Amicus Curiae Brief — North Dakota v. United States Army Corps of Engineers (No. 05-628)

3

Yet, the exemption is, by its terms, only applicable

when compliance with the CWA actually affects or impairs

navigation."

The Eighth Circuit's expansive interpretation of the

navigation exemption is unwarranted and concerns not

only Corps operations on the Missouri River, but also a

large number of other Corps operations nationwide.

Indeed, the CWA itself warrants a broad interpreta-

tion with narrowly drawn exceptions. The CWA is in-

tended to be comprehensive. Its stated objective is “to

restore and maintain the chemical, physical, and biological

integrity of the Nation's waters.” 33 U.S.C. § 1251(a). The

CWA establishes a national goal of attaining, wherever

possible, “water quality which provides for the protection

and propagation of fish, shellfish, and wildlife and pro-

vides for recreation in and on the water.” 33 U.S.C.

§ 1251(aX2). To achieve this goal, the CWA requires each

State to establish and implement water quality standards.

See 33 U.S.C. §§ 131K a) & (cX2 A). Water quality standards

are to protect the public health or welfare, enhance the

* All federal agencies (including Bureau of Reclamation, the entity

that operates the largest dams of all) must abide by the Act, but «

limited exemption applies if the authority of the Secretary of the Army

to conduct navigation is affected or impaired:

Each department, agency, or instrumentality of the executive, leg-

islative, and judicial branches of the Federal Government (1) hav-

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

activity resulting, or which may result, in the discharge or runoff

of pollutants . . . shal) be subject to, and comply with, all Federal,

State, interstate, and local requirements, administrative author-

ity, and process and sanctions respecting the control and abate-

ment of water pollution in the same manner, and to the same

extent as any nongovernmental entity . .

33 U.S.C. § 1323(a),; and:

This chapter shall not be construed as . . . (2) affecting or impair-

ing the authority of the Secretary of the Army (a) to maintain

navigation or. ...

33 U.S.C. § 1371(a).

4

quality of water, and serve the purposes of the CWA. 40

C.P.-R. § 131.3(i), 33 U.S.C. § 1313(cX(1).

The Amici assert that the navigation exception to the

CWA should be narrowly construed, especially when

considering the purpose and intent of the CWA and the

burden that the CWA places on the States to control and

abate pollution.

Ultimately, through the application of the CWA,

States are making real progress in protecting and restor-

ing the biological, physical, and chemical integrity of the

Nation’s waters impacted by dam pollution. States will be

unable to fulfill their congressional mandate to protect

water quality in the absence of authority to enforce the

EPA-approved water quality standards. States must have

the authority to enforce water quality standards on the

large federal facilities maintained by the Corps, particu-

larly when the Corps has not shown that such enforcement

will actually significantly impair or affect navigation.

ARGUMENT

The Eighth Circuit held that any claim or invocation

of navigation by the Corps will supersede the Corps’

responsibility to abide by the CWA. In doing so, the Eighth

Circuit failed to require the Corps to demonstrate an

actual significant affect on navigation as should be re-

quired before granting an exemption from the CWA.

The Clean Water Act is comprehensive and applies to

all “waters of the United States.” It delegates much of the

" The Court has also recently granted certiorari in two cases that

are different from the issue here but deal with the scope of “waters of

the United States” in light of Solid Waste Agency of Northern Cook

County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001). United

States v. Rapanos, 376 F.3d 629 (6th Cir. 2004), reh’g en banc denied,

(Nov. 2, 2004), cert. granted, 126 S.Ct. 414, 163 L.Ed.2d 316, 73 U.S.L.W.

3466 (U.S. Oct. 11, 2005) (No. 04-1034); Carabell v. U.S. Army Corps of

Engineers, 391 F.3d 704 (6th Cir. 2004), cert. granted, 126 S.Ct. 415, 163

L.Ed.2d 316, 73 U.S.L.W. 3632 (U.S. Oct. 11, 2005) (No. 04-1384).

(Continued on following page)

Nation’s pollution control responsibility to the States. The

policy objective is “to recognize, preserve and protect the

primary responsibilities and rights of States to prevent,

reduce and eliminate pollution.” 33 U.S.C. § 1251(b). Under

the Act, “pollution” is defined as encompassing all human

activities that alter the chemical, physical, and biological

integrity of water. 33 U.S.C. § 1362(19). Consistent with

this definition and in order to achieve the Act’s ambitious

policy, Congress authorized States to protect and restore

beneficial] uses of rivers and streams through the adoption

and achievement of water quality standards. 33 U.S.C.

§ 1313. These standards are a powerful tool for combating

pollution because they include not only numerical criteria,

but designated uses adopted pursuant to the Act’s goal to

provide for “the protection and propagation of fish, shellfish

and wildlife” and “for recreation in and on the water.” 33

U.S.C. § 1251(a\(2). Protection of these uses is at the core of

the Act’s purpose and goals. PUD No. 1 of .efferson County

v. Washington Dep't of Ecology, 511 U.S. 700, 716-719

(1994) (PUD No. 1).

Although the CWA is designed for comprehensive

protection of the Nation’s waters, the Corps, operator of

some of the largest dams in the United States, holds a

limited exemption for navigation. The exemption has been

interpreted too broadly by the Eighth Circuit Court of

Appeals.

Those disputes address the scope of the terms “waters of the United

States” and “navigable waters,” terms used throughout the CWA. Petitioners

argue in those cases that the terms are used in the CWA to limit the scope of

CWA to only larger “federal” waters. It is noteworthy that even former EPA

administrators who support an expansive federa! role assert that State

responsibilities are part of a cohesive state/federal regulatory effort over all

“waters of the United States.” See Amicus Brief of Former EPA Administra-

tors, 2006 WL 13920. The present matter creates an additional dynamic. The

Eighth Circuit Court of Appeals held that the Army Corps of Engineers was

entitled to escape water quality regulations because such regulation could

“affect navigation,” even though an alternative to correct the water quality

problem would exist that would not affect navigation. If the Eighth Circuit's

broad interpretation is allowed to stand, Corps use of any “navigable”

waterway would arguably evade state regulation under the CWA.

6

I. THE ARMY CORPS OF ENGINEERS OPER-

ATES MANY LARGE DAMS.

The federal government operates the dams with the

largest reservoirs in the United States." The two largest

man-made reservoirs are Lake Mead (Hoover Dam) and

Lake Powell (Glen Canyon Dam) operated by the Bureau

of Reclamation. Jd. The next three are part of the Missouri

River main stem system operated by the Army Corps of

Engineers. Lake Oahe (Oahe Dam) and Lake Sakakawea

(Garrison Dam) in North and South Dakota are the third

and fourth largest reservoirs. Id. The fifth largest is Fort

Peck Lake in Montana.

These three Corps dams on the Missouri River are,

along with three other large Corps dams in South Dakota,

operated as multipurpose projects. The Corps’ Missouri River

holdings are “an integrated system providing for flood

control, navigation, irrigation, hydropower, water supply,

water quality, recreation, and fish and wildlife.” March 2004,

Record of Decision, Missouri River Master Water Control

Manual Review and Update, http//www.nwd-mr.usace.army.

The Missouri River reservoirs are only part of the Corps’

holdings. The Corps “has built an intracoastal and inland

network of 12,000 miles of commercial navigation channels

and over 200 locks and dams for navigation purposes.” The

Corps operates 368 reservoirs for flood control. Jd. Many of

these installations are multipurpose facilities. The Corps

operates 75 hydropower plants and is the “largest operator of

hydroelectric power plants in the United States.” http//www.

corpsresults.us/pdfs/hydropower. pdf.

* United States Society of Dams, http//www2.privatei com/-uscold/

uscold_s.html.

* http:/Awww.usace army.mil/commander.htm!].

7

Il. DAMS, PARTICULARLY HYDROPOWER DAMS,

PRESENT SERIOUS WATER QUALITY PROB-

LEMS.

There are abundant scientific studies on the variety of

water quality impacts arising from impoundment of water

behind dams and operation of hydroelectric facilities.’ The

type and degree of impact varies depending upon the size

and type of dam, its manner of operation, and the nature of

the river or stream system."

When free-flowing rivers are impounded behind

hydropower dams, they often stratify into layers of

warmer waters on top and colder, oxygen-deprived waters

below, with neither temperature reflecting the natural

condition of the river system.” The water temperature and

quantity of dissolved oxygen can violate water quality

standards. Violation of water quality standards is no mere

technical concern. Temperature deviations alone can affect

the mortality of fish and change the population of fish

species above and below the dams. Further, the amount of

oxygen in the water column can have a dramatic impact on

the kinds of organisms that can survive below the dam.”

Varying temperatures and oxygen levels in the reservoir also

affect the water chemistry of the entire system and can cause

” See, for example, the references listed by the U.S. Environmental

Protection Agency in EPA's Guidance Specifying Management Measures

for Sources of Nonpoint Pollution in Coastal Waters, Chapter 6, Section

V1.B., available at http:/www.epa.gov/nps/MMGI/Chapter6/ch6-6 html.

“ See generally Collier, M., RH. Webb and J.C. Schmidt, US.

Geological Survey, Dams and Rivers: Primer on the Downstream Effects

of Dams, USGS Circular 1126 (1996), available at http://pubs.er.usgs.

gov/pubs/cir/cir 1126 (describing the effect of temperature on fish below

the Flaming Gorge dam on the Green River) (USGS Primer).

* Peterson, MJ. et al, U.S. Department of Energy, Regulatory Ap-

proaches for Addressing Dissolved Oxygen Concerns at Hydropower Facilities,

DOED-11071 (Mar. 2003) at 1-5, available at hitto/hydropowerid

doe. gov/turbines/pdfs/doeid-11071; USGS Primer, at 58.

" Id.

toxic chemicals such as hydrogen sulfide and ammonia to be

released in harmful concentrations.”

Another water chemistry impact of hydropower dams

is the entrainment or supersaturation of atmospheric

gases, including nitrogen, as water is spilled over high

dams. These gases are taken into the circulatory systems

of fish. As the fish move to different levels of the river, the

gases come out of solution, forming bubbles that can cause

a potentially lethal effect similar to the “bends” in scuba

divers.”

Also, evaporation and runoff into reservoirs affects

reservoir water quality by increasing salinity.”

Dams cause changes in water movement and may result

in increased suspension and deposition of soil in reservoirs.

Again, this is no mere technicality. Impoundment of soil-

laden water in reservoirs may result in changes to the flow

regimes of rivers with significant impacts to downstream

aquatic ecosystems.” In some river systems, the releases

from dams of low sediment water may cause channel inci-

sion, changing riverbed composition and riparian habitat.”

Although effects vary depending on the dam, sediment will

build up behind dams and/or cause major impacts on

downstream estuaries and wetlands.”

“ Regulatory Approaches, at 1.

“ National Research Council, National Academy of Sciences,

Upstream. Salmon and Society in the Pacific Northwest (1996), at 229, available

at hittp//books.nap.edu/books/030905325(V/htmlindex htm] (Upstream), Aber-

nathy, C.S., B.G. Amidan, U.S. Department of Energy, Laboratory

Studies of the Effects of Pressure and Dissolved Gas Supersaturation on

Turbine- Passed Fish, DOE/ID-10853 (Mar. 2001) at 2.3-2.5, available at

http//hydropower.id.doe.gov/turbines/pdfs/doeid- 10853 pdf.

” USGS Primer, at 43.

” See USGS Primer, generally.

“ USGS Primer, at 38-45 (heavy downstream erosion of the

Chattahoochee River below Buford Dam as a result of dam releases).

” Upstream, at 234-35 (noting the loss of over 20,000 acres of tidal

swamps, 10,000 acres of tidal marshes, and 3,000 acres of tidal flats in

(Continued on following page)

9

Collectively, the water quality harm attributable to

dams, and in particular, hydropower dams, covers the full

range of water quality impacts that the Act defines as

“pollution.” It was this range of impacts that Congress

authorized States to address.

While the Corps operates hydropower dams, it also

claims to be exempt from the CWA because nagivation is

involved. The Corps dams operate for multiple purposes and

ought to be regulated according to the actual type of project

A. Federal and State Agencies Have Con-

cluded That Dams Cause Water Pollution.

1. Environmental Protection Agency and

State Water Pollution Control Agencies.

The EPA and State water pollution control agencies

have repeatedly evaluated the impacts of dams and

determined that dams impact water quality.

In 1972 Congress directed EPA to develop guidelines

and methods to control pollution from “changes in the

movement, flow, or circulation of any navigable waters or

ground waters, including changes caused by the construc-

tion of dams.” 33 U.S.C. §1314(f)(1) & (2) part (F). In

response, EPA published The Control of Pollution Caused

By Hydrographic Modifications (1973). EPA described

water quality problems caused by dams including lowered

dissolved oxygen levels and other impacts. Jd.

Again, in 1987 Congress required EPA to conduct a study

of the water quality impacts of dams. Pub. L. No. 100-4, Title

V, $524, 101 Stat. 89 (1987). EPA provided an updated

account of the adverse water quality impacts from stratifica-

tion of impounded water including “low hypolimnetic dis-

solved oxygen, increased iron and manganese, eutrophication,

the past century from the Columbia River estuary as a result of the

accumulation of sediment behind dams).

10

hydrogen sulfide, sediment movement, flow regulation,

thermal] changes, and reaeration denial.” U.S. Environmental

Protection Agency, Report to Congress: Dam Water Quality

Study, EPA 506/2-89/002 (Mar. 1989) at v. EPA concludes that

biological characteristics of the free-flowing aquatic ecosys-

tem.” Jd. at VII-2.

States report similar results. State agencies are

required to submit plans to the EPA to address “Total

Maximum Daily Loads” (TMDLs). In these reports, States

evaluate sources and levels of pollution in water quality

impaired waters. 33 U.S.C. § 1313(d). The reports analyze

all waters, including streams with hydroelectric dams.

A recent TMDL report in the State of Washington

concludes that seasonal violations of the water quality

standard for dissolved gas are directly attributable to

hydroelectric projects.” In a related TMDL report, hydro-

power has been identified as the major cause of water

temperature standard violations in the Columbia/Snake

River basin.”

The EPA has reviewed data from the States of New

Hampshire and Maine ana determined that the “presence

of many dams” is a major cause of water quality impair-

ment (particularly dissolved oxygen) in the Salmon Falls

River watershed.” The EPA notes its approval of Maine's

conclusion that changes to dam operations are necessary

*” US. Environmental Protection Agency, Washington Department of

Ecology and Spokane Tribe of Indians, Total Maximum Daily Load for

Total Dissolved Gas in the Mid Columbia River and Lake Roosevelt (June

2004) at x-xi, avadable at http ‘www ecy wa gow/pubs/0403002 pdf.

" US. Eavironmental Protection Agency, EPA Region 10 Fact Sheet

No. 6, Columbia/Snake River Problem Assessment for Ternperature, Fall

2001, avaiable at http//yosemite.epa.gov/R10/WATER.NSF/ &40a5de5d0a8d

14 188256501007 15a.27/15ef 780a 769 ledefB8254a0e800797 e05/SFILE/ATT LE

WLU*s/col-snake%20TMDL © 20F act®20Sheet%20% 236 pdf.

* U.S. Environmental Protection Agency, Letter Notification of

Approval of Salmon Falls River TMDLs, November 22, 1999, at 6,

available at http-//www epa gov/region 1/eco/tmdl/ssets/pdfs/me/salmon

fallsriver pdf.

11

in order to achieve water quality standards for dissolved

oxygen.

B. Federal and State Courts Have Concluded

That Dams Cause Water Pollution.

This Court’s decision in PUD No. 1 recognizes the

impacts of dams on water quality. That case addressed a

hydropower dam proposed by a city and local utility district.

The Court noted that a “sufficient lowering of the water

quantity in a body of water could destroy all of its designated

uses, be it for drinking water, recreation, navigation or, as

here, as a fishery.” Jd. at 719. The Court described Congress's

“broad conception of pollution” as evincing a concern with the

“physical and biological integrity of water.” Jd. Further, the

Court cited Section 304(f) of the Act, 33 U.S.C. § 1314(f), as

an express recognition by Congress that “water ‘pollution’

may result from ‘changes in the movement, flow, or circula-

tion of any navigable waters . . . including changes caused by

the construction of dams.’” Jd. at 720.

Also, after reviewing considerable evidence and scien-

tific testimony in National Wildlife Federation v. Gorsuch,

693 F.2d 156, 161 (D.C. Cir. 1982), the court of appeals

concluded that dams “cause a variety of interrelated water

quality problems.” While dealing with a different CWA

issue, the Gorsuch decision provides a thorough description

of the water quality impacts of dams. The D.C. Circuit

summarized impacts including: (1) low dissolved oxygen; (2)

dissolved minerals and nutrients; (3) temperature changes;

(4) sediment; (5) supersaturation (dissolved gas); and (6) a

variety of other water quality impacts including indirect

negative impacts on groundwater and reductions in stream

flow and waste assimilation capacity. 693 F.2d at 161-164.”

* Id. at 7, 15.

™ The Gorsuch case dealt with an issue not presented in this case:

whether dams require a permit under 33 U.S.C. § 1342. In Gorsuch, the D.C.

Circuit deferred to EPA's decision not to require such a permit but expressly

left open the question of whether water pollution from the dams could

be addressed by states. 693 F.2d at 182-183.

12

Consistent with Gorsuch, other circuits have at least

implicitly acknowledged the water quality impact of dams.

See, e.g., State of Missouri ex rel. Ashcroft v. Department of

the Army, 672 F.2d 1297, 1304 (8th Cir. 1982) (not question-

ing that the operation of the dam caused soil erosion and

reduction of oxygen); United States ex rel. Tennessee Valley

Authority v. Tennessee Water Quality Control Board, 717 F.2d

992, 1000 (6th Cir. 1983) (acknowledging that dams might be

subject to state or local regulation as nonpoint sources of

pollution); National Wildlife Federation v. Consumers Power

Co., 862 F.2d 580, 586 (6th Cir. 1988) (noting that “any

resulting pollution in the form of entrained fish is, as in

Gorsuch, an inherent result of dam operation”).

C. The Corps Does Not Dispute That Its

Dams Violate Water Quality Standards

and Affect Fisheries.

The hydropower facilities at issue in this proceeding

have violated water quality standards in North Dakota.

Those standards provide that Lake Sakakawea is a “cold

water fishery” requiring the water to support the growth of

salmonid fishes and associated water life. In re Operation of

the Missouri River System Litigation, 418 F.3d at 917. In

2002, Sakakawea suffered from a loss of 90 percent of its

smelt biomass due to a decline in cold water habitat. Affida-

vit of Jeffrey Hendrickson, App. 3. Smelt are forage fish for

walleye and other game fish. Jd. Recognizing that further

reductions of cold-water habitat would decimate fisheries on

Sakakawea, North Dakota filed suit in 2003. Petitioner's

App. 23. North Dakota asserted that reductions of the

volume of cold-water habitat in the lake would violate water

quality standards and would continue to impair a viable

cold-water fishery system. Jd.; see also Affidavit of Mike

Sauer, Petitioner’s App. 141-155.

In response, the Corps acknowledged that its then-

existing operationa) manual was designed in such a way

as to affect the water quality standards and the cold-water

fisheries: “it is reasonable to believe that under the Master

Manual criteria, that the cold-water fishery volume would

13

go to zero.” Preliminary Injunction Testimony of Lawrence

Cieslik, Chief of Operations for the Missouri River, App. 8.

The Corps has since revised its operating manual in other

ways, but is not willing to accommodate or comply with

State water quality standards.

The Corps also recognizes that dissolved oxygen and

water quality problems have occurred below Corps dams in

southeastern States and that dams cause adverse water

quality effects. http//Awww.corpsresults.us/pdfs/hydropower. pdf.

Yet, the Corps (the biggest hydropower producer in the

Nation) claims to be exempt from water quality standards if

any navigation occurs on the stream whatsoever.

Ill, THE CLEAN WATER ACT AUTHORIZES STATES

TO PROTECT WATER FROM POLLUTION BY

DAMS.

A. The CWA Was Intended To Be Comprehensive.

The objective of the CWA is “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). In order to achieve

these ends, the Act has two complementary systems. One

system is the prohibition of discharges of pollutants. This

system is the National Pollution Discharge Elimination

System, or NPDES, which requires dischargers to obtain

permits that place limits on the type and quantity of

pollutants that can be released into the Nation's waters.

33 U.S.C. § 1342. This system is not at issue in this case.

The other system, and the one relevant to the case

before this Court, is the system of water quality standards.

The CWA establishes a national goal of attaining, wherever

possible, “water quality which provides for the protection

and propagation of fish, shellfish, and wildlife and provides

for recreation in and on the water.” 33 U.S.C. § 1251(aX2).

The CWA requires each State to establish and implement

water quality standards. See 33 U.S.C. §$§1313%a) &

(c)(2(A). Water quality standards protect the public health

or welfare, enhance the quality of water and serve the

14

purposes of the Act. 40 C.F.R. § 131.3(i). Their purpose is

expressed in federa] regulation as:

A water quality standard defines the water qual-

ity goals of a water body, or portion thereof, by

designating the use or uses to be made of the wa-

ter and by setting criteria necessary to protect

the uses. States adopt water quality standards to

protect public health or welfare, enhance the

quality of water and serve the purposes of the

Clean Water Act (the Act). “Serve the purposes of

the Act” (as defined in sections 101(a)(2) and

303(c) of the Act) means that water quality stan-

dards should, wherever attainable, provide water

quality for the protection and propagation of fish,

shellfish and wildlife and for recreation in and on

the water and take into consideration their use

and value of public water supplies, propagation

of fish, shellfish, and wildlife, recreation in and

on the water, and agricultural, industrial, and

Such standards serve the dual purposes of estab-

lishing the water quality goals for a specific wa-

ter body and serve as the regulatory basis for the

establishment of water-quality-based treatment

controls and strategies beyond the technology-

based levels of treatment required by sections

301(b) and 306 of the Act.

40 C.F-R. § 131.2.

State water quality standards must contain several

distinct elements. 40 C.F.R. § 131.6. The State must

establish “designated uses” of the State’s waters, such as

fishing, swimming, and/or protection of aquatic life. 33

U.S.C. § 1313(cX2X A); 40 C.F_R. § 131.6(a). The State must

develop specific water quality “criteria” based on scientific

rationale that are designed to preserve and protect the

designated uses. 40 C.F.R. §§ 131.6(a), 131.11(aX1). Water

quality criteria may be expressed in numeric terms or in

narrative terms (such as, “temperature must be less than

or equal to 65 degrees Fahrenheit” or “waters shall be free

of visible garbage,” respectively). The State must develop

15

an “antidegradation” policy designed to prevent water

quality from deteriorating. 40 C.F.R. §§ 131.6(d), 131.12.

Each State’s water quality standards must be evaluated

and revised to protect designated uses at least every three

years. 33 U.S.C. § 1313(c\(1).”

The CWA further requires that States identify and

§ 1313(d). Subsection (d) requires States to account for all

of the sources of pollution in any such impaired waters

through TMDLs, and subsection (e) requires States to

plans for addressing those sources. 33 U.S.C.

§ 1313(d). To develop effective plans, States must have

authority to address sources of pollution including the

water quality impacts of hydropower dams.

By providing for State regulation of water quality

standards and through State TMDL planning, Congress

assigned the States significant pollution control authority.

Indeed, Congress not only recognized the “responsibilities

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

tion,” it stated that federal policy is to support State efforts

eee eee eee services and financial aid. 33

S.C. § 1251(b), 33 U.S.C. § 1256(a) (authorizing grants to

EPA-required provisions, including classification of waters. ARSD

74:51:03:06 and ARSD 74:51:03:02(2) classify Missouri River reservoirs

as “coldwater permanent fish propagation waters.” This standard is

similar to the one used in North Dakota for the upstream reach of the

Missouri River at issue in the proceeding below.

16

Recognizing State authority to enforce water quality

standards is essential to fulfilling the goals of the CWA: the

protection of the full array of uses by the public, including

recreation in and on the water and the propagation of fish,

shellfish, and wildlife. 33 U.S.C. § 1251(aX2); 40 C.FR.

§ 131.10. With the Act’s heavy emphasis on controlling

“pollution,” it would be remarkable if Congress had intended

to generally exempt a major source of pollution such as dams

operated by the Corps from State water quality standards

enforcement.

In PUD No. 1, this Court recognized that although

water bodies are protected from pollution by discharge

permits containing specific requirements for specific types

of effluent, water quality standards are important because

they measure the health of the stream itself and are a

fallback for determining whether the water is becoming

polluted. Jd. at 704. The Court held that the “state water

quality standards provide a ‘supplementary basis ... so

that numerous point sources, despite individual compliance

with effluent limitations, may be further regulated to pre-

vent water quality from falling below acceptable levels.’” /d.

at 704 (citing EPA v. California ex rel. State Water Resources

Control Bd., 426 U.S. 200, 205 n.12 (1976)). This fallback or

safeguard role is critically important in situations where

federal facilities (like Corps’ reservoirs) do not hold specific

discharge permits for specific types of effluent.

Against this background, the specific issue here is the

tension in the CWA between a requirement that the

federal agencies must abide by the Act (33 U.S.C.

§ 1323(a)) and a more limited exemption for navigation. 33

U.S.C. § 1371(a).

The decision of the Eighth Circuit resolved that

tension as follows:

The CWA’s preservation of sovereign immunity

where the Corps’ authority to maintain navigation

would be affected and the principles of preemption

preclude the enforcement of North Dakota’s state

water quality standards against the Corps’ releases

of water from Lake Sakakawea.

17

In re Operation of the Missouri River System Litigation,

418 F.3d at 920.

Limiting State authority by exempting all federal

dams (including hydropower dams) operated by the Corps

whenever the Corps merely asserts navigation is affected

(as the Eighth Circuit has done) would remove an impor-

tant tool from the CWA and would prevent States from

protecting the broad array of uses designated in State

water quality standards for the rivers and streams.

B. Based on Legislative History, the CWA

Was Intended to Include Comprehensive

Regulation of Federal Facilities.

The congressional history also makes it apparent that

the Congress intended to include federal facilities in several

facets of CWA regulation. In 1977 Congress amended the

CWA, thereby producing a sea change in the way that federal

facilities are to be viewed under the CWA. As one example,

States obtained authority to impose qualifications on federal

permits in 1977. Previously, State authority to impose State

conditions on federal permits (“401 conditions”) was limited

to federal permits issued to nonfedera) entities. Pub. L. No.

92-500, § 401. The States were constrained by a provision in

the CWA that prohibited States from imposing such condi-

tions on federa) licenses if an agency of the federal govern-

ment was itself the permit applicant. It stated that “no

Federal agency shall be deemed to be an applicant for the

purposes of this subsection.” Pub. L. No. 92-500, § 401(aX6),

App. 12. Importantly, in 1977 the federal exemption was

repealed in Pub. L. No. 95-217, § 61(b), App. 16. Due to the

1977 repeal, a federal agency is now subject to State qualifi-

cations when that agency obtains a federal license.”

* This applies, of course, only to situations where federal permits

are actually required Here, the federal hydropower plants involved are

not subject to FERC permitting and 401 qualifications are not imposed on

such operations for that reason. In other words, the water quality

standards cannot be enforced under the heavy hammer imposed by

FERC permitting Still, that situation is caused by FERC authorization,

(Continued on following page)

18

The 1977 amendments also make it clear that Congress

intended States to use Section 401 authority to prohibit not

only actual pollution events (Section 301) but also to enforce

State water quality standards (Section 303). Pub. L. No. 95-

217, § 64, App. 16. Thus, Congress expressly included State

water quality standards in the group of laws that are enforce-

able by States as qualifications on federal permits. Jd. Indeed,

the general inclusion of water quality standards in Section

401 permitting (and not just State control over di of

pollutants) is an issue being considered by this Court.” S_D.

Warren Company v. Board of Environmental Protection, 2005

Me. 27, 868 A.2d 210, cert. granted in part, 126 S.Ct. 415, 163

L.Ed.2d 316 (U.S. Oct. 11, 2005) (No. 04-1527).

Moreover, the 1977 amendments waived federal

sovereign immunity violations of the CWA by any federal

agency. Pub. L. No. 95-217, § 61(a), App. 14-16. While the

Congress could have restricted the waiver to particular

provisions of the CWA (such as, for example, Section 401),

it did not do so. The waiver is applied to direct enforce-

ment against federal facilities, not just for the “401”

situation addressed above.

As seen, when Congress enacted the 1977 amend-

ments to the CWA, it linked the explicit waiver of federal

immunity from State water quality standard enforcement

(adding water quality standards to Section 313 when it

stated, “This subsection shall apply notwithstanding any

immunity of such agencies . . . under any law or rule of law.”)

with the removal of the exemption of federal agencies from

Section 401 licensing requirements. See Pub. L. No. 95-

217, $ 6l(a).

not the CWA. \. Uncompahgre Valley Water Users Ass'n v FE.RC., 785 F.2d

269, 274 (10th Cir. 1986). Indeed, the lack of FERC licensing and relicensing

(and corresponding lack of 401 consideration) demonstrate that it is all the

more important that states take federa) agencies directly to task in federal

court since they cannot rely on FERC to enforce the CWA when it comes to

” S_D. Warren is a nonfederal facility; the issue therefore arises in

the context of an FERC proceeding.

19

C. States Can Make Real Improvements in

Water Quality by Addressing the Pollution

From Dams.

The issue presented is not theoretical. States can

make real improvements to water quality through regulat-

ing dams. The EPA concluded, in its 1989 report to Congress,

that impacts can be mitigated through a mix of physical and

operational measures and structural changes to dams. The

EPA suggests a range of measures that can be taken, ranging

from selective withdrawal of reservoir water, to changes in

the flow regime, to altering the structure of the dam to

change the depth or manner of withdrawal. Report to Con-

gress: Dam Water Quality Study, at v-vi.

Further support for the idea that States can make a

difference through the regulation of dams can be found in

the USGS Primer on dams in which USGS concludes that

the negative ecological impacts of dams can be better

managed through the use of scientific knowledge. USGS

Primer, at 1-9.

The United States Department of Energy suggests

that, after adequate study, a “combination of mitigation

techniques, including structural, operational, and regula-

tory approaches” may be the most effective way to address

dissolved oxygen problems at hydropower plants. Regula-

tory Approaches, DOE at 22, 23. See also Hayes, D.F. et al.,

Enhancing Water Quality In Hydropower System Opera-

tions, 34(3) Water Resources Research, at 471-483 (Mar.

1998) (concluding that operational changes in dam pro-

jects can increase dissolved oxygen levels without substan-

tially impacting project purposes).

EPA and State water pollution control agencies are

increasingly seeking to evaluate the potential for improving

water quality through innovative regulation of dams. Re-

searchers have compiled a list of fifty-five hydropower projects

in the Mississippi River basin associated with water quality

impaired waters. John Crossman and Associates, Evaluation

of Hydropower Projects and Identification of Potential

Opportunities for Pollutant Trading (2001), available at

20

http://www.epa.gov/msbasin/pdf/hydropower_final.pdf. This

report, prepared on behalf of EPA, concluded that:

[T)]hese projects have the potential to make a

significant contribution to national water quality

objectives if technological advances to improve

water quality in reservoirs, downstream tailwa-

ters, and hydro-turbine releases are employed in

a watershed based trading program.

Td. at 1.

By using the State water quality standards as ap-

proved by the EPA, States can lead dam operators to make

meaningful improvements in water quality. Congress

clearly intended that States have this authority, and

promised in the CWA that government would use its

authority to prevent, reduce, and eliminate pollution.

States must have suthority to enforce water quality

standards over facilities operated by the Corps in order to

fulfill this promise. Further, Congress did not intend that

the mere potential to affect navigation, however insignifi-

cant, would strip States of such authority.

CONCLUSION

The Court should grant North Dakota's petition for

certiorari.

Respectfully submitted,

LAWRENCE E. LONG*

Attorney General

State of South Dakota

DIANE BEST

Assistant Attorney General

1302 E. Highway 14, Suite 1

Pierre, SD 57501-8501

Telephone: (605) 773-3215

*Counsel of Record

App. 1

STATE OF NORTH DAKOTA IN DISTRICT COURT

COUNTY OF MCLEAN SOUTH CENTRAL

JUDICIAL DISTRICT

State of North Dakota through

the North Dakota Department

of Health, an Agency of the

State of North Dakote, John

Hoeven, Governor, and Wayne

Stenehjem, North Dakota

Attorney General, ex rel. State

of North Dakota,

Plaintiffs,

v.

The United States Army Corps

of Engineers, a Federal Agency,

and General David A. Fastabend,

Commander, NW Division,

Portland, Oregon, United States

Army Corps of Engineers, and

LT. Colonel Kurt F. Ubbelohde,

District Engineer, Omaha

District.

i ee ee

Defendants.

STATE OF NORTH DAKOTA )

)ss

COUNTY OF BURLEIGH )

Jeffrey Hendrickson, being duly sworn, states under oath:

1. I swear and affirm upon penalty of perjury that

the statements made in this affidavit are true and correct.

App. 2

2. I am employed by the North Dakota Game and

Fish Department as the Central Fisheries District Super-

visor. I conduct and oversee fisheries management and

research in Central North Dakota, including the Missouri

River System. I am a member of the American Fisheries

Society (National), the Dakota Chapter of the American

Fisheries Society, and represent North Dakota on the

Walleye Technical Committee of the North Central Divi-

sion of the American Fisheries Society. I have conducted

fisheries research and management activities on the

Missouri River System since January, 1991. I have au-

thored or co-authored numerous internal reports and one

peer reviewed paper regarding all aspects of fisheries

research and management on Lakes Sakakawea and

Oahe, and the Yellowstone and Missouri rivers. For the

past twelve years, I've contributed fisheries information

and recommendations to the Missouri River Natural

Resources Committee (MRNRC).

3. Lake Sakakawea is North Dakota’s number one

fishery, accounting for approximately 2 million angler

hours of fishing and more than $23 million of angler

expenditures annually. Approximately 98% of anglers

fishing Lake Sakakawea target walleye or salmon.

4. The smelt population in Lake Sakakawea is very

important to the health of the sport fishery and regional

economy and the collapse of this critical forage base can

have devastating effects. Though a serious collapse of the

smelt population has not been observed in Lake Sa-

kakawea, the impacts of a crash have been observed in the

next downstream reservoir, Lake Oahe. Driven by the

smelt population collapse during the mid to late 1990s,

fishing effort in Lake Oahe, South Dakota decreased 68%

App. 3

in the subsequent years resulting in a reduction in angler

expenditures of $16 million.

5. Lake Sakakawea’s fishery shows evidence of

stress when the late summer volume of coldwater habitat

falls below 800,000 acre-feet (generally around an eleva-

tion of 1830 feet mean sea level). This stress is caused by

shrinking coldwater habitat and is manifested in the

fishery through poor growth and condition of walleye and

chinook salmon as well as other gamefish. There was a

90% decline in Lake Sakakawea’s smelt biomass estimate

from 2001 to 2002. Late summer coldwater habitat de-

creased from slightly more than 800,000 acre-feet in 2001

to less than 200,000 acre-feet in 2002. This has resulted in

a substantial reduction in the condition of walleye and

other sport fish in Lake Sakakawea.

6. When the volume of coldwater habitat in late

summer falls below 200,000 acre-feet (approximately 1825

feet mean sea level), the likelihood of a smelt dieoff in-

creases dramatically. A smelt dieoff occurred in Lake

Sakakawea in late summer 1990, when the coldwater

habitat was estimated at less than 100,000 acre-feet (1821

feet mean sea level).

7. Prior to the introduction of smelt as a forage fish,

the condition and growth of walleye was very poor in Lake

Sakakawea, resulting in high natural mortality and low

abundances of walleye. Since smelt became well estab-

lished by 1978, they have composed the vast majority of

forage for walleye in Lake Sakakawea. Condition and

growth improved, and natural mortality decreased, result-

ing in Lake Sakakawea becoming one of the premier

walleye fisheries in the United States. The fishery is well

known for both the size of walleye caught as well as the

App. 4

numbers of walleye caught. As this fishery has evolved, so

has its desirability. The number of walleye fishing tour-

naments doubled from the mid 1980's to 2001. The number

of tournaments decreased to 20 in 2002 due to low water

levels.

8. The following is an example of how smelt abun-

dance supports the walleye fishery in Lake Sakakawea.

Low water levels and limited coldwater habitat in 1990

caused a smelt die-off. Anglers harvested 0.9 pounds of

walleye per angler-day from Lake Sakakawea in 1991 and

1994. The smelt population began to rebound after water

levels and coldwater habitat increased in 1994. After a few

years of abundant coldwater habitat and good smelt

natural reproduction, the walleye harvest improved

substantially to 2.7 pounds/angler-day in 1997 and 3.5

pounds/day in 2000. Angler use was also reduced by 25%

during the low water year in 1991.

9. The condition of walleye in Lake Sakakawea has

been declining since 2000 due to the decline in the smelt

population. If these declines in condition continue, natural

mortality will increase for walleye. Increased natural

mortality will result in lower abundance of walleye and

subsequent reductions in angler use.

10. Since 1995, all of North Dakota’s and some of

other state’s walleye eggs needed (nearly 2900 quarts) to

meet stocking requests for hundreds of water bodies

originated from Lake Sakakawea. Maintaining quality

walleye for spring egg taking operations is critical to

sustaining walleye fisheries throughout North Dakota.

Presently, this is especially true as other historic lakes for

walleye eggs in North Dakota have either literally dried

App. 5

up (Lake Oahe, North Dakota) or have flooded out (Devils

Lake).

Dated this 17th day of April, 2003.

/s/ Jeffrey Hendrickson

Jeffrey Hendrickson

Subscribed and sworn to

before me this 17 day of

April, 2003.

/s/ Jaime Pochant

Notary Public

My Commission

Expires 7-22-04

App. 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION

STATE OF NORTH DAKOTA,

through the North Dakota

Department of Health, an Agency

of the State of North Dakota;

JOHN HOEVEN, Governor;

WAYNE STENEHJEM, North

Dakota Attorney General, ex Rel.,

State of North Dakota,

Plaintiffs,

vs.

UNITED STATES ARMY

CORPS OF ENGINEERS;

DAVID A. FASTABEND, General

Commander, Northwest Division,

Portland, Oregon, United States

Army Corps of Engineers;

KURT F. UBBELOHDE, Lt.

Colonel, District Engineer,

Omaha District.

Defendants.

STATE OF NEBRASKA,

Intervenor.

STATE OF SOUTH DAKOTA,

Intervenor.

CIVIL NO.

el

App. 7

Taken at

United States Courthouse

Bismarck, North Dakota

June 4, 2003

BEFORE THE HONORABLE DANIEL L. HOVLAND -

CHIEF JUDGE

(216) LAWRENCE J. CTESLIK,

being first duly sworn, was examined and testified as

follows:

DIRECT EXAMINATION

BY MR. DISHEROON:

Q. State your name for the record, please, Mr.

Cieslik.

A. My name is Lawrence Joseph Cieslik.

Q. And your position, please?

A. I’m the Chief of the Water Management Division

for the Corps of Engineers, Northwestern Division, and my

duties include the operation of the Missouri River main-

stem system.

Q. How long have you held that position?

A. Ive been Chief of the Water Management Divi-

sion since 1997, and prior to that I was the project man-

ager for the Master Manual review and update.

App. 8

Q. And are you continuing to supervise the prepara-

tion of a new Master Manual process?

A. That is correct.

e e *

(224) Q. I want to ask you one or two questions

about the Chinook fishery in Lake Sakakawee. And we

have had testimony that these fisheries were — the smelt

were put in by North Dakota in "71 and the Chinook in ’76.

Under the Master Manual as it existed at that time,

can you teil us whether or not it would have indicated

difficulties at certain times with maintaining the fisheries

for these two species?

A. Well, the Master Manual drought criteria as it

currently stands would allow Lake Sakakawea to drop to

1775 feet above main sea level. Right now we're at 23,

basically. So we're talking about 48 more feet.

Now, I'm not a fisheries expert, but looking at the

data that has been presented for the cold-water fishery —

MR. WITHAM: Objection. Speculation.

THE COURT: Overruled.

MR. DISHEROON: Go ahead.

THE WITNESS: — I would assume that it’s

reasonable to believe that under the Master Manual [225]

criteria, that the cold-water fishery volume would go to

zero, sometime between where we're at now and down to

1775.

App. 9

P.L. 92-600 LAWS OF 92nd CONG. - 2nd SESS.

(1972)

“TITLE [IV — PERMITS AND LICENSES

“CERTIFICATION

“Sec. 401.(aX1) Any applicant for a Federal license or

permit to conduct any activity including, but not limited

to, the construction or operation of facilities, which may

result in any discharge into the navigable waters, shall

provide the licensing or permitting agency a certification

from the State in which the discharge originates or will

originate, or, if appropriate, from the interstate water

pollution control agency having jurisdiction over the

navigable waters at the point where the discharge origi-

nates or will originate, that any such discharge will

comply with the applicable provisions of sections 301, 302,

306, and 307 of this Act. In the case of any such activity

for which there is not an applicable effluent limitation or

other limitation under sections 301(b) and 302, and there

is not an applicable standard under sections 306 and 307,

the State shall so certify, except that any such certification

shall not be deemed to satisfy section 511(c) of this Act.

Such State or interstate agency shall establish procedures

for public notice in the case of all applications for certifica-

tion by it and, to the extent it deems appropriate, proce-

dures for public hearings in connection with specific

applications. In any case where a State or interstate

agency has no authority to give such a certification, such

certification shall be from the Administrator. If the State,

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

fails or refuses to act on a request for certification, within

a reasonable period of time (which shall not exceed one

year) after receipt of such request, the certification re-

quirements of this subsection shal] be waived with respect

App. 10

to such Federal application. No license or permit shall be

granted until the certification required by this section has

been obtained or has been waived as provided in the

preceding sentence. No license or permit shall be granted

if certification has been denied by the State, interstate

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

“(2) Upon receipt of such application and certifica-

tion the licensing or permitting agency shall immediately

notify the Administrator of such application and certifica-

tion. Whenever such a discharge may affect, as determined

by the Administrator, the quality of the waters of any

other State, the Administrator within thirty days of the

date of notice of application for such Federal license or

permit shall so notify such other State, the licensing or

permitting agency, and the applicant. If, within sixty days

after receipt of such notification, such other State deter-

mines that such discharge wiil affect the quality of its

waters so as to violate any water quality requirement in

such State, and within such sixty-day period notifies the

Administrator and the licensing or permitting agency in

writing of its objection to the issuance of such license or

permit and requests a public hearing on such objection,

the licensing or permitting agency shall hold such a

hearing. The Administrator shall at such hearing submit

his evaluation and recommendations with respect to any

such objection to the licensing or permitting agency. Such

agency, based upon the recommendations of such State,

the Administrator, and upon any additional evidence, if

any, presented to the agency at the hearing, shall condi-

tion such license or permit in such manner as may be

necessary to insure compliance with applicable water

quality requirements. If the imposition of conditions

App. 11

cannot insure such compliance such agency shall not issue

such license or permit.

“(3) The certification obtained pursuant to para-

graph (1) of this subsection with respect to the construc-

tion of any facility shall fulfill the requirements of this

subsection with respect to certification in connection with

any other Federal license or permit required for the

operation of such facility unless, after notice to the certify-

ing State, agency, or Administrator, as the case may be,

which shall be given by the Federal agency to whom

application is made for such operating license or permit,

the State, or if appropriate, the interstate agency or the

Administrator, notifies such agency within sixty days after

receipt of such notice that there is no longer reasonable

assurance that there will be compliance with the applica-

ble provisions of sections 301, 302, 306, and 307 of this Act

because of changes since the construction license or permit

certification was issued in (A) the construction or opera-

tion of the facility, (B) the characteristics of the waters

into which such discharge is made, (C) the water quality

criteria applicable to such waters or (D) applicable effluent

limitations or other requirements. This paragraph shall be

inapplicable in any case where the applicant for such

operating license or permit has failed to provide the

certifying State, or, if appropriate, the interstate agency or

the Administrator, with notice of any proposed changes in

the construction or operation of the facility with respect to

which a construction license or permit has been granted,

which changes may result in violation of section 301, 302,

306, or 307 of this Act.

“(4) Prior to the initial operation of any federally

licensed or permitted facility or activity which may result

in any discharge into the navigable waters and with

App. 12

respect to which a certification has been obtained pursvu-

ant to paragraph (1) of this subsection, which facility or

activity is not subject to a Federal operating license or

permit, the licensee or permittee shall provide an oppor-

tunity for such certifying State, or, if appropriate, the

interstate agency or the Administrator to review the

manner in which the facility or activity shall be operated

or conducted for the purposes of assuring that applicable

effluent limitations or other limitations or other applicable

water quality requirements will not be violated. Upon

notification by the certifying State, or if appropriate, the

interstate agency or the Administrator that the operation

of any such federally licensed or permitted facility or

activity will violate applicable effluent limitations or other

limitations or other water quality requirements such

Federal agency may, after public hearing, suspend such

license or permit. If such license or permit is suspended, it

shal] remain suspended until notification is received from

the certifying State, agency, or Administrator, as the case

may be, that there is reasonable assurance that such

facility or activity will not violate the applicable provisions

of section 301, 302, 306, or 307 of this Act.

“(5) Any Federal license or permit with respect to

which a certification has been obtained under paragraph

(1) of this subsection may be suspended or revoked by the

Federal agency issuing such license or permit upon the

entering of a judgment under this Act that such facility or

activity has been operated in violation of the applicable

provisions of section 301, 302, 306, or 307 of this Act.

“(6) No Federal agency shall be deemed to be an

applicant for the purposes of this subsection.

App. 13

“(7) Except with respect to a permit issued under

section 402 of this Act, in any case where actual construc-

tion of a facility has been lawfully commenced prior to

April 3, 1970, no certification shall be required under this

subsection for a license or permit issued after April 3,

1970, to operate such facility, except that any such license

or permit issued without certification shall terminate

April 3, 1973, unless prior to such termination date the

person having such license or permit submits to the

Federal agency which issued such license or permit a

certification and otherwise meets the requirements of this

section.

“(b) Nothing in this section shall be construed to

limit the authority of any department or agency pursuant

to any other provision of law to require compliance with

any applicable water quality requirements. The Adminis-

trator shall, upon the request of any Federal department

or agency, or State or interstate agency, or applicant,

provide, for the purpose of this section, any relevant

information on applicable effluent limitations, or other

limitations, standards, regulations, or requirements, or

water quality criteria, and shall, when requested by any

such department or agency or State or interstate agency,

or applicant, comment on any methods to comply with

such limitations, standards, regulations, requirements, or

criteria.

“(c) In order to implement the provisions of this

section, the Secretary of the Army, acting through the

Chief of Engineers, is authorized, if he deems it to be in

the public interest, to permit the use of spoil disposal

areas under his jurisdiction by Federal licensees or per-

mittees, and to make an appropriate charge for such use.

App. 14

Moneys received from such licensees or permittees shall be

deposited in the Treasury as miscellaneous receipts.

“(d) Any certification provided under this section

shall set forth any effluent limitations and other limita-

tions, and monitoring requirements necessary to assure

that any applicant for a Federal license or permit will

comply with any applicable effluent limitations and other

limitations, under section 301 or 302 of this Act, standard

of performance under section 306 of this Act, or prohibi-

tion, effluent standard, or pretreatment standard under

section 307 of this Act, and with any other appropriate

requirement of State law set forth in such certification,

and shall become a condition on amy Federal license or

permit subject to the provisions of this section.

. . .

Pub. L. No. 95-217, 95th Cong., Ist Sess. (1977)

FEDERAL FACILITY COMPLIANCE

SEC. 61. (a) Subsection (a) of section 313 of the

Federal Water Pollution Control Act is amended (i) by

striking in the first sentence thereof the words “shall

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

ments respecting contro] and abatement of pollution to the

same extent that any person is subject to such require-

ments, including the payment of reasonable service

charges.” and inserting in lieu thereof a comma and the

words “and each officer, agent, or employee thereof in the

performance of his official duties, shal] 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

App. 15

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

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. 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 \ea! court to enforce an order or the

process of such court.”; and (2) by adding at the end of

such subsection the following: “In addition to any such

exemption of a particular effluent source, the President

may, if he determines it to be in the paramount interest of

the United States to do so, issue regulations exempting

from compliance with the requirements of this section any

weaponry, equipment, aircraft, vessels, vehicles, or other

App. 16

classes or categories of property, and access to such prop-

erty, which are owned or operated by the Armed Forces of

the United States (including the Coast Guard) or by the

National Guard of any State and which are uniquely

military in nature. The President shall reconsider the

need for such regulations at three-year intervals.”

(b) Section 401(a) of the Federal Water Pollution

Control Act is amended by striking paragraph (6) and

—_———- —

COMPLIANCE WITH STATE REQUIREMENTS

Sec. 64. Section 401 of the Federal Water Pollution

Control Act is amended by inserting “303,” after “302,” in

the phrase “sections 301, 302, 306, and 307 of this Act”,

and in the phrase “section 301, 302, 306, or 307 of this

Act”, each time these phrases appear.