State of Minn. by Spannaus v. Hoffman
| Decision Date | 28 October 1976 |
| Docket Number | No. 75-1869,75-1869 |
| Citation | 543 F.2d 1198 |
| Parties | , 7 Envtl. L. Rep. 20,066 STATE OF MINNESOTA, by its Attorney General, Warren SPANNAUS, and its Pollution Control Agency, Appellee, v. Martin R. HOFFMAN, as Secretary of the Army, et al., Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Larry Boggs, U. S. Dept. of Justice, Land & Natural Resources Div., Appellate Section, Washington, D. C., for appellants; Peter R. Taft, Asst. Atty. Gen., Edmund B. Clark, Michael D. Graves, Attys., U. S. Dept. of Justice, Land & Natural Resources Div., Washington, D. C., Robert G. Renner, U. S. Atty., and Stephen G. Palmer, Asst. U. S. Atty., Minneapolis, Minn., on the briefs.
William P. Donohue, Asst. Atty. Gen., Roseville, Minn., for appellee; Warren R. Spannaus, Atty. Gen., Richard B. Allyn, Sol. Gen., St. Paul, Minn., and Eldon G. Kaul, Asst. Atty. Gen., Roseville, Minn., on the briefs.
Khristine L. Hall and J. G. Speth, Natural Resources Defense Council, Washington D. C., filed brief for amici curiae, Natural Resources Defense Council.
Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Los Angeles, Cal., Roderick Walston and Richard C. Jacobs, Deputy Attys. Gen., San Francisco, Cal., filed amicus curiae brief, State of Cal.
Before BRIGHT and WEBSTER, Circuit Judges, and TALBOT SMITH, * Senior District Judge.
The case before us is one of first impression and involves the dredging operations of the Army Corps of Engineers. The various procedural arguments made below have not been pursued on appeal. The issue, the parties are agreed, is the authority of the State of Minnesota under the Federal Water Pollution Control Act Amendments of 1972 (hereafter "the Amendments"), 86 Stat. 816, 33 U.S.C. § 1251 et seq. (Supp. IV), to regulate the Corps of Engineers of the United States Army, in the Corps' conduct of dredging operations in the navigable waters 1 of the United States, within Minnesota. The District Court, writing before the recent interpretation of the 1972 Amendments by the Supreme Court in EPA v. California ex rel. State Water Resources Control Board, 426 U.S. 260, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), held that § 402(b) of the Amendments, 33 U.S.C. § 1342(b) (Supp. IV), establishing the National Pollutant Discharge Elimination System (hereafter "NPDES"), "grants to Minnesota authority to require defendants to comply with state pollution abatement requirements including obtaining a state discharge permit." Minnesota, Spannaus v. Callaway, 401 F.Supp. 524, 531 (D.Minn.1975). We reverse and remand for the entry of judgment in accordance herewith.
The original Federal Water Pollution Control Act was passed in 1948, 2 frequently revised, and codified at 33 U.S.C. § 1151 et seq. It proved to be inadequate. 3 The result was the enactment of the Amendments of 1972, their objective being "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 4
Although the Amendments retained the basic policy placing primary responsibility for the control of water pollution in the states, 5 two major changes were made. The first imposes direct restrictions on discharges of pollutants, phrased in terms of "effluent limitations" on "point sources," thus making it unnecessary, as had been the case theretofore, to work backwards from a polluted body of water to determine the point source of the pollution. 6 The second major change was the establishment of the National Pollutant Discharge Elimination System (NPDES) 7 for the purpose of attaining and enforcing the effluent limitations.
The Bill of Complaint alleged that the Corps of Engineers, for the purpose of aiding commercial navigation, maintains a navigation channel in the Mississippi River, various harbors on Lake Superior, and a harbor on Lake of the Woods by its dredging operations. These dredging operations are alleged to have caused deterioration in water quality. 8 Both federal law and state law were relied upon and violations of both were alleged. The relief requested was a declaratory judgment that the "applicable federal law requires the dredging activity of the defendants to be carried out within the ambit of state laws and regulations," and that the dredging activities of the defendants within the State of Minnesota "be conducted in accordance with the Minnesota Statutes and Regulations regarding water quality."
The Corps moved to dismiss under Fed.R.Civ.P. 12(b), arguing that the District Court lacked subject matter jurisdiction and that the complaint failed to state a claim for which relief could be granted. Oral argument on the motion was held, and, as the parties agreed that no question of material fact existed, the District Court considered the matter submitted on cross-motions for summary judgment, granted the state's motion, and denied that of the Corps.
First, the District Court's conclusion that the Corps is required to obtain discharge permits from the State of Minnesota cannot be maintained, in light of State Water Resources Control Board, supra. In, State Water Resources Control Board, the Supreme Court held that agencies of the federal government do not need to obtain NPDES discharge permits from the states. 9
We turn now to the major question posed by this case. In support of its argument that the Corps is required to conform to the State's water quality standards and effluent limitations, Minnesota relies primarily upon two sections of the Amendments, § 313, 33 U.S.C. § 1323 (Supp. IV), and § 510, 33 U.S.C. § 1370 (Supp. IV). The former, § 313, requires that:
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 shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges. * * *
This provision of the Amendments, it is argued, "clearly and explicitly requires Federal entities to comply with State requirements respecting the control and abatement of pollution." In addition, in support of its position, the State urges to us the requirements of § 510, 33 U.S.C. § 1370 (Supp. IV), providing, in part, that Except as expressly provided in this Act, nothing in this Act shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or limitation respecting discharges of pollutants, or (B) any requirement respecting control or abatement of pollution; * * * .
The Corps, per contra, raises a basic constitutional issue, asserting that the Supremacy Clause of the United States Constitution (Art. VI, Cl. 2), absent Congressional authorization, bars state regulation of its dredging operations, which are performed in the navigable waters of the United States to maintain navigation, and that Congress has nowhere in the 1972 Amendments authorized such state regulation. Per contra, it urges that § 404 of the Amendments, 33 U.S.C. § 1344 (Supp. IV), creates an exclusive program for dredged or fill material, including dredged spoil. Under this section, it is argued, the sole and exclusive responsibility for the administration of the program is vested in the Secretary of the Army, acting through the Chief of Engineers, and no provision is found therein for administration by the EPA or by any state. Section 404 provides as follows:
PERMITS FOR DREDGED OR FILL MATERIAL
SEC. 404. (a) The Secretary of the Army, acting through the Chief of Engineers, may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites.
(b) Subject to subsection (c) of this section, each such disposal site shall be specified for each such permit by the Secretary of the Army (1) through the application of guidelines developed by the Administrator, in conjunction with the Secretary of the Army, which guidelines shall be based upon criteria comparable to the criteria applicable to the territorial seas, the contiguous zone, and the ocean under section 403(c), and (2) in any case where such guidelines under clause (1) alone would prohibit the specification of a site, through the application additionally of the economic impact of the site on navigation and anchorage.
(c) The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary of the Army. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection.
With respect to the above-quoted section, the Corps points out that § 402, 33 U.S.C. § 1342 (Supp. IV), the section creating the NPDES, commences with an exception, manifesting a Congressional intent that the EPA not exercise administrative authority over the pollutant covered by § 404, namely,
(a)(1) Except as provided in sections 318 and 404 of this Act, the Administrator 10 may * * * issue a permit for the discharge of any pollutant * * * . (Emphasis and added footnote ours.) 11
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