South Carolina Wildlife Federation v. Alexander, Civ. A. No. 76-2167.

• Decision Date: 27 July 1978
• Docket Number: Civ. A. No. 76-2167.
• Citation: 457 F. Supp. 118
• Court: U.S. District Court — District of South Carolina
• Parties: SOUTH CAROLINA WILDLIFE FEDERATION, Georgia Wildlife Federation, National Wildlife Federation, Atlanta Audubon Society, Friends of the Savannah River, Georgia Canoeing Association, Inc., League of Women Voters of Georgia, League of Women Voters of South Carolina, Sierra Club, South Carolina Environmental Coalition and Trout Unlimited, Plaintiffs, v. Clifford ALEXANDER, in his official capacity as Secretary of the Army, LTG John W. Morris, in his official capacity as Chief of Engineers, Department of the Army, Col. Frank-Walter, in his official capacity as District Engineer, Corps of Engineers, Douglas Costle, in his official capacity as Administrator, Environmental Protection Agency, and Cecil Andrus, in his official capacity as Secretary, Department of Interior, Defendants.

457 F. Supp. 118

SOUTH CAROLINA WILDLIFE FEDERATION, Georgia Wildlife Federation, National Wildlife Federation, Atlanta Audubon Society, Friends of the Savannah River, Georgia Canoeing Association, Inc., League of Women Voters of Georgia, League of Women Voters of South Carolina, Sierra Club, South Carolina Environmental Coalition and Trout Unlimited, Plaintiffs, v. Clifford ALEXANDER, in his official capacity as Secretary of the Army, LTG John W. Morris, in his official capacity as Chief of Engineers, Department of the Army, Col. Frank-Walter, in his official capacity as District Engineer, Corps of Engineers, Douglas Costle, in his official capacity as Administrator, Environmental Protection Agency, and Cecil Andrus, in his official capacity as Secretary, Department of Interior, Defendants.

Civ. A. No. 76-2167.

United States District Court, D. South Carolina, Greenville Division.

July 27, 1978.

COPYRIGHT MATERIAL OMITTED

Theodore A. Snyder, Jr., Walhalla, S. C., G. Philip Nowak, Clifford D. Stromberg, Washington, D. C., for plaintiffs; Oliver A. Houck, National Wildlife Federation, Washington, D. C., of counsel.

Geoffrey A. Mueller, Fred R. Disheroon, Dept. of Justice, Washington, D. C., J. D. McCoy, III, Asst. U. S. Atty., Greenville, S. C., for defendants.

CHAPMAN, District Judge.

This action is brought by various environmental groups against five government officials, in their official capacities,¹ seeking declaratory and injunctive relief in an effort to stop the construction and potential operation of the Richard B. Russell Dam and the continued operation of the Hartwell and Clark Hill Dams, all of which are located on the Savannah River which flows between South Carolina and Georgia. Plaintiffs allege that Hartwell and Clark Hill presently contribute and Russell will contribute to the pollution of the Savannah River by lowering the content of dissolved oxygen in its waters and creating increased amounts of various minerals in the water.

The bases for the relief sought lie in four counts of the complaint. Count I is grounded on the Federal Water Pollution Control Act, as amended by the Clean Water Act of 1977 (hereinafter the "Act" or "FWPCA"), 33 U.S.C. § 1251 et seq. Specifically, plaintiffs allege that defendants have violated and will continue to violate § 301 of the Act, 33 U.S.C. § 1311, by authorizing, financing, supporting, and participating in the construction and operation of Russell Dam and the continued operation of Hartwell and Clark Hill Dams, without a permit in accordance with § 402 of the Act, 33 U.S.C. § 1342. Section 301 essentially provides that unless certain permits are obtained (including a § 402 permit) and other prerequisites met, it shall be unlawful for any person to discharge any pollutant.

Count II alleges that defendant Administrator of the Environmental Protection Agency (EPA), hereinafter the "Administrator," is in violation of his enforcement duties under § 309 of the Act, 33 U.S.C. § 1319, because he has failed to issue an order directing the Corps of Engineers to comply with the FWPCA or to enjoin the construction and/or operation of the dams, having been fully informed that the water to be released from the Russell Dam will contain pollutants, as do the present releases from Hartwell and Clark Hill Dams.

Count III alleges that the Corps of Engineers and Secretary of the Interior have failed to comply with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq., and the Fish and Wildlife Coordination Act, 16 U.S.C. § 661 et seq., by failing to thoroughly assess the loss or damage to fish and wildlife resources in Georgia and South Carolina attributable to the construction of the Russell Dam and by failing to consider and make adequate provision for the mitigation of such losses.

Count IV alleges that the Corps of Engineers has failed to comply with the National Environmental Policy Act by not revealing and assessing the possible geological dangers associated with the construction and operation of Russell Dam.

The matter presently before the Court is the motion of defendants to dismiss Counts I and II of the complaint, pursuant to Rule 12 of the Federal Rules of Civil Procedure, on the ground that these counts fail to state a claim upon which relief can be granted and because this Court lacks subject matter and personal jurisdiction.

It is defendants' position that this Court lacks jurisdiction to proceed with an adjudication of Counts I and II because the sovereign immunity of the United States against suit has not been waived as to the alleged violations. Moreover, defendants contend that plaintiffs have failed to comply with the notice provisions of § 505 of the FWPCA, 33 U.S.C. § 1365, as to Clark Hill and Hartwell Dams, and any suit as to Russell Dam is premature. As to the motion to dismiss for failure to state a claim upon which relief can be granted, defendants contend that §§ 301 and 309 of the Act are inapplicable to the activities of federal agencies in this matter and that the activities complained of do not fall within the prohibition of § 301(a), a requirement essential to the claims under Counts I and II.

THE SOVEREIGN IMMUNITY ISSUE

It is defendants' contention that this Court is without jurisdiction because sovereign immunity bars this action against the United States. In their memorandum, defendants submit that this suit is in effect a suit against the United States and that such a suit may not be maintained in the absence of an express waiver of sovereign immunity by the Congress. Despite defendants contentions to the contrary, such a waiver has been enacted by Congress. Section 505 of the FWPCA, 33 U.S.C. § 1365, expressly authorizes citizens' suits under the FWPCA. Title 33 U.S.C. § 1365(a), § 505(a) of the FWPCA, provides the following:

(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf—

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.

Section 1365(f), § 505(f) of the Act, provides in pertinent part the following:

(f) For purposes of this section, the term "effluent standard or limitation under this chapter" means (1) effective July 1, 1973, an unlawful act under subsection (a) of section 1311 of this title § 301 of the Act . . . or (6) a permit or condition thereof issued under section 1342 of this title 402 of the Act, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title).

Clearly, § 505(a)(1) abolishes sovereign immunity for Count I, and § 505(a)(2) does likewise for Count II, assuming Count II seeks to require the Administrator of the EPA to perform a nondiscretionary act.²

THE NOTICE ISSUE

Defendants submit that even if § 505(a)(1) and (a)(2) abolish sovereign immunity against this suit, inadequate notice was given under § 505(b), 33 U.S.C. § 1365(b) because not all of the plaintiffs were named in the notice and because the notice referred only to the Russell Dam project. It must be remembered that § 505(a) begins by stating: "Except as provided in subsection (b) of this section, any citizen may commence a civil action . .." Subsection (b) provides the following:

Notice

(b) No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or

(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right (2) under subsection (a) (2) of this section prior to sixty days after the plaintiff has given notice of such action to the Administrator,

except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. Notice under this subsection shall be given in such manner as the Administrator shall prescribe by regulation.

The question thus becomes whether or not subsection (b) is a jurisdictional prerequisite to this action, and, if so, whether plaintiffs have effectively complied with its provisions.

The Courts are not in agreement as to whether or not the notice requirements of § 505(b) rise to the status of a jurisdictional prerequisite to a FWPCA suit. In Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 318-323, 510 F.2d 692, 698-703 (1975) (Robb, Circuit Judge, dissenting), and Natural Resources, Defense Council v. Calloway, 524 F.2d 79, 83-84 (2nd Cir. 1975), the District of Columbia and Second Circuits, respectively, held that § 505(b)'s notice requirements are not of jurisdictional necessity because jurisdiction of claimed violations under the FWPCA can be had under the general federal...