United States v. Com. of Puerto Rico

• Decision Date: 16 November 1982
• Docket Number: Civ. No. 82-0726 (TR).
• Citation: 551 F. Supp. 864
• Parties: UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF PUERTO RICO and Environmental Quality Board, Defendants.
• Court: U.S. District Court — District of Puerto Rico

551 F. Supp. 864

UNITED STATES of America, Plaintiff, v. COMMONWEALTH OF PUERTO RICO and Environmental Quality Board, Defendants.

Civ. No. 82-0726 (TR).

United States District Court, D. Puerto Rico.

November 16, 1982.

Raymond L. Acosta, U.S. Atty., Hato Rey, P.R., for plaintiff.

Gerardo A. Carlo, Hector Reichard de Cardona, Secretary of Justice, U.S. Dept. of Justice, San Juan, P.R., for defendants.

DECISION AND ORDER

TORRUELLA, Chief Judge.

This case is the latest round in an ongoing dispute between the Commonwealth of Puerto Rico and others and the United States Navy over the use of certain areas in the neighboring Island of Vieques for military maneuvers and bombardment. See Romero-Barceló v. Brown, 478 F.Supp. 646 (D.C.P.R., 1980); aff'd in part, vacated and remanded in part, 643 F.2d 835 (C.A. 1, 1981); vacated and remanded in part Weinberger v. Romero-Barceló, ___ U.S. ___, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). It is in fact a direct by-product of a finding by this Court in the Romero-Barceló case to the effect that some of these activities violated the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. 1251, et seq. (1976 ed. and Supp. III), and an order implementing said finding requiring that the Navy file for and seek a National Pollutant Discharge Elimination System Permit (NPDES) to cover the accidental and/or intentional dropping of ordnance into the waters surrounding Vieques. Romero-Barceló v. Brown, 478 F.Supp. at 663-664, 708.

Pursuant to said decision the Navy on December 29, 1979 filed for such a permit with the Environmental Protection Agency (EPA). Thereafter the EPA requested that the Environmental Quality Board of Puerto Rico (EQB), the agency charged with overseeing compliance with Puerto Rico's environmental laws,¹ issue a Water Quality Certificate (WQC), which is a sine qua non requirement to the issuance by EPA of a NPDES. See 33 U.S.C. 1341(a)(1). After diverse procedural interchanges, including the holding of public hearings, the EQB finally denied the WQC on February 26, 1982.

This suit challenges the validity of said administrative action and seeks equitable and declaratory relief therefrom.

Defendants Commonwealth of Puerto Rico and EQB have moved this Court for dismissal of the action alleging lack of jurisdiction and the failure to state a claim upon which relief can be granted. The contentions as to both issues are largely repetitive of each other. We shall thus concentrate on the jurisdictional questions, which of course are basic to further consideration of this case.

The crux of Defendants' contention is their allegation to the effect that the FWPCA requires that Plaintiffs litigate the matters raised in this action within the structure of the Commonwealth's administrative-judicial system² rather than in the Federal courts. As basis for this proposition Defendants cite 28 U.S.C. 1345 which reads as follows:

"Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress." (Emphasis supplied).

Defendants claim that the FWPCA is such an excepting provision wherein Congress has directed the Federal government to litigate its rights within the State's administrative and/or court systems. Plaintiff, of course, is of the view that jurisdiction lies in this Court and that no Act of Congress, including the FWPCA, has created any exception to Section 1345, particularly under the circumstances surrounding this action.

The issues raised appear to be of first impression.

Certain principles are clear, however. Leaving aside for the moment the exception expressed by the first part of Section 1345, there is established by said statute an unequivocal grant of jurisdiction to the district courts which arises from the mere presence of the United States as a party to a civil action, suit or proceeding. United States v. Marchetti, 466 F.2d 1309, 1313 (C.A. 4, 1972). Such grant is without regard to the subject matter of the litigation. Williams v. United States, 42 F.R.D. 609 (S.D.N.Y., 1967). Thus, by this provision Congress enunciates a strong policy decision to the effect that the United States be allowed to litigate in its own courts those issues which affect its interests. The strength of this policy decision and the importance attached to it by Congress is reflected in the total absence of any legislation expressly excepting the United States from the application of 28 U.S.C. 1345.³

Furthermore, those cases that have touched on possible exceptions have indicated that any exception to the general rule of Section 1345 must be clear and unequivocal. Thus in Colorado River Water Conservation District v. United States, 424 U.S. 800, 806, 96 S.Ct. 1236, 1240, 47 L.Ed.2d 483 (1976), the Supreme Court said:

"... `The force and effect of such provisions should not be disturbed by a mere implication flowing from subsequent legislation.'"

And the scant legislative history of this Section tells us that:

"The phrase `Except as otherwise provided by Act of Congress', at the beginning of the section was inserted to make clear that jurisdiction exists generally in district courts in the absence of special provisions conferring it elsewhere." H.Rep. 308, Revisions of Title 28, United States Code, 80th Cong., 1st Sess., at A121 (emphasis supplied).

The issue boils down to determining whether the FWPCA contains any such "special provision." A section-by-section analysis of the relevant parts of the FWPCA fails to reveal such a provision.

The FWPCA is part of a comprehensive legislative scheme for the prevention and control of water pollution throughout the jurisdiction of the United States. 33 U.S. C.A. Chapter 26, et seq. Prevalent throughout this legislation is the creation of various causes of action and proceedings in the United States courts, sometimes allowing for concurrent jurisdiction in the state courts, but never to the exclusion of the federal forum. Thus under Section 1319, both civil and criminal enforcement actions for violation of permits issued by the States under approved permit programs are filed and prosecuted in the United States district courts (see 33 U.S.C. 1319(a), (b), (c), and (d)), as are civil actions to restrain violations of regulations controlling marine sanitation devices, as are their criminal prosecution (see 33 U.S.C. 1322(i) and (j)), enforcement actions of NPDES's (see 33 U.S.C. 1342(i)), citizen suits against any person violating effluent standards or against the Administrator of EPA for failure to perform mandatory acts or duties (see 33 U.S.C. 1365(a)), and civil actions by State Governors against the Administrator of EPA to enforce effluent standards or limitations as a result of violations emanating from other States (see 33 U.S.C. 1365(h)). Furthermore, the various administrative proceedings before the Administrator are reviewable judicially only by appeal to the various Circuit Courts of Appeal of the United States. See 33 U.S.C. 1369(b)(1).

Lastly, we have 33 U.S.C. 1323(a), a pivotal provision in this scheme, which bears close scrutiny.⁴ To begin with there is a waiver of immunity by the Federal Government, thus allowing application to its facilities and activities of State and local water pollution "requirements, administrative authority, and process and sanctions" to the same extent as any non-governmental entity. There is explanatory language in the statute as to what is included within said provision. The first inclusion is "any requirement whether substantive or procedural (including any recordkeeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever)." See 33 U.S.C. 1323(a)(A). Also included is "... the exercise of any ... State, or local administrative authority, and ... any process and sanctions, ... enforced in ... State, or local courts or in any other manner." See 33 U.S.C. 1323(a)(B) and (C). What is meant by these inclusions?

The FWPCA as it existed prior to the 1977 amendments did not contain these inclusions but rather limited itself to the first sentence of 33 U.S.C. 1323(a). See Pub.L. 92-500, § 2, 86 Stat. 875. The Supreme Court, in EPA v. State Water Resources Control Board, 426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578 (1976), held that said language only obligated the Federal Government to complying with the substantive provisions of State water pollution laws, but not with the procedural requirements of State legislation such as the obtention of a state permit. This interpretation resulted in the 1977 amendments which added the aforementioned inclusions. See Pub.L. 95-217, §§ 60, 61(a), 91 Stat. 1597, 1598. In the process of its passage the Senate expressed its displeasure with EPA v. State Water Resources Control Board, supra, by saying in its report:

"The act 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. Though this was the intent of the Congress in passing the 1972 Federal Water Pollution Control Act Amendments, the Supreme Court, encouraged by Federal agencies, has misconstrued the original intent.

Since the substantive requirements of the act and of State and local law would be unenforceable unless procedural provisions were also met, section 313 is amended to specify that, as in the case of air pollution, a Federal facility is subject to any Federal, State, and local requirement respecting the control or abatement of water pollution, both substantive and procedural, to the same extent as any person is subject to these requirements. This includes, but is not limited to, requirements to obtain operating and construction permits, reporting and monitoring requirements, any provision for injunctive relief and such sanctions imposed by a court to enforce such

...