Idaho Sporting Congress v. Thomas and sovereign immunity: federal facility nonpoint sources, the APA, and the meaning of "in the same manner and to the same extent as any nongovernmental entity."

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.

I. INTRODUCTION

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.

II. IDAHO SPORTING CONGRESS V. THOMAS AND IDAHO ANTIDEGRADATION LAW

A. The Prelude: Nonpoint Sources, Federal Facilities, the Need for the APA, and Oregon Natural Resources Council v. United States Forest Service

1. Nonpoint Source Regulation under the Clean Water Act

a. 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 compliance with the Act.(26)

The terms of an NPDES permit are based on water quality standards and effluent limitations. EPA initially sets baseline effluent limitations, which are numerical standards regarding the quantities, rates, and concentrations of pollutants that point sources can discharge.(27) States, on the other hand, received the initial authority from Congress to set water quality standards for the waters within their boundaries.(28) Water quality standards have two parts: designated uses and water quality criteria.(29) Designated uses are uses, such as water supply, recreation, or fishing, for which a given water body is actually used or that the state wants the waterbody to eventually support.(30) Water quality criteria, in turn, are the "constituent concentrations, levels, or narrative statements" regarding water quality that will produce water fit for the designated uses.(31) Water quality standards can give states the final say on how stringently the waters within their borders will be protected from point source discharges, because EPA must revise its effluent limitations to ensure that state water quality standards are met.(32)

Water quality standards are also the starting point for controlling nonpoint source pollution. The Clean Water Act does not define "nonpoint source," nor has EPA defined that term in regulations. However, EPA and the courts agree that nonpoint source pollution generally consists of diffuse water pollution from unconfined sources, particularly runoff from rains or snowmelt.(33) Because nonpoint sources are, by definition, not point sources, they are not subject to the Clean Water Act's general prohibition on discharges or to permit requirements. Indeed, the Act "contains no mechanism for direct federal regulation of nonpoint source pollution."(34) Instead, states regulate nonpoint sources pursuant to section 319.(35)

Added in 1987, section 319 provides incentives to states to adopt nonpoint source management programs.(36) In order to receive financial and technical assistance, states first submitted to EPA a report that identified: 1) waters that could not meet water quality standards because of nonpoint source pollution; and 2) the types of nonpoint sources that were causing the problems.(37) The report also had to describe how the state could identify "best management practices and measures" (BMPs) to control pollution from each type of nonpoint source.(38) States then had to submit for EPA's approval a nonpoint source management program that implemented state control over nonpoint source pollution through those BMPs.(39)

States were required to submit their reports and programs to EPA by August 4, 1988,(40) and then EPA had 180 days to approve or disapprove each state's program.(41) Delays were, perhaps, inevitable, but by 1998, all states had EPA-approved nonpoint source programs and were implementing those programs.(42)

b. Best Management Practices and State Variations

Although states first identified nonpoint sources requiring greater control on the basis of unrealized water quality standards, the heart of most of these programs--as section 319 indicates--is the implementation of best management practices (BMPs). BMPs are measures that nonpoint sources can implement to reduce water pollution.(43) For example, agricultural nonpoint sources might engage in contour farming to reduce sediment runoff or use integrated pest management to reduce the quantities of pesticides that wash into nearby streams.(44) States can vary widely in their use of BMPs and in how stringently they enforce their nonpoint source management requirements, particularly regarding the enforceability of state water quality standards directly against nonpoint sources.

Within the Ninth Circuit, for example, Oregon statutes prohibit anyone--point or nonpoint source--from "[causing] pollution of any waters of the state or plac[ing] or caus[ing] to be placed any wastes in a location where such wastes are likely to escape or be carried into the waters of the state by any means."(45) Nevertheless, Oregon still relies heavily on BMPs and water quality requirements that are specific to particular kinds of nonpoint sources. For example, logging and forest management activities must "be conducted in accordance with the Oregon Forest Practices Act."(46) If logging and forest management cause violations of the state water quality standards even though the loggers and managers comply with the BMPs, the state Department of Forestry must review those BMPs.(47) However, "[a] forest operator conducting ... operations in accordance with best management practices currently in effect shall not be considered in violation of any water quality standards."(48) Thus, the forest operator's actual legal obligation is to implement the current BMPs--not to ensure that no violations of the state water quality standards occur.

In contrast, Washington makes it the nonpoint source's responsibility to adjust the BMPs if the recommended BMPs are insufficient to prevent violations of water quality standards. "Activities which generate nonpoint source pollution shall be conducted so as to comply with the water quality standards."(49) BMPs are the normal means of complying with this requirement,(50) but "[i]f a [nonpoint source] discharger is applying all best management practices appropriate or required ... and a violation of water quality criteria occurs, the discharger shall modify existing practices or apply further water pollution control measures...."(51)

Finally, Montana imposes only minimal regulation on nonpoint sources within its borders. It deems most nonpoint sources to be "nonsignificant activities" that do not degrade water quality.(52) Moreover, even when nonpoint sources clearly contribute to water quality standard violations, the state legislature has encouraged the implementing agency to rely on recognized management practices and to emphasize voluntary controls.(53)

States also vary widely concerning enforcement. As the Ninth Circuit has recognized, "[s]ection 319 does not require states to penalize nonpoint source polluters who fail to adopt best management practices...."(54) Thus, the enforcement options available against a particular nonpoint source polluter depend on the applicable state program. In Nevada, for example, enforcement authority against nonpoint sources is more limited than against point sources; nonpoint source enforcement requires an intermediate enforcement order and eliminates the possibility of criminal sanctions.(55) Under Washington law, in contrast, the entire panoply of enforcement measures is available against any nonpoint source that fails to implement BMPs.(56)

2. Federal Facility Nonpoint Sources and the Clean Water Act

Under basic principles of sovereign immunity, the federal government is not subject to suit or regulation unless it chooses to be.(57) However, since the Clean Water Act's modern reworking in 1972, section 313 has expressly required federal facilities to comply with the Act's requirements.(58) In its current form, section 313 requires that any federal agency "(1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants ... comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity...."(59)

For a federal agency to qualify as a federal facility, that agency's property, facilities, or activities, or private activities that the agency authorizes, licenses, or permits, must cause or threaten "the discharge or runoff of pollutants."(60) "Discharge" most clearly invokes point source pollution.(61) However, activities that can result in "runoff" also create federal facility status, and "runoff" typically refers to nonpoint source pollution. Neither the Clean Water Act nor EPA's implementing regulations define "runoff," but courts have generally considered any unconfined movement of water over land to be included if the water might or will reach a waterway.(62) Runoff is a nonpoint source of water pollution because it is an unconfined transportation of water, soft, and other pollutants to a water body.(63) Therefore, at least some federal facility nonpoint sources--those that might result in runoff--are clearly subject to federal, state, and local requirements and processes under the Clean Water Act through section 313.

Section 313, however, subjects federal facilities to Clean Water Act regulation only "in the same manner, and to the same extent as any nongovernmental entity."(64) This limitation on section 313's waiver of sovereign immunity is particularly important in the nonpoint source context, because the Act's enforcement mechanisms do not apply to such sources. Instead, plaintiffs wishing to challenge a federal facility nonpoint source must rely on the federal APA.

3. The Need for the Federal APA in Suits Against Federal Facility Nonpoint Sources

Congress enacted the federal APA to set baseline procedures that federal agencies must follow and to provide a means of redress for individuals and other entities injured by federal agency action. The APA's judicial review sections provide that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."(65) The reviewing court can force agencies to act(66) or set aside any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"(67) or "without observance of procedure required by law."(68)

However, judicial review is only available under the APA for "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court."(69) Nothing in the Clean Water Act makes the actions of federal facility nonpoint sources explicitly reviewable under the APA, so APA review is only available if there is no adequate remedy in the Clean Water Act itself.

The Ninth Circuit has, in fact, eliminated all avenues of Clean Water Act review for federal facility nonpoint sources. EPA has broad enforcement powers under the CWA,(70) but its authority does not extend to nonpoint sources.(71) Section 401 of the CWA requires the applicable state to certify that all federal licenses and permits "which may result in any discharge into the navigable waters" are in compliance with water quality requirements,(72) and violations of the certification requirement are subject to citizen suits.(73) However, the Ninth Circuit recently decided, based on the definition of "discharge," that section 401 does not apply to federally-licensed or federally-permitted nonpoint sources.(74) Finally, the Clean Water Act allows citizens to sue regarding violations of the statute,(75) but the Ninth Circuit has explicitly and repeatedly decided that the citizen suit provision does not extend to water quality violations by nonpoint sources.(76) Therefore, in the Ninth Circuit, the Clean Water Act provides no adequate remedy against federal facility nonpoint sources, rendering the APA available.

4. Oregon Natural Resources Council v. United States Forest Service

In 1987, the Ninth Circuit explicitly held that the APA allowed plaintiffs to sue federal-facility nonpoint sources to enforce those sources' compliance with state water quality standards.(77) In that case, Oregon Natural Resources Council v. United States Forest Service, plaintiffs sought to enjoin the Bugaboo Timber Company from harvesting timber awarded to it in a Forest Service timber sale.(78) The complaint stated an APA cause of action, alleging, among other things, "that construction of a bridge and logging road will violate ... Oregon water quality standards enforceable under the Clean Water Act."(79)

The Ninth Circuit first noted that, pursuant to the federal facilities provision, the Clean Water Act "requires all federal agencies to comply with all state requirements."(80) However, plaintiffs could not use the CWA's citizen-suit provision to sue to enforce state water quality standards against nonpoint sources,(81) Therefore, the Ninth Circuit turned to the federal APA. Noting first that section 702 of the APA(82) provides a cause of action, the court addressed the effect of section 319's nonpoint source program on the availability of APA review. It concluded that section 319 did not preclude APA review: "by creating a section of the Act specifically addressing nonpoint sources Congress did not intend to cut off review, but intended to protect the interests of persons aggrieved by nonpoint source violations of state water quality standards."(83) As a result, the plaintiffs could use the APA to sue the Forest Service as a federal facility nonpoint source. Moreover, the Forest Service had to ensure compliance with state water quality standards--although the Ninth Circuit acknowledged that "Oregon Water Quality Standards are more complicated than plaintiffs allege" and remanded for a more careful factual and legal analysis.(84) Sovereign immunity played no part in the Ninth Circuit's decision.

B. Idaho Sporting Congress v. Thomas

1. The Decision

In Oregon Natural Resources Council, the Ninth Circuit formulated a neat, simple rule for federal facility nonpoint sources: APA review is available against such sources, and all federal facility nonpoint sources must prevent violations of the relevant state water quality standards. However, that conclusion is too simplistic for the complexities of Clean Water Act regulation, and it has led the Ninth Circuit to suggest that federalized relief is available against a federal facility nonpoint source even when state law would not agree.

In 1998, in Idaho Sporting Congress v. Thomas,(85) the Ninth Circuit wrestled with the meaning of a particular Idaho water quality standard--the state antidegradation policy--for Forest Service timber sales. Idaho's antidegradation policy required that: 1) existing uses of waterways be maintained and protected; and 2) higher quality waters be preserved unless "lowering water quality is necessary to accommodate important economic or social development...."(86) Plaintiff Idaho Sporting Congress (ISC) challenged two Forest Service timber sales in the Targhee National Forest in southeastern Idaho,(87) presenting evidence that two creeks would suffer nonpoint source sediment pollution as a result of the logging(88) and that resident trout would possibly be affected by the timber sales.(89) ISC argued that, under Idaho's antidegradation policy, the Forest Service had "to maintain existing water quality levels unless a formal determination is made that lowering water quality is necessary for social or economic reasons."(90) Moreover, it contended that "the Forest Service would have to show that there are no effects on water quality, i.e., no sediment, even if it did not change the water quality for beneficial uses" and read Idaho's antidegradation policy as presenting "an absolute bar to any adverse effects on water quality."(91)

The Ninth Circuit disagreed. Citing to section 313, the Ninth Circuit first invoked its general rule that "[u]nder the Clean Water Act, all federal agencies must comply with state water quality standards, including a state's antidegradation policy."(92) Although the antidegradation policy itself used mandatory language that supported ISC's arguments, the preamble to Idaho's water quality statutes stated: "`It is the intent of the legislature that ... Idaho fully meet the goals and requirements of the federal clean water act and that the rule promulgated under this act not impose requirements beyond those of the federal clean water act.'"(93) The Ninth Circuit interpreted this provision as being "explicit that the Idaho legislature intended to meet only the federal minimum requirements."(94) Then, looking only at the first section of the federal antidegradation regulation, the court determined that the federal minimum "requires only that `[e]xisting instream water uses and the level of water quality necessary to protect existing uses shall be maintained and protected.'"(95) Having thus eliminated ISC's procedural argument and clarified the standard, the Ninth Circuit remanded for further factual development.(96)

2. Idaho's Antidegradation Policy

Both the plaintiffs and the court in Idaho Sporting Congress discussed the lawsuit only in terms of the water quality standard itself: Would the timber sales violate Idaho's antidegradation provision? Moreover, the Ninth Circuit decided the case by "interpreting" that antidegradation policy. However, the Idaho legislature not only intended to implement only federal minimum requirements, but also that Idaho "`fully meet the goals and requirements of the clean water act....'"(97) The federal antidegradation regulation, which has existed unchanged for decades,(98) sets out a four-part minimum antidegradation policy,(99) and EPA has recently emphasized that all four parts impose requirements on state water quality regulation.(100)

Moreover, like the federal minimum, Idaho's antidegradation policy delineates multiple levels of water quality protection, not just the one that the Ninth Circuit recognized. First, in all waters, "[t]he existing in stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected."(101) Second, Idaho recognizes "high quality waters," "[w]here the quality of the waters exceeds levels necessary to support propagation of fish, shellfish and wildlife and recreation in and on the water."(102) In these waters, the water quality

   shall be maintained and protected unless the Department [of Health and
   Welfare] finds, after full satisfaction of the intergovernmental
   coordination and public participation provisions of the Department's
   continuing planning process, that allowing lower water quality is necessary
   to accommodate important economic or social development in the area in
   which the waters are located.(103)

Finally, in the third tier of the antidegradation policy, "[w]here high quality waters constitute an outstanding national resource, such as waters of national and state parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected from the impacts of point and nonpoint source activities."(104)

Nevertheless, however inaccurate the court's interpretation of Idaho's antidegradation policy, it is the Ninth Circuit's reification of the water quality standard as the measure of a federal facility nonpoint source's water quality responsibilities that more significantly infringes on the Clean Water Act's elaborate scheme of statutory federalism and on established principles of federal sovereign immunity. Under section 319, Congress gave Idaho the authority to determine a nonpoint source's water quality responsibilities within the state borders, and Idaho law expressly eliminates the water quality standards themselves as the measure of a nonpoint source's water quality obligations. Instead, a nonpoint source's specific obligations depend on the BMPs required for the category of water that the nonpoint source might affect. (105)

Idaho has made it clear that implementing the appropriate BMPs is generally the limit of a nonpoint source's compliance obligations:

   Violations of water quality standards which occur in spite of
   implementation of best management practices will not be subject to
   enforcement action. However, if subsequent water quality monitoring and
   surveillance by the Department ... indicate water quality standards are not
   met due to nonpoint source impacts, even with the use of current best
   management practices, the practices will be evaluated and modified as
   necessary by the appropriate agencies....(106)

   [F]or nonpoint source activities, failure to meet general or specific water
   quality criteria, or failure to fully protect a beneficial use, shall not
   be considered a violation of the water quality standards for the purpose of
   enforcement.(107)

   [S]o long as a nonpoint source activity is being conducted in accordance
   with applicable rules, regulations, and best management practices ..., or
   in the absence of referenced applicable best management practices,
   conducted in a manner that demonstrates a knowledgeable and reasonable
   effort to minimize resulting adverse water quality impacts, the activity
   will not be subject to conditions or legal actions....(108)

Idaho's emphasis on BMPs extends even to outstanding resource waters. In these waters, new and modified nonpoint sources cannot lower water quality,(109) and they must be approved before operations begin.(110) Such approval, however, requires only that the new nonpoint source comply with the BMPs particular to the outstanding resource water and the type of nonpoint source.(111) Moreover,"[w]hen the applicable outstanding resource water best management practices are applied, the landowner, land manager, or operator applying those practices will be in compliance with the provisions of this act."(112) If the BMPs are not stringent enough, the agency must revise those practices.(113) However, a complying nonpoint source cannot be held responsible for the drop in water quality.(114)

Therefore, in requiring through the APA that the Forest Service, as a federal facility nonpoint source, ensure that logging on federal land does not violate Idaho's water quality standards, the Ninth Circuit imposed a requirement on the Forest Service that state law would not. Moreover, the Ninth Circuit imposed more stringent regulation than Idaho law does, because Idaho explicitly acknowledges that BMPs may not end up being sufficient to prevent violations of water quality standards but nevertheless relieves nonpoint sources of liability for that result. The Ninth Circuit thus effectively used the APA to expand the Forest Service's nonpoint source responsibilities beyond state-law limitations, a result that violates principles of sovereign immunity and exceeds the Ninth Circuit's jurisdiction.

III. FEDERAL FACILITY NONPOINT SOURCES, SOVEREIGN IMMUNITY, AND THE APA

A. Sovereign Immunity Limitations and the Federal APA

In writing the federal APA, Congress explicitly recognized that other statutes can and do limit the availability of APA review. Two such limitations are of particular relevance to this discussion. First, under section 702, the APA waives federal agencies' sovereign immunity only when no other statute excludes such a waiver.(115) Second, under section 701, the APA provides a cause of action only when no other statute precludes judicial review.(116) The Clean Water Act is such an "other statute," and it limits the type of APA suits available against federal facility nonpoint sources because section 313 subjects federal facilities to water quality requirements only "to the same extent as any nongovernmental entity."(117)

Sovereign immunity is a Judge-made doctrine that declares that the United States government is immune from suit unless it consents to be sued.(118) As such, an applicable waiver of sovereign immunity is a necessary prerequisite to any suit against the federal government, even suits by states.(119) Waivers of such immunity can only come through acts of Congress,(120) and the waivers must be unequivocal.(121) In addition, courts strictly construe any waiver of sovereign immunity in favor of the federal government.(122)

Originally, section 702 of the APA stated only that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."(123) Federal courts were thus left with the question of whether Congress had indeed waived the federal government's sovereign immunity for APA suits. By 1976, the circuits had split, with three holding that the APA did waive sovereign immunity and five holding that it did not.(124)

In 1976, Congress amended the APA to make it clear that the APA did waive the federal government's sovereign immunity.(125) As amended, section 702 of the APA now provides that:

   A person suffering legal wrong because of agency action, or adversely
   affected or aggrieved by agency action within the meaning of a relevant
   statute, is entitled to judicial review thereof. An action in a court of
   the United States seeking relief other than money damages and stating a
   claim that an agency or an officer or employee thereof acted or failed to
   act in an official capacity or under color of legal authority shall not be
   dismissed nor relief therein be denied on the ground that it is against the
   United States or that the United States is an indispensable party....
   Nothing herein (1) affects other limitations on judicial review or the
   power  or duty of the court to dismiss any action or deny relief on any
   other appropriate  legal or equitable ground. or (2) confers authority to
   grant relief if any other statute that grants consent to suit expressly or
   impliedly forbids the relief which is sought.(126)

Nevertheless, the amended section 702 also makes it clear that the waiver is limited. For example, "[t]he explicit exclusion of monetary relief makes it clear that sovereign immunity is abolished only in actions for specific relief (injunction, declaratory judgment, mandatory relief, etc.)."(127) In terms of venue, "[t]he consent to suit is also limited to claims in courts of the United States; hence, the United States remains immune from suit in state courts."(128)

More importantly, the APA's waiver of sovereign immunity does not override the limitations that other federal statutes impose on the availability of judicial review for particular kinds of federal agency action. As amended, "section 702 dearly ... specif[ies] that it does not confer authority to grant relief if any other statute granting consent to suit expressly or impliedly forbids the relief which is sought."(129) Instead, Congress noted that "[f]or years every regulatory statute enacted by Congress has contained provisions authorizing Federal courts to review the legality of administrative action that has adversely affected private citizens."(130) It indicated that the APA amendments were designed primarily to cover "many of the functions performed by the older executive departments, such as the Departments of State, Defense, Treasury, Justice, Interior, and Agriculture" and to fill in "omissions and gaps in the application of special review statutes."(131)

B. The APA's Waiver of Sovereign Immunity and Relief Excluded through Section 702

The amended section 702 emphasizes that nothing in it

   (1) affects other limitations on judicial review or the power or duty, of
   the court to dismiss any action or deny relief on any other appropriate
   legal or equitable ground; or (2) confers authority to grant relief if any
   other statute that grants consent to suit expressly or impliedly forbids
   the relief which is sought.(132)

According to Congress, the "other appropriate legal or equitable ground[s]" for dismissing a suit under Clause 1 include the full gamut of constitutional and prudential doctrines that can affect federal court jurisdiction, such as standing, as well as limitations found elsewhere in the APA, such as the existence of an alternative remedy.(133) Clause 2, in contrast, is "concerned with situations in which Congress has consented to suit and the remedy provided is intended to be the exclusive remedy;" section 702 does not "permit suit in circumstances where statutes forbid or limit the relief sought."(134) Moreover, "the requisite intent can be implied as well as expressed."(135)

Many courts, including the Ninth Circuit, deal with APA sovereign immunity limitations exclusively through section 702. The most extensive litigation over conflicts of sovereign immunity waivers and the APA has come in connection with the federal Quiet Title Act (QTA).(136) The QTA waives the United States' sovereign immunity for suits involving title to land.(137) However, this waiver expressly "does not apply to trust or restricted Indian lands,"(138) and the QTA has a twelve-year statute of limitations.(139) When plaintiffs are trying to quiet title to land to which there is some tribal claim or which otherwise does not fit within the QTA's parameters, they have attempted to rely on the APA's waiver of sovereign immunity instead.

In 1983, the Supreme Court clearly upheld the primacy of the QTA's specific limitations in Block v. North Dakota.(140) In that case, North Dakota attempted to avoid the limitations in the QTA's waiver, especially the twelve-year statute of limitations, by filing suit against an officer of the United States rather than the United States itself. The Supreme Court nevertheless concluded that the QTA's limited waiver had to control, because "Congress intended the QTA to provide the exclusive means by which adverse claimants could challenge the United States' title to real property."(141) Neither courts nor plaintiffs are free to disregard limitations that Congress attaches to statutory waivers of sovereign immunity:

   The basic rule of federal sovereign immunity is that the United States
   cannot be sued at all without the consent of Congress. A necessary
   corollary of this rule is that when Congress attaches conditions to
   legislation waiving the sovereign immunity of the United States, those
   conditions must be strictly observed, and exceptions thereto are not to be
   lightly implied.(142)

The Court also concluded that the APA could not provide North Dakota with an alternative cause of action. Reviewing the 1976 amendments to the APA, the Court emphasized that section 702 "specifically confers no `authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought."(143) The QTA, it concluded, "is such an `other statute,' because, if a suit is untimely under the QTA, the QTA expressly `forbids the relief which would be sought under [sections] 702.(144)

The Ninth Circuit has faced a series of related cases raising several permutations of the QTA/APA sovereign immunity issue in the context of disputes to Indian lands in Alaska. In 1987, it rejected an APA-based challenge to the Secretary of the Interior's authority to resurvey the boundary of an Indian reservation, concluding that the APA was not available to plaintiffs when the United States is immune from suit under the QTA.(145) In 1994, facing the first of a series of cases about Alaska Native allotments, it noted that "under the APA, the United States waives its sovereign immunity when a person has suffered some legal wrong as a result of an agency decision, except where some other statute controls."(146) The Ninth Circuit then broadly concluded, relying on Block v. North Dakota, that "when the United States has an interest in the disputed property, the waiver of sovereign immunity must be found, if at all, within the QTA."(147) The APA was not available. Because the case involved title to Indian lands and thus fell within the QTA's exemption, the QTA did not waive the government's sovereign immunity and the court lacked subject matter jurisdiction.(148)

The QTA/APA litigation in the Supreme Court and Ninth Circuit thus makes clear that plaintiffs cannot use the APA to expand the scope of a limited waiver of sovereign immunity found in another governing statute. In the case of the Clean Water Act, section 313 limits the waiver of sovereign immunity for federal facilities to "Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity...."(149) For nonpoint source pollution, this sovereign immunity limitation means that federal facilities nonpoint sources can only be held to the requirements, process, and sanctions that states impose on nonpoint sources through their section 319 nonpoint source control programs.

C. The APA's Applicability and Other Statutes

In addition to providing a limited waiver of sovereign immunity, the APA can provide a federal cause of action for lawsuits against federal agencies. The lines between these two aspects of the APA blur, and many courts have blended sovereign immunity and cause-of-action analyses into a general question of "jurisdiction." Congress has in fact invited such blurring by noting that one set of "other limitations" that can constrict the scope of section 702's waiver of sovereign immunity is found in subsection 701(a) of the APA itself,(150) which defines the APA's applicability.

Subsection 701(a) states that the APA's judicial review provisions do not apply to agency actions when "statutes preclude judicial review"(151) or when "agency action is committed to agency discretion by law."(152) According to Congress, the 1976 amendments to section 702 left "case law concerning these two categories of review ... untouched."(153) Instead, the amendments acted "to bar the assertion of sovereign immunity and force the court to articulate the true rationale for a decision not to grant relief."(154) The "true rationale" in sovereign immunity cases is more often statutory preclusion than agency discretion, and therefore the rest of this discussion will focus on subsection 701(a)(1).(155)

In general, statutory preclusion under subsection 701(a)(1) is difficult to argue, because courts have interpreted the APA to promote the availability of judicial review.(156) The Supreme Court has emphasized that "[t]he statutory preclusion of judicial review must be demonstrated clearly and convincingly."(157) Express language stating that APA review is precluded is not required, but "[i]n the absence ... of statutory language expressly precluding APA review, the Court must examine the structure and history of the statute to determine whether the requisite congressional intent to bar judicial review is clearly established."(158)

However, because waivers of sovereign immunity are strictly construed, courts are, as a practical matter, more willing to find statutory preclusion of an APA cause of action when the precluding statute is a limited waiver of the federal government's sovereign immunity. As the Supreme Court has noted, "[s]ubsection (a)(1) is concerned with whether Congress expressed an intent to prohibit judicial review,"(159) and the failure to waive the federal government's sovereign immunity is an expression of such intent.

In the environmental context, for example, the Fifth Circuit has determined that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)(160) precludes judicial review of certain of EPA's actions and prohibits suit under the APA's waiver of sovereign immunity. In a 1989 case, EPA completed an emergency response action pursuant to CERCLA during flood conditions to prevent widespread release of several toxic chemicals from a pesticide and herbicide processing plant in Texas.(161) EPA spent $2,000,000 of Superfund money, which it sought to recover from nine parties that it believed were responsible for the hazardous conditions.(162) One of the nine filed suit in federal court seeking a declaratory judgment that it was not a responsible party.(163) The EPA sought to dismiss the suit on the grounds that the federal government had not waived its sovereign immunity because section 113 of CERCLA(164) deprives federal courts of jurisdiction "under Federal law" to hear challenges to EPA's cleanup decisions and orders.(165) The plaintiff argued that the APA provided the requisite waiver of sovereign immunity, but the Fifth Circuit disagreed. It emphasized that the APA "`withdraws that cause of action to the extent the relevant statute "precludes judicial review," 5 U.S.C. [sections] 701(a)(1).'"(166) Section 113(h) of CERCLA, the court noted, precludes judicial review of removal and remedial actions except in limited circumstances.(167) As a result, "section 702 of the APA does not operate as a waiver of the United States' sovereign immunity to suit in the instant case because CERCLA precludes the judicial review sought."(168)

Similarly, section 313 of the Clean Water Act precludes judicial review of certain federal agency actions by limiting its waiver of sovereign immunity. As a result, section 701(a)(1) of the APA prohibits APA review of any federal facility nonpoint source activities not included within the scope of section 313--that is, violations of anything other than state nonpoint source management program requirements.

D. The Scope of Section 313's Waiver

1. The Supreme Court Has Consistently Construed Section 313 Strictly

Section 313 of the Clean Water Act is a limited waiver of sovereign immunity, and the Supreme Court has consistently construed it to shield federal facilities from the statute's regulatory process. For example, the 1972 version of section 313 did not explicitly subject federal facilities to state permitting requirements.(169) As states began to acquire NPDES permitting authority,(170) the federal government argued that federal facilities could not be required to go to the states for permits. Although lower courts found that the Clean Water Act waived federal facilities' sovereign immunity from state permit requirements,(171) two 1976 companion Supreme Court cases, Hancock v. Train,(172) which dealt with the Clean Air Act,(173) and Environmental Protection Agency v. California ex rel. State Water Resources Control Board,(174) which dealt with the Clean Water Act, found in favor of the federal government. For the Clean Water Act, the Supreme Court noted that "[f]ederal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous."(175) Emphasizing the distinction between substantive and procedural requirements, the Court then found that "Section 313 does not expressly provide that federal dischargers must obtain state NPDES permits. Nor does [sections] 313 or any other section of the Amendments expressly state that obtaining a state NPDES permit is a `requirement respecting control and abatement of pollution.'"(176) As a result, Congress had not waived federal facility point sources' sovereign immunity from state regulation.(177)

More recently, federal facilities have challenged their liability for state-assessed civil penalties on sovereign immunity grounds. The current version of section 313 subjects federal facilities to "any process and sanction, whether enforced in Federal, State, or local courts or in any manner."(178) However, it also provides that "the United States shall be liable only for those civil penalties arising under Federal law or imposed by a State or local court to enforce an order or process of such court."(179) In 1992, the U.S. Supreme Court again strictly interpreted the scope of section 313's waiver of sovereign immunity, finding in United States Department of Energy v. Ohio(180) that the federal government was exempt from liability for punitive fines and penalties.

The plaintiff State of Ohio sought civil penalties against the Department of Energy for its violations of the Clean Water Act. It made two arguments: 1) that the word "sanction" in section 313 clearly demonstrated Congress's intent to subject federal facilities to punitive fines;(181) and 2) that civil penalties assessed by states pursuant to federally-approved Clean Water Act programs "arise under federal law."(182) The Supreme Court disagreed with both arguments.

First, the Court noted that "the meaning of the word `sanction' is spacious enough to cover not only what we have called punitive fines, but coercive ones as well, and the use of the term carries no necessary implication that a reference to punitive fines is intended."(183) It emphasized, moreover, that "sanction" always appears in section 313 in the phrase "process and sanctions," implying "that Congress was using `sanction' in its coercive sense, to the exclusion of punitive fines."(184)

Second, the Court emphasized that section 313 explicitly renders federal facilities liable only for civil penalties "arising under Federal law or imposed by a State or local court to enforce an order or process of such court."(185) This specificity works "to clarify or limit the waiver [of sovereign immunity] preceding it."(186) Penalties that do not arise under federal law are not within the waiver. The Court determined that civil penalties assessed pursuant to delegated state Clean Water Act programs do not "arise under" federal law, even though EPA must approve state Clean Water Act programs, because delegated programs are state law.(187) As a result, Ohio's claim for civil penalties did not fit within section 313's waiver of sovereign immunity and had to be dismissed.

Although sixteen years elapsed between EPA v. California ex rel. State Water Resources Control Board and United States Department of Energy v. Ohio, the Supreme Court remained remarkably consistent in interpreting the scope of section 313's waiver of sovereign immunity. In both cases, the Court emphasized that a waiver of sovereign immunity exists only if Congress' intent is clear and unambiguous.(188) In both cases, moreover, when it was not crystal clear from the express language of section 313 that the waiver of sovereign immunity extended to the situation at hand, the Supreme Court restricted the scope of that waiver--even though a more expansive reading would have made more intuitive and practical sense.

Thus, in 1976, the Court emphasized that: 1) the federal facilities provision, as then existing, "does not expressly provide that federal dischargers must obtain NPDES permits;"(189) 2) neither "[sections] 313 or any other section of the Amendments expressly state[s] that obtaining a state NPDES permit is a `requirement respecting control and abatement of pollution;'"(190) and 3) "the legislative history of [sections] 313 casts no light on the meaning of [the phrase `including the payment of reasonable service charges'], and it is not immediately clear from the face of [sections] 313 that the phrase does refer to application and service charges associated with an NPDES permit program."(191) Despite this lack of clarity, the Court found no waiver of sovereign immunity that required federal facilities to obtain state-issued NPDES permits. Moreover, the Court adhered to this conclusion, even though it recognized "that there may be some problems of coordination between the EPA and the state pollution control agency in the implementation of state water quality standards."(192)

In 1992, the Supreme Court similarly emphasized that section 313 lacked explicit language that clearly subjected federal facilities to punitive penalties.(193) Noting that section 313's reference-to "civil penalties arising under federal law" created questions of interpretation,(194) the Court nevertheless emphasized that such questions do not create a waiver of sovereign immunity:

   under our rules that tension is resolved by the requirement that any
   statement of waiver be unequivocal: as against the clear waiver for
   coercive fines the indication of a waiver as to those that are punitive is
   less certain. The rule of narrow construction therefore takes the waiver no
   further than the coercive variety.(195)

2. The Scope of Section 313's Waiver of Sovereign Immunity for Federal Facility Nonpoint Sources

The Supreme Court's prior decisions regarding section 313 thus emphasize the limited nature of the waiver of sovereign immunity for federal facility nonpoint sources. Like the 1976 version of section 313 regarding permits and the 1992 version regarding punitive civil penalties, the current section 313 does not explicitly use the term "nonpoint source." Nevertheless, the federal facilities provision clearly applies to at least some nonpoint sources because it applies to federal properties, facilities, and activities that might result in the "runoff" of pollutants. Given the Supreme Court's consistently narrow interpretation of section 313, however, non-runoff sources of nonpoint source pollution, such as landslides, are probably not within the waiver of sovereign immunity. Therefore, federal facility nonpoint sources must involve runoff pollution before section 313 waives the facility's sovereign immunity.

If runoff of pollutants is a possible problem, however, then the federal facility nonpoint source

   shall be subject to, and comply with, all Federal, State, interstate, and
   local requirements, administrative authority, and process and sanctions
   respecting the control and abatement of water pollution in the same manner,
   and to the same extent as any nongovernmental entity including the payment
   of reasonable service charges,(196)

In the Ninth Circuit--the only circuit to explore these issues in any detail--there are no federal requirements, administrative authority, process or sanctions available against individual nonpoint sources. Therefore, because section 313 only waives federal facilities' sovereign immunity to the extent that it treats them like nongovernmental entities, section 313 cannot be used to impose federal requirements, administrative authority, process or sanctions on federal facility nonpoint sources.

Nevertheless, section 313 also waives federal facilities' sovereign immunity regarding all state and local requirements, administrative authority, and process and sanctions. All states now have approved nonpoint source management programs and thus impose requirements on nonpoint sources.(197) What exactly those requirements are varies from state to state, but, as discussed above, BMPs are the core of most state management programs. While some states, like Oregon, hold most nonpoint sources directly responsible if they cause a waterway to violate the applicable water quality standards, others, like Montana, do not. In addition, the remedies available against nonpoint sources vary considerably from state to state. Thus, although section 313 waives federal facilities' immunity from these state requirements, a federal facility nonpoint source's exact regulatory responsibilities can only be determined by carefully examining the applicable state law.

Finally, because Congress has never amended the Clean Water Act in response to United States Department of Energy v. Ohio, section 313 continues to limit the federal government's civil penalty liability to "civil penalties arising under Federal law or imposed by a State or local court to enforce an order or the process of such court"(198) Thus, the Clean Water Act does not waive federal facility nonpoint sources' sovereign immunity for any punitive penalties, regardless of what the applicable state nonpoint source management program may allow.

E. Clean Water Act Federal Facility Nonpoint Sources and the APA

In Idaho Sporting Congress, the Ninth Circuit declared that the APA is available to sue federal facility nonpoint sources for violations of state water quality standards without considering what the state nonpoint source control program actually requires. Moreover, the Ninth Circuit rested its decision solely on the substantive provisions of section 313. Neither it nor any other federal circuit has ever considered the sovereign immunity limitations inherent in both section 313 and section 702 of the APA for suits against federal facility nonpoint sources.(199)

The Clean Water Act's point/nonpoint source distinction, in conjunction with the Ninth Circuit's treatment of nonpoint sources, raises two APA sovereign immunity issues for federal facility nonpoint sources: First, is the APA available at all, or are federal facility nonpoint sources excluded from all federal court litigation? Second, if APA review is available, can that availability be used to impose a general, across-the-board requirement that federal facility nonpoint sources comply with state water quality standards, regardless of the state nonpoint source control program?

1. Is APA Review of Federal Facility Nonpoint Souses Available At All?

Under the Ninth Circuit's reading of the Clean Water Act, an argument can be made that no APA review of federal facility nonpoint sources is available. The Ninth Circuit's interpretations of the Clean Water Act's citizen suit provision and section 401 eliminate all of the Act's "processes and sanctions"(200) for nonpoint sources, leaving the states the exclusive regulators of nonpoint source pollution. All the federal government can do with respect to nonpoint sources is approve or disapprove the state nonpoint source management plans.

In the Ninth Circuit, therefore, the availability of APA review renders federal facility nonpoint sources the only nonpoint sources that are subject to federal court process. Section 313, however, subjects federal facilities to water quality process and sanctions only "in the same manner, and to the same extent as nongovernmental entities."(201) Thus, arguably, if nongovernmental nonpoint sources are not subject to federal court enforcement and process, neither should federal facility nonpoint sources.

Translating this argument into section 702 of the APA. the Clean Water Act's federal facilities provision implicitly prohibits all federal court review of and enforcement against federal facility nonpoint sources. The federal facilities provision is thus for purposes of Clause 2 an "other statute that grants consent to suit" that "expressly or impliedly forbids the relief which is sought"(202)--specifically, the relief of federal court review. As such, because of the limitations in both the Clean Water Act's and the APA's waiver of sovereign immunity, the APA cannot step in and supply a federal cause of action against federal facility nonpoint sources.

However, there are two problems with this "no federal court access" analysis. First, Congress did not intend the Clean Water Act to be the exclusive remedy against the federal government for water-quality-related problems. Indeed, the Act's citizen suit provision explicitly provides that "[n]othing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any effluent standard or limitation or to seek any other relief (including relief against the Administrator or a State agency)."(203)

Second, eliminating APA suits against federal facility nonpoint sources eliminates not just a federal cause of action but also the availability of a federal court forum for suits against the federal government. In the more common APA/other statute waiver of sovereign immunity problems, the other statute provides the exclusive structure and/or conditions for obtaining judicial review in federal court of a particular kind of federal agency action. Thus, for example, judicial review of quiet title claims against the federal government is available through the Quiet Title Act or not at all. Nevertheless, if a cause of action exists, because the Quiet Title Act's waiver of sovereign immunity applies to the facts at hand, judicial review is always available in federal court

Because of the Clean Water Act's division of regulatory authority, however, denying APA review entirely on the basis of section 313 would leave no avenue of federal court access against federal facility nonpoint sources while still subjecting those federal facilities to state court litigation. All states now have nonpoint source management programs, and section 313 explicitly subjects federal facility nonpoint sources to those state "process and sanctions ... in the same manner, and to the same extent as any nongovernmental entity," regardless of whether the state requirements are substantive or procedural, regardless of whether state and local agencies do the enforcement, and regardless of whether state and local courts and agencies impose the process and sanctions.(204) Thus, eliminating an APA cause of action would subject federal facility nonpoint sources exclusively to state regulatory and judicial oversight.

It may sound somewhat disturbing, given the "in the same manner" language of section 313, to say that federal facility nonpoint sources are the only nonpoint sources that can be challenged in federal court. However, while Congress has shown itself willing to subject federal facilities to state requirements and processes, it is doubtful that it intended to eliminate federal judicial review of federal agency duties. Principles of constitutional federalism militate against such a result, as does common sense. Therefore, absent clearer language than is present in section 313, no court should hold that Congress waived the federal government's sovereign immunity for state judicial processes while barring identical suits in federal courts.

2. Given that APA Review Is Available, Can APA Suits Automatically Be Based on an Allegation that a Federal Facility Nonpoint Source Violated or Caused a Violation of State Water Quality Standards?

Given the analysis above, the Ninth Circuit correctly determined in Oregon Natural Resources Count// that the APA should be available to review the actions of federal facility nonpoint sources. From that conclusion, however, it does not automatically follow that all federal facility nonpoint sources must directly comply with state water quality standards. Clause 2 of section 702 of the APA makes clear that the APA does not "confer[] authority to grant relief if any other statute expressly or impliedly forbids the relief which is sought."(205) Section 313 of the Clean Water Act implicitly forbids courts to impose any water quality requirements or sanctions on federal facilities except those to which nongovernmental entities are also subject. Therefore, courts reviewing federal facility nonpoint sources through the federal APA must judge the federal agency's actions in light of the relevant state's specific programs for all nonpoint sources.

This conclusion is consistent with both the Supreme Court's and the Ninth Circuit's APA sovereign immunity litigation. The QTA, for example, waives the federal government's sovereign immunity in quiet title suits, but not for suits involving title to Indian lands or for suit filed more than twelve years after the cause of action accrued. The federal courts have universally held that plaintiffs cannot use the APA to override these limitations in the QTA's waiver of sovereign immunity.

The Clean Water Act, similarly, waives federal facilities' sovereign immunity regarding federal, state, and local water quality requirements, processes, and sanctions, but limits the scope of that waiver to the same regulation and enforcement that nongovernmental entities endure. Moreover, given the Supreme Court's repeated injunction that federal courts must construe waivers of sovereign immunity strictly in favor of the government--a maxim that the Supreme Court itself has been more than willing to follow for the Clean Water Act's federal facilities provision--the limitations inherent in both Clause 2 of APA section 702 and the "in the same manner, and to the same extent" language in section 313 of the Clean Water Act(206) must be given full effect.

There are no general, nation-wide federal requirements applicable to nonpoint sources. Therefore, the Ninth Circuit's insistence that all federal facility nonpoint sources must ensure that they do not cause violations of state water quality standards is insupportable under a proper sovereign immunity analysis. Instead, APA suits against a federal facility nonpoint source must be based on the relevant state nonpoint source management program, and the requirements to which federal facility nonpoint sources are subject will thus vary from state to state--as they do for nongovernmental nonpoint sources. The specific requirements are also likely to vary according to the exact type of nonpoint source that the federal facility is--as they do for nongovernmental nonpoint sources. Finally, whatever the specific applicable state requirements are, they are more likely to impose the use of BMPs than to require that nonpoint sources comply with state water quality standards.

IV. CONCLUSION

As the Clean Water Action Plan emphasizes, effective control over nonpoint source water pollution is necessary if the United States is to keep making progress in cleaning up its waterways. Federal lands, moreover, are an important aspect of the nonpoint source problem. The Clean Water Act makes federal agencies accountable for their water pollution. Nevertheless, as states and citizens try various legal means of reaching federal facility nonpoint sources in federal court, they find--at least in the Ninth Circuit--that only the federal APA is available.

It is perhaps understandable, therefore, that the Ninth Circuit in Idaho Sporting Congress used the APA to impose blanket federalized requirements on federal agencies that engage in or license nonpoint source pollution. However, such a simplified approach both undermines Congress's scheme of statutory federalism in the Clean Water Act, which divides regulatory responsibilities between the state and federal governments along the nonpoint/point source line, and violates the limited waivers of sovereign immunity in both section 313 of the Clean Water Act and section 702 of the APA. However, as much as Congress wanted federal facilities to be examples for the rest of the nation, it only subjected them to water pollution regulation "in the same manner, and to the same extent as any nongovernmental entity."(207)

Federal facility nonpoint sources should be subject to federal court review pursuant to the APA. However, because section 313 waives federal facilities sovereign immunity from water quality requirements only to the extent of requiring federal facilities to comply "in the same manner, and to the same extent, as any nongovernmental entity,"(208) and because the APA cannot grant relief that is implicitly prohibited by another federal statute that waives the federal government's sovereign immunity, the heart of such review must be the applicable state's nonpoint source management program. If, as in Washington, a nonpoint source has a duty to prevent violations of water quality standards, then the federal facility can likewise be held directly responsible for violations of those standards. If, however, state law only requires that a nonpoint source comply with the appropriate BMPs, as in Idaho and Montana, federal courts must bow to state law and look beyond the state water quality standards-no matter how severe the violations of those standards may be.

A proper analysis of section 313's limited waiver of sovereign immunity and the interaction of section 313 and section 702 of the APA in the nonpoint source context would demonstrate that sovereign immunity often bars, or at least limits, claims like that in Idaho Sporting Congress and would make clear that plaintiffs cannot use the APA to expand a federal facility nonpoint source's compliance responsibilities beyond those that the relevant state imposes generally on the nonpoint sources within its borders. A careful articulation of the sovereign immunity issues that federal facility nonpoint sources raise would make clear to both the potential litigants and to the federal facilities themselves that nonpoint source requirements are almost entirely a matter of state law.

Sovereign immunity thus complicates lawsuits against federal facility nonpoint sources and demands that federal courts be intimately familiar with particular state nonpoint source requirements. Congress, however, has demanded such complexity by first leaving nonpoint source regulation to the states and then subjecting federal facilities to water quality regulation only "in the same manner, and to the same extent, as nongovernmental entities...."(209) It is neither the responsibility nor the prerogative of federal courts to rewrite congressional decisions regarding statutory federalism, nor to liberalize limited waivers of sovereign immunity, and the Ninth Circuit has declined a more defensible opportunity to increase federal facility nonpoint source review by declaring the section 401 certification process inapplicable to nonpoint sources. Therefore, the simple and federalized rule from Idaho Sporting Congress must become fifty analyses based in individual states' nonpoint source management programs. Only by wrestling with such complexity can courts give full effect to the statutory federalism in Congress's scheme "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters"(210) while simultaneously restoring and maintaining the integrity of both the Clean Water Act's and the APA's sovereign immunity limitations.

(1) 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997). The Act is commonly referred to as the "Clean Water Act" because of the substantial amendments added to the FWPCA through the Clean Water Act of 1977. Pub. L 95-217, 91 Stat. 1577 (Dec. 27, 1977).

(2) S. REP. NO. 92-414, reprinted in 1972 U.S.C.C.A.N. 3668, 3733 (Oct 28, 1971).

(3) Id. at 3746.

(4) Id. at3705. See also id. at 3718-20 (discussing various kinds of nonpoint source pollution).

(5) Id. at3733-34.

(6) Pub. L. 92-500, [sections] 2, 86 Stat 816, 875 (Oct 18, 1972) (codified at 33 U.S.C. [sections] 1323).

(7) 33 U.S.C. [sections] 1323(a) (1994).

(8) Pub. L. 100-4, Title III, [sections] 319(a), 101 Stat 7, 52 (Feb. 4, 1987) (codified at 33 U.S.C. [sections] 1329).

(9) 33 U.s.c. [sections] 1329(b)(1) (1994).

(10) Carol Browner, U.S. Environmental Protection Agency, & Dan Glickman, U.S. Department of Agriculture, Clean Water Successes and Challenges, in CLEAN WATER ACTION PLAN, at http://cleanwater. gov/action/cla. html (Feb. 19, 1998). See also Christina Marie Frankino, Note, The Ninth Circuits Decision in Oregon Natural Desert Association v. Dombeck "Discharging" Responsibility for Water Pollution on Fed, emi Lands, 10 VILL ENVTL. L.J. 431, 432-34 n.8, 434-38 n.10 (reviewing the effectiveness of nonpoint source pollution regulation); Daniel R. Mandelker, Controlling Nonpoint Source Pollution: Can It Be Done?, 65 CHI.-KENT L. REV. 479, 480-82 (1989) (describing the nonpoint source pollution problem).

(11) Carol Browner, U.S. Environmental Protection Agency, & Dan Glickman, U.S. Department of Agriculture, Ten Principles for Restoring and Protecting America's Waters, in CLEAN WATER ACTION PLAN, at http://cleanwater.gov/action/clb.html (Feb. 19, 1998). See also Mirth White, Note, Can Congress Draft a Statute Which Forces Federal Facilities to Comply with Environmental Laws in Light of the Holding in United States Department of Energy v. Ohio?, 15 WHITTIER L.REV. 203, 226-27 (Jan. 1994) (reviewing federal facility compliance with federal environmental law).

(12) Carol Browner, U.S. Environmental Protection Agency, & Dan Glichnan, U.S. Department of Agriculture, Enhance Natural Resources Stewardship, in CLEAN WATER ACTION PLAN, at http://cleanwater.gov/action/c2b. html (Feb. 19, 1998). See also Frankino, supra note 10, at 432-34 n.8, 515 n.203 and accompanying text; Lieutenant Commander Jeffrey W. Styron, Regulation of Nonpoint Sources of Water Pollution on Public Lands, 41 NAVAl, L. REV. 97-98 (1993) (noting that "several important activities which occur routinely on public lands contribute a significant percentage of nonpoint source pollution," and that "[c]learly, the activities currently taking place on public lands must be addressed if states are going to be able to reach the goals established by the Clean Water Act.") It should be noted, however, that the single worst source of nonpoint source pollution/polluted runoff is agriculture. Carol Browner, U.S. Environmental Protection Agency, & Dan Glickman, U.S. Department of Agriculture, Clean Water Successes and Challenges, in CLEAN WATER ACTION PLAN, at http://cleanwater.gov/action/cla.html (Feb. 19, 1998).

(13) Carol Browner, U.S. Environmental Protection Agency, & Dan Glichman, U.S. Department of Agriculture, Enhance Natural Resources Stewardship, in CLEAN WATER ACTION PLAN, at http://cleanwater.gov/action/c2b.html (Feb. 19,1998).

(14) Id.

(15) Id.

(16) Id.

(17) Carol Browner, U.S. Environmental Protection Agency, & Dan Glickman, U.S. Department of Agriculture, Ten Principles for Restoring and Protecting America's Waters, in CLEAN WATER ACTION PLAN, at http://cleanwatengov/actton/clb.html (Feb. 19, 1995).

(18) Carol Browner, U.S. Environmental Protection Agency, & Dan Glickman, U.S. Department of Agriculture, Enhance Natural Resources Stewardship, in CLEAN WATER ACTION PLAN, at http://cleanwater.gov/action/c2b.html (Feb. 19, 1998). In particular

   Federal land and resource management agencies will work with states and
   tribes to immediately begin a review of existing processes to ensure that
   the issuance and renewal of use authorizations and licenses adequately
   address water quality protection, monitoring, and compliance measures and
   will revise and upgrade those processes as needed by 2000. By 2005, federal
   agencies will amend use authorizations and licenses, as authorities allow,
   to: require appropriate monitoring; protect or enhance watershed and stream
   health; use specific state and tribal best management practice
   requirements; and ensure compliance with water quality standards.

Id.

(19) 137 F.3d 1146 (9th Cir. 1998).

(20) 5 U.S.C. [subsections] 551-599, 701-706, 1305, 3105, 3344, 4301, 5335, 5372, 7521 (1994 & Supp. IV 1998).

(21) 33 U.S.C. [sections] 1311(a) (1994).

(22) Id. [sections] 1362(12).

(23) Id. However, "[t]he term does not include agricultural stormwater discharges and return flows from irrigated agriculture." Id.

(24) Id. [sections] 1342(a). Discharges of dredged or fill material are subject to a separate point source permit program administered by the Army Corps of Engineers. Id. [sections] 1344(a).

(25) Id. [subsections] 1319(a)(1), (c)(I)(A), (c)(2)(A), (c)(3)(A), (d), (g)(1)(A), 1365(a)(1), (f).

(26) Id. [sections] 1342(k).

(27) Id. [sections] 1362(11).

(28) Id. [sections] 1313(a).

(29) Id. [sections] 1313(c)(2)(A).

(30) 40 C.F.R. [sections] 131.3(f) (1999).

(31) Id. [sections] 131.3(b).

(32) 33 U.S.C. [sections] 1311(b)(1)(C) (1904). Alternatively, states can establish more stringent effluent limitations than EPA's. Id. [sections] 1370.

(33) U.S. ENVIRONMENTAL PROTECTION AGENCY, SECTION 319 FEDERAL CONSISTENCY GUIDANCE: FEDERAL CONSISTENCY WITH STATE NONPOINT SOURCE MANAGEMENT PROGRAMS 1 (1998) (defining nonpoint source pollution as "water pollution caused by rainfall or snowmelt moving over and through the ground and carrying natural and human-made pollutants into lakes, rivers, streams, wetlands, estuaries, coastal waters, and ground water"); Oregon Natural Resources Council v. United States Forest Serv., 834 F.2d 842, 849 n.9 (9th Cir. 1987) (citing Trustees for Alaska v. Environmental Protection Agency, 749 F.2d 549, 558 (9th Cir. 1984)); Sierra Club v. Abston Constr. Co., 620 F.2d 41, 44 (5th Cir. 1980). See also Frank no, supra note 10, at 432 n.6 (discussing in detail the definition of "nonpoint source").

(34) Shanty Town Assocs. Ltd. Partnership v. Environmental Protection Agency, 843 F.2d 782, 791 (4th Cir. 1988). But see Pronsolino v. Marcus, 91 F. Supp. 2d 1337, 1338, 1346-56 (N.D. Cal. 2000) (deciding in a suit under the Federal Administrative Procedure Act (APA), 5 U.S.C. [subsections] 701-706 (1994), brought "to challenge EPA's authority to impose TMDLs [total maximum daily loads of pollutants] on rivers polluted only by timber harvesting and agricultural runoff and/or other nonpoint sources," that EPA had the authority to set such limits pursuant to section 303(d) of the Act, 33 U.S.C. [sections] 1313(d) (1994)--effectively allowing the EPA to engage in some nonpoint source regulation. TMDL lawsuits, however, do not allow plaintiffs to reach individual sources of water pollution.).

(35) 33 U.S.C. [sections] 1329 (1994).

(36) Id. [sections] 1329(b)(1).

(37) Id. [sections] 1329(a)(1)(A),(B).

(38) Id. [sections] 1329(a)(1)(C).

(39) Id. [sections] 1329(b)(1),(2). "BMP's [sic] are practices designed to meet water quality goals or standards" U.S. FOREST SERVICE, U.S. DEP'T OF AGRICULTURE, EVALUATING THE EFFECTIVENESS OF FORESTRY BEST MANAGEMENT PRACTICES IN MEETING WATER QUALITY GOALS OR STANDARDS 1 (July 1994). They can include such measures as site preparation and leaving streamside management zones intact to minimize sediment runoff. Id. at 11.

(40) See 33 U.S.C. [sections] 1329(c)(2) (1994) (requiring states to submit their reports and programs within 18 months of February 4, 1987).

(41) Id. [sections] 1329(d)(1).

(42) OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY, SECTION 319 FEDERAL CONSISTENCY GUIDANCE: FEDERAL CONSISTENCY WITH STATE NONPOINT SOURCE MANAGEMENT PROGRAMS 1 (1998).

(43) See 33 U.S.C. [sections] 1329(a)(1)(C) (1994).

(44) SECOR INTERNATIONAL INC., TMDL DEVELOPMENT AND IMPLEMENTATION 9 (July 17, 1997).

(45) OR. REV. STAT. [sections] 468B.025(1)(a) (1999).

(46) OR. ADMIN. R. [sections] 340-041-026(7),(9)(1999).

(47) OR. REV. STAT. [sections] 527.765(3) (1999).

(48) ID, [sections] 527.770 (emphasis added).

(49) WASH. ADMIN. CODE [sections] 173-201A-160(3)(a) (1999).

(50) Id.

(51) Id. [sections] 173-201A-160(3)(b) (emphasis added).

(52) MONT. CODE ANN. [sections] 75-5-31(2)(a), (b)(1999).

(53) Id, [sections] 75-5-703(2), (5),(6)(c),(8),(10).

(54) Natural Resource Defense Council v. United States Envt'l Protection Agency, 915 F.2d 1314, 1318 (9th Cir. 1900). See also Shanty Town Assocs. Ltd. Partnership v. Environmental Protection Agency, 843 F.2d 782, 791 (4th Cir. 1998) (noting that the Clean Water Act "provides no direct mechanism by which EPA can force the states to adopt adequate nonpoint source control programs.").

(55) Compare NEV. REV. STAT. [sections] 445A.675(1) (1997) with NEV. REV. STAT. [sections] 445A.680 (1997). Nevada regulates nonpoint sources as "diffuse sources." NEV. REV. STAT. [sections] 445A.335 (1997).

(56) WASH. ADMIN. CODE [sections] 173-201A-160(3)(c) (1999).

(57) See infra Part III.A.

(58) Pub. L. 92-500, [sections] 2, 86 Stat. 875 (Oct 18, 1972) (codified at 33 U.S.C. [sections] 1323).

(59) 33 U.S.C. [sections] 1323(a) (1994) (emphasis added).

(60) Id.

(61) The Clean Water Act defines "`discharge' when used without qualification," to include "a discharge of a pollutant, and a discharge of pollutants." Id. [sections] 1362(16). A "discharge of pollutants" clearly refers only to point sources, id. [sections] 1362(12), but the "includes" language suggests that "discharge" could be broader than just point source discharges. The Ninth Circuit, however, has recently rejected this interpretation. Although it took the unusual step of withdrawing its opinion from publication, eliminating its status as binding precedent, the opinion was later republished. Oregon Natural Desert Ass'n v. Dombeck, 151 F.3d 945, 1998 WL 407711, at *3-5 (9th Cir. 1998) (withdrawn from publication), republished, 172 F.3d 1092 (9th Cir. 1998), cert denied, 120 S.Ct. 397 (1999). For an excellent critique of the Ninth Circuit's decision, see Frankino, supra note 10, at 459-515. For an argument in support of the Ninth Circuit's decision, particularly for agricultural nonpoint source pollution, see Kristi Johnson, Comment, The Mythical Giant: (Clean Water Act Section 401 and Nonpoint Source Pollution, 29 ENVTL. L. 417, 461 (1999). See also Bernard Mower, Nonpoint Sources: Grazing of Cattle on Federal Lands Exempt from CWA, Ninth Circuit Says, 29 ENV'T REP. (BNA) 697, 698 (July 31, 1998) (discussing the decision).

(62) See, e.g., Missouri ex rel. Ashcroft v. Department of the Army, 672 F.2d 1297, 1304 (8th Cir. 1982) ("The act does not define `runoff.' The district court held that `the term "runoff" ordinarily refers to the flow of excess precipitation (such as rain or snow) into a stream.' It concluded that the rise and fall of the water level in the river because of fluctuations in the discharge of the dammed stream could not be classified as runoff of a pollutant within the meaning of the [Clean Water Act]. Appellants have failed to convince us that the district court's definition of runoff or its application of the definition is erroneous.").

(63) See, e.g., Oregon Natural Resources Council v. United States Forest Serv., 834 F.2d 842, 849 n.9 (9th Cir. 1987) ("Nonpoint source pollution is not specifically defined in the Act, but is pollution that does not result from the `discharge' or `addition' of pollutants from a point source. Examples of nonpoint source pollution include runoff from irrigated agriculture and silvicultural activities.") (citing Trustees for Alaska v. Environmental Protection Agency, 749 F.2d 549, 558 (9th Cir. 1964)).

(64) 33 U.S.C. [sections] 1323(a)(1994).

(65) 5 U.S.C. [sections] 702 (1994).

(66) Id.[sections] 706(1).

(67) Id. [sections] 706(2)(A).

(68) Id. [sections] 706(2)(D).

(69) Id. [sections] 704.

(70) 33 U.S.C. [sections] 1319(a) (1994).

(71) Shanty Town Assocs. Ltd. Partnership v. Environmental Protection Agency, 843 F.2d 782, 791 (4th Cir. 1988); see also 33 U.S.C. [sections] 1319 (1994) (establishing EPA's enforcement authority but cross-referencing only point source regulation).

(72) 33 U.S.C. [sections] 1341(a)(1994).

(73) Id. [sections] 1365(a)(1)(A),(f)(5).

(74) Oregon Natural Desert Ass'n v. Dombeck 172 F.3d 1092, 1097-98 (9th Cir. 1998), cert. denied, 120 S. Ct. 397 (1999). See also discussion supra note 61.

(75) 33 U.S.C. [sections] 1365(a) (1994).

(76) Oregon Natural Desert Ass'n, 172 F.3d at 1098; Oregon Natural Resources Council v. United States Forest Serv., 834 F.2d 842, 849-50 (9th Cir. 1987). See also Sierra Club v. Abston Constr. Co., 620 F.2d 41, 43 (5th Cir. 1980). For a more extensive discussion of the citizen suit aspects of Oregon Natural Resources Council, the leading Ninth Circuit case on this point, see Frankino, supra note 10, at 452-55 n.38.

(77) Oregon Natural Resources Council, 834 F.2d at 851.

(78) Id. at 843.

(79) Id. at 844.

(80) Id. at 848 (citing 33 U.S.C. [sections] 1323 (1982)).

(81) Id. at 849-50.

(82) 5 U.S.C. [sections] 702 (1994).

(83) Oregon Natural Resources Council, 834 F.2d at 851 (citing Barlow v. Collins, 397 U.S. 159, 167 (1970)). The Ninth Circuit explicitly declined to rule on whether the matters at hand constituted agency action committed to agency discretion. Id. at 852.

(84) Id. at 852.

(85) 137 F.3d 1146 (9th Cir. 1998).

(86) Id. at 1153 (quoting IDAHO CODE [sections] 39-3603 (1998)).

(87) Id. at 1148-49.

(88) Id at 1150, 1151. Although the court discussed this evidence in relation to ISC's claim under the National Environmental Policy Act of 1969 (NEPA), 42 U.&C. [subsections] 4321-4347 (1994 & Supp. III 1997), the evidence is also relevant to their APA/Clean Water Act claim.

(89) Idaho Sporting Congress, 137 F.3d at 1152.

(90) Id. at 1153.

(91) Id.

(92) Id. (citing 33 U.S.C. [sections] 1323(a) (1994)).

(93) Id. (quoting IDAHO CODE [sections] 39-3601 (1998)).

(94) Id.

(95) Id. (quoting 40 C.F.R. [sections] 131.12(a)(1)(1999)).

(96) Id.

(97) Id. (quoting IDAHO CODE [sections] 39-3601 (1998)).

(98) EPA included antidegradation provisions in its first water quality regulations for the Clean Water Act, in 1975, Water Quality Standards Regulations, 40 Fed. Reg. 55,340, 55,34055,341 (Nov. 28, 1975) (codified at 40 C.F.R. [sections] 130.17 (1976)), and modified them from time to time in the 1980s. Water Quality Standards Regulations, 48 Fed. Reg. 51400, 51402-03 (Nov. 8, 1983).

(99) 40 C.F.R. [sections] 131.12 (1999). EPA's regulation requires states to adopt antidegradation policies that, at a minimum: 1) maintain and protect existing instream water uses and the level of water quality necessary to protect those uses, id. [sections] 131.12(a)(l); 2) preserve the quality of waters that "exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water," unless the state finds "that allowing lower water quality is necessary to accommodate important economic or social development in the area," id. [sections] 131.12(a)(2); 3) maintain and protect outstanding natural resource waters, id. [sections] 131.12(a)(3); and 4) regulate thermal discharges consistently with the Act, id. [sections] 131.12(a)(4), which requires control of thermal pollution sufficient "to assure the projection [sic] and propagation of a balanced, indigenous population of shellfish, fish, and wildlife in and on the body of water" at issue. 33 U.S.C. [sections] 1326(a) (1994).

(100) Water Quality Standards Regulation, 63 Fed. Reg. 36,742, 36,780 (July 7, 1998) ("The intent of an antidegradation policy is to ensure that in all eases, at a minimum, water quality necessary to support existing uses is maintained (tier 1), that where water quality is better than the minimum level necessary to support protection and propagation of fish, shellfish and wildlife, and recreation in and on the water (`fishable/swimmable'), that water quality is also maintained and protected unless, through a public process, some lowering of water quality is deemed to be necessary to allow important economic or social development to occur (tier 2), and to identify water bodies of exceptional recreational or ecological significance and maintain and protect water quality in such water bodies (tier 3)." Finally, "[t]he requirement to prevent potential water quality impairment associated with thermal discharges ... is intended to coordinate the requirements and procedures of the antidegradation policy with those established in the CWA for setting thermal discharge limitations.").

(101) IDAHO CODE [sections] 16.01.02.051.01 (1999).

(102) Id. [sections] 16.01.02.051.02.

(103) Id.

(104) Id. [sections] 16.01.02.051.03.

(105) See, e.g., IDAHO CODE [subsections] 39-3609, 39-3610 (1999) (delineating nonpoint source requirements for "high," "medium," and "low" priority water-quality-limited waters).

(106) IDAHO CODE [sections] 16.01.02.350.01(a) (1999) (emphasis added).

(107) Id. [sections] 16.01.02.350.01(b).

(108) Id. [sections] 16.01.02.350.02(a).

(109) IDAHO CODE [sections] 39-3618 (1999).

(110) Id. [sections] 39-3620.

(111) Id. [sections] 39-3620(1)-(5).

(112) Id. [sections] 39-3620(6) (emphasis added).

(113) Id.

(114) In contrast, if a person falls to get the agency's approval for a new nonpoint source or fails to implement the applicable best management practices, and water quality is lowered, "the designated agency may institute a cirri action for an immediate injunction to halt the activity or pursue other remedies provided by law." Id. [sections] 39-3622.

(115) 5 U.S.C. [sections] 702(a) (1994).

(116) Id. [sections] 701(a)(1).

(117) 33 U.S.C. [sections] 1323(a) (1994).

(118) United States v. Sherwood, 312 U.S. 584, 586 (1941); Beamon v. Brown, 125 F.3d 965, 967 (6th Cir. 1997); Preferred Risk Mut Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir. 1996); Fostvedt v. United States, 978 F.2d 1201, 1202-03 (10th Cir. 1992) (quoting United States v. restart, 424 U.S. 392, 399 (1976) (quoting Sherwood, 312 U.S. 586, (1941))); McCarty v. United States, 929 F.2d 1085, 1087 (5th Cir. 1991); Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir. 1989); see also Robin Kundis Craig, Comment Of Fish, Federal Dams, and State Protections: A State's Options Against the Federal for Dam-Related Fish Kills on the Columbia Rivet, 26 ENVTL. L. 355, 369 (1996) (discussing the basic principles of sovereign immunity); Kenneth Culp Davis, Sovereign Immunity Must Go, 22 ADMIN. L. REV. 383, 384 (1970) (discussing the role of the courts in sovereign immunity jurisprudence).

(119) Block v. North Dakota, 461 U.S. 273, 280 (1983) (citing California v. Arizona, 440 U.S. 59, 61-62 (1979)); Minnesota v. United States 305 U.S. 382, 387 (1939); Kansas v. United States, 204 U.S. 331, 342 (1907)); Presidential Gardens Assocs. v. United States, 175 F.3d 132, 139 (2d Cir. 1999) (citing United States v. Mitchell, 463 U.S. 206, 212 (1983)); Beamon, 125 F.3d at 967; Alaska v. Babbitt, 38 F.3d 1068, 1072 (9th Cir. 1994) (citing and quoting Block v. North Dakota, 461 U.S. at 280 (1983)); Florida v. United States Dep't of the Interior, 768 F.2d 1248, 1251 (11th Cir. 1985) (citing California v. Arizona, 440 U.S. 59, 61-62 (1979); Minnesota v. United States, 305 U.S. 382, 387 (1939)).

(120) Block v. North Dakota, 461 U.S. at 280; Dalehite v. United States, 346 U.S. 15, 30 (1953); Presidential Gardens Assocs., 175 F.3d at 139 (citing Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998)); Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir. 1983).

(121) United States Dep't of F. Energy v. Ohio, 503 U.S. 607, 615 (1992) (citing United States v. Mitchell, 445 U.S. 535, 538-39 (1980)); Beamon, 125 F.3d at 967; Preferred Risk Mutual Ins. Co. v. United States, 86 F.3d at 792; Alaska v. Babbitt, 38 F.3d at 1072 (quoting and citing United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)); Fostvedt, 978 F.2d at 1203 (citing United States v. King, 395 U.S. 1, 4 (1969)).

(122) United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992) (citing McMahon v. United States, 342 U.S. 25, 27 (1951)); Block v. North Dakota, 461 U.S. at 287; Alaska v. Babbitt, 38 F.3d at 1072 (quoting and citing United States v. Nordic Village, Inc., 503 U.S. 30, 34 (1992)); Fostvedt v. United States, 978 F.2d at 1202 (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983)); McCarty v. United States, 929 F.2d at 1087.

(123) Pub. L. 89-554, SO Star. 392 (Sept 6,1966).

(124) Compare Kingsbrook Jewish Med. Ctr. v. Richardson, 486 F.2d 663, 668 (2d Cir. 1973); Scanwell Lab. v. Shatter, 424 F.2d 859, 874 (D.C. Cir. 1970); and Estrada v. Ahrens, 296 F.2d 690, 698 (5th Cir. 1961) (all holding that the APA did waive federal agencies' sovereign immunity) with Littell v. Morton, 445 F.2d 1207, 1212-14 (4th Cir. 1971); Washington v. Udall, 417 F.2d 1310, 1320 (9th Cir. 1969); Motah v. United States, 402 F.2d 1, 2 (10th Cir. 1968); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (8th Cir. 1967); and Cyrus v. United States, 226 F.2d 416, 417 (1st Cir. 1955) (all holding that it did not).

(125) H.R. REP. NO. 94-1656, at 1, reprinted in 1976 U.S.C.C.A.N. 6121, 6121 (Sept 22, 1976).

(126) 5 U.S.C. [sections] 702 (1994) (emphasis added).

(127) H.R. REP. NO. 94-1656, at 11, reprinted in 1976 U.S.C.C.A.N. 6121, 6131 (Sept. 22, 1976).

(128) Id.

(129) Id. at 2, reprinted in 1976 U.S.C.C.A.N. 6121, 6122 (Sept 22, 1976).

(130) Id. at 5, reprinted in 1976 U.S.C.C.A.N. 6121, 6125 (Sept 22, 1976).

(131) Id.

(132) 5 U.S.C. [sections] 702 (1994).

(133) H.R. REP. No. 94-1656, at 12, reprinted in 1976 U.S.C.C.A.N. 6121, 6132 (Sept. 22, 1976). Specifically, these considerations

   include, but are not limited to, the following: (1) extraordinary relief
   should not be granted because of hardship to the defendant or to the public
   ("balancing the equities") or because the plaintiff has an adequate remedy
   at law; (2) action committed to agency discretion; (3) express or implied
   preclusion of judicial review; (4) standing; (5) ripeness; (6) failure to
   exhaust administrative remedies; and (7) an exclusive alternative remedy.

   Special doctrines favoring the United States as a litigant, such as the
   inapplicability of statutes of limitations to claims asserted by the United
   States, are unaffected. Statutory or rule provisions denying authority for
   injunctive relief (e.g., the Anti-Injunction Act, 26 U.S.C. section 7421,
   and 28 U.S.C. section 2201, prohibiting injunctive and declaratory relief
   against collection of federal taxes) and other matters (e.g. Rule 13(d),
   dealing with counterclaims against the United States) also remain
   unchanged.

Id. Following Congress's lead, courts have held that section 702 does not waive sovereign immunity when the Anti-Injunction Act, 26 U.S.C. [sections] 7421(a) (1994), and the Declaratory Judgment Act, 28 U.S.C. [sections] 2201 (1994), prohibit suit or bar the remedy sought. McCarty v. United States, 929 F.2d 1085, 1086-88 (5th Cir. 1991); Hughes v. United States, 953 F.2d 531, 537 (9th Cir. 1992); Fostvedt v. United States, 978 F.2d 1201, 1203 (10th Cir. 1992).

(134) H.R. REP. NO. 94-1656, at 12-13, reprinted in 1976 U.S.C.C.A.N. 6121, 6133 (Sept. 22, 1976).

(135) Id.

(136) 28 U.S.C. [sections] 2409a (1994).

(137) Id. [sections] 2409a(a); Block v. North Dakota, 461 U.S. 273, 280 (1983).

(138) 28 U.S.C. [sections] 2409a(a) (1994).

(139) Id. [sections] 2409a(g).

(140) 461 U.S. 273 (1983).

(141) Id. at 286.

(142) Id. at 287 (citing Lehman v. Nakshian 453 U.S. 156, 160-61 (1981); United States v. Kubrick, 444 U.S. 111, 117-18 (1979); Honda v. Clark, 386 U.S. 484, 501 (1967); Soriano v. United States, 352 U.S. 270 (1957); United States v. Sherwood, 312 U.S. 584, 591 (1941)).

(143) Id. at 286 n.22.

(144) Id. (citing HR. REP. NO. 94-1656, at 13, reprinted in 1976 U.S.C.C.A.N. 6121, 6133 (Sept. 22, 1976), for the proposition that section 702 provides no authority to grant relief "when Congress has dealt in particularity with a claim and [has] intended a specific remedy to be the exclusive remedy.").

(145) Metropolitan Water Dist. of So. Cal. v. United States, 830 F.2d 139, 143-44 (9th Cir. 1987), aff'd sub nom, California v. United States, 490 U.S. 920 (1989).

(146) Alaska v. Babbitt, 38 F.3d 1068, 1072 (9th Cir. 1994) (emphasis added).

(147) Id. at 1073.

(148) Id. at 1074-75. The Ninth Circuit revisited this issue in 1999, when the State of Alaska sued regarding loss of an amended right-of-way to an Alaska Native allotment Alaska again attempted to use the APA to provide a waiver of sovereign immunity, an attempt the court again rejected. This time, however, Alaska could successfully argue that, under the QTA itself, the status of the lands as Indian lands was highly questionable. As a result, its suit fell within the QTA's waiver of sovereign immunity and could proceed. Alaska v. Babbitt, 182 F.3d 672, 674-77 (9th Cir. 1999).

(149) 33 U.S.C. [sections] 1323(a) (1994) (emphasis added).

(150) "It should be noted in particular that 5 U.S.C. section 701(a) is unchanged and remains applicable." H. R. REP. No. 94-1656, at 11, reprinted in 1976 U.S.C.C.A.N. 6121, 6133 (Sept 22, 1976).

(151) 5 U.S.C. [sections] 701(a)(1) (1994).

(152) Id. [sections] 701(a)(2).

(153) H.R. REP. NO. 94-1656, at 11, reprinted in 1976 U.S.C.C.A.N. 6121, 6131 (Sept 22, 1976).

(154) Id.

(155) But see Copake Lake Dev. Corp. v. United States, 490 F. Supp. 386, 388-89 (E.D.N.Y. 1980) (holding that plaintiffs seeking to review the Small Business Administration's decision to cancel a disaster loan could not make use of the APA's waiver of sovereign immunity because the Small Business Act, 15 U.S.C. [sections] 636(b) (1976), committed that decision to the discretion of the Small Business Association for purposes of section 701(a)(2)).

(156) Dunlop v. Bachowski, 421 U.S. 560, 567 (1975) (noting that in the absence of an express preclusion, the federal government "bears the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review" of an agency's decision); Abbott Lab. v. Gardner, 387 U.S. 136, 140 (1967) ("The question is phrased in terms of `prohibition' rather than `authorization' because a survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.").

(157) National Labor Relations Bd. v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 131 (1987) (citing Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 462 (1979); Dunlop v. Bachowski, 421 U.S. at 567 (1975)). See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Abbott Lab. v. Gardner, 387 U.S. at 141; Rusk v. Cort, 369 U.S. 367, 379-80 (1962).

(158) United Food & Commercial Workers Union., Local 23,484 U.S. at 131.

(159) Webster v. Doe, 486 U.S. 592, 599 (1988) (citing Citizens to Preserve Overton Park, Inc.,401 U.S. at 410 (citing S. REP. NO. 753, at 26 (1945))).

(160) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsections] 9601-9675 1994 & Supp. III 1997.

(161) Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380,1382-83 (5th Cir. 1969).

(162) Id.

(163) Id. at 1383.

(164) 42 U.S.C. [sections] 9613 (1994).

(165) Id. [sections] 9613(h) ("No Federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial action ... or to review any order issued under section (a)" except in five limited circumstances.).

(166) Voluntary Purchasing Groups, Inc., 889 F.2d at 1385-86 (quoting Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984)). 167 Id. at 1388.

(168) Id. at 1391.

(169) 33 U.S.C. [sections] 1323(a) (1976) ("Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants, and each officer, agent, or employee thereof in the performance of his official duties, shall be subject to, and comply with, all Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity including the payment of reasonable service charges.").

(170) See id. [sections] 1342(b) (authorizing the EPA to delegate such authority to qualifying states).

(171) California ex rel. State Water Resources Bd. v. Environmental Protection Agency, 511 F.2d 963, 969-74 (9th Cir. 1975), rev'd, 426 U.S. 200 (1976) (finding that the Clean Water Act clearly waived sovereign immunity and "clearly mandate[s] a federal agency duty of full compliance with all aspects of state permit programs"); Minnesota v. Callaway, 401 F. Supp. 524, 529-31 (D. Minn. 1975), rev'd, 543 F.2d 1198 (8th Cir. 1976), cert. denied, 430 U.S. 977 (1977) (following the Ninth Circuit for state requirements on dredging operations).

(172) 426 U.S. 167 (1976).

(173) 42 U.S.C. [subsections] 7401-7671q (1994 & Supp. III 1997).

(174) 426 U.S. 200 (1976).

(175) Id. at 211.

(176) Id. at 212-13. Within a year of this decision, Congress amended the federal facilities provision of the Clean Water Act to make clear that federal facilities not only had to observe state water quality, standards but also that they had to comply with any state requirement "whether substantive or procedure (including any record-keeping or reporting requirement, any requirement respecting permits and any other requirement, whatsoever)." Pub. L 95-217, [subsections] 60, 61(a), 91 Stat. 1597, 1598 (Dec. 27, 1977). Therefore, federal facility point sources must now apply to delegated states for their NPDES permits.

(177) See 33 U.S.C. [sections] 1323(a) (1994).

(178) Id.

(179) Id.

(180) 503 U.S. 607 (1992).

(181) Id. at 620.

(182) Id.

(183) Id. at 621.

(184) Id. at 623.

(185) Id. (citing 33 U.S.C. [sections] 1323(a) (1992)).

(186) Id. at 624.

(187) The Supreme Court relied on federal question subject matter jurisdiction jurisprudence, which gives federal district courts subject matter jurisdiction over cases that "arise under" federal law, to reach this conclusion, noting that federal question jurisdiction "exclude[s] cases in which the plaintiff relies on state law, even when the State's exercise of power in the particular circumstances is expressly permitted by federal law." Id. at 625 (citing 28 U.S.C. [sections] 1331; Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 116 (1936); International Bridge Co. v. New York 254 U.S. 126, 133 (1920)).

(188) Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 426 U.S. 200, 211 (1976); United States Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992).

(189) Environmental Protection Agency v. California ex rel. State Water Resources Control Board, 426 U.S. at 212.

(190) Id. at 212-13.

(191) Id. at 216-17.

(192) Id. at 220.

(193) United States Dep't of Energy v. Ohio, 503 U.S. at 622, 626.

(194) Id. at 626 (internal quotations omitted).

(195) Id. at 627.

(196) 33 U.S.C. [sections] 1323(a) (1994) (emphasis, added).

(197) OFFICE OF WATER, U.S. ENVIRONMENTAL PROTECTION AGENCY, SECTION 319 FEDERAL CONSISTENCY GUIDANCE: FEDERAL CONSISTENCY WITH STATE NONPOINT SOURCE MANAGEMENT PROGRAMS 1 (1998).

(198) 33 U.S.C. [sections] 1323(a) (1994).

(199) The Eighth Circuit had an opportunity to consider the Forest Serf's arguments that its only nonpoint source obligations were state BMP requirements; however, the court declined to discuss the details of Arkansas' implementation of its antidegradation policy. Newton County Wildlife Ass'n v. Rogers, 141 F.3d 803, 809-10 (8th Cir. 1998).

(200) 33 U.S.C, [sections] 1323(a) (1994).

(201) Id.

(202) 5 U.S.C. [sections] 702 (1994).

(203) 33 U.S.C. [sections] 1365(e) (1994).

(204) Id. [sections] 1323(a).

(205) 5 U.S.C. [sections] 702(2) (1994).

(206) 33 U.S.C. [sections] 1323(a) (1994).

(207) Id.

(208) Id.

(209) Id.

(210) 33 U.S.C. [sections] 1251(a) (1994).

ROBIN KUNDIS CRAIG, Assistant Professor of Law, Western New England College School of Law, Springfield, MA. J.D. 1996, Northwestern School of Law of Lewis & Clark College; Ph.D. 1993, the University of California; M.A. 1986, The Johns Hopkins University. The author would like to thank Larry J. Knudsen for his inspiration and helpful comments.