Petition for Writ of Certiorari — California ex rel. California State Water Resources Control Board v. United States
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01-38 su 02 200 D
No.
ORIG F Te cus,
In The
Supreme Court of the United States
.
STATE OF CALIFORNIA, acting by and through the
California State Water Resources Control Board,
Petitioner,
UNITED STATES OF AMERICA, U.S. Department
of Army, Corps of Engineers,
Respondents.
+
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit “
*
PETITION FOR WRIT OF CERTIORARI
¢
Britt Lockyer
Attorney General of the
State of California
RICHARD M. FRANK
Chief Assistant Attorney General
Mary E. HACKENBRACHT
Senior Assistant Attorney General
JoHN A. Davipson
Supervising Deputy Attorney
General
MicHaet W. NEVILLE
Deputy Attorney General
Counsel of Record
455 Golden Gate Avenue,
Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5523
Fax: (415) 703-5480
Counsel for Petitioner
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
The questions presented are:
1. Whether the Ninth Circuit misapplied Department
of Energy v. Ohio in reasoning that the Ciean Water Act
exempts a federal agency from a state’s non-discrimina-
tory regulatory fees, which are based on the volume of
waste discharged and help pay for the state’s cost of
regulating the discharges?
2. Whether the Ninth Circuit erred in concluding
that section 404(t) of the Clean Water Act, which provides
that nothing in that section is a limit on a state’s authority
to regulate federal agencies, exempts federal agencies
from section 313 of the Clean Water Act, which requires
federal agencies to comply with state water quality
requirements including reasonable service charges?
3. Whether the Ninth Circuit correctly reasoned that
the United States was entitled to judgment as a matter of
law that a state’s regulatory fees based on the volume of
discharge are illegal excise taxes rather than legitimate
service charges, when both the First and Second Circuits,
after appropriately reviewing factual records, have ruled
‘that analogous fees are legitimate service charges within
a congressional waiver of sovereign immunity?
il
LIST OF PARTIES
The parties are as stated in the caption.
ee ee cnet ws hemes mee
TABLE OF CONTENTS
Page
PETITION FOR WRIT OF CERTIORARI............ 1
CRENIOING BELOW... cc ccccccccccccccccccccccesees 1
PRP EME sc coc c cc esiccncciccsccevesccccccees 1
CONSTITUTIONAL PROVISIONS, STATUTES, AND
REGULATIONS INVOLVED .........--.--+++-+++ 1
STATEMENT OF THE CASE...........-..-2eeeeees 2
A. Jurisdiction of the Court of First Instance.... 2
B. The Nature of the Case, Course of Proceedings
and Disposition Below...............ss+ee055 2
C. Statement Of Facts... ......cccccscccccscccccces 4
D. California’s Waste Discharge Requirements,
Reports, and Permit-Related Fees........... oe
REASONS FOR GRANTING THIS PETITION ...... 6
SUT CAG4ARMA NaS NdUakaspcoceccdncsusnaneee 8
I. In Determining That California’s Waste Dis-
charge Requirements Fees are Disguised Penal-
ties Although They Do Not Punish Dischargers
for Past Misconduct, the Ninth Circuit Has
Decided an Important Federal Question in a
Way That Conflicts With This Court’s Decision
in Department of Energy v. Ohio ............++: 8
II. In Ruling That the Clean Water Act Does Not
Waive Sovereign Immunity for Payment of Cali-
fornia’s WDR Fees by the Army Corps of Engi-
neers, the Ninth Circuit Has Erroneously
Decided an Important Question of Federal Law
That Has Not Been, but Should be, Settled by
NG, 6 os hie Wiiis cc vwic vce cdacdcicaceneses 11
A. Section 404(t) of the Clean Water Act..... 13
iv
TABLE OF CONTENTS - Continued
B. Section 313(a) of the Clean Water Act..... 15
C. Sections 313 and 404 Are Complementary... 17
II. In Erroneously Ruling That the United States
Was Entitled to a Judgment as a Matter of Law
That California’s Waste Discharge Requirements
Fees Are Excise Taxes Rather Than Service
Charges, the Ninth Circuit Has Entered a Deci-
sion in Conflict with the Decisions of the Second
and First Circuits on the Same Important Matter 19
Bis SII i nnvi se a0 2 he wi kh dxecenvaaaaiess 19
B. Jorling v. United States Department of Energy;
and State of Maine v. Department of Navy..... 20
CRTC RAMEE 0:50 08 cok ctndcananneesabaddaswwowann 29
Vv
TABLE OF AUTHORITIES
Page
Cases
Arkansas v. Oklahoma, 503 U.S. 91 (1992)............. 12
Barnson v. United States, 816 F.2d 549 (10th Cir.
1987), cert. denied, 484 U.S. 896 (1987)...........-. 17
California v. United States, 438 U.S. 645 Ee 12
Department of Energy v. Ohio, 503 U.S. 607 (1992)
pdeberesesantwees Sdadabpbagseueadees 7, 8, 9, 10, 11, 12
EPA v. California, 426 U.S. 200 (1976)..........++- 14, 16
Firestone v. Howerton, 671 F.2d 317 (9th Cir. 1982) .... 17
Friends of the Earth v. United States Navy, 841 F.2d
927 (Sth Cir. 1988)... 0.2. cccccscccecccccacaccsees 18
Hancock v. Train, 426 U.S. 167 (1976) ...........-000. 14
Jorling v. United States Department of Energy, 218
F.3d :96 (2d Cir. 2000)....... ccc ceesesecccves passim
Massachusetts v. United States, 435 U.S. 44 (1978)
cubis aah Loa eas Aa ae 22, 23, 24, 25, 26
Minnesota v. Hoffman, 543 F.2d 1198 (8th Cir. 1976),
cert. denied, 430 U.S. 977 (1977) .........ceeeees 13, 16
New York v. United States, 505 U.S. 144 (1992) ....... 12
PUD No. 1 of Jefferson County v. Washington Depart-
ment of Ecology, 511 U.S. 700 (1994).........+.+-+- 11
Resource Investments, Inc. v. U.S. Army Corps of
Engineers, 151 F.3d 1162 (9th Cir. 1998)......... 16, 17
Sierra Club v. Lujan, 831 F.2d 1421 (10th Cir. 1990) .... 14
State of Maine v. Department of Navy, 973 F.2d 1007
Cot Che. 998). conc cccccesincencess 20, 25, 2h, 27, 22
United States v. Tennessee Air Pollution Control
Board, 185 F.3d 529 (6th Cir. 1999) .............-05. 9
vi
TABLE OF AUTHORITIES - Continued
Page
STATUTES
2B U.S.C. @ T2S1(DNA)....wcccrcccccccccsccccccccccsecs 1
2B UG.C. § UBBL..eccccccdcccscccccccsccccsccccccccccs 2
2B UG.C. © UDG. oc crccccscccsecccsceccccccsssesccece 2
RD. Oe oss cescucdtecetsackeiaes sueweesaus 2
FB UGC. © FADD. cccccccccvccecccvccccvcccccsscsesecs 2
9B UGC © 1BBB occccccccccvecccccsscccssssscccscece 15
$8 U.S.C & 15BBla). ...ccscccscccsccsccscccsscese passim
BB U.S.C. B UBER oo ccasccccaccccsvccsvcscscces passim
SD WBE. B TDG occ ccccesdccssccssctanctccessses 16
42 UBL. 6 BGI) cc ccccicvaccssecccvessress 20, 21, 22
Cal. Code Regs., tit. 23, § 2200(d)...............005. 11
Cal. Code Regs., tit. 23, § 2200(e).............- sees 6
Cal. Water Code © 250RB. 2 ccccccscsccccccvesccccsess 5
Cal. Water Code § 13050(c) ............ cece cece eeees 5
Cal. Water Code § 13260(a)(1)................. 6, 11, 27
Cal. Water Code § 13260(d)(1) ..............5, 6, 11, 27
Cal. Water Code § 13260(d)(2) .............02ee0e: 6, 27
Cal. Water Code § 19260fe) .....cccccccccccccccccccce 6
Cal. Winter Codie © 18261. .ccccccccccccccsccccwcnsecie 9
Cal. Water Codle © 215268. 06. cc ccccccccccctecccccccses 6
Cal. Winter Code © 15067. occ cccccccccacdecncccsescecs 6
Cal. Water Code § 19906... .ccccsccccscccccccccccces 6
Cal.
Cal.
Cal.
Cal.
Cal.
vii
TABLE OF AUTHORITIES - Continued
Page
Water Code § 13323..........0:eeeeeeeeeeeceeees )
Water Code § 13328...........-seeeeeeeeeeeeeees 9
Water Code § 13350...........:eeeeeeeeeeeeeeees 9
Water Code § 13385. ..........- see cece ence eeeees 9
Water Code §§ 13000-13953.4.............00eeee- 5
Federal Facility Compliance Act of 1992,
Pub.L.No. 102-386, § 102(a)(3), 106 Stat. 1505...21, 22
REGULATIONS
33 CPR 323.2(d)(1)....cccccccccccccccccccssccccscces 17
OrTHER AUTHORITIES
S. Rep. No. 95-370 RETF PE oc cnccdindecnessccdcveccens 14
H.R. Rep. No. 102-111 (1991) ......---.+-eeeeeeeeees 22
1
PETITION FOR WRIT OF CERTIORARI
The State of California respectfully petitions for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Ninth Circuit in_this case.
OPINIONS BELOW
The Court of Appeals’ order denying California’s
petition for rehearing and for rehearing en banc, the
panel’s Memorandum affirming the judgment of the dis-
trict court, and the U.S. District Court’s Opinion and
Order, and Judgment are not officially reported.
* =
JURISDICTION
The judgment of a panel of the United States Court of
Appeals for the Ninth Circuit was entered on January 9,
2001. Appendix (“App.”) at 1-2. The Court of Appeals
denied California’s petition for rehearing and for rehear-
ing en banc on April 2, 2001. App. 31-32. The jurisdiction
of this Court rests on 28 U.S.C. § 1251(b)(2).
+
CONSTITUTIONAL PROVISIONS, STATUTES,
AND REGULATIONS INVOLVED
Relevant portions of federal statutes and regulations,
and California statutes and regulations, are set forth in
the Appendix at pages thirty-three through seventy.
¢
STATEMENT OF THE CASE
A. Jurisdiction of the District Court
This is an action by the State of California seeking
declaratory and injunctive relief to compel payment of
delinquent Waste Discharge Requirements (“WDR” or
“Waste Discharge Requirements”) fees assessed against
the U.S. Army Corps of Engineers’ dredging operations
in the State. The United States District Court (Judge Wil-
liam H. Orrick) had jurisdiction over the complaint under
28 U.S.C. § 1331 (federal question jurisdiction for all civil
actions arising under Constitution, laws, or treaties of the
United States), under 28 U.S.C. § 1346 (United States as
defendant) and 28 U.S.C. § 1441 (removal by defendant).
In addition, declaratory relief was appropriate under 28
U.S.C. § 2201, because an actual controversy had arisen
and existed between state plaintiff and federal defen-
dants.
B. The Nature of the Case, Course of Proceedings and
Disposition Below
This case concerns the scope of the waiver of federal
sovereign immunity in the federal facilities provisions of
the Clean Water Act, sections 313(a), 33 U.S.C. § 1323(a),
and section 404(t), 33 U.S.C. § 1344(t). In the State of
California’s view, these waiver provisions clearly and
unequivocally require federal facilities discharging pollu-
tants to California waters (including the U.S. Army Corps
of Engineers in its dredge and fill activities) to comply
with the provisions of state law which require the pay-
ment of permit-related Waste Discharge Requirements
fees. In the United States’ view, which was the view
adopted by the district court and the U.S. Court of
Appeals for the Ninth Circuit, the provisions of the Clean
Water Act do not waive federal sovereign immunity for
imposition of such fees because, in their view, the permit
fees are impermissible “punitive fines.”
The State of California filed its original complaint in
this case in federal district court on August 8, 1997. App.
130-140. Pursuant to a stipulation between the parties,
California re-filed the case in California superior court on
January 30, 1998, and the United States removed the case
back to federal court. App. 127-129. On March 9, 1998, the
United States moved to dismiss this case on the basis of
sovereign immunity. In its Opinion and Order of January
19, 1999, the district court granted the United States’
motion to dismiss. App. 5-29. The State of California
appealed.
On January 9, 2001, a panel of the U.S. court of
appeals issued a Memorandum affirming the district
court's dismissal of California’s action. In affirming, the
panel adopted “ . . . the judgment of the district court on
the same basis .as provided in the district court’s well-
reasoned opinion dated January 12, 1999.” See Memoran-
dum, filed January 9, 2001, App. 1-2. On April 2, 2001, the
U.S. Court of Appeals for the Ninth Circuit denied Cali-
fornia’s petition for rehearing and for rehearing en banc.
App. 31-32. The district court opinion, which now consti-
tutes the Ninth Circuit’s decision, concludes that section
404(t) of the Clean Water Act does not authorize recovery
of the fees! because they are “punitive fines,” that section
1 The decision also addresses fees pursuant to California’s
Bay Protection and Toxic Cleanup Program. These fees are no
313 of the Clean Water Act is not applicable because the
waiver of sovereign immunity in section 404(t) is nar-
rower and more specific, and that even if section 313 did
apply it would not authorize recovery of the fees because
they are an impermissible tax on the federal govern-
ment.2
C. Statement Of Facts
Key factual allegations are contained in the State’s -
“Complaint for Declaratory Relief, Injunctive Relief, and
to Compel Payment of Delinquent Fees.” App. 130-140.
For the purpose of the United States’ motion to dismiss, it
did not dispute these facts.
The California State Water Resources Control Board,
together with the nine California Regional Water Quality
Control Boards, assess fees on dischargers to the waters
of the state pursuant to the Porter-Cologne Water Quality
Control Act. The U.S. Army Corps of Engineers’ dredging
and/or fill operations in the State of California are sub-
ject to the requirements of these provisions of state law,
including the requirement to pay reasonable fees associ-
ated with these permits and programs. See Complaint
WI 10, 12, and 14, App. 135, 137-138. The United States
has failed or refused to pay fees assessed by the state
longer an issue. Due to a change in California law ‘unrelated to
the sovereign immunity issue, California no longer seeks
collection of these fees. App. 72-73.
2 Citations to the district court’s Opinion and Order, which
is found in the Appendix at pages one through thirty, are cited
in this petition as “Ninth Circuit decision” or “the decision.”
agencies. Complaint { 14, App. 138. The delinquent WDR
fees amount to at least $275,000 for dredging projects
located throughout California. See Complaint {{ 4, 10, 14,
App. 131-132, 135-136.
D. California’s Waste Discharge Requirements,
Reports, and Permit-Related Fees
California Water Code sections 13000-13953.4 is
known as the “Porter-Cologne Water Quality Control
ct.” Cal. Water Code § 13020. Water Code section 13260
requires that any person discharging waste, or proposing
to discharge waste, that could affect the quality of the
waters of the state, other than into a community sewer
system, shall file with the appropriate California regional
water quality control board a report of the discharge.
“Person” is defined to include the United States, to the
extent authorized by federal law. Cal. Water Code
§ 13050(c).
Section 13260 further provides that each person for
whom Waste Discharge Requirements have been pro-
vided pursuant to section 13263 shall submit both an
application fee and subsequent annual fee not to exceed
$10,000 per year according to a reasonable fee schedule
established by the State Water Board (“WDR fees”). Cal.
Water Code § 13260(d)(1). The application fee serves as
the first annual WDR fee.? By state statute, WDR fees are
3 The Ninth Circuit erroneously believed that application
and reporting fees are “separate and distinct” from the WDR
fees in question. Decision, App. 13. This may account for the
court’s determination (completely unsupported in the record)
to be calculated based on total flow (of waste discharged),
volume (of waste discharged), number of animals or area
involved - all factors indicative of the potential water
quality impacts of the discharge and the extent of regula-
tory oversight required. Cal. Water Code § 13260(a)(1),
(d)(1), and see fee schedule for dredge and fill operations
at Cal. Code Regs., tit. 23, § 2200(e). Notably, punishment
or redress for a discharger’s past violations is not one of
the factors considered in calculating WDR fees. Id.
Pursuant to section 13260(d)(2), all WDR fees col-
lected are deposited in the Waste Discharge Permit Fund
which is limited to expenditure by the State Water Board,
upon appropriation by the Legislature, for the purposes
of carrying out the Porter-Cologne Water Quality Control
Act. Therefore, revenues from WDR fees may be used for,
inter alia, processing applications for WDRs, water quality
investigations and inspection of facilities to ascertain
compliance, and responding to incidences of spills or
improper discharges from facilities. See Cal. Water Code
§§ 13263, 13267, and 13304.
*
bo
REASONS FOR GRANTING THIS PETITION
The decision of the U.S. Court of Appeals for the
Ninth Circuit warrants review by this Court, because the
Ninth Circuit has decided important, recurring questions
of federal compliance with state environmental law and
that the WDR fees’ “primary function is to penalize, or at least
render very costly, lawful dredging activities.” Id. See Cal. Water
Code § 13260(e).
in so doing, has conflicted with decisions of this Court,
and with decisions of the First and Second Circuits. The
decision misconstrues the Clean Water Act in holding
that sections 313(a) and 404(t) do not waive federal sover-
eign immunity from the state permit-related regulatory
fees at issue here. The waiver contained in those sections
is clear, unambiguous, and unequivocal and federal dis-
chargers, like other dischargers, are subject to California’s
“requirements,” including “reasonable service charges.”
Moreover, in ruling that California’s Waste Discharge
Requirements fees are excise taxes rather than service
charges, the court erroneously defined the word “service”
in the “reasonable service charges” waiver in an unten-
able fashion that conflicts with the decisions of the Sec-
ond and First Circuits.
Third, in granting the United States’ motion to dis-
miss this action, the Ninth Circuit denied California the
opportunity to develop a factual record which would
have demonstrated the services and benefits available to
the United States from its payment of regulatory fees.
Lastly, the Ninth Circuit fundamentally misun-
derstood the essential nature of the classic regulatory fees
at issue here and treated them as if they were disguised
civil penalties, even though California has never sought
civil penalties in this case. California seeks only reason-
able service charges which all dischargers must pay. The
amount of the fees is based on the volume of discharge
and has nothing to do with punishment for past noncom-
pliance. Thus, the Ninth Circuit decision conflicts with
this Court’s decision in Department of Energy v. Ohio, 503
U.S. 607 (1992), which permits monetary assessments
against the federal government which do not punish dis-
chargers for their past noncompliance.
Thus, the Ninth Circuit’s decision is inconsistent and
fraught with error — it ignores congressional words of
waiver, misconstrues or ignores cogent precedent from
other Circuits, and upsets the well-established distinction
between punitive penalties and classic regulatory fees.
The decision, if allowed to stand, would seriously under-
mine the fair and orderly implementation of California’s
water pollution regulation by exempting federal dis-
chargers from paying the same reasonable service charges
that are assessed to private dischargers. Moreover,
although the decision is unpublished, it represents the
latest chapter in the recurring controversy between the
states and the United States regarding the compliance of
federal polluters with state environmental requirements.
Thus, the decision has very significant implications for
federalism and requires the review of this Court.
,
-
ARGUMENT
I. In Determining That California’s Waste Discharge
Requirements Fees are Disguised Penalties
Although They Do Not Punish Dischargers for Past
Misconduct, the Ninth Circuit Has Decided an
Important Federal Question in a Way That Conflicts
With This Court’s Decision in Department of Energy
v. Ohio. —
California seeks only payment of delinquent service
charges. It has not, and does not, seek any civil penalties
or fines.* But the Ninth Circuit erroneously treated Cali-
fornia’s WDR fees as if they were punitive civil penalties,
a fundamental error which skewed the court’s analysis
and led to the improper dismissal of this lawsuit. And
although the decision purports to rely on Department of
Energy v. Ohio, 503 U.S. 607 (1992), it misconstrues and
misapplies that case.
* California has never sought civil penalties or criminal
fines in this case. The State simply seeks payment of reasonable
service charges which all dischargers, including the U.S. Army
Corps of Engineers, must pay. See Complaint {J 13-16 and
Prayer for Relief, and discussion at August 6, 1998 and August
27, 1998, district court hearings. App. 139, 120-121, and 102.
California law authorizes assessment of civil penalties
(known as “civil liability”) for the nonpayment of water quality
fees. See, e.g., Cal. Water Code §§ 13261, 13323, 13328, 13350,
13385. Here, however, California has not assessed, and does not seek,
any penalties or fines from the United States for the delinquent fees
owed by the Corps of Engineers. Section 313(a) of the Clean Water
Act provides, in pertinent part, that “the United States shall be
liable only for those civil penalties arising under federal law or
imposed by a State or local court to enforce an order for the
process of such court.” 33 U.S.C. § 1323(a). If civil penalties were
to be imposed here they would be imposed for the United
States’ past violations of law, i.e., its nonpayment of fees. But
such “backward-looking” civil penalties are not authorized by
the Clean Water Act, 33 U.S.C. § 1323(a). See Department of
Energy v. Ohio, 503 U.S. at 620-627; compare, United States v.
Tennessee Air Pollution Control Board, 185 F.3d 529 (6th Cir. 1999)
(punitive penalties against federal facilities are authorized by
the Clean Air Act). Thus, the plain language of section 313(a) of
the Clean Water Act bars the imposition of civil penalties on
federal dischargers to punish or redress their past violations,
just as the plain language of other provisions of section 313(a) as
well as section 404(t) of the Clean Water Act clearly and
unambiguously waive sovereign immunity for the regulatory
fees at issue here.
10
In Department of Energy v. Ohio, this Court interpreted
the Clean Water Act and the Resources Conservation and
Recovery. Act. It disallowed Ohio’s attempt to assess
“punitive” state civil penalties upon federal facilities in
the state, i.e., penalties that punished past noncompliance
by the United States. At the same time, this Court permit-
ted “coercive” state civil penalties, i.e., penalties which
attempted to compel future compliance of federal facili-
ties with state law. 503 U.S. at 623-628.
Nothing in the California Water Code or in the regu-
lations establishing WDR fees indicates that these fees
are, or are intended to be, either punitive fines to punish
past noncompliance or coercive penalties to compel
future compliance. Yet the Ninth Circuit decision con-
cludes, without any opportunity for the State to submit
evidence on the issue, that these fees are punitive. The
Ninth Circuit concluded:
The fees at issue here are not directly related to
compliance mechanisms to implement substan-
tive state dredging or discharge requirements.
Instead, the assessments are collected from indi-
viduals or governments engaged in dredging
activities regardless of their future or past record
of compliance with substantive state effluent
standards. In that sense, they more closely
resemble the impermissible punitive fees dis-
cussed in DOE. Decision, App. 12.
Thus, the decision characterizes California’s WDR
fees as “punitive,” purportedly pursuant to Department of
Energy v. Ohio. But Ohio involved a state’s efforts to
impose civil penalties for previous violations. The Court
did not rule that payments required by a state would be
11
punitive if they were imposed on all facilities regardless of
their record of compliance with state standards. Quite the
opposite: Ohio held that civil penalties were punitive (and
thus outside the scope of the Clean Water Act’s waiver of
sovereign immunity) when they were imposed because of
a record of noncompliance with state standards. Id. at
623-628.
Here, California indeed assesses WDR fees on indi-
viduals or governments engaged in dredging activities
based on the volume of dredged or fill material, without
regard for their record of compliance with state stan-
dards. Cal. Water Code § 13260(a)(1), (d)(1); Cal. Code
Regs., tit. 23, § 2200(d). These WDR fees do not “resemble
the impermissible punitive fees” discussed in Ohio at all.
Decision, App. 12. Thus, to the extent Ohio is relevant to
this fee dispute, its lesson is that California’s WDR fees
are not punitive because they do not punish dischargers
for past misconduct.
II. In Ruling That the Clean Water Act Does Not Waive
Sovereign Immunity for Payment of California’s
WDR Fees by the Army Corps of Engineers, the
Ninth Circuit Has Erroneously Decided an Impor-
tant Question of Federal Law That Has Not Been,
but Should be, Settled by This Court
This Court has repeatedly recognized the critical
importance of cooperative federalism between the states
and the United States in environmental regulation. See,
e.g., PUD No. 1 of Jefferson County v. Washington Depart-
ment of Ecology, 511 U.S. 700, 723 (1994) (states may
include minimum stream flow requirements in certifica-
tions issued pursuant to section 401 of the Clean Water
12
Act); New York v. United States, 505 U.S. 144, 167-168
(1992) (affirming federal monetary and access incentives
to states, but disallowing federal mandate resulting in
state liability for low-level radioactive waste); and Califor-
nia v. United States, 438 U.S. 645, 679 (1978) (states may
impose conditions on water appropriation permits they
grant to the United States). Indeed, as this Court has
stated, the Clean Water Act “anticipates a partnership
between the States and the Federal Government, ani-
mated by a shared objective.” Arkansas v. Oklahoma, 503
U.S. 91, 101 (1992). This case is an integral part of the
continuing definition of that partnership, and it requires
the guidance of this Court.
In Department of Energy v. Ohio, this Court construed
sovereign immunity provisions of RCRA and the Clean
Water Act in a narrow but lucid fashion, concluding that
coercive civil penalties, but not punitive penalties, were
within the scope of the waiver provisions. The Ninth
Circuit’s analysis here, by contrast, produced an incoher-
ent and confusing decision which, inter alia, equates clas-
sic regulatory fees with punitive fines, and ignores some
words of waiver in the Clean Water Act while mis-
construing others. In affirming the district court’s dis-
missal in the absence of a factual record, the Ninth Circuit
effectively ruled that a state cannot apply its water qual-
ity regulatory fees to federal agencies, without regard to
the reasonableness of those fees as applied to the activity
being regulated. This Court should accept this important
case for review and look to all the pertinent provisions of
the Clean Water Act and the California Water Code (and
its regulations) which define the legitimate scope of the
Waste Discharge Requirements fees at issue here, in order
13
to determine that Congress has expressed its unequivocal
waiver of sovereign immunity for these fees, the same
fees which apply to any other discharger.
A. Section 404(t) of the Clean Water Act
Congress clearly and unambiguously waived federal
sovereign immunity in the Clean Water Act in sections
313(a) and in 404(t). 33 U.S.C. §§ 1323(a), 1344(t). Section
313(a)’s waiver is applicable generally to all federal facili-
ties, while section 404(t)’s waiver specifically addresses
dredge/fill activities. Section 404(t) provides:
(t) Navigable waters within State jurisdiction
Nothing in this section shall preclude or deny the
right of any State . . . agency to control the discharge
of dredged or fill material in any portion of navi-
gable waters within the jurisdiction of such
State, including any activity of any Federal agency,
and each such agency must comply with such
State . . . requirements both substantive and pro-
cedural to control the discharge of dredged or fill
material to the same extent that any person is subject
to such requirements. 33 U.S.C. § 1344(t)
(Emphasis added).
The only words limiting “requirements” are “substantive
and procedural.” Accordingly, the “requirements” waiver
in 404(t) includes the assessment of state permit-related
water quality fees.
In its 1977 amendments to the Clean Water Act, Con-
gress added section 404(t) as an explicit response to Min-
nesota v. Hoffman, 543 F.2d 1198 (8th Cir. 1976), cert. denied,
430 U.S. 977 (1977). The Minnesota court held that the
14
Corps was not required to obtain a state permit or meet
state water pollution control standards in its dredging
operations. Reacting to the ruling, as well as to this
Court’s rulings in Hancock v. Train, 426 U.S. 167 (1976),
and EPA v. California, 426 U.S. 200 (1976), Congress
emphatically reiterated its clear and unambiguous textual
waiver of sovereign immunity:
The [Clean Water A]ct has been amended to
indicate unequivocally that all federal facilities
and activities are subject to all of the provisions
of State and local pollution laws.
* * *
The amendment to section 404 clarifies the
intent of Congress relative to the dredging activ-
ities of the U.S. Army Corps of Engineers. . . . The
corps, like other Federal agencies, should be bound
by the same requirements as any other discharger
into public waters.
* * *
Pursuant to this amendment, the corps may be
required by the States in some instances to expend
additional funds to protect water quality. The com-
mittee supports funds for this purpose.
S. Rep. No. 95-370, at 67-8 (1977) (Emphasis added). As
these passages indicate, in enacting section 404(t), Con-
gress clearly intended an unequivocal waiver of federal
5 Note that we cite the legislative history of the Clean Water
Act not to imply any waiver but simply to bolster the plain
meaning of the statute, which itself clearly and unambiguously
waives sovereign immunity for the fees at issue. See, e.g., Sierra
Club v. Lujan, 831 F.2d 1421 1428 (10th Cir. 1990).
15
sovereign immunity which encompasses the payment of
fees at issue here.
B. Section 313(a) of the Clean Water Act
Clean Water Act section 313, entitled “Federal Facili-
ties Pollution Control,” subjects the discharges of “each”
federal agency to state control. 33 U.S.C § 1323. Notably,
Congress uses the word “requirements” in the same con-
text in both the 404(t) and 313(a) waivers. -
Section 313(a) reads in pertinent part:
Each. department, agency, or instrumentality of
the executive, legislative, and judicial branches
of the Federal Government . . . (2) engaged in any
activity resulting, or which may result, in the dis-
charge or runoff of pollutants . . . shall be subject
to, and comply with, all Federal, State, interstate,
and local requirements, administrative authority,
and process and sanctions respecting the control
and abatement of water pollution in the same man-
ner, and to the same extent as any nongovernmental
entity including the payment of reasonable service
charges. The preceding sentence shall apply (A)
to any requirement whether substantive or pro-
cedural (including any recordkeeping or report-
ing requirement, any requirement respecting
permits and any other requirement, what-
soever) .. . 33 U.S.C § 1323(a) (Emphasis added).
The text uses the “any” and “all” language. In addi-
tion, the 313(a) waiver of sovereign immunity gives “the
payment of reasonable service charges” as one example
16
of “requirements . . . respecting the control and abate-
ment of water pollution...” Notably, such “require-
ments” include “any requirement respecting permits and any
other requirement, whatsoever.” (Emphasis added.) More-
over, section 313(a) mandates its application “notwith-
standing any immunity of such agencies . . . under any
law or rule of law.”®
Therefore, if the Corps is “engaged in any activity
resulting, or which may result, in the discharge or runoff
of pollutants,” as it clearly is here,” section 313(a)’s
waiver of sovereign immunity applies, even though sec-
tion 404(t) also applies whenever the Corps’ pollutant-
discharging activities involve the discharge of dredged
spoils.* This does not render section 404(t) superfluous,
6 In its analysis of the section 313(a) waiver, the Ninth
Circuit decision does not quote, or even mention, these last two
critical phrases. Decision, App. 14-17.
7 The definition of “pollutant” in the Clean Water Act
includes “dredged spoils.” 33 U.S.C. § 1362(6); Resource
Investments, Inc. v. U.S. Army Corps of Engineers, 151 F.3d 1162,
1166 (9th Cir. 1998).
8 Congress intended to overrule Minnesota, a case holding
that a state could not regulate Corps’ activities, even where the
express terms of Section 313 as construed in EPA v. California
would allow state regulation. This holding was based in part on
the reasoning that because Corps’ activities are specifically
addressed in section 404, the absence of a waiver of sovereign
immunity in section 404 prevails over the express waiver in
section 313. 543 F.2d at 1202-08. Thus, enactment of section
404(t) helps clarify that Congress did not intend section 404
from being interpreted as a specific section that, by its silence on
the sovereign immunity issue, creates an implied exception
from section 313. Without section 404(t), the reasoning of
Minnesota could still be applied to circumvent Congress’ intent
17
because section 404(t) serves to clarify that section 313
applies to Corps’ activities.°
C. Sections 313 and 404 Are Complementary
In its decision the Ninth Circuit suggests that the
“requirements” language in section 313 may be broader
than the “requirements” language in section 404.19 App.
15-16. But there is no indication that “requirements” has a
different meaning in section 404 than it does in section
313.11 Far from being in conflict, both provisions of the
Clean Water Act address the discharge of materials into
state waters resulting from federal activities. And, the
that the Corps, like other federal agencies, should be bound to
the same requirements as any other discharger.
9 In addition, some discharges that are not located on
federal facilities and do not include discharge of dredged spoils
may be covered by section 404(t) but not section 313 because
they do not involve a discharge or runoff of “pollutants.” See
Resource Investments, Inc. v. U.S. Army Corps of Engineers, 151
F.3d 1162, 1166 (9th Cir. 1998); 33 CFR 323.2(d)(1).
10 Unlike the Ninth Circuit, we do not read section 313(a) as
only “tangentially” connected to dredge assessments. Decision,
App. 16. Indeed, section 313(a) speaks directly to California’s
statutory right to control and abate water pollution by imposing
“requirements” on any activity causing “discharge or runoff of
pollutants,” including the Corps’ discharges of dredged spoil.
11 It is a maxim of statutory interpretation that “when the
same words are used in different sections of the law, they will be
given the same meaning.” Barnson v. United States, 816 F.2d 549,
554 (10th Cir. 1987), cert. denied, 484 U.S. 896 (1987); see also,
Firestone v. Howerton, 671 F.2d 317, 320 n.6 (9th Cir. 1982).
18
“requirements” for the Corps are the same as for all other
federal agencies.1!2
The Ninth Circuit construed the Clean Water Act so
that section 404(t) effectively overrides the provisions of
section 313(a). But this interpretation turns the statute on
its head. The express language of section 404(t) is that:
“Nothing in this section shall preclude or deny the right
of any State . . . to control the discharge and dredge or fill
material . . . including any activity of any federal agency.”
The manifest intent of Congress is to prevent section 404
from trumping State authority, as authorized or pre-
served, under sections 313, 510 or other provisions of the
Clean Water Act. Indeed, the choice of the language
“Nothing in this section shall preclude any State... ”
presupposes that the State has authority under other law,
as indeed it does under section 313, which starts with
“Each ... agency shall.” When sections 313 and 404(t) are
viewed together, section 313 properly emerges as the
primary waiver, while section 404(t) is fundamentally a
savings clause. The two sections are complementary, and
do not conflict. :
12 Case law affirms the complementary nature of sections
313 and 404. In Friends of the Earth v. United States Navy, 841 F.2d
927 (9th Cir. 1988), the court stated that “[t]wo sections of
the ... Clean Water Act... require the Navy to comply with all
state and local requirements concerning the discharge of
dredged or fill materials and the control of water pollution. 33
U.S.C. §§ 1344(t), 1323 (1986).” Id. at 929. Friends of the Earth
illustrates how sections 313(a) and 404(t) both waive sovereign
immunity with regard to “requirements.” The “payment of
reasonable service charges” is one example of the
“requirements” waived by both provisions.
19
Thus, the Ninth Circuit decision fails to take into
account the complementary relationship between the pri-
mary waiver and the savings clause, and as a result
frustrates Congress’ intent to waive sovereign immunity.
By its ruling that the term “requirements” has a narrower
meaning in section 404(t) than in section 313, and its
mechanistic application of a rule of construction that the
specific prevails over the general, despite the plain lan-
guage, the structure, and the history of the Clean Water
Act, the Ninth Circuit has erroneously decided an impor-
tant question of federal law that should be settled by this
Court.
III.
In Erroneously Ruling That the United States Was Enti-
tled to a Judgment as a Matter of Law That California’s
Waste Discharge Requirements Fees Are Excise Taxes
Rather Than Service Charges, the Ninth Circuit Has
Entered a Decision in Conflict with the Decisions of the
Second and First Circuits on the Same Important Matter
A. Overview
The Ninth Circuit erroneously ruled that the United
States was entitled to judgment as a matter of law that
California’s WDR fees are excise taxes rather than service
charges under section 313(a) of the Clean Water Act. In so
doing, the Ninth Circuit decision conflicts with the deci-
sions of the Second and First Circuits which provide
cogent precedent for construction of the phrase “reason-
able service charges” in sovereign immunity cases involv-
ing payment of fees. Thus, this Court should resolve the
conflict between the Ninth Circuit, and the Second and
20
First Circuits, on this important question of federalism:
federal compliance with state environmental law.
Specifically, the congressional waiver language con-
tained in the Resources Conservation and Recovery Act
(“RCRA”) (federal government is subject to state solid
waste and hazardous waste requirements, including the
payment of “reasonable service charges”) is strikingly
similar to the waiver language contained in the Clean
Water Act (federal government is subject to state water
pollution abatement and control requirements including
the payment of “reasonable service charges”). See 42
U.S.C. § 6961(a), 33 U.S.C. § 1323(a). And significantly,
the “reasonable service charges” waiver language in
RCRA has been construed by the First Circuit, and by the
Second Circuit, as including the same type of regulatory
fees that are at issue in this case. See Jorling v. United
States Department of Energy, 218 F.3d 96 (2d Cir. 2000) and
State of Maine v. Department of Navy, 973 F.2d 1007 (1st Cir.
1992).
B. Jorling v. United States Department of Energy;
and State of Maine v. Department of Navy
On May 31, 2000, the Second Circuit in Jorling v.
United States Department of Energy ruled that certain haz-
ardous wastes regulatory charges imposed by New York
are “reasonable service charges” within the meaning of
the provision of RCRA that waives the sovereign immu-
nity of the United States. See 42 U.S.C. § 6961(a). In
affirming the federal district court’s grant of summary
judgment to New York, the Second Circuit relied exten-
sively on facts in the record developed in the district
court, including affidavits submitted by New York, which
21
demonstrated, inter alia, that New York’s waste regula-
tory charges are calculated on a basis that reasonably
reflects the size and scope of an entity’s operations, e.g.,
the number of tons of hazardous waste generated, or
received, annually by a facility, or the number of vehicles
permitted to be used to transport such waste. 218 F.3d at
97, 103-105.
As in the instant case, the issue in Jorling was whether
certain State regulatory charges were “reasonable service
charges” pursuant to a Congressional waiver of federal sov-
ereign immunity. RCRA provides that each department,
agency, and instrumentality of the federal government
engaged in any activity resulting or which may
result, in the disposal or management of solid
waste or hazardous waste shall be subject to, and
comply with, all Federal, State, interstate, and local
requirements, both substantive and pro-
cedural . . . respecting control and abatement of
solid waste or hazardous waste disposal and man-
agement in the same manner, and to the same
extent, as any person is subject to such require-
ments, including the payment of reasonable service
charges. 42 U.S.C. § 6961(a) (emphasis added).
According to the Jorling court, Congress “clarified”!5 the
scope of the waiver of sovereign immunity in this provi-
sion by adding the following language in 1992:
13 Jorling cannot be distinguished from the instant case
based on the illustrative examples of reasonable service charges
added to RCRA by the Federal Facility Compliance Act of 1992
(“FFCA”). First, Jorling, in citing the FFCA language, noted that
Congress was Clarifying the scope of the sovereign immunity
waiver contained in 42 U.S.C. § 6961(a). Jorling, 218 F.3d at 105.
Second, nowhere in the opinion does Jorling rely on the FFCA
22
The United States hereby expressly waives any
immunity otherwise applicable to the United
States with respect to any such substantive or
procedural requirement (including, but not lim-
ited to, any . . . reasonable service charge). The
reasonable service charges referred to in this
subsection include, but are not limited to, fees
or charges assessed in connection with the pro-
cessing and issuance of permits, renewal of per-
mits, amendments to permits, review of plans,
studies, and other documents, and inspection
and monitoring of facilities, as well as any other
nondiscriminatory charges that are assessed in
connection with a Federal, State, interstate, or
local solid waste or hazardous waste regulatory
program. Federal Facility Compliance Act of
1992, Pub.L.No. 102-386, § 102(a)(3), 106 Stat.
1505, 1505 codified at 42 U.S.C. § 6961(a). See
H.R. Rep. No. 102-111, at 6 (1991) (“In providing
for the payment by federal facilities of ‘reason-
able service charges,’ the Committee reaffirms
and clarifies existing language which requires
that federal agencies pay those fees and charges
which other persons are subject to under fed-
eral, state, interstate and local solid or hazard-
ous waste regulatory programs.”) reprinted in
1992 U.S.C.C.A.N. 1287, 1292.
In determining the reasonableness of New York’s
regulatory charges, the Jorling court applied the three-
part test articulated by this Court in Massachusetts v.
United States, 435 U.S. 44 (1978). In that case, the Supreme
language for its holding that New York’s fees are “reasonable
service charges” within the meaning of RCRA.
ee ee ee ee
23
Court upheld federal assessments on a state police heli-
copter pursuant to a registration tax on all civil aircraft
flying in federal air space. See id. at 452.
In the Jorling appeal, the United States did not dis-
pute the first or third parts of the Massachusetts test,
recognizing that New York’s waste regulatory charges are
non-discriminatory and are not structured to produce
revenues that will exceed the total cost to New York of
the benefits to be supplied. 218 F.3d at 101. However, the
United States did dispute the second part of the Massa-
chusetts test, challenging the federal district court’s find-
ing that no reasonable jury could find that the waste
regulatory charges did not meet the “fair approximation”
component of the Massachusetts test. Ibid. The United
States argued that the charges could not meet the “fair
approximation” component, because by its calculations,
the charges in a six-year period exceeded the cost of
supplying the services actually received by a nine-to-one
ratio. Ibid.
The Jorling court rejected the United States’ conten-
tion that the “fair approximation” component of the
Massachusetts test required a detailed cost accounting
analysis that endeavors to determine the costs properly
allocated to each payer, of every person, product and
facility involved in providing the service. Id. at 103. The
Jorling court made it clear that Massachusetts held only
that the method used to calculate New York’s fee must
rationally be designed to approximate prospectively the
benefit to the user of not only services specifically used
by a payer, but also services available for use by a payer.
Ibid.
24
Notably, in applying the Massachusetts test, the Sec-
ond Circuit relied extensively on evidence in the record
including affidavits submitted by New York demonstrat-
ing the regulatory services available to the United States
as a generator of hazardous wastes, including “capacity
assurance services,” “waste reduction services,” and
“storing, reporting, labeling and shipping services.” Id. at
104. For each kind of service, New York’s affidavits
explained, the state services provided increased in pro-
portion to the amount of waste generated, e.g., because of
inspection requirements. Ibid.
Accordingly, the Second Circuit held that the district
court, based on the state’s affidavit evidence, properly
ruled that the waste regulatory charges met the “fair
approximation” component of the Massachusetts test:
By assessing a higher charge based on the
amount of hazardous waste generated or
received, as well as imposing additional charges
for each incinerator, landfill, and surface
impoundment, the method of calculating the
hazardous waste program charges is reasonably
designed to fairly approximate use of the haz-
ardous waste system’s available services, and
thereby to approximate the cost of supplying
such services to particular generators of waste or
operators of waste facilities. By charging for
each vehicle permitted to be used to transport
waste, the method of calculating waste transpor-
ter program charges is reasonably designed to
fairly approximate use of [New York Depart-
ment of Environmental Conservation’s] services
and thereby -to roughly approximate the cost of
supplying these services to transporters of waste.
Id. at 105. (emphasis added.)
25
Although not addressing the precise issue of whether
the regulatory benefits that New York provides regulated
federal facilities constitute “services” under RCRA, the
Jorling court treated such benefits as services within the
meaning of RCRA. And although in Jorling, unlike the
instant case, the United States stipulated that the fees in
question were “services” and only challenged the rea-
sonableness of those service charges, that fact does not
lessen the import of Jorling to this case. Plainly, with its
detailed discussion of the extent, nature, and type of
services that New York provides to regulated federal
facilities, the Second Circuit’s view is that such benefits
are well within the meaning of “reasonable service
charges” in RCRA.
And, of course, the Second Circuit did not construe
the phrase “reasonable service charges” in a factual vac-
uum as the Ninth Circuit did here. Instead, it referred
repeatedly to the extensive record developed detailing
the nature, extent, and type of services provided by New
York to the regulated federal facilities.
Likewise, in the case of State of Maine v. Department of
Navy, 973 F.2d 1007 (1st Cir. 1992), the First Circuit inter-
preted the phrase “reasonable service charges” appearing
in RCRA, upholding the district court’s denial of the
United States summary judgment motion, in an opinion
written by then Chief Judge Steven Breyer. Id. at 1011. See
extensive discussion of State of Maine in Brief for Appel-
lant State of California, App. 79-87. Like the Jorling court,
the State of Maine court emphasized the significance of
the availability of services to regulated entities, including
the federal government, not whether any particular fed-
eral facility had received specific services in the past
26
funded by a particular fee. Id. at 1014. In State of Maine,
discovery documents suggested that there was a rough
relationship between state regulatory fees charged and
state regulatory costs related to a Navy shipyard located
in Maine that was sufficient to show that the state regula-
tory charge was reasonable and permissible. The fees
were not an impermissible “tax” on a federal installation.
Id. at 1013, quoting Massachusetts v. United States, 435 U.S.
at 468-69 (1978). As in Jorling, the State of Maine court ©
emphasized that the law does not require a precise cor-
relation between regulatory fees collected and regulatory
services provided to each regulated entity. id. at 1014.
And although the United States did not argue in State
of Maine that the challenged fees were not “service
charges,” but instead challenged their reasonableness,
that fact does not diminish the important guidance that
State of Maine provides in this case. For example, the First
Circuit discusses extensively the nature, type and extent
of regulatory services provided by Maine to regulated
federal facilities. Id. at 1011-1014. Indeed, in holding that,
in RCRA, Congress waived the sovereign immunity of the
United States from reasonable fees but not from unrea-
sonably high fees, the court states:
A regulatory, or licensing fee, insofar as it is
reasonable, seems properly viewed as a kind of
charge for a regulatory, or administrative, “ser-
vice.” Id. at 1012.
Certainly the State of Maine court viewed the regulatory
benefits that Maine provided to the United States as
“services” within the meaning of RCRA.
As in the Jorling and State of Maine cases, California’s
WDR fees are calculated on a basis that reasonably
27
reflects the size and scope of the federal facilities’ opera-
tions. Essentially, California’s WDR fees with respect to
dredging and filling are calculated based on the total
volume of dredge and fill material discharged, a factor
that logically indicates the potential water quality
impacts! of the discharge and the extent of regulatory
oversight required. Cal. Water Code § 13260(a)(1),(d)(1).
The State of Maine and Jorling cases recognize that a
state’s cost of reviewing permit applications, conducting
investigations and inspections, reviewing reports, taking
enforcement actions, and other regulatory activities over-
seeing the dredging activities constitute regulatory ser-
vices for which fees may be charged. Here, if it had been
afforded the opportunity, California could have submit-
ted evidence of the services it provides to the Corps of
Engineers. For example, at trial or upon summary judg-
ment with affidavits, California could have shown that
the WDR fees were expended for such activities as
administrative and environmental review, discharge
monitoring, record keeping, and investigation of the
14 The Ninth Circuit misconstrued the function of the WDR
fees in citing the United States’ contention that the WDR fees
“are placed in a general fund and are not linked to water quality
service or related to permitting requirements or other related
activity.” Decision, App. 23. Here, the WDR fees collected and
deposited in the waste discharge permit fund are clearly linked
to state water quality services and permitting requirements. See
Cal. Water Code § 13260(d)(2) and see discussion above at pp.
5-7. And, in any case, “ .. . as long as charges fairly approximate
use and thereby fairly approximate costs of available services, it
does not matter whether or how a governmental entity
segregates the money it collects.” Jorling, 218 F.3d at 105.
28
water quality impact of Corps of Engineers dredging.}>
Such services are quite comparable to the services
approved in the Jorling and State of Maine cases.
But California never got the chance to demonstrate
the services that it makes available to the Corps of Engi-
neers as a regulated discharger because the Ninth Circuit,
in the absence of a factual record, found that California
provides no services or benefits to the Corps. Decision,
App. 25. This directly contradicts Jorling and State of
Maine, which recognize that the cost of reviewing permit
applications, conducting investigations and inspections,
reviewing reports, taking enforcement actions, and other
regulatory activities constitute legitimate regulatory ser-
vices for which reasonable fees may be charged. Thus, the
Ninth Circuit erroneously rejected persuasive case law
which defines service charges and distinguishes regula-
tory fees from taxes, and instead adopted an excessively
narrow and rigid definition not supported by relevant
case law.
15 The California Water Code is replete with provisions and
requirements that make regulatory services available to the
Corps. Those services include water quality investigation,
establishing or reviewing waste discharge requirements,
monitoring, and inspection. See discussion above at pp. 5-6. But
the Ninth Circuit’s decision ignores these available regulatory
services.
29
CONCLUSION
For the reasons set forth above, the petition for cer-
tiorari should be granted.
Respectfully submitted,
Britt LOCKYER
Attorney General of the
State of California
RicHARD M. FRANK
Chief Assistant Attorney General
Mary E. HACKENBRACHT
Senior Assistant Attorney General
JouHN A. DavIDSON .
Supervising Deputy Attorney
General
MicHaet W. NEVILLE
Deputy Attorney General
Counsel of Record
Counsel for Petitioner
Mee nT he tt a ae em
App. 1
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 99-15279
D.C. No.
CV-98-00792-WHO
STATE OF CALIFORNIA, Acting
by and through the California
State Water Resources Control
Board,
Plaintiff-Appellant, i tal
V.
UNITED STATES OF AMERICA;
U.S. DEPARTMENT OF
ENGINEERS,
Defendants-Appellees.
(Filed Jan. 09, 2001)
a ee a
Appeal! from the United States District Court
for the Northern District of California
William H. Orrick, Jr., District Judge, Presiding
Argued and Submitted April 10, 2000
San Francisco, California
Before: GOODWIN, BRUNETTI and THOMAS, Circuit
Judges.
Having thoroughly reviewed the briefs, the record
and the oral arguments presented by the parties, we
affirm the judgment of the district court on the same basis
1 This disposition is not appropriate for publication and
may not be cited to or by the courts of this circuit except as may
be provided by Ninth Circuit Rule 36-3.
App. 2
as provided in the district court’s well-reasoned opinion
dated January 12, 1999.
AFFIRMED
App. 3
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NO. 99-15279
CT/AG#: CV-98-00792-WHO
STATE OF CALIFORNIA, Acting by and
through the California
State Water Resources Control Board
Plaintiff-Appellant
v.
UNITED STATES OF AMERICA;
U.S. DEPARTMENT OF ENGINEERS
Defendants-Appellees
STATE OF NEW YORK, amicus
Amicus
JUDGMENT
(Filed Apr. 16, 2001)
APPEAL FROM the United States District Court for
the Northern District of California (San Francisco).
THIS CAUSE came on to be heard on the Transcript
of the Record from the United States District Court for
the Northern District of California (San Francisco) and
was duly submitted.
ON CONSIDERATION WHEREOEF, It is now here
ordered and adjudged by this Court, that the judgment of
App. 4
the said District Court in this cause be, and hereby is
affirmed.
Filed and entered: January 9, 2001
App. 5
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STATE OF CALIFORNIA, )
Acting by and through _)
the California State Water) No. C-98-0792 WHO
Resources Control Board, ) OPINION AND ORDER
Plaintiff, (Filed Jan. 12, 1999)
vs.
UNITED STATES OF
AMERICA, et al.,
Defendants.
~— ee wee eee ee
The State of California, Acting by and through the
California State Water Resources Control Board (“State
Board” or jointly “California”), brought suit against the
United States of America and the United States Depart-
ment of Army Corps of Engineers (“corps” or jointly
“United States”) to recover fees based on the multiple
dredging operations that the United States carried on in
California. The United States moved to dismiss the action
on the ground that these fees are prohibited by the
Supremacy Clause of the United States Constitution.
Because the United States has not waived sovereign
immunity for the dredging assessments that California
seeks, its motion to dismiss is granted.
I.
The Corps is an agency of the United States govern-
ment that performs dredging projects in California and
across the United States. See Water Resources Develop-
ment Act of 1996, Pub. L. No. 104-303, 110 Stat. 3658
(1996). The purpose of these projects is to improve navi-
gation in waterways and “to provide for the conservation
and development of water and related resources... .” Id.
at 3658. Congress has authorized the Corps to spend
millions of dollars in California on the dredging of Hum-
boldt Harbor and Bay, Santa Barbara Harbor, Channel
Islands Harbor, Los Angeles and Long Beach Harbors. Id.
§§ 101(a)(2), (4), (6), 305, 307, 310; 10 Stat. at 3663,
3712-13.
App. 6
In its complaint, the California State Water Resources
Board (“State Board”), a state agency responsible for the
coordination and control of water quality, seeks to collect
from the United States assessments imposed by various
sections of the California Water Code (“CWC”) in connec-
tion with the Corps’ dredging activities in California.
One category of assessments arises under § 13260 of
the CWC, and the other under § 13396.5.
Section 13260(a)(1) mandates that “[a]ny person dis-
charging waste, or proposing to discharge waste, within
any region that could affect the quality of the waters of
the state” file a report of the discharge with the State
Board. Section 13260(d)(1) requires that each person for
whom waste discharge requirements (“WDRs”) have
been prescribed shall pay up to $10,000 on an annual
basis to the State Board. The actual payment is deter-
mined according to a fee schedule established by the
State Board and is to be “calculated on the basis of total
flow, volume, number of animals, or area involved.”
§ 13260(d)(1). All such payments are deposited in the
App. 7
Water Discharge Permit Fund, which is generally avail-
able for expenditure by the State Board, upon appropria-
tion by the Legislature, “for inter alia, programs to control
the quality of all waters of the state, and to protect water
quality from degradation.” (Compl. { 9, citing CWC
§ 13000.) Failure to pay the assessments under § 13260
constitutes a misdemeanor and can result in civil penal-
ties of up to $5,000 per day. CWC § 13261. California
seeks payment of these assessments and penalties from
1989 to the present.
Section 13396.5(a), which is part of the Bay Protection
and Toxic Cleanup Program (“BPTCP”),1 requires the
State Board to “establish fees applicable to all point and
nonpoint dischargers who discharge into enclosed bays,
estuaries, or any adjacent waters in the contiguous zone
or the ocean. ... ” Section 13396.5(d) requires dischargers
to pay up to $30,000 annually, in addition to any assess-
ment owed under § 13260. Failure to pay these BPTCP
fees constitutes a misdemeanor and could result in civil
penalties of up to $25,000 per day. CWC § 13396.5(e).
California seeks payment pursuant to § 13396.5 from 1989
through its repeal at the end of 1997.
In sum, California seeks approximately $572,000 plus
interest for the corps’ past dredging activities, pursuant
to §§ 13260 and 13396.5. California also seeks a declara-
tory judgment that such assessments are in compliance
with applicable laws and the United States Constitution.
* The BPTCP was repealed by its own terms on January 1,
1998. § 13396.5(h).
App. 8
The United States claims that it has not waived its sover-
eign immunity for such assessments, and that these
assessments constitute an unconstitutional tax under the
Supremacy Clause.
II.
The United States has not waived sovereign immu-
nity for the types of assessments at issue here. Therefore,
the United States’ motion to dismiss pursuant to Rule
12(b)(1) and (b)(6) of the Federal Rules of Civil Pro-
cedure? is granted.
It is well established that “[t]he United States is
immune from suit unless it consents to waive its sover-
eign immunity.” Hodge v. Dalton, 107 F.3d 705, 707 (9th
Cir. 1997) (citation omitted), cert. denied, 118 S. Ct. 62
(1997). Any such waiver must be unequivocally
expressed. Id. Furthermore, a waiver of sovereign immu-
nity must be strictly construed in favor of the sovereign.
Lane v. Pena, 518 U.S. 187, 192 (1996). “To sustain a claim
that the Government is liable for awards of monetary
damages, the waiver of sovereign immunity must extend
unambiguously to such monetary claims.” Id. (citation
omitted). Finally, there must be a clear and unambiguous
waiver of sovereign immunity where a state attempts to
regulate the federal government. Hancock v. Train, 426
U.S. 167, 179 (1976).
2 Because the Court finds that there has been no waiver of
sovereign immunity it does not reach the United States’
argument that these assessments constitute illegal taxes.
App. 9
The Supreme Court has set what appears to be an
even higher threshold for waiver of federal sovereign
immunity to state environmental regulations. In United
States Department of Energy v. Ohio, 503 U.S. 607, 623-27
(1992) (hereinafter cited as DOE), the Supreme Court
concluded that 33 U.S.C. 1323(a)’s straightforward lan-
guage permitting states to impose “civil penalties,”
against the federal government was not an “unequivocal”
waiver of sovereign immunity. Id.
Moreover, the Court determined that language in 42
U.S.C. § 6961 of the Resource Conservation and Recovery
Act (“RCRA”) waiving federal immunity for “all [state
environmental] requirements” did not give Ohio the right
to collect punitive fees from the federal government.
DOE, 503 U.S. at 627-28. In so holding, the DOE Court
emphatically restated the rule that “any waiver of the
National Government’s sovereign immunity must be
unequivocal . . . and not ‘enlarge[d] . .. beyond what the
language requires.’ ” Id. at 615 (internal quotation marks
and citation omitted).
A.
Behind this backdrop of the stringent requirements
necessary to establish a waiver of federal sovereignty, the
Court now turns to California’s arguments that the
United States has waived immunity for California’s
dredging assessments. California relies on two provisions
of the Clean Water Act (“CWS”), namely, § 404(t), 33
U.S.C. 1344(t) and § 313(a), 33 U.S.C. § 1323(a), to support
App. 10
its argument that the United States has waived immunity
for California’s dredging fees.>
The Court begins with the argument for waiver based
on § 404(t). This section specifically addresses dredging,
and provides in relevant part:
Nothing in this section shall preclude or deny
the right of any State or interstate agency to
control the discharge of dredged or fill material
in any portion of the navigable waters within
the jurisdiction of such State, including any
activity of any Federal agency, and each such
agency shall comply with such State or interstate
requirements both substantive and procedural to
control the discharge of dredged or fill material to the
same extent that any person is subject to such
requirements.
33 U.S.C. § 1344(t) (emphasis added).
California asserts, that the language in § 1344(t) pro-
viding that any federal agency “shall comply with
... State requirements both procedural and substantive to
control the discharge of dredged or fill material”
3 The United States also provides some statutory history as
proof that Congress intended monetary fees to be included
within § 4040(t). It is, however, improper for the Court to
consider such material. The Supreme Court has determined that
the legislative history of a statute cannot supply a waiver of
sovereign immunity that does not clearly appear within the
statutory text. Lane v. Pena, 518 U.S. at 192 (citing United States v.
Nordic Village, Inc., 503 U.S. 30, 34 (1992)).
App. 11
constitutes a waiver of federal sovereign immunity with
respect to California’s dredging assessments.*
The Court finds this argument unpersuasive given
the holding in DOE, discussed above. 503 U.S. at 627. In
DOE, the State of Ohio argued that the phrase “all
requirements” in RCRA at 42 U.S.C. § 6961, amounted to
a clear and equivocal waiver of federal sovereign immu-
nity with regard to punitive fines. Id. at 620, 627. The
Court explicitly rejected this reasoning, finding that the
narrow waiver went no further than “the coercive vari-
ety” of remedies, such as injunctions or similar decrees or
orders compelling compliance with regulations or laws.
Id. The Court reasoned as follows:
We . .. agree with the Tenth Circuit.that “all...
requirements” can reasonably be interpreted as
including substantive standards and the means for
implementing those standards but excluding puni-
tive measures.
[Substantive requirements] can refer to either
mechanisms requiring review for substantive
compliance (permit and reporting requirements)
or to mechanisms for enforcing substantive
4 California also urges the Court to find a waiver of
immunity for its “assessments” in § 1344(t) by labeling them
“service charges.” The phrase “service charges” is not
mentioned anywhere in § 1344(t). Without more, this
characterization falls far short of the clear and unequivocal
waiver required to strip the federal government of sovereign
immunity. Simple logic would dictate that any argument for
waiver would be confined to 33 U.S.C. § 1323(a), because that
provision at least mentions “service charges.” See discussion
infra Part B, regarding argument for waiver under § 1323(a).
App. 12
requirements in the future (injunctive relief and
sanctions to enforce it).
Id. at 627-28 (internal quotation marks and citation omit-
ted).5
The fees at issue here are not directly related to
compliance mechanisms to implement substantive state
dredging or discharge requirements. Instead, the assess-
ments are collected from individuals or governments
engaged in dredging activities regardless of their future or
past record of compliance with substantive state effluent
standards. In that sense, they more closely resemble the
impermissible punitive fees discussed in DOE.
In oral argument, California admitted that the Corps
pays a nominal fee to have its California dredging appli-
cation processed. In addition, the Corps must file waste
discharge reports with California regarding its dredging
activities. See CWC § 13260(d) (reporting requirements
> The State Board argues that DOE is distinguishable from
this case, because here, California does not seek punitive fines
or civil penalties from the United States. Rather, it contends that
it seeks reimbursement for unpaid reasonable service charges
that all dischargers, including the Corps, must pay. (California’s
Supp. Br. at 2:4-11.)
The teaching of DOE is not limited to the issue of punitive
fines. The rule of law articulated in DOE states that a waiver of
sovereign immunity must be clear and unequivocal. One of the
very provisions at issue here, 33 U.S.C. § 1323(a), authorizing
states to collect penalties from agencies of the federal
government was not given effect because it lacked sufficient
clarity. See DOE, 503 U.s. at 635 (White, J.) (concurring in part,
dissenting in part) (arguing that the majority’s distortion of the
CWA “leaves the phrase ‘civil penalties arising under Federal
law’ devoid of meaning”).
App. 13
for dischargers). The ministerial reporting and applica-
tion fees are separate and distinct from the $10,000 and
$30,000 annual assessments that California collects from
waste dischargers and dredgers under §§ 13260 and
13396.5 of the CWC. The large annual assessments cannot
be characterized as “procedural or substantive” require-
ments for the discharge of dredge fill material. Their
primary function is to penalize, or at least render very
costly, lawful dredging activities.
California’s assessments do not fit within § 1344(t)’s
narrow waiver of immunity discussed in DOE. 503 U.S. at
627-28. The assessments bear no relationship to necessary
reporting or compliance costs. They do not qualify as
nonmonetary coercive sanctions used to compel compli-
ance with an injunction. Because California has not met
its burden of showing a clear and unequivocal waiver as
required by DOE, its argument for waiver of sovereign
immunity predicated on the “requirements” language in
§ 1344(t) fails.
In the face of adverse Supreme Court precedent, the
State Board perseveres by pointing to cases decided
before DOE - in particular United States v. South Coast Air
Quality Management District, 748 F. Supp. 732 (C.D. Cal.
1990). California relies on South Coast to claim that the
waiver of sovereign immunity in § 1344(t) is “extremely
broad,” “all-inclusive,” and “expansive,” and that the
state assessments at issue fall within the “requirements”
provision that waives federal sovereignty.
In South Coast, the district court held that language in
§ 118(a) of the Clean Air Act (“CAA”) waiving federal
immunity for “all requirements” constituted a broad
App. 14
waiver of sovereign immunity that authorized California
to collect fees from the United States. Id. at 740. Here,
California asks the Court to find a similar waiver based
on § 1344(t)’s language that the United States comply
with state “equirements.”
South Coast is of limited significance to this case, and
does not govern. The stringent test set forth in DOE
predates South Coast and effectively overrules its holding
that compliance with state requirements effects a waiver
of immunity against state fees. Not surprisingly then,
South Coast has never been cited by any circuit court for
such a proposition.
Given the extremely precise waiver required to waive
federal sovereign immunity, California cannot recover
fees for the “cost of doing the business of dredging” in
California by relying on the word “requirements” in
§ 1344(t). Therefore, the Court finds that § 1344(t) does
not waive federal immunity for California’s dredging
assessments levied under §§ 13260 and 13396.5 of the
CWC.
B.
The other section upon which California relies is
§ 313(a) of the CWA, which provides in relevant part:
Each department, agency, or instrumentality of
the executive, legislative, and judicial branches
of the Federal Government. . . (2) engaged in
6 Section 118(a) of the CAA was codified at 42 U.S.C.
§ 7418(a). Congress amended this statute in 1990 to add a more
explicit waiver. Pub. L. 101-549, § 235 (1990).
ee Pee
App. 15
any activity resulting, or which may result, in
the discharge or runoff of pollutants . . . shall be
subject to, and comply with, all Federal, Staie, inter-
state and local requirements, administrative author-
ity, and process and sanctions respecting the control
and abatement of water pollution in the same man-
ner, and to the same extent as any nongovernmental
entity including the payment of reasonable service
charges.
33 U.S.C. § 1323(a) (emphasis added).
First, it is not clear that § 1323(a) is the appropriate
place to find a clear and unequivocal waiver. California
admits that 33 U.S.C. § 1344(t), which is discussed above,
specifically addresses dredging activities and that, natu-
rally, any waiver of immunity would likely be found
there. It nevertheless argues, alternatively, that § 1323(a)
also applies to the Corps’ dredging activities because
§ 1323(a) is directed at reducing discharge or runoff of
pollutants from dredging. California asserts that the
Corps’ has disturbed toxic hot spots and thereby caused
runoff pollution by dredging in California waterways.
(See Compl. at 7 12.) Under California’s reasoning, any
language subjecting the federal government to state
“requirements” and “service charges” under § 1323(a)
should be given effect even if no waiver is found in
§ 1244(t)’s waiver for certain state dredging requirements.
The Court is not, however, persuaded by this argu-
ment. California may not carry its burden of showing a
clear and unequivocal waiver by presenting various sec-
tions of the United States Code referencing the words
“requirements” and service charges.” The argument that
waiver of immunity can be found in a section that deals
App. 16
only tangentially with dredging assessments would
essentially render § 1344(t)’s narrower waiver super-
fluous. It must be remembered that “the more natural
reading of the statute’s text, which would give effect to
all its provisions, always prevails over a mere suggestion
to disregard or ignore duly enacted law as legislative
oversight.” United Food & Commercial Workers Union Local
751 v. Brown Group, Inc., 517 U.S. 544, 550 (1996).
Nonetheless, even assuming that § 1323(a) could
apply to California’s assessments on the theory that they
are service charges levied under § 1323(a) of the CWA,
there is no waiver because (1) the term “requirements”
does not meet the clear and equivocal standard for
waiver and (2) assessments at issue here are not “service
charges” because no service [sic] are in fact rendered in
return for the charges or assessments.
1.
To support its argument that federal sovereignty has
been waived in § 1323(a), California points specifically to
language that requires the United States to comply with
all state “requirements,” including “the payment of rea-
sonable service charges.” Id.
The Court dispenses with California’s argument that
the “requirements” language in § 1323(a) waives sover-
eign immunity by referring to its earlier discussion on
that issue. (See discussion Section II.A.) The Court finds,
as it did with 33 U.S.C. § 1344(t), that the “requirements”
language of § 1323(a) is insufficient to effect a waiver of
federal sovereign immunity. Again, the teaching of DOE
is instructive. It dealt with precisely this issue - whether
App. 17
a waiver for certain monetary payments could be found
in the “requirements” language of § 1323(a). The DOE
Court discussed this provision, stating:
Whereas we commonly understand that
“requirements” may be enforced either by back-
ward-looking penalties for past violations or by
the “process” of forward-looking orders enjoin-
ing future violations, such forward-looking
orders themselves are characteristically given
teeth by equity’s traditional coercive sanctions
for contempt: fines and bodily commitment
imposed pending compliance or agreement to
comply. The very fact, then, that the text speaks of
sanctions in the context of enforcing “process” as
distinct from substantive “requirements” is a good
reason to infer that Congress was using “sanction”
in its coercive sense, to the exclusive of punitive
fines.
503 U.S. at 623 (emphasis added).
The payments here are not coercive in any sense of
the word because they are not intended to secure the
United State’ [sic] compliance with an injunction, for the
reasons discussed above. The Court finds that the United
States is immunized from any liability for fines or assess-
ments that California seeks arising out of the Corps’
dredging activities, and the term “requirements” lan-
guage of § 1323(a) does not serve to waive federal sover-
eign immunity for these assessments.
y a
California argues that even if the phrase “require-
ments” in § 1323(a) does not waive federal sovereignty
App. 18
for its assessments, the term “service charges” in that
section makes clear that Congress did intend to authorize
states to collect assessments for activities like dredging.
The United States maintains, on the other hand, that the
assessments are not service charges as California argues,
but rather are actually an attempt to impose an uncon-
stitutional tax on the United States. Here, the Court must
decide what legal test should be used to determine
whether the charges levied by California against the
United States are permissible service charges akin to
“user fees” or unconstitutional taxes.
a.
At a minimum, the term “service charges” presup-
poses the provision of some type of service or benefit.
Beyond that, the meaning of the term is unclear. Because
of this ambiguity, the characterization of California’s
assessments is crucial as to their constitutionality,
because the United States’ immunity from state taxation
is a Constitutional imperative rooted in the Supremacy
Clause. See United States v. Massachusetts, 435 U.S. 444,
455 (1978) (citing McCullough v. Maryland, 4 Wheat. 316
(1819)).
The Supreme Court addressed the meaning and
breadth of the term “service charges” in Environmental
Protection Agency v. California ex rel State Water Resources
Control Board, 426 U.S. 200 (1976). In California ex rel, the
Court considered whether the term “reasonable service
charges” in § 1323 (1970 ed., Supp. IV) (an earlier version
of the current CWA) authorized states to impose permit
App. 19
requirements on federal installations discharging pollu-
tants within the state. Id. at 201-02. The Court recognized
that the term “service charges” used in § 313 of the CWA
lacked a statutory definition. Id. at 216 & n.29. It also
noted that the legislative history on the meaning of “ser-
vice charges” is silent. Id. at 216 & n.29. This lack of
“clarity” led the Court to hold that the term “reasonable
service charges” did not give states the power to impose
state permitting requirements on the United States. Id. at
227. In so ruling, the Court did note that the [sic] “the
term ‘service charges’ might as well be taken to refer to
recurring charges for performing a service such as treat-
ing sewage” and that such a construction was not unrea-
sonable. Id. at 217. This dicta in California ex rel. offers
limited guidance to the Court on how to resolve the
dispute over California’s assessments in this case.
The other Supreme Court case bearing on this issue is
Massachusetts. 435 U.S. 444. Massachusetts does not deal
specifically with the meaning of “service charges” in the
CWA. It does, however, analyze the difference between
user fees and taxes, and their relationship to sovereign
immunity. Because this decision forms a significant basis
for decision here, the Court set forth a lengthy examina-
tion of this case.
In Massachusetts, the state challenged the constitu-
tionality of a federal aviation program requiring states
operating civil aircraft to pay various fees, including an
annual “flat fee” registration tax. Id. at 449. Massa-
chusetts argued that these fees and taxes violated the
implied immunity of a state government from federal
taxation. Id. at 446-52.
App. 20
The Supreme Court held that civil aircraft “taxes”
were constitutionally permissible “user fees” that did not
violate the Commerce Clause or implied state tax immu-
nity. Id. at 460-63. The Court reasoned that the civil air-
craft fees that the federal government collected from
states were used to defray the costs of federal aviation
programs that directly benefited the states. Id. at 461-62.
In return for their fees, state-owned aircraft received the
tangible benefit of using federal navigational facilities
and airports. Id. at 468.
The Court found congressional intent about the
nature of the fees persuasive on the question of whether
to characterize fees as taxes or user charges. Congress
regarded the fees as “an integral and essential part of the
network of [FAA] user charges.” Id. at 451. The Court also
examined the comprehensive nature of the federal avia-
tion program and how the fees were used in determining
that the federal government’s assessments against Ohio
were in fact service charges and not taxes. It analyzed the
government's interests and the nature of the program,
and the effect that both had on the question of sovereign
immunity and the commerce clause, noting:
A governmental body has an obvious interest in
making those who specifically benefit from its
services pay the cost and, provided that the
charge is structured to compensate the govern-
ment for the benefit conferred, there can be no
danger of the kind of interference with constitu-
tionally valued activity that the [the Commerce
Clause and clause 3, § 10 of Article I prohibiting
states from charging vessels from entering or
trading in ports] were designed to prohibit.
App. 21
Id. at 462-63. Central to the Massachusetts holding was the
fact that the federal government supplied obvious “ser-
vices” to Massachusetts in return for the user fees. The
connection between the assessments and the provision of
actual services was central to the Court’s determination
that the fees did not violate state sovereign immunity.
The Court still, however, had to decide how these
user fees operated in fact, regardless of how they were
characterized. Id. at 463. The Court set forth a three-prong
test used to decide whether a federal regulatory fee
imposed on states was an impermissible tax that had no
relationship to the services or a permissible tax (or, to use
the FAA’s term, “user fee”) that represents a fair approx-
imation of the benefits provided. Id. at 466-67. This test
asks: (1) is the fee nondiscriminatory with regard to gov-
ernmental functions; (2) is the fee a fair approximation of
the costs of the benefits from the activity or service; and
(3) is the fee excessive in relation to the benefits sup-
plied? Id. After applying these factors, the Court con-
cluded that the FAA’s user fees did not violate state
sovereign immunity.
b.
The precedential value of the Massachusetts test to
cases that involve federal immunity from state assess-
ments (which is the case here) is the focus of some
dispute among the courts. When confronted with federal
liability for state service charges or user fees, some courts
have relied on the test set forth in Massachusetts, to decide
whether the United States has waived sovereign immu-
nity for fees under federal environmental statutes such as
App. 22
the CWA. See Maine v. Department of Navy, 973 F.2d 1007
(1st Cir. 1992); New York State Dept. of Envt’l Conservation
v. United States Dept. of Energy, 850 F. Supp. 132 (N.D.N.Y.
1994). Outside the environmental context, the Fourth and
Eighth Circuit courts have declined to use the Massa-
chusetts test, noting that Massachusetts involved state
immunity from federal taxation and, thus, is of limited
significance in cases that involve federal immunity from
state taxation or regulatory fees. See United States v. City
of Huntington, 999 F.2d 71, 73 n.5 (4th Cir. 1993), cert.
denied, 510 U.S. 1109 (1994); United States v. City of Colum-
bia, 914 F.2d 151, 153 (8th Cir. 1990).
The circuits rejecting the Massachusetts test have fash-
ioned their own legal test to determine whether an
assessment is a tax or a fee. The Eighth Circuit in City of
Columbia simply considers “all the facts and circum-
stances of record in the case [to] assess them on the basis
of economic realities [and the] essential nature of [the
state program].” 914 F.2d at 154. The Fourth Circuit fol-
lows the City of Columbia “facts and circumstances” test.
See City of Huntington, 999 F.2d at 73. No court in the
Ninth Circuit has addressed this issue. The parties urge
this Court to adopt the “facts and circumstances test” of
Columbia.
After carefully considering the partes’ [sic] arguments,
the Court chooses to apply the Massachusetts test in this
case to decide whether California’s assessments are service
charges or taxes or penalties to which the United States is
immune. The Court appreciates that Massachusetts
involved the issue of state immunity, not federal immu-
nity. The Court also recognizes that “federal immunity has
App. 23
always been greater than the States’ immunity,” because
federal immunity arises from the explicit language of the
Supremacy Clause. South Carolina v. Baker, 485 U.S. 505, 520
n.11 (1988). The two doctrines’ separate and distinct con-
stitutional sources counsel against any wholesale importa-
tion of state sovereign immunity precedent to decide cases
involving federal sovereign immunity.
The reasoning supporting the Massachusetts decision
extends farther than its particular holding. In an area
where the legal landscape is virtually barren, the Massa-
chusetts test provides a useful analytic framework to
guide this Court on the distinction between service
charges and impermissible taxes. The line separating
taxes and user fees or service charges is difficult to draw.
The distinction between the two is frequently one of
degree. The fundamental difference between the two rests
on the concept of proportionality. See 435 U.S. at 466-67.
A permissible user fee can still run afoul of the
United States Constitution if it is grossly disproportionate
to the services supplied. Id. In fact, California's argument
essentially attacks the fees on the grounds of propor-
tionality, arguing that they are not fees because they have
absolutely no connection to services or benefits. (See
United States’ Am. Mot. to Dismiss at 13 (arguing that the
fees are not correlated to any services, because the WDR
and BPTCP fees are placed in a general fund and are not
linked to water-quality service or related to permitting
requirements or other related activity).)
The factors drawn from Massachusetts reflect the
Supreme Court’s attempt to grapple with the question of
proportionality. For instance, the first factor insures that
App. 24
the fee is nondiscriminatory and spread equitably among
governmental units. The question of proportionality is
also encompassed in the second and third factors, which
includes an analysis of the amount of the fee to the costs
and benefits supplied and whether the fee is excessive in
relation to those benefits. See id. at 466-67. The Massa-
chusetts test provides a useful starting point to resolving
the particular issues raised here. Accordingly, the Court
will apply the Massachusetts three-prong test to Califor-
nia’s WDR and BPTCP fees to determine their constitu-
tionality.
The Court chooses not to adopt the Fourth and
Eighth Circuit’s alternative “all the facts and circum-
stances” test. This test would essentially amount to a
case-by-case determination of this important issue that
could lead to uncertainty for both the states and the
federal government, because it commits the resolution of
this complex issue to the discretion of individual judges.
b.
Applying the three factors in Massachusetts, these fees
do in fact appear to be excise taxes designed to discour-
age dredging. The first factor, which asks whether the
charge is discriminatory, tends to show that the fee here
is in the nature of a user fee. There is no dispute between
the parties that the fee is imposed uniformly and fairly
and that the United States is not being unfairly burdened
by this assessment relative to other governmental units.
California’s assessment fails to satisfy the second
prong of the Massachusetts test. The assessments that
California has imposed on the Corps’ dredging activities
ee a a ee pL a ee ae ee ae |
—
App. 25
do not represent a fair approximation of the benefits or
services provided. No services or benefits are provided to
the federal United States whatsoever. “Incentives” to dis-
courage dredging do not qualify as a service nor a bene-
fit. Assessments that are intended to discourage an
activity are in the nature of taxes, rather than fees.
National Cable Television Ass'n, Inc. v. United States, 415
U.S. 336, 341 (1974).
Finally, as to the third Massachusetts factor, the WDR
and BPTCP fees sought from the United States can only
be viewed as excessive because no services are in fact
provided in return for payment of the service charges.
Fees that are imposed to merely fund compliance efforts
and to encourage less dredging stretch the meaning of
“service charge” too far. In Massachusetts, distinct services
were provided at airports. 444 U.S. at 467-68. Every air-
craft subject to the fee received navigational assistance
and other special services supplied by the United States.
Id. at 468. The costs of compliance with federal aviation
laws was not the basis for the user fee approved in
Massachusetts. Thus, California’s fees, which are used as
creative incentives or to insure compliance with Califor-
nia’s dredging laws, may not be viewed as “service
charges” or even “user fees.”
Based on a careful application of the Massachusetts
test, the Court holds that California’s dredging fees do
Not qualify as “service charges” for which the United
States has waived its sovereign immunity under § 1323(a)
of the CWA.
California argues, nonetheless, that its dredging
assessments are used to fund compliance programs and,
App. 26
therefore, the assessments operate as permissible regula-
tory fees, not taxes prohibited by the Supremacy Clause.
California relies for this proposition on State of Maine v.
Department of Navy, 973 F.2d 1007 (1st Cir. 1992), to sup-
port this claim. ;
In that case, Maine brought suit against the Navy to
recover fees under the RCRA. 42 U.S.C. § 6961. As dis-
cussed above, § 6961 contains a proviso subjecting the
United States to “reasonable service charges.” The Navy
argued that it was immune from a Maine statute impos-
ing a $500 licensing fee and a two cents per pound
generating fee for solid waste because the federal govern-
ment had waived its immunity only with respect to rea-
sonable fees, not the unreasonable fees imposed under
the Maine statute. The Maine court upheld the district
court’s denial of the Navy’s motion for summary judg-
ment, holding that the evidence did not establish that the
fees at issue were unreasonable as a matter of law. Id. at
1013-14. The court also held that the holding of DOE
precluded Maine from recovering a penalty for overdue
fees. Id. at 1015 (citing DOE, 503 U.S. at 612).
California points to the portion of the Maine decision
discussing in detail the purpose of Maine’s solid waste
fees. The First Circuit noted that Maine’s fees were not
designed simply to raise money for general revenue pur-
poses, but were like “classic regulatory fees” imposed by
an agency that are used to raise money to help defray the
agency’s regulation-related expenses. Id. at 1012. Money
assessed by Maine was used by the state to pay salaries
and other costs of personnel equipment used to supervise
and enforce state hazardous waste laws, including costs
of site inspections and clean up of hazardous spills. Id. at
App. 27
1014. California emphasizes that the First Circuit in Maine
characterized Maine’s rapid spill response program as a
“service” that warranted the assessment of service fees
against the federal government.’ (California’s Supp. Br. at
4.)
California argues that, just like the rapid response
services funded by hazardous waste disposal fees, its
water quality monitoring and compliance programs are
“services” provided to the Corps that are funded by
payments collected from dredging activities. Therefore,
California asserts, the activities that California funds with
dredging fees serve to transform them into allowable
“service charges” that fit within 1323(a)’s waiver of
immunity. (Id. at 5-8.)
The portion of Maine upon which California relies
did not address the distinction between fees and penal-
ties and, therefore, does not aid the Court’s decision in
this case. See Maine, 973 F.2d at 1013. This part of the
7 The passage upon which California places special reliance
is provided below:
But the presence of a state spill response team does
more than provide a general benefit. It also benefits
the regulated entities in a special way. It helps to
ensure their compliance with state goals and standards
for prompt clean ups. In our view, a state spill
response team (perhaps like airplane safety
inspectors, or crash investigators, or special airport
rescue teams) bears a close enough relationship to the
regulatory process as to permit a state’s assessing
regulating entities that may cause spills a special
charge for its support.
Maine, 973 F.2d at 1013 (emphasis added by plaintiff).
App. 28
Maine decision concerned the reasonableness of Maine’s
fees. Id. at 1012-1015. The Navy in that case conceded that
the assessments at issue were in fact service charge fees,
not penalties. Id. at 1011. The Navy, however, claimed
that it had waived sovereign immunity only for reason-
able fees and argued that Maine’s fees were unreasonable
as a matter of law. Id. at 1011.
The portion of the Maine opinion that California cites
is specifically limited to the reasonableness issue. The
Court held: “Congress said nothing in either the statute
or its history that suggests a willingness to have the
federal government pay unreasonable fees. To the contrary,
Congress, in the statute itself, said that the requirements
to which it subjected the federal government ‘include] the
payment of reasonable service charges.’ ” Id. at 1012.
The issues in this case are quite different. Here, the
United States strenuously asserts that the funds that Cali-
fornia seeks are in fact penalties, not service charges. The
United States makes no concession, and specifically
informs the Court that it is not attacking the reasonable-
ness of California’s fees. Accordingly, the Maine case does
not suppor* California’s argument that the fees it wishes
to recover from the United States are service charges that
are not barred by federal immunity.
In sum, because neither § 1344(t) nor § 1323(a) evince
congressional intent to waive federal immunity for Cali-
fornia’s waste discharge fees or BPTC fees, the Court
grants the United States’ motion to dismiss. The annual
assessments in question are prohibited by the Supremacy
Clause of the United States Constitution.
App. 29
lil.
Accordingly,
IT IS HEREBY O.DERED that the United States’
motion to dismiss is GRANTED.
Dated: January 12, 1999.
/s/ William H. Orrick
William H. Orrick
United States District Judge
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
STATE OF CALIFORNIA,
Acting by and through
the California State Water
Resources Control Board,
Plaintiff,
No. C-98-0792 WHO
JUDGMENT
(Filed Jan. 12, 1999)
vs.
UNITED STATES OF
AMERICA, et al.,
Defendants.
Neer eee eee ee eee ie el”
This matter having come before the Court, and the
issues having been duly presented, and a decision having
been duly rendered,
App. 30
IT IS HEREBY ORDERED AND ADJUDGED that
defendant United States of America’s motion to dismiss is
GRANTED.
Dated: January 12, 1999.
/s/ William H. Orrick
William H. Orrick
United States District Judge
App. 31
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF CALIFORNIA, Acting » N° 99-1927?
by and through the California D.C. No.
State Water Resources Control CV-98-00792-WHO
wae, ORDER
Plaintiff-Appellant, (Filed Apr. 2, 2001)
V.
UNITED STATES OF AMERICA;
U.S. DEPARTMENT OF
ENGINEERS,
Defendants-Appellees.
STATE OF NEW YORK, amicus,
Amicus.
oe Sait Sag Nea “eae Sa gat Sea a Saat Seat Saal Seat: Saat Sah See ae ee ae
Before: GOODWIN, BRUNETTI and THOMAS, Circuit
Judges.
The panel has voted to deny the petition for rehear-
ing. Judge Thomas votes to reject the suggestion for
rehearing en banc and Judges Goodwin and Brunetti so
recommend.
The full court has been advised of the suggestion for
rehearing en banc, and no judge of the court has
App. 32
requested a vote on the suggestion for rehearing en banc.
Fed. R. App. P. 35(b).
The petition for rehearing is denied and the sugges-
tion for rehearing en banc is rejected.
App. 33
§ 13020. Title of division
This division shall be known and may be cited as the
Porter-Cologne Water Quality Control Act.
§ 13050
* * *
(C) Any discharge to surface water of a quantity
less than a reportable quantity as determined by regula-
tions issued pursuant to Section 311(b)(4) of the Clean
Water Act.
Ce
§ 13260. Reports; actual or proposed waste discharge;
fees; regulations; mining wastes; exemptions;
memorandum of understanding
(a) All of the following persons shall file with the
regional board of that region a report of the discharge,
containing the information which may be required by the
regional board:
(1) Any person discharging waste or proposing to
discharge waste within any region that could affect the
quality of the waters of the state, other than into a com-
munity sewer system.
(2) Any person who is a citizen, domiciliary, or
political agency or entity of this state discharging waste
or proposing to discharge waste outside the boundaries
of the state in a manner that could affect the quality of the
waters of the state within any region.
App. 34
(3) Any person operating or proposing to construct
an injection well.
(b) No report of waste discharge need be filed pur-
suant to subdivision (a) if the requirement is waived
pursuant to Section 13269.
(c) Every person subject to subdivision (a) shall file
with the regional board of that region a report of waste
discharge relative to any material change or proposed
change in the character, location, or volume of the dis-
charge.
(d)(1) Each person for whom waste discharge
requirements have been prescribed pursuant to Section
13263 shall submit an annual fee not to exceed ten thou-
sand dollars ($10,000) according to a reasonable fee
schedule established by the state board. Fees shall be
calculated on the basis of total flow, volume, number of
animals, or area involved.
(2) Any fees collected pursuant to this section shall
be deposited in the Waste Discharge Permit Fund which
is hereby created. The money in the fund is available for
expenditure by the state board, upon appropriation by
the Legislature, for the purposes of carrying out this
division.
(e) Each report of waste discharge for a new dis-
charge submitted under this section shall be accompanied
by a fee equal in amount to the annual fee for the dis-
charge. If waste discharge requirements are issued, the
fee shall serve as the first annual fee. If waste discharge
requirements are waived pursuant to Section 13269, all or
part of the fee shall be refunded.
App. 35
(f)(1) On or before January 1, 1990, the state board
shall adopt, by emergency regulations, a schedule of fees
authorized under subdivisions (d) and (j). The total reve-
nue collected each year through annual and filing fees
shall be set at an amount equal to the revenue levels set
forth in the Budget Act for this activity. The state board
shall automatically adjust the annual and filing fees each
fiscal year to conform with the revenue levels set forth in
the Budget Act for this activity. If the state board deter-
mines that the revenue collected during the preceding
year was greater than or less than the revenue levels set
forth in the Budget Act, the state board may further
adjust the annual filing fees to compensate for the over
and under collection of revenue.
(2) The emergency regulations adopted pursuant to
this subdivision, or subsequent adjustments to the annual
fees, shall be adopted by the state board in accordance
with Chapter 3.5 (commencing with Secticn 11340) of Part
1 of Division 3 of Title 2 of the Government code. The
adoption of these regulations is an emergency and shall
be considered by the Office of Administrative Law as
necessary for the immediate preservation of the public
peace, health, safety, and general welfare. Notwithstand-
ing Chapter 3.5 (commencing with Section 11340) of Part
1 of Division 3 of Title 2 of the Government Code, any
emergency regulations adopted by the state board, or
adjustments to the annual fees made by the state board
pursuant to this section, shall not be subject to review by
the Office of Administrative Law and shall remain in
effect until revised by the state board.
(g) The state board shall adopt regulations setting
forth reasonable time limits within which the regional
App. 36
board shall determine the adequacy of a report of waste
discharge submitted under this section.
(h) Each report submitted under this section shall
be sworn to or submitted under penalty of perjury.
(i) The regulations adopted by the state board pur-
suant to subdivision (f) shall include a provision that
annual fees shall not be imposed on those who pay fees
under the National Pollutant Discharge Elimination Sys-
tem until the time when those fees are again due, at
which time the fees shall become due on an annual basis.
(j) Facilities for confined animal feeding or holding
operations, including dairy farms, which have been
issued waste discharge requirements or exempted from
waste discharge requirements prior to January 1, 1989,
are exempt from subdivision (d). If the facility is required
to file a report under subdivision (c) after January 1, 1989,
the report shall be accompanied by a filing fee, to be
established by the state board in accordance with subdi-
vision (f), not to exceed two thousand dollars ($2,000),
and the facility shall be exempt from any annual fee.
(k) Any person operating or proposing to construct
an oil, gas, or geothermal injection well subject to para-
graph (3) of subdivision (a), shall not be required to pay a
fee pursuant to subdivision (d), if the injection well is
regulated by the Division of Oil and Gas of the Depart-
ment of Conservation, in lieu of the California regional
water quality control board for the region, pursuant to
the memorandum of understanding, entered into
between the State Water Resources Control Board and the
Department of Conservation on May 19, 1988. This subdi-
vision shall remain operative until the memorandum of
App. 37
understanding is revoked by the State Water Resources
Control Board or the Department of Conservation.
(1) In addition to the report required by subdivision
(a), before any person discharges mining waste, the per-
son shall first submit the following to the regional board:
(1) A report on the physical and chemical charac-
teristics of the waste that could affect its potential to
cause pollution or contamination. The report shall
include the results of all tests required vy regulations
adopted by the state board, any test adopted by the
Department of Toxic Substances Control pursuant to sec-
tion 25141 of the Health and Safety Code for extractable,
persistent, and bioaccumulative toxic substances in a
waste or other material, and any other tests that the state
board or regional board may require, including, but not
limited to, tests needed to determine the acid-generating
potential of the mining waste or the extent to which
hazardous substances may persist in the waste after dis-
posal.
(2) A report that evaluates the potential of the dis-
charge of the mining waste to produce, over the long
term, acid mine drainage, the discharge or leaching of
heavy metals, or the release of other hazardous sub-
stances.
§ 13261. Failure to furnish report or pay fee; false
report; civil liability
(a) Any person failing to furnish a report or pay a
fee under section 13260 when so requested by a regional
App. 38
board is guilty of a misdemeanor and may be liable
civilly in accordance with subdivision (b).
(b)(1) Civil liability may be administratively
imposed by a regional board in accordance with Article
2.5 (commencing with Section 13323) of Chapter 5 for a
violation of subdivision (a) in an amount which shall not
exceed one thousand dollars ($1,000) for each day in
which the violation occurs.
(2) Civil liability may be imposed by the superior
court in accordance with Article 5 (commencing with
Section 13350) and Article 6 (commencing with Section
13360) of Chapter 5 for a violation of subdivision (a) in an
amount which shall not exceed five thousand dollars
($5,000) for each day in which the violation occurs.
(c) Any person discharging or proposing to dis-
charge hazardous waste, as defined in Section 25117 of
the Health and Safety ode, who knowingly furnishes a
false report under Section 13260, or who either willfully
fails to furnish a report or willfully withholds material
information under Section 13260 despite actual knowl-
edge of such requirement, may be liable in accordance
with subdivision (d) and is guilty of a misdemeanor.
This subdivision shall not be applicable to any waste
discharge which is subject to Chapter 5.5 (commencing
with Section 13370).
(d)(1) Civil liability may be administratively
imposed by a regional board in accordance with Article
2.5 (commencing with Section 13323) of Chapter 5 for a
violation of subdivision (c) in an amount which shall not
App. 39
exceed five thousand dollars ($5,000) for each day in
which the violation occurs.
(2) Civil liability may be imposed by the superior
court in accordance with Article 5 (commencing with
Section 13350) and Article 6 (commencing with Section
13360) of Chapter 5 for a violation of subdivision (c) in an
amount which shall not exceed twenty-five thousand dol-
lars ($25,000).
§ 13263. Prescribing requirements; considerations by
regional board
(a) The regional board, after any necessary hearing,
shall prescribe requirements as to the nature of any pro-
posed discharge, existing discharge, or material change
therein, except discharges into a community sewer sys-
tem, with relation to the conditions existing from time to
time in the disposal area or receiving waters upon or into
which the discharge is made or proposed. The require-
ments shall implement relevant water quality control
plans, if any have been adopted, and shall take into
consideration the beneficial uses to be protected, the
water quality objectives reasonably required for that pur-
pose, other waste discharges, the need to prevent nui-
sance, and the provisions of Section 13241.
(b) A regional board, in prescribing requirements,
need not authorize the utilization of the full waste assimi-
lation capacities of the receiving waters.
App. 40
(c) The requirements may contain a time schedule,
subject to revision in the discretion of the board.
(d) The board may prescribe requirements although
no discharge report has been filed.
(e) Upon application by any affected person or on
its own motion, the regional board may review and revise
requirements. All requirements shall be reviewed peri-
odically.
(f) The regional board shall notify in writing the
person making or proposing the discharge or the change
therein of the discharge requirements to be met. After
receipt of such notice, the person so notified shal! provide
adequate means to meet such requirements.
(g) No discharge of waste into the waters of the
state, whether or not such discharge is made pursuant to
waste discharge requirements, shall create a vested right
to continue such discharge. All discharges of waste into
waters of the state are privileges, not rights.
§ 13267. Investigation of water quality; reports; inspec-
tion of facilities
(a) A regional board, in establishing or reviewing
any water quality control plan or waste discharge
requirements, or in connection with any action relating to
any plan or requirement or authorized by this division,
may investigate the quality of any waters of the state
within its region.
App. 41
(b) In conducting an investigation specified in sub-
division (a), the regional board may require that any
person discharging or proposing to discharge waste
within its region or any citizen or domiciliary, or political
agency or entity of this state discharging or proposing to
discharge waste outside of its region that could affect the
quality of waters within its region shall furnish, under
penalty of perjury, those technical or monitoring program
reports as the board may specify. The burden, including
costs, of these reports shall bear a reasonable relationship
to the need for the report and the benefits to be obtained
from the reports.
When requested by the person furnishing a report,
the portions of a report which might disclose trade
secrets or secret processes shall not be made available for
inspection by the public but shall be made available to
governmental agencies for use in making studies. How-
ever, these portions of a report shall be available for use
by the state or any state agency in judicial review or
enforcement proceedings involving the person furnishing
the report.
(c) In conducting an investigation pursuant to sub-
division (a), the regional board may inspect the facilities
of any person to ascertain whether the purposes of this
division are being met and waste discharge requirements
are being complied with. The inspection shall be made
with the consent of the owner or possessor of the facili-
ties or, if the consent is refused, with a warrant duly
issued pursuant to the procedure set forth in Title 13
(commencing with Section 1822.50) of Part 3 of the Code
of Civil Procedure. However, in the event of an emer-
gency affecting the public health or safety, an inspection
App. 42
may be made without consent or the issuance of a war-
rant.
(d) The state board or a regional board may require
any person, including a person subject to a waste dis-
charge requirement under Section 13263, who is discharg-
ing, or who proposes to discharge, wastes or fluid into an
injection well, to furnish the state board or regional board
with a complete report on the condition and operation of
the facility or injection well, or any other information that
may be reasonably required to determine whether the
injection well could affect the quality of the waters of the
state.
§ 13304. Cleanup or abatement order; injunction; reme-
dial action by governmental entity; expendi-
tures; contracts; payment of costs
(a) Any person who has discharged or discharges
waste into the waters of this state in violation of any
waste discharge requirement or other order or prohibi-
tion issued by a regional board or the state board, or who
has caused or permitted, causes or permits, or threatens
to cause or permit any waste to be discharged or depos-
ited where it is, or probably will be, discharged into the
waters of the state and creates, or threatens to create, a
condition of pollution or nuisance, shall upon order of
the regional board clean up such waste or abate the
effects thereof or, in the case of threatened pollution or
App. 43
nuisance, take other necessary remedial action. Upon fail-
ure of any person to comply with such cleanup or abate-
ment order, the Attorney General, at the request of the
board, shall petition the superior court for that county for
the issuance of an injunction requiring such person to
comply therewith. In any such suii, the court shall have
jurisdiction to grant a prohibitory or mandatory injunc-
tion, either preliminary or permanent, as the facts may
warrant.
(b) The regional board may expend available
moneys to perform any cleanup, abatement, or remedial
work required under the circumstances set forth in subdi-
vision (a) which in its judgment is required by the magni-
tude of endeavor or urgency of prompt action needed to
prevent substantial pollution, nuisance, or injury to any
waters of the state. Such action may be taken in default
of, or in addition to, remedial work by the waste dis-
charger or other persons, and regardless of whether
injunctive relief is being sought. The regional board may
perform the work itself, or by or in cooperation with any
other governmental agency, and may use rented tools or
equipment, either with operators furnished or unope-
rated. Notwithstanding any other provisions of law, the
regional board may enter into oral contracts for such
work, and the contracts, whether written or oral, may
include provisions for equipment rental and in addition
the furnishing of labor and materials necessary to accom-
plish the work. Such contracts shall be exempt from
approval by the Department of General Services pursuant
App. 44
to the provisions of Section 14780 of the Government
Code.!
(c) If such waste is cleaned up, the effects thereof
abated, or, in the case of threatened pollution or nuisance,
other necessary remedial action is taken by any govern-
mental agency, the person or persons who discharged the
waste, discharges the waste, or threatened to cause or
permit the discharge of the waste within the meaning of
subdivision (a), shall be liable to that governmental
agency to the extent of the reasonable costs actually
incurred in cleaning up such waste, abating the effects
thereof, or taking other remedial action. The amount of
such costs shall be recoverable in a civil action by, and
paid to, such governmental agency and the state board to
the extent of the latter’s contribution to the cleanup costs
from the State Water Pollution Cleanup and Abatement
Account or other available funds.
(d) If, despite reasonable effort by the regional
board to identify the person responsible for the discharge
of waste or the condition of pollution or nuisance, such
person is not identified at the time cleanup, abatement, or
remedial work must be performed, the regional board
shall not be required to issue an order under this section.
(e) “Threaten,” for purposes of this section, means a
condition creating a substantial probability of harm,
when the probability and potential extent of harm make it
reasonably necessary to take immediate action to prevent,
reduce, or mitigate damages to persons, property, or nat-
ural resources.
1 Repealed. See Pub.Con.C. § 10295.
App. 45
(f) This section does not impose any new liability
for acts occurring before January 1, 1981, if the acts were
not in violation of existing laws or regulations at the time
they occurred.
§ 13323. Complaint; hearing; action by regional board;
orders
(a) Any executive officer of a regional board may
issue a complaint to any person on whom administrative
civil liability may be imposed pursuant to this article. The
complaint shall allege the act or failure to act that consti-
tutes a violation of law, the provision of law authorizing
civil liability to be imposed pursuant to this article, and
the proposed civil liability.
(b) The complaint shall be served by personal notice
or certified mail, and shall inform the party so served that
a hearing shall be conducted within 60 days after the
party has been served. The hearing shall be before a
panel of the regional board, consisting of three or more
members of the regional board as it may specify, or before
the regional board. The person who has been issued a
complaint may waive the right to a hearing, in which case
the regional board shall not conduct a hearing.
(c) After any hearing, the panel shall report its pro-
posed decision and order to the regional board and shall,
at the time it reports its decision to the regional board,
supply a copy to the party served with the complaint, the
party issuing the complaint, and any other person
App. 46
requesting a copy. Members of the panel may sit as mem-
bers of the board in deciding the matter. The regional
board, after making an independent review of the record
and taking such additional evidence as may be necessary
and could not reasonably have been offered before the
hearing panel, may adopt, with or without revision, the
proposed decision and order of the panel.
(d) Orders setting administrative civil liability shall
become effective and final upon issuance thereof, and
payment shall be made within 30 days. Copies of these
orders shall be served by personal service or by regis-
tered mail upon the party served with the complaint and
upon other persons who appeared at the hearing and
requested a copy.
§ 13328. Judgment to collect penalty
After the time for judicial review under Section 13325
has expired, the state board may apply to the clerk of the
appropriate court in the county in which the civil penaity
was iniposed, for a judgment to collect the penalty. The
application, which shall include a certified copy of the
state board or regional board action, constitutes a suffi-
cient showing to warrant issuance of the judgment. The
court clerk shall enter the judgment immediately in con-
formity with the application. The judgment so entered
has the same force and effect as, and is subject to all the
provisions of law relating to, a judgment in a civil action,
;
App. 47
and may be enforced in the same manner as any other
judgment of the court in which it is entered.
§ 13350. Civil Liabilities; recovery of amount; contri-
bution; annual report
(a) Any person who (1) intentionally or negligently
violates any cease and desist order or cleanup and abate-
ment order hereafter issued, reissued, or amended by a
regional board or the state board, or (2) in violation of
any waste discharge requirement or other order or prohi-
bition issued, reissued, or amended by a regional board
or the state board, intentionally or negligently discharges
waste, or causes or permits waste to be deposited where
it is discharged, into the waters of the state and creates a
condition of pollution or nuisance, or (3) causes or per-
mits any oil or any residuary product of petroleum to be
deposited in or on any of the waters of the state, except in
accordance with waste discharge requirements or other
provisions of this division, may be liable civilly in accor-
dance with subdivision (d), (e), or (f).
(b) Any person who, without regard to intent or
negligence, causes or permits any hazardous substance to
be discharged in or on any of the waters of the state
where it creates a condition of pollution or nuisance,
except in accordance with waste discharge requirements
or other provisions of this division, shall be strictly liable
civilly in accordance with subdivision (d), (e), or (f).
App. 48
For purposes of this subdivision, the term “dis-
charge” includes only those discharges for which Section
13260 directs that a report of waste discharge shall be
filed with the regional board.
For purposes of this subdivision, the term “dis-
charge” does not include any emission excluded from the
applicability of Section 311 of the Clean Water Act (33
U.S.C. Section 1251 et seq.) pursuant to Environmental
Protection Agency regulations interpreting Section
311(a)(2) of the Clean Water Act.
(c) There shall be no liability under subdivision (b)
if the discharge is caused solely by any one or combina-
tion of the following:
(1) An act of war.
(2) An unanticipated grave natural disaster or other
natural phenomenon of an exceptional, inevitable, and
irresistible character, the effects of which could not have
been prevented or avoided by the exercise of due care or
foresight.
(3) Negligence on the part of the state, the United
States, or any department or agency thereof: provided,
that this paragraph shall not be interpreted to provide the
state, the United States, or any department or agency
thereof a defense to liability for any discharge caused by
its own negligence.
(4) An intentional act of a third party, the effects of
which could not have been prevented or avoided by the
exercise of due care or foresight.
App. 49
(5S) Any other circumstance or event which causes
the discharge despite the exercise of every reasonable
precaution to prevent or mitigate the discharge.
(d) When there is a discharge, and a cleanup and
abatement order is issued pursuant to Section 13304, lia-
bility shall be imposed as follows:
(1) Civii liability may be administratively imposed
by a regional board pursuant to Article 2.5 (commencing
with Section 13323) for a violation of this section in an
amount which shall not exceed five thousand dollars
($5,000), but shall not be less than five hundred dollars
($500), for each day in which the discharge occurs and for
each day the cleanup and abatement order is violated.
(2) Civil liability may be imposed by the superior
court in accordance with this article and Article 6 (com-
mencing with Section 13360) for a violation of this section
in an amount which shall not exceed fifteen thousand
dollars ($15,000) for each day in which the discharge
occurs and for each day the cleanup and abatement order
is violated.
(e) When there is a discharge, and a cleanup and
abatement order is not issued pursuant to Section 13304,
liability shall be imposed as follows:
(1) Civil liability may be administratively imposed
by a regional board in accordance with Article 2.5 (com-
mencing with Section 13323) for a violation of this section
in an amount which shall not exceed ten dollars ($10) for
each gallon of waste discharged.
App. 50
(2) Civil liability may be imposed by the superior
court in accordance with this article and Article 6 (com-
mencing with Section 13360) for a violation of this section
in an amount which shall not exceed twenty dollars ($20)
for each gallon of waste discharged.
(f) When there is no discharge, but an order issued
by the regional board is violated, liability shall be
imposed as follows:
(1) Civil liability may be administratively imposed
by a regional board in accordance with Article 2.5 (com-
mencing with Section 13323) for a violation of this section
in an amount which shall not exceed one thousand dol-
lars ($1,000), but shall not be less than one hundred
dollars ($100). for each day in which the violation occurs.
(2) Civil liability may be imposed by the superior
court in accordance with this article and Article 6 (com-
mencing with Section 13360) for a violation of this section
in an amount which shall not exceed ten thousand dollars
($10,000) for each day in which the violation occurs.
(g) A regional board shall not administratively
impose civil liability in accordance with subdivision (d),
(e), or (f) in an amount less than the minimum amount
specified, unless the regional board makes express find-
ings setting forth the reasons for its action based on the
specific factors required to be considered pursuant to
Section 13327.
(h) The Attorney General, upon request of a
regional board or the state board, shall petition the supe-
rior court to impose, assess, and recover such sums.
Except in the case of a violation of a cease and desist
App. 51
order, a regional board or the state board shall make such
request only after a hearing, with due notice of the hear-
ing given to all affected persons. In determining such
amount, the court shall take into consideration all rele-
vant circumstances, including, but not limited to, the
extent of harm caused by the violation, the nature and
persistence of the violation, the length of time over which
the violation occurs, and corrective action, if any, taken
by the discharger.
(i) The provisions of Article 3 (commencing with
Section 13330) and Article 6 (commencing with Section
13360) of this chapter shall apply to proceedings to
impose, assess, and recover an amount pursuant to this
article.
(j) Any person who pays any liability established
under this section shall be entitled to contribution for
such liability from any third party, in an action in the
superior court and upon proof that the discharge was
caused in whole or in part by an act or omission of the
third party, to the extent that the discharge is caused by
the act or omission of the third party, in accordance with
the principles of comparative fault.
(k) Remedies under this section are in addition to,
and do not supersede or limit, any and all other remedies,
civil or criminal; provided that no liability shall be recov-
erable under subdivision (b) for any discharge for which
liability is recovered under Section 13385.
(1) The state board shall submit an annual report to
the Legislature which shall be available to the public, list
all instances in which civil liability has been adminis-
tratively imposed by a regional board in accordance with
App. 52
subdivision (d), (e), or (f) during the preceding year, and
set forth the express findings made by the regional board
pursuant to subdivision (g), and indicate the maximum
amount of liability which could have been imposed and
the amount actually imposed in each instance.
§ 13385. Violations; civil liabilities
(a) Any person who violates any of the following
shall be liable civilly in accordance with subdivisions (b),
(c), (d), (e), and (f):
(1) Section 13375 or 13376.
(2) Any waste discharge requirements or dredged
and fill material permit.
(3) Any requirements established pursuant to Sec-
tion 13383.
(4) Any order or prohibition issued pursuant to Sec-
tion 13243 or Article I (commencing with Section 13300)
of Chapter 5, if the activity subject to the order or prohi-
bition is subject to regulation under this chapter.
(5) Any requirements of Section 301, 302, 306, 307,
308, 318, or 405 of the Federal Water Pollution Control
Act, as amended.!
1 33 U.S.C.A. §§ 1311, 1312, 1316, 1317, 1318, 1328, 1345
App. 53
(6) Any requirement imposed in a pretreatment pro-
gram approved pursuant to waste discharge require-
ments issued under Section 13377 or approved pursuant
to a permit issued by the administrator.
(b) Civil liability may be imposed by the superior
court in an amount not to exceed the sum of both of the
following:
(1) Twenty-five thousand dollars ($25,000) for each
day in which the violation occurs.
(2) Where there is a discharge, any portion of which
is not susceptible to cleanup or is not cleaned up, and the
volume discharged but not cleaned up exceeds 1,000 gal-
lons, an additional liability not to exceed twenty-five
dollars ($25) times the number of gallons by which the
volume discharged but not cleaned up exceeds 1,000 gal-
lons.
The Attorney General, upon request of a regional
board or the state board, shall petition the superior court
to impose the liability.
(c) Civil liability may be imposed administratively
by the state board or a regional board pursuant to Article
2.5 (commencing with Section 13323) of Chapter 5 in an
amount not to exceed the sum of both of the following:
(1) Ten thousand dollars ($10,000) for each day in
which the violation occurs.
(2) Where there is a discharge, any portion of which
is not susceptible to cleanup or is not cleaned up, and the
volume discharged but not cleaned up exceeds 1,000 gal-
lons, an additional liability not to exceed ten dollars ($10)
App. 54
times the number of gallons by which the volume dis-
charged but not cleaned up exceeds 1,000 gallons.
(d) For purposes of subdivisions (b) and (c), the
term “discharge” includes any discharge to navigable
waters of the United States, any introduction of pollu-
tants into a publicly owned treatment works, or any use
or disposal of sewage sludge.
(e) In determining the amount of any liability
imposed under this section, the regional board, the state
board, or the superior court, as the case may be, shall
take into account the nature, circumstances, extent, and
gravity of the violation, and, with respect to the violator,
the ability to pay, any prior history of violations, the
degree of culpability, economic benefit or savings, if any,
resulting from the violation, and other matters that justice
may require.
(f) For purposes of this section, a single operational
upset which leads to simultaneous violations of more
than one pollutant parameter shall be treated as a single
violation.
(g) Remedies under this section are in addition to,
and do not supersede or limit, any other remedies, civil
or criminal except that no liability shall be recoverable
under Section 13261, 13265, 13268, or 13350 for violations
for which liability is recovered under this section.
(h) The Attorney General, upon request of a
regional board or the state board, shall petition the
appropriate court to collect any liability imposed pur-
suant to this section. Any person who fails to pay on a
timely basis any liability imposed under this section shall
App. 55
be required to pay in addition to that liability plus inter-
est, attorneys’ fees and costs for collection proceedings
and a quarterly nonpayment penalty for each quarter
during which the failure to pay persists. The nonpayment
penalty shall be in an amount equal to 20 percent of the
aggregate amount of the person’s liability and nonpay-
ment penalties which are unpaid as of the beginning of
the quarter.
(i) Funds collected pursuant to this section shall be
paid to the State Water Pollution Cleanup and Abatement
Account.
§ 13396.5 Point and nonpoint dischargers; fees;
deposits; misdemeanor; progress report;
duration of section
(a) The state board shall establish fees applicable to
all point and nonpoint dischargers who discharge into
enclosed bays, estuaries, or any adjacent waters in the
contiguous zone or the ocean as defined in Section 502 of
the federal Clean Water Act (33 U.S.C. Sec. 1362), which
shall be collected annually.
(b) The fees shall create incentives to reduce dis-
charges to the ocean, bays, and estuaries and shall be
based on the relative threat to water quality from point
and nonpoint dischargers. The schedule of fees shall be
set at an amount sufficient to fund the responsibilities
and duties of the state board, the State Department of
Health Services, and the Department of Fish and Game
App. 56
established by this chapter. The total amount of fees
collected pursuant to this section shall not exceed four
million dollars ($4,000,000) per year. Nothing in this sec-
tion limits or restricts the funding of activities required
by this chapter from sources in addition to the fees estab-
lished by this section.
(c) Fees collected pursuant to this section shall be
deposited in the Bay Protection and Toxic Cleanup Fund
which is hereby created, and shall be available for expen-
diture by the state board, upon appropriation by the
Legislature, for the purposes of carrying out this chapter.
(d) Fees collected pursuant to this section shall be
in addition to fees established pursuant to Section 13260
and shall not be subject to the maximum fee established
in subdivision (d) of Section 13260, provided that the
annual fee under this section shall not exceed the amount
of thirty thousand dollars ($30,000) per discharger.
(e) Any person failing to pay a fee established
under this section when so requested by the state board is
guilty of a misdemeanor and may be liable civilly in
accordance with subdivision (d) of Section 13261.
(f) On or before January 1, 1993, the State Board
shall report to the Legislature on the progress made
toward meeting the requirements of this chapter and the
adequacy of the fee levels established in subdivisions (b)
and (d).
(g) This section shall remain in effect only until
January 1, 1994, and as of that date is repealed, unless a
later enacted statute, which is enacted before January 1,
1994, deletes or extends that date.
App. 57
California Code of Regulations
State Water Resources Control Board
Title 23 § 2200
* * +
(d) The annual fee for persons whose discharges are
regulated by a general NPDES permit or a general waste
discharge requirements issued by the State Board or a
Regional Board (excluding storm water permits) shall be
based on the TTWQ and CPLX of the discharge. All
discharges that are subject to a given permit shall pay the
same fee. 2
(e) “Dredge and Fill Operations Fees” Fees for fill
or dredge operations shall be assessed, as follows:
Fill: - One acre or less, flat fee of $1,000.
More than one acre, $1,000 per acre or
part thereof (not to exceed statutory
maximum). ——_
Dredge: Less than 10,000 cubic yards, flat fee
of $500.
10,000 to 20,000 cubic yards, flat fee of
$2,000.
More than 20,000 cubic yards, $2,000
plus $250 for each additional 5,000
cubic yards or part thereof (not
exceed the statutory maximum).
(f) Dischargers who own or operate confined ani-
mal feedlots, including dairies, shall not be assessed an
annual fee for waste discharge requirements regulating
those operations.. They shall pay a filing fee of $2,000
which shall be submitted with each report of waste dis-
charge or NOI. If waste discharge requirements are
waived pursuant to section 13269 of the Water Code, all
App. 58
or a portion of the filing fee will be refunded in accor-
dance with Section 2200.4.
Norte: Authority cited: Sections 185 and 1058, Water
Code Reference: Section 13260, Water Code.
28 U.S.C. § 1251. Original jurisdiction
(a) The Supreme Court shall have original and
exclusive jurisdiction of all controversies between two or
more States.
(b) The Supreme Court shall have original but not
exclusive jurisdiction of:
(1) All actions or proceedings to which ambas-
sadors, other public ministers, consuls, or vice
consuls of foreign states are parties; -
(2) All controversies between the United States
and a State;
(3) All actions or proceedings by a State
against the citizens of another State or against
aliens.
28 U.S.C. § 1331. Federal question
The district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States.
App. 59
28 U.S.C. § 1346. United States as defendant
(a) The district courts shall have original jurisdiction,
concurrent with the United States Claims Court, of:
(1) Any civil action against the United States
for the recovery of any internal-revenue tax
alleged to have been erroneously or illegally
assessed or collected, or any penalty claimed to
have been collected without authority or any
sum alleged to have been excessive or in any
manner wrongfully collected under the internal-
revenue laws;
(2) Any other civil action or claim against the
United States, not exceeding $10,000 in amount,
founded either upon the Constitution, or any
Act of Congress, or any regulation of an execu-
tive department, or upon any express or implied
contract with the United States, or for liquidated
or unliquidated damages in cases not sounding
in tort, except that the district courts shall not
have jurisdiction of any civil action or claim
against the United States founded upon any
express or implied contract with the United
States or for liquidated or unliquidated damages
in cases not sounding in tort which are subject
to sections 8(g)(1) and 10(a)(1) of the Contract
Disputes Act of 1978 [41 USCS §§ 607(g)(1),
609(a)(1)]. For the purpose of this paragraph, an
express or implied contract with the Army and
Air Force Exchange Service, Navy Exchanges,
Marine Corps Exchanges, Coast Guard
Exchanges, or Exchange Councils of the
National Aeronautics and Space Administration
shall be considered an express or implied con-
tract with the United States.
App. 60
(b) Subject to the provisions of chapter 171 of this title
[28 USCS §§ 2671 et seq.], the district courts, together
with the United States District Court for the District of
the Canal Zone and the District Court of the Virgin
Islands, shall have exclusive jurisdiction of civil actions
on claims against the United States, for money damages,
accruing on and after January 1, 1945, for injury or loss of
property, or personal injury or death caused by the negli-
gent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
omission occurred.
(c) The jurisdiction conferred by this section includes
jurisdiction of any set-off, counterclaim, or other claim or
demand whatever on the part of the United States against
plaintiff commencing an action under this section.
(d) The district courts shall not have jurisdiction under
this section of any civil action or claim for a pension.
(e) The district courts shall have original jurisdiction of
any civil action against the United States provided in
section 6226, 6228(a), 7426, or 7428 (in the case of the
United States district court for the District of Columbia)
or section 7429 of the Internal Revenue Code of 1954 [26
USCS §§ 6226, 6228(a), 7426, 7428, 7429].
(f) The district courts shall have exclusive original juris-
diction of civil actions under section 2409a [28 USCS
§ 2409a] to quiet title to an estate or interest in real
property in which an interest is claimed by the United
States. 7
App. 61
28 U.S.C. § 1441. Actions removable generally
(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have origi-
nal jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending.
(b) Any civil action of which the district courts have
original jurisdiction founded on a claim or right arising
under the Constitution, treaties or laws of the United
States shall be removable without regard to the citizen-
ship or residence of the parties. Any other such action
shall be removable only if none of the parties in interest
properly joined and served as defendants is a citizen of
the State in which such action is brought.
(c) Whenever a separate and independent claim or
cause of action, which would be removable is sued upon
alone, is joined with one or more otherwise nonremov-
able claims or causes of action, the entire case may be
removed and the district court may determine all issues
therein, or, in its discretion, may remand all matters not
otherwise within its original jurisdiction.
(d) Any civil action brought in a State court against a
foreign state as defined in section 1603(a) of this title may
be removed by the foreign state to the district court of the
United States for the district and division embracing the
place where such action is pending. Upon removal the
action shall be tried by the court without jury. Where
App. 62
removal is based upon this subsection, the time limita-
tions of section 1446(b) of this chapter may be enlarged at
any time for cause shown..
(e) The court to which such civil action is removed is
not precluded from hearing and determining any claim in
such civil action because the State court from which such
civil action is removed did not have jurisdiction over that
claim.
28 U.S.C. § 2201. Creation of remedy
(a) Ina case of actual controversy within its jurisdiction,
except with respect to Federal taxes other than actions
brought under section 7428 of the Internal Revenue Code
of 1986, [26 USCS § 7428] a proceeding under section 505
or 1146 of title 11, or in any civil action involving an
antidumping or countervailing duty proceeding regard-
ing a class or kind of Canadian merchandise, as deter-
mined by the administering authority, any court of the
United States, upon the filing of an appropriate pleading,
may declare the rights and other legal relations of any
interested party seeking such declaration, whether or not
further relief is or could be sought. Any such declaration
shall have the force and effect of a final judgment or
decree and shall be reviewable as such.
(b) For limitations on actions brought with respect to
drug patents.see section 505 or 512 of the Federal Food,
Drug, and Cosmetic Act [21 USCS §§ 355 or 360b].
t
App. 63
33 U.S.C. § 1323. 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 perfor-
mance of his official duties, shall be subject to, and com-
ply with, all Federal, State, interstate, and local
requirements, 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 including the payment of
reasonable service charges. The preceding sentence shall
apply (A) to any requirement whether substantive or
procedural (including any recordkeeping or reporting
requirement, any requirement respecting permits and any
other requirement, whatsoever), (B) to the exercise of any
Federal, State, or local administrative authority, and (C)
to any process and sanction, whether enforced in Federal,
State, or local courts or in any other manner. This subsec-
tion shall apply notwithstanding any immunity of such
agencies, officers, agents, or employees under any law or
rule of law. Nothing in this section shall be construed to
prevent any department, agency, or instrumentality of the
Federal Government, or any officer, agent, or employee
thereof in the performance of his official duties, from
removing to the appropriate Federal district court any
proceeding to which the department, agency, or instru-
mentality or officer, agent, or employee thereof is subject
pursuant to this section, and any such proceeding may be
removed in accordance with 28 U.S.C. 1441 et seq. [28
App. 64
USCS §§ 1441 et seq.] No officer, agent, or employee of
the United States shall be personally liable for any civil
penalty arising from the performance of his official
duties, for which he is not otherwise liable, and the
United States shall be liable only for those civil penalties
arising under Federal law or imposed by a State or local
court to enforce an order or the process of such court. The
President may exempt any effluent source of any depart-
ment, agency, or instrumentality in the executive branch
from compliance with any such a requirement if he deter-
mines it to be in the paramount interest of the United
States to do so; except that no exemption may be granted
from the requirements of section 306 or 307 of this Act [33
USCS § 1316 or 1317]. No such exemptions shall be
granted due to lack of appropriation 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 appropria-
tion. Any exemption shall be for a period not in excess of
one year, but additional exemptions may be granted for
periods of not to exceed one year upon the President's
making a new determination. The President shall report
each January to the Congress all exemptions from the
requirements of this section granted during the preceding
calendar year, together with his reason for granting such
exemption. In addition to any such exemption of a partic-
ular 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 property, which are owned
- App. 65
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
President shall reconsider the need for such regulations
at three-year intervals.
+ * *
33 U.S.C. § 1344
* * *
(t) Navigable waters within State jurisdiction. Nothing
in this section shall preclude or deny the right of any
State or interstate agency to control the discharge of
dredged or fill material in any portion of the navigable
waters within the jurisdiction of such State, including any
activity of any Federal agency, and each such agency shall
comply with such State or interstate requirements both
substantive and procedural to control the discharge of
dredged or fill material to the same extent that any per-
son is subject to such requirements. This section shall not
be construed as affecting or impairing the authority of the
Secretary to maintain navigation.
App. 66
33 U.S.C. § 1362. Definitions
Except as otherwise specifically provided, when used in
this Act:
(1) The term “State water pollution control
agency” means the State agency designated by
the Governor having responsibility for enforcing
State laws relating to the abatement of pollution.
(2) The term “interstate agency” means an
agency of two or more States established by or
pursuant to an agreement or compact approved
by the Congress, or any other agency of two or
more States, having substantial powers or duties
pertaining to the control of pollution as deter-
mined and approved by the Administrator.
(3) The term “State” means a State, the District
of Columbia, the Commonwealth of Puerto Rico,
the Virgin Islands, Guam, American Samoa, and
the Trust Territory of the Pacific Islands.
(4) The term “municipality” means a city,
town, borough, county, parish, district, associa-
tion, or other public body created by or pur-
suant to State law and having jurisdiction over
disposal of sewage, industrial wastes, or other
wastes, or an Indian tribe or an authorized
Indian tribal organization, or a designated and
approved management agency under section
208 of this Act [33 USCS § 1288].
(5) The term “person” means an individual,
corporation, partnership, association, State,
municipality, commission, or political subdivi-
sion of a state, or any interstate body.
(6) The term “pollutant” means dredged spoil,
solid waste, incinerator residue, sewage, gar-
bage, sewage sludge, munitions, chemical
App. 67
wastes, biological. materials, radioactive mate-
rials, heat, wrecked or discarded equipment,
rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water.
This term does not mean (A) “sewage from ves-
sels” within the meaning of section 312 of this
Act [33 USCS § 1322]; 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 dis-
posed 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.
42 U.S.C. § 6961. Application of Federal, State, and
local law to Federal facilities
(a) In general. Each department, agency, and instru-
mentality of the executive, legislative, and judicial
branches of the Federal Government (1) having jurisdic-
tion over any solid waste management facility or disposal
site, or (2) engaged in any activity resulting, or which
may result, in the disposal or management of solid waste
or hazardous waste shall be subject to, and comply with,
all Federal, State, interstate, and local requirements, both
substantive and procedural (including any requirement
App. 68
for permits or reporting or any provisions or injunctive
relief and such sanctions as may be imposed by a court to
enforce such relief), respecting control and abatement of
solid waste or hazardous waste disposal and manage-
ment in the same manner, and to the same extent, as any
person is subject to such requirements, including the
payment of reasonable service charges. The Federal,
State, interstate, and local substantive and procedural
requirements referred to in this-subsection include, but
are not limited to, all administrative orders and all civil
and administrative penalties and fines, regardless of
whether such penalties or fines are punitive or coercive in
nature or are imposed for isolated, intermittent, or con-
tinuing violations. The United States hereby expressly
waives any immunity otherwise applicable to the United
States with respect to any such substantive or procedural
requirement (including, but not limited to, any injunctive
relief, administrative order or civil or administrative pen-
alty or fine referred to in the preceding sentence, or
reasonable service charge). The reasonable service
charges referred to in this subsection include, but are not
limited to, fees or charges assessed in connection with the
processing and issuance of permits, renewal of permits,
amendments to permits, review of plans, studies, and _
other documents, and inspection and monitoring of facili-
ties, as well as any other nondiscriminatory charges that
are assessed in connection with a Federal, State, inter-
state, or local solid waste or hazardous waste regulatory
program. Neither the United States, nor any agent,
employee, or officer thereof, shall be immune or exempt
from any process or sanction of any State or Federal
App. 69
Court with respect to the enforcement of any such injunc-
tive relief. No agent, employee, or officer of the United
States shall be personally liable for any civil penalty
under any Federal, State, interstate, or local solid or
hazardous waste law with respect to any act or omission
within the scope of the official duties of the agent,
employee, or officer. An agent, employee, or officer of the
United States shall be subject to any criminal sanction
(including, but not limited to, any fine or imprisonment)
under any Federal or State solid or hazardous waste law,
but no department, agency, or instrumentality of the
executive, legislative, or judicial branch of the Federal
Government shall be subject to any such sanction. The
President may exempt any solid waste management facil-
ity of any department, agency, or instrumentality in the
executive branch from compliance with such a require-
ment if he determines it to be in the paramount interest of
the United States to do so. No such exemption shall be
granted due to lack of appropriation 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 appropria-
tion. Any exemption shall be for a period not in excess of
one year, but additional exemptions may be granted for
periods not to exceed one year upon the President’s mak-
ing a new determination. The President shall report each
January to the Congress all exemptions from the require-
ments of this section granted during the preceding calen-
dar year, together with his reason for granting each such
exemption.
App. 70
33 C.F.R. § 323.2 Definitiions.
* * *
(d)(1) Except as provided below in paragraph
(d)(2), the term discharge of dredged material means any
addition of dredged material into, including redeposit of
dredged material other than incidential fallback within,
the waters of the United States. The term includes, but is
not limited to, the following:
(i) The addition of dredged material to a specified
discharge site located in waters of the United States;
(ii) The runoff or overflow from a contained land or
water disposal area; and
(iii) Any addition, including redeposit other than
incidential fallback, of dredged material, including exca-
vated material, into waters of the United States which is
incidental to any activity, including mechanized land-
clearing, ditching, channelization, or other excavation.
* * *
App. 71
99-15279
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF CALIFORNIA, Acting
by and through the California
State Water Resources Control
Board,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA;
U.S. Department of Army, Corps
of Engineers,
Defendants-Appellees.
Gli salah Wc aia ech ae cc Re a ih ars tae
On Appeal from the United States District Court
for the Northern District of California
No. C 98-0792 WHO
The Honorable William H. Orrick, Jr., Judge
REPLY BRIEF FOR APPELLANT
STATE OF CALIFORNIA
* * *
App. 72
ARGUMENT
I,
THE IMMUNITY OF BAY PROTECTION AND TOXIC
CLEANUP PROGRAM FEES IS NO LONGER AN
ISSUE IN THIS APPEAL, SINCE THOSE FEES HAVE
BEEN RENDERED UNENFORCEABLE UNDER STATE
LAW.
At this time the State of California is withdrawing
from this appeal the issue of whether the BPTCP fees are
included in the Clean Water Act’s waiver of sovereign
immunity. We recently discovered a defect in state law
which renders the issue moot.
The authority for assessing the BPTCP fees (former
Water Code § 13396.5), was repealed by its own terms on
January 1, 1998. Under California law, absent a savings
clause, a statute which has been repealed provides no
authority for collecting delinquent fees under these cir-
cumstances, where the fee claims have not been reduced
to a final judgment in favor of the State, and the State is
not seeking criminal penalties against the United States
for its refusal to pay fees. California Government Code
section 9606 provides:
“Any statute may be repealed at any time,
except when vested rights would be impaired.
Persons acting under any statute act in contem-
plation of this power of repeal.”
In California Employment Commission v. Arrow Mill Com-
pany (1941) 45 Cal.App.2d 668 [114 P.2d 727] the Court
held that “[t]he repeal, without a saving clause or provi-
sion, of a statute imposing a license tax or fee takes away
the right to collect an unpaid tax [or fee] which is due
App. 73
even though a suit to collect the tax is pending. By the
repeal of statutes which authorize the making of assess-
ments and the collection thereof, not only the remedy for
the collection of an assessment but also the lien or right is
taken away, although expenses have been incurred on the
faith of such assessment. And nothing less than a plain
exception of existing cases or claims from the operation
of a repealing act or continuance of the same system
. under new regulations would save such cases or
claims from the effect of the repeal.” Id. at 672.
Accordingly, the State is compelled to withdraw its
claim for BPTCP fees since that claim no longer exists
under state law. Notably, however, this withdrawal con-
cerns only BPTCP fees, and not WDR fees. The WDR fees
still present a ripe and compelling issue in this appeal,
and we seek this Court’s resolution of all of the issues of
this case as they apply to WDR fees.!
* * *
1 The State Water Resources Control Board continues to
seek legislation which would revive statutory authority for
seeking BPTCP fees. Should that legislative effort be successful,
the State reserves the right to bring a claim against the United
States for any future nonpayment of such BPTCP fees. However,
such a claim would be limited to fees for periods of time
subsequent to the future legislation which may revive the
authority for assessment of BPTCP fees. Compare Government
Code § 9608, which provides that determination or suspension
of any law creating a criminal offense does not constitute a bar to
the indictment and punishment of an act already committed in
violation of the law so terminated or suspended, unless the
intention to bar such indictment or information and punishment
is expressly declared by an applicable provision of law.
App. 74
NO. 99-15279
IN THE UNITED STATES COURT OF APPEALS |
FOR THE NINTH CIRCUIT
STATE OF CALIFORNIA, Acting
by and through the California
State Water Resources Control
Board,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA;
U.S. Department of Army, Corps
of Engineers,
Defendants-Appellees.
mee ee ee ee eee”
On Appeal from the United States District Court
for the Northern District of California
No. C 98-0792 WHO
The Honorable William H. Orrick, Jr., Judge
BRIEF FOR APPELLANT STATE OF CALIFORNIA
* * *
in conjunction with applications for waste discharge
requirements. Water Code section 13260. Complaint { 4,
ER 9.
Defendant U.S. Department of Army Corps of Engi-
neers (hereinafter, “Corps of Engineers”) is an agency of
the United States government, with an office in San Fran-
cisco, California. The Corps of Engineers and its agents
App. 75
and employees are charged with carrying out the require-
ments of federal law, including the Clean Water Act, 28
U.S.C. section 1251 et seq., and with complying with
applicable provisions of the California Water Code and
the California Code of Regulations. Moreover, the Corps
of Engineers has authority under the Clean Water Act to
approve dredge and fill projects. 33 U.S.C. section 1344
(permits for dredged or fill material). In addition, the
Corps of Engineers itself performs dredging projects in
California and is therefore subject to the requirements of
California law with respect to the control and abatement
of water pollution, including the requirement to pay rea-
sonable fees or service charges incident to its dredging
operations. Complaint 7 6, ER 9.
B. Waste Discharge Reports, Requirements and Fees
Pursuant to the Porter-Cologne Water Quality Con-
trol Act.
California Water Code section 13000 et seq. is known
as the Porter-Cologne Water Quality Control Act. Water
Code section 13020. Water Code section 13260 requires
that any person discharging waste, or proposing to dis-
charge waste, that could affect the quality of the waters of
the State, other than into a community sewer system,
shall file with the appropriate California regional water
quality board a report of the discharge. “Person” is defined
to include the United States, to the extent authorized by
federal law. Water Code section 13050(c). Section 13260
further provides that each person for whom waste dis-
charge requirements have b
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