UNITED STATES COURT OF APPEALS
FOR THE TWELTH CIRCUIT

UNITED STATES,
            Appellant,

STATE OF NEW UNION,                                       CA No. 02-2003
            Appellant/Appellee,

            v.

GOLDTHUMB MINING CO., INC.,
            Appellee.

ORDER

The United States brought an enforcement action under § 309 of the federal Clean Water Act, 33 U.S.C. §§ 1251, 1319 (the “CWA”) on behalf of the Environmental Protection Agency (EPA), against Goldthumb Mining Co., Inc. (“Goldthumb”) for discharges of polluted wastewater from its gold mining operation into the Arroyo d’Oro in the State of New Union.  The Arroyo d’Oro is normally a dry riverbed, but after rain it is a flowing stream and on occasion flows from New Union into the State of Progress.  When Goldthumb discharged into the Arroyo d’Oro, it was dry.  New Union intervened in the action as a plaintiff under CWA § 505, 33 U.S.C. § 1365, but argued that EPA lacked jurisdiction to pursue its enforcement action under CWA § 309(g) because New Union had earlier taken enforcement action against Goldthumb for the same discharges. 

Goldthumb filed a motion for summary judgment for lack of subject matter jurisdiction on two grounds.  Its first ground was that the CWA does not confer jurisdiction over discharges into the Arroyo d’Oro for two reasons: 1) the CWA exercises jurisdiction only over discharges into “navigable waters” and its definition of “navigable waters” does not include the Arroyo d’Oro when it is dry; and 2) Congress lacks authority under the Constitution to exercise jurisdiction over discharges into the Arroyo d’Oro when it is dry.  New Union joined the United States in opposing the motion on these grounds.  The District Court granted Goldthumb’s motion on the first grounds, although it did not reach the constitutional question.  Goldthumb’s motion was also based on its argument that CWA § 309(g) deprives EPA of jurisdiction under § 309 to enforce against violations when a state has already enforced against them.  New Union argued in support of Goldthumb on this part of its motion.  The United States opposed this part of the motion, arguing that: 1) only enforcement actions by states with programs approved by EPA to administer the CWA permit program can deprive EPA under § 309(g) from its § 309 jurisdiction to enforce against violations of the CWA, and EPA has not approved New Union’s permit program; 2) only enforcement actions by states using authority comparable to § 309(g) can deprive EPA under 309(g) from its § 309 jurisdiction to enforce against violations of the CWA, and New Union did not use enforcement authority against Goldthumb comparable to § 309(g); and 3) if New Union’s enforcement action does deprive EPA under § 309(g) from its § 309 jurisdiction to enforce against violations of the CWA, it deprives EPA only of jurisdiction to seek the assessment of penalties and not to seek injunctive relief.  The District Court granted the second part of Goldthumb’s motion, rejecting all three arguments.

Each party is instructed to brief the following questions:

1.  Did the court below err in holding that the CWA’s definition of navigable water in CWA § 502, 33 U.S.C. § 1362, does not include the Arroyo d’Oro when it is dry?  Goldthumb will file a brief supporting the court’s ruling and the United States and New Union will file briefs opposing it.

2.   Does Congress have Commerce Clause jurisdiction over dry waterbeds of intermittent interstate streams that do not meet any traditional test of navigability and are not tributary to waters that meet any such test?  The United States and New Union will file briefs arguing in favor of such authority; Goldthumb will file a brief opposing it.

3.  Did the court below err in holding that enforcement by a state without a permit program approved by EPA under the CWA can prevent EPA enforcement under CWA § 309(g)?  Goldthumb and New Union will file briefs supporting the court’s ruling and the United States will file a brief opposing it.

4.  Did the court below err in holding that a state need not enforce using authority comparable to CWA § 309(g) to prevent EPA enforcement under § 309?  Goldthumb and New Union will file briefs supporting the court’s ruling and the United States will file a brief opposing it.       

5.  Did the court below err in holding that a state penalty assessment that prevents EPA penalty assessment under § 309(g) also prevents EPA from seeking injunctive relief?  Goldthumb and New Union will file briefs supporting the court’s ruling and the United States will file a brief opposing it. 

The parties are limited in their briefs to the above issues, but are not limited to the arguments for their positions raised in the district court.  For purposes of briefing and argument, legal authorities may be cited that date before September 1, 2002.  Authorities dated on or after that date may not be cited or referred to.

Entered September 1, 2002.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW UNION

UNITED STATES,
            Plaintiff,

STATE OF NEW UNION,
            Intervenor,

                        v.                                                         Civ. No. 02-7031

GOLDTHUMB MINING CO., INC.,
            Defendant.

ORDER

The United States filed a complaint under § 309 of the Clean Water Act (CWA), 33 U.S.C. § 1319, against Goldthumb Mining Co., Ltd. (Goldthumb), alleging that Goldthumb violated § 301(a) of the CWA, 33 U.S.C. § 1311(a), by discharging cyanide laden wastewater into Arroyo d'Oro, a dry arroyo, without a permit issued under § 402 of the CWA, 33 U.S.C. § 1342.  New Union, the state in which the discharge occurred, filed a motion to intervene under CWA § 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B) and Fed. R. Civ. P. 24.  Over Goldthumb’s opposition, the Court granted New Union’s motion to intervene.  Goldthumb filed a motion for summary judgment against both the United States and New Union on two grounds.  First, Goldthumb argues that the United States and New Union lack jurisdiction under CWA §§ 309 and 505 over discharges into Arroyo d’Oro either because it is not navigable water as defined by the statute or because it is not within the interstate commerce authority of Congress to regulate.  Both the United States and New Union opposed the motion on this ground.  Second, Goldthumb, joined by New Union, argues that this Court lacks jurisdiction over Goldthumb’s actions under §§ 309 or 505 of the CWA because § 309(g) bars enforcement actions by EPA and citizens against a violator of the CWA when the state has already taken an enforcement action against the violator and New Union has already taken an enforcement action against Goldthumb.  New Union argues that while CWA § 309(g) blocks EPA enforcement, it does not block New Union enforcement, since New Union is the preferred enforcer.  New Union explains its apparently inconsistent stances by acknowledging federal authority over Goldthumb’s discharge, while insisting that under the CWA the state is the preferred enforcer against water pollution within its boundaries.  It believes that an earlier enforcement action it took against Goldthumb precludes under CWA § 309(g) any EPA enforcement against the company at this time.  If New Union is wrong on this contention, it desires to be a plaintiff in this action, even though it does not necessarily think that additional prosecution is warranted.  By suing in federal court as a citizen under CWA § 505 rather than as the sovereign in its own court, however, New Union stands or falls with EPA on both grounds. The Court grants Goldthumb’s motion against enforcement by the United States or New Union on both grounds.

The Facts

Goldthumb mines gold in an uninhabited desert portion of New Union.  It uses the modern cyanide process, whereby it crushes the gold ore, places the crushed ore on an impermeable pad, drenches the pile with a cyanide bath, which leaches out the gold.  Goldthumb collects the spent cyanide bath and stores it in impermeable evaporation ponds, from which in the normal course of events the liquid evaporates more quickly than new spent bath is added to it.  Most of the cyanide and heavy metals accumulate in the sludge that builds up on the bottoms of the ponds.  When Goldthumb completes its operation, it plans to evaporate all of the liquid from the ponds, leaving the dried sludge contaminated with cyanide and various heavy metals; it will remove and dispose of the sludge in a safe manner.  The liquid in the bath is groundwater, which Goldthumb pumps from several hundred feet underground.  Goldthumb was careful to make the leaching pad and the evaporation ponds impermeable to prevent contaminants from percolating down to groundwater.  The Goldthumb operation employs the most modern mining methods, is very efficient at recovering gold from the ore, and evidently takes care to prevent environmental contamination.

Rainfall at Goldthumb’s operation has averaged less than two inches a year since measurements were made in the area, commencing in 1940.  Most of the rain falls during “monsoon” season in August.  On rare occasions, once every two or three years, rain causes liquid to collect in Goldthumb’s evaporation ponds more quickly than it evaporates, thus threatening to overflow the sides of the ponds.  If it did overflow, it would rupture the berms forming the sides of the ponds, allowing all of the contents to escape into the Arroyo d’Oro.  To prevent this from happening, prior to the monsoon season Goldthumb drains enough liquid from the pond through a series of pipes into the Arroyo d’Oro to maintain freeboard during the rainy season.  Thus Goldthumb bleeds off small amounts of its evaporation pond water into the Arroyo to prevent all of the pond water and the highly contaminated sludge from flowing into the Arroyo.  Goldthumb contends that this is a reasonable and responsible way to protect the environment, and it appears to be so.  EPA investigations concluded that Goldthumb drained liquid from its ponds into the Arroyo on three days in June of 1999, one day in July of 2000, and two days in July of 2002.  For the purposes of its motion for summary judgment Goldthumb admits these activities.  Goldthumb also admits that the liquid is acidic and contains cyanide and heavy metals, and that they constitute “pollutants” under the CWA.

The Arroyo d’Oro is completely dry except after a major storm.  After a storm, water runs in the Arroyo for a few days.  Goldthumb employees testified that they never released pond contents into the Arroyo during or after a storm, but always did so several weeks before storm season when the Arroyo was completely dry.  Every two or three years there is a storm event in the vicinity of Goldthumb’s operation sufficient to cause water to run in the Arroyo from the operations all the way to the border between New Union and Progress, some thirty-seven miles away, and into Progress, where the water dissipates and disappears after another eight or ten miles.  Five miles into Progress the Arroyo feeds into a permanent three-acre pool, a sort of desert oasis known as Greenheaven, that Progress protects as a key element in its Greenheaven Wildlife Preserve.  The pool is one of three pools, all located in Progress, in which the Greenheaven pupfish is known to survive.  The U.S. Department of the Interior has listed the Greenheaven pupfish as an endangered species under the federal Endangered Species Act, 16 U.S.C. §§ 1531 et seq. 

In April of 2000, the New Union Department of Environmental Protection (NUDEP) issued an administrative order to Goldthumb, prohibiting it from discharging  pond liquid into the Arroyo when waters of the state are present in the Arroyo and prohibiting it from discharging pond liquid into the Arroyo at any time without prior permission of the NUDEP.  Goldthumb informed the NUDEP that the agency had no authority to prohibit Goldthumb from discharging pond liquid onto dry land, which is not a water of the state.  Goldthumb nevertheless indicated it would not discharge into the Arroyo in the future without informing the NUDEP in advance.  In July of 2000, Goldthumb contacted the NUDEP for permission to drain some of the liquid from its ponds to prevent overflow during expected storms.  The NUDEP sent an inspector to the site, the inspector found that no water was flowing in the Arroyo, the ponds were in danger of overflowing during the upcoming monsoon season, and gave permission for limited draining into the dry Arroyo.  In April of 2001, the NUDEP issued a new administrative order to Goldthumb in similar terms to the earlier order.  Goldthumb responded as it had to the earlier order.  In July of 2002, Goldthumb contacted the NUDEP for permission to drain some of the liquid from its ponds and the same results ensued.  In both cases the inspector remained on-site during the draining, supervised it, and agreed that Goldthumb accomplished it in accordance with the permission given and that no pond liquid entered waters of the state.   The NUDEP has informed Goldthumb that it will issue a new administrative order similar to the earlier two orders.

The Law

CWA § 301(a) prohibits the “discharge of any pollutant” without a permit issued under CWA §§ 402 or 404.  CWA § 502(12) defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable water from any point source.”  Goldthumb admits that the liquid from its ponds contain pollutants.  The pipes through which it drains the liquid from the ponds to the Arroyo are prototypical point sources, CWA § 502(14).  There is no question that when Goldthumb drains the liquid to the Arroyo it adds pollutants to the Arroyo, for they do not naturally occur there and come “from the outside world.”  See National Wildlife Federation v. Gorsuch, 693 F. 2d 156 (D.C. Cir. 1982); National Wildlife Federation v. Consumers Power Co., 862 F. 2d 580 (6^th Cir. 1988).  Goldthumb has not applied for and has not been issued a permit for this addition.  Goldthumb contends it does not require a permit because the Arroyo d’Oro is not navigable water.  Whether Goldthumb violated and will continue to violate the CWA thus depends on whether the Arroyo d’Oro is “navigable water.”  CWA § 502(7) defines “navigable water” to be “the waters of the United States,” one of Congress’ least helpful definitions.

CWA § 309 provides EPA with authority to enforce against violators of the CWA using a variety of mechanisms, including the assessment of civil penalties and the compliance injunction that it seeks here.  Subsection 309(g) authorizes EPA to assess administrative penalties against the violators.  Although EPA has chosen not to do so, § 309(g) is nonetheless relevant because § 309(g)(6) provides that EPA may not enforce if a state has already done so.  A narrow, literal reading of this subsection would only bar EPA from assessing penalties for violations against which New Union had already assessed penalties.  A liberal reading of the subsection to effectuate the statute’s purpose of allowing states to take the lead in addressing water pollution problems, would bar EPA from any enforcement of violations against which New Union had already enforced.  As we will see, the courts split on this issue.

CWA § 505 provides citizens with authority to enforce against violations of the statute, seeking both the assessment of civil penalties and compliance injunctions, “except as provided in . . . section [309(g)(6)].”  Thus the authority of citizens to sue for violations of the CWA is also constrained by how § 309(g) applies.  The statute defines a “citizen” to be a “person,” § 505(g), and defines a “person” to include a “State.”  CWA § 502(5), 33 U.S.C. § 1362(5). 

Under the law of New Union the “addition of any pollutant from any source to the waters of the State” is prohibited without a state issued permit.   50 N.U.R.S. § 28(a).  The state statute gives the NUDEP authority to enforce against violations of its water pollution requirements in a variety of ways, including injunctive relief, civil penalties and administratively assessed penalties.  The NUDEP’s administrative assessment authority is a virtual clone of CWA § 309(g).   The New Union statute does not authorize citizen suits.  The state statute follows the CWA in all other material respects.  Indeed, EPA has repeatedly urged New Union to apply for approval of its permit program and repeatedly informed New Union that EPA would approve its program, if submitted.

EPA’s Definition of Navigable Water

Congress grounded its constitutional authority to enact the CWA on its power to regulate interstate and foreign commerce under Art. I, sec. 8 of the Constitution.  Indeed, it intended to regulate water pollution to the full extent of its Commerce Clause power.  S. Conf. Rep. No. 92-1236, reprinted in 1972 U.S.C.C.A.N. 3668, 3776, 3822.  This intent, of course, carries with it the recognition that its authority to regulate water pollution under the Commerce Clause is limited and that the jurisdiction of the CWA may not exceed that limit.  The Court in Solid Waste Agency of Northern Cook County v. United Stats Army Corps of Engineers (SWANCC), 531 U.S. 159 (2000), has recently reiterated that authority is limited and interpreted “navigable waters” not to include isolated wetlands to avoid considering whether applying the CWA to such waters would exceed Congress’ Commerce Clause jurisdiction. 

Because waterways were important highways of interstate commerce from the beginning of the country, the courts have long recognized federal Commerce Clause jurisdiction over navigable waters.  But that jurisdiction depended on the waters being historically used for interstate commerce or at least susceptible for use in interstate commerce with feasible improvements.  The Propeller Genesee v. Fitzhugh, 53 U.S. 443 (1851); The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870).  The Supreme Court has recognized that pollution of navigable waterways may interfere with interstate commerce and thus Congress may act to prevent water pollution from interfering with interstate commerce.  Kaiser Aetna v. United States, 444 U.S. 164 (1979).   It flows from this that Congress may regulate the pollution of tributaries of navigable water, for pollution of navigable waters may not otherwise be prevented. 

EPA does not allege here that Arroyo d’Oro has ever been used for interstate commerce, is susceptible for use in interstate commerce with feasible improvements, or is a tributary of navigable water.  EPA alleges the Arroyo is navigable because it is an interstate waterway.  Indeed, EPA defines “navigable water” to include interstate waterways.  40 C.F.R. § 122.2 (2001).  But while “interstate waterways” share “interstate” with “interstate commerce,” unless they have some connection with commerce, they are not within Congress’ Commerce Clause jurisdiction to regulate.  We needn’t address whether Congress has exceeded its constitutional authority or whether EPA’s regulations have done so by including within regulated waters intermittent interstate streams, with no connection to traditionally navigable waters.  Instead, we address whether the Arroyo d’Oro is within EPA’s regulatory definition of navigable water when the Arroyo is dry. 

There is no question that EPA interprets “navigable water” to include the Arroyo d’Oro, even when it is dry.  This enforcement action is evidence enough of that.  Moreover, EPA’s interpretation in this regard is longstanding, United States v. Phelps Dodge Corp., 391 F. Supp. 1181 (D. Ariz. 1975).  Other courts have recognized that discharges to intermittent streams may violate the CWA.  Sierra Club v. Quivira Mining Co., 765 F.2d 126 (10^th Cir. 1985).  In its regulations EPA defines “navigable waters” to include “intermittent streams” and “playa lakes,” the latter, of course, being intermittent lakes.  40 C.F.R. § 122.2 (2001).  What EPA’s regulations and the case law do not address is whether intermittent streams are considered navigable water when they are dry or only when they are wet.  The cited decisions appear to address continuing pollution into arroyos both when the arroyos are dry and when they are wet and are tributaries of navigable water.  Goldthumb, however, discharges its liquid to the Arroyo only when it is dry and is not a waterway at all.  The Supreme Court has held that wetlands, in that case intermittent swamps, are within the CWA’s definition of navigable water and within Commerce Clause jurisdiction when they are adjacent to navigable waters, but it did not address whether they are within the definition of navigable water or Commerce Clause jurisdiction when they are dry, as opposed to when they are wet.  United States v. Riverside Bayview Homes, 474 U.S. 121 (1985). 

In SWANCC the Court held that there had to be some indicia of navigability for water to be considered navigable.  531 U.S. at 682-83.  But, of course, in that case, the Court was dealing with permanent bodies of water.  Here we are dealing with an arroyo that is bone-dry desert most of the time and wet a few times a year.  It boggles the imagination to say that bone-dry desert is water, let alone navigable.  I hold that EPA’s inclusion of intermittent bodies of water within its definition of navigable waters means that they are navigable waters only when they are bodies of water, not when they are dry land.  Were I to hold otherwise, I would have to determine whether Congress had authority under the interstate Commerce Clause to regulate the discharge of pollution into an interstate body of water that had no connection with interstate commerce.  But, of course, it is axiomatic that courts must interpret statutes to avoid constitutional challenges to the statutes. 

The United States contends that the cyanide and heavy metals in Goldthumb’s wastes, when washed down the Arroyo to Greenheaven Pool, imperil the Greenheaven pupfish that Progress is protecting in its Wildlife Sanctuary.  The three-acre Greenheaven Pool is no more navigable water than the gravel pit ponds in SWANCC.  The pupfish are not items of interstate commerce, indeed, as ferea naturae, they are creatures of the state.  If the citizens of Progress see fit to spend their tax dollars prolonging for a few generations the ultimate extinction of an otherwise unremarkable species, that may be altruistic and laudable.  But it does not transform a state’s activity to interstate commerce or dry land into water. 

CWA § 309(g): Cooperative Federalism

The CWA is an exercise of what is often called “cooperative federalism.”  Although the exact meaning of this term is nowhere defined, it appears to refer to differing combinations of actions taken by the federal and state governments to solve mutual problems.  It takes several forms in the CWA.  EPA develops technology-based standards to be applied to point sources of pollution nationally.  CWA §§ 301, 304, 33 U.S.C. §§ 1311, 1314.  States develop water quality criteria to protect uses they designate for waters within their jurisdictions.  CWA § 303, 33 U.S.C. § 1313.  EPA or states with EPA approved programs issue permits to translate both the technology based standards and the water quality measures into individual requirement that each point source must meet.  CWA § 402, 33 U.S.C. § 1342.  When EPA issues permits, it must include in them state requirements that states certify are more stringent than the federal requirements.  CWA § 401, 33 U.S.C. § 1341.  EPA may enforce against violations of the CWA.  CWA § 309, 33 U.S.C. § 1319.  States may enforce against violations of the CWA in federal court under the CWA’s citizen suit provision, CWA § 505, 33 U.S.C. § 1365, or in state court, for the CWA is the supreme law of the land.  Davis v. Sun Oil Co., 148 F. 3d 606 (6^th Cir. 1998); Hudson Riverkeeper Fund, Inc. v. Harbor at Hastings Associates, PC, 917 F. Supp. 251 (S.D.N.Y. 1996); Citizens Legal Environmental Network, Inc. v. Premium Standard Farms, Inc., 2000 WL 220464 (W.D. Mo.).  Because the CWA does not pre-empt state regulation of water pollution unless it interferes with the federal statute, states may also enforce against violations of their own water pollution law in state courts.  CWA § 510, 33 U.S.C. § 1370.  Indeed, Congress stated at the outset of the statute that it “is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.”  CWA § 101(b), 33 U.S.C. § 1251(b).  

When it came to enforcement, Congress intended that states assume responsibility and that EPA serve only a supplementary role.  The Senate Committee Report accompanying the enactment of the CWA could not have been more explicit in this regard:

The Committee does not intend that this jurisdiction of the Federal government so supplant state enforcement.  Rather the Committee intends that the enforcement power of the Federal government is available in cases where States . . . are not acting expeditiously and vigorously to enforce control requirements.

The Committee intends the great volume of enforcement actions be brought by the state.  It is clear that the Administrator is not to establish an enforcement bureaucracy but rather to reserve his authority for the cases of paramount interest.

S. Rep. No. 92-414, at 73-74 (1972), reprinted in Legislative History of the Clean Water Act, at 1481-82 (1973).  Thus Congress intended that federal enforcement not supplant state enforcement.  It also intended that citizen enforcement not supplant government enforcement.  The Court used this as a reason to interpret narrowly the jurisdiction of the CWA’s citizen suit provision, when a broad interpretation could threaten citizen enforcement supplanting government enforcement.  Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 494 U.S. 49, 60 (1987). 

That brings us to § 309(g).  It quite clearly reflects and implements Congress’ intent that states perform the primary role in enforcement and that EPA and citizens perform supplementary roles.  It raises the bar against citizen enforcement if a citizen has commenced suit before EPA commences an action, but not if a state has commenced an action or, under some circumstances even if a citizen has given notice of suit before EPA commences an action, but not if a state has commenced an action.  § 309(g)(6)(B).  The provision states that EPA enforcement actions do not negate the obligation of violators to comply with the CWA, § 309(g)(7), but does not say the same for state enforcement actions.  Other courts have commented that these provisions appear to give the states a primary position in enforcement, but have assumed that was the result of inadvertence.  Those courts neglected to note that state primacy in enforcement is consistent with Congress’ intent in enacting the CWA initially. 

EPA attempts to side-step the effect of the § 309(g) bar by contending that it only applies if states with approved permit programs take an enforcement action.  EPA has made this argument before, to no avail.  North and South Rivers Watershed Assn. v. Town of Scituate, 949 F.2d 552, 556 n.8 (1^st Cir. 1991).  While the argument has superficial appeal, it is not consistent with the wording or structure of the statute.  The CWA defines “state” generally in the statute to include all of the states, not just those with approved programs.  CWA § 502(3), 33 U.S.C. § 1362(3).  Congress knew how to vary the meaning of general definitions in particular sections, as it has by modifying the general definition of “person” in § 502(3) to include, for purposes of § 309(c), responsible corporate officers.  CWA § 309(c)(6), 33 U.S.C. § 1319(c)(6).  Congress did not modify the general definition of “state” to mean only states with approved permit programs for purposes of § 309 or § 309(g).  New Union is a state and, even though EPA has not approved its program for permit issuance, New Union’s enforcement actions have the same force and effect under § 309(g) as enforcement actions of states with approved permit programs.

EPA next points out that a literal reading of § 309(g)(6)(A) is that violations against which a state assesses a penalty shall not be subject to a penalty action by EPA.  This, EPA argues, allows it to seek an injunction against such violations, even if the state has assessed a penalty against them.  Coalition for a Livable West Side v. New York City Department of Environmental Protection, 830 F. Supp. 194 (S.D.N.Y. 1993).  It also argues that only state actions taken under state law “comparable” to § 309(g) bar EPA action.  CWA §§ 309(g)(6)(A)(ii), (iii).  This, EPA argues, requires that NUDEP assess a penalty before EPA is precluded from enforcement and NUDEP has not done that. Citizens for a Better Environment v. Union Oil Company of California, Inc., 83 F.3d 1111 (9^th Cir. 1996).  EPA admits that the New Union statute grants the NUDEP authority to assess administrative penalties that is comparable to § 309(g).  But, EPA argues, because the NUDEP has chosen to use other authority to issue a compliance order, the § 309(g) bar does not operate.  While some courts support EPA’s arguments, the better line of precedent begins with North and South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d at 556-558.  Scituate has been widely followed.  See, e.g., Arkansas Wildlife Federation v. ICI Americas, Inc., 29 F.3d 376, 383 (8^th Cir. 1994) (different reasoning, same conclusion); U. S. v. Smithfield Foods Co., 965 F. Supp. 769, 792 (E.D. Va. 1997), aff’d on other grounds, 191 F. 3d 516 (4^th Cir. 1999); Williams Pipe Line v. Bayer Corp., 964 F. Supp. 1300 (S.D. Iowa 1995).  Scituate builds directly on the Court’s holding in Gwaltney that the CWA should be interpreted to prevent a primary enforcer from being supplanted by a subordinate enforcer.  In Gwaltney the primary enforcer was EPA and the subordinate enforcers were citizens.  The court found the legislative history made citizens supplemental enforcers to EPA.  Here it is the state that is the primary enforcer and EPA that is the subordinate enforcer.  The legislative history, quoted above, makes it clear that states are the primary enforcers of the statute and that EPA is merely a supplemental enforcer.  Parts of § 309(g) are consistent with this scheme, as discussed two paragraphs above.  All of § 309(g) should be interpreted consistently with this scheme. 

EPA argues that Scituate held that a citizen was barred from suing and is not good precedent for holding that EPA is barred from suing.  It argues that in Gwaltney the Court recognized that an interpretation of the CWA barring citizen enforcement would not bar EPA enforcement.  484 U.S. at 58.  While the distinctions to which EPA draws this Court’s attention do exist, they do not help EPA.  True, Scituate involved a citizen suit, but the same provisions of § 309(g), indeed the very words of § 309(g), barring the citizen suit in Scituate also bar EPA actions.  The same words cannot mean one thing when applied to citizen suits and another when applied to EPA actions, unless Congress explicitly indicated so, and it did not.  True, the Court in Gwaltney interpreted similar but different provisions of the CWA differently when they applied to citizen enforcers and EPA.  But they were different provisions, while here they are the same provisions.  And in Gwaltney the Court adopted different interpretations to preserve EPA’s primary enforcement role in relation to the citizens’ supplemental role.  Here the interpretation favored by EPA would eliminate the state’s primary role relative to EPA’s supplemental role.  In Gwaltney the Court found it of paramount importance to preserve the prosecutorial discretion of the primary enforcer, in that case EPA.  Gwaltney, 484 U.S. at 60-61.  So too here, the paramount importance is to preserve the prosecutorial discretion of New Union, the primary enforcer.  

The NUDEP has enforced against Goldthumb to assure that it does not discharge into the waters of the state and Goldthumb has acquiesced to its actions.   The NUDEP enforcement has been effective in controlling Goldthumb’s actions to assure that the highly contaminated material in its evaporation ponds to not overflow into the Arroyo during the storm season and that Goldthumb does not release even small amounts of the lightly contaminated liquid from its ponds into the Arroyo when it is flowing.  It is doubtful that Goldthumb would have reached its accommodation with the NUDEP if it knew that EPA or citizens could second-guess the enforcement action taken by the state.  This is exactly the intent of the 309(g) preclusion.  

Conclusion

This Court grants Goldthumb’s motion for summary judgment that its discharge of wastewater into the dry Arroyo d’Oro is not subject to the jurisdiction of CWA § 301(a) because the discharge was onto dry land, not within the CWA’s definition of navigable water.  The Court thus does not need to address Goldthumb’s alternative grounds for summary judgment that such discharges are beyond Congress’ jurisdiction under the Constitution’s Commerce Clause, although the Court has grave doubts on that question.   Alternatively, the Court grants Goldthumb’s motion for summary judgment that EPA lacks jurisdiction to enforce against Goldthumb’s alleged violation of CWA § 301(a), because CWA § 309(g) forecloses the agency’s jurisdiction to enforce under § 309 and § 505 against a violation if the state has already enforced against the violation, and the NUDEP has already enforced against the alleged violation. 

SO ORDERED.

Back to Top