the island dates back at least to the ninth century A. D. At that time, Vieques served as a transit stop in the migration of Arawak Indians from the Orinoco Basin in South America (Venezuela) to Puerto Rico and Hispaniola (Haiti and the Dominican Republic). At the time of Columbus’ “discovery” of Vieques in 1493, the is- land was used by the Carib Indians as a temporary base from which they carried out raids against the people of Puerto Rico. Spain’s movement into the Caribbean during the sixteenth century resulted in the first permanent habi- tation of Vieques by Indians who sought to escape the Spanish occupation of Puerto Rico and St. Croix. Although Spain apparently never attempted to colonize Vieques, it periodically sent military expeditions to the island through- out the seventeenth and eighteenth centuries to maintain its hegemony over the island. The early years of the nineteenth century mark the be- ginning of Vieques’ modern history. In 1816 colonists from *Inconclusive archeological evidence suggests the presence of a preceramic Indian culture as early as the second century A. D. 4a St. Croix and St. Thomas established the first livestock ranches, thus beginning what is today the island’s primary agricultural activity. Soon thereafter, one of the colonists organized the construction of a fort at Isabel Segunda. In addition to ranching, the economy of Vieques at this time involved timber harvesting for export to the Virgin Is- lands, subsistence farming and fishing. By the second half of the century, sugar cane had become the leading cash crop. After the Spanish American War of 1898, Vieques, to- gether with the rest of Puerto Rico, became a Territory of the United States. The island’s economy continued to be dominated through the early 1940’s by sugar cane cultiva- tion, ranching, and fishing. Since the mid 1940's, however, the sugar cane industry has declined to a point where it is of no current importance to the island. Thus, the islanders now derive their livelihood from the same sources relied upon by their ancestors more than one hundred fifty years ago—fishing, subsistence farming and ranching. During the early 1940’s the Navy acquired title to most of its present holdings on Vieques. As a result of these acqui- sitions, civilians now occupy an area of about 7,000 acres, bounded on both the east and the west by Navy property.“ The present population distribution reflects the island’s economy. Of a total population of approximately 8,000, close to 5,000 people live in a rural environment outside the two coastal towns. Located on the northern coast of the ci- vilian sector is the capital, Isabel Segunda, which has be- tween 2,400 and 2,500 inhabitants. Esperanza, the island’s other town, located on the southern coast, has a population of approximately 600. NAVY OPERATIONS ON VIEQUES The Naval Ammunition Facility (NAF) encompasses the entire area of Vieques west of the civilian zone. The Navy At the time of trial, the Navy also owned a small parcel within the civilian sector, It has since been conveyed to the Commonwealth of Puerto Rico. 5a uses the facility for deep storage of conventional ammuni- tion. Ships delivering the ordnance® dock at Mosquito Pier, located on the northern coast of the NAF. From there, it is transported by truck to bunkers distributed throughout the NAF. Most of the ammunition is destined for off-island use by the Navy, the Marines and the Puerto Rican National Guard. Occasionally, ammunition is transferred overland from the NAF to the ground maneuver area located east of the civilian zone. The Navy’s installations on the eastern half of Vieques are part of a large military complex known as the Atlantic Fleet Weapons Training Facility, headquartered at Roosevelt Roads Naval Station in Ceiba, Puerto Rico. The facility consists of four firing ranges of which only two are related to Vieques. The outer range, a large area of ocean, at its closest points to Vieques lies thirty-five miles to the north and twenty miles to the south. Within this range, the Navy conducts exercises in ship to ship weapons fire, ship to air missile fire and air to air weapons fire. The under- water range, located off the western shore of St. Croix, in- volves training in three dimensional tracking of surface and underwater objects. The electronic warfare range is a net- work of “threat platform” simulators located in Puerto Rico and nearby islands. These are used to train shipboard and airborne electronic warfare teams and provide tactical elec- tronic order of battle support for operations conducted on the other ranges. One simulator is positioned at the west- ern end of Vieques atop Monte Pirata. Until recently, the inner range consisted of air to ground bomb and missile tar- gets and naval gunfire support targets on Culebra, and air to ground, artillery and naval gunfire support targets on Vieques. In 1975, however, the Navy ceased its Culebra operations. Thus, the Vieques installations now comprise the entire inner range. ‘Both the parties and the district court refer to “ammunition” and “ordnance” interchangeably. Although we accept this usage for pur- poses of this case, it is our understanding that “ordnance” includes weapons as well as ammunition. 6a The inner range is divided into four distinct areas, The ground maneuver area (GMA) extends from the civilian sec- tor eastward for approximately seven miles to a cattle fence which runs the width of the island. Located at the southwestern corner of the GMA is Camp Garcia, a Marine Corps camp which, although able to accommodate several thousand troops, is occupied by one marine. The principal use of the GMA is for Marine amphibious landings. These are conducted throughout the year, primarily on the south- ern beaches between Punta Conejo and Punta Negra. A typical landing will require the use of large attack trans- ports from which are launched the lending craft and am- phibious tracked vehicles, These smaller craft carry troops, tanks and other equipment to the beaches, Once landed, the troops perform maneuvers throughout the GMA, which at times include artillery fire. Upon completion of the land ex- ercise the troops embark from the beaches and return to the attack transports. An amphibious landing usually is accompanied by low-level support flights by fixed wing jet aircraft and helicopter gunships. An amphibious exercise may involve anywhere from two to twenty thousand troops; it may be independent of other inner range operations, or it may be part of a single large-scale maneuver in concert with the Navy’s sea and air forces. The surface impact area (SIA) begins about one mile east of the cattle fence and extends approximately two and one- half miles east to a “firebreak” designated as the western friendly front line. Artillery training, strafing and air to ground bombing, the latter two using inert ammunition only, occur within this area, The artillery is positioned near the western border of the SIA—about six miles from the nearest point in the civilian zone—loaded with live ammu- nition and fired at targets located in the eastern part of the SIA. Air to ground bombing is directed at two bullseye tar- gets. Target #2 is situated about one-half mile east of the SIA’s western boundary; target #1 is on a point along the northern half of the western friendly front line, The strafing targets are located at the southern most point of the firebreak. Ta The Air Impact Area (AIA), also known as the Close Air Support Zone (CAS), runs from the western friendly front line eastward for about two miles to the eastern friendly front line. This area, in which live ammunition is used, con- tains as targets mockups of two surface to air missile sites, an airstrip, a fuel farm and an ammunition dump. There are also two remote controlled moving targets inland and six naval gunfire support targets along the southern coast of the AIA. No targets exist in the area between the eastern friendly front line and Punta Este, the easternmost point of Vieques. An infrequently used water target lies about one mile east of this point. Air and sea operations in the inner range occur about 200 days out of a year, usually between 7:30 a.m. and 10:00 p.m. Operations are directed by observers positioned in an observation post on Cerro Matias, located in the southeast- ern part of the SIA. Aircraft taking off from the Roosevelt Roads airfield or a carrier located north of Vieques first fly north of Vieques and then circle around the eastern coast to approach the range from the south. Aircraft taking off from carriers located south of Vieques use a straight approach from that direction. Any aircraft carrying ammunition, whether live or inert, is prohibited from flying over the ci- vilian area, As best as can be estimated, an aircraft train- ing in the range would ordinarily come no closer than with- in five and three-quarters miles of the civilian zone. Ship to shore gunnery directed at the naval gunfire sup- port targets in the AIA is also restricted to a southern ap- proach, When firing, the ships are usually positioned be- tween three and eleven miles off the southern shore of the AIA, All ship to shore firing occurs within a designated danger zone, which permits the Navy to prohibit all civilian navigation while the area is in use. THE ISSUES ON APPEAL Puerto Rico challenges the district court's rulings on the following issues:“ „The Navy did not appeal the district court's order requiring the Navy to obtain a NPDES sewage discharge permit, prepare an 8a 1. Did the Navy “transfer” training activities froin Culebra to Vieques in violation of certain Military Con- struction Authorization Acts? 2. Does the dropping of ordnance into the coastal waters of Vieques violate the Puerto Rico Water Quality Stand- ards, contrary to the requirements of § 313 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1828(a)? 8. Did Congress intend to permit a private cause of ac- tion to enforce § 18 and § 15 of the Rivers and Harbors Act of 1899, 38 U.S.C. 58 407, 4097 4. Does the danger zone regulation promulgated by the Corps of Engineers, 33 C. F. R. § 204,284, unreasonably re- strict the food fishing industry of Vieques contrary to 33 U.S.C. § 3? 5. Do the Navy's training activities generate such noise as to create a public nuisance in violation of Puerto Rico's criminal nuisance statute, P. R. Laws Ann, tit. 33, § 13665, and the requirements of § 4 of the Noise Control Act, 42 U.S.C. § 4908(a)? 6. Do the Navy’s activities on Vieques violate the En- dangered Species Act of 1978, 16 U.S.C, §§ 1531-1543? 7. Does the Navy's survey of historical sites on Vieques satisfy the requirements of § 106 of the National Historic Preservation Act, 16 U.S.C, § 470f, Executive Order 11598 and 36 C. F. R. § 800.4? 8, Should the Navy be enjoined from conducting training operations on Vieques? After oral argument, we requested that the parties sub- mit supplemental briefs on the question of whether any of the plaintiffs have a right of action to challenge the alleged violations of certain military authorization acts and execu- tive branch directives related to training activities on environmental impact statement and obtain a determination on the eli- gibility of certain historical and prehistorical sites for inclusion in the National Register of Historic Places. 9a Culebra and Vieques. With the benefit of briefs from both parties, we first address that question.“ RIGHT TO CHALLENGE THE ALLEGED TRANSFER OF MILITARY TRAINING ACTIVITIES Puerto Rico alleged that the Navy “clandestinely” has transferred training operations from Culebra to Vieques, contrary to the “clear command” of the Military Construc- tion Authorization Acts of 1971, 1972 and 1974. The district court rejected this contention, ruling that the statutes do not establish an enforceable mandate, and expressed seri- ous doubt that a transfer of activities actually had occurred. On appeal, Puerto Rico argues that the trial court’s narrow view of the acts ignores Congress’ “carefully crafted” statu- tory “procedure” intended to protect the interests of the Commonwealth; Puerto Rico also challenges the court’s finding that a transfer did not in fact occur. Our initial task is to ascertain whether Congress intended to permit the Commonwealth,® or any other party, to seek judicial en- Because we understand the district court’s decision on this question to include a determination that Puerto Rico had failed to state a claim upon which relief can be granted, we reject the Commonwealth’s con- tention that the issue is not properly before us. The Navy raised this issue in its answer and the district court ruled, inter alia, that Puerto Rico had failed to establish the existence of a judicially enforceable mandate. 478 F. Supp. at 697-700. Although the Commonwealth’s standing as parens patriae in an ac- tion against the Navy may be questioned, compare Commonwealth of Pennsylvania v. Kleppe, 533 F.2d 668 (D.C. Cir. 1976) with Washing- ton Utilities & Transp. Comm'n v. F. C. C., 513 F.2d 1142 (9th Cir. 1975), we think the Commonwealth certainly has standing to raise this issue on the basis of the alleged injuries to its quasi-sovereign interest “in all the earth and air within its domain,” an interest that is “inde- pendent of and behind the titles of its citizens ....” Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907). Cf. Massachusetts v. Mellon, 262 U.S. 447, 482 (1923) (acknowledging the distinction be- tween a state’s quasi-sovereign interest in the environment and its sta- tus as parens patriae). See also Missouri v. Holland, 252 U.S. 416, 431 (1920). Because we conclude that Puerto Rico has alleged “a ‘dis- tinct and palpable injury’ . . fairly traceable’ .. . to the challenged conduct” of the Navy, Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 73 (1978) (citations omitted), we need not decide 10a forcement of the three authorization acts. As with any question of statutory interpetation, we begin with an exam- ination of the language of the statutes and the related exec- utive branch directives. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 16 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979). In October 1970 Congress adopted the Military Construc- tion Authorization Act of 1971, Pub. L. No. 91-511, 84 Stat. 1204. Section 611(a) of the Act directed the Secretary of Defense “to prepare a report of the weapons training now being conducted in the Culebra complex ....” The Secretary was order.d to evaluate “all possible alterna- tives, geograp}.cal and technological,’’ and make “recommendaticus for . . . moving all or part of such activi- ties to a new sii? or sites,” giving particular consideration to six factors: (1) the safety and well-being of the people who live on Culebra; (2) the natural and physical environment of Culebra and adjoining cays and their recreational value; (3) the development of a sound, stable economy in Culebra; (4) the unique political relationship of Culebra and Puerto Rico to the United States; (5) the operational readiness and proficiency of the Atlantic Fleet; and (6) national security. Section 611(b) provided that the report was to be prepared in consultation “with the people of Culebra, the Govern- ment of Puerto Rico, and all appropriate federal agencies.” Finally, the Navy was directed to “avoid any increase or expansion of the present weapons range activities in the Culebra complex and, wherever possible, without degrad- ing the activities, to institute procedures which will mini- whether the Mayor of Vieques or the Board on Environmental Quality have standing to litigate this case. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263-64 (1977). lla mize interference with the normal activities and the soli- tude of the people of Culebra.”® On April 1, 1971, Secretary of Defense Laird transmitted to Congress and the President the mandated report. In a press release issued the same day, the Secretary an- nounced that he had ordered the Navy “to institute imme- diately a number of actions which will enhance the safety and well being of the residents of Culebra and reduce the irritants to them resulting from Navy training.” The Secre- tary also expressed his intention to reappraise the situation by the end of 1972 and make a final decision about where to relocate the Culebra operations. With the enactment in 1971 of § 207 of the Military Con- struction Authorization Act of 1972, Pub. L. No. 92-145, 85 Stat. 394, Congress directed the Secretary of Defense to prepare a new study of “the most advantageous alternative {to the Culebra training complex] on the basis of investiga- tions which consider cost, national security, the operational readiness and proficiency of the Atlantic Fleet, the impact on the environment, and other relevant factors.” On De- cember 27, 1972, Secretary Laird submitted his report and recommendations to the President and Congress. In an ac- companying letter he identified Vieques as the best of the available alternative sites but concluded “that the Culebra complex offers such advantages over all other alternatives studied that none of these other alternatives can be consid- ered reasonable.” Relocation to Vieques “would significant- ly reduce the capability of the Inner Range and would transfer the training activity from an island with 700 inhab- itants to one with 7,000 inhabitants,” an “[im)prudent course of action.” Thus, he recommended “that the Navy retain its training targets in the Culebra complex,” yet “re- main abreast of developments that would modify ... the Navy’s need” for the Culebra range. On January 11, 1971, the Navy entered into an agreement with the Government of Puerto Rico which imposed certain restrictions on the Culebra operations and also contained the Navy’s assurance that it would “continue to investigate both technological and geographical alternatives to the training done around Culebra.” 12a In the following spring of 1973, Secretary Laird’s succes- sor, Elliot Richardson, informed the Secretary of the Navy that it was in the Defense Department’s long-range inter- ests to transfer the Culebra training activities to the is- lands of Desecheo and Monito by July 1, 1975. This relocation was to occur, however, only after Congress had appropriated the necessary funds and the Navy had achieved a “satisfactory overall arrangement with the gov- ernment of Puerto Rico for carrying out the proposed move and for insuring the long-term continuation of the Atlantic Fleet Weapons Range and the Fleet Marine Force training area.” a Congress responded to this change in the Defense De- partment's position with the enactment in 1973 of the Mili- tary Construetion Authorization Act of 1974. Pub. L. No. 93-166, 87 Stat. 668. Section 204(a) of the Act authorized the appropriation of $12,000,000 to facilitate the relocation of the Culebra training operations. But § 204(b) “expressly conditioned [the relocation] upon the conclusion of a satis- factory agreement to be negotiated by the Secretary of the Navy ... with the Commonwealth of Puerto Rico and re- ported to the Committees on Armed Services of the Senate and the House of Representatives prior to execution of such agreement.” Congress directed that “the agreement shall provide, among other things, that the Commonwealth of Puerto Rico shall insure that (1) Commonwealth lands suitable for carrying out operations of the type referred to in subsection (a) will be made available for the long-term continued use of the Atlantic Fleet Weapons Range and Fleet Marine Forces training areas by the Navy, including, but not limited to, present areas and facilities on the island of Vieques... .” Despite the absence of an agreement between the Navy and Puerto Rico, on June 22, 1974, Secretary of State Kissinger, acting as National Security Adviser, informed the Secretary of Defense of the president’s decision to ter- minate the training activities on Culebra by July 1, 1975, and those on the Culebra Cays by December 31, 1975. Kissinger directed the Secretary of Defense “to consider and select alternative sites for the weapons range activi- a 13a ties” and stated that t he selection of the new site, if it is in Puerto Rico, will be contingent on its being acceptable to the Commonwealth... . The Navy has ceased its opera- tions on Culebra and negotiations continue over the selec- tion of a new site. When Congress has not expressly provided for the pri- vate enforcement of a statute, there is little likelihood that the legislative history will disclose whether Congress nonetheless intended that result. Cannon v. University of Chicago, 441 U.S. 677, 694 (1979). Thus, the statutory lan- guage becomes the best evidence of Congress’ intent. As the Supreme Court recently recognized, in each of its earlier cases that did imply a private cause of action the statute in question either conferred a federal right on pri- vate parties or proscribed certain conduct. Touche Ross & Co. v. Redington, 442 U.S. at 569. Implicit in this observa- tion is that the absence of statutory language that either prohibits some action or confers rights weighs heavily against implication of a private cause of action. Neither the Military Construction Authorization Act of 1971 nor the 1972 Act creates rights or proscribes conduct of any relevance to this case. The 1971 Act’s partial restric- tion of the Navy’s activities in Culebra was unrelated to Navy operations on the other islands of the Common- wealth. In contrast, the 1974 Act made the relocation of the Navy’s Culebra operations contingent on the execution of an agreement between the Navy and Puerto Rico. But even if we characterize this as a limited prohibition,’ it appears from the language of the pertinent provision and the accom- panying committee report that the condition was imposed to benefit the Navy rather than Puerto Rico. Section 204(b) 10Congress’ requirement of an agreement prior to relocation was ef- fectively a prohibition only with respect to the expenditure of the $12,000,000. Without mention of the 1974 Act, President Nixon subse- quently ordered the termination of the Culebra operations, ignoring the safeguards required by the Act. The Navy never expended the $12,000,000 appropriation and the Congress eventually reallocated the amount to a Navy construction project in the Indian Ocean area. See Supplemental Appropriation and Recission Act, Pub. L. No. 96-304, 94 Stat. 857 (July 8, 1980). l4a required that the agreement contain assurances from the Commonwealth “that Commonwealth lands suitable for car- rying out operations . . . will be made availabe for the long term continued use of the . . . Navy, including, but not lim- ited to, present areas and facilities on the island of Vieques .. . . Not only does this language impose an obligation on the Commonwealth rather than the Navy, but it forecloses negotiation over the training areas and facilities on Vieques. In the same vein, the joint conference report that accompanied the final draft of the Act states: The restrictive language in Section 204 is a result of discussion with the Governor and others and the con- ferees believe it provides sufficient protection to the Navy upon relocation of ship-to-shore gunfire opera- tions from Culebra to the other Islands mentioned. H.R. Rep. No. 634, 93d Cong., Ist Sess. 35 (1973). If Con- gress had intended to ereate a private right of aetion, it would have provided first for a right or duty upon which private enforcement could be based. But the authorization acts leave Puerto Rico without a place to hang its hat; the statutes grant no right to the Commonwealth, nor do they impose an obligation on the Navy for the benefit of the Commonwealth. Puerto Rico argues that the authorization acts reflect Congress’ intention to obligate the Navy to confer with other parties, particularly the Commonwealth, prior to any transfer of the Culebra operations. As part of that argu- ment, Puerto Rico maintains that Congress anticipated that the agreement mandated by the 1974 Act would provide for “other things” beyond the Commo:iwealth’s assurances of an adequate alternative site. The Commonwealth contends that this phrase undoubtedly was intended to encompass provisions for the protection of its environment and the welfare of its citizens; Congress impliedly sought to pre- vent a recurrence of the ecological and political problems created by the Navy’s use of Culebra. Puerto Rico con- cludes that as the party most to be benefitted from this inferred congressional prohibition of unilateral Navy ac- tion, it must be granted a cause of action to vindicate Con- gress’ intent. 15a Other than the phrase “among other things,” however, Puerto Rico is unable to direct us to one provision in any of the three acts that establishes the mandate it seeks to en- force. Instead, it relies primarily on the “necessary” infer- ences to be drawn from the statutes and the executive branch directives; Puerto Rico interprets the latter docu- ments to corroborate its position. But the expansive infer- ences drawn by Puerto Rico, which we do not find to be free from doubt, must be contrasted with the limited na- ture of the legislation. The 1971 Act and the 1972 Act, as related to Vieques, directed the Secretary of Defense to prepare two feasibility reports; that is all. The 1974 Act did mandate execution of an agreement prior to relocation from Culebra. So far as the statute provides, however, we know only that Congress intended by this condition to protect the Navy’s training capacity. Congress may have had a clear collective understanding of what “other things” were at issue, and the preferred resolution, but it chose not to re- flect this in its 1974 legislation. Instead, it left to the par- ties the task of hashing out an agreement, subject to con- gressional, not judicial, review. The absence of any enforcement scheme in the authorization acts reinforces our conclusion that Congress intended that the controversy surrounding the Navy’s training activities in Puerto Rico be resolved in the political sphere. Implication of a private cause of action would be contrary to the apparent intent of Congress, and, given the lack of a judicially enforceable mandate, a futile gesture. Puerto Rico relies on the various executive branch di- rectives principally to corroborate its interpretation of the authorization acts. As a second line of argument, however, it maintains that the directives have independent signifi- cance as sources of a private right of action. Unlike the sit- uation presented by the three statutes, at least one of the directives contains a provision which ordered the Navy to obtain the Commonwealth’s agreement prior to a relocation of the Culebra operations. In 1974 National Security Advis- er Kissinger, on behalf of the President, directed the Secre- tary of Defense to end the Culebra operations and select a new site contingent on its being acceptable to the Common- 16a wealth. Puerto Rico contends that this order imposed a legal obligation on the Navy that is enforceable by the Commonwealth. We conclude, however, that the Presi- dent’s order does not have the force and effect of law and thus is not enforceable by an implied private cause of ac- tion. The Commonwealth attempts to cloak the 1974 presiden- tial order with statutory authority, characterizing it as in furtherance of the 1974 Act. But in fact the order essential- ly ignored what we perceive to be the intent of Congress as evidenced in the Act. Rather than require the Common- wealth to insure alternative sites prior to a relocation of the Culebra operations, as Congress mandated, the President ordered termination of those operations without any prior assurances from Puerto Rico. Moreover, the order granted the Commonwealth a veto over the Navy's choice of an alternative site; nothing in the Act suggests that Congress intended such a role for the Commonwealth. When the President issued this order, he necessarily relied not on any statutory authority, but on his constitutional authority as the chief executive and the commander in chief of the armed forces. As such, the President has the power to di- rect the activities of the military but he is without the au- thority to legislate. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 578, 587-88 (1952). Without some basis in an act of Congress, the directive cannot constitutionally be invested with the status of law, see Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 234-36 (8th Cir. 1975), thus obviating a decision on the question of an im- plied cause of action." 11The other executive branch directives invoked by Puerto Rico do not require extensive comment. The statements of Secretary Laird, to the extent they pertain to Vieques, contain nothing more than certain recommendations based on the Department’s evaluation of the island and the other potential relocation sites. Secretary Richardson's memo- randum to the Secretary of the Navy does not address the transfer of Culebra operations to Vieques. He ordered relocation to the uninhabited islands of Desecheo and Monito and required the Common- wealth’s participation only with respect to the implementation of the 17a The Commonwealth's reliance on section 10 of the Administrative Procedure Act as an alternative source for a cause of action founders upon the limitations inherent in the Act. Section 10(a) of the APA provides that “[a] person suffering legal wrong because of agency action, or adverse- ly affected or aggrieved by agency action within the mean- ing of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702. But assuming that the Navy did “transfer” the Culebra activities to Vieques, that action is not “agency action.” Section 2 of the APA defines agency action to include “the whole or a part of an agency rule, order, license, sanc- tion, relief or the equivalent or denial thereof, or failure to act. Id. § 651(18). Each of the types of action includ- ed within this definition is separately defined in § 2. See id. § 551(4), (6), (8), (10), (11). All but one of these specific def- initions refer to one of two forms of regulatory activi- ty—agency rulemaking or agency adjudication. “Sanction” is defined to include, in addition to regulatory activity, “any agency . . . destruction, taking, seizure or with- holding of property.” Id. § 551(10). The Navy’s transfer of military training activities did not remotely involve rulemaking or adjudication, nor, at least in this case, did it result in the “destruction, taking, seizure or withholding of property.” We recognize that Congress intended the APA to span a “broad spectrum of administra- tive actions.” Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). Nonetheless, the language of § 2 evidences that Congress intended to reach only actions that are administrative, and we conclude that the challenged activi- ties of the Navy do not fall within that spectrum. But see Standard Oil Co. of Ca. v. F. T. C., 596 F.2d 1381, 1884-85 (9th Cir. 1979). Even if we were to accept that the “transfer” constituted agency action, we would characterize it as action “com- plan and protection of the Atlantic Fleet's interests. Moreover, Richardson's directive was essentially superseded by the President's 1974 order. 18a mitted to agency discretion by law,” 5 U.S.C. § 701(a)(2), and thus unreviewable. This exception to § 10’s broad entitlement to judicial review applies only “in those rare in- stances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.“ Citizens to Pro- tect Overton Park v. Volpe, 401 U.S. 402, 410 (1971), quoting S. Rep. No. 752, 79th Cong., Ist Sess, 26 (1945). See Chrysler Corp. v. Brown, 441 U.S. 281, 317 (1979). The question before us presents one of those rare in- stances. The Commonwealth has cited as the applicable constraint on the Navy’s training activities the Military Construction Authorization Acts of 1971, 1972 and 1974. But, as we have already explained in some detail, those statutes do not provide the judiciary with any “law to apply.” “ We affirm the district court’s ruling that with respect to the alleged transfer of military training activities from Culebra to Vieques, Puerto Rico has failed to state a claim upon which relief can be granted. POLLUTION OF THE COASTAL W* TERS 1. Puerto Rico Water Quality Standards Section 313 of the Federal Water Pollution Control Act Amendments subjects every “department, agency, or instrumentality of the executive, legislative and judicial branches of the Federal Government” to “all Federal, ‘Because we conclude that the authorization acts are of no rele- vance to the Navy's authority to conduct the Vieques operations, we need not undertake the more detailed analysis set forth in Mahn v. Gottlieb, 480 F.2d 1243, 1249 (1st Cir. 1970), to determine the applicability of the “committed to agency discretion” exception of 5 U.S.C. § 701(a(2). Cf. Carter v. Colon, No. 80-1666, et al., slip op. at 4-6 (Ist Cir, Oct. 24, 1980) (recent application of the Hahn analysis). *Our conclusion that the authorization acts do not impose a duty on the Navy to the benefit of the Commonwealth also undermines the Commonwealth's reliance on 28 U.S.C. § 1361. That statute grants the “district courts original jurisdiction of any action in the nature of man- damus to compel an officer . . of the United States . to perform a duty owed to the plaintiff.” Jd. See Falzarano v. United States, 607 F. 2d 606, 518 (Ist Cir. 1979). 19a State, interstate, and local requirements.. respecting the control and abatement of water pollution in the same manner and to the same extent as any nongovernmental entity.” 83 U.S.C. § 1823(a). Puerto Rico alleged that the Navy, by dropping ordnance into the waters of Vieques, has violated several water pollution control regulations pro- mulgated pursuant to the Commonwealth's Water Pollution Control ts and Public Policy Environmental Control Acts.“ The district court rejected this allegation, finding no viola- tion of the water quality standards it deemed applicable to the Navy’s activity. 478 F. Supp. at 664-69. On appeal, Puerto Rico asserts that, contrary to the trial court’s opin- ion, there are three germane water quality standards that the Navy has violated.** We consider each separately.'* Article 2.1.1 of the Puerto Rico Water Quality Stand- ards 17 provides: The waters of Puerto Rico shall not contain materials attributable to discharges that will settle to form objectionable deposits. Nor will they contain floating debris, scum, oil and other floating materials attribu- table to discharges in amounts sufficient to be unsight- ly or deleterious. Puerto Rico argues that the trial court erred in its interpretation of 2.1.1 by according determinative signifi- cance to the term “discharges,” contrary to the purposes of 10 P. R. Laws Ann. tit. 24, $$ 591-601. 1% P. R. Laws Ann. tit. 12, §§ 1128-1142. 1 puerto Rico's reliance on the SB waters classification’s prohibition of solids is misplaced. This prohibition of solids was part of the pre-1970 regulations, 24 P. R. R. & R. 598-5(a)(A) & (B), and has been superseded by Article 7.3 of the current Regulation, Puerto Rico Water Quality Standards.” % We undertake this examination of the water quality standards without the benefit of any prior judicial or administrative interpreta- tion. *The “Puerto Rico Water Quality Standards” are designated as a single “Regulation.” Each section of the Regulation is denoted an Au- ticle.” The Regulation is reprinted in Envir. Rep.—State Water Laws (BNA) 896:0801—; 0310. 20a the regulations and statute. We cannot agree. Article 2.1.1 expressly and exclusively addresses materials “attributable to discharges,” which are defined as “{t]he outflow of wastewater from any ... source into receiving waters.” Article 1. Turning to the definition of wastewater, we are directed to the definition of municipal wastes, which is AIwlater carrying human and animal wastes from homes, buildings, industrial establishments and other places alone or in combination with industrial wastes.” Jd. No fair read- ing of this language warrants the conclusion that Article 2.1.1. applies to the bombing and shelling of coastal waters. In contrast, the prohibitions annunciated in Article 2.1.3 are not limited in application to materials attributable to discharge. Article 2.1.3 directs that At he waters of Puerto Rico shall not contain substances in concentrations or com- binations which produce undesirable physiological re- sponses in human, fish, or other animal life, and plants.” More specifically, subsection (A) establishes with respect to the coastal waters the “maximum allowable concentrations” of iron and certain other inorganic substances. Puerto Rico contends that the district court ignored the general prohibi- tion of “substances ... which produce undesirable physiological responses” and erred in its finding that the Navy’s activity did not result in a violation of the maximum allowable concentration of iron. The weakness in Puerto Rico’s first contention is that it reads into Article 2.1.3 an unjustifiable breadth in scope. Article 2.1.3 speaks not simply of “substances,” which, ad- mittedly, could be construed to encompass solids such as spent ordnance as well as other refuse. Rather, the regula- tion addresses “concentrations” or “combinations” of sub- stances. Those terms appear to refer in this context to the presence of chemicals and chemical processes rather than that of solids such as discarded ordnance. For example, the “maximum allowable concentrations” established by 2.1.3 are expressed in terms of milligrams per liter, hardly a measurement appropriate to shell casings or bomb rem- nants. And those limitations are devoted to the specifica- tion of allowable concentrations of minerals and pesticides, not those of solids. We conclude that the apparent thrust of 21a this regulation is the control and abatement of chemical pol- lution. We therefore agree with the district court that the sole issue under Article 2.1.3 is whether the Navy’s used ammunition caused concentrations of iron in certain areas of the coastal waters to exceed the specified maximum al- lowable concentration. With respect to this question, we find nothing in the re- cord to contradict the trial court’s finding. Although it ap- pears fairly clear that the concentrations of iron in some areas near the target range do exceed the Article 2.1.3(A) standard, Puerto Rico failed to establish that ordnance dropped by the Navy caused these excessive concentrations of iron. Thus, the district court correctly found no violation of Article 2.1.3. Finally, we turn to the broadly phrased prohibition of Article 4 of the Water Quality Standards, Article 4.1.1 pro- vides that Injo person shall cause or permit the pollution of the waters of Puerto Rico. . . Pollution is defined in Ar- ticle 1 as lalltering the natural characteristics of a body of water so as to make it in any way harmful or noxious to human heulth, or to that of animals, plants, or ren- dering it ill-smelling or impure or altering adversely its physical, chemical, microbiological or radioactive condition, in such a way as to interfere with enjoyment of life or property or violate the standards of purity es- tablished by this Regulation. Puerto Rico argues that the district court failed to apply Article 4.1.1 as a “generic” prohibition distinct from the specific standards set forth in Article 2. We conclude, how- ever, that Article 4.1.1 does not constitute a “standard” as referred to in Puerto Rico’s Water Pollution Control Act. The statutory prohibition of pollution makes it “unlawful for any person . . . to throw, discharge, pour or dump into the waters . . . any organic or inorganic matter capable of polluting” these waters “in such a manner as to place them out of the minimum standards of purity that the Board on Environmental Quality] may establish ... .” P.R. Laws Ann. tit. 24, § 595. Similarly, the statute de- fines pollution as “making [the waters] in any way noxious 22a . . all according to the permissible standards of purity . . . established as provided herein.” P.R. Laws Ann. tit. 24, § 591(i). This language evidences the legislature’s judg- ment that the general prohibition of pollution is not enough; standards explicating what pollution is must be provided. The statute anticipates administrative specifications of its broad proscription in the form of standards by which partic- ular actions may be evaluated. But Article 4.1.1 merely re- phrases the general statutory command; it offers no clarifi- cation of that language, nor, unlike Article 2, does it provide any additional guidance to those who must conform to the law. To accept 4.1.1 as a “standard” would render meaningless the statutory requirement that the regulations promulgated thereunder further define and clarify the gen- eral statutory proscription of pollution. Because Article 4.1.1 is not a standard as contemplated by the authorizing statute, we decline to give it effect separate from the actual standards of the Regulation.“ We affirm the district court’s conclusion that the Navy has not violated the applicable Puerto Rico Water Quality Standards or 33 U.S.C. & 1323(a). 2. The Rivers and Harbors Act of 1899 The second phase of Puerto Rico’s attempt to halt the Navy’s dropping of ordnance into the coastal waters of Vieques rests primarily on an alleged violation of Section 13 of the Rivers and Harbors Act of 1899. 33 U.S.C. § 407. As a complement to that claim, Puerto Rico alleged that the Navy’s sinking of the U.S.S. Killen in the Bahia Salinas del Sur violated Section 15 of the same act. 33 U.S.C. § 409. The district court ruled that neither § 13 nor § 15 give rise to a private cause of action for injunctive relief. 478 F. Supp. at 669-72. We affirm that decision with respect to § 13, but vacate the court’s ruling with respect to § 15. Section 13 makes it unlawful to throw, discharge or de- posit “any refuse matter .. into any navigable water of 1®The statutory provisions that empower the Board to adopt regula- tions, P. R. Laws Ann. tit. 12. § 1131(18) and tit. 24, 5598, 599, con- tain nothing contrary to this conclusion. 23a the United States. without a permit from the Adminis- trator of the Environmental Protection Agency. 33 U.S.C. §$§ 407, 1342(a). The “comprehensive language” of this pro- hibition reflects a broad statutory purpose—the protection of navigation and the prevention of pollution. United States v. Standard Oil Co., 384 U.S. 224, 228-30 (1966). See United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 (1973). Under § 17 of the Act, it is the duty of the Department of Justice to “conduct the legal proceedings necessary to enforce the provisions” of § 13. 33 U.S.C. § 413. Although the Act expressly provides for criminal penalties only, id., courts have recognized the federal gov- ernment’s implied authority to seek injunctive relief for a violation of § 13. United States v. Stoeco Homes, Inc., 498 F. 2d 597 (3d Cir. 1974), cert. denied, 420 U.S. 927 (1975). See Wyandotte Transp. Co. v. United States, 389 U.S. 191 (1967); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F. 2d 81 (2d Cir. 1972). Puerto Rico argues that the broad purposes of § 13 also warrant the implication of a pri- vate cause of action for injunctive relief. We undertake an analysis of this claim mindful of the Supreme Court’s recent adherence “to a stricter standard for the implication of pri- vate causes of action.. i Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979). 1 None of the courts of appeals that have previously considered this question were willing to imply a private cause of action under § 13. See National Sea Clammers Ass'n v. City of New York, 616 F.2d 1222 (8d Cir.), cert. granted, 49 U. S. L. W. 3281 (Oct. 14, 1980) (No. 79-1760); Sierra Club v. Andrus, 610 F.2d 581 (9th Cir. 1979) (die- tum), cert. granted sub nom., Kern County Water Agency v. Sierra Club, 49 U.S.L.W. 3212 (Oct. 7, 1980) (No. 79-1502); City of Evansville, Inc. v. Kentucky Liquid Recycling, Inc., 604 F.2d 1008 (7th Cir. 1979); Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972 (qui tam action); Guthrie v. Alabama By- Products Co., 456 F.2d 1294 (5th Cir. 1972) (per curiam), cert. denied, 410 U.S. 946 (1973); Bass Anglers Sport man's Society of America, Inc. v. Koppers Co., 447 F.2d 1804 (5th Cir. 1971) (per curiam). See also Parsell v. Shell Oil Co., 421 F. Supp. 1275 (D. Conn. 1976), aff'd mem, sub nom. East End Yacht Club, Inc. v. Shell Oil Co., 573 F.2d 1289 (2d Cir. 1977); Loveladies Property Owners Ass'n v. Raab, 430 F. Supp. 276 (D.N.J. 1975), aff'd mem. 647 F.2d 1162 (3d Cir. 1976), cert 24a The touchstone of this inquiry is whether Congress in- tended that the statute be enforced by private parties. Transamerica Mortgage Advisers, Inc. v. Lewis, 444 U.S. 11, 15 (1979); Touche Ross & Co. v. Redington, 442 U.S. at 568. That intent usually can best be ascertained by ad- dressing four factors. See Cort v. Ash, 422 U.S. 66, 78 (1975). First, it must be determined from the statutory lan- guage “whether the statute was enacted for the benefit of a special class of which the plaintiff is a member.” Cannon v. University of Chicago, 441 U.S. 677, 689 (1979). The duties imposed by § 13 benefit the public at large: nothing in the statutory language identifies any special class as the princi- pal intended beneficiary.2° Rather, if there is a principal beneficiary of § 13’s proscription, it is the “Government it- self.” Wyandotte Transp. Co. v. United States, 389 U.S. at 201. With a statute such as § 13, one which creates “duties on the part of persons for the benefit of the public at large,” the Supreme Court “has been especially reluctant to imply causes of actions.” Cannon v. University of Chicago, 441 U.S. at 691-92 n. 13. The second factor requires an investigation of the legisla- tive history. As the Supreme Court has recognized, howev- er, little is likely to be learned from the legislative history of a statute which is silent on the question of private en- forcement. Jd. at 694. The debates and reports preceding § 13’s enactment at most evidence that Congress had no in- tent with respect to this question. See Touche Ross & Co. v. Redington, 442 U.S. at 571. denied, 482 U.S. 906 (1977). Although the district court thought that the Fourth circuit may have recognized a private cause of action in Rucker v. Willis, 484 F.2d 158 (4th Cir. 1973), River v. Richmond Metropolitan Authority, 481 F.2d 1280 (4th Cir. 1973), and Lauritzen v. Chesapeake Bay Bridge and Tunnel District, 404 F.2d 1001 (4th Cir. 1968), we do not find those decisions to support that conclusion. *°That the Commonwealth of Puerto Rico is one of the plaintiffs in this case does not alter our conclusion. Section 18 “no more evidences an intent to ‘especially’ benefit a class of [state governments) or their agents than a class of private parties City of Evanaville, Ind. v. Kentucky Liquid Recycling, Inc., 604 F. 2d 1008, 1012 n.7 (7th Cir.), cert. denied, 444 U.S. 1025 (1979). 25a The third factor is whether it is “consistent with the un- derlying purposes of the legislative scheme to imply such a remedy ... . 1 441 U.S. at 688-89 n.9. Section 17 of the Act provides that Atlhe Department of Justice shall con- duct the legal proceedings necessary to enforce” § 13. 33 U.S.C. § 413. The only role expressly created for private persons in the enforcement scheme is as informants; section 17 provides for the payment of one-half of a levied fine “to the person or person giving information which shall lead to conviction.” Id. § 411. In one respect, a private cause of ac- tion is clearly consistent with the legislative scheme. It would positively augment the government’s enforcement efforts, thus better effectuating the ultimate objectives of § 13. But notwithstanding the remedial advantages to be gained from such implication, the language of these provi- sions establishes that Congress vested in the federal gov- ernment the primary responsibility for enforcement.?? To *1 Later in the Cannon opinion the court rephrased this factor as a question of whether “a private remedy . . . would frustrate the under- lying purpose of the legislative scheme” and observed that “when that remedy is necessary or at least helpful to the accomplishment of a stat- utory scheme, the Court is decidedly receptive to its implication... .” 441 U.S. at 703. To the extent that this rephrasing weighs more favor- ably towards implication of a private cause of action, we think it re- flects the Court’s previous conclusion that the statute at issue was in- tended to benefit a special class. The potential remedial advantages of an implied cause of action no longer hold the sway they once did, Tou- che Ross & Co. v. Redington, 442 U.S. at 578, even when the statute at issue does benefit a special class, Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. at 15-16, 19-20, 23-24. a puerto Rico puts great store in the fact that the Department of Justice is obligated to represent federal agencies charged with a viola- tion of the Act and thus is “in no position to enforce the Act” against those same federal agencies. Natural Resources Defense Council, Inc. v. Grant, 355 F. Supp. 280, 290 (E. D. N. C. 1973). The Commonwealth maintains that a private parties must be allowed to vindicate the pub- lie's interest in environmental protection. Id. See People of the State of Illinois ex rel Scott v. Hoffman, 425 F. Supp. 71 (S.D. III. 1977). See also Sierra Club v. Andrus, 610 F.2d 581, 590-91 (9th Cir. 1979), cert. granted, 49 U.S.L.W. 3212 (Oct. 7, 1980) (No. 79-1502). But whether or not this situation presents an insuperable conflict, our responsibility is to ascertain Congress’ intent, not to improve upon its enforcement scheme. Touche Ross & Co. v. Redington, 442 U.S. at 578. Moreover, 26a the extent that this decision involved factors other than the protection of navigation and the prevention of pollution, im- plication of a private cause of action could very well frus- trate Congress’ intent. See Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d at 89. Finally, we must consider “whether implying a federal remedy is inapprorpiate because the subject matter in- volves an area basically of concern to the States.” Cannon v. University of Chicago, 441 U.S. at 709. The federal in- terest in navigation and the control of pollution cannot be doubted. Congress’ power under the Commerce clause gives that body virtually plenary authority over the naviga- ble waters of the United States. See, e.g., Gilman v. Philadelphia, 70 U.S. (3 Wall.) 713 (1865); Gibbons v. the absence of an implied private cause of action under § 13 does not mean that federal agencies are effectively free to ignore their responsibilities with respect to the control of water pollution. Section $13 of the Federal Water Pollution Control Act Amendments subjacts every federal agency to “all Federal, State, interstate, and local re- quirements . . . respecting the control and abatement of water pollu- tion ... .” 88 U.S.C. § 1882(a). Under § 505 of the same Act, id. § 1365, Puerto Rico may sue to enforce that obligation, as it has done in this case. The similarity in purpose between the Rivers and Harbors Act and the Federal Water Pollution Control Act is reflected in the fact that the permit requirement imposed by § 13 is now implemented by the Administrator of the EPA under § 402 of the Federal Water Pollution Control Act. See 33 U.S.C. § 1342(a)(1)(2). Because no issue is presented here in which the substantive requirements of § 13 might differ from those of the Federal Water Pollution Control Act, we need express no view on the availability of a right of private enforcement against federal defendants in a situation in which they did. 20 Section 17 requires the Department of Justice “to vigorously pros- ecute all offenders . . . when requested to do so by the Secretary of the Army or by any of the officials hereinafter designated . . . .” 38 U.S.C. 413. It vests in the appropriate administrative officials, if not also the Attorney General, the discretion to decide whether § 13 should be enforced in a particular case. As a provision for prosecutorial discre- tion, it reflects a legislative decision to husband the enforcement re- sources of the federal government, including those of the judiciary. The government’s decision not to enforce § 13 against a particular party, perhaps in anticipation of an informal resolution of the matter, could be frustrated by a private party armed with an implied cause of action. 27a Ogden, 22 U.S. (9 Wheat.) 1 (1824). Since the enactment of the Rivers and Harbors Act in 1899, Congress has expand- ed federal efforts to control the pollution of navigable waters with the adoption of the Federal Water Pollution Control Act, as amended, 33 U.S.C. §§ 1251-1376. The en- actment in 1969 of the National Environmental Policy Act, 42 U.S.C. 88 4321-4369, underscores the federal commit- ment to combat pollution. We perceive no federalism- comity problems militating against the implication of a pri- vate cause of action under § 13. Of the four factors we have analyzed to ascertain Con- gress’ intent, only the last clearly favors implication of a private cause of action. Although we recognize the private enforcement of § 13 might be conducive to the protection of navigation and the control of pollution, Atjhe ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme. Touche Ross & Co. v. Redington, 442 U.S. at 578. What evidence there is does not warrant a conclu- sion that Congress intended to create a private cause of ac- tion under § 13.24 Section 15 of the Rivers and Harbors Act makes it unlaw- ful “to voluntarily, or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels 33 U.S.C. § 409. Puerto Rico maintains that the Navy’s in- tentional sinking of a target ship, the U.S.C. Killen, in the Bahia Salinas del Sur, violated this prohibition. We con- clude that Puerto Rico is without standing to assert this claim. 24T wo of the decisions relied upon by Puerto Rico rest, in principle if not by name, on an application of § 10(a) of the Administrative Proce- dure Act, 5 U.S.C. § 702. See Citizens Committee for Hudson Valley v. Volpe, 425 F. 2d 97 (2d Cir.), cert. denied, 400 U.S. 949 (1970); Peo- ple of the State of Ill. ex rel Scott v. Hoffman, 425 F. Supp. 71 (S.D. Ill. 1977). That statute creates a right to judicial review for persons in- jured by “agency action,” the definition of which does not encompass the Navy’s dropping of ordnance into the coastal waters of Vieques. See 5 U.S.C. § 551(13). See pp. 18-19, supra. 28a “The essence of the standing inquiry is whether” the plaintiff has alleged “a ‘distinct and palpable injury’... ‘fairly traceable’ ... to the challenged conduct.” Duke Power Co. v. Carolina Env. Study Group, 438 U.S. 59, 73 (1978) (citations omitted). Puerto Rico failed to allege that the sinking of the U.S.S. Killen resulted in any form of harm to the island or its inhabitants. Nor does the relief requested—an injunction against the Navy’s training activ- ities on Vieques—implicitly suggest the harm which Puerto Rico might have alleged. An injunction against current Navy activities hardly would remedy any injury to the en- vironment or navigation caused by a sunken vessel. Re- moval of the ship would be the appropriate remedy for harm resulting from the ship’s presence, but Puerto Rico did not request that relief.25 The failure to allege a distinct and palpable injury renders Puerto Rico’s claim under § 15 nonjusticiable. See Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39 (1976); Linda R.S. v. Richard D., 410 U.S. 614, 617 (1973). Thus we vacate the district court’s decision with respect to this claim, and remand with instructions to dismiss for lack of jurisdietion. 2 RESTRICTIONS ON FISHING “In the interest of the national defense, and for the bet- ter protection of life and property,” section 1 of the Army Appropriation Act of 1918 authorizes the Secretary of the Army “to prescribe such regulations as he may deem best for the use and navigation of any portion or area of the nav- igable waters ... under the jurisdiction of the United States endangered or likely to be endangered by Artillery 25Puerto Rico correctly argues that a violation of § 15 can be estab- lished without proof that navigation has been actually obstructed by the voluntary sinking of a vessel. This does not, however, obviate the jurisdictional requirement that a private party seeking relief under § 15 allege some injury to fact to itself. 26Given our disposition of this claim, we need not decide whether a private cause of action for injunctive relief should be implied from § 15. Nonetheless, we think it appropriate to observe that our analysis of that issue with respect to § 13 is equally applicable to § 15. 29a fire in target practice or otherwise. . . 33 U.S.C. § 3. The sole express restraint imposed by the statute on the Secretary’s power provides “that the authority conferred shall be so exercised as not unreasonably to interfere with or restrict the food fishing industry ....” Id. Pursuant to this authority, the Secretary has promulgated danger zone regulations individually tailored to the particular area of water in question. See 33 C. F. R. § 204. In 1974 the Secretary of the Army promulgated the fol- lowing regulation: Carribean Sea and Vieques Sound in vicinity of East- ern Vieques, bombing and gunnery target area. (a) The Danger Zone. From Punta Conejo on the south coast of Vieques at latitude 18°06'30’, longitude 65°22'33"; thence to latitude 18°03'00", longitude 65°21'00"; thence to latitude 18°03'300", longitude 65°15'30"; thence to latitude 18°11"30", longitude 65°14'30"; thence to latitude 18°12'00", longitude 65°20'00"; and thence to Cabellos Colorados on the north coast of Vieques at latitude 18°09'49”, longitude 65°23'27”". (b) Regulations. (1) It will be open to navigation at all times except when firing is being conducted. At such times no surface vessels, except those patrolling the area, shall enter or remain within the danger area. Prior to conducting each firing or dropping or ord- nance the danger area will be patrolled to insure that no watercraft are within the danger area. Any water- craft in the vicinity will be warned that practice firing is about to take place and advised to vacate the area. (2) The regulations will be enforced by the Com- mander. Caribbean Sea Frontier, San Juan, P.R., and such agencies as he may designate. 33 C. F. R. § 204.234 (1979). At trial, Puerto Rico contended that the Navy’s use of this area for bombing and gunnery practice unreasonably interfered with the island’s food fishing industry, in viola- tion of 33 U.S.C. § 3. In rejecting this claim, the district court ruled that: 30a The Plaintiffs herein have presented absolutely no evidence that Defendant Navy has impermissibly or unilaterally expanded the areas authorized as a danger zone (33 C. F. R. § 204.234) ... The navigable waters contiguous to Defendant Navy’s weapons training range at Vieques are navigable waters of the United States, and they have been restricted in exactly the manner intended by law and regulations. 478 F. Supp. at 701. On appeal Puerto Rico argues that the district court failed to consider the needs of Vieques’ fishing industry, in disregard of the statutory requirement that the danger zone regulation not unreasonably interfere with or restrict the food fishing industry. We conclude, however, that the only question properly before the court was whether the Navy had complied with the danger zore regulation. As is apparent from the statutory language, the provi- sion against unreasonable interference with the food fishing industry applies to the Secretary of the Army’s exercise of his authority to prescribe and regulate. Assuming that the Navy has acted in accordance with 33 C.F.R. § 204.234, to decide whether the Navy has unreasonably interfered with fishing would necessarily draw into question the validity of the regulation under the enabling statute, 33 U.S.C. § 3. Yet Puerto Rico has not named the Secretary of the Army as a defendant in this case. Thus, if we, or the district court, were to define a standard of reasonableness for 33 U.S.C. § 3 and apply it to the facts of this case, we would do so in the absence of the agency responsible for the ad- ministrative determination that 33 C. F. R. § 204.234 com- ports with the statutory command. None of the record rele- vant to the formulation of this regulation is part of the record in this ease.“ Nor, of course, has the Secretary had the opportunity, at trial or on appeal, to defend the propri- ety of the regulation. 27 The current regulation, 36 C. F. R. § 204.234, was promulgated only after the Corps of Engineers had provided public notice of the proposed regulation and an opportunity for comments. 39 Fed. Reg. 13889, 27133 (1974). 31a Had the district court ruled on whether 33 C. F. R. § 204.234 unreasonably interferes with the food fishing in- dustry, we would vacate that ruling for the reasons stated above.?® We conclude, however, that the court’s decision is only a determination that the Navy has complied with 33 C.F.R. § 204.234. We need offer no opinion on this because Puerto Rico has not challenged it on appeal. NOISE POLLUTION In its complaint, Puerto Rico contended that the Navy’s training activities generate “shock waves and excessive noise that unreasonably interfere with the health and wel- fare of residents of Vieques. . . It sought to enjoin these activities as a violation of the Commonwealth’s criminal nuisance statute, 2 P. R. Laws Ann. tit. 33, § 1365,%° al- leged to be applicable to the Navy’s operations through Section 4 of the Noise Control Act, 42 U.S.C. § 4903(b) (the Act). 1 The district court denied the request for an in- 28 When necessary to protect the interests of an absent party, a court of appeals should consider sua sponte whether a claim should be dismissed for failure to join an indispensable party. See Provident Bank & Trust Co. v. Patterson, 390 U.S. 102, 111 (1968); NLRB v. Doug Neal Management Co., 620 F.2d 1133, 1139 (6th Cir. 1980); Kimball v. Florida, 537 F.2d 1305, 1307 (5th Cir. 1976). 2® Although Puerto Rico does not seek to impose criminal penalties on the Navy, it chose to base its case on its criminal nuisance law rath- er than its very similar civil nuisance statute, P. R. Laws Ann Tit. 32, § 2761, perhaps because the latter does not expressly refer to public nuisances. See note 40 infra. The choise of statute relied upon does not affect our analysis or conclusion. 30 P. R. Laws Ann. tit. 33, § 1365 provides in pertinent part: Anything which is injurious to health, or is indecent or offen- sive to the senses, or is an obstruction to the free use of proper- ty, so as to interfere with the comfortable enjoyment of life or property by an entire community or neighborhood, or by any con- siderable number of persons, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, river, bay, stream, canal or basin, or any public park, square, street or highway is a public nuisancel.] 31 42 U.S.C. § 4903(b) provides in pertinent part: (b) Each department, agency, or instrumentality of the execu- 32a junction, ruling that the Act does not apply because the nuisance statute does not establish noise control “require- ments” as that term is used in Section 4. 478 F. Supp. at 675. Despite this ruling, the court proceeded to consider the evidence and determined that the noise attributable to the Navy’s activities does not interfere with the quality of life on Vieques. Id: at 680. We conclude that the district court was without jurisdiction to entertain Puerto Rico’s claim. A careful reading of the Noise Control Act’s citizen suit provision, section 12, 42 U.S.C. § 4911, discloses that Con- gress expressly created a private cause of action only with respect to the enforcement of federal noise control require- ments. Subsection (a) permits “any person,” including a state, to bring suit in federal district court against any fed- eral agency that has violated a “noise control requirement.” That term is defined in subsection (f) by reference to other sections of the Act, all of which concern the granting of regulatory powers to the Administrator of the EPA or the Secretary of the Treasury, and the enforcement of regula- tions promulgated thereunder. Section 12 has no provision for citizens’ suits to enforce a federal agency’s duty to com- ply with state and local requirements regarding the control and abatement of environmental noise. Thus, Puerto Rico’s claim, premised on a violation of state law, cannot be main- tained under § 12 of the Act, 42 U.S.C. § 4911. In the absence of an alternative basis in federal law, the unavailability of § 12 warrants dismissal of this state law claim for lack of jurisdiction because it is otherwise barred by sovereign immunity. See United States v. Testan, 424 tive, legislative, and judicial branches of the Federal Govern- ment— (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the emission of noise, shall comply with Federal, State, interstate and local require- ments respecting control and abatement of environmental noise to the same extent that any person is subject to such require- ments. 33a U.S. 392 (1976); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). We recognize, however, that § 4, to the extent it subjects every federal agency to state noise control requirements, arguably permits suit against an officer of a federal agency for a violation of those re- quiremenis.*? If § 4 requires the Navy to comply with Puerto Rico’s criminal nuisance statute, this responsibility may be enforceable by an implied cause of action under § 4.33 We reach the latter question, however, only if we 2 The doctrine of sovereign immunity bars suit against a federal agency eo nomine in the absence of an express congressional waiver. See United States v. Testan, 424 U.S. 392 (1976); United States v. King, 395 U.S. 1 (1969); Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119 (1st Cir. 1976). In con- trast, a federal officer is subject to suit despite the lack of express leg- islative waiver if that officer has acted outside the legal limitations on his authority. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949). The federal mandate provided in 42 U.S.C. § 4903(b) constitutes such a limitation. See Westinghouse Flec. Corp. v. Schlesinger, 542 F.2d 1190, 1214 (4th Cir. 1976), cert. denied, 431 U.S. 924 (1977). 33 A determination of whether Puerto Rico’s nuisance statute consti- tutes a requirement under § 4 will aiso determine whether the district court had subject matter jurisdiction over this claim. This question of jurisdiction should be resolved prior to a decision of whether Puerto Rico has stated a claim upon which relief can be granted. With respect to the latter issue, we observe only that implication of a cause of action is plausible. Although no court has previously decided whether § 12 exclusively defines the available causes of action under the Act, sever- al courts of appeals have considered, and disagreed, about the implica- tion of a cause of action in an analogous statutory context. Both the Clean Air Act and the Federal Water Pollution Control Act (FWPCA) contain citizen suit provisions quite similar to § 12. See 42 U.S.C. § 7604; 33 U.S.C. § 1365. The Courts of Appeals for the Second, Third and District of Columbia Circuits have held that 33 U.S.C. § 1365 does not preclude, inter alia, implication of a cause of action under different substantive provisions of the FWPCA. National Sea Clammers Ass’n v. City of New York, 616 F.2d 1222, 1228-31 (3d Cir.), cert. granted, 49 U.S.L.W. 3281 (Oct. 14, 1980) (No. 79-1760); Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 83-84 (2d Cir. 1975); Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 698-703 (D.C. Cir. 1974). The Seventh Circuit has rejected this conclu- sion with respect to the Clean Air Act. City of Highland Park v. Train, 519 F. 2d 681, 690-93 (7th Cir. 1975). cert. denied, 424 U.S. 927 34a first determine that Puerto Rico’s nuisance statute estab- lishes “requirements” that would trigger the application of § 4. The key issue, therefore, is the definition of “require- ments.” As used in § 4 of the Noise Control Act, the term stands unexplicated by Congress or the courts. But the model from which § 4 was drawn,“ section 118 of the Clean Air Act (currently codified at 42 U.S.C. § 7604), has re- ceived intense scrutiny. Judicial interpretation of the term “requirement” as used in § 118, and Congress’ response to that interpretation, sheds considerable light on the defini- tion of “requirements” as used in & 4.55 Section 118 of the Clean Air Act underwent its most im- portant dissection at the hands of the Supreme Court in Hancock v. Train, 426 U.S. 163 (1976). Two steps in the (1976). In a case involving the FWPCA, this court expressly reserved decision of the question. Commonwealth of Massachusetts v. United States Veterans Administration. 541 F.2d 119, 122-23 & n.4 (Ist Cir. 1976). Although the legislative history of § 4 does not identify § 118 as the prototype of § 4, there is a close similarity in the language of the two provisions. And the legislative history does establish expressly the overall importance of the Clean Air Act as a model for the drafters of the Noise Control Act. See S. Rep. No. 1160, 92d Cong., 2d Sess., re- printed in 11972] U.S. Code Cong. & Ad. News 4658, 4661, 4667. 35 Section 313 of the Federal Water Pollution Control Act, 33 U.S.C. § 1323, also tracks the language of § 118 and has been similarly con- strued. See Environmental Protection Agency v. California ex rel State Water Resources Board, 426 U.S. 200 (1976). 36 Congress legislatively reversed the actual holding of Hancock with the enactment of the Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685. See H.R. 6161, 95th Cong., Ist Sess. 12, re- printed in [1977] U.S. Code Cong. & Ad. News 1089-90. Neither the amendments nor the committee reports undermine that part of the Court’s reasoning upon which we rely. The companion case to Hancock, Environmental Protection Agency v. California ex rel State Water Resources Board. 426 U.S. 200 (1976), suffered like treatement with the enactment of the Clean Water Act of 1977, Pub. L. No. 95-217, § 60, 91 Stat. 1597, 1598. See S. Rep. No. 370, 95th Cong., Ist Sess. 67, reprinted in [1977] U.S. Code Cong. & Ad. News 4392. The apparent purpose of these amendments was to ensure the enforceabili- 35a Court’s analysis are particularly apposite to the question before us. First, the Court’s reading of § 118’s legislative history disclosed that the various preliminary drafts and the cummittee reports used “requirements” interchange- ably with “emission requirements” and “emission stand- ards.” Id. at 188-89 & n.2. Congress apparently under- stood “requirements” to refer to standards specifying the permissible emission levels for various point sources and pollutants.*? Though hardly conclusive, the court’s observa- tion presents some evidence of the legislative use of the term in the pollution control context, and particularly in the drafting of the prototype for § 4. The second step in Hancock pertinent to our inquiry rested on the Court’s recognition of the close relationship between § 118 and § 304, the citizen suit provision of the Clean Air Act. 42 U.S.C. § 7604. “§ 118 establishes the duty of federal installations to comply with state ‘require- ments,’ and § 304 provides the means of enforcing that duty in federal court.” 426 at 196. Section 304 restricts the area subject to enforcement by suit to emission limitations or standards, standards of performance, and compliance schedules. The Court concluded that the scope of the § 304 enforcement power defined the scope of the § 118 duties because “it seems most unlikely that in providing that a State might bring suit in district court to enforce the duties of federal installations under § 118, the Congress would not make all those duties enforceable. .. .” Jd. at 197. We recognize a similar relationship between the “re- quirements” of § 4 and those of § 12 of the Noise Control ty of the applicable substantive control requirements. We find no evi- dence that the amendments were intended to expand the category of applicable substantive requirements. 87 The Senate Committee report that accompanied the final draft of the Noise Control Act offers some evidence of a similar understanding with respect to the control of noise. See S. Rep. No. 1160, 92nd cong., 2d Sess., reprinted in [1972] U.S. Cong. & Ad. News 4655. In particu- lar, the Committee concluded that the federal noise control require- ments that would be enforceable under § 12 should be “technologically- based standards” rather than the more open ended standard of the “public health and welfare,” Jd. at 4659. 36a Act. The primary objective in our attempt to clarify the term “requirements” is to ascertain Congress’ intent and § 12 contains the sole legislative definition of that term in the Act. More importantly, that definition occurs in the provision for private enforcement of the Act. Section 12, unlike § 304 of the Clean Air Act, does not allow for suit by a state to enforce a state pollution control requirement. Thus, unlike the scheme of the Clean Air Act, § 12 does not define specifically which state requirements are incorpora- ted in § 4 But it does permit a state to bring suit against a federal agency for violation of certain federal requirements. Considered together, the federal requirements enforceable under § 12 are the best evidence of the type of noise con- trol requirement that Congress intended to be enfo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2169%3A1. Public record. Not legal advice.