As far back as 1972, Congress recognized that both federal facilities and nonpoint sources contribute significally to water pollution and recent observations emphasize that nonpoint source water pollution on federal lands from federally conducted or federally authorized activities--federal facility nonpoint sources significant continuing threats to water quality. However, the Clean Water Act gives regulatory authority over nonpoint sources to the states. Moreover, while the Act waives the federal government's sovereign immunity regarding waist quality requirements, federal facilities need comply only "in the same manner, and to the samea as any nongovernmental entity." In Idaho Sporting Congress v. Thomas the Ninth Circuit ignored these sovereign immunity limitations and allowed plaintiffs to sue the Forest Service as a federal facility nonpoint source through the federal Administrative Procedure Act (APA) to make the Forest Service comply with Idaho's water quality standards, even thougk Idaho only holds nonpoint sources responsible for complying with the applicable Best Management Practices (BMPs). This Article argues that neither the APA nor the Clean Water Act allows the federal courts to create suck generalized federal requirements for federal facility nonpoint sources; instead, courts must look to the details of the relevant state's nonpoint source management program to establisk the federal facility's water quality responsibilities.
When Congress enacted the Federal Water Pollution Control Act (FWPCA) in 1972, creating the bulk of the current Clean Water Act (CWA),(1) it was already concerned about two sources of water pollution--federal facilities and nonpoint sources--that continue to create water quality problems almost three decades later. Evidence presented at the congressional hearings "disclosed many incidents of flagrant violations of air and water pollution requirements by Federal facilities and activities"(2) and led Congress to conclude that "Federal facilities generate considerable water pollution."(3) Similarly, Congress was surprised to learn "the degree to which nonpoint sources contribute to water pollution. Agricultural runoff, animal wastes, soft erosion, fertilizers, pesticides, and other farm chemicals that are a part of runoff, construction runoff and siltation from mines and acid mine drainage contribute significantly to the Nation's water pollution problem."(4)
Concerned that "[l]ack of Federal leadership has been detrimental to the water pollution control effort" and aware that the "Federal Government cannot expect private industry to abate pollution if the Federal Government continues to pollute,"(5) Congress dealt with federal facilities immediately by including section 313 in the 1972 Act.(6) Section 313 requires federal agencies and departments to comply with all federal, state, and local water quality requirements when those agencies and departments either have jurisdiction over property or facilities or engage in activities that can result in the discharge or runoff of pollutants.(7) In contrast, Congress waited until 1987 to address nonpoint source pollution, adding section 319 to the ACt only then.(8) Moreover, Congress addressed the nonpoint source problem only indirectly, by requiring states to adopt control programs to address nonpoint sources.(9)
In 1998, 26 years after the FWPCA's enactment, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) issued the Clean Water Action Plan to address the nation's remaining water quality problems. Nonpoint source pollution--characterized as "polluted runoff"--and federal facilities appear prominently in the Plan as water quality problems still needing improvement. For example, the Plan announces that "Polluted Runoff is the Most Important Source of Water Pollution," inhibiting further progress toward cleaning up the nation's waterways.(10) Although federal facilities are subject to less dramatic finger-pointing, the Plan nevertheless emphasizes that the sheer scope of federal holdings makes federal facilities a necessary and integral component of further water quality improvements:
Lands and resources managed by the federal government cover over 800 million acres and include many of the nation's most treasured water resources. In many watersheds, these lands are the headwaters of streams and rivers and valued sources of clean water for sport fishing, recreation, and drinking water. Policies for protecting and managing these lands must balance these diverse interests and needs, In the past, water quality was not always a top priority.(11) Finally, the Clean Water Action Plan also demonstrates that the overlap of nonpoint source pollution and federal facilities is significant. Federal lands support activities--such as road building, logging, mining, and grazing--that can lead to nonpoint source pollution from runoff.(12) "Roads and trails are primary sources of sediment runoff on federal lands;"(13) forests are necessary for proper water storage and filtering and for soft retention;(14) unfettered grazing can degrade stream, riparian, and fish habitats;(15) and runoff from abandoned mines can carry hazardous materials and acid drainage to nearby waterways,(16)
Thus, increased accountability of federal facility nonpoint sources is critical to the future of water quality improvement, and the Clean Water Action Plan emphasizes that the federal government must do its share to control polluted runoff.(17) Indeed, improved federal facility nonpoint source management is a "key action" in the Plan. Noting that "[m]uch of the activity that takes place on federal land is authorized through federal permits, licenses, and leases," EPA and USDA have promised that "Federal agencies will ensure that environmental safeguards and appropriate water quality provisions are incorporated into special use permits, leases, and licenses."(18)
But what if they don't? Do interested parties--states or citizens--have any legal recourse against federal facility nonpoint sources that violate applicable water quality requirements?
Historically, both aspects of "federal facility" "nonpoint sources" have undermined their water quality accountability. Federal facilities have repeatedly resisted enforcement efforts, particularly citizen suits, on sovereign immunity grounds. Nonpoint sources, in turn, are generally exempt from federal enforcement--a legal reality that the Ninth Circuit, in particular, has repeatedly delineated.
Nevertheless, in Idaho Sporting Congress v. Thomas,(19) the Ninth Circuit allowed environmental plaintiffs to use the federal Administrative Procedure Act (APA)(20) to sue the Forest Service, as a Clean Water Act federal facility nonpoint source, for violations of Idaho's water quality standards--specifically, for violations of Idaho's antidegradation requirement. In addressing the allowable scope of the lawsuit, the Ninth Circuit grossly misinterpreted Idaho's antidegradation policy. More importantly, it completely ignored the double sovereign immunity limitations that govern lawsuits against federal facility nonpoint sources. These limitations require, on principles of statutory federalism, that federal courts carefully examine state law requirements in assessing a federal facility's nonpoint source responsibilities. As a result, they often preclude a court from directly enforcing state water quality standards against that source.
This Article argues that the Ninth Circuit's general statement that federal facility nonpoint sources must comply with state water quality standards is, as a blanket requirement, inaccurate. Instead, the Article concludes that, while APA suits are available against such sources, the waivers of sovereign immunity in both the Clean Water Act and the APA limit the federal facility's water quality responsibility to the enforceable and applicable nonpoint source requirements found in the relevant state's nonpoint source management plan. In many states, and for many types of nonpoint sources, this limitation will mean that federal facilities need only comply with the state-prescribed best management practices. Finally, this Article concludes that, although sovereign immunity concerns in this context potentially subject federal facilities to fifty different sets of state nonpoint source requirements, this result is consistent with the Clean Water Act's division of regulatory authority for nonpoint sources and best preserves congressional intent.
IDAHO SPORTING CONGRESS V. THOMAS AND IDAHO ANTIDEGRADATION LAW
The Prelude: Nonpoint Sources, Federal Facilities, the Need for the APA, and Oregon Natural Resources Council v. United States Forest Service
Nonpoint Source Regulation under the Clean Water Act
Point Source Permits Versus Nonpoint Source Control Programs
Most federal litigation under the Clean Water Act derives directly or indirectly from the Act's announcement that, except as in compliance with various of its provisions, "the discharge of a pollutant by any person shall be unlawful."(21) The Act further defines "discharge of a pollutant" to be "any addition of any pollutant" to navigable waters, the contiguous zone, or the ocean "from any point source."(22) Thus, the Act's "zero discharge" baseline applies only to point sources, which the Act defines as "any discernible, confined, and discrete conveyance,"(23) such as pipes.
Point sources can discharge pollutants only when they comply with the Act's regulatory mechanisms, and the most widely-applicable mechanism for regulating point source discharges is the National Pollutant Discharge Elimination System (NPDES) permit program.(24) An NPDES permit sets limits on the quantity of various pollutants a point source can discharge, and failure to obey these limits subjects the discharger to penalties and other enforcement actions.(25) Conversely, compliance with an NPDES permit is deemed to be...