Respondents Brief — Weinberger v. Romero-Barcelo

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x Office - Supreme U.S.

| So aoe FILED

No. 80-1990 DEC 21 1901

Der STEVAS,

IN THE —

Supreme Cuurt of the United States

OCTOBER TERM, 1981

| CASPAR WEINBERGER et al.,

, * Petitioners,

CARLOS ROMERO-BARCELo et ul.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR THE RESPONDENTS

HECTOR REICHARD DE CARDONA

Secretary of Justice

Government of Puerto Rico

HOWARD CHARLES

Department of Justice

Government of Puerto Rico

GERARDO A. CARLO

Special Counsel to the Governor

JOHN A. HODGES

(Counsel of Record)

TIMOTHY L. HARKER

LAWRENCE WHITE

JEFFREY N. MARTIN

PEABODY, LAMBERT & MEYERS

A Professional Corporation

1150 Connecticut Avenue, N.W.

Washington, D.C, 20036

(202) 457-1000

Counsel for the Respondents

December 21, 1981 a

—

WILSON - Epes PrinTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED FOR REVIEW

Whether this Court should overturn a unanimous deci-

sion by the United States Court of Appeals for the First

Circuit ordering a federal facility to comply with

the Federal Water Pollution Control Act, 33 U.S.C.

§ 1251 et seg. (1976 & Supp. III 1979), by ceasing to dis-

charge pollutants into the navigable waters of Puerto

Rico until it either obtains the permit required by the

Act or a Presidential exemption from the permit require-

ment as specified in the Act?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW

TABLE OF AUTHORITIES, .............-2-2.-..-cscecseesseeeseeeeeee

STATUTE INVOLVED DPD

STATEMENT OF THE CASE

II.

III.

SUMMARY OF ARGUMENT .....

ARGUMENT

NATURE OF THE CASE

A. The Statutory Scheme of the Federal Water

Pollution Control Act

B. The Island of Vieques

C. Navy Activities on Viequs

PROCEEDINGS IN THE TRIAL COURT ......

PROCEEDINGS IN THE COURT OF AP-

PEALS

I. WHERE A FEDERAL STATUTE IS BEING

VIOLATED THE EQUITABLE DISCRETION

OF A COURT IS TO BE USED TO ENSURE

A. A Court Does Not Have Equitable Discretion

to Permit a Continuing Violation of a Fed-

1. The Standard Derived from Litigation

Between Private Parties Does Not Apply

to the Issuance of Injunctive Relief for

Violations of Federal Statutes ................

2. A Consistent Line of Supreme Court De-

cisions Precludes the Exercise of Equi-

table Discretion to Permit a Continuing

Violation of a Federal Statute —................

iii

Page

—

78 — 8

TABLE OF CONTENTS—Continued

B. The Court Below Correctly Ruled that the

Trial Court Erred by Refusing to Enjoin the

Navy’s Ongoing Violation of the FWPCA.

II. INJUNCTIVE RELIEF IS REQUIRED IN

THIS CASE TO ENFORCE THE REQUIRE-

MENTS OF THE FEDERAL WATER POLLU-

TION CONTROL ACT

A. Introduction

B. The Permit Requirement Reflects Congress’

Express Intention to Prohibit Point-Source

Discharges Made Without a Permit

C. The Mandatory Administrative Review and

Compliance Schemes Specified in the FWPCA

Preclude Equitable Discretion to Allow an

Ongoing Violation of the Permit Require-

ID chinatchisncichiiinnglepnitccabtinsiahiclisieigiersiadiahibaaiaaadaa

D. The Legislative History of the FWPCA

Manifests a Clear Congressional Intent that

Federal Facilities We Comply with the

Act 2

1. Federal Facilities are to Serve as a Model

for Compliance with the Act

2. The Presidential Exemption is the Mech-

anism that Must be Used by Federal

Facilities to Authorize Discharges With-

out an NPDES Permit ies

U —————————

STATUTORY APPENDIX

Page

& &

TABLE OF AUTHORITIES

CASES: Page

Albemarle Paper Co, v. Moody, 422 U.S. 405

EE 21, 22

Alyeska Pipeline Service Co. v. Wilderness Society,

r 26

Arlington Coalition on Transportation v. Volpe,

458 F. 2d 1323 (4th Cir.), cert. denied sub nom.

Fugate v. Arlington Coalition on Transportation,

ee 26

Bethlehem Steel Corp. v. Train, 544 F. 2d 657 (3d

Cir. 1976), cert. denied, 480 U.S. 975 (1977) 34

Carter v. Colon, 638 F. 2d 964 (1st Cir. 1980) .. 46

City of Milwaukee v. Illinois, —— U.S. ——, 49

U.S. L. W. 4445 (1981) . 30, 33, 34, 35, 42

City of New York v. United States, 387 F. Supp.

ä TIP EIED senscccnsacosapssccccscescosccosceseszssceess 14

Commodity Futures Trading Comm’n v. British

American Commodity Options Corp., 560 F. 2d

r . 25, 27

Commodity Futures Trading Comm'n v. Hunt, 591

F. 2d 1211 (7th Cir.), cert. denied, 442 U.S. 921

r ss scs, cassdsccssensnsnecsoncocooce 25

Cooper v. Wisdom, 440 F. Supp. 1027 (S.D. Fla.

EE EE 35

E. I. Dupont de Nemours & Co. v. Train, 480 U.S.

r a. scccsennoncmasvensosooces 29, 30

EPA v. National Crushed Stone Ass'n, 449 U.S.

VS 36

EPA v. State Water Resources Control Board, 426

r ̃ 5“. 34

Gee v. Pritchard, 2 Swanston 403, 36 Eng. Rep.

r è r. 22

Hecht Co. v. Bowles, 321 U.S. 321 (19443) passim

Henderson v. Burd, 133 F. 2d 515 (2d Cir. 1943).. 26

Holmberg v. Armbrecht, 327 U.S. 392 (1946) ....... 21

Lathan v. Volpe, 455 F. 2d 1111 (9th Cir, 1971).. 26

Leonardo v. Leonardo, 145 F. 2d 849 (D.C. Cir.

NG I TC 17

TABLE OF AUTHORITIES—Continued

Page

Middlesex County Sewerage Authority v. National

Sea Clammers Ass’n, —— U.S. ——, 49 U.S.L.W.

rr ee 29, 42

Natural Resources Defense Council, Inc. v. Costle,

568 F. 2d 1869 (D.C. Cir, 1977) .0........cccceeeeeeeee 34

National Railroad Passenger Corp. v. National

Ass'n of Railroad Passengers, 414 U.S. 458

— ͤͤE1!Fn 8 44

Petroleum Exploration, Inc. v. Public Service

Comm'n of Kentucky, 304 U.S. 209 (1988) ......... 16

Realty Income Trust v. Eckerd, 564 F. 2d 447 (D.C.

G ͤbLü‚ . 14, 41

Reserve Mining Co. v. EPA, 514 F. 2d 492 (Sth

rr 31

Romero-Barcelé v. Weinberger, Civ. A. No. 78-828

„ rr 2

Rondeau v. Mosinee Paper Corp., 422 U.S. 49

T ——S 22, 24, 27

Save Our Sound Fisheries Ass'n v. Callaway, 387

Inn . 34, 35

SEC v. Advance Growth Capital Corp., 479 F. 2d

,, 26

State of Alaska v. Andrus, 580 F. 2d 465 (D.C.

Cir.), vacated in part sub nom. Western Oil &

Gas Ass’n v. Alaska, 489 U.S. 922 (1978 41

Studebaker Corp. v. Gittlin, 360 F. 2d 692 (2d Cir.

P AAA 26

Tennessee Valley Authority v. Hill, 487 U.S. 158

—— A einsatiabaeadeatmieaalil passim

Train v. Colorado Public Interest Research Group,

a r . 34

Transamerica Mortgage Advisors, Inc. v. Lewis,

, 30

United States v. City and County of San Francisco,

, 18, 19, 27, 41

United States v. City of Painesville, Ohio, 644 F. 2d

e 26

United States v. Earth Sciences, Inc., 599 F. 2d

368 (10th Cir. 1979) : 34, 36

vii

TABLE OF AUTHORITIES—Continued

Page

United States v. Holland, 373 F. Supp. 665 (M.D.

( 34

United States v. Kennebec Log Driving Co., 491

F. 2d 562 (1st Cir. 1973), on remand, 399

F. Supp. 754 (D. Me. 1975), aff'd, 530 F. 2d 446

(Ist Cir. 1976), cert. denied, 429 U.S. 821

TTT 32

United States v. Rohm & Haas Co., 500 F. 2d 167

(5th Cir. 1974), cert. denied, 420 U.S. 962

1117 ͤ —A—T—T— —A— 32

United States v. W. T. Grant Co., 345 U.S. 629

%%%TTTT—T—T—TJT—T—T—V—T—T—TT—V—T—A 22

United States ex rel. Greathouse v. Dern, 289 U.S.

T 41

United Steelworkers of America v. United States,

,,,, aa CE Tees a 20, 21

West Virginia Division of Izaac Walton League v.

Butz, 522 F. 2d 945 (4th Cir, 1975) . 26

Wilderness Society v. Morton, 479 F. 2d 842 (D.C.

Cir.) (en banc), cert. denied, 411 U.S. 917

111 25, 26

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

eee 18, 20

STATUTES, EXECUTIVE ORDERS AND REGULATIONS:

Clean Air Act, 42 U.S.C. § 7401 et seq. (1976 &

rr 43

Commodity Exchange Act, § 6c, 7 U.S.C. § 13a-1

Feen 25

Emergency Price Control Act of 1942, 56 Stat.

23, 50 Stat. 23, 50 U.S. C. A. App. 8 901 et seq.

117117 —T— 19

Endangered Species Act of 1973, 16 U.S.C. 8 1531

et seq. (1976 & Supp. IV 1980) 7, 13, 44

37, 16 U.S.C. 6 1586 (1976) 13

Federal Water Pollution Control Act, 33 U.S.C.

§ 1251 et seq. (1976 & Supp. III 1979) .............. passim

Section 301, 33 U.S.C. § 1311 (1976 & Supp.

III 1979) 8 , 8, 14, 33, 34, 44

viii

TABLE OF AUTHORITIES—Continued

Page

Section 302, 33 U.S.C, § 1812 (1976) .............. 44

Section 309, 33 U.S.C. § 1819 (1976 & Supp.

„„ rr 39, 40, 41

Section 313, 33 U.S.C. 8 1323 (1976 & Supp.

r 2, 4, 15, 44

Section 401, 33 U.S. C. 8 1341 (1976 & Supp.

„„ rr 39

Section 402, 33 U.S.C. § 1842 (1976) 3, 14, 33,

34, 39

Section 403, 33 U.S.C. § 1848 (1976 & Supp.

33000000000

Section 502, 33 U.S.C, 8 1862 (1976 & Supp.

eee

Section 505, 33 U.S.C. 8 1365 (1976) ........... 15

Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, 86 Stat. 816 (1972). 30, 33

Military Construction Authorization Act of 1971,

Pub. L. No. 91-511, 84 Stat. 1204 (1970) 5

Military Construction Authorization Act of 1972,

Pub. L. No. 92-145, 85 Stat. 394 (1971) ............ 5

Military Construction Authorization Act of 1974,

Pub, L. No. 93-166, 87 Stat. 668 (1973) ............ 5

Mineral Leasing Act, Pub. L. No. 98-153, 87 Stat.

T 26

National Environmental Policy Act of 1969, 42

U.S.C. § 4821 et seq. (1976) . . . . . 7, 9, 12, 24

National Historie Preservation Act of 1966, 16

U.S.C. 8 470 et seq. (1976 & Supp. IV 1980),

as amended by the National Historic Preserva-

tion Act Amendments of 1980, Pub. L. No. 96-

518, 04 Stat. 2987 (1980) . . 7, 9, 12

Rivers and Harbors Appropriations Act of 1899,

88 U.S.C. § 401 et seg. (1976) . . 80, 31, 32

Water Quality Act of 1965, Pub. L. No. 89-234,

79 Stat. 908 (1965), formerly codified at 33

U.S.C. § 1511 et seq. (superseded by the Federal

Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, 86 Stat. 816 (1972) ).. 30, 31,

32, 40, 41

TABLE OF AUTHORITIES—Continued

Williams Act, 15 U.S.C, §78m et seq. (1976 &

c 22

Executive Order 11593, 36 Fed. Reg. 8921 (1971),

reprinted in 16 U.S. C. A. § 470, at 28 (1974) 9

, . 13

48 Fed. Reg. 870 (Jan. 4, 19783) . . 13

45 Fed. Reg. 66443 (Oct. 7, 1980))y 46

LEGISLATIVE HISTORY :

A Legislative History of the Water Pollution Con-

trol Act Amendments of 1972, 93d Cong., Ist

Sess. (1978) (2 vols.) .. . . . . .. . . 30, 31, 34, 37

Conference Report, H.R. Rep. No. 92-1465, 92d

,. 40

S. Rep. No. 91-1196, 91st Cong., 2d Sess. (1970) 43

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

H.R. Rep. No. 92-911, 92d Cong., 2d Sess. (1972) .. 33, 40,

41,43

116 Cong. Rec. 19205 (1970) . . . . . . . 43

ernte, 34

e ee 31

ö CIBTE) cnccccccescccescscsscccescsccccsons 31

118 Cong. Rec. 88698 (1972) .. . . . 36

TREATISES AND OTHER AUTHORITIES:

Developmeits in the Law—Injunctions, 78 Harv.

r a cstemcebants 16,17

Figs, O., Injunctions (1977/2) . . . . . . . .. 17

Maitland, F., Equity (2d rev. ed. 199) 17

7 Moore’s Federal Practice 7 65.1813] (3d ed.

Ze 41

Plater, Z., Statutory Violations and Equitable Dis-

cretion (unpublished manuscript) ....................... 16

Story, J., Equity Jurisprudence (Ist ed. 1836) ...... 16

IN THE

Supreme Court of the United States

OCTOBER TAM, 1981

No. 80-1990

CASPAR WEINBERGER et al.,

y, Pet mers,

CARLOS RoMERO-BARCELO et al.,

| Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF FOR THE RESPONDENTS

Carlos Romero-Barcelé, the Governor of Puerto Rico,

on behalf of the Government of Puerto Rico, the Board on

Environmental Quality of Puerto Rico, and the mayor of

the island municipality of Vieques (referred to collec-

tively as “Puerto Rico“), hereby respond to the brief filed

on behalf of the Secretary of Defense and officials of the

Department of the Navy (referred to collectively as “the

Navy”). Puerto Rico respectfully asks this Court to affirm

the judgment of the court below.

STATUTE INVOLVED

The pertinent provisions of the Federal Water Pollu-

tion Control Act, 33 U.S.C. §1251 et seg. (1976 &

Supp. III 1979), are reprinted in the Statutory Appendix

herein.

STATEMENT OF THE CASE

I. NATURE OF THE CASE

In this case the Navy challenges the unanimous deter-

mination by the Court of Appeals for the First Circuit

that a federal facility must halt a continuing violation of

the prohibition in the Federal Water Pollution Control

Act“ against the discharge of munitions into navigable

waters without either obtaining a National Pollution

Discharge Elimination System (NPDES) permit from

the Environmental Protection Agency or securing a

Presidential exemption from the statutory permit re-

quirement as provided under the Act. The Navy dis-

charges bombs, naval gunfire shells and other forms of

ordnance into the navigable waters surrounding Vieques.

Both the trial court and the Court of Appeals found that

the Navy, by discharging such munitions without first

obtaining the required permit or a Presidential exemp-

tion, is engaging in a continuing violation of the Act.

The Navy does not dispute that it has vio:ated the

Act and continues to do 80.“ Instead, characterizing its

conduct as a “technical” violation of the Act “—a charac-

terization specifically rejected by the Court of Appeals—

the Navy challenges the remedy imposed by that court:

an injunction requiring the Navy to obey the express

prohibition in Sections 301 (a) and 313 (a) of the Act“

against discharges of munitions into navigable waters

without a permit or a Presidential exemption from the

permit requirement.

1838 U.S.C, § 1251 et seq. (1976 & Supp. III 1979) (referred to

hereinafter as the “FWPCA” or the Act“).

“The Navy recently admitted that it discharged at least 1,048

bombs and shells into the coastal waters of Vieques during the

first seven months of 1981. See Affidavit of Edward Clark, August

26, 1981, and “Splash Chart” attached thereto, filed August 27, 1981,

in Romero-Barcelé v. Weinberger, Civ. A. No. 78-823 (TR) (D. P. R.).

Cf. Navy's Petition for a Writ of Certiorari, Appendix C,

p. 162 a. As used herein, the abbreviation Navy Pet.” refers to the

Navy's petition for a writ of certiorari; the abbreviation “Navy

Br.“ refers to the Navy's brief on the merits in this Court; the

abbreviation C. A. J. A.“ refers to the Joint Appendix filed by the

parties in the Court of Appeals; and the abbreviation “S.C.J.A.”

refers to the Joint Appendix filed by the parties in this Court.

33 U.S.C, §§ 1311(a), 1828(a) (1976 & Supp. III 1979).

In this case, the Navy in effect is requesting this Court

to create an exception to “a particular course consciously

selected by the Congress.” Tennessee Valley Authority v.

Hill, 437 U.S. 153, 195 (1978). We urge this Court to

reject this effort to end-run the explicit requirements

laid down by Congress.

A. The Statutory Scheme of the Federal Water

Pollution Control Act

The FWPCA expressly prohibits the discharge of any

“pollutant” from a “point source” into the “navigable

waters” of the United States without a permit issued

by the Environmental Protection Agency (“EPA”) or a

state with an EPA-approved permit program.“ The Act

defines the term “pollutant” to include “munitions” and

“wrecked or discarded equipment.” The term “point

source” is defined to include vessels and other convey-

ances from which pollutants may be discharged. Under

the statutory scheme, bombs, shells and other munitions

discharged into the navigable waters around Vieques

are subject to the strictures of the Act.

In the words of the trial court, the language of the

Act is “unambiguous.”* The framers of the Act spe-

cifically singled out the Department of Defense as an

agency obligated to pay special attention to the statutory

prohibitions against discharging pollutants.“

Congress provided an explicit provision for exemption

from the permit requirement for federal facilities. Con-

gress empowered the President to exempt any depart-

ment, agency, or instrumentality in the Executive

Branch from compliance with the statutory prohibition

5 FWPCA §§ 301, 402, 403, 502 (6), (7), (8), (12), (14), (16),

33 U.S.C. §§ 1311, 1342, 1343, 1362(6), (7), (8), (12), (14), (16)

(1976 & Supp. IIT 1979).

®FWPCA §§ 502(6), (14), 33 U.S.C. §§ 1862(6), (14) (1976 &

Supp. III 1979).

7 Navy Pet. 80a.

8S. Rep. No. 92-414, 92d Cong., Ist Sess. 80 (1971).

against the discharge of pollutants “if he determines it

to be in the paramount interest of the United States to

do so.” Congress also authorized the President to issue

regulations specifically exempting classes of military

property from the same statutory prohibition.“

B. The Island of Vieques

Vieques is a small island lying approximately six

miles off the southeastern coast of Puerto Rico. It is ap-

proximately twenty miles long and varies in width from

several hundred yards to slightly more than four miles.

Nine thousand United States citizens live there.

Vieques and the surrounding waters constitute an un-

usual coastal ecosystem that includes coral reefs and

seagrasses, mangroves, spectacular and environmentally

fragile bioluminescent bays, endangered sea _ turtles,

brown pelicans and manatees, and valuable archeological

and historical resources.“ Vieques has a long and varied

cultural history.“

During the early 1940’s the Navy acquired title to over

79 percent of the land on Vieques and currently uses this

land as one of the areas that comprise the Atlantic Fleet

Weapons Range.”

C. Navy Activities on Vieques

From 1939 to 1970, the air-to-ground and ship-to-shore

training conducted by the Navy in the Atlantic Fleet

Weapons Range was almost entirely aimed at targets

on Culebra, a sparsely inhabited island located nine miles

to the north of Vieques. Navy activity on Vieques before

the 1970’s was relatively insubstantial. Vieques was

used principally for small-scale artillery training.”

*FWPCA §313(a), 33 U.S.C. 5 1323 (a) (1976 & Supp. III

1979).

10 Navy Pet. 2a-3a. See generally C. A. J. A. 191-92, 340-45.

11 C. A. J. A. 86-87, 144, 340-44.

12 Navy Pet. 4a.

10 C. A. J. A. 541-46, 551, 557-59, 1309-70, 1375, 1385, 1388-89,

1490-98.

By 1970, significant civilian and governmental op-

position had developed to the military operations on

Culebra. This opposition was voiced not only in Puerto

Rico but in the mainland United States. Consequently,

Congress arranged through three different Military Con-

struction Authorization Acts in the early 1970’s for the

curtailment of Navy activities on Culebra."

In 1971, the Navy began to increase its ship-to-shore

shelling (“naval gunfire support”) and air-to-ground

bombing at Vieques.“ Between 1974 and 1977, the Navy

increased by over 900 percent the number of 500

(MK82), 1,000 (MK83), and 2,000 (MK84) pound

bombs dropped on and around Vieques. In 1977 alone,

the Navy dropped approximately 5 million pounds of

ordnance on and around Vieques.““

The Navy’s bombing, shelling, and other military ac-

tivities have resulted in the discharge of munitions and

other pollutants into the coastal waters of Vieques, and

have caused damage to fragile coral reefs, seagrasses,

beaches, lagoons and other marine habitats and organ-

isms.“ By the Navy’s own admission, the beaches and

Military Construction Authorization Act of 1971, Pub. L. No.

91-511, 84 Stat. 1204 (1970); Military Construction Authorization

Act of 1972, Pub. L. No. 92-145, 85 Stat. 394 (1971); Military

Construction Authorization Act of 1974, Pub. L. No. 93-166, 87

Stat. 668 (1973). In 1975, the Navy ceased its Culebra operations.

16 C. A. J. A. 521-22, 533, 538, 547-48, 552. The Navy knew that the

increase of bombing and shelling on the more populous Vieques

was likely to spark substantial opposition. In a confidential com-

munique in December, 1971, a Navy official wrote that the Navy

should be very careful not to appear to increase the tempo of train-

ing operations on Vieques. An internal Navy memorandum in

April, 1972, warned that because of the “extreme sensitivity” of

any plan for increasing bombing and shelling at Vieques, all Navy

message traffic on the subject should be “flagged limited distribu-

tion special handling.” S.C.J.A. 106; see also C.A.J.A. 1054, 1056,

1418; see generally S.C.J.A. 97-185.

16 §.C.J.A. 73-74; C. A. J. A. 1490-98, 1782-94, 1796-1952.

17 C. A. J. A. 256-64, 281-329.

waters surrounding Vieques are “saturated” with ord-

nance and some areas are “supersaturated”.

The Navy knew long ago of the damage that would be

inflicted on the marine environment of Vieques by an

increase of bombing and shelling there. A report pre-

pared for the Navy in 1972 warned that expanded range

use on Vieques “would cause a subtle and adverse im-

pact [on] the total marine environment of these waters.”

The report warned that coral reefs in Vieques coastal

waters would be irreparably damaged. “Although much

of the resulting ecological damage may be repaired by

nature in time, some damage to coastal zones, and reef

systems in particular, is irreparable.” “

18 C. A. J. A. 703-04, 757-60, 810-12, 1518-52, 1603-19. Items dis-

covered in the waters of Vieques near the reefs include exploded

and unexploded bombs and shells, practice ordnance, parachutes,

parachute vables, flares, flare casings, barges and other military

vessels, machine gun rounds, bazooka rockets and many unidentifi-

able ordnance fragments. C.A.J.A. 1782-1952; S. C. J. A. 76-91. As

stated by one of the Navy’s witnesses at trial:

The fringing reefs on both sides of the north central cove in

Bahia Salina del Sur have been extensively bombed. Several

craters in the reefs are visible in recent color aerial photos

(flown August 1978 by the U.S. Navy).

S. C. J. A. 84-85.

During the trial, a shell fired from a Navy destroyer at Vieques

missed its intended target by about six miles; the shell landed near

a private vessel. C. A. J. A. 2738. The Navy admits that

in view of the large amount of live ordnance dropped in the

water in the Surface Danger Area surrounding eastern Vieques

and the resultant amount of unexploded ordnance ending up

on the ocean bottom, it should be considered paramount for

safety that steps be taken to forbid at all times, diving, an-

choring, bottom fishing and trapping within at least one mile

of the Vieques coast inside the Surface Danger Area.

S. C. J. A. 76 (emphasis added).

10 C. A. J. A. 284-85. “Aerial and ship-to-shore bombardment of

impact zones is usually accompanied by some ordnance falling long

or short of the target areas. The potential adverse impect from

this threatens damage to thalassia [i.e., seagrass] grass beds and

The Navy did not prepare an environmental impact

statement with respect to its activities on Vieques as

required by the National Environmental Policy Act.” It

did not conduct a survey to locate historical sites or

nominate sites for inclusion in the National Regis-

ter of Historic Places, as required by the National His-

toric Preservation Act of 1966. It did not consult with

the Departments of Interior and Commerc. as required

by the Endangered Species Act or identify the existence

of endangered species, as required by its own rules issued

pursuant to the Endangered Species Act.“ And it did

not obtain an NPDES permit or a Presidential exemp-

tion for its discharges of munitions into the coastal

waters of Vieques, as required by the FWPCA.

II. PROCEEDINGS IN THE TRIAL COURT

In an effort to compel the Navy to comply with the

requirements of these and other statutes, Puerto Rico

brought suit in the United States District Court for the

District of Puerto Rico on March 1, 1978, against the

Navy.

The location of Naval facilities on Vieques and the

nature of Navy activity there made it difficult for ex-

perts to assemble evidence concerning the impact of the

Navy’s activities on the marine environment. Navy ex-

mangrove zones. . . Direct fish kills from the impact of stray

ordnance may be expected, however, a more serious consequence is

the long-term damage to aquatic life forms resulting from the ex-

plosive destruction of habitat, turbidity that reduces the photo-

synthesis in turtle grass zones [i.e., seagrass] and the sedimenta-

tion of live coral systems.” S. C. J. A. 77.

For a discussion of the importance of coral reefs and seagrass in

the marine ecosystem, see C.A.J.A. 281, 316-17.

20 42 U.S.C. § 4321 et seq. (1976).

2116 U.S.C. § 470 et seq. (1976 & Supp. IV 1980), as amended

by the National Historic Preservation Act Amendments of 1980,

Pub. L. No. 96-515, 94 Stat. 2987 (1980).

2216 U.S.C. 5 1531 et seq. (1976 & Supp. IV 1980). See

OPNAVINST 6240.3E § 10702, C. A. J. A. 2370-71.

plosives experts stated that “no one should be allowed

there [i.e., at “the reef”) because the risks of losing life

or limb is more than 80 percent.“ * Puerto Rico experts

were given permission to inspect coral reefs only after

signing affidavits prepared by the Navy entitled “Ac-

knowledgment of Danger(s) and Assumption of the

Risk.” The affidavits stated that “the Waters contain

unexploded ordnance which could detonate and cause

death or injury if inadvertently activated.“ Further-

more, the Navy’s shelling and bombing schedule limited

the opportunities for inspection of the marine environ-

ment.

The trial commenced in September, 1978, and lasted

three months and involved highly conflicting testimony

about the effect of Navy activity on the marine environ-

ment.

The trial court concluded that “there is no ques-

tion . .. but that there was an increase in the intensity

of operations at Vieques after 1975.“ * As a result,

ordnance falls into the coastal waters of Vieques “with

some frequency,” “ causing damage to coral reefs and

seagrass beds.“

Despite the evidence of substantial discharges of ord-

nance into navigable waters, the trial court found that

Puerto Rico had not proven that the Navy’s activities had

yet irreparably damaged the marine environment. “At

present, the court concluded, “there is no irreparable

damage ‘o coral reefs in Vieques and what damage does

exist can be repaired by the reefs’ normal growth proc-

esses... . [T]he damage to seagrass from the activities

of Defendant Navy is neither substantial, permanent nor

“ Transcript of Hearing before district court, April 10, 1978,

p. 156.

C. A. J. A. 1604-1605.

2° Navy Pet. 148a. The Navy’s reprint of the trial court’s finding

concerning the 1977 hours of naval gunfire (id.) contains a typo-

graphical error. The correct number of hours is 1016.9, not 106.9.

26 Navy Pet. 79a.

27 Jd. 116a-117a, 120a, 148a.

irreversible.” “ With respect to the Vieques beaches, the

court concluded merely that “the evidence is at best in-

conclusive that these activities have a substantial nega-

tive ecological impact on these beaches.” *°

By opinion and order dated September 17, 1979, the

district court ruled in favor of Puerto Rico on three of

its major claims. The court found that the Navy had

violated the National Environmental Policy Act of 1969

by failing to file an environmental impact statement for

its activities on Vieques, and had violated the National

Historic Preservation Act of 1966 and an implementing

Executive Order by failing to nominate historic sites for

inclusion in the National Register of Historie Places.“

The trial court also found that the Navy violated the

FWPCA by discharging munitions into navigable

waters without first obtaining an NPDES permit from

the EPA. This ruling was based upon the “unambiguous

language“ of the Act.”

At the conclusion of its opinion, the court addressed

the question of the remedy for the Navy’s violations

28 Navy Pet. 116a, 12 1a.

29 Navy Pet. 125a (emphasis in original).

20 42 U.S.C. § 4321 et seq. (1976).

31 See Executive Order 11593, 36 Fed. Reg. 8921 (1971), reprinted

in 16 U.S.C.A. § 470 at 28 (1974). With respect to the Navy’s non-

feasance prior to the filing of the complaint, the court noted:

There is little doubt in our mind but that Defendant Navy did

not at any time prior to the commencement of the present

actions locate, inventory and/or nominate any site or otherwise

that appear to qualify for listing on the National Register, as

required by Section 2(a) of the Executive Order.

Navy Pet. 136a. The Executive Order required locating, inven-

torying and nomination of historic sites by July 1, 1973. The Navy,

therefore, should have located, inventoried and nominated historic

sites on Vieques by that date, almost five years before Puerto

Rico filed its complaint in this action.

32 Navy Pet. 79a-80a. The court dismissed the remaining counts

in the complaint.

of federal law. The court began its analysis by observ-

ing that:

the issuance of an injunction in the federal courts is

governed by general principles of equity... .

Perhaps the most significant single component in

the judicial decision whether to exercise equity juris-

diction and grant permanent injunctive relief, is the

court’s discretion. Being an extraordinary remedy,

it is not granted routinely.”

The court then cited this Court’s decision in Hecht Co.

v. Bowles, 321 U.S. 321, 329-30 (1944), as authority.”

But the court did not analyze the precise holding in

Hecht and did not acknowledge the significant factual

distinctions between that case and this. The court failed

to recognize that the Court in Hecht was speaking in the

context of a case where the violator had voluntarily

complied with the statute in question and where there

was no likelihood of continuing violation and, therefore,

no need for an injunction to carry out the terms of the

statute. The trial court also did not acknowledge the

existence of this Court’s admonition in Hecht that where

a federal statute is involved judicial discretion “must be

exercised in light of the large objectives of the Act.

For the standards of the public interest, not the require-

ments of private litigation, measure the propriety and

need for injunctive relief in these cases.” 321 U.S. at

331.

In discussing the remedy to be issued, the trial court

did not focus on the requirements of each violated statute ,

or on the necessity of an injunction to prevent a continu-

ing violation of a federal statute. Instead, it “balanced”

different considerations to determine whether injunctive

relief should be issued.

The court stated that the activities of the Navy were

“not causing any appreciable harm to the Vieques

Navy Pet. 160a.

Id.

ecology,“ and that injunctive relief would be merely

“punishment.” “ It indicated that the fact that Puerto

Rico had not sued earlier was a reason not to issue an

injunction.** Finally, the court discussed at considerable

length military and national security considerations,

noting that “a well trained and effective naval force,

even in time of peace, is essential to the National wel-

fare.” * This discussion was based upon the trial testi-

mony of Navy personnel and upon “judicial notice of the

present state of World affairs.“ “ The court then deter-

mined that it would be in the best interests of the United

States not to enjoin any of the Navy’s military activities.

The court ordered the Navy to proceed “with all delib-

erate speed” to “[flile for and seek a NPDES permit

for the release or firing into the waters of Vieques,” to

nominate historic sites to the National Register of His-

toric Places, and to file an environmental impact state-

ment.“

III. PROCEEDINGS IN THE COURT OF APPEALS

The Navy did not appeal from any portion of the trial

court’s ruling, including the court’s finding that the Navy

had violated the FWPCA.” Puerto Rico appealed from

portions of the decision to the United States Court of

Appeals for the First Circuit. Puerto Rico specifically

requested reversal of the trial court’s refusal to issue

injunctive relief with respect to the Navy’s continuing

violation of the FWPCA.

On January 26, 1981, the Court of Appeals issued

its decision. The Court of Appeals separately discussed

the remedies ordered for the Navy’s violations of the

0 Jd. 162a.

36 Jd. 162a-168a.

* Jd. 164a.

38 Jd. 174a.

39 Jd. 165a.

# Id. 49a.

National Historic Preservation Act, NEPA, the Endan-

gered Species Act, and the FWPCA.

A. National Historic Preservation Act. The Court of

Appeals rejected the trial court’s conclusion that the Navy

had no further obligation to locate historic sites in addi-

tion to those located in the survey conducted after the com-

mencement of the lawsuit. However, the Court of Appeals

found that it was not necessary to enjoin the Navy’s train-

ing activities in the interim. “Nothing in the present rec-

ord suggests that the training activities as a whole endan-

ger the additional sites likely to be located.“ “ The court

accordingly observed that an injunction with respect to

the Navy’s bombing and shelling activities was not neces-

sary to put the Navy into compliance with its obliga-

tions under the National Historic Preservation Act to

locate and nominate sites and mitigate damage to his-

toric sites. Compliance could be effected by making fur-

ther efforts to locate historic sites, by nominating known

and discovered historic sites for inclusion in the National

sites.“

B. NEPA. In its review of the trial court’s remedy

for the Navy’s violation of the National Environmental

Policy Act, the Court of Appeals declared the issue moot.

The Navy had prepared and filed a final environmental

impact statement by the time the case was argued in

the Court of Appeals. Accordingly, no injunction was

necessary to put the Navy into compliance with NEPA,

and the court found that it did not need to address the

issue of whether the Navy’s activities should have been

halted for failure to prepare and file an EIS.*

41 Jd. 50a. The trial court also had found that there were no

significant archeological sites in the target areas because “[a]ny

that may have existed there have in all probability been destroyed.”

Id. 187a.

1 Navy Pet. 49a-50a.

Id. 50a.

C. Endangered Species Act. The Court of Appeals

found that the Navy had violated Section 7 of the Endan-

gered Species Act“ by failing to obtain a biological opin-

ion (pursuant to that Section’s consultation requirement)

that discussed the impact of its training activities upon

endangered and threatened species on Vieques.“ The

Court of Appeals noted that although the Navy had ob-

tained a biological opinion after the decision of the trial

court, this opinion was not in the record and therefore

could not be reviewed by the Court of Appeals. The

court remanded the entire issue of compliance with the

Endangered Species Act to the trial court to allow

Puerto Rico to challenge the biological opinion and to let

the trial court consider Puerto Rico’s claims under the

Act in the light of the biological opinion.“

D. FWPCA. The Court of Appeals clearly recognized

that the Navy’s failure to obtain an NPDES permit

Endangered Species Act of 1973, § 7, 16 U.S.C. § 1586 (1976).

4 Navy Pet. 50a. The court stated:

By ignoring the statutory mandate, the Navy has sidestepped

the administrative process that Congress expected would re-

solve many of the conflicts between agency action and the re-

quirements of §7. If the Navy had sought consultation within

a reasonable period following the adoption of the Act, the bur-

den of litigating Puerto Rico’s claim might have been avoided.

Id. 40a.

The Court of Appeals indicated that a biological opinion could

alter the district court’s conclusions about the Navy’s compliance

with certain of its obligations under the Act. Id. 41a.

It bears note that to assist agencies to comply with the consulta-

tion requirements of Section 7 of the Act, procedures had been set

forth in “Guidelines to Assist the Federal Agencies in Complying

with Section 7 of the Endangered Species Act of 1973“ (April 22,

1976), which were referenced in the Navy’s own rules. OPNAVINST

6240.8E § 10702, C. A. J. A. 2371. See also 50 C. F. R. § 402 (1981);

43 Fed. Reg. 870 et seg. (Jan. 4, 1978). The Navy did not initiate

consultation with the United States Fish and Wildlife Service until

the summer of 1979.

% Navy Pet. 51a.

presented a problem different from that involved with

the Navy’s other violations. Here, the court was con-

fronted with an issue that was not moot and with an ad-

mitted and ongoing statutory violation.

As to this continuing violation, the Court of Appeals

ruled that “the district court erred in undertaking a

traditional balancing of the parties’ competing inter-

ests.” The court continued:

Congress has prohibited “the discharge of any pol-

lutant,” 33 U.S.C. §1811(a), which includes the

Navy’s dropping of ordnance into the coastal waters,

unless a NPDES permit has been secured pursuant

to 33 U.S.C. § 1842. Whether or not the Navy’s ac-

tivities in fact harm the coastal waters, it has an

absolute statutory obligation to stop any discharges

of pollutants until the permit procedure has been fol-

lowed and the Administrator of the Environmental

Protection Agency, upon review of the evidence, has

granted a permit.“

To the Court of Appeals, the statute made it irrelevant

that on this record” the trial court did not “clearly err”

in finding that the Navy’s discharge of munitions caused

no significant harm to the environment.“ The statutory

scheme clearly contemplated that the Administrator of the

EPA—not the court—was responsible for determining

whether particular discharges caused harm to the en-

vironment. Furthermore, the court’s review of the rec-

ord indicated that the permit process would not be a

mere formality:

The EPA might find substantial harm even though

the court had not.... [T]he permit process “might

reveal substantial environmental consequences,” City

of New York v. United States, 337 F. Supp. 150, 160

( E. D. N. V. 1972), quoted in Realty Income Trust v.

Eckerd, 564 F.2d at 456, that would lead the Admin-

47 Id. 48a.

48 Id.

40 Jd. 49a (emphasis added).

istrator to deny the application or grant only a

limited permit.”

The court specifically rejected the trial court’s charac-

terization of the Navy’s conduct as a “technical viola-

tion” of the Act. The court also noted that “the Navy

has utterly disregarded the statutory mandate.“ “ The

court further observed that because the statutory prohibi-

tion against the discharge of pollutants can only be lifted

by having a permit, the mere filing of an application

for the permit would not put the Navy into compliance

with the Act.™

The Court of Appeals also dismissed the trial court’s

reliance upon national security considerations as a reason

for refusing to carry out the express requirements of the

Act. The Court of Appeals indicated that Congress had

expressly addressed and resolved the matter of national

security in the FWPCA by providing for Presidential ex-

emptions. If an injunction would jeopardize Navy pre-

paredness, then the Navy is free to request the President

to exempt it from the NPDES requirements in the interest

of national security. See 33 U.S.C. S 1323 (a).“ 84

The Court of Appeals then vacated the trial court’s

order and remanded with narrow instructions to order

the Navy “to take all steps to insure that no ordnance

50 Id. 48a-49a.

51 Jd. 49a.

52 Id.

53 Jd. In a lengthy footnote at page 24 and 25 of its brief, the

Navy lamely suggests that its failure to comply with the permit re-

quirement was attributable in part to Puerto Rico’s failure to pro-

vide it with the sixty-day notice provided in Section 505(b) (1) (A)

of the FWPCA, 33 U.S.C. § 1365 (b) (1) (A) (1976), as a prerequi-

site to a citizens suit to enforce the Act. Puerto Rico did comply

with the notice requirement by serving the Navy with notice and

thereafter filing an unopposed motion for leave to file a supplemen-

tal complaint. The district court ruled that Puerto Rico had satis-

fied the notice requirement. C.A.J.A. 71. The Navy did not appeal

this ruling.

is discharged into the coastal waters of Vieques until

such time as it obtains a NPDES permit.” *

SUMMARY OF ARGUMENT

The Navy has long flouted the permit requirements of

the FWPCA. The text, legislative history and judicial

construction of the Act convincingly illustrate that a

permit must be obtained before pollutants may be dis-

charged into the navigable waters of the United States.

The Act itself and an unbroken line of precedent in this

Court clearly recognize that federal courts are not au-

thorized to employ equitable discretion to allow a continu-

ing violation of such a statutory requirement.

ARGUMENT

I. WHERE A FEDERAL STATUTE IS BEING VIO-

LATED THE EQUITABLE DISCRETION OF A

COURT IS TO BE USED TO ENSURE FULL COM-

PLIANCE.“

A. A Court Does Not Have Equitable Discretion to

Permit a Continuing Violation of a Federal Statute.

I. The Standard Derived from Litigation Between

Private Parties Does Not Apply to the Issuance

of Injunctive Relief for Violations of Federal

Statutes.

The injunction, once an “extraordinary” remedy ad-

ministered by subordinate chancery courts, is today a

common tool to ensure compliance with civil statutes.

Historically, equity operated as a highly discretionary

54 Navy Pet. 49a.

55 Counsel for Puerto Rico are indebted to Zygmunt J.B. Plater,

Visiting Professor of Law at Boston College Law School, for

allowing them to review the manuscript of his forthcoming article

entitled “Statutory Violations and Equitable Discretion,” to be

published next year. Some of the analysis contained in this brief

was inspired by this manuscript.

56 Cf. Petroleum Exploration, Inc. v. Public Service Comm’n of

Kentucky, 304 U.S. 209, 218 (1938). See also Developments in the

Law—Injunctions, 78 Harv. L. Rev. 994, 997 (1965); J. Story,

Equity Jurisprudence § 23 (1st ed. 1836).

“gloss” on the common law to be invoked when traditional

legal remedies and procedures did not afford the com-

plainant adequate relief.“ Because of its discretionary na-

ture, equity jurisprudence developed an extraordinary ar-

ray of limitations and exceptions designed to prevent the

Chancellor from expanding his remedial jurisdiction into

realms properly reserved for courts of law.“

The twentieth-century injunction is a remedy of a dif-

ferent sort. The merger of law and equity has removed

the traditional tension between the different forms of ju-

dicial relief. Today, many of the historical limitations on

the injunctive remedy “have become equitable fictions.” ”

The modern statutory injunction bears little resemblance

to its common-law ancester, and many of the maxims and

aphorisms that were invoked to limit the grant of injunc-

tive relief in the era of the Chancellor have lost their

meanings in the modern context.

In private litigation, courts have traditionally engaged

in a “balancing” analysis to determine whether the hard-

ship suffered by the plaintiff in the absence of equitable

relief exceeds the potential harm to the defendant in the

event that an injunction is granted. A court may exercise

broad discretion in striking that balance, including the

discretion to refrain from issuing an injunction.”

This discretion is limited, however, when the plaintiff

alleges and proves that the defendant is engaged in a con-

tinuing violation of a federal statute. This Court has long

heeded Justice Frankfurter’s familiar admonition that

actions to enjoin continuing violations of federal law

should be adjudged in accordance with a different and

more limited standard of discretion:

57 F. Maitland, Equity 18 (2d rev. ed. 1936).

58 See generally O. Fiss, Injunctions 2-13 (1972).

do Developments in the Law—Injunctions, 78 Harv. L. Rev. 994,

996 (1965).

6° See, e.g., Leonardo v. Leonardo, 145 F. 2d 849, 851 (D.C. Cir.

1944).

“Balancing the equities” when considering whether

an injunction should issue, is lawyers’ jargon for

choosing between conflicting public interests. When

Congress itself has struck the balance, has defined

the weight to be given the competing interests, a

court of equity is not justified in ignoring that pro-

nouncement under the guise of exercising equitable

discretion.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,

609-10 (1952) (Frankfurter, J., concurring).

2. A Consistent Line of Supreme Court Decisions

Precludes the Exercise of Equitubte Discretion

to Permit a Continuing Violation of a Federal

Statute.

Without any analysis of the line of cases decided by

this Court and the rulings of the lower courts, the Navy

attempts to manufacture some inconsistency in the appli-

cable law. The essential argument raised by the Navy

in this case is that “[t]he court of appeals should have

looked to Hecht Co. v. Bowles, rather than TVA v. Hill,

for the analysis that controls this case.“ This argument

incorrectly implies that this Court’s decisions in those

two cases cannot be harmonized. As discussed below, the

cases are consistent with each other and with an unbroken

line of other Supreme Court cases, all of which support

Puerto Rico’s position here.

One of the early cases to discuss the standards that

govern the issuance of injunctive relief to remedy the vio-

lation of a federal statute is United States v. City and

County of San Francisco, 310 U.S. 16 (1940). In that

case, the government sought to enforce a federal statute

prohibiting municipalities from reselling water rights ob-

tained by federal grant. San Francisco acknowledged

that it had resold water rights to a private utility com-

pany, but claimed that an injunction should not enter be-

61 Navy Br. 9 (citations omitted).

cause the balancing of equities did not favor injunctive

relief, Rejecting the city’s claim, this Court held that the

case “does not call for a balancing of equities or for the

invocation of the generalities of judicial maxims. . . . Con-

gress provided that the [defendant] shall at all times

comply with and observe. . . the conditions specified in

this Act.” 310 U.S. at 30. Injunctive relief was required

to halt continuing violation of the Act:

The equitable doctrines relied on do not militate

against the capacity of a court of equity as a proper

forum in which to make a declared policy of Congress

effective. Injunction to prohibit continued [statutory

violations] is both appropriate and necessary.

301 U.S. at 31 (emphasis added).

Thereafter, in Hecht Co. v. Bowles, 321 U.S. 321

(1944), the Court once again rejected unfettered “bal-

ancing” as the analytical standard for assessing whether

a violation of a federal statute should be allowed to con-

tinue. The statute at issue in Hecht was the Emergency

Price Control Act of 1942," a wartime measure granting

broad powers to the Office of Price Administration to fix

maximum prices for commodities and services. The Hecht

Company, operator of a large department store in Wash-

ington, D.C., unwittingly sold consumer goods between

May and October, 1942, at prices in excess of the OPA

maxima. Hecht argued that violations were inevitable

when a new and highly complex scheme of price regula-

tion was applied to a retail establishment the size of a

department store. It asserted that steps had been taken

to prevent further overcharges in the future. These rep-

resentations satisfied the trial court that violations were

not likely to continue and that issuance of an injunction

would serve no purpose.

This Court agreed, and did so in a manner that delib-

erately and clearly acknowledged the existence of limita-

tions on judicial discretion where federal statutes were

* 56 Stat. 23, 50 U. S. C. A. App. § 901 et seq. (1951).

violated. The “traditional practices” of equity courts,

wrote Justice Douglas, must be “conditioned by the nec-

essities of the public interest which Congress has sought

to protect” by enacting the Price Control Act. 321 U.S.

at 330. This necessarily limits the exercise of discretion

by federal courts:

[Their discretion under [the Act] must be exercised

in light of the large objectives of the Act. For the

standards of the public interest, not the requirements

of private litigation, measure the propriety and need

for injunctive relief in these cases. That discretion

should reflect an acute awareness of the Congres-

sional [policy].

Id. at 331 (emphasis added).

The Court refined this doctrine in two notable cases

decided in the 1950’s, each involving the authority of the

Executive Branch to prevent crippling steel strikes. In

Youngstown Sheet & Tube Co. v. Sawyer, 348 U.S. 579

(1952), the Court reviewed President Truman’s order re-

quiring the seizure of all steel mills in the United States

to assure continued production of steel for the Korean

War effort. The seizure order exceeded the statutory and

constitutional authority of the Executive Branch. The

government argued, nevertheless, that in balancing the

transgression of the President against the compelling mili-

tary necessities of the Korean War, the President should

not be enjoined. The Court flatly rejected the govern-

ment’s argument. “When Congress itself has struck the

balance,” wrote Justice Frankfurter in his concurring

opinion, “a court of equity is not justified in ignoring that

pronouncement under the guise of exercising equitable dis-

cretion.” 343 U.S. at 610.

Justice Frankfurter revisited the same issue seven

years later in a lengthy concurring opinion accompanying

the Court’s per curiam judgment in United Steelworkers

of America v. United States, 361 U.S, 39, 44-62 (1959).

The case grew out of President Eisenhower’s successful

effort to obtain an 80-day back-to-work order from a dis-

trict court ending an industry-wide strike in the basic

steel industry. The Steelworkers raised many equitable

arguments in defense of their position that the strike

should not be enjoined. The issue before the Court, wrote

Justice Frankfurter, was “whether the District Court

was to exercise the conventional discretionary function of

equity in balancing conveniences as a preliminary to issu-

ing an injunction.” 361 U.S. at 55. His answer was suc-

einet:

We conclude that under the national emergency pro-

visions of the Labor Management Relations Act it is

not for judges to exercise conventional discretion to

withhold an eighty-day injunction upon a balancing

of conveniences.

“Discretionary” jurisdiction is exercised when a

given injunctive remedy is not commanded as a mat-

ter of policy by Congress, but is, as a presupposition

of judge-made law, left to judicial discretion. Such

is not the case under this statute. The purpose of

Congress expressed by the scheme of this statute pre-

cludes ordinary equitable discretion.

Id. at 56.

In Albemarle Paper Company v. Moody, 422 U.S. 405

(1975), the trial court refused to order back pay for mi-

nority employees who were systematically assigned to low-

paying jobs in violation of Title VII of the 1964 Civil

Rights Act. Noting that back pay was an equitable rem-

edy, the trial court ruled that the equities favored the

employer because there was no evidence of bad faith on

the employer’s part and the plaintiffs had waited an un-

reasonably long time before asserting their back pay

claim. On appeal, this Court held that the trial court had

abused its discretion by declining to award back pay for

those reasons. “It is true,” wrote Justice Stewart for the

Court, “that ‘equity eschews mechanical rules. . [and]

depends on flexibility.’” 422 U.S. at 417, quoting Holm-

berg v. Armbrecht, 327 U.S. 392, 396 (1946). He con-

tinued:

But when Congress invokes the Chancellor’s con-

science to further transcendent legislative purposes,

what is required is the principled application of

standards consistent with those purposes and not

“equity [which] varies like the Chancellor’s foot.”

Id., quoting Gee v. Pritchard, 2 Swanston 403, 414, 36

Eng. Rep. 670, 674 (1818).

This Court’s decision in Rondeau v. Mosinee Paper

Corporation, 422 U.S. 49 (1975), also illustrates the nar-

row range of equitable discretion that may be exercised

by courts when there is a continuing violation of a federal

statute. In Rondeau, an investor committed technical vio-

lations of the securities laws by making large purchases

of the plaintiff company’s common stock without comply-

ing with statutory disclosure requirements under the Wil-

liams Act.“ The violations were promptly corrected after

they were discovered, and the defendant soon thereafter

stopped purchasing the company’s stock and discontinued

his plan to acquire a controlling interest in the company.

This Court, speaking through Chief Justice Burger,

agreed with the trial judge that under these facts an in-

junction was unnecessary: “(T]he usual basis for in-

junctive relief, ‘that there exists some cognizable danger

of recurrent violation,’ is not present here.” 422 U.S. at

59, quoting from United States v. W. T. Grant Company,

345 U.S. 629, 633 (1953). As in Hecht, the issuance of

an injunction was not necessary to prevent a future vio-

lation of the Act.

This Court’s most recent pronouncement on the subject,

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978),

is fully consistent with previous rulings concerning the

relief that should be issued to remedy violations of fed-

eral statutes, The issue, once again, was whether a trial

court should have halted a continuing violation of fed-

eral law (in that case, the Endangered Species Act of

1973), notwithstanding the fact that an injunction would

#3 15 U.S.C. §§ 78m(d), 78n(d), (e), (f) (1976 & Supp. IV 1980).

prevent the operation of a nearly completed federal dam

and conflicted with several countervailing equitable con-

siderations. After determining that the agency’s action

would violate the statutory requirement, this Court ruled

that the violation must be prevented and the district court

should have issued the requested injunction.

Hecht was cited in TVA v. Hill for the proposition

that a trial court is not “mechanically obligated to grant

an injunction for every violation of law.” 437 U.S. at

193. But the Court recognized that the narrow holding in

Hecht could not be used to permit a continuing violation

of a statute.“ Thus, after citing Hecht, this Court stated:

* That voluntary compliance with federal statute can obviate

the need for a statutory injunction in the Hecht situation was a

focus of discussion during oral argument in the TVA v. Hill case

on April 18, 1978. The Court engaged in this colloquy with counsel

for the respondents:

QUESTION: ... Do you suggest that any of the legisla-

tion passed here has abrogated the normal equity function of a

United States District Judge in granting an injunction, the

very extraordinary relief that is sought here—

MR. PLATER: Not at all, Your Honor.

QUESTION: —that—are you suggesting that he should

not function as he does with any other application for an

injunction?

MR. PLATER: Your Honor, that question is an important

one. We do not advocate the stripping of this Court or any

court of the equitable powers. And indeed, Your Honor, we

rely on Your Honor’s decision in Rondeau v. Moisinee Paper

Corporation, and that is to say, the equity courts have the full

panoply of powers required to enforce the laws of Congress.

QUESTION: But Hecht against Bowles says you don’t get

an injunction automatically for a statutory violation.

MR. PLATER: That’s correct, Your Honor. And we do not

insist on an injunction. If petitioner agrees to obey the law

voluntarily, as the Hecht Corporation did in that case, or as

the Moisinee Paper Corporation agreed [sic] in Your Honor’s

case—

QUESTION: Then you don’t need an injunction?

Once Congress, exercising its delegated powers, has

decided the order of priorities in a given area, it is

for the Executive to administer the laws and for the

courts to enforce them when enforcement is sought

.... We have no... mandate from the people to

strike a balance of equities .. . [when] Congress has

spoken in the plainest of words, making it abun-

dantly clear that the balance has been struck... .

Our individual appraisal of the wisdom or unwis-

dom of a particular course consciously selected by

the Congress is to be put aside in the process of in-

terpreting a statute. Once the meaning of an enact-

ment is discerned and its constitutionality deter-

mined, the judicial process comes to an end. We do

not sit as a committee of review, nor are we vested

with the power of veto.

437 U.S. at 194-95."

The decisions of this Court establish three principles

of law that control the disposition of this case. First, the

court must look to the statute, rather than the competing

interests of the parties, and must provide a remedy that

vindicates the requirements and objectives of the statute

in question. Second, federal courts are not stripped of

all discretionary authority to fashion relief. A court, for

example, still has the sort of discretion exercised in Hecht

and Rondeau to assess the likelihood of a continuing vio-

lation in order to determine whether injunctive relief is

MR. PLATER: That's precisely right.

QUESTION: It's academic.

MR. PLATER: And the law would be complied with.

Transcript of Proceedings 61-52.

* In footnote 34 of its opinion in TVA v. Hill, 437 U.S. at 188,

this Court distinguished as “completely inapposite“ the cases de-

cided under the National Environmental Policy Act of 1969, 42

U.S.C. § 4321 et seq. (1976) (“NEPA”), in which courts have re-

fused to enjoin ongoing projects for failure to prepare an adequate

environmental impact statement. Ironically, the trial court in the

case at bar relied heavily on the inapposite NEPA cases for its

denial of injunctive relief. Navy Pet. 16la.

necessary to halt a violation. Third, in none of these cases

does this Court hold that a court has the equitable discre-

tion to permit an ongoing violation of a federal statute. To

the contrary, each case recognizes that injunctive relief is

necessary to halt an ongoing violation of a federal stat-

ute when enforcement is sought.

These standards have been applied by the lower fed-

eral courts to enjoin a wide range of statutory violations.

For example, in Commodity Futures Trading Commission

v. Hunt, 591 F. 2d 1211 (7th Cir.), cert. denied, 442 U.S.

921 (1979), the trial court found that the Hunt family

violated Section 6e of the Commodity Exchange Act“

and implementing regulations but nevertheless refused to

order any injunctive relief. The court of appeals con-

cluded that the trial court had abused its discretion: “Ac-

tions for statutory injunctions need not meet the require-

ments for an injunction imposed by traditional equity

jurisprudence. Once a violation is demonstrated, the mov-

ing party need show only that there is some reasonable

likelihood of future violations.” 591 F.2d at 1220.”

In Wilderness Society v. Morton, 479 F. 2d 842 (D.C.

Cir.) (en banc), cert. denied, 411 U.S. 917 (1973), the

issue was whether construction of the Alaska Pipeline

could proceed in the absence of legally valid construction

permits. The Interior Department had failed to observe

a provision in the Mineral Leasing Act of 1920 limiting

the permissible width of rights-of-way across federal

lands. The trial court refused to enter an injunction, cit-

ing the importance of the nearly-completed pipeline to the

economy of Alaska and the well-being of its citizens. The

7 U.S.C. § 18a-1 (1976).

In determining the likelihood of future violations, the court

must examine several factors. Past conduct may be highly sugges-

tive of the prospect of continuing violations, particularly “when a

defendant persists in its illegal activities ‘right up to the day of

the hearing in the district court. 591 F.2d at 1220, quoting

from Commodity Futures Trading Comm’n v. British American

Commodity Options Corp., 560 F. 2d 135, 142 (2d Cir. 1977).

court of appeals agreed that further delay would exact

a heavy social and economic cost. But following the prin-

ciples established by this Court, the court then stated:

Recognizing these hardships, however, we neverthe-

less are constrained to enjoin the Secretary of the

Interior from issuing one of the permits which all

parties recognize is necessary for construction of the

pipeline .... We must enjoin issuance of this special

land use permit until Congress changes the applicable

355

479 F. 2d at 847-48 (emphasis added) .“

A recent court deeision had no difficulty in harmonizing

the holding in Hecht with the analysis of this Court in

TVA v. Hill. Only two months before the Navy filed its

petition for a writ of certiorari in this case, the federal

government successfully defended before the Sixth Cir-

cuit the issuance of an injunction without an evidentiary

hearing on the “equities” to enforce new source per-

formance standards under the Clean Air Act. United

States v. City of Painesville, Ohio, 644 F. 2d 1186, 1193-94

(6th Cir. 1981). “

*8 Congress subsequently amended the Mineral Leasing Act spe-

cifically to permit completion of the Alaska Pipeline. Pub. L. No.

93-153, 87 Stat. 576 (1973); see Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240, 244 n. 11 and accompanying text

(1975). See also Lathan v. Volpe, 455 F. 2d 1111 (9th Cir. 1971);

Arlington Coalition on Transportation v. Volpe, 458 F. 2d 1323 (4th

Cir.), cert. denied sub nom. Fugate v. Arlington Coalition on Trans-

portation, 409 U.S. 1000 (1972); SEC v. Advance Growth Capital

Corp., 470 F. 2d 40, 53 (7th Cir. 1972); West Virginia Division of

Izaac Walton League v. Butz, 522 F. 2d 945, 955 (4th Cir. 1975);

Studebaker Corp. v. Gittlin, 360 F. 2d 692, 698 (2d Cir. 1966);

Henderson v. Burd, 133 F. 2d 515, 517 (2d Cir. 1943).

oo The court’s lucid discussion of Hecht and TVA v. Hill is repro-

duced at pages 13-14 of Puerto Rico’s Brief in Opposition to the

Navy’s Petition for a Writ of Certiorari.

B. The Court Below Correctly Ruled that the Trial

Court Erred by Refusing to Enjoin the Navy’s On-

going Violation of the FWPCA.

At trial, Puerto Rico proved that the Navy has violated

and continues to violate the FWPCA by discharging

bombs, shells and other munitions in coastal waters

without first obtaining an NPDES permit. The Navy con-

ceeds that it has violated the Act. The evidence showed

that the Navy persisted in its violations “right up to the

day of the hearing,” Commodity Futures Trading Com-

mission v. British American Commodity Options Corpora-

tion, 560 F. 2d 135, 142 (2d Cir. 1977), and beyond. It

will continue to violate the Act until it either obtains

an NPDES permit or a Presidential exemption from the

permit requirement.

In its review of the trial court decision, the Court of

Appeals correctly observed that the trial court had not

applied the statutory analysis required by the cases in-

volving violations of federal statutes. The Court of

Appeals reviewed the applicable statutory and com-

mon law requirements. The court noted that the

Act imposed “an absolute statutory obligation to stop

any discharges of pollutants until the permit procedure

has been followed.“ The court critized the trial court

for failing to protect the integrity of the permit process

by allowing the statutory violation to continue. Finally,

the court observed that the Act expressly provided for

a Presidential exemption if the prohibition against the

continued violation would affect military preparedness.

The court’s analysis of these considerations squarely

tracked the inquiries required by City and County of

San Francisco, Hecht, Rondeau, and TVA v. Hill. In

light of this precedent, the Court of Appeals properly

ordered a halt to the violation of the Act.

7 Navy Pet. 48a.

II. INJUNCTIVE RELIEF IS REQUIRED IN THIS

CASE TO ENFORCE THE REQUIREMENTS OF

THE FEDERAL WATER POLLUTION CONTROL

ACT.

A. Introduction

This Court’s decision in TVA v. Hill provides an object

lesson in the relationship between Congress and the

judiciary in applying and enforcing federal law. It is

Congress’ task, observed the Chief Justice, to “formulate

legislative policies and mandate programs and projects.”

Courts cannot, under the guise of equitable discretion,

frustrate Congressional prohibitions by refusing to “en-

force them where enforcement is sought.” 437 U.S. at

194. Courts abuse their discretion when they substitute

their own notions of equity for those expressed by Con-

gress:

We have no... mandate from the people to strike a

balance of equities ... [when] Congress has spoken

in the plainest of words, making it abundantly clear

1 that the balance has [already] been struck.

By enacting the FWPCA, Congress again has spoken in

the plainest of words. The Act embodies a vigorously

stated, clearly expressed policy to ban the discharge of

pollutants except in conformity with a permit system

that requires all dischargers to have a permit issued pur-

suant to a permit process. It specifies the manner in which

federal facilities should be treated and how national secu-

rity interests should be handled. It is not the province of

a court to frustrate “a particular course consciously se-

lected by the Congress” (437 U.S. at 194) by deciding that

statutory violations should be allowed to continue.

The Navy seeks to read equitable flexibility into the

FWPCA by using a canon of statutory construction pur-

portedly divined from TVA v. Hill. According to the

Navy, that case stands for the principle that a court

has discretion to permit an ongoing violation of an explicit

prohibition unless the statute in addition contains a “ ‘clear

ordering of priorities’ which the courts are powerless

to alter.“ 1 According to the Navy, this discretion is

removed only if the text and legislative history of a federal

statute evince some clear congressional intent “to eliminate

the traditional discretion of the courts in enforcing the

statutory requirements.“ “

These rules of construction cannot be distilled from

TVA v. Hill™ and are directly contrary to this Court’s

recent interpretations of the FWPCA in Middlesex County

Sewerage Authority v. National Sea Clammers Associa-

tion, —— U.S. ——, 49 U.S.L.W. 4783 (1981), and

E. I. Dupont de Nemours & Company v. Train, 430 U.S.

112 (1977). There is no presumption that courts possess

equitable discretion to fashion new remedies for violations

of federal statutes. In Sea Clammers, this Court stated

that [iln the absence of strong indicia of a contrary

congressional intent, we are compelled to conclude that

Congress provided precisely the remedies it considered

appropriate.” 49 U.S.L.W. at 4787. Similarly, in E..

Dupont, the Court overturned a holding that “provisions

for variances, modification and exceptions [to the provi-

sions of the FWPCA] are appropriate to the regulatory

process.” 430 U.S. at 138 (citing 541 F. 2d 1028). This

Court explained that it lacked the discreticn to read

flexibility into the Act when none was intended by Con-

™ Navy Br. 14.

72 Id. 15.

™% The Navy attaches talismanic significance to this Court's use

of the phrase “ordering of priorities” in TVA v. Hill to describe

the situation in which Congress in unequivocal terms has mandated

strict compliance with a federal statute. See Navy Br. 16-17. How-

ever, the Navy apparently interprets this phrase to refer to situa-

tions in which Congress has expressly addressed and ranked various

other national interests relative to the interests reflected in a par-

ticular federal statute. Congress realistically cannot be expected to

reassess and rank national priorities each time a bill is passed into

law. At least in cases where, as here, there is no conflict with any

other requirement of federal law, an express statutory prohibition

is a Congressional priority that must be enforced by the courts.

This Court did not intend otherwise by using the phrase “ordering

of priorities” in TVA v. Hill.

gress: “The question, however, is not what a court

thinks is generally appropriate to the regulatory process,

it is what Congress intended.. . . It is clear that Con-

gress intended these regulations [new source performance

standards under Section 306] to be an absolute prohibi-

tion.” Id. See Transamerica Mortgage Advisors, Inc.

v. Lewis, 444 U.S. 11, 19 (1979) („It is an elemental

canon of statutory construction that where a statute

expressly provides a partivular remedy or remedies, a

court must be chary of reading others into it“).

B. The Permit Requirement Reflects Congress’ Express

Intention to Prohibit Point-Source Discharges

Made Without a Permit.

The 1972 Amendments to the FWPCA™ were enacted

almost a decade ago because Congress found the federal

water pollution control effort prior to 1972 “inadequate

in every vital aspect.“ Congress intended to correct

the past failings of water pollution control enforcement

efforts under the Rivers and Harbors Appropriations

Act of 1899 and the Water Quality Act of 1965.” As

explained by this Court, the 1972 Amendments “were

viewed by Congress as a ‘total restructuring’ and ‘com-

plete rewriting’” of existing water pollution legislation.

City of Milwaukee v. Illinois, —— U.S. ——, 49 U.S.L.W.

4445, 4449 (1981), quoting from 1 A Legislative History

of the Water Pollution Control Act Amendments of 1972,

98d Cong., Ist Sess. 350-51, 359-60 (1973) .”

™ Federal Water Pollution Control Act Amendments of 1972,

Pub. L. No. 92-500, 86 Stat. 816 (1972) (cited hereinafter as the

“1972 Amendments”).

7 8. Rep. No. 92-414, 92d Cong., Ist Sess. 7 (1971) (cited herein-

after as “Senate Report”).

70 38 U.S.C. § 401 et seq. (1976) (cited hereinafter as the “Refuse

Act”).

7 Pub. L. No, 89-234, 79 Stat. 903 (1965), formerly codified at

33 U.S.C, § 1151 et seq. and superseded by the 1972 Amendments,

supra n. 74.

7 This multi-volume compendium of the legislative history of the

1972 Amendments is cited hereinafter as “Legis. His.“

Under the Refuse Act, authority to control water pollu-

tion was principally confined to industrial polluters. The

Refuse Act contained no standards for the discharge of

pollutants; it amounted to little more than a declaration

that the discharge of refuse was unlawful.” The Act

contained no effective enforcement mechanism, no pro-

gram to process and evaluate permit applications and

no investigative agency to monitor compliance. This,

combined with the limited scope of the Act, made it

wholly ineffective as a mechanism for controlling water

pollution.”

7118 Cong. Rec. 10780 (1972) (statement of U.S. Attorney,

S. D. N. V., inserted by Rep. Dingell), reprinted in 1 Legis. His. 689.

Senate Report 5; 117 Cong. Rec. 38833 (1971), reprinted in

2 Legis. His. 1334. The Navy is correct in its observation that

Congress in writing the enforcement provisions of the FWPCA drew

upon the enforcement provision of the Rivers and Harbors Act. See

Navy Br. 16. However, the Navy is flatly wrong when it asserts

that “there is no indication that at the time Congress acted [to

pass the FWPCA] it anticipated any different result“ from the

ability of courts to fashion “appropriate relief to vindicate the pur-

poses of the statute [the Refuse Act] with due regard to the sur-

rounding facts and circumstances.” Id. As described herein, there

is every indication that Congress in unequivocal terms did intend

a different result. Congress specifically sought to correct the laxity

and flexibility contained in the enforcement provisions. The Refuse

Act enforcement procedures were a model that was not to be fol-

lowed.

Even if the enforcement provisions of the Refuse Act did not

conflict with the related provisions of the FWPCA, none of the cases

cited by the Navy supports the cited proposition that under the

Refuse Act “[i]njunctions requiring immediate cessation of dis-

charges in violation of the Act have not been automatic.” Navy Br.

16. The relief issued in Reserve Mining Co. v. EPA, 514 F. 2d 492

(8th Cir. 1975), was based upon a violation of the Water Quality

Act of 1965 rather than the Refuse Act. The Water Quality Act

expressly states that the district court should give “due considera-

tion to the practicability and to the physical and economic feasibil-

ity of securing abatement of any pollution proved” and may enter

orders “as the public interest and the equities of the case may re-

quire.” Water Quality Act of 1965, supra n. 77 at §5(a) (adding

§ 10(c) (5) to the FWPCA, 33 U.S.C. § 466). In any event, the court

The Water Quality Act of 1965 proved to be just as

ineffective. The Act placed upon states the paramount

responsibility for the establishment and enforcement of

water quality standards. States were required to adopt

water quality standards and obtain the approval of the

Secretary of the Interior. Enforcement procedures were

extremely cumbersome.*' A lawsuit could be commenced

only if (1) a formal notice of intent to sue preceded the

action by at least 180 days, (2) the governor of the

state involved consented to the suit, and (3) the pollu-

tion had an interstate impact. The Act gave courts broad

discretion to enter remedial orders as “the public interest

and equities in the cause may require.“ Congress, in

did not even consider whether either the Refuse Act or the Water

Quality Act conferred equitable discretion to permit an onging vio-

lation of the statute. In United States v. Kennebec Log Driving

Co., 491 F. 2d 562 (1st Cir. 1973), on remand, 399 F. Supp. 754

(D. Me 1975), aff'd, 530 F. 2d 446 (Ist Cir. 1976), cert. denied,

429 U.S. 821 (1977), the court found that there was no Refuse Act

violation because of a statutory exemption for logdriving activities.

The court remanded for district court adjudication of whether the

incidental deposit of log chips was also exempt. The decision

in United States v. Rohm & Haas Co., 500 F. 2d 167 (5th Cir. 1974),

cert. denied, 420 U.S. 962 (1975), is similarly inapposite. In that

case, the court was required to determine the amount of chemical

discharge that would be permissible in the absence of a Refuse Act

permit. The government apparently did not request a total prohibi-

tion against discharges, so there was no question of whether the

court should order a halt to discharges. In neither Kennebec

Log nor Rohm & Haas did the court consider whether it possessed

equitable discretion under the Refuse Act to permit a continuing

violation.

81 The Senate Report explained:

The Committee, of course, has in the record documentation of

the poor enforcement performance under the 1965 Act. The

Committee concluded that not only were there weaknesses in

the procedures established on enforcement, but more impor-

tantly, there were weaknesses in the overall design of enforce-

able requirements.

Senate Report 63.

8 Water Quality Act of 1965, supra n. 77 at §5(a) (adding

§ 10 (c) (5) tothe FWPCA).

short, expressly directed the courts to balance the equities

before issuing injunctive relief—an approach that was

purposefully jettisoned when the existing water pollu-

tion statutes were comprehensively revised in 1972.

The 1972 Amendments reflected a profound shift in

Congressional philosophy toward the prevention and con-

trol of water pollution. The 1972 Amendments created

a new system of regulation based on the application of

effluent limitation standards to individual polluters

through the establishment of a “National Pollutant Dis-

charge Elimination System” (“NPDES”) and the is-

suance of NPDES permits to would-be polluters. The

NPDES permit system became the basic mechanism for

enforcing effluent and water quality standards and com-

pliance deadlines for the abatement of water pollution.

It was described by its draftsmen as “the most important

facet of the new water pollution control program.” *

Section 301 of the FWPCA expressly provides that it

is unlawful for a “point source” to discharge pollutants

without the NPDES permit required by Section 402 of

the Act.“ Consistent with this statutory language, this

Court has stated that “[e]very point source discharge

is prohibited unless covered by a permit, which directly

subjects the discharger to the administrative apparatus

established by Congress to achieve its goals.” City of

Milwaukee v. Illinois, —— U.S. ——, 49 U.S.L.W. 4445,

4449 (1981) (emphasis in original; footnote omitted).

The NPDES permit functions as a condition precedent

to the discharge of pollutants. The Senate Report ac-

companying the 1972 Amendments reflected the change

in federal policy: “Unlike its predecessor program which

permitted the discharge of certain amounts of pollutants

. . „ this legislation would clearly establish that no one

has the right to pollute.” The Report explains that

“the Committee recognizes the impracticality of any effort

to halt all pollution immediately. Therefore, this section

83 H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 125 (1972).

88 301, 402, 33 U.S.C. §§ 1311, 1342 (1976 & Supp. III 1979).

[Section 301] provides an exception if the discharge

meets the requirements of this section, Section 402, and

others listed in the bill.” “ Only if a permit is obtained

is the discharge of pollutants allowed.

The permit requirement in Section 301(a) is the “en-

forcement hub” of the Act, at the center of a “web of

complex interrelated regulatory programs.” United

States v. Holland, 373 F. Supp. 665, 668 (M.D. Fila.

1974). See also United States v. Earth Sciences, Inc.,

599 F. 2d 368 (10th Cir. 1979). The permit is the direct

link between the EPA and each discharger. It assures

that individual point sources are directly brought into

compliance with the Act.“ It also assures that the EPA,

the agency with paramount expertise in the prevention of

environmental degradation, has the opportunity to review

proposed discharges before they are allowed to foul the

nation’s navigable waters.“

The courts have consistently held that Congress in-

tended the permit to be the only means by which a dis-

charger could escape the total prohibition of Section 301.

In three recent decisions under the FWPCA, this Court

has indicated that the NPDES permit is a precondition

to the discharge of a pollutant. City of Milwaukee v.

Illinois, —— U.S. ——, 49 U.S.L.W. 4445, 4447 (1981)

(the FWPCA “established a new system of regulation

under which it is illegal for anyone to discharge pollutants

into the Nation’s waters except pursuant to a permit”) ;

Train v. Colorado Public Interst Research Group, Inc.,

426 U.S. 1, 7 (1976); EPA v. State Water Resources

Control Board, 426 U.S. 200, 205 (1976).* In short, the

85 Senate Report 42, 43 (emphasis adde

86 See Senate Report 72.

87 See e.g., 117 Cong. Rec. 38805 (1971) (remarks of Sen. Ran-

dolph), reprinted in 2 Legis. His. 1272.

88 See also Natural Resources Defense Council, Inc. v. Costle, 568

F. 2d 1369, 1874 (D.C. Cir. 1977); Bethlehem Steel Corp. v. Train,

544 F. 2d 657, 659 (3d Cir. 1976), cert. denied, 430 U.S. 975 (1977).

In Save Our Sound Fisheries Ass’n v. Callaway, 387 F. Supp.

292 (D.R.I. 1974), the court enjoined the Army from disposing of

text, legislative history, and applicable case law flatly

forbid the discharge of pollutants without an NPDES

permit.

C. The Mandatory Administrative Review and Compli-

ance Schemes Specified in the FWPCA Preclude

Equitable Discretion to Allow an Ongoing Violation

of the Permit Requirement.

The mandatory administrative review and compliance

schemes established in the FWPCA do not permit courts

to exercise equitable discretion to permit an ongoing

violation of the permit requirement. If such discretion

were allowed, the EPA’s administrative review of permit

applications would be undermined.” A discharger could

dredged materials in violation of several laws, including the

FWPCA. The court there stated:

The statutory procedures for obtaining a permit .. before

potentially harmful substances are introduced into the water

are designed to insure that such decisions are based on specific

and informed findings regarding the effect of such dumping on

the marine environment.

387 F. Supp. at 299-300. And in Cooper v. Wisdom, 440 F. Supp.

1027 (S.D. Fla. 1977), the court restrained the Army from dredg-

ing marine areas under the authority of an invalid NPDES permit.

The court stated that because the operation was being carried on

without a valid permit, it “has therefore not been evaluated accord-

ing to established criteria.” The court concluded that “the plain-

tiff’s right to protective relief from the effects of an invalid permit

is clear.” 440 F. Supp. at 1030.

89 Congress specifically intended that the expertise of the EPA

and state administrative agencies would be utilized to analyze the

environmental consequences of proposed discharges. As this Court

explained in City of Milwaukee v. Illinois, ——- U.S. ——, 49

U.S.L.W. 4445, 4451 (1981):

Not only are the technical problems difficult—doubtless the

reason Congress vested authority to administer the Act in ad-

ministrative agencies possessing the necessary expertise—but

the general area is particularly unsuited to the approach in-

evitable under a regime of federal common law.. . . The statu-

tory scheme established by Congress provides a forum for the

pursuit of such claims before expert agencies by means of the

pollute unabated until the EPA could deny its permit

application and order the discharges to stop. More im-

portantly, as the Navy did in this case, dischargers may

be tempted simply to wait until they are sued before filing

permit applications; and even then they may try to escape

the Act’s prohibition against discharges without a permit

by arguing, as the Navy did, that the equities should

contravene Congress’ intent in designing the permit system

“to regulate to the fullest extent possible those sources

emitting pollution .. United States v. Earth Sciences,

Inc., 599 F.2d 368, 373 (10th Cir. 1979).

In an analogous situation, this Court has held that

the statutory deadlines for compliance with the system

of pollution abatement are mandatory. EPA v. Na-

tional Crushed Stone Association, 449 U.S. 64 (1980).

Considerations of cost and hardship do not excuse non-

compliance with these deadlines. Contrary to the asser-

tion of the Navy,” the phased system for compliance

with technology-based effluent limitations does not evi-

dence any relaxation of the threshold requirement that

no discharges should be allowed unless the discharger has

obtained a permit. If these deadlines are to be met, then

all of the intermediate compliance deadlines must also

be observed. There is no intermediate deadline for

compliance with water quality standards. The NPDES

permit is the initial requirement that must be satisfied

to ensure compliance with the effluent limitations and the

water quality standards. Each permit must, on a micro-

cosmic level, include terms and conditions that will assure

the attainment, on the macrocosmic level, of regional and

national enforcement goals. The permit is the enforce-

ment predicate; if permit procedures are not strictly

observed, national enforcement goals are jeopardized.”

permit granting process. It would be quite inconsistent with

this scheme if the federal courts were in effect to “write their

own ticket” under the guise of federal common law .. .

9 Navy Br. 19.

The Act confers discretion upon the Administrator of EPA to

require compliance on an earlier date. See 118 Cong. Rec. 33692

The opportunity for public participation in the permit

process also evinces Congressional intent not to relieve

a discharger from mandatory compliance with the permit

process.” Congress did not intend that citizens would be

required to assume onerous burdens of proof or engage in

protracted litigation to compel violators to comply with the

Act.“ “One purpose of these new requirements is to

avoid the necessity of lengthy fact finding, investigations,

and negotiations at the time of enforcement. Enforce-

ment of violations . . . should be based on relatively nar-

(1972), reprinted in 1 Legis. His. 163 (Senator Muskie) (“The

Administrator retains the authority to require the application of

these controls at an earlier date and it is intended that he will re-

quire their application the soonest practicable time.”). However,

the Act confers no discretion to issue permits that allow compli-

ance after the deadline.

* Senate Report 64, 80. Without any reference to the legislative

history or objectives of the Act, the Navy asserts that the Act’s

provision for citizen participation in the formation of remedial or-

ders would “be pointless if every violation of the Act were to be

remedied by an immediate cessation order.” Navy Brief at 17 n. 17.

This assertion is irrelevant. Puerto Rico has never argued, and the

Court below did not rule, that every violation would have to be

remedied by an immediate cessation order. Puerto Rico, for exam-

ple, recognizes that a violation that would not recur would not have

to be remedied by a cessation order. More importantly, citizens can

play a vital role in the enforcement process even though courts do

not have the equitable discretion to permit an ongoing violation of

the Act. Citizens can present evidence concerning the likelihood of

future violations so that a court can determine if injunctive relief

is necessary to remedy a statutory violation. Citizens also may

present evidence about the types of conduct that must be halted or

the types of technology that can be employed by the discharger in

order to comply with the Act.

da The legislative history demonstrates that Congress intended

citizens to play an active role in ensuring prompt compliance. The

Senate Report explained that “if governmental agencies fail to exer-

cise their enforcement responsibility, the public is provided the

right to seek vigorous action. “[I]f the timetables established

throughout the Act are to be met, the threat of sanctions must be

real and enforcement provisions must be swift and direct.” Senate

Report 64, 65.

row fact situations requiring a minimum of discretionary

decision making or delay... . [T]he issue before the

courts would be a factual one of whether there had been

compliance,” .

Consistent with these Congressional admonitions, citi-

zens and states have the right to secure prompt com-

pliance with the Act merely by proving that a polluter

is discharging without a permit. They are not required to

make the costly and time-consuming additional showing

that a “balancing of the equities” warrants the issuance

of injunctive relief to enforce compliance with the Act,

or that there would be irreparable harm if the injunc-

tion were not issued. This type of proof would involve

the lengthy fact finding and investigation that Congress

sought to avoid. Yet that is the burden of proof the

Navy seeks to impose on Puerto Rico, on other plaintiffs

who seek to enforce the permit requirements of the Act

and on the courts.”

* Senate Report 64, 80 (emphasis added).

* If the Navy’s interpretation of the Act’s enforcement provi-

sions were adopted as the law, private citizens would be required to

overcome potentially insurmountable obstacles and incur substantial

costs to enforce the permit requirements of the Act. Consider the

instant case as an example. Puerto Rico retained counsel and ex-

perts who traveled to the island of Vieques and then to the range in

order to assemble information about the Navy’s bombing and shell-

ing activities on the marine environment. This information was

obtained by snorkeling and scuba diving in the presence of live,

unexploded ordnance in the waters. The trial court decided, how-

ever, that it should determine not only whether there were illegal

discharges but also whether the damage to the marine environment

was irreparable and whether this damage outweighed the Navy’s

asserted national security concerns. If other litigants are required

to assume even a small fraction of the burdens assumed by Puerto

Rico in order to enforce the Act, the citizens enforcement provi-

sions will be severely wealrened and Congress’ hopes for avoiding

“the necessity of lengthy fact finding” or “investigations” in the

enforcement process will be unrealized. The judiciary moreover will

be saddled with the onerous burden of evaluating and “balancing”

complex evidence concerning such matters as the marine sciences

and national security.

The Navy’s attempt to read equitable discretion into

the Act’s permit requirement also overlooks the crucial

role played by state governments in the permit process.

Section 401 of the Act protects a state’s right to impose

more stringent requirements than those contained in the

proposed permit.“ A state has the express authority to

deny certification of the permit application or attach

conditions that must be included in the final permit.“ If

the state denies certification, the EPA may not issue

the NPDES permit.

This provision gives each state paramount authority

to protect its waters from environmental degradation.

This authority would be undermined if a discharger

were allowed to pollute while its permit application is

under review by the state.

That is precisely the situation before this Court. Al-

though the Navy has intimated that the issuance of a

permit for the discharge of munitions into Vieques waters

is a mere formality, the Environmental Quality Board

of Puerto Rico on December 2, 1981, exercised its au-

thority under Section 401 of the Act to deny certifica-

tion of the draft NPDES permit prepared by the EPA

to authorize these discharges. In its review of the per-

mit application, Puerto Rico set forth the “substantial

environmental consequences” that the court below recog-

nized might lead the Administrator to deny the permit.”

As a result of this decision, consistent with Section 402

of the Act, the EPA must deny the Navy’s permit

application.

The Navy asserts that equitable discretion to fashion

relief is expressly authorized by Section 309(b) of the

Act,“ which gives the Administrator the authority to

issue “appropriate relief, including a permanent or tem-

% 33 U.S.C. § 1341 (1976 & Supp. III 1979).

7 Id,

%8 Navy Pet. 49a.

* 83 U.S.C. § 1319 (b) (1976).

porary injunction.” % This statutory quotation, however,

must be read in the context of the Act’s express prohi-

bition against discharges of pollutants without a permit,

the purpose of the permit review process, the require-

ment for swift private enforcement, and the state cer-

tification provision.

Even the literal terms of Section 309 (b) do not au-

thorize courts to exercise broad equitable discretion. The

full text of this provision states that “[t]he Adminis-

trator is authorized to commence a civil action for ap-

propriate relief, including a permanent or temporary

injunction, for any violation for which he is authorized

to issue a compliance order under subsection (a) of this

section.” (Emphasis added.) The referenced subsection

(a), however, leaves no room for discretion to permit

an ongoing violation of the Act. Section 309 (a) (3)

mandates that when the Administrator finds a violation

of the permit requirement “he shall issue an order re-

quiring such person to comply with such section.. %

Congress required the EPA to seek “immediate compli-

ance“. % “[T]o provide opportunity for further delay,”

observed the Senate Public Works Committee, “would

only reward polluters who ignored the requirements of

the 1965 Act and penalize those discharge sources who

moved quickly to comply.”

100 Navy Br. 15.

101 88 U.S.C. § 1319 (a) (3) (1976 & Supp. III 1979) (emphasis

added).

1% Conference Rep., H.R. Rep. No. 92-1465, 92d Cong., 2d Sess.

131 (1972) ; see also H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 114

(1972) (“the Administrator . . . shall issue an order requiring

compliance”) (emphasis added).

dos Senate Report 44. The Administrator’s only discretion is to

allow a 30-day grace period for the discharger to comply voluntarily

with the Act. Section 309(a), 33 U.S.C. §1319(a) (1976 & Supp.

III 1979). The Administrator could extend the grace period beyond

thirty days only for a discharger that, inter alia, had applied for a

permit prior to December 31, 1974. Section 309 (a) (5) (B), 33

U.S. C. 5 1319 6a) (5) (B) (1976 & Supp. III 1979). This limited

grace period expired nearly seven years ago and is not relevant

here.

Apart from an injunction, the only other relief au-

thorized under Section 309 (a) is the issuance of a civil

penalty or a criminal penalty. These types of penalties

would seem to be “appropriate” in two cases: (1) if

violations have ceased and penalties would deter future

violations, or (2) if a penalty that would deter future

violations should be imposed in addition to an injune-

tion.“ In no section of the Act and in no portion of the

legislative history is it stated that refusal to halt an on-

going violation of the Act would be “appropriate relief”

or that the remedial provisions of the Act incorporate the

common law “balancing of the equities” approach to in-

junctive relief.

10 In describing the relief available under Section 309 (b) of the

Act, the House Committee mentioned only injunctive relief and civil

and criminal penalties. H.R. Rep. No. 92-911, 92d Cong., 2d Sess.

161 (1972). See also Senate Report 10.

1% The citations used by the Navy do not support the proposition

that the use of the modifier “appropriate” in Section 309(b), 33

U.S.C, § 1319 0b) (1976), authorizes courts to give “due regard to

equitable principles.” Navy Br. 17. The decisions in Hecht Co. v.

Bowles, 321 U.S. 321 (1944), and United States ex rel. Greathouse

v. Dern, 289 U.S. 352 (1933), do not involve the FWPCA. Pro-

fessor Moore in his treatise does not discuss the FWPCA. He does

state, however, that there is “little or no room for discretion” when

a federal statute provides for injunctive relief (citing United States

v. City and County of San Francisco, 310 U.S. 16 (1940), for that

proposition). 7 Moore’s Federal Practice {| 65.18[3], at 65-135 (3d

ed. 1980). The two cited cases that do involve the FWPCA—Realty

Income Trust v. Eckerd, 564 F. 2d 447 (D.C. Cir. 1977), and State

of Alaska v. Andrus, 580 F. 2d 465 (D.C. Cir.), vacated in part sub

nom. Western Oil & Gas Ass’n v. Alaska, 439 U.S. 922 (1978)—do

not interpret Section 309 of the FWPCA. These cases do not dis-

cuss the radical departure of this section from the enforcement

provision of the Water Quality Act of 1965, which expressly author-

izes courts to consider equitable considerations in fashioning relief.

The cases also do not address the legislative history of the FWPCA,

which mandates that compliance must be swift and unencumbered

by the sort of “lengthy fact finding, investigations and negotia-

tions” that would be involved if courts were given equitable discre-

tion to decline to enforce the prohibitions of the Act. Senate Re-

port 65.

Unless Congress has expressly allowed for the exercise

of judicial discretion to remedy statutory violations,

courts cannot alter the remedial scheme of a federal

statute, thereby substituting their own notions of the

common weal for Congress’ ordering of priorities. Mid-

dlesex County Sewerage Authority v. National Sea Clam-

mers Association, —— U.S. ——, 49 U.S.L.W. 4783, 4787

(1981) (“In view of [the] elaborate enforcement provi-

sions [in the FWPCA] it cannot be assumed that Con-

gress intended to authorize by implication additional

judicial remedies) ; City of Milwaukee v. Illinois, —— U.S.

—, 49 U.S.L.W. 4445 (1981). This guiding principle

of statutory construction precludes a court from engrafting

equitable discretion onto the clear, mandatory require-

ments contained in the Act.“ In this case, the court below

correctly applied this principle to enjoin the Navy from

further violations of the Act.“!

1% In one critical respect, Puerto Rico's situation differs from the

situations the Court addressed in Sea Clammers and City of Mil-

waukee, In those cases, the plaintiff sought to obtain additional,

more stringent remedies than those expressly provided in the

FWPCA, which the Court found occupied the field of federal water

pollution control law. In this case, Puerto Rico only seeks enforce-

ment of a remedy that is expressly provided for in the Act. The

Navy, by contrast, seeks to weaken the commands and remedies

provided in the Act by asking this Court to incorporate into the

Act the traditional, flexible and discretionary common law standards

that govern the issuance of injunctive relief in private litigation.

In essence, Puerto Rico seeks to preserve the integrity of the Act's

enforcement scheme while the Navy seeks to weaken it.

107 The Navy incorrectly characterizes the trial court ruling as

one which “brings the Navy into compliance” with the FWPCA.

The Navy mistakenly assumes that compliance is accomplished

merely by following the procedures that are necessary to obtain a

permit. As previously described, the Act specifically forbids the

discharge of pollutants unless and until the discharger obtains a

permit or an exemption. Compliance with the Act by the Navy

therefore cannot occur until it obtains a permit or an exemption.

In the interim, the Navy is breaking the law.

D. The Legislative History of the FWPCA Manifests

a Clear Congressional Intent that Federal Facilities

Fully Comply with the Act.

1. Federal Facilities are to Serve as a Model for

Compliance with the Act.

The ruling of the Court of Appeals properly vindi-

cated Congress’ desire to ensure full compliance with

the FWPCA by federal facilities. Congress specifically

required “[f]ederal facilities to meet the same effluent

limitations and water quality standards as private sources

of pollution.” '* Federal facilities were to assume the lead-

ing role in achieving compliance with the water pollution

abatement scheme contained in the Act. The House Report

explained that “[t]he Committee, after hearing of numer-

ous examples of flagrant violation of pollution controls,

is determined that the Federal facilities shall be a

model for the Nation.“ . Federal facilities do not comply

with this mandate if they are allowed to violate the Act’s

permit requirements—the cornerstone for enforcement.

Congress recognized that there are certain limited situa-

tions in which these requirements would have to be

tempered by countervailing national interests. For these

limited situations, Congress drafted the Presidential ex-

emption provisions.

108 H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 73 (1972).

10 H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 118 (1972) (empha-

sis added). The federal facilities provisions of the FWPCA were

modeled on the virtually identical federal facilities provisions in the

previously enacted Clean Air Act, 42 U.S.C. § 7401 et seq. (1976 &

Supp. II 1978). The legislative history of the Clean Air Act provi-

sion also manifested Congressional concern for the “flagrant viola-

tions of air and water pollution standards by Federal facilities.”

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 23 (1970). See also 116

Cong. Rec. 19205 (1970).

2. The Presidential Exemption is the Mechanism

that Must be Used by Federal! Facilities to Au-

thorize Discharges Without an NPDES Permit.

The Presidential exemption—not the exercise of equi-

table discretion by courts—is the safety valve for essen-

tial federal activities that would otherwise be halted by

the statutory permit requirement.“ The exemption provi-

sions manifest two important objectives that Congress

sought to achieve by passage of the FWPCA. They evince

Congress’ determination that only paramount national in-

terests are sufficiently compelling to justify noncompliance

with the permit requirement.“ They also express Con-

gress’ intent that the President—not the federal courts—

1% FWPCA § 318, 33 U.S.C. § 1323 (1976 & Supp. III 1979).

111 Congress also provided narrow, carefully crafted exemptions

for industrial dischargers that could prove economic and technologi-

cal justification for a variance from the deadlines for compliance

with promulgated effluent limitation regulations. See FWPCA

§§ 801(c), 301(g), 302 (b) (2), 33 U.S.C, §§1811(c), 1811(g),

1312 (b) (2) (1976). The existence of these exemptions, in con-

junction with the federal facilities exemption, manifest Congress’

intent to strictly limit the opportunities for noncompliance with

the Act’s mandatory restrictions on the discharge of pollutants.

This Court's observations in TVA v. Hill, 437 U.S. 153, 188 (1978),

forcefully reaffirm this analysis:

In passing the Endangered Species Act of 1973, Congress

was also aware of certain instances in which exceptions to the

statute’s broad sweep would be necessary. Thus, § 10, 16 USC

§ 1589 (1976 ed), creates a number of limited “hardship ex-

emptions,” none of which would even remotely apply to the

Tellico Project. In fact, there are no exemptions in the Endan-

gered Species Act for federal agencies, meaning that under

the maxim expressio unius est exclusio alterius, we must pre-

sume that these were the only “hardship cases” Congress in-

tended to exempt. Cf. National Railroad Passenger Corp. v.

National Assn. of Railroad Passengers, 414 US 453, 458

(1974). (footnote omitted)

Similarly, the maxim “expressio unius est exclusio alterius,” when

applied to the statute in this case, compels the conclusion that non-

compliance with the Act’s requirements only can be excused if the

conduct falls within a statutory exemption.

bear the responsibility of weighing the national interests

affected by particular discharges and deciding whether an

exemption is necessarv. Both of these objectives are well

documented in the legislative history of the Act.

In its discussion of the federal facilities section of the

Act, the Senate Report stated:

Evidence received in hearings disclosed many inci-

dents of flagrant violations of air and water pollution

requirements by Federal facilities and activities.

Lack of Federal leadership has been detrimental to

the water pollution control effort. The Federal Gov-

ernment cannot expect private industry to abate pol-

lution if the Federal Government continues to pollute.

This section requires that Federal facilities meet all

control requirements as if they were private citizens.

The Committee recognizes, however, that it may be in

the paramount interest of the United States that

a plant or facility not achieve full water pollution

control within the time required. Therefore, the bill

would provide case by case exceptions, on the basis

of determination by the President, for a period of

no more than one year.“

The Senate Report specifically targeted the Depart-

ment of Defense as an agency that ought to curb its

practice of polluting:

As recognized under section 313 of the bill, Federal

facilities generate considerable water pollution. Since

some Federal agencies such as the Department of

Defense have failed in abating pollution and in re-

questing appropriations to develop control measures,

it is important to provide that citizens can seek,

through the courts, to expedite the government per-

formance specifically directed under section 313.1”

Congress thus intended that agencies such as the Depart-

ment of Defense could not continue to disregard the fed-

112 Senate Report 67-68.

113 Jd, 80.

eral prohibitions against the discharge of pollutants. If the

required prohibition interferes wich the “paramount in-

terest of the United States,” the obvious remedy is the

grant of a Presidential exemption. Congress wanted fed-

eral agencies that voiced concerns about the national

interest to direct their pleas to the Commander-in-Chief.

This approach implicitly acknowledges the President’s

particular expertise to assess national interests.“

Congressional insistence on strict federal facility com-

pliance with the Act is reflected in the stringent limita-

tions placed upon an exemption. The President alone is

empowered to grant an exemption. Any exemption

is limited in time.“ The President, moreover, must

certify that the exemption is in the national interest.

Even if an exemption for a federal facility may otherwise

be warranted, it cannot be based upon the lack of ap-

propriations unless Congress previously has rejected an

Executive Branch request for funds.

When viewed against the structure of the Act and

the legislative history of the exemption provision, the

trial court’s lengthy analysis of national security con-

siderations was clearly inappropriate. Contrary to the

Navy’s assertion, the exemption provision does not sug-

gest “that national security interests are a proper factor

for the court to consider in fashioning appropriate relief

where ultimate compliance with the statutory standards

can be achieved and the agency has elected to comply

114 The exercise of this discretion has been held to be nonreview-

able. Carter v. Colon, 633 F. 2d 964, 967 (1st Cir. 1980) (“It is

difficult to imagine a determination more fully committed to discre-

tion or less appropriate to review by a court”). The President has

already issued one exemption under the Act for the military base

on Fort Allen in Puerto Rico. 45 Fed. Reg. 66443 (Oct. 7, 1980).

If this exercise of discretion is nonreviewable, then courts neces-

sarily should be precluded from substituting their judgment for the

President’s: they should not decide whether national security con-

cerns justify noncompliance with the Act in a particular case.

118 See Senate Report 68.

with the Act rather than to seek an exemption.” 11 The

opposite is true.

Congress intended that national security considerations

were to be weighed by the President through the pre-

scribed procedure—not by a district court. A court’s

“balancing” of national security interests against the

Congressional requirements is repugnant to the statu-

tory scheme. Congress did not intend for courts to re-

assess the costs and benefits of compliance with the Act

on a case-by-case basis, nor did it intend to allow courts

to usurp the President’s role as the sole source of an

exemption for federal facilities. The Court of Appeals

correctly ruled that the trial court acted improperly by

engaging in a balancing exercise. The enforcement

scheme and objectives of the Act mandated that this

type of balancing was to be performed, if at all, by the

President in response to a request for an exemption

from the permit requirement.

The opportunity for an exemption makes the case for

injunctive relief even more compelling here than in

other cases decided by the Court. In TVA v. Hill, 437

U.S. 153 (1978), for example, the agency could not

escape from its mandatory obligation to refrain from

destroying critical habitat. It could only appeal to Con-

gress for a change in the law. By contrast, here Congress

has already provided the means for relief: a Presidential

exemption. There is no need for a remand to the legisla-

ture for a change in the law if the activity in question

truly is in the paramount interest of the United S ates.

The Navy’s position in this case cannot be reconciled

with the plain requirements of the Presidential exemp-

tion provisions of the Act. The Navy has been given

what is tantamount to a “judicial exemption” for a

period far beyond the one-year period provided by

statute. The Navy failed to obtain a permit after the

FWPCA was passed in 1972. The Navy permit applica-

116 Navy Br. 23.

tion was filed on December 28, 1979. Nearly two years

have elapsed since this application was filed. The Navy

has yet to obtain a permit or a Presidential exemption

that would excuse its noncompliance with the permit

requirement. The Navy has violated the Act for the nine-

year period since it was passed in 1972. It is flatly con-

trary to the clear requirements of the Act for the Navy

to continue its discharges in the absence of a permit or

a Presidential exemption.

CONCLUSION

For the foregoing reasons, Puerto Rico respectfully

requests that the judgment of the Court of Appeals be

affirmed.

Respectfully submitted,

HECTOR REICHARD DE CARDONA

Secretary of Justice

Government of Puerto Rico

HOWARD CHARLES

Department of Justice

Government of Puerto Rico

GERARDO A. CARLO

Special Counsel to the Governor

Government of Puerto Rico

JOHN A. HODGES

(Counsel of Record)

TIMOTHY L. HARKER

LAWRENCE WHITE

JEFFREY N. MARTIN

PEABODY, LAMBERT & MEYERS

A Professional Corporation

1150 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 457-1000

Counsel for the Respondents

December 21, 1981

STATUTORY APPENDIX

Most of the pertinent portions of the Federal Water

Pollution Control Act, 33 U.S.C. § 1351 et seg. (1976 &

Supp. III 1979), are reprinted in the Appendix to the

Navy’s Petition for a Writ of Certiorari at 171-180a. The

Navy, however, has omitted portions of the Act that are

material to the issues presented in this case. Puerto Rico,

therefore, has reproduced below the statutory provisions

reproduced by the Navy as well as additional, material

portions of the Act:

Section 101, 33 U.S.C. § 1251 (1976 & Supp. III 1979)

Declaration of Goals and Policy

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

maintain the chemical, physical, and biological in-

tegrity of the Nation’s waters. In order to achieve

this objective it is hereby declared that, consistent

with the provisions of this chapter—

(1) it is the national goal that the discharge

of pollutants into the navigable waters be elimi-

nated by 1985;

(2) it is the national goal that wherever at-

tainable, an interim goal of water quality which

provides for the protection and propagation of

fish, shellfish, and wildlife and provides for rec-

reation in and on the water be achieved by July

1, 1983;

(3) it is the national policy that the discharge

of toxic pollutants in toxic amounts be pro-

hibited ;

Section 301, 33 U.S.C. § 1811 (1976 & Supp. III 1979)

Effluent Limitations

(a) Ilegality of pollutant discharges except in com-

pliance with law

Except as in compliance with this section and sec-

tions 1312, 1316, 1317, 1328, 1342, and 1344 of this

title, the discharge of any pollutant by any person

shall be unlawful.

(b) Timetable for achievement of objectives

In order to carry out the objective of this chapter

there shall be achieved—

(1) (A) not later than July 1, 1977, effluent

limitations for point sources, other than publicly

owned treatment works, (i) which shall require

the application of the best practicable control

technology currently available as defined by the

Administrator pursuant to section 1314 (b) of

this title, or (ii) in the case of a discharge into

a publicly owned treatment works which meets

the requirements of subparagraph (B) of this

paragraph, which shall require compliance with

any applicable pretreatment requirements and

any requirements under section 1317 of this

title; and

* * * *

stringent limitation, ineluding those necessary

to meet water quality standards, treatment

standards, or schedules of compliance, established

pursuant to any State law or regulations (under

authority preserved by section 1370 of this title)

or any other Federal law or regulation, or re-

quired to implement any applicable water qual-

ity standard established pursuant to this chap-

ter.

(2) (A) for pollutants identified in subpara-

graphs (C), (D), and (F) of this paragraph,

effluent limitations for categories and classes of

point sources, other than publicly owned treat-

ment works, which (i) shall require application

of the best available technology economically

achievable for such category or class, which will

result in reasonable further progress toward the

national goal of eliminating the discharge of all

pollutants, as determined in accordance with reg-

ulations issued by the Administrator pursuant to

section 1814(b) (2) of this title, which such ef-

fluent limitations shall require the elimination

of discharges of all pollutants if the Admin-

istrator finds, on the basis of information avail-

able to him (including information developed

pursuant to section 1825 of this title), that such

elimination is technologically and economically

achievable for a category or class of point

sources as determined in accordance with regu-

lations issued by the Administrator pursuant to

section 1314 (b) (2) of this title, or (ii) in the

case of the introduction of a pollutant into a

publicly owned treatment works which meets the

requirements of subparagraph (B) of this para-

graph, shall require compliance with any appli-

cable pretreatment requirements and any other

requirement under section 1317 of this title;

(F) for all pollutants (other than those sub-

ject to subparagraphs (C), (D), or (E) of this

paragraph) compliance with effluent limitations

in accordance with subparagraph (A) of this

paragraph not later than 3 years after the date

such limitations are established, or not later

than July 1, 1984, whichever is later, but in no

ease later than July 1, 1987.

(e) The Administrator may modify the require-

ments of subsection (b) (2) (A) of this section with

respect to any point source for which a permit appli-

cation is filed after July 1, 1977, upon a showing by

the owner or operator of such point source satisfac-

tory to the Administrator that such modified require-

ments (1) will represent the maximum use of tech-

nology within the economic capability of the owner or

operator; and (2) will result in reasonable further

progress toward the elimination of the discharge of

pollutants,

* * * a

(g) (1) The Administrator, with the concurrence

of the State, shall modify the requirements of sub-

section (b) (2) (A) of this section with respect to

the discharge of any pollutant (other than pollutants

identified pursuant to section 1314 (a) (4) of this Act,

toxic pollutants subject to section 1317 (a) of this Act,

and the thermal component of discharges) from any

point source upon a showing by the owner or oper-

ator of such point source satisfactory to the Admin-

istrator that—

(A) such modified requirements will result at

a minimum in compliance with the requirements

of subsection (b) (1) (A) or (C) of this section,

whichever is applicable;

(B) such modified requirements will not re-

sult in any additional requirements on any other

point or nonpoint source; and

the attainment or maintenance of that water

quality which shall assure protection of public

water supplies, and the protection and propaga-

tion of a balanced population of shellfish, fish,

and wildlife, and allow recreational activities, in

and on the water and such modification will not

result in the discharge of pollutants in quantities

which may reasonably be anticipated to pose an

unacceptable risk to human health or the envir-

onment because of bioaccumulation, persistency

in the environment, acute toxicity, chronic tox-

icity (including carcinogenicity, mutagenicity or

teratogenicity), or synergistic propensities.

(2) If an owner or operator of a point source

applies for a modification under this subsection with

respect to the discharge of any pollutant, such owner

or operator shall be eligible to apply for modification

under subsection (c) of this section with respect to

such pollutant only during the same time-period as

he is eligible to apply for a modification under this

subsection.

Section 302, 33 U.S.C. § 1812 (1976)

Water Quality Related Effluent Limitations

(a) Whenever, in the judgment of the Administra-

tor, discharges of pollutants from a point source or

group of point sources, with the application of efflu-

ent limitations required under section 1311 (b) (2) of

this Act, would interfere ith the attainment or

maintenance of that water quality in a specific por-

tion of the navigable waters which shall assure pro-

tection of public water supplies, agricultural and in-

dustrial uses, and the protection and propagation of

a balanced population of shellfish, fish and wildlife,

and allow recreational activities in and on the water,

effluent limitations (including alternative effluent

control strategies) for such point source or sources

shall be established which can reasonably be expected

to contribute to the attainment or maintenance of

such water quality.

(b) (1) Prior to establishment of any effluent lim-

itation pursuant to subsection (a) of this section, the

Administrator shall issue notice of intent to establish

such limitation and within ninety days of such notice

hold a public hearing to determine the relationship

of the economic and social costs of achieving any such

limitation or limitations, including any economic or

social dislocation in the affected community or com-

munities, to the social and economic benefits to be

obtained (including the attainment of the objective

of this Act) and to determine whether or not such

effluent limitations can be implemented with avail-

able technology or other alternative control strategies.

(2) If a person affected by such limitation demon-

strates at such hearing that (whether or not such

technology or other alternative control strategies are

available) there is no reasonable relationship between

the economic and social costs and the benefits to be

obtained (including attainment of the objective of

this Act), such limitation shall not become effective

and the Administrator shall adjust such limitation

as it applies to such person,

(e) The establishment of effluent limitations under

this section shall not operate to delay the application

of any effluent limitation established under section

1311 of this Act.

Section 304, 33 U.S.C. § 1814 (1976 & Supp. III 1979)

Information and Guidelines

a * * *

(b) Effluent limitation guidelines

For the purpose of adoptin, or revising effluent

limitations under this chapter the Administrator

shall, after consultation with appropriate Federal

and State agencies and other interested persons, pub-

lish within one year of October 18, 1972, regulations,

providing guidelines for effluent limitations, and, at

least annually thereafter, revise, if appropriate, such

regulations. Such regulations shall—

(3) identify control measures and practices

available to eliminate the discharge of pollutants

from categories and elasses of point sources, tak-

ing into account the cost of achieving such elim-

ination of the discharge of pollutants. ;

Section 309, 33 U.S.C. § 1319 (1976 & Supp. III 1979)

(a) Enforcement

(1) Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of any condition or limitation

which implements section 1311, 1312, 1316, 1317,

1318, 1328, or 1345 of this title in a permit issued

by a State under an approved permit program under

section 1342 or 1344 of this title he shall proceed

under his authority in paragraph (3) of this sub-

section or he shall notify the person in alleged viola-

tion and such State of such finding. If beyond the

thirtieth day after the Administrator’s notification

the State has not commenced appropriate enforce-

ment action, the Administrator shall issue an order

requiring such person to comply with such condition

or limitation or shall bring a civil action in accord-

ance with subsection (b) of this section.

(3) Whenever on the basis of any information

available to him the Administrator finds that any

person is in violation of section 1311, 1312, 1316,

1317, or 1318, 1828, or 1345 of this Act, or is in

violation of any permit condition or limitation im-

plementing any of such sections in a permit issued

under section 1342 of this Act by him or by a State

or in a permit issued under section 1344 of this Act

by a State, he shall issue an order requiring such

person to comply with such section or requirement,

or he shall bring a civil action in accordance with

subsection (b) of this section.

(5) (B) The Administrator may, if he determines

(i) that any person who is a violator of, or any per-

son who is otherwise not in compliance with, the

time requirements under this chapter or in any

permit issued under this chapter, has acted in good

faith, and has made a commitment (in the form

of contracts or other securities) of necessary re-

sources to achieve compliance by the earliest possi-

ble date after July 1, 1977, but not later than

April 1, 1979; (ii) that any extension under this

provision will not result in the imposition of any

additional controls on any other point or nonpoint

source; (iii) that an application for a permit under

section 1342 of this title was filed for such person

prior to December 31, 1974; and (iv) that the facili-

ties necessary for compliance with such require-

ments are under construction, grant an extension

of the date referred to in section 1311 (b) (1) (A) of

this title to a date which will achieve compliance at

the earliest time possible but not later than April 1,

1979.

7 >. * *

(b) Civil actions

The Administrator is authorized to commence a

civil action for appropriate relief, including a per-

manent or temporary injunction, for any violation

for which he is authorized to issue a compliance

order under subsection (a) of this section. Any ac-

tion under this subsection may be brought in the

district court of the United States for the district

in which the defendant is located or resides or is

doing business, and such court shall have jurisdic-

tion to restrain such violation and to require compli-

ance. Notice of the commencement of such action

shall be given immediately to the appropriate State.

Section 313, 33 U.S.C. § 1323 (1976 & Supp. III 1979)

Federal Facilities Pollution Control

(a) Each department, agency, or instrumentality

of the executive, legislative, and judicial branches of

the Federal Government (1) having jurisdiction

over any property or facility, or (2) engaged in

any activity resulting, or which may result, in the

discharge or runoff of pollutants, and each officer,

agent, or employee thereof in the performance of

his official duties, shall be subject to, and comply

with, all Federal, State, interstate, and local require-

ments, administrative authority, and process and

sanctions respecting the control and abatement of

water pollution in the same manner, and to the

same extent as any nongovernmental entity includ-

ing the payment of reasonable service charges. * * *

The President may exempt any effluent source of

any department, agency, or instrumentality in the

executive branch from compliance with any such a

requirement if he determines it to be in the para-

mount interest of the United States to do so; except

that no exemption may be granted from the require-

ments of section 1316 or 1317 of this title. No such

exemptions shall be granted due to lack of appro-

priation unless the President shall have specifically

requested such appropriation as a part of the

budgetary process and the Congress shall have failed

to make available such requested appropriation. Any

exemption shall be for a period not in excess of one

year, but additional exemptions may be granted for

periods of not to exceed one year upon the Presi-

dent’s making a new determination. The President

shall report each January to the Congress all exemp-

tions from the requirements of this section granted

10a

during the preceding calender year, together with

his reason for granting such exemption. In addition

to any such exemption of a particular effluent source,

the President may, if he determines it to be in the

paramount interest of the United States to do so,

issue regulations exempting from compliance with

the requirements of this section any weaponry,

equipment, aircraft, vessels, vehicles, or other classes

or categories of property, and access to such prop-

erty, which are owned or operated by the Armed

Forces of the United States (including the Coast

Guard) or by the National Guard of any State and

which are uniquely military in nature. The Presi-

dent shall reconsider the need for such regulations

at three-year intervals.

Section 401, 33 U.S.C. § 1341 (1976 & Supp. III 1979)

Certification

(a) Compliance with applicable requirements; ap-

plication; procedures; license suspension

(1) Any applicant for a Federal license or permit

to conduct any activity including, but not limited to,

the construction or operation of facilities, which may

result in any discharge into the navigable waters,

shall provide the licensing or permitting agency a

certification from the State in which the discharge

originates or will originate, or, if appropriate, from

the interstate water pollution control agency having

jurisdiction over the navigable waters at the point

where the discharge originates or will originate, that

any such discharge will comply with the applicable

provisions of sections 1311, 1312, 1313, 1316, and

1317 of this title. In the case of any such activity

for which there is not an applicable effluent limita-

tion or other limitation under sections 1311 (b) and

1312 of this title, and there is not an applicable

standard under sections 1316 and 1317 of this title,

the State shall so certify, except that any such

lla

certification shall not be deemed to satisfy section

1371 (e) of this title.“. * If the State, interstate

agency, or Administrator, as the case may be, fails

or refuses to act, on a request for certification,

within a reasonable period of time (which shall not

exceed one year) after receipt of such request, the

certification requirements of this subsection shall be

waived with respect to such Federal application. No

license or permit shall be granted until the certifica-

tion required by this section has been obtained or has

been waived as provided in the preceding sentence.

No license or permit shall be granted if certification

has been denied by the State, interstate agency, or

the Administrator, as the case may be.

(d) Limitations and monitoring requirements of

certification

Any certification provided under this section shall

set forth any effluent limitations and other limita-

tions, and monitoring requirements necessary to as-

sure that any applicant for a Federal license or

permit will comply with any applicable effluent

limitations and other limitations, under section 1311

or 1312 of this title, standard of performance under

section 1316 of this title, or prohibition, effluent

standard, or pretreatment standard under section

1317 of this title, and with any other appropriate

requirement of State law set forth in such certifica-

tion, and shall become a condition on any Federal

license or permit subject to the provisions of this

section.

Section 402, 33 U.S.C. § 1342 (1976 & Supp. III 1979)

National Pollutant Discharge Elimination System

(a) Permits for discharge of pollutants

(1) Except as provided in section 1328 and 1344

of this title, the Administrator may, after oppor-

12a

tunity for the public hearing issue a permit for the

discharge of any pollutant, or combination of pol-

lutants, notwithstanding section 1311 (a) of this

title, upon condition that such discharge will meet

either all applicable requirements under sections

1311, 1312, 1316, 1317, 1318, and 1343 of this title,

or prior to the taking of necessary implementing

actions relating to all such requirements, such condi-

tions as the Administrator determines are necessary

to carry out the provisions of this chapter.

(2) The Administrator shall prescribe conditions

for such permits to assure compliance with the re-

quirements to paragraph (1) of this subsection, in-

cluding conditions on data and information collec-

tion, reporting, and such other requirements as he

deems appropriate.

(3) The permit program of the Administrator

under paragraph (1) of this subsection, and permits

issued thereunder, shall be subject to the same terms,

conditions, and requirements as apply to a State

permit program and permits issued thereunder sub-

section (b) of this section.

(b) At any time after the promulgation of the

guidelines required by subsection (h) (2) of section

1314 of this Act, the Governor of each State desiring

to administer its own permit program for discharges

into navigable waters within its jurisdiction may

submit to the Administrator a full and complete

description of the program it proposes to establish

and administer under State law or under an inter-

state compact. In addition, such State shall submit

a statement from the attorney general (or the attor-

ney for those State water pollution control agencies

which have independent legal counsel), or from the

chief legal officer in the case of an interstate agency,

13a

that the laws of such State, or the interstate com-

pact, as the case may be, provide adequate authority

to carry out the described program. The Admin-

istrator shall approve each such submitted program

unless he determines that adequate authority does

not exist:

(1) To issue permits which—

(A) apply, and insure compliance with, any

applicable requirements of sections 1311, 1312,

1316, and 1343;

(B) are for fixed terms not exceeding five

years;

* * * *

(j) A copy of each permit application and each

permit issued under this section shall be available

to the public. Such permit application or permit,

or portion thereof, shall further be available on re-

quest for the purpose of reproduction.

(k) Compliance with a permit issued pursuant

to this section shall be deemed compliance, for pur-

poses of sections 1319 and 1365, with sections 1311,

1312, 1316, 1317, and 1343, except any standard

imposed under section 1317 for a toxie pollutant in-

jurious to human health. Until December 31, 1974,

in any case where a permit for discharge has been

applied for pursuant to this section, but final ad-

ministrative disposition of such application has not

been made, such discharge shall not be a violation

of (1) sections 1311, 1316, or 1342 of this Act, or

(2) section 18 of the Act of March 3, 1899, unless

the Administrator or other plaintiff proves that final

administrative disposition of such application has not

been made because of the failure of the applicant to

furnish information reasonably required or requested

in order to process the application. For the 180-day

period beginning on the date of enactment of the

14a

Federal Water Pollution Control Act Amendments of

1972, in the case of any point source discharging any

pollutant or combination of pollutants immediately

prior to such date of enactment which source is not

subject to section 13 of the Act of March 3, 1899,

the discharge by such source shall not be a violation

of this Act if such a source applies for a permit for

discharge pursuant to this section within such 180-day

period.

* a * *

Section 403, 33 U.S.C. § 1343 (1976)

Ocean Discharge Criteria

(a) No permit under section 1342 of this Act for

a discharge into the territorial sea, the waters of

the contiguous zone, or the oceans shall be issued,

after promulgation of guidelines established under

subsection (c) of this section, except in compliance

with such guidelines. Prior to the promulgation of

such guidelines, a permit may be issued under such

section 1342 if the Administrator determines it to be

in the public interest.

(b) The requirements of subsection (d) of section

1342 of this Act may not be waived in the case of

permits for discharges into the territorial sea.

(e) (1) The Administrator shall, within one hun-

dred and eighty days after enactment of this Act

(and from time to time thereafter), promulgate

guidelines for determining the degradation of the

waters of the territorial seas, the contiguous zone,

and the oceans, which shall include:

(A) the effect of disposal of pollutants on

human health or welfare, including but not

limited to plankton, fish, shellfish, wildlife, shore-

lines, and beaches;

15a

(B) the effect of disposal of pollutants on

marine life including the transfer, concentra-

tion, and dispersal of pollutants or their by-

products through biological, physical, and chemi-

cal processes; changes in marine ecosystem di-

versity, productivity, and stability; and species

and community population changes;

esthetic, recreation, and economic values;

(D) the persistence and permanence of the

effects of disposal of pollutants;

(E) the effect of the disposal at varying

rates, of particular volumes and concentrations

of pollutants;

(F) other possible locations and methods of

disposal or recycling of pollutants including

land-based alternatives; and

(G) the effect on alternate uses of the oceans,

such as mineral exploitation and scientific study.

(2) In any event where insufficient information

exists on any proposed discharge to make a reason-

able judgment on any of the guidelines established

pursuant to this subsection no permit shall be issued

under section 1342 of this Act.

Section 502, 33 U.S.C. § 1862 (1976 & Supp. III 1979)

Definitions

Except as otherwise specifically provided, when

used in this chapter:

(6) The term “pollutant” means dredged spoil,

solid waste, incinerator residue, sewage, garbage,

sewage sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt and indus-

16a

trial, municipal, and agricultural waste discharged

into water. This term does not mean (A) “sewage

from vessels” within the meaning of section 1322

of this title; or (B) water, gas, or other material

which is injected into a well to facilitate production

of oil or gas, or water derived in association with

oil or gas production and disposed of in a well, if

the well used either to facilitate production or for

disposal purposes is approved by authority of the

State in which the well is located, and if such State

determines that such injection or disposal will not

result in the degradation of ground or surface water

resources.

(7) The term “navigable waters“ means the

waters of the United States, including the territorial

seas.

(8) The term “territorial seas” means the belt of

the seas measured from the line of ordinary low

water along that portion of the coast which is in

direct contact with the open sea and the line mark-

ing the seaward limit of inland waters, and extend-

ing seaward a distance of three miles.

(9) The term “contiguous zone” means the en-

tire zone established or to be established by the

United States under article 24 of the Convention of

the Territorial Sea and the Contiguous Zone.

(10) The term “ocean” means any portion of the

high seas beyond the contiguous zone.

* * * a

(12) The term “discharge of pollutant” and the

term “discharge of pollutants” each means (A) any

addition of any pollutant to navigable waters from

any point source, (B) any addition of any pollutant

to the waters of the contiguous zone or the ocean

from any point source other than a vessel or other

floating craft.

* * * *

17a

(14) The term “point source“ means any dis-

cernible, confined and discrete conveyance, including

but not limited to any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure, container, rolling

stock, concentrated animal feeding, operation, or

vessel or other floating craft, from which pollutants

are or may be discharged. This term does not in-

clude return flows from irrigated agriculture.

* * * 8

Section 504, 33 U.S.C. § 1364 (1976 & Supp. III 1979)

Emergencies

Emergency Powers

(a) Notwithstanding any other provision of this

chapter, the Administratur upon receipt of evidence

that a pollution source or combination of sources is

presenting an imminent and substantial endanger-

ment to the health of persons or to the welfare of

persons where such endangerment is to be the liveli-

hood of such persons, such as inability to market

shellfish, may bring suit on behalf of the United

States in the appropriate district court to immedi-

ately restrain any person causing or contributing to

the alleged pollution to stop the discharge of pollu-

tants causing or contributing to such pollution or

to take such other action as may be necessary.

8 * * oe

Section 505, 33 U.S.C. § 1365 (1976)

Citizen Suits

(a) Authorization ; jurisdiction

Except as provided in subsection (b) of this sec-

tion, any citizen may commence a civil action on his

own behalf—

18a

(1) against any person (including (i) the

United States, and (ii) any other governmental

instrumentality or agency to the extent per-

mitted by the eleventh amendment to the Con-

stitution) who is alleged to be in violation of

(A) an effluent standard or limitation under

this chapter or (B) an order issued by the Ad-

ministrator or a State with respect to such a

standard or limitation, or

(2) against the Administrator where there is

alleged a failure of the Administrator to per-

form any act or duty under this chapter which

is not discretionary with the Administrator.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizen-

ship of the parties, to enforce such an effluent stand-

ard or limitation, or such an order, or to order the

Administrator to perform such act or duty, as the

case may be, and to apply any appropriate civil

penalties under section 1319(d) of this title.

(b) Notice

No action may be commenced—

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

tion—

(A) prior to sixty days after the plain-

tiff has given notice of the alleged viola-

tion (i) to the Administrator, (ii) to the

State in which the alleged violation occurs,

and (iii) to any alleged violator of the

standard, limitation, or order, or

(B) if the Administrator or State has

commenced and is diligently prosecuting a

civil or criminal action in a court of the

United States, or a State to require com-

pliance with the standard, limitation, or

19a

order, but in any such action in a court of

the United States any citizen may inter-

vene as a matter of right.

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

tion prior to sixty days after the plaintiff

has given notice of such action to the Ad-

ministrator,

except that such action may be brought immediately

after such notification in the case of an action under

this section respecting a violation of sections 1316

and 1317 (a) of this title. Notice under this sub-

section shall be given in such manner as the Admin-

istrator shall prescribe by regulation.

(e) Venue; intervention by Administrator

(1) Any action respecting a violation by a dis-

charge source of an effluent standard or limitation

or an order respecting such standard or limitation

may be brought under this section only in the judi-

cial district in which such source is located.

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

ministrator, if not a party, may intervene as a mat-

ter of right.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.