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"
34 Pages Posted: 6 Oct 2008
Date Written: 2000
As far back as 1972, Congress recognized that both federal facilities and non point sources contribute significantly to water pollution, and recent observations emphasize that non point source water pollution on federal lands from federally conducted or federally authorized activities -- federal facility non point sources -- are significant continuing threats to water quality. However, the Clean Water Act gives regulatory authority over non point sources to the states. Moreover, while the Act waives the federal government's sovereign immunity regarding water quality requirements, federal facilities need comply only "in the same manner, and to the same extent 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 non point source through the federal Administrative Procedure Act (APA) to make the Forest Service comply with Idaho's water quality standards, even though Idaho only holds non point sources responsible for complying with the applicable Best Management Practices (BMPs). This Article argues that neither the APAnor the Clean Water Act allows the federal courts to create such generalized federal requirements for federal facility non point sources; instead, courts must look to the details of the relevant state's non point source management program to establish the federal facility's water quality responsibilities.
Keywords: Idaho Sporting Congress, federal facility, nonpoint source, Clean Water Act, sovereign immunity, APA, Administrative Procedure Act
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