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California v. Department of the Navy

ELR Citation: 18 ELR 20863
Nos. No. 86-1972, 845 F.2d 222/27 ERC 1569/(9th Cir., 04/27/1988) Aff'd

The court holds that only the Environmental Protection Agency (EPA) can assess civil penalties under Federal Water Pollution Control Act (FWPCA) §309(d), and FWPCA §313 does not waive the federal government's sovereign immunity from state civil penalties. California had sought civil penalties under §309(d) and the California state water code for alleged permit violations by the Department of the Navy. The court first rules that FWPCA §309(d) authorizes only EPA to seek civil penalties. Although §309(d) does not explicitly indicate who is authorized to seek civil penalties, §309's structure and legislative history lead to the conclusion that authority is limited to EPA. Moreover, the FWPCA's elaborate enforcement provisions indicate that implying a cause of action under §309(d) would not be appropriate, and allowing states to seek civil penalties for past violations under §309(d) would frustrate EPA's ability to strike binding bargains with violators in the public interest.

The court next rules that civil penalties under the California state water code are not penalties "arising under" federal law, and so are not included in the waiver of sovereign immunity in FWPCA §313. FWPCA §402(b) provides that states' submissions for EPA approval are those that are to be administered under state law, and the California state water code provisions at issue are to be enforced in state court. Moreover, the legislative history clearly provides that the state permit programs are not delegations of federal authority.

[The district court opinion appears at 16 ELR 20618.]

Counsel for Plaintiff-Appellant
Roderick E. Walston, Allene C. Zanger, Deputy Attorneys General
Dep't of Justice, 1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5437

Counsel for Defendant-Appellee
Robert L. Klarquist, J. Carol Williams
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Before Goodwin and Tang, JJ