Summary of a Recent
Judicial Development in
Environmental Law

CWA Does Not Preempt States from Imposing Fees or Completely Occupy
Field of Water Pollution Control and Abatement

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Valstad v. Cipriano, 828 N.E.2d 854 (Ill. Ct. App. 2005), the Illinois Fourth District Appellate Court affirmed the circuit court, which had granted the Illinois Environmental Protection Agency's (IEPA) motion to dismiss based on a defect in the plaintiffs' pleadings. Quarry owners sued the IEPA, the IEPA's director, and the state treasurer challenging a provision of the Illinois Environmental Protection Act that imposed permit fees on holders of National Pollutant Discharge Elimination System (NPDES) permits. The instant court held that the Clean Water Act (CWA) did not expressly preempt states from imposing permit fees and that Congress did not intend for the CWA to completely occupy the entire field of water pollution control and abatement.

Background

In June 2003, the IEPA issued notices to a group of NPDES permit holders, including plaintiffs Harold Valstad, the owner and operator of Valstad Quarry, and 40 other owners and operators of Illinois quarries, requesting that they pay fees pursuant to §12.5 of the Illinois Environmental Protection Act. Id. at 861. Although the plaintiffs paid the fees, they filed a revised complaint four months after the notices were issued against the IEPA Director, the IEPA, and the state treasurer, alleging that §12.5 violated the CWA, 33 U.S.C. §§ 1251-1387. Id. In September 2003, the defendants successfully motioned to dismiss the plaintiffs' complaint, pursuant to § 2-615 of the Code of Civil Procedure. Id. at 861-62. The plaintiffs appealed. Id. at 862.

Arguments

On appeal, the plaintiffs argued that the trial court erred by granting the defendants' motion to dismiss because § 12.5 of the Illinois Environmental Protection Act violated the CWA, 33 U.S.C. §§ 1251-1387. Id. at 872. Specifically, the plaintiffs contended that §12.5's imposition of NPDES permit fees was preempted by CWA. Id.

Analysis and Holdings

Pursuant to the Supremacy Clause of the United States Constitution, federal law will preempt state law in three situations: (1) when Congress does so expressly; (2) when federal regulation occupies the entire regulatory field on a particular subject; and (3) when state action actually conflicts with federal law. Id. (citing U.S. Const., art. VI). In arguing that Congress expressly preempted states from imposing permit fees, the plaintiffs relied on § 33 U.S.C. § 1311(o) of the CWA, which provides that the administrator of the United States EPA is required to impose fees that reflect reasonable administrative costs on those entities seeking modifications of effluent limitations. Id. Disagreeing with the plaintiffs, the court said, "because one subsection of the Clean Water Act requires the United States EPA administrator to levy a fee under certain circumstances does not, by itself, expressly preclude states from imposing fees upon NPDES permit holders." Id.

The plaintiffs also argued that § 12.5's imposition of fees was preempted because the CWA established comprehensive regulation in the area of water pollution control and abatement. Id. Again disagreeing with the plaintiffs, the court held that the CWA does not occupy the entire field of water pollution control and abatement, and that Congress intended much of the authority for administration and enforcement of the NPDES permit program to belong to states. Id. at 872-73.

The case was decided on May 10, 2005.