United States v. Plaquemines Parish Mosquito Control District

No. 80-3823 (5th Cir. September 11, 1981)

The court affirms the district court's holding that application of §§ 301 and 404 of the Federal Water Pollution Control Act (FWPCA) to a state mosquito control district does not infringe on powers reserved to the states under the Tenth Amendment. The court finds that § 404, which regulates dredge and fill operations in the nation's waters, does not regulate "states as states" but rather establishes a program of cooperative federalism in which states, within federally established limits, amy enact and administer their own regulatory programs. In addition, the court holds that a very strong federal interest exists in the area of environmental protection which justifies the requirement that the state procure a permit to dredge wetlands.

Counsel for Appellee
Fred R. Disheroon, Barbara Brandon
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5313

Counsel for Appellant
Louis B. Porterie
Duke, Porterie & Hantel
1206 American Bank Bldg., New Orleans LA 70130
(504) 581-1206

Before Brown, Reavley, and Politz, JJ.

[12 ELR 20258]

Per curiam:

The present action for injunctive relief and civil penalties under § 309(b) of the Clean Water Act, 33 U.S.C. § 1319(b) (1977), was brought at the request of the Secretary of the Army and the Administrator of the Environmental Protection Agency. The district court entered judgment on behalf of the United States and permanently enjoined the appellant Plaquemines Parish Mosquito Control District, et al., ("Parish") from continuing to dredge in the wetland in the Bohemia Wildlife area without first obtaining a permit from the Army Corps of Engineers ("Corps"), holding that the Tenth Amendment to the Constitution does not insulate the Parish from complying with §§ 301 and 404 of the Federal Water Pollution Control Act, 33 U.S.C.A. §§ 1311, 1344 (1977) ("Clean Water Act"). The district court further held the imposition of civil penalties would not be appropriate. Parish appeals, arguing that §§ 301 and 404 of the Clean Water Act as applied to it violate the Tenth Amendment.¹ We affirm the district court.

The Bohemia Wildlife Management Area is a tidal wetland in Plaquemines Parish owned by the Orleans Levee Board. Before trial the parties stipulated that the area where Parish undertook the dredge and fill operations — the Bohemia Wildlife Management Area — was a "wetland" area (defined at 33 C.F.R. § 323.2) and thus subject to § 404 of the Clean Water Act, 33 U.S.C.A. § 1344 (1977). Section 404 requires one to get a permit before one discharges dredged or fill material.² On December 2, 1977, the appellant Parish commenced, without a permit, dredging activity in a wetland area in the Bohemia Wildlife Management Area. This activity, designed to control mosquito breeding, consisted in dredging ditches with a marsh buggy dragline and discharging the excavated spoil adjacent to the ditches. On March 17, 1978, the Corps served Parish a cease and desist order. Parish, however, continued to dredge in the wetland area until it was served a second cease and desist order on April 14, 1978. Shortly thereafter, this suit was brought.

In arguing that § 404 of the Clean Water Act violates the Tenth Amendment, Parish relies heavily on National League of Cities v. Usery, 426 U.S. 833 (1976). In National League of Cities, the Supreme Court held that the 1974 amendments to the Fair Labor Standards Act, which set wages and work hours of state employees, exceeded Congressional power under the commerce clause because the amendments violated the Tenth Amendment. The court reasoned that the challenged amendments would "displace the states' freedom to structure integral operations in areas of traditional government functions," id. at 845, and that Congress could not, consistently with the Tenth Amendment, "abrogate the states' otherwise plenary authority to make [these decisions]." Id. at 845-46.

The Supreme Court recently discussed National League of Cities and the Tenth Amendment in two opinions involving enforcement of the Surface Mining Control and Reclamation Act of 1977 ("Surface Mining Act"). Hodel v. Virginia Surface Mining and Reclamation Association, Inc., 49 U.S.L.W. 4654 [11 ELR 20569] (June 15, 1981); Hodel v. Indiana, 49 U.S.L.W. 4667 [11 ELR 20581] (June 15, 1981). In Virginia Surface, the Court articulated a three-part test to succeed on a claim that congressional commerce power legislation is invalid under the reasoning of National League of Cities:

First, there must be a showing that the challenged statute regulates the "States as States." . . . Second, the federal regulation must address matters that are indisputably "attributes of state sovereignty." . . . And third, it must be apparent that the States' compliance with the federal law would directly impair their ability "to structure integral operations in areas of traditional functions."

49 U.S.L.W. 4654, at 4660. Yet a showing that these three requirements are met does not guarantee a Tenth Amendment claimant success. The Supreme Court goes on to note "there are situations in which the nature of the federal interest advanced may be such that it justifies State submission." Id. at 4660 n.29 (referring to Fry v. United States, 421 U.S. 542, 95 S. Ct. 1792 (1975)).

As in Virginia Surface, the present case does not meet the first requirement — the challenged statute must regulate "States as States." In Virginia Surface, the Court held that the Surface Mining Act does not violate the Tenth Amendment because the provisions do not regulate the "States as States." The Court reasoned that the provisions at most established "a program of cooperative federalism, that allows States, within limits established by federal minimum standards, to enact and administer their own regulatory programs, structured to meet their own particular needs." Id. at 4660. The Court noted the cooperative federalism character of the Surface Mining Act resembles the Clean Air Act, 42 U.S.C.A. § 7401 et seq. (1977), and approvingly noted the Clean Air Act has "survived Tenth Amendment challenges in the lower federal courts." Id. at 4660.³

These statements and the similarities between the Clean Air Act, the Surface Mining Act and the Clean Water Act form the basis for our decision that the Clean Water Act does not regulate "States as States." Like the two above-mentioned acts, the Clean Water Act merely allows a state to enact and administer its own regulatory program, in this instance a permit program, within certain federal minimum standards.⁴

The Governor of any state desiring to administer its own individual and general permit program for the discharge of dredged or fill material into navigable waters . . . within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to establish and administer under State law or under an interstate compact.

33 U.S.C.A. § 1344(g)(1) (1977). Furthermore, the Clean Water [12 ELR 20259] Act does not require the state to admnister the program. In the absence of an approved permit program, the full regulatory burden will be borne by the federal government. Additionally, both the Clean Air Act and the Clean Water Act govern states and their political subdivisions, as well as private individuals and businesses. See 42 U.S.C.A. § 7602 (1977); 33 U.S.C.A. § 1362(5) (1977).

Moreover, the nature of the federal interest in the Clean Water Act justifies the requirement that the state procure a permit to dredge the wetlands. In Fry v. United States, supra, the court held that wage controls imposed (at a time when the consumer price index was soaring at 5.9%) under the Economic Stabilization Act of 1970 applied to state and local government employees. The court observed that "the effectiveness of federal action would have been drastically impaired if wage increases were left outside the reach of these emergency federal wage controls." Id. at 549. Undoubtedly, a very strong federal interest also exists in the area of environmental protection. Justice Blackmun filed a concurring opinion in National League of Cities, supra, in which he aptly states:

In my view, the result with respect to the statute under challenge here is necessarily correct. I may misinterpret the Court's opinion, but it seems to me that it adopts a balancing approach, and does not outlaw federal power in areas such as environmental protection, where the federal interest is demonstrably greater and where state facility compliance with imposed federal standards would be essential.

426 U.S. at 856, 96 S. Ct. at 2476 (emphasis added). No doubt the effectiveness of the Clean Water Act would be drastically impaired by state action carried out in furtherance of its concern for its citizens, yet in disregard of the effect such action would have on the navigable waters of the nation.

We conclude that §§ 301 and 404 of the Clean Water Act do not violate the Tenth Amendment as applied to Plaquemines Parish Mosquito Control District. The judgment of the district court is AFFIRMED.

1. The Tenth Amendment states "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

2. See 33 U.S.C. § 1344(a) (1977). Dredging without a permit results in a violation of § 301 of the Act, 33 U.S.C. § 1311(a) (1977), thus triggering judicial enforcement of the Act under § 309, 33 U.S.C. § 1319 (1977).

3. The court cites Friends of the Earth, Inc. v. Carey, 552 F.2d 25, 36-39 [7 ELR 20177] (2nd Cir. 1977) cert. denied, 434 U.S. 901 (1977); Sierra Club v. EPA, 540 F.2d 1114, 1140 [6 ELR 20669], cert. denied, 430 U.S. 959 (1977). Both cases upheld the Clean Air Act. Additionally, at first reading the language of the Virginia Surface court is confusing in that the court, after noting the Surface Mining Act governs private individuals and businesses, and establishes a program of cooperative federalism, states "in this respect" the Surface Mining Act resembles several federal statutes (the Clean Air Act in particular) that have survived Tenth Amendment challenges. 49 U.S.L.W. 4654, at 4660. The phrase "in this respect" necessarily must refer to the notion of cooperative federalism because the coverage of the Surface Mining Act does not resemble that of the Clean Air Act: in addition to private individuals and businesses, the Clean Air Act governs states and their political subdivisions. See 42 U.S.C. § 7602(c) (1977).

4. 33 U.S.C. § 1344(h) (1977) contains the minimal federal standards required of a state permit program.