ELR Citation: ELR 21195
No(s). 90-1183 (10th Cir. Apr 30, 1991)

The court rules that Congress waived the federal government's sovereign immunity to civil penalties for violations of the Federal Water Pollution Control Act (FWPCA), and as a matter of first impression, the court holds that federal agencies may be liable for civil penalties under the FWPCA's citizen suit provision. The district court held that the U.S. Department of the Interior is not immune from the assessment of civil penalties in an FWPCA citizen suit and is liable for at least 6,333 violations involving a mine drainage tunnel near Leadville, Colorado, owned by the Bureau of Reclamation. The circuit court now affirms, reasoning that the plain language of FWPCA §§313(a) and 505(a) expressly demonstrates that Congress intended to waive sovereign immunity and to permit the assessment of civil penalties against the United States. The court concludes that the term "sanctions" in §313(a) encompasses civil penalties and that §313's waiver of sovereign immunity in any process or sanction includes the assessment of civil penalties against the United States. Further, the court concludes that it should apply the specific definition of "person" in the §505 citizen suit provision, which allows private citizens to file suit against any person, including the United States, instead of the meaning of "person" under the FWPCA's general definition section. Finally, the court concludes that the Act's legislative history is consistent with its interpretation of congressional intent clearly expressed in the statutory language.

[The district court's decision is published at 20 ELR 20650.]

Counsel for Appellants
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellees
Adam Babich
1515 Arapahoe St., Tower 3, Ste. 1100, Denver CO 80202
(303) 820-4497

Before McKAY, ALDISERT,^* and McWILLIAMS, Circuit Judges.