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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 UNITED STATES OF AMERICA, CASE NO. 3:20-cv-05867-DGE 11 Plaintiff, ORDER DENYING MOTION FOR 12 v. RECONSIDERATION 13 JOAN V. BAYLEY, PHILIP N. BAYLEY, 14 individually and in his capacity as Trustee of Frihet Trust, and BIG D’S BEACH 15 CABIN LLC, 16 Defendants. 17
18 I. INTRODUCTION 19 This matter comes before the Court on Defendants’ Motion for Reconsideration. (Dkt. 20 No. 106.) Defendants argue that in its Order Denying Defendants’ Motion to Dismiss, the Court 21 failed to properly interpret a provision of the Clean Water Act (CWA). Defendants claim that 22 had the Court interpreted the statute as they suggest, it would deprive Plaintiff of standing to file 23 24 1 suit under the CWA. For the reasons stated herein, the Court DENIES Defendants’ Motion for 2 Reconsideration. 3 II. BACKGROUND 4 Defendants filed a Motion to Dismiss on jurisdictional grounds pursuant to Federal Rule
5 of Civil Procedure 12(b)(1). (Dkt. Nos. 10, 34.) On January 10, 2022, the Court denied 6 Defendants’ Motion to Dismiss. (Dkt. No. 104.) Defendants filed a timely Motion for 7 Reconsideration on January 19, 2022 (Dkt. No. 106), to which Plaintiff responded pursuant to 8 Local Civil Rule 7(h)(3) (Dkt. No. 117). 9 Defendants argue that reconsideration is warranted because the Court failed to properly 10 interpret 33 U.S.C. § 1323(a) and, therefore, incorrectly determined that Plaintiff has standing to 11 bring suit against Defendants for allegedly violating the CWA. (Dkt. No. 106 at 1-2.) The 12 statute at issue states in relevant part: 13 Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any 14 property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants … shall be subject to, and comply with, all 15 Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution … to 16 the same extent as any nongovernmental entity[.]
17 33 U.S.C. § 1323(a).
18 Defendants argue that “the phrase ‘having jurisdiction over any property’ clearly applies 19 to the lot Defendant Bayley was attempting to protect with a replacement bulkhead. It also 20 applies to Plaintiff’s claim or jurisdiction over its property, the water that ebbs and flows, near 21 Defendants’ property.” (Dkt. No. 106 at 2.) As a result, Defendants claim Plaintiff was 22 required to participate in the Mason County permitting process relating to Mr. Bayley’s bulkhead 23 construction project and, by not timely filing an objection with Mason County, Plaintiff 24 1 effectively waived standing to sue Defendants for failing to obtain a Section 404 permit from the 2 Army Corps of Engineers. (Id. at 3.) 3 III. DISCUSSION 4 Local Civil Rule 7(h)(1) provides:
5 Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a 6 showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. 7 The Court finds that Defendants have failed to establish a manifest error in the prior 8 ruling, especially because Defendants raised this argument in their initial motion, which the 9 Court adequately addressed in its order denying Defendants’ Motion to Dismiss. (See Dkt. Nos. 10 10 at 4-7; 104 at 7-8.) Thus, Defendants’ Motion for Reconsideration should be denied. 11 Nevertheless, the Court explains its reasoning for denying Defendants’ Motion to Dismiss below. 12 Contrary to Defendants’ assertion, 33 U.S.C. § 1323(a) does not limit Plaintiff’s standing 13 to file an enforcement action for alleged CWA violations. The relevant statutory history 14 supports this conclusion. In 1977, Congress amended the CWA, resulting in the current text of 15 33 U.S.C. § 1323(a). See Clean Water Act of 1977, Pub. L. No. 95-217, sec. 313, § 60, 91 Stat. 16 1566 (1977). As Plaintiff states, “Congress amended this [CWA] provision to address 17 circumstances in which the federal government itself was acting as a potential discharger of 18 pollutants at facilities that it owns or operates.” (Dkt. No. 117 at 2.) Accordingly, subsection (a) 19 of 33 U.S.C. § 1323 is entitled “Compliance with pollution control requirement by Federal 20 entities.” 21 Prior to the 1977 amendment, federal entities were exempted from state standards and 22 pollution control requirements due to the Supreme Court case EPA v. California ex rel. State 23 Water Resources Control Board, 426 U.S. 200, 227 (1976), which held that federal facilities 24 1 were not subject to the permitting requirements under the Federal Water Pollution Control Act 2 Amendments of 1972. “Congress plainly disenchanted with this pronouncement, the following 3 year enacted 33 U.S.C. § 1323(a) as part of the CWA,” which clearly evidenced Congress’s 4 intent to require that federal entities comply with permitting requirements. United States v. Com.
5 of Puerto Rico, 721 F.2d 832, 834 (1st Cir. 1983). 6 In essence, 33 U.S.C. § 1323(a) operates as a limited waiver of sovereign immunity. 7 Such a waiver is required because “where Congress does not affirmatively declare its 8 instrumentalities or property subject to regulation, the federal function must be left free from 9 regulation.” Hancock v. Train, 426 U.S. 167, 179 (1979). Thus, the CWA was “amended to 10 indicate unequivocally that all Federal facilities and activities are subject to all of the provisions 11 of State and local pollution laws.” Kelley v. United States, 618 F. Supp. 1103, 1107 (W.D. Mich. 12 1985) (quoting S. Rep. No. 95-370, 95th Cong., 1st Sess. 67, reprinted in 1977 U.S. Code Cong. 13 & Ad. News 4326, 4392) (emphasis added); see also City of Olmstead Falls v. U.S. E.P.A., 233 14 F. Supp. 2d 890, 897 (N.D. Ohio 2002) (“On its face, [33 U.S.C. § 1323(a)] acts to waive
15 sovereign immunity only where an arm of the federal government is an alleged 16 polluter. … There is no indication in the statute that Congress intended to waive sovereign 17 immunity with respect to agency enforcement decisions over third parties[.]”) Defendants seek 18 to overextend this limited waiver of sovereign immunity in applying it to Plaintiff’s enforcement 19 power, which misconstrues the text and purpose of 33 U.S.C. § 1323(a). 20 As explained by the First Circuit Court in Commonwealth of Puerto Rico, 33 U.S.C. § 21
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 UNITED STATES OF AMERICA, CASE NO. 3:20-cv-05867-DGE 11 Plaintiff, ORDER DENYING MOTION FOR 12 v. RECONSIDERATION 13 JOAN V. BAYLEY, PHILIP N. BAYLEY, 14 individually and in his capacity as Trustee of Frihet Trust, and BIG D’S BEACH 15 CABIN LLC, 16 Defendants. 17
18 I. INTRODUCTION 19 This matter comes before the Court on Defendants’ Motion for Reconsideration. (Dkt. 20 No. 106.) Defendants argue that in its Order Denying Defendants’ Motion to Dismiss, the Court 21 failed to properly interpret a provision of the Clean Water Act (CWA). Defendants claim that 22 had the Court interpreted the statute as they suggest, it would deprive Plaintiff of standing to file 23 24 1 suit under the CWA. For the reasons stated herein, the Court DENIES Defendants’ Motion for 2 Reconsideration. 3 II. BACKGROUND 4 Defendants filed a Motion to Dismiss on jurisdictional grounds pursuant to Federal Rule
5 of Civil Procedure 12(b)(1). (Dkt. Nos. 10, 34.) On January 10, 2022, the Court denied 6 Defendants’ Motion to Dismiss. (Dkt. No. 104.) Defendants filed a timely Motion for 7 Reconsideration on January 19, 2022 (Dkt. No. 106), to which Plaintiff responded pursuant to 8 Local Civil Rule 7(h)(3) (Dkt. No. 117). 9 Defendants argue that reconsideration is warranted because the Court failed to properly 10 interpret 33 U.S.C. § 1323(a) and, therefore, incorrectly determined that Plaintiff has standing to 11 bring suit against Defendants for allegedly violating the CWA. (Dkt. No. 106 at 1-2.) The 12 statute at issue states in relevant part: 13 Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction over any 14 property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants … shall be subject to, and comply with, all 15 Federal, State, interstate, and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution … to 16 the same extent as any nongovernmental entity[.]
17 33 U.S.C. § 1323(a).
18 Defendants argue that “the phrase ‘having jurisdiction over any property’ clearly applies 19 to the lot Defendant Bayley was attempting to protect with a replacement bulkhead. It also 20 applies to Plaintiff’s claim or jurisdiction over its property, the water that ebbs and flows, near 21 Defendants’ property.” (Dkt. No. 106 at 2.) As a result, Defendants claim Plaintiff was 22 required to participate in the Mason County permitting process relating to Mr. Bayley’s bulkhead 23 construction project and, by not timely filing an objection with Mason County, Plaintiff 24 1 effectively waived standing to sue Defendants for failing to obtain a Section 404 permit from the 2 Army Corps of Engineers. (Id. at 3.) 3 III. DISCUSSION 4 Local Civil Rule 7(h)(1) provides:
5 Motions for reconsideration are disfavored. The court will ordinarily deny such motions in the absence of a showing of manifest error in the prior ruling or a 6 showing of new facts or legal authority which could not have been brought to its attention earlier with reasonable diligence. 7 The Court finds that Defendants have failed to establish a manifest error in the prior 8 ruling, especially because Defendants raised this argument in their initial motion, which the 9 Court adequately addressed in its order denying Defendants’ Motion to Dismiss. (See Dkt. Nos. 10 10 at 4-7; 104 at 7-8.) Thus, Defendants’ Motion for Reconsideration should be denied. 11 Nevertheless, the Court explains its reasoning for denying Defendants’ Motion to Dismiss below. 12 Contrary to Defendants’ assertion, 33 U.S.C. § 1323(a) does not limit Plaintiff’s standing 13 to file an enforcement action for alleged CWA violations. The relevant statutory history 14 supports this conclusion. In 1977, Congress amended the CWA, resulting in the current text of 15 33 U.S.C. § 1323(a). See Clean Water Act of 1977, Pub. L. No. 95-217, sec. 313, § 60, 91 Stat. 16 1566 (1977). As Plaintiff states, “Congress amended this [CWA] provision to address 17 circumstances in which the federal government itself was acting as a potential discharger of 18 pollutants at facilities that it owns or operates.” (Dkt. No. 117 at 2.) Accordingly, subsection (a) 19 of 33 U.S.C. § 1323 is entitled “Compliance with pollution control requirement by Federal 20 entities.” 21 Prior to the 1977 amendment, federal entities were exempted from state standards and 22 pollution control requirements due to the Supreme Court case EPA v. California ex rel. State 23 Water Resources Control Board, 426 U.S. 200, 227 (1976), which held that federal facilities 24 1 were not subject to the permitting requirements under the Federal Water Pollution Control Act 2 Amendments of 1972. “Congress plainly disenchanted with this pronouncement, the following 3 year enacted 33 U.S.C. § 1323(a) as part of the CWA,” which clearly evidenced Congress’s 4 intent to require that federal entities comply with permitting requirements. United States v. Com.
5 of Puerto Rico, 721 F.2d 832, 834 (1st Cir. 1983). 6 In essence, 33 U.S.C. § 1323(a) operates as a limited waiver of sovereign immunity. 7 Such a waiver is required because “where Congress does not affirmatively declare its 8 instrumentalities or property subject to regulation, the federal function must be left free from 9 regulation.” Hancock v. Train, 426 U.S. 167, 179 (1979). Thus, the CWA was “amended to 10 indicate unequivocally that all Federal facilities and activities are subject to all of the provisions 11 of State and local pollution laws.” Kelley v. United States, 618 F. Supp. 1103, 1107 (W.D. Mich. 12 1985) (quoting S. Rep. No. 95-370, 95th Cong., 1st Sess. 67, reprinted in 1977 U.S. Code Cong. 13 & Ad. News 4326, 4392) (emphasis added); see also City of Olmstead Falls v. U.S. E.P.A., 233 14 F. Supp. 2d 890, 897 (N.D. Ohio 2002) (“On its face, [33 U.S.C. § 1323(a)] acts to waive
15 sovereign immunity only where an arm of the federal government is an alleged 16 polluter. … There is no indication in the statute that Congress intended to waive sovereign 17 immunity with respect to agency enforcement decisions over third parties[.]”) Defendants seek 18 to overextend this limited waiver of sovereign immunity in applying it to Plaintiff’s enforcement 19 power, which misconstrues the text and purpose of 33 U.S.C. § 1323(a). 20 As explained by the First Circuit Court in Commonwealth of Puerto Rico, 33 U.S.C. § 21 1323(a) does not impliedly abridge the jurisdiction of the district courts over enforcement actions 22 commenced by United States’ agencies. 721 F.3d at 840. Notably, the First Circuit Court 23 rejected Puerto Rico’s argument that “33 U.S.C. § 1323(a) impliedly repeals 28 U.S.C. § 1345
24 1 by virtue of its command that all federal facilities must adhere to state procedural 2 requirements[.]” Id. at 835-36. It then held that the requirements imposed by 33 U.S.C. § 3 1323(a) did not conflict with 28 U.S.C. § 1345, which provides United States district courts 4 jurisdiction over all civil actions, suits or proceedings commenced by the United States expressly
5 authorized to sue by Act of Congress. Id. at 840. Similarly, it follows that in this case, 33 6 U.S.C. § 1323(a) does not impliedly repeal Plaintiff’s enforcement power to bring a civil action 7 in United States district court for violations of the CWA under 33 U.S.C. § 1319(b). 8 Defendants appear to argue that Plaintiff has assumed jurisdiction over Defendants’ 9 private property by alleging that the discharges at issue occurred in the waters of the United 10 States and because the Army Corps of Engineers issued a stop work order to Defendants. (Dkt. 11 No. 106 at 2.) However, Defendants fail to provide any legal support for their overbroad 12 interpretation of jurisdiction with respect to 33 U.S.C. § 1323(a). (See generally id.) Further, 13 Defendants’ interpretation does not comport with the legislative history and case law restricting 14 33 U.S.C. § 1323(a) to federal properties, facilities, and activities. See, e.g., Colorado Wild, Inc.
15 v. U.S. Forest Serv., 122 F. Supp. 2d 1190, 1194-95 (D. Colo. 2000) (“[33 U.S.C. § 1323] merely 16 ensures that the federal government’s ‘property or facility’ or ‘activity resulting … in the 17 discharge … of pollutants’ comply with water pollution regulations just as any 18 ‘nongovernmental entity’”) (quoting 33 U.S.C. § 1323). 19 Defendants’ remaining arguments are likewise unavailing. Defendants cite to other 20 provisions of the CWA to argue that, to maintain standing to bring a CWA enforcement action 21 against Defendants, “a paradigm of cooperative federalism” required Plaintiff to have objected to 22 Mason County’s determination that Mr. Bayley’s proposed bulkhead repair did not have a 23 probable significant adverse impact on the environment. However, Defendants do not provide
24 1 any support for their contention that these CWA provisions impose limits or contingencies on 2 Plaintiff’s standing to bring an action against Defendants in district court for allegedly violating 3 the CWA by failing to obtain a Section 404 permit from the Army Corps of Engineers. Thus, 4 Defendants’ argument is without merit.
5 Finally, Plaintiff is not required to exhaust administrative remedies under the Washington 6 Land Use Petition Act (LUPA) before bringing a CWA enforcement action and LUPA’s 7 administrative exhaustion requirement is expressly limited to actions brough under LUPA. See 8 Wash. Rev. Code § 36.70C.060(2)(d). 9 Defendants’ request for attorneys’ fees pursuant to the Equal Access to Justice Act (Dkt. 10 No. 106 at 6) is denied because Defendants’ do not prevail on their Motion for Reconsideration. 11 IV. CONCLUSION 12 Accordingly, and having considered Defendants’ motion, the briefing of the parties, and 13 the remainder of the record, the Court finds and ORDERS that Defendants’ Motion for 14 Reconsideration (Dkt. No. 106) is DENIED.
15 Dated this 14th day of March, 2022. 16 A 17 David G. Estudillo 18 United States District Judge 19
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