# Appendix — Arkansas v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0079%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 503 U.S. 91 ## Text Supreme VOUL, Weve | FILED > 8 1991 LERK IN THE Supreme Court of the United States OCTOBER TERM, 1990 STATE OF ARKANSAS, et al., Petitioners, STATE OF OKLAHOMA, et al., Respondents. Petition for a Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit APPENDIX TO PETITION FOR A WRIT OF CERTIORARI Winston Bryant Attorney General Mary Stallcup OFFICE OF THE ATTORNEY GENERAL 200 Tower Building 4th & Center Little Rock, AR 72201 James N. McCord CITY OF FAYETTEVILLE 207 West Center Street Fayetteville, AR 72701 Anne Roberts Bobo A.D.P.C. & E. P.O. Box 8913 Little Rock, AR 72219-8913 February 8, 1991 Edward W. Warren, P.C. David G. Norrell (Counsel of Record) Gary E. Marchant KIRKLAND & ELLIS Suite 1200 655 Fifteenth Street, N.W. Washington, D.C. 20005 (202) 879-5070 Walter R. Niblock ’ THE NIBLOCK LAW FIRM P.O. Drawer 818 Fayetteville, AR 72702 Nancy L. Hamm HAMM LAW FIRM 193 West Lafayette Fayetteville, AR 72702 —— WILSON - Epes PrinTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 Appendix A: Appendix B: Appendix C: Appendix D: Appendix E: Appendix F: Appendix G: Appendix H: Appendix I: Appendix J: TABLE OF CONTENTS Tenth Circuit Opinion, July 11, 1990...... Tenth Circuit Order Denying Rehearing and Rehearing En Banc, October 11, a untsones Tenth Circuit Order Granting Stay of Mandate, October 31, 1990 ...0 0... Order of Justice Byron R. White Ex- tending Time To File Petition For Writ of Certiorari, December 28, 1990 ........... Tenth Circuit Judgment ..........000.0000000... EPA Administrative Law Judge, Initial Decision, January 12, 1988 _...........0...... EPA Chief Judicial Officer, Order on Petitions for Review, June 28, 1988 ._...... EPA Administrative Law Judge, Deci- sion on Remand, September 19, 1988...... EPA Chief Judicial Officer, Second Order on Petitions for Review, December 22, RE ERLE ISL I RE A AORN A Pertinent Provisions of Clean Water Act Sections 301, 303, 401, 402 and 510... Page la 87a 89a 90a 9la 93a 108a 122a 145a 154a la APPENDIX A UNITED STATES COURT OF APPEALS TENTH CIRCUIT Nos. 89-9503, 89-9507 and 89-9516 THE STATE OF OKLAHOMA, OKLAHOMA SCENIC RIVERS COMMISSION AND POLLUTION CONTROL COORDINATING BOARD; SAVE THE ILLINOIS River (STIR), a non-profit corporation of the State of Oklahoma; City or Fay- ETTEVILLE, ARKANSAS; THE BEAVER WATER DISTRICT; STATE OF ARKANSAS; ARKANSAS DEPARTMENT OF POL- LUTION CONTROL AND ECOLOGY, Petitioners, Vv. ENVIRONMENTAL PROTECTION AGENCY, Respondent, OKLAHOMA WILDLIFE FEDERATION, Intervenor. July 11, 1990 Robert A. Butkin (Robert H. Henry, Atty. Gen., and William J. Holmes, Asst. Atty. Gen., State of Okl., Ed Edmondson and Julian K. Fite, Muskogee, Okl., on the briefs), Oklahoma City, Okl., for petitioners, State of Okl., Oklahoma Scenic Rivers Com’n and Pollution Con- trol Coordinating Bd. 2a John Steven Clark, Atty. Gen. (R.B. Friedlander, Sol. Gen., Attys. for State of Ark., Steven Weaver, Anne Rob- erts Bobo, Attys. for Arkansas Dept. of Pollution Control & Ecology, Little Rock., Ark., James N. McCord, Atty. for City of Fayetteville, Ark., Niblock Law Firm, Atty. for Beaver Water Dist., Fayetteville, Ark., on the brief), for petitioners, City of Fayetteville, Ark., Beaver Water Dist., State of Ark., Arkansas Dept. of Pollution Control and Ecology. Gary Guzy (Catherine A. Winer, Pat Rankin, U.S. E.P.A., and Richard B. Stewart, Asst. Atty. Gen., with him on the briefs), U.S. Dept. of Justice, Washington, D.C., for respondent. Ed Edmondson, Muskogee, Okl., appearing for Save the Illinois River. Before ANDERSON and BRORBY, Circuit Judges, and THEIS,* District Judge. BRORBY, Circuit Judge. In these consolidated appeals, appellants challenge cer- tain actions of the U.S. Environmental Protection Agency (EPA) in issuing a discharge permit pursuant to the National Pollutant Discharge Elimination System (NPDES) of the Clean Water Act, 33 U.S.C. § 1342. We review EPA’s action pursuant to our authority under 33 U.S.C. § 1369(b) (1) and reverse. OVERVIEW The city of Fayetteville, Arkansas, applied to EPA for an NPDES permit for a new municipal wastewater treatment plant. Fayetteville proposed to discharge treated wastewater via a split flow into the White River in Akansas and into Mud Creek, a tributary of the IIli- nois River, an Arkansas-Oklahoma interstate stream. *The Honorable Frank G. Theis, Senior United States District Judge for the Distr’ of Kansas, sitting by designation. The State of Oklahoma and a nonprofit group, Save The Illinois River (STIR), requested denial of the permit. The State of Arkansas and the Oklahoma parties re- quested an evidentiary hearing on EPA’s issuance of the permit. A hearing request was granted in part and de- nied in part by an Administrative Law Judge (ALJ), and the partial denial was upheld by the EPA Adminis- trator acting through his Chief Judicial Officer (CJO). After the evidentiary hearing, the ALJ determined that the permit would not have an undue impact on water quality or violate Oklahoma’s water quality standards (WQS). This initial decision was appealed by both Ar- kansas and Oklahoma. On appeal, the ALJ’s decision was affirmed in part and reversed in part and remanded for a determination whether the record showed by a pre- ponderance of the evidence that the permitted discharge would not cause an actual, detectable violation of WQS. On remand the ALJ reviewed the record and made de- tailed findings. He concluded that the permit could issue as written, finding that it would not result in any meas- urable violations of Oklahoma’s WQS. The ALJ’s deci- sion on remand was appealed to the CJO who upheld it in a decision dated December 22, 1988. These petitions for review followed. Appellants the State of Oklahoma, Oklahoma Scenic Rivers Commission, Oklahoma Pollution Control Coor- dinating Board, and STIR (the “Oklahoma parties,” or Oklahoma) set forth ten issues in their joint brief-in- chief. Essentially they contend that EPA erred in con- cluding that the permit would not violate Oklahoma’s WQS; that EPA did not properly consider the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287 (WSRA), as it applies to the upstream portions of the Illinois River; and that EPA erred in denying review of certain issues and in refusing to reopen the evidentiary hearing. The State of Arkansas, Arkansas Department of Pollution Control Ecology, City of Fayetteville, and Beaver Water District (the “Arkansas parties,” or Arkansas) challenge 4a EPA’s authority to require an Arkansas discharger to comply with Oklahoma water quality standards. BACKGROUND The cornerstone of the Clean Water Act, 33 U.S.C. $§ 1251-1387, is its prohibition of any discharge of\ pol- lutants to navigable waters except as permitted by the Act. 33 U.S.C. §1311(a). Section 101 of the Act, 33 U.S.C. § 1251(a) (1), states that “it is the national goal that the discharge of pollutants into navigable waters be eliminated by 1985.” “Discharge of a pollutant” is de- fined expansively as “any addition of any pollutant to navigable waters from any point source.” § 1362(12) (A). “Pollutant” is also broadly defined; it includes “dredged spoil, solid waste, .. . sewage, garbage, sewage sludge, . . . chemical wastes, . . . rock, sand, ... and industrial, municipal, and agricultural waste.” § 1362 (6). “Point source” encompases “any discernible, con- fined and discrete conveyance, including . . . any pipe, ditch, channel, tunnel, [for] conduit . . . from which pollutants are or may be discharged.” § 1362(14). “Navigable waters” means “the waters of the United States.” § 1367(7). Discharges of pollutants must comply with limitations established in and pursuant to the Act. “Effluent limita- tions,” i.e., limits on “quantities, rates, and concentra- tions of chemical, physical, biological, and other con- stituents which are discharged from point sources,” § 1362(11), may be water quality-based, §§ 1312, 1313, or technology-based, §§ 1311(b), 1314(b). EPA is re- quired to establish water-quality based restrictions when- ever technology-based limits are inadequate to protect a particular body of water. §1312(a). The CWA sets minimum requirements for water pollution control; states may devise more stringent measures. § 1370. State standards, once approved by EPA, become the water qual- ity standards for the applicable waters of the State. § 1313. 5a Federal and state effluent limitations anc. water quality standards are transformed into individual point source obligations through NPDES discharge permits. § 1342; EPA v. California ex rel. State Water Resources Con- trol Bd., 426 U.S. 200, 205, 96 S.Ct. 2022, 2025, 48 L.Ed. 2d 578 (1976). Permits may be issued if the discharge will meet all applicable requirements under the Act. § 13842(a)(1). EPA is responsible for issuing permits, id., but may delegate that authority to qualified states, § 1342(b). In those states, however, it retains oversight authority with respect to individual permits and the permitting programs in general. § 1342(c), (d). EPA issued Fayetteville’s NPDES permit because at the time this proceeding commenced Arkansas had not yet been delegated permitting authority pursuant to § 1342(b). The permit was issued on November 5, 1985, and finally approved on December 22, 1988, following the administrative appeals described above. The treatment plant has been in operation since December 1988. The permit (NPDES Permit No. AR0020010) specifies that half of the city’s treated wastewater wili be dis- charged to the White River in Arkansas (this portion of the discharge is not in contention here), and half will be discharged to the Illinois River basin. Specifically, this latter effluent will be discharged to an unnamed stream in northwestern Arkansas, which flows approximately two miles before joining Mud Creek. Mud Creek flows three miles from that point to its confluence with Clear Creek, thirteen miles upstream from the Illinois River in Arkansas. Twenty-two miles downstream from Clear Creek—and thirty-nine miles from the Fayetteville plant— the Illinois River crosses the state line into northeastern Oklahoma and almost immediately flows into Lake Frances. A segment of the Illinois River (including Lake Frances) from the Oklahoma-Arkansas state line to Ten- killer Ferry Reservoir has been designated an Oklahoma state scenic river and was proposed for study as a po- 6a tential addition to the National Wild and Scenic Rivers System when the WSRA was enacted in 1970. 16 U.S.C. § 1276(40). To date, this segment, which is approxi- mately sixty miles long, has not been designated a com- ponent of the national system. See 16 U.S.C. § 1273. The Fayetteville permit sets limits on the amounts of certain pollutants that may be discharged and establishes maximum or minimum effluent concentrations of those pollutants and other chemical parameters. Permit, EPA Supp. Addendum at 12-30. The permit prohibits the dis- charge of any incompletely treated effluent to Mud Creek. Id. at 27. It also includes, inter alia, a provision for modifying the permit to incorporate more stringent limi- tations if an ongoing study of the Illinois River demon- strates such limitations are needed to ensure compliance with water quality standards. /d. ANALYSIS I. Standard of Review Review of the EPA rulings on appeal here is gov- erned by the Administrative Procedure Act, 5 U.S.C. §§ 701-706. We must uphold the agency’s actions, find- ings, and conclusions unless they are outside the agency’s statutory authority, are not supported by substantial evi- dence, or are arbitrary, capricious, an abuse of discre- tion, or otherwise not in accordance with law. 5 U.S.C. § 706(2) (A), (C), and (E). We may not substitute our judgment for that of the agency. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” In reviewing that explanation, we must “consider whether the decision was based on a consideration of the relevant factors 7a and whether there has been a clear error of judg- ment.” Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, en- tirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Id. at 43, 103 S.Ct. at 2866 (citations omitted). Determining the extent of EPA’s authority under the Clean Water Act is a question of law that we review de novo. “Our first inquiry is whether ‘Congress has directly spoken to the precise question at issue. If the intent of Congress is clear that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.’” Mar- tin Exploration Management Co. v. FERC, 813 F.2d 1059, 1065 (10th Cir.1987) (quoting Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), rev’d on other grounds, 486 U.S. 204, 108 S.Ct. 1765, 100 L.Ed.2d 238 (1988) ). However, where the statute is ambiguous, EPA’s con- struction, as that of the agency charged with administer- ing the statute,' is entitled to substantial deference. Chev- ron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984). If EPA’s interpre- tation of the Clean Water Act is reasonable, we should not disturb it unless it “is contrary to the policies Con- gress sought to implement in enacting the statute.” 813 F.2d at 1065; see also 467 U.S. at 845, 104 S.Ct. at 2783. 133 U.S.C. §1251(d) provides: “Except as otherwise expressly provided in this chapter, the Administrator of the Environmental Protection Agency .. . shall administer this chapter.” 8a II. Preliminary Procedural Matters As an initial matter we address EPA’s argument that Arkansas lacks standing to challenge EPA’s interpre- tation of the Clean Water Act. EPA reasons that Arkansas, by not challenging any of the terms of the Fayetteville permit, has failed to state a justiciable case or controversy. ... Arkansas’ claim is purely hypothetical and would not be redressed by a favor- able decision of this Court, just as its allegations as to future permit conditions are purely speculative. EPA Brief at 13-14. EPA also rejects Arkansas’s argu- ment that it may be collaterally estopped in subsequent proceedings if it does not pursue this argument now by assuring Arkansas that EPA would not contest the jus- ticiability of the claim if raised in the context of future permit decisions. EPA Brief at 14; see Arkansas Reply Brief at 11 n. 18.2 Section 509 of the Clean Water Act provides that “[rleview of [EPA’s] action... in [, inter alia,] issu- ing or denying any permit under section 1342 of this title . . . may be had by any interested person.” 33 U.S.C. § 1369(b) (emphasis added). The legislative his- tory corroborates what the language itself suggests—that the Act intended liberal review of EPA’s actions in is- * Arkansas also attempted to raise the Clean Water Act interpre- tation issue in another forum. In September 1988 it moved for leave to file a complaint against Oklahoma in the Supreme Court, invoking the Court’s original jurisdiction under Article III, section 2, of the Constitution. The United States opposed the motion, arguing (according to Arkansas) that the statutory question could more appropriately be resolved in the context of judicial review of L.Ed.2d 769 (1989). Arkansas now argues that “it cannot rely to its detriment on such ‘assurances’ from the EPA in this case for the same reason it could not rely on the United States’ ‘assurances’ in [Arkansas v. Oklahoma].” Arkansas Reply Brief at 11 n. 18. “ 2 ee _ ct 9a suing permits and promulgating rules and standards. The Senate Public Works Committee explained section 509’s judicial review provision as follows: Any person has standing in court to challenge ad- ministratively developed standards, rules and regula- tions under the Act. The courts are increasingly adapting this test to what administrative actions are reviewable. .. . The Courts have grantéd this re- view to those being regulated and to those who seek “to protect the public interest in the proper admin- istration of a regulatory system enacted for their benefit.” Since precluding review does not appear to be warranted or desirable, the bill would specifically provide for such review within controiled time pe- riods. ... . . . For review of permits issued ander section 402 [33 U.S.C. § 1342] ... , the section places jr- risdiction in the U.S. Court of Appeals. . . . S.Rep. No. 414, 92d Cong. 2d Sess., reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3750-51 (emphasis added; citation omitted); see also Conf.Rep. No. 1236, reprinted in 1972 U.S. Code Cong. & Admin. News 3776, 3825. The Supreme Court reiterated the expansive lan- guage of the Senate Report in Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n, 453 U.S. 1, 14 n. 23, 101 S.Ct. 2615, 2623 n. 23, 69 L.Ed.2d 435 (1981) (“review provisions of 509 are open to ‘[a}ny person,’ S.Rep. No. 92-414, p. 85 (1971)”) ; ef. Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 576-78 (D.C.Cir.1981) (§ 509 “incorporate[s] the injury in fact rule for standing set out in Sierra Club v. Morton,” 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ). It would strain the meaning of “any interested person” to exclude from those eligible to obtain review of an EPA permit action the state in which the publicly owned treat- ment works seeking the permit is located, which partially 10a financed the facility’s construction, and which, among other entities, has review and approval authority over the facility’s construction and operation. We conclude Arkan- sas does have standing to challenge EPA’s determination that Oklahoma water quality standards apply to the plant." Before undertaking a discussion of the merits, we must consider a second procedural issue—whether Arkansas has exhausted its administrative remedies. EPA’s regulations provide that a petition “for review of any initial decision . . is, under 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final decision of the Agency.” 40 C.F.R. § 124.91(e). The rule requires EPA to “issue an order either granting or denying the petition for re- view” within a reasonable time after the petition is filed. § 124.91(c) (1). “Final Agency action” for purposes of judicial review occurs “upon completion of the remanded_ proceeding, including any appeals to the [EPA] Adminis- trator from the results of the remanded proceeding.” § 124.91 (f) (3). Although the parties do not raise this issue, we have de- tected two arguable procedural deficiencies in Arkansas’s appeal in light of § 124.91. First, the Arkansas parties may have failed to comply with the technical requirements of subsection (e). Although they filed a petition for review of the ALJ’s decision on remand, R., B-155, it appears they did not file a petition for review of the ALJ’s initial decision as required by the rule, but merely filed a response to the Oklahoma parties’ petitions for ® Moreover, we could reach the statutory construction issue—a legal question—even if we were to decide Arkansas lacked standing to raise it. Whether EPA acted within its statutory authority is subject to our review under 5 U.S.C. § 706(2) (A). Thus, we reject any suggestion by EPA that, if Arkansas lacks standing, this court lacks jurisdiction to decide the statutory issue on the merits. See EPA Brief at 14 n. 8, 15. For similar reasons we reject EPA’s argument that Arkansas’s claim is not ripe for review. EPA Brief at 14. lla review of that decision. Compare Order on Petitions for Review, R., A-28 at 1, with EPA Brief at 8. Although “[t]he Arkansas parties raised [the statutory interpreta- tion] issue in numerous pleadings filed with EPA,” Ar- kansas Brief at 32 n. 24, Arkansas’s argument that Okla- homa WQS should not apply to a discharge located in Arkansas was first asserted to (and rejected by) the ALJ after remand by the CJO.* Secondly, EPA’s action in this case was arguably not “complete” with respect to the Arkansas parties because the CJO failed to “issue an order either granting or deny- ing [Arkansas’s] petition for review.” § 124.91(c) (1). Although all parties petitioned EPA for review of the ALJ’s decision on remand, R., B-155-59, the CJO’s second order ruled -only on the petitions filed by EPA-Region VI and the Oklahoma parties. The order failed even to ac- knowledge Arkansas’s petition. See Second Order on Peti- tions for Review, R., A-37, at 1-2. Nevertheless, under the circumstances of this case, we do not view these shortcomings as fatal to Arkansas’s appeal. EPA’s position on the basic issue raised by the Arkansas parties—whether the Fayetteville discharge must comply with Oklahoma WQS—has been clear since the ALJ’s initial decision and is directly at odds with Arkansas’s position. In his second and final opinion the CJO clearly affirmed his June 1988 ruling that Oklahoma WQS are applicable to the Fayetteville discharge. In so doing, he implicitly, if not expressly, denied Arkansas’s petition for review of the ALJ’s decision on remand. Thus, it would be fruitless to remand to the agency for mere technical compliance with subsection (c) (1)’s requirement * Moreover, Arkansas presented inconsistent arguments in the remand proceeding, claiming first that the 1982, not the 1985, Oklahoma WQS should apply, but then arguing that Oklahoma’s Beneficial Use Limitations specifically cannot apply to a discharge located in Arkansas. See Decision on Remand, R., A-33, at 2-3; Supplemental Joint Briefs submitted by Arkansas Parties, R., B-144 at 7-8, 25-33. 12a for “an order... denying review.” Cf. Mathews v. Eld- ridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) : Koerpel v. Heckler, 797 F.2d 858, 862 (10th Cir.1986) ; Clonce v. Presley, 640 F.2d 271, 273 (10th Cir.1981) (citing Lewis v. New Mexico, 423 F.2d 1048, 1049 (10th Cir.1970) ). decision on remand.” Order on Petitions for Review, R.., A-28, at 17 ( emphasis added). Accordingly, the Arkansas parties’ appeal is ripe for our review, and we proceed with our discussion of the merits. III. Statement of Issues Arkansas poses the fundamental question in this case: Does the Clean Water Act require a point source of pollu- tion to comply with the water quality standards of al] affected downstream states? Oklahoma assumes such a requirement in that it challenges EPA’s determination that the Fayetteville permit would not result in Viclations of Oklahoma’s water quality standards and argues ac- Oklahoma formulates the issues on appeal as “[ w]hether the Chief Judicial Officer erred in denying review” of vari- ous ALJ rulings and whether the CJO and ALJ “erred in [refusing] to reopen the evidentiary hearing.” Despite employed by the Fayetteville plant and the possible su- periority of land application methods; (2) the propriety of considering evidence concerning future reductions in AN ny ca - 13a the discharges of other Arkansas cities; (3) the propri- ety of relying on “protective language” in the permit authorizing more stringent discharge limitations if shown to be necessary by an ongoing study of the Illinois River; (4) the correctness of EPA’s interpretation and ap- plication of Oklahoma’s beneficial use limitation, nutri- ent standard, and anti-degradation policy; (5) the rele- vance of new information concerning overflows at the old treatment plant; and (6) whether Fayetteville met its burden of proof in showing that a permit should be issued for its treatment plant. Our review of the record con- vinces us that we need not resolve many of the issues raised by the Oklahoma parties. In the following pages we address first tne statutory interpretation question posited by Arkansas and then a significant issue not raised by any party—the significance of evidence of exist- ing degradation of Illinois River water quality. A. Construction of the Clean Water Act The Opposing Views The full ramifications of Arkansas’s formulation of the Clean Water Act issue are exposed once it is realized that an upstream state has the ability (if not the legal right) largely to control the quality of certain of the waters of a downstream state. It can accomplish this simply by setting and enforcing its own water quality standards and releasing water of that quality to the downstream state. If the upstream state’s water quality standards are lower than those considered desirable by the down- stream state, so will be the actual quality of the inter- state waters in the downstream state. In other words, the lowest common denominator will prevail. The ulti- mate question posed to this court is whose water quality standards take precedence under the Clean Water Act— the upstream state’s, the downstream state’s, the federal government’s, or nobody’s. We conclude that no state “imposes” its standards on another state, but rather that the Clean Water Act mandates compliance with federal Se ieiiieaeaalt l4a law, including the federally approved water quality stand- ards of affected states, Specifically, Arkansas alleges an affected downstream state “may advise and make recommendations, but no- where in the Clean Water Act did Congress authorize af- fected states such as Oklahoma to impose their water qual- ity standards upon a discharger in another state.” Arkan- sas’s Brief at 39. We treat this, the principal issue of the case, as whether the Clean Water Act requires that any discharge permitted under 33 U.S.C. § 1342 comply with all applicable water quality standards, including the EPA- approved regulations of any affected downstream state.* This is an issue of first impression in the circuit courts.* ° We reformulate the issue to reflect more accurately the facts and legal context of this case. Section 303 of the CWA, 33 U.S.C. § 1313, requires periodic review by states of their WQS and pro- vides for FPA approval of any modified WQS as long as such standard “meets the requirements” of the CWA. § 1313(c) (3). Once approved, “such standard shall thereafter be the water quality standard for the applicable waters of that State.” Jd. EPA is required to promulgate revised WQS for any state that fails to adopt WQS consistent with CWA requirements and in any case where EPA determines that a revised or new standard is necessary to meet the requirements of the Act. § 1313(c) (4). The Fayetteville plant has been required by EPA to observe federal law, i.e., Oklahoma’s EPA-approved water quality standards. See Order on Petitions for Review, R., A-28, at 11 n. 13. Thus, it is misleading to say “Oklahoma - « « impose[d its] water quality standards” on Arkansas, or that Oklahoma has the “right to block” a permit issued by Arkansas. See, e.g., Arkansas’s Brief at 33, 36, 38-40. The 1982 Oklahoma water quality standards, which EPA judged aplicable to the Fayetteville plant, had been approved by EPA. Whether Fayetteville might also be subject to observing Oklahoma state standards that have not received EPA approval is not an issue in this case, and we do not address it. Accordingly, throughout this opinion we use “applicable water quality standards” affected waters, and “Oklahoma water quality standards” to mean * This statement requires a brief explanation of a recent Fourth Circuit case. In Champion Int'l Corp. v. EPA, 648 F.Supp. 1390 —— — we oe a iim 15a EPA’s Chief Judicial Officer, in his first order in this case dated June 28, 1988, stated the law and applied it as follows: (W.D.N.C.1986), motion for withdrawal of mandate denied, 652 F.Supp. 1398 (W.D.N.C.1987), the district court upheld EPA’s assumption of permitting authority under 33 U.S.C. § 1342(d) (4) after EPA objected when North Carolina proposed to permit a discharge in North Carolina without regard for Tennessee water quality standards. The court held that a discharge permit must ensure compliance with the requirements of the CWA, and that EPA reasonably could have concluded that the North Carolina per- mit, in disregarding the Tennessee water quality standard for color, would not ensure such compliance. 648 F.Supp. at 1394-99. Upon reconsideration in light of an intervening Supreme Court case, however, the district court offered the following limiting state- ment: “Nothing in the regulatory framework surrounding the CWA would automatically require that a source state comply with the water quality standards of every downstream state.” 652 F.Supp. at 1400. Subsequently, the district court’s judgment was vacated by the Fourth Circuit with instructions to dismiss for lack of subject matter jurisdiction. Champion Int'l Corp. v. EPA, 850 F.2d 182 (4th Cir.1988). The circuit court prefaced and postscripted its de- cision by expressing its general agreement with “much of the district court’s opinion.” 850 F.2d at 183, 190. It also stated that “EPA’s act in assuming the permit issuing authority was consistent with statute and regulation, and the objections it made to the North Carolina permit do not seem to be out of bounds.” Jd. at 187. However, the appellate court ultimately concluded: The actions of EPA .. . at this stage of the NPDES proceeding are not now subject to judicial review. EPA has neither granted nor denied a permit, so such action is not yet review- able under [33 U.S.C.] § 1369(b) (1). The nature of EPA’s ob- jections are well within the contemplation of those it is entitled to make under applicable regulations. 40 C.F.R. § 123.44(c). Whatever may be the result should EPA make an objection completely without its delegated authority, so as to subject that action to present judicial review under Leedom v. Kyne, [358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958) |, we have no occasion to consider, for such objections have not been made here. 850 F.2d at 190. The court stated that the district court “properly retained jurisdiction of the case in order to ascertain whether or not l6a The CWA requires an NPDES permit to impose any effluent limitations necessary to comply with The - - + In this case, the permit should be upheld if applicable water quality standards are those that have been approved by EPA under the CWA.” Order on Peti- North Carolina’s permit (and we do not intimate tlc they are), its acts are not so clearly outside its authority to subject them to immediate judicial review... .” Id. at 187. Thus, Champion does not decide the merits of the question we face, i.e., whether the CWA requires that an NPDES permit ensure compliance with an effected downstream state’s water quality standards. One other case deserves brief mention here. In Montgomery Envtl. Coalition, the D.C. Circuit stated: “A state whose water ee - Se ee ee + em 17a tions for Review at 11 n. 13 (citing Illinois v. City of Milwaukee, 731 F.2d 403, 413-14 (7th Cir.1984), cert. denied, 469 U.S. 1196, 105 S.Ct. 979, 980, 83 L.Ed.2d 981 (1985)). In noninterstate disputes, however, “the source state may impose more stringent non-EPA- approved water quality standards in NPDES permits under 33 U.S.C.A. § 1370.” Order on Petitions for Re- view at 12 n. 13. On remand, the ALJ expressed stmilar views: It is clear that an out-of-state source must meet the W.Q.S. of another downriver state. See § 401 (a) (2) of the CWA [33 U.S.C. § 1341(a)(2)]; 40 C.F.R. §§ 122.4(D) and 122.44(d) (4); International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). Therefore the Fayetteville discharge must meet Oklahoma’s W.Q.S. as they exist at the border of the two states... . .. + To accept [the Arkansas parties’ argument that the beneficial use limitations do not apply to Fayetteville] would violate the principals [sic] set out above since it is premised on the notion that such standards only apply to sources located in the State of Oklahoma. There is no factual issue among the parties that the Illinois River at the border of the two states is a Class (A) River and therefore the standards applicable to pollution crossing that border must comply with Oklahoma’s W.Q.S. as they exist at that point. Any other interpretation would allow a source to locate its discharge just across the line in Arkansas and freely violate Oklahoma stand- ards. Such a result is contrary to the [Clean Water Act], regulations and Court decisions. Decision on Remand, R., A-33, at 4-5. The ALJ’s inter- pretations of Oklahoma’s WQS, including the Beneficial Use Limitations, were ultimately affirmed by the CJO. The CJO also reiterated the mandate cf his first order— 18a < that “ ‘the permit should be upheld if . . . the authorized discharges would not cause. . . [a] violation of Okla- homa’s water quality standards,’ ”—and accepted the ALJ’s conclusion that no violation would occur. Second Brief at 42; see id. at 33-40. Alternatively, if we decide congressional intent is ambiguous, they urge us to reject ry Id. at 20 (citing United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1280-81, 6 L.Ed.2d 575 ( 1961)). In the event we conclude congressional] intent is ambiguous, EPA alternatively defends the reasonableness of its inter- pretation of the CWA and argues that, under Chevron, 467 U.S. at 844-45, 104 S.Ct. at 2782-83, it must there- fore be upheld. EPA Brief at 13, 15. issue as any of the parties suggests. Significantly, how- ever, EPA’s interpretation is not one the agency only, or in the first instance, in the context of this permit tions cannot ensure compliance with the applicable water quality requirements of all affected States.” ( Emphasis ee ele al eee, CRI Or ec Si a antes ee oe = 19a added.) Concomitantly, EPA’s rules require permits to include, where applicable, “any requirements . . . neces- sary to... [cjonform to applicable water quality re- quirements . . . when the discharge affects a state other than the certifying State [i.e., the state in which the discharge will be located].” § 122.44(d) (4). See also 40 C.F.R. § 131.10(b) (state “shall ensure that its water quality standards provide for the attainment and main- tenance of the water quality standards of downstream waters”). We accord deference to the consistent inter- pretation of a statute by the agency entrusted with its administration. See 33 U.S.C. § 1251( d); Federal Elec- tion Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23 (1981); cf. El. DuPont De Nemours & Co. v. Train, 430 U.S. 112, 135 n. 25, 97 S.Ct. 965, 978 n. 25, 51 L.Ed.2d 204 (1977) (EPA interpretation entitled to deference, even if not contemporaneous with enactment of CWA, in light of technical nature of statute, agency’s expertise, and am- biguous statutory language). After considering the Act as a whole and its legislative history, we conclude EPA’s interpretation is reasonable and consistent with Con- gress’s purposes in enacting the CWA. 2. The Parties’ Statutory Arguments In defending its construction of the CWA the EPA relies principally on § 301(b)(1)(C) of the Act, 33 U.S.C. § 1311(b) (1) (C), which provides: In order to carry out the objective of this chapter li.e., to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251] there shall be achieved . . . not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, . . . established pursuant to any State law or regulations (under authority preserved by section 1370 of this title). . . or required to implement any 20a applicable water quality standard established pursu- ant to this chapter. (Emphasis added.) Section 402(a)(2) and (b)(1)(A) of the CWA, 83 U.S.C. § 1342(a) (2), (b) (1) (A), in turn mandates that any NPDES permit issued under the Act _, contain terms adequate to insure compliance with § 301 ” above. See EPA Brief at 16. EPA rejects Arkansas’s argument that these sections are “mere timing provisions.” Jd. (citing Arkansas Brief at 34-35). On the contrary, EPA argues, these sections establish fundamental requirements of the Act. Moreover, EPA contends that Congress, by making no distinction between the water quality standards of source and affected states in these requirements, “indicated the Arkansas counters that §1311 does not explain whether the “more stringent limitations” must he ’ Under the 1972 CWA amendments, water quality standards are considered “supplementary control measures” —“supplementary” in the sense that they are in addition to peint source effluent limita- tions, the control measure upon which the 1972 CWA Amendments antenttiendiieee hee eee et eR elt ar 2la 5J0, 38 U.S.C. § 1370 limits the “reach” of any stricter standards to discharges originating within the state im- posing those standards. Arkansas Brief at 35." This ar- gument relies largely on language in § 1370 preserving “any right or jurisdiction of the States with respect to the waters .. . of such States.” The argument suffers from at least three flaws, however. First, § 1870 is a savings clause that merely preserves the preexisting right of the states “to set more restrictive standards than those imposed by [the CWA].” S.Rep. No. 414, reprinted in 1972 U.S. Code Cong. & Admin. News 3668, 3751. See also International Paper Co. ». Ouellette, 479 U.S. 481, 493, 107 S.Ct. 805, 812, 93 L.Ed.2d 883 (1987) (§ 1370 savings clause “preserves the authority of a State,” but “does not preclude pre- emption” of state law); Milwaukee v. Illinois, 451 US. 804, 327-28, 101 S.Ct. 1784, 1797-98, 68 L.Ed.2d 114 (1981). Accordingly, there is no basis for believing that Congress intended § 1370 to limit or define the scope of one of the CWA’s crucial provisions. The cases Arkansas * 33 U.S.C. § 1370 provides: Except as expressly provided in this chapter, nothing in this chapter shall (1) preclude or deny the right of any State or political subdivision thereof or interstate agency to adopt or enforce (A) any standard or liimtation respecting discharges of pollutants, or (B) any requirement respécting contro! or abatement of pollution; except that if an effluent limitation, or other limitation, effluent standard, prohibition, pretreatment standard, or standard of performance is in effect under this chapter, such State or political subdivision or interstate agency may not adopt or enforce any effluent limitation, or other limi- tation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the effluent limitation, or other limitation, effluent standard, pro- hibition, pretreatment standard, or standard of performance under this chapter; or (2) be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters (including boundary waters) of such States. 22a cites to the contrary are unavailing for that purpose. See Arkansas Brief at 35-36 n. 28. Second, the “waters .. . of such States” language, which Arkansas deems significant, occurs in and applies only to the second of two principal provisions of § 1370. first provision ( subparagraph (1) ) specifically addresses the rights of states and their subdivisions to regulate pol- lution. Subparagraph (1) Says nothing about the bound- aries within which such rights may be exercised. Thus, “waters .. . of such states” cannot be construed as a limitation on the rights to regulate pollution preserved in the first part of this section.° Third, thoughtful consideration of the language of § 1311(b) (1) (C)— there shall be achieved . . - any more stringent limi- tation, including those necessary to meet water qual- ity standards .. . established pursuant to any State law or regulations .. . or required to implement any applicable water quality standard established pursuant to this chapter argument. In order to ensure that ¢ e EPA-approved water quality standards in all States are “met” or “im- plemented,” it is “necessary” to require dischargers to 23a meet the applicable requirements of other afiected states as well as those of the source state. There could be no assurance of achieving a state’s more stringent WQS if an upstream, out-of-state discharger were not required to comply with those standards. EPA concludes and we agree that Arkansas’s construc- tion of the Act would make achieving downstream water quality standards “impossible in many circumstances or - + + possible . . . only by imposing a disproportionate burden on dischargers located in the downstream state.” EPA Brief at 21, Moreover, rewarding sources for locating in states with less stringent water quality re- quirements (by relieving them from complying with more stringent downstream Y/QS) would also result in “pol- lution shopping,” contrary to Congress’s intent in pass- ing the 1972 CWA amendments." Arkansas counters that EPA’s construction of the Act would have “chaotic” consequences because any down- stream state could impose its requirements on proposed sources in any upstream state. Arkansas Brief at 46- ©The agency contends that its regulations and the legislative history manifest an intent to distribute the burden of meeting water quality standards among all discharges on and affecting a particlular waterway. See EPA Brief at 22 & n. 19. "1 In its bill amending section 402 of the Act in 1977 to authorize EPA to issue an NPDES permit where it determines a state- issued permit is inadequate, the Senate committee stated: “EPA has been much too hesitant to take any actions where States have approved permit programs. The result might well be the creation of ‘pollution havens’ in some of those States which have approved permit programs. This result is exactly what the 1972 amendments were designed to avoid.” S.Rep. No. 370, 95th Cong. Ist Sess. at 73, reprinted in 1977 U.S.Code Cong. & Admin.News 4326, 4398. EPA argues reasonably that Arkansas’s interpretation would encourage sources to locate in states with less stringent water quality requirements. A source located immediately above a state boundary would not be required to meet the more stringent require- ments, if any, of the downstream state, even though that state may be most affected by the discharge. 24a 47. Thus, Arkansas hypothesizes, a permit authorizing a discharge to the Mississippi River in Minnesota would be subject to challenge based on the water quality stand- ards of each of the nine downstream states. Jd. at 46 (citing Ouellette, 479 U.S. at 496 n. 17, 107 S.Ct. at 814 n. 17). Arkansas’s purported concern is that this would undercut the CWA’s “orderly regulatory scheme,” making it “ ‘virtually impossible to predict the standard for a lawful discharge into an interstate body of water.’ ” Arkansas Brief at 47 (quoting Illinois v. Milwaukee, 731 F.2d at 414). We find little practical merit in Arkansas’s agreement. The ability, as well as the authority, te require com- pliance with the WQS of downstream states is necessarily limited by the ability to measure a source’s impact on the water quality of the receiving waters. At some point downstream, the impact on water quality of a particular pollution source becomes so attenuated as to be unde- tectable. Assuming the quality of the receiving waters currently meets or exceeds standards, there can be no violation of standards if the impact of the proposed source on the water quality could not be measured.” Nor is it “impossible to predict the standard([s]” ap- plicable to a new discharge, as Arkansas claims. First, EPA approval of state WQS determines the potentially applicable rules. Furthermore, the permitting system es- tablished in the 1972 and 1977 amendments to the CWA clearly provides for consultation with and input by states that may be affected. Finally, computer modeling (such as that performed for the Fayetteville plant) can pre dict the extent of a new source’s potential impact, thus demonstrating which states’ WQS must be met. 2 See part III.B. of this opinion for a discussion of the signifi- cance in the permitting context of preexisting WQS violations. 25a 3. Illinois v. Milwaukee and Ouellette Arkansas cites International Paper Co. v. Ouellette and Illinois v. Milwaukee in support of its statutory con- struction argument, but that reliance is misplaced. In each of those cases an affected state was seeking to en- join an ongoing discharge in another state by resort to its own state law nuisance remedies. 479 U.S. at 483, 107 S.Ct. at 807; 731 F.2d at 404. In contrast, this case is a permitting, rather than an enforcement, action wherein Oklahoma seeks to ensure compliance with fed- eral law, i.e., its EPA-approved WQS. The Seventh Cir- cuit in Illinois v. Milwaukee recognized this distinction when it pointed out that Illinois’ basic grievance is that the permits ise-1ed to Milwaukee pursuant to the [CWA] do not impose stringent enough controls on the discharges. Never- theless, Illinois failed to participate in the permit issuing process when the Milwaukee permits were issued. . . . [T]hat process seems now to be the appropriate federal forum for adjusting the com- peting claims of states in the environmental quality of interstate waters. 731 F.2d at 412-13 n. 5. The court found that Illinois had “not sought to enforce an effluent limitation under Wisconsin [law] nor sought to enforce federal limita- tions as provided for under the 1972 [CWA]” and con- cluded that the CWA “preclude[s] the type of applica- tion of state law sought by Illinois.” 731 F.2d at 414. The Supreme Court’s decision in Ouellette is somewhat more problematic, even though, like Illinois v. Milwaukee, it is not factually or procedurally similar to this case. The specific issue in Ouellette was whether the CWA pre- empted a common law nuisance suit filed in a Vermont court under Vermont law against a New York dis- charger, which was the source of the alleged injury in Vermont. The Court concluded that “Vermont nuisance 26a law is applicable to a New York point source,” 479 U.S. at 497, 107 S.Ct. at 814; however, it chose to express its holding more broadly. The Court stated: “We hold that when a court considers a state-law claim concern- ing interstate water pollution that is subject to the CWA, the court must apply the law of the State in which the point source is located,” id. at 487, 107 S.Ct. at 809, and “we conclude that the CWA precludes a court from ap- plying the law of an affected State against an out-of- state source,” id. at 494, 107 S.Ct. at 813. The Ouellette Court’s discussion of the CWA includes statements that Arkansas concedes “may be dicta.” Arkansas Reply Brief at 18. But it is these statements concerning the regulatory framework of the CWA and the relative roles of source and affected states which Arkansas embraces. In particular, Arkansas asks us to give weight to the following discussion : While source States have a strong voice in regu- lating their own pollution, the CWA contemplates a much lesser role for States that share an interstate waterway with the source (the affected States). Even though it may be harmed by the discharges, an affected State only has an advisory role in regulat- ing pollution that originates beyond its borders. . . . Significantly, however, an affected State does not have the authority to block the issuance of the per- mit if it is dissatisfied with the proposed standards. An affected State’s only recourse is to apply to the EPA Administrator, who then has the discretion to disapprove the permit if he concludes that the dis- charges will have an undue impact on interstate waters. Ouellette, 479 U.S. at 490-91, 107 S.Ct. at 810-11, quoted in Arkansas Brief at 41. While we agree these statements seem to undercut EPA’s position, it is beyond dispute that they are dicta and not controlling here. Ouellette was an enforcement 27a action in which the issue was the availability of a nuis- ance remedy under the common law of an affected state against an out-of-state discharger. Even the Court’s broadly stated holdings were expressed in terms of “a state-law claim concerning interstate water pollution,” 479 U.S, at 487, 107 S.Ct. at 809 (emphasis added), and “applying the law of an affected State,” id. at 494, 107 S.Ct. at 813 (emphasis added). In contrast, the case before us poses the question of the applicability of the federally approved water quality standards of an af- fected downstream state in permitting a discharge in an upstream state." Moreover, Ouellette contains other dicta that mitigate the apparent impact of the language quoted above. For instance, the Court noted that nothing in its decision affected the piaintiffs’ right to “pursue remedies that may be provided by the Act.” 479 U.S. at 498 n. 18, 107 S.Ct. at 814-15 n. 18. The Court pointed out, as ex- amples, that the plaintiffs had the opportunity to pro- tect their interests before permit issuance by comment- ing on and objecting to the proposed permit conditions, and that they still were entitled to bring a citizen suit to compel compliance with the permit. /d. Ouellette also suggested that what the plaintiffs there sought to do was akin to establishing a second permit system, which the Court held is disallowed by 33 U.S.C. § 1342(b). See id. at 491, 496-97, 107 S.Ct. at 811, 814. That § 1342(b) limits a state’s permitissuing authority to “discharges . . . within its jurisdiction” is beyond dis- pute. But this provision must not be construed to imply anything concerning the applicability of an affected state’s EPA-approved WQS to the process of permitting a dis- Both EPA judicial officers here referred to this distinction in discussing what water quality standards are “applicable” or “enforceable” for purposes of NPDES permitting. Order Denying Review, R., A-3, at 7; Order on Petitions for Review, R., A-28, at 11-12 n. 13. 28a charge in an upstream state. The Act contains several provisions for considering and protecting the water qual- ity of downstream states (including provisions authoriz- ing the actions taken by EPA here). Those provisions are not inconsistent with the Act’s implicit prohibition of dual permitting systems. Indeed, if properly imple- mented, they negate any need for separate permits is- sued by source and affected states. The Court’s opinion in Ouellette corroborates this rea- soning. As the Court observed: Nothing in the Act gives each affected State this power to regulate discharges. The CWA carefully defines the role of both the source and affected States, and specifically provides for a process whereby their interests will be considered and balanced by the source State and the EPA. This delineation of authority represents Congress’ considered judgment as to the best method of serving the public interest and reconciling the often competing concerns of those affected by the pollution. It would be extraordinary for Congress, after devising an elaborate permit sys- tem that sets clear standards, to tolerate common- law suits that have the potential to undermine this regulatory structure. 479 U.S. at 497, 107 S.Ct. at 814. Plainly, Ouellette was concerned not with the CWA’s provisions for incorporat- ing a downstream’s water quality criteria in the permit- ting process, but with preventing a downstream state from circumventing or superseding that process by impos- ing on an already-permitted source additional require- ments based on its own state law. So viewed, Ouellette is entirely consistent with EPA’s interpretation of the ap- plicability of Oklahoma’s WQS. Cf. Champion, 652 F. Supp. at 1400 (concluding that nothing in Ouellette re- quired a modification of the decision of 648 F.Supp. 1390 that a North Carolina discharge permit must require compliance with an applicable Tennessee WQS). 29a 4. The Statutory and Regulatory Framework The erroneous interpretation of Ouellette, which Ar- kansas advocates, runs aground when the Clean Water Act is considered as a whole. The Act contains several mechanisms for ensuring that minimum water quality and pollution criteria will apply to all navigable waters of the United States; for example, prohibiting the dis- charge of pollutants except pursuant to a permit, 33 U.S.C, §§ 1311, 1342; requiring EPA to establish effluent limitations for point source discharges; $$ 1311-1312: providing for EPA’s approval of water quality standards, $ 1313, and state permit programs, § 1342(b) ; and estab- lishing minimum procedural requirements for state per- mit programs, §1314(i). As discussed above, however, states are not precluded from imposing pollution limita- tions more stringent than those promulgated by EPA. 33 U.S.C. § 1370; 40 C.F.R. § 122.1(f) ; Milwaukee v. Illinois, 451 U.S. at 327-28, 101 S.Ct. at 1797-98. Moreover, the CWA requires the application of best available control technology or best practicable treatment to discharges of pollutants, 33 U.S.C. $1311, and the Act’s legislative his- tory reveals that Congress intended the CWA to be “technology-forcing.” S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3709 (Act con- tains a “mandate to press technology and economics” to achieve practicable and attainable levels of effluent re- duction; thus, “increasingly tougher controls on industry” will be required); see also Natural Resources Defense Council, Inc. v. EPA, 822 F.2d 104, 123-24 (D.C.Cir. 1987). Any standard or limitation adopted by a state and approved by EPA becomes the “water quality standard for the applicable waters of that State,” and thus is federally enforceable. 33 U.S.C. $1313/(c¢) (3). See also ££ 1319, 1342; S.Rep. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3672; Order on Petitions for Review, R., A-28, at 11-12 n. 13. 30a a 33 U.S.C. § 1341 EPA finds support for its action here in certain of the foregoing sections. In addition, we consider 33 U.S.C. $1341 particularly persuasive. It provides that no NPDES permit may be granted until a “certification” is obtained from the state in which the discharge originates (or from EPA where no state agency possesses such authority, § 1341 (a) (1) ; 40 C.F.R. § 121.21 (b) ), stating that the discharge will comply with, among other things, $1311 water quality requirements. Section 1341 (a) (2) provides: Whenever such a discharge may affect, as determined by the [EPA] Administrator, the quality of the waters of any other State, the Administrator . . : shall so notify such other State. --. If... such other State determines that such discharge will affect the quality of its waters so as to violate any water quality requirement in such State, and .. . notifies the Administrator . . . and requests a public hear- ing . . ., the licensing or permitting agency shall hold such a hearing. . . . [The licensing or permit- ting] agency, based upon the recommendations of such State, . . . shall condition such license or permit in such manner as may be necessary to insure com- plianee with applicable water quality requirements. If the imposition of conditions cannot insure such compliance such agency shall not issue such license or permit. ““{T]he purpose of [§ 1341(a) (2)] notice requirement is to enable a state whose water quality may be affected by the proposed federal activity an opportunity to insure that its standards will be complied with.’” EPA Brief at 17-18 (emphasis added) (quoting Lake Erie Alliance for the Protection of the Coastal Corridor v. U.S. Army Corps of Eng’rs, 526 F.Supp. 1063, 1075 ( W.D.Pa.1981), aff'd without opinion, 707 F.2d 1392 (3d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983) ), 8la EPA’s regulations reaffirm this view, see 40 C.F.R. §§ 121.1-.30,"* as does the limited case law, see, ¢.g., United States v. Commonwealth of Puerto Rico, 721 F.2d 832, 833-34 (1st Cir. 1983) (certification is a “condition precedent to the EPA’s issuance of a NPDES permit”; “state decision denying certification, or one imposing con- ditions or restrictions, is not reviewable administratively by the EPA” and is “exempt from review in federal court”). Arkansas disputes that “applicable water quality re- quirements” in § 1341(a)(2) refers to the WQS of the affected state.'* Based on its plain language, however, we agree with EPA that the purpose of this provision must be to enable affected states to ensure that their water quality will not be jeopardized by a discharge in another state. Only a strained interpretation of the statute could produce the result Arkansas seeks—that “applicable water quality requirements” refers to the WQS of only the source state. Moreover, there would be no reason for § (a) (2) to refer to the effect on the quality of the affected state’s waters in terms of “violat [ing] any water quality requirement in such State” if the affected state’s water quality requirements were irrelevant in the permit- ting process. Given that this subsection of the statute deals expressly with effects on states other than the source state, it is much more likely that “applicable” refers simply to those federally approved water quality require- ments of affected states that would be violated if the permit were not appropriately conditioned. We reject Arkansas’s argument to the contrary. The legislative history of the certification statute sheds additional light on this matter. In 1977 Congress amended the statute --—- '* Subpart B of these rules deals specifically with determining the effect of proposed discharges on other states. Arkansas refers erroneously to the section as 33 U.S.C. § 1342(a)(1). Arkansas Brief at 24 n. 27. 82a to add section 303 [33 U.S.C. § 1313, “water quality standards and implementation plans”) to the list of the act’s provisions for which a State must certify compliance .... This means that a federally licensed or permitted activity, including a discharge permit under section 402, must be certified to comply with State water quality standards adopted under section 303. water quality standards.” 1977 U.S.Code Cong. & Admin. News at 4397. The conference committee added that “[slection 303 is always included by reference where sec- tion 301 is listed.” H.Conf.Rep. No. 830, at 96, reprinted amendment: [A]ll States have approved water quality standards. Thus, it is reasonable to require that Federal] permits and licenses should take into account State water quality plans, standards and requirements adopted under section 303 to assure maintenance of water quality in the respective States. state water quality standards is a reasonable interpreta- tion in light of this history. See supra note 5 for a brief discussion of § 303 of the CWA, 33 U.S.C. § 1313. SE Ce a et IR te. deg 33a b. 33 U.S.C. § 1342 Also germane to EPA’s construction of the CWA is the fact that, in those states authorized to issue NPDES per- mits, the EPA Administrator retains authority to veto any proposed permit if he objects to its issuance. 33 U.S.C. § 1342(d) (2)."" EPA may object on the basis of either of two grounds: (1) that a permitting state failed to accept recomendations from another state whose waters may be affected by permit issuance; or (2) that the per- mit is “ ‘outside [i.e., inconsistent with] the guidelines and requirements’ of the Act.” EPA Brief at 18-19 (quot- ing 33 U.S.C. § 1342(d)(2)).% The statute mandates that “|njo permit shall issue” if EPA objects for either reason. § 1342/d) (2). If the source state does not revise the proposed permit to satisfy EPA’s objection, EPA may issue a discharge permit, § 1342(d) (4), but it may not issue a permit less stringent than that required by any state’s effluent limitations and water quality criteria. H.R.Conf.Rep. No. 830, 95th Cong., 1st Sess., 97, re- printed in 1977 U.S. Code Cong. & Admin.News 4424, 4472. Given that a permit program administered by EPA is subject to the same requirements as apply to an approved state program, § 1342(a)(3), no reasonable argument would justify invalidating a state-issued per- mit that fails to account for the WQS of another state, yet allowing EPA to issue a permit objectionable on the same ground."’ ‘EPA may also withdraw approval of a state permit program if EPA determines the state is not administering its program in accordance with CWA requisites. 33 U.S.C. § 1342(c) (3). * EPA’s regulations elaborate on these two grounds. enumerating seven possible bases for an EPA objection to a state-issued permit. 40 C.F.R. § 123.44(c). Section 1342(d) (3), the paragraph immediately following the veto provision, states: “The {EPA}! Administrator may, as to any permit application, waive paragraph (2) of this subsection.” The discretionary language of this paragraph initially gave us pause, especially in light of the mandatory tone of paragraph (2) (“No 34a Although several of the CWA terms discussed in the foregoing paragraphs have no direct application to the permit in this case (because EPA, not Arkansas, is the permitting agency), they reflect the objectives and _poli- cies behind the Act and the Statutory framework estab- lished for implementing them. Because nothing in the Act suggests that permits issued by states are subject to more stringent requirements than those issued by EPA— indeed, § 1342(a)(3) mandates that permits issued by EPA and the states “shall be subject to the same terms, conditions and requirements”—any term of the Act di- rected to state permitting agencies is instructive as to EPA’s permitting responsibilities and authority as well. permit shall issue” if the Administrator objects). After careful study of the statute and the legislative history, however, we believe the legislative history reveals that EPA's discretion arises only with respect to its authority to choose te review or not review a permit application of which it is notified by a permit-issuing state pursuant to § 1342(d)(1). See Mianus River Preservation Comm. v. Administrator, EPA, 541 F.2d 899, 907-09 (2d Cir.1976) (dis- cussing legislative history of § 402 of the CWA). Such discretion is consistent with congressional intent to allow EPA-approved, qualified states to administer their own permit programs. An implicit component of this discretion, once exercised, is EPA’s authority to determine the impact of a proposed discharge and whether that impact is acceptable under the CWA. Once EPA chooses to review a permit application an@ proposed permit under this section, we do not believe it has “discretion” to overlook any violation of the CWA revealed by its review. Cf. § 1342(c)(3) (if EPA determines a state permit program is not being administered in accordance wtih § 1342, it “shail withdraw approval of such program” (emphasis added) ) ; § 1313(c) (4) (EPA “shall promulgate” new or revised WQS where necessary to meet CWA requirements or where state has promulgated inadequate standard) ; contra Mianus River, 541 F.2d at 909 & n. 24. Inter- preting § 1342(d) (3) otherwise (i.e, as making all of the provi- sions of § 1342(d) (2) discretionary) is inconsistent with the spirit and framework of the CWA and with the express prohibition against discharging any pollutant except in compliance with the Act. 33 U.S.C. § 1311(a). ae ey men + eel di 35a The Arkansas parties construct a similar argument (based on the relation between EPA’s and the states’ per- mitting responsibilities) to urge an opposite result, how- ever. They contend: Section 1342(b)(5) very clearly indicates that an affected state can only be an advisor to the source state in the permitting process when that process has been delegated to a state to administer. ... Thus, it makes little sense to suggest . . . that a source state discharger must comply with affected state water quality standards when the permitting author- ity is the EPA rather than a delegated state. Arkansas Brief at 38-39.% Arkansas correctly suggests it would make “little sense” if the applicability of a downstream state’s water quality standards depended on what entity (EPA or the source state) issues the permit. However, Arkansas’s argument that affected states are limited to an advisory role contains several fatal flaws. First, in arguing, in effect, “an affected state may not require a source state to comply with the former’s WQS; therefore, EPA may not require such compliance,” Ar- kansas’s fundamental premise is faulty. The fact that an affected state may have only an “advisory role’ under § 1342(b) (5) does not mean compliance with that state’s approved water quality standards is discretionary. More- 2° Section 1342(b) (5) provides: The Administrator shall approve each such submitted [ permit} program unless he determines that adequate authority does not exist ... [to insure that any State (other than the permitting State), whose waters may be affected by the issuance of a per- mit may submit written recommendations to the permitting State (and the Administrator) with respect to any permit appli- cation and, if any part of such written recommendations are not accepted by the permitting State, that the permitting State will notify such affected State (and tne Administrator) in writing of its failure to so accept such recommendations to- gether with its reasons for so doing|.| 36a over, § 1342(b) (5) merely describes part of the pro- cedures a state permit program must provide for insur- ing communications among the source state, an affected state, and EPA concerning the permitting of a new dis- charge in the source ( permitting) state. See also § (b) (3)-(4). Standing alone, the subsection Says noth- ing about whether compliance with affected states’ Was is optional or obligatory. Second, Arkansas’s argument focuses on one paragraph in isolation, rather than in the context of the entire Act, or even in the context of § 1342 as a whole. Section 1342(b) provides that the EPA Administrator shall approve any program submitted by a state desiring to administer its own permit program unless he determines, essentially, that the state proposal does not ensure ade- quate authority to administer the NPDES permit pro- gram properly. Subsection (b) (5), upon which Arkansas relies, is only one of nine specific grounds upon which EPA may refuse permitting authority to a state. .'42(b)(1)-(9). Subsection (pb) (1) (A), for example, ires adequate state authority to “issue permits which apply, and insure compliance with, any applicable requirements of sections 1311, 1312, 1316, 1317, and 1348 of this title.” *" § 1342(b) (1) (A). Arkansas’s argument also overlooks the fact that § 1342(b) (5) derives from § 1341, the certification stat- ute. As discussed earlier in this opinion, § 1341 not only provides for notice to potentially affected states, it re- quires that permits be conditioned SO as to insure com- pliance with all applicable water quality requirements, and it prohibits issuing any permit that cannot insure such compliance. § 1341(a) (2). *1 As EPA argues and we have already discussed, the require- ment of compliance with state water quality standards arises from $1311. Thus, via § 1342(b)(1)(A)’s requirement of compliance with § 1311, permits issued by states must ensure compliance with all applicable WQS. AS My tah ny 37a Finally, Arkansas’s argument must fail in the face of other CWA provisions heretofore discussed—in particu- lar, EPA’s authority to veto permits and to suspend state programs if they do not meet the requirements of the Act, § 1342(c)-(d), and the proviso that state and EPA permit programs be subject to the same terms and con- ditions, § 1842(a) (3). c. EPA’s “Upset” Regulation We find still further support for EPA’s construction of the CWA in the views the agency expressed in an earlier rulemaking proceeding. In the course of promul- gating final regulations providing dischargers with a defense to violating effluent limits during unavoidable source “upset” conditions, EPA stated that “the CWA requires strict compliance with water quality standards” ; thus, “water quality standards are. . . legally required to be met at all times.” 49 Fed.Reg. 37,998, 38,038 (1984), quoted in Sierra Club v. Union Oil Co., 813 F.2d 1480, 1489 (9th Cir.1987), judgment vacated, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d 264 (1988); see 40 C.F.R. §§ 122.41(n), -.4(d). The final “upset” rule provides that in certain nar- rowly defined circumstances technology-based effluent limitations may be exceeded (i.e,-sfailure of pollution controls may be allowed). 40 C.F.R. § 122.41(n). Sig- nificantly, an industry-proposed defense for violation of water quality-based permit limits ** was deleted in the final rule. EPA reasoned that, because water quality standards must be met at all times, even during “upset” conditions, “permittees would need to do continuous moni- toring on all stream segments that may be affected” to ensure that water quality standards were not violated in order to establish the defense. 49 Fed.Reg. at 38,038 *2In other words, industry proposed an “upset” defense for ex- ceeding water quality-based effluent limitations, so long as the actual quality of the receiving waters did not fall below established WQS. 38a (emphasis added). The impracticality of such a require- ment led EPA to reject the industry proposal. 49 Fed. Reg. at 38,038. Jd. This view that all potentially affected stream segments would have to be monitored reflects EPA’s conviction that an upstream source whose effluent might affect the water quality of downstream states must comply with the WQS of those states. It is also consistent with EPA’s belief that “strict compliance” with water quality standards is required by the CWA, because such com- plianee would be impossible if sources could disregard the WQS of states other than the source state. According to EPA, the requirement of strict compli- ance with WQS derives from 33 U.S.C. § 1311(b) (1) (C), which mandates that “there shall be achieved . : not later than July 1, 1977, any more stringent limita- tion . . . necessary to meet water quality standards.” (Recall that all NPDES permits must ensure compliance with § 1311. § 1342(a) (1), (b)(1).) The legislative history of the section bears out EPA’s interpretation. See S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3710 (EPA “is under a specific obligation to require that level of effluent control which is needed to implement existing water quality standards without regard to the limits of practicability”). Even in 1977 when Congress “relaxed” the best available technology requirements in certain circumstances, the amended statute and the legislative history leave no doubt that water quality standards still must be maintained.24 ~ “EPA has held this view consistently since at least 1979. 44 Fed.Reg. 32,854, 32,863 (1979) (“violations of... water quality based effluent limitations are not subject to a defense of upset”’) ; see also Student Pub. Interest Research Group v. P.D. Oil & Chem. Storage, Inc., 627 F.Supp. 1074, 1086 (D.N.J.1986); Union Oil, 813 F.2d at 1489. *4The 1977 amendments added a “waiver” provision in section 301 of the Act (33 U.S.C. § 1311(g)) allowing for use of “best — 39a In explaining the amendment the Senate committee cau- tioned : [T]he gains made as a result of the 1977 require- ments could evaporate in the middle of the next decade if only the 1977 [effluent limitations] and new source performance standards are applied. Thus, for many riverways . . ., pressure must be maintained to assure improved water quality and to avoid slipping back. The Committee intends that current effluent limi- tations . . . should represent a “floor” or minimum requirement of the modifications authorized by this section. Current levels of discharge must not be re- laxed by this provision because that would imply additional] treatment requirements on other point or nonpoint source dischargers. Id. at 42, 44, reprinted in 1977 U.S. Code Cong. & Admin. News at 4367, 4369 (emphasis added).** The Committee practicable technology” instead of “best available technology” if 1983 water quality standards could be met thereby. The Senate committee explained that this allowance was being made to avoid “(effluent| treatment for the sake of treatment.” S.Rep. No. 370, 95th Cong., Ist Sess. at 43-44, reprinted in 1977 U.S.Code Cong. & Admin.News 4326, 4368. To qualify for the waiver, the amended statute requires compliance with certain conditions, including attain- ment or maintenance of a high standard of water quality. 2533 U.S.C. §1311(m) provides another example of Congress’s willingness to relax statutory effluent limitations as long as com- pliance with WQS is assured. This statute governs industrial dis- charges into “deep waters of the territorial seas.” Subsection (m)(1) provides for issuing, under certain unique circumstances, permits containing “modified” effluent limitations (i.e., less stringent limits than otherwise required), provided that effluent limitations established in such permits are “sufficient to implement the appli- cable State water quality standards.” § (m) (2). The statute further provides that EPA may terminate such a permit if it subsequently determines there has been a “decline in ambient water quality of the receiving waters . . . even if a direct cause and effect relation- 40a also stated: “There igs nothing in these new provisions Which in any way preempts the rights of States to have more stringent water quality standards or associated efflu- ent limitations... .” Jd. at 43, U.8.Code Cong. & Admin. News at 4368. d. 33 U.S.C. § 1365 One final provision of the CWA deserves mention in our discussion of the statutory interpretation issue. Sec- tion 505(h), 33 U.S.C. § 1865 / h), authorizes the governor of a state to sue EPA to enforce an effluent standard or limitation under this chapter,” the violation of which is occurring in another state and is “causing a violation of any water quality requirement in his state.” Subsection (f) defines “effluent limitation or standard under this chapter” as including, for purposes of this section, certifi- cation under § 1341 and permits or conditions thereof issued under § 1342. Clearly, the injury sustained by a state for which § 1365 provides a remedy is the impact on that state’s water quality, not the violation of the “effluent standard or limitation” per se. This interpretation is dictated by common sense and congressional intent. See S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3675 (“[T)he basis of pollution prevention and elimination will be the application of effluent limitations. Water quality will be a measure of program effectiveness and performance.”). Arkansas’s view that discharge per- mits are not required to ensure compliance with the ap- plicable WQS of all affected States cannot be reconciled with § 1365(h)’s express remedy for the violation of “any water quality requirement” in one State, which results ship cannot be shown,” but that EPA shall terminate such a permit if the effluent from the source “is contributing to a decline in am- bient water quality of the receiving waters.” § (m)(4) (emphasis added ) . dla from the violation of an “effluent limitation” (defined to include a permit condition) in another state. Section 1365 reminds us that, under the CWA, effluent limitations are not an end in themselves, but simply a means to an end—the desired water quality. The plainest evidence of this can be found in 33 U.S.C. § 1311(b) (1) (C) (discussed at pages 604-605 of this opinion) and in 3 1312, each of which reveals that the purpose of effluent limitations is to achieve a desired level of water quality. Section 1312, “Water quality related effluent limitations,” provides: Whenever, in the judgment of the [EPA] Adminis- trator, discharges of pollutants from a point source or a group of point sources, with the application of effluent limitations required under section 1311 (b) (2) of this title, would interfere with the attainment or maintenance of that water quality in a specific portion of the navigable waters which shall assure protection of public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced population of shellfish, fish and wildlife, and allow recreational activities in and on the water, effluent limitations (including alternative effluent con- trol strategies) for such point source of sources shall be established which can reasonably be expected to contribute to the attainment or maintenance of such water quality. 83 U.S.C. § 1312(a) (emphasis added). In other words, effluent limits more stringent than those required by 33 U.S.C. §1311(b) (2) must, if feasible, be established by EPA and imposed on any sources responsible for interfer. ing with the desired water quality in a specific stream seg- ment.” In the words of the Senate committee: 26In addition, states are required to identify waters for which the effluent limitations established pursuant to $1311 are “not stringent enough to implement any water quality standard applicable 42a The limitations necessary to achieve a given level of water quality in one reach of a waterway may re- quire more control of effluents than that attainable through application of the best available technology. Where that is desirable to implement the policies of the Act, and feasible, [this section] provides the au- thority to impose controls based on water quality. The concept of “alternative effluent control strate- gies” is necessary to account for [certain] difficulties in simply setting more stringent effluent limitations, ... [F Jurther reduction of the level of effluent enter- ing the affected waters may not be possible through control technology, yet essential to water quality. Al- ternative effluent control strategies, such as the trans- portation of effluents to other less affected waters or the control of in-plant processes would have to be developed. S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3712-13 ( emphasis added). This section and its legislative history reveal the pre- eminent importance of water quality—actual and desired —in the framework of the CWA. Significantly, they lack evidence of any intent to limit the scope of § 1312 to the intrastate water quality effects of discharges, Indeed, the statute’s use of the term “specific portion of the navigable waters” (like the Senate report’s use of “one reach of a waterway” and “affected waters”), rather than language specifying waters of the source or permitting state, sug- gests that the section contemplates regulation of water quality without regard to state boundaries, Vesting au- to such waters,” 33 U.S.C. § 1313(d) (1) (A), and to establish the acceptable “total maximum daily load” for pollutants in those waters, § 1313(d) (1) (C). Eventually, the states are required to establish total maximum daily loads for all waters. § 1313(d) (3). 43a thority in EPA, instead of in individual states, arguably suggests a similar intent.” Considered together, all of the provisions of the CWA dis- cussed above (§§ 1311, 1312, 1313, 1314, 1341, 1342, 1365, and 1370), as well as the legislative history and EPA’s implementing regulations, evidence the reasonabless of EPA’s interpretation of the Act. Accordingly, we hold that no discharge to a navigable water, such as the Illinois River, may be permitted unless compliance with all ap- plicable water quality requirements, including the federally approved standards of affected downstream states, is assured. B. Significance of Existing Violations of Illinois River Water Quality Standards There is substantial evidence in the record of ongoing violations of Illinois River water quality standards, yet neither of the EPA judicial officers nor any of the parties addresses whether, or how, this is relevant to Fayette- ville’s application to discharge to the Illinois River. We believe this situation poses an issue of critical importance —whether a new discharge may be permitted when the applicable water quality standards are already being violated.** Guided by the Supreme Court’s pronouncement *? Section 302 of the conference substitute bill, which was ulti- mately enacted, was identical to the Senate provision discussed above with one exception: The conference committee eliminated the Senate bill’s grant of authority to the states. In the statute as enacted (33 U.S.C. § 1312), authority to impose additional efflu- ent limitations is vested solely in EPA. 1972 U.S.Code Cong. & Admin.News at 3799. ** Throughout this and the prior section of our opinion, we use “applicable water quality standards” to refer to those federally ap- proved water quality requirements of affected states with which a proposed discharge must comply. See supra note 5. In this section, we refine the scope of the term to denote federally approved water quality requirements that are relevant to the physical and chemical! makeup of a proposed source’s effluent. For example, Oklahoma's nutrients standard is relevant to the Fayetteville plant because the 44a of the problem [or] offered an explanation for its deci- sion that runs counter to the evidence before the agency,” Motor Vehicle Mfrs., 463 U.S. at 43, 103 S.Ct. at 2856, we conclude EPA’s decision to issue the Fayetteville per- mit was arbitrary and capricious. The agency’s decision is also flawed by misinterpretation and misapplication of two important Oklahoma water quality regulations and by arbitrary disregard for certain expert testimony. For these reasons, discussed more fully below, we hold that applicable water quality standards have already been vio- lated) and reverse EPA’s decision to permit Fayetteville to discharge any part of its effluent to the Illinois River Basin. 1. Law Applicable to Oklahoma Scenic Rivers The Upper Illinois River, including Lake Frances, from the Arkansas state line down to the 650-foot elevation level of Tenkiller Ferry Reservoir, is designated an Okla- homa state scenic river. Okla.Stat. tit. 82, § 1452(b) ( 1) (1990). As such, certain water quality standards apply to these waters. See Oklahoma Water Quality Standards (OWQS) § 4 & App. A (1982). Water quality standards plant discharges Phosphorus and nitrogen, but the temperature standard is irrelevant because, presumably, any impact that the plant’s effluent might have on the temperature of water in the river would be so attenuated at the state line as to be undetectable. For the sake of convenience, we often refer simply to “Oklahoma water quality standards,” or “WQS,” but in each instance it is implied that those standards have been approved by EPA. We draw no conclusions about state requirements that may not have been ap- proved by EPA. 2° Water quality standards are promulgated by the Oklahoma Water Resources Board pursuant to Okla.Stat. tit. 82 § 926.2.6 Appendix A of the standards lists the following beneficial uses, 45a consist of two parts: a designated use or uses for the identified waters and water quality criteria for such waters based on those uses. 40 C.F.R. § 130.2(c); Okla. Stat. tit. 82 §904(f); OWQS $4. Of greatest interest for purposes of this discussion are the Illinois River’s “fish and wildlife propagation” (primary warmwater fishery), “aesthetics,” and “smallmouth bass” designated “beneficial uses.” Within the latter two use categories, the following water quality criteria are particularly sig- nificant: turbidity (OWQS § 4.10(b)), nutrients (OWQS $4.10(c)), and dissolved oxygen (OWQS §4.11(a)). The occurrence of phosphorus and nitrogen in Fayette- ville’s effluent necessitates the consideration of these cri- teria.” As a preliminary matter, Oklahoma contends and we agree that EPA’s judicial officers erred in concluding that Oklahoma’s nutrients standard, {4.16(c), applies only to lakes, not to streams. Decision on Remand, R., A-33, at 6; Second Order on Petitions for Review, R., A-37, at 8. Section 4.10(c) provides: “The total phosphorus concen- tration and the nitrogen/phosphorus concentration ratio inter alia, for the Illinois River, including Lake Frances, and Ten- killer Reservoir below the scenic river: “public and private water supply,” “fish and wildlife propagation” (primary warm-water fishery), “agriculture” (Class I irrigation), “primary and secondary recreation,” “aesthetics,” and “smallmouth bass.” See OWQS § 4 & App. A. Recall that Oklahoma WQS have been approved by EPA. The particular standards applicable to the Fayetteville permit are those adopted in 1982. Second Order on Petitions for Review. R.. A-37, at 5-6. * In oversimplified terms, phosphorus and nitrogen are nutrients which, when added to an aquatic system, stimulate the growth of aquatic plants and other organisms, eventually altering bioloyical characteristics of the system, such as species populations, biomass, and species abundance and diversity, as well as physical and chem- ical parameters, such as temperature, turbidity, color, and dis- solved oxygen. In part B.2.c. of this discussion, we cite evidence in the record relating to the composition of Fayetteville’s effluent and compliance with these criteria. 46a agency’s confusion is the definition of “eutrophication (natural)” (included in Appendix C of the OWQS), which refers only to lakes.*" An Oklahoma witness at the administrative hearing explained that the definitions in the appendix are “scientific definitions,” provided merely for clarification purposes, and that “the state does apply the eutrophication principle . . . to rivers.” Tr. at 578. Apparently no one scrutinized the OWQS carefully enough to discover that the regulations themselves define the scope of the nutrient standard’s application. Section 4, “Standards for Water Quality,” unequivocally states: “Narrative standards lineluding] Section . . . 4.10(c) - » . Shall be maintained at al] times and apply to all perennial and intermittent streams.” (Emphasis added. ) In addition, the preface to Appendix A of the OWQS states that §4.10(c) applies even to those stream seg- ments not listed in the appendix (i.e., stream segments for which beneficial uses have not been designated). Ac- cordingly, we reject EPA’s ruling that the nutrients standard applies only to Lake Frances and Tenkiller Reservoir and hold that it applies to the entire reach of the Illinois River in Oklahoma. In addition to the nutrients standard, Oklahoma’s “Anti-Degradation Policy,” OWQS § 3, and “Beneficial Use Limitations,” id, $5, also protect the Upper Illinois River.** The Oklahoma parties assert that EPA also mis- 31 “Eutrophication ( natural)” is defined: The normally slow aging process by which a lake evulves into a bog or marsh and ultimately assumes a terrestrial state. During eutrophication the lake becomes so rich in nutritive com- pounds (especially nitrogen and phosphorus) that algae and other microscopic plant life become superabundant, thereby “choking” the lake, and causing the lake to advance in seral stages. * The text of OWQS §§3 and 5 is included as an appendix to this opinion. 47a interpreted and misapplied these regulations. Their ar- gument is rather unfocused, but they basically claim that “any increase in any ‘wastes’. . . which may pollute or tend to pollute” the waters of a scenic river violates these rules. Oklahoma Brief at 32 (emphasis in original) ; see generally id. at 30-38. The Beneficial] Use Limitations regulation provides that scenic rivers “are protected by prohibition of any new point source discharge of wastes . . . except under condi- tions described in Section 3 [the Anti-Degradation Pol- icy}.” OWQS § 5. The relevant provision of § 3 states: “No degradation shal! be allowed in high quality waters . . . includ[ing] ter bodies . . . designated ‘Scenic Rivers.’ The OK homa courts apparently have not in- terpreted these provisions.” Nevertheless, we believe the ** The Oklahoma Attorney Genera! has issued an opinion, how- ever, addressing the question: May the Oklahoma Water Resources Board (OWRB) adopt an antidegradation policy that allows for lower water quality or limited degradation of certain waters? Opinion No. 84-124 (Dec. 28, 1984). The Attorney Genera! acknowl- edged the federal antidegradation regulation, which provides for lowering water quality in certain limited circumstances, but ob- served that federal law was meant to set minimum standards. He then set forth the Oklahoma Legislature's intent that state waters were to be classified “for the purpose of progressively improving the quality . . . and upgrading them from time to time by reclassi- fying them,” Okla.Stat. tit. 82, § 926.6(A), and that it was state policy to “protect, maintain, and improve the quality {of the waters of the state|,” id. § 926.2. He concluded: It is clearly the intent of the Legislature that the quality of state waters be progressively improved and not be allowed to be degraded. Oklahoma law does not set forth any exceptions. It is, therefore, the official opinion of the Attorney General that ... the [OWRB] may not adopt a statewide antidegrada- tion policy which allows for lower water quality or limited degradation of certain waters. Thus, it is the expressed view of the Oklahoma executive depart- ment that Oklahoma law does not allow even the limited degradation authorized by the federal regulation. OWQS § 3, however, suggests a contrary position. 48a plain language of the regulations manifests a clear intent to allow no degradation of the water quality of scenic rivers. More specifically, the regulations disallow any additional discharge of pollution (either a new point source or an increase from an existing source) to a scenic river if its water quality has been degraded or if the new Source would degrade it. Closer examination of the language and structure of the Anti-Degradation Policy, guided by the minimum re- quirements for such policies set forth in EPA’s regula- tion, confirms our plain language construction." The Ok- the federal and state ruies establish three levels of protection for State waters. Under level 1, existing instream water uses must be maintained and protected in all streams. Compare 40 C.F.R. § 131.12(1) with OWQS § 3, para. 1. The Oklahoma rule adds that this level of protection prohibits any “further degradation which would interfere with or become injurious to existing instream water uses” and that “Oklahoma’s waters ... shall be... improved.” Under level 2, “limited degradation” may be allowed in certain “high quality waters” whose “water quality .. . exceeds those levels necessary to support propagation of fish, shellfish, wildlife, and recreation.” Compare OWQS § 3, para. 2 with 40 C.F.R. § 131.12(2), planning requirements, that “necessary and justifiable economic or social development” necessitates this degradation. OWQS § 3, para. 2; ef. §131.12(2), Moreover, in allowing such degradation, the state is required to “assure that there shall be achieved the highest Statutory and regulatory requirements for all new and existing point sources and all cost effective and reasonable best! manage- ment practices for non-point source control.” § 131.12(2) (em- phasis added). (The comparable provision in the Oklahoma rule is not as clear, but under EPA regulations, it must be interpreted at least as stringently. ) Finally, level 3 provides for maintaining and protecting certain exceptional, high quality waters (which in Oklahoma includes scenic rivers). Compare OWQS §3, para. 3 with 40 C.F.R. § 131.12(3). The Oklahoma rule expressly prohibits 49a lahoma regulation allows “no degradation” of water qual- ity in designated scenic rivers. “Limited degradation” is permitted limited only in other “high quality waters” where the existing water quality “exceeds those levels necessary to support propagation of fish, shellfish, wild- life, and recreation.” OWQS § 3, para. 2. Even if the Upper Illinois were not a scenic river, it would not be eligible for the limited degradation exception because its waters in their present condition do not qualify as such “high quality waters.” See infra part B.2. Clearly, then, the Oklahoma Anti-Degradation Policy prohibits any fur- ther degradation of the Illinois scenic river. We conclude the requirements of the Beneficial Use Limitations/Anti-Degradation Policy are violated when the water quality of a scenic river undergoes any human- caused, detectable change. By “detectable change” we mean any detectable change in a water quality parameter such as turbidity or phosphorus (with the perhaps unnec- essary qualification that an improvement in water quality is excepted). We do not mean a detectable change that violates a numeric criterion for that parameter (e.g., 25 NTUs for turbidity), which criterion would otherwise apply if the Beneficial Use Limitations were not appli- cable (i.e., if the receiving waters were not designated as a scenic river or otherwise as “(a)” in Appendix A).” any degradation of these waters, the prohibition in EPA’s regula- tion is implicit. 5° For example, assume the turbidity in Lake Frances is 20 NTUs. If the Upper Illinois River (including Lake Frances) were not designated (a) as well as a scenic river, it would be permissible to allow the lake’s turbidity to increase to 25 NTUs, the criterion applicable to “Warm Water Lakes” in OWQS §4.10(b). (T! Illinois scenic river is designated a warm water fishery in Appendix A.) Because the lake is part of a scenic river, however, the Bene- ficial Use Limitations apply. In conjunction with the Anti-Degrada- tion Policy, it prohibits any human-caused, detectable change in the turbidity conditions extant at the time of the scenic river designa- tion. Thus, if the turbidity of the lake in 1970 did not exceed 15 NTUs, human activities may not cause it to exceed that level. 50a The Beneficial Use Limitations / Anti-Degradation Policy are designed to provide additional protection beyond that conferred by the numeric limits of other water quality standards. Interpreting these regulations as merely pro- hibiting violations of otherwise applicable WQS would render them a nullity because, as we have seen, WQS may not be contravened in any waters, regardless of whether these additional regulations apply. The ALJ on remand, did not explicitly address the Anti-Degradation Policy but did construe the Beneficial Use Limitations. The 1985 version of the Beneficial Use Limitations, which the ALJ deemed applicable, provides: ““All streams and bodies of water designated as (a) - + + are protected by prohibition of any new point source discharge which increases pollutant loading or increased load from an existing point source.’ ” Decision on Re- mand, R., A-33, at 4. Construing this regulation in light of the OWQS definition of “pollution,” ** he concluded: “[{T]he Oklahoma parties must show by substantial evi- dence that the City’s discharge will create a nuisance or render the Illinois River in Oklahoma harmful, detre- mental [sic] or injurious to any beneficial use of the river.” Decision on Remand, R., A-33, at 5. The CJO upheld this interpretation with minimal discussion. Sec- ond Order on Petitions for Review, R., A-37, at 8. He excused the ALJ’s failure to discuss the Anti-Degrada- 86 “Pollution” is defined as: (C]ontamination or other alteration of the physical, chemical or biological properties of any natural waters of the state, or such discharge of any liquid, gaseous or solid substance into any waters of the state as will or is likely to create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to... legitimate beneficial uses, or to likestock, wild animals, birds, fish or other aquatic life. Okla.Stat. tit. 82 § 926.1.1., quoted in Decision on Remand at 5. The ALJ consulted the statutory definition of “pollution” because the 1985 version of the Beneficial Use Limitations does not define its term “pollutant loading.” See our discussion of this compound error in the text. 5la tion Policy by explaining that the ALJ “implicitly ad- dressed the policy in his detailed analysis of the dis- charge’s potential impact on all relevant water quality parameters.” Jd. at 9; see id. at 10 (if ALJ erred in this regard, it was “harmless error’). The CJO rea- soned that “if the Fayetteville discharge will not cause a detectible change in any of the relevant water quality parameters [as the ALJ found], it logically follows that there will not be a ‘quality degradation.’” Jd. at 9-10. We have considerable difficulty with the agency’s treat- ment of these crucial Oklahoma regulations. First, and most importantly, the ALJ’s interpretation defies the plain language of the Beneficial Use Limitations and the Anti-Degradation Policy that it references.’ Secondly, 87 The ALJ’s interpretation of the Beneficial Use Limitations is also inconsistent with an earlier position taken by the EPA with respect to permitting additional discharges in the Illinois River Basin. The record contains a letter, dated Oct. 1, 1986, from Lawrence Edmison, Director, Oklahoma Department of Pollution Control, to Kenton Kirkpatrick, Deputy Director, Water Manage- ment Division, EPA-Region 6. Mr. Edmison was writing to con- firm a conversation with Mr. Kirkpatrick in which they apparently reached an “understanding that Tahlequah’s discharge must not increase loading on the Illinois River.” Addendum to R., OK-4 (emphasis in original). The discussion and letter were precipi- tated by a debate concerning how the Illinois River’s (a) desig- nation affected proposed revisions to the effluent limits in the city of Tahlequah’s wastewater treatment plant permit, given that the plant is located a short distance upstream from the Illinois on a tributary not designated (a). An earlier memorandum to Mr. Edmison from Quang Pham, an Oklahoma State Department of Health employee, stated that, because Tahelquah was located on a tributary of an (a) stream, “EPA indicated that no load increase could be allowed for Tahlequah.” Addendum to R., OK-4 (emphasis added). This memo also referenced a recent EPA study “on eutrophication of Illinois River [that] indicated that phos- phorus plays a major role in the stimulation of algae growth in the river.” Jd. at 2. These documents reflect a significantly dif- ferent understanding of Oklahoma’s Anti-Degradation Policy and Beneficial Use Limitation than that adopted by the ALJ and ap- proved by the CJO in this permit proceeding. 52a the CJO ruled that the ALJ erred in applying the 1985, rather than the 1982, OWQS. Second Order on Petitions for Review, R., A-37, at 5-6. The CJO deemed this error harmless, but we disagree.** The 1985 version of the Beneficial Use Limitations, which the ALJ improperly applied, states: “All streams... designated as (a) in Appendix A are protected by prohibition of any new point source discharge which increases pollutant load- ing. . . .” OWQS §7.11 (1985) (emphasis added), quoted in Decision on Remand, R., A-33, at 4. Finding no definition of “pollutant loading” in the 1985 rule, the ALJ consulted the statutory definition of “pollution,” Okla.Stat. tit. 82 § 926.1.1., to construct his interpreta- tion of the regulation. The applicable 1982 rule, how- ever, prohibits simply “any new point source discharge of wastes” (emphasis added). Oklahoma law defines “wastes” as “industrial waste and all other liquid, gase- ous or solid substances which may pollute or tend to pollute any waters of the state.” § 926.1.9 We do not know whether Oklahoma intended to significantly change the import of the Beneficial Use Limitation by this minor language revision, but we cannot approve a construction of the regulation based on the definition of a term (“pol- lution”) not even contained in the applicable rule. Finally, the agency’s construction of the Beneficial Use Limitation is further flawed by the ALJ’s imposition of the burden on Oklahoma to prove that the discharge would “create a nuisance” or “render the Illinois River ... harmful... or injurious to any beneficial use.” De- cision on Remand at 5. Granted, the opponent of a per- mit has the “burden of going forward to present an af- firmative case at the conclusion of the Agency case on 88 The CJO ruled the error harmless because, in his view, the 1985 and 1982 standards do not differ materially. Second Order on Petitions for Review, R., A-37, at 6. However, the CJO did not specifically consider the difference between the two versions of the Beneficial Use Limitation and how that discrepancy may have affected the ALJ’s conclusion. 53a the challenged requirement.” 40 C.F.R. § 124.85(a) (3) (ii). However, the “Agency has the burden of going forward to present an affirmative case in support of any challenged condition of a final permit,” id. § (a) (2), and more importantly, the “permit applicant always bears the burden of persuading the Agency that a permit... should be issued and not denied,” id. § (a) (1). By re- quiring Oklahoma to “show by substantial evidence that the City’s discharge will create a nuisance,” the ALJ im- properly transformed Fayetteville’s burden of showing the permit should be issued into a burden on Oklahoma to show that it should be denied. As for the Anti-Degradation Policy, the CJO concluded there could be no violation of the policy if there would be no detectable change in water quality. However, it is not clear whether the CJO interpreted the policy as re- quiring that there be no detectable change in water qual- ity, or whether he was merely reporting the legal signifi- cance of the facts found by the ALJ. Although the CJO determined in his first order that the applicable legal standard is “whether [Fayetteville’s] discharges under the permit will result in a detectable violation of the ap- plicable water quality standards,” Order on Petitions for Review, R., A-28, at 2, 12-13, his subsequent affirmation of the ALJ’s erroneous construction of the Beneficial Use Limitations casts doubt on whether he intended the “no detectable change” test to apply to violations of the Ben- eficial Use Limitations/Anti-Degradation Policy as well. Because of this ambiguity and the errors in interpreting the Beneficial Use Limitations, we agree with the Okla- homa parties that the agency incorrectly construed and applied both Oklahoma regulations. 2. Existing Degradation of Illinois Scenic River Under other circumstances, the errors described above might necessitate remanding to the agency with instruc- tions to apply Oklahoma law as we have construed it. 54a However, given the facts in this record, even proper in- terpretation and application of Oklahoma water quality standards cannot save this permit. The record contains substantial evidence from which the ALJ could have found that the water quality of the Illinois scenic river has been degraded and that water quality standards were being violated prior to the onset of Fayetteville’s dis- charge to the river (see subpart a. below). We believe that, where a proposed source would discharge effluents that would contribute to conditions currently constitu- ting a violation of applicable water quality standards, such proposed source may not be permitted.** The ALJ and the CJO erred in failing to consider whether or how the river’s existing degraded condition is relevant to the decision whether to permit a new source discharge.“ 89 This issue has apparently never before been addressed by a federal court, and it was only touched upon at the administrative hearing. For example, the State of Oklahoma offered evidence (visual slides with accompanying narrative testimony), the stated purpose of which (according to counsel) was to “show that the Illinois River is already in a degraded state and cannot assimilate any more effluent” and that “the Illinois River has already exceeded [its] assimilative capacity.” Tr. at 72, 76. An objection to part of this testimony was overruled, Tr. at 76, although the ALJ indicated he had “serious problems with the utility of these slides,” id. at 72. Later in the hearing, in response to an objection that EPA official Larry Champagne’s testimony concerning the history of the Fayette- ville permit issuance process was irrelevant, an Oklahoma attorney argued that testimony was “relevant to... the issue of whether or not there is degradation” of the Illinois River. Again, the ALJ expressed doubt, but allowed the testimony. Tr. at 154-55. *°It might be considered surprising that the record contains sufficient evidence from which to infer that Illinois River water quality is already degraded, given that the parties did not recognize the real significance of this issue. We suspect the evidence was offered largely to show the potential for water quality deterioration due to Fayetteville. Because pollutants in the Illinois River at the Arkansas-Oklahoma border (see discussion in subpart b. below) orginate from upstream, i.e., Arkansas, pollution sources, it logically follows that a new Arkansas source (at a distance upstream com- parable to that of existing sources) poses a risk of increasing the 55a Three factual subissues are essential to our determi- nation that the Fayetteville discharge to the Illinois River may not be permitted: (1) whether the Illinois scenic river is already degraded (i.e., whether its quality has deteriorated since the river’s designation in 1970) ; (2) whether Fayetteville’s effluent will reach the scenic river; and (3) whether and how the components of Fayetteville’s discharge would contribute to conditions in the Illinois River. Although it is difficult to summarize a record that consists of five boxes and four years of briefs, orders, transcripts, prepared testimony, corre- spondence, technical reports and miscellaneous other doc- uments, in the following few pages we attempt to capsu- lize the evidence relevant to these three issues. a. Evidence of existing degradation. First, we address the subject of the degradation of the Illinois scenic river’s historically pristine water quality. Our review of the record before the ALJ revealed ample evidence from which the ALJ could have concluded that the river’s condition has deteriorated since its designation as a scenic river and that water quality standards are being violated. Examples of this evidence follow. Myron Knudson, Director of the Water Management Division, EPA-Region 6, testified at the administrative hearing: “There has [sic] been many conversations as pollutant load at the state line. There is considerable evidence that the principal point sources of pollution to the Upper Illinois River above Lake Frances are the municipal wastewater treatment plants at Rogers and Springdale, Arkansas. E.g., Gakstatter & Katko, An Intensive Survey of the Illinois River (Arkansas and Oklahoma) in August 1985 (“Gakstatter Report”), Addendum to Oklahoma Brief, at 3, 5, 77; Tr. at 360-61. The Rogers and Springdale plants are 41.5 and 39.5 miles, respectively, upstream from the state line at Lake Frances. Gakstatter Report at 11-13. These distances are nearly identical to Fayetteville’s distance (39 miles) from that point. At least on the basis of distance, it is not unreasonable to except that Fayetteville’s effluent will also reach the Oklahoma portion of the Illinois River. 56a related to what could be done in order to clean up the Illinois River.” Tr. at 221. The Attorney General of Oklahoma Robert Henry, in a prepared statement deliv- ered at the hearing, described the Illinois River as “de- graded,” Tr. at 232, and stated that “the river cannot handle the existing load” of municipal wastewater treat- ment plant discharges, Tr. at 233. Dr. Stephen Threl- keld, witness for the Oklahoma Wildlife Federation and author of the EPA-funded “Clean Lakes” report on Lake Frances,’ summarized the results of the “Clean Lakes” study, stating: “Water quality violations of the Okla- homa Water Quality Standards in Lake Frances .. . are in terms of bacteria and in terms of turbidity... .” Tr. ‘! The so-called “Clean Lakes” reports are prepared by states pursuant to the requirement therefor in section 314 of the Act, 33 U.S.C. § 1324. Subparagraph (a) (1) of the statute specifically requires that lakes be classified according to “eutrophic condition.” The remarks in the Senate Report concerning reauthorization of this section in 1977 are of considerable interest: The 1972 act recognized the urgent need for a lake improve- ment program to restore the significant number of the Nation’s 95,000 freshwater lakes that were in eutrophic and deteriorated conditions. The clean lakes program was conceived to respond to this problem... . In the 5 years since Public Law 92-500 went into effect, lake restoration programs essentially have not even begun .... The committee hearing record clearly demonstrates that there is a great interest in lake areas in the restoration and preser- vation of degraded freshwater lakes... . . » » The committee believes this authorization represents a level of effort that reflects the expectations of the Congress for this program, recognizing that the problem of lake eutrophi- cation and deterioration nationwide far exceeds even this au- thorization level. The committee is hopeful that the new a ministration will act to make lake restoration a key element of the EPA’s water pollution control program contrary to the EPA’s implementa- tion of this section to date. S.Rep. No. 379 at 69-70, reprinted in 1977 U.S.Code Cong. & Admin. News at 4394-95. 57a at 356. He explained that EPA funded the study “be- cause they wanted to know what the problems were in Lake Frances.” Tr. at 359; see id. at 374. Mike Schornick, Oklahoma witness and principal of Schornick/Roberts & Associates, consulting engineers, testified that significant degradation trends are and have been occurring in the Illinois scenic river, including Lake Frances. Tr. at 398-400 (citing prefiled testimony, R., OK-2, at 3-4). He stated that certain figures in his pre- filed testimony, which reflect data obtained from regular water quality monitoring conducted by Oklahoma at sev- eral points along the Illinois River, illustrate the degra- dation trends. Tr. at 414, 439. He claimed dissolved oxygen concentrations are reaching levels that violate OWQS. OK-2 at 4. He also stated that Arkansas and Oklahoma monitor phosphorus in their regular 305(b) trend analysis reports * to EPA, Tr. at 486, and that all of those reports (1976-81 and 1984) show increasing phosphorus concentrations, Tr. at 489-90. Accounting for the addition of Fayetteville’s effluent, Schornick said phosphorus loading and concentrations in Lake Frances will have increased by 106 percent and 76 percent, re- spectively, over 1974-75 background levels. Tr. at 454- 56 (citing prefiled testimony, OK-2, at 4). Lawrence Edmison, Director, Oklahoma Department of Pollution Control, testified that his department has re- ceived “many complaints about odor problems and color problems on the river.” Tr. at 542. He also discussed the algae problem on the river in relation to the increas- ing phosphorus concentrations and decreasing nitrogen concentrations in the water. Tr. at 533-34 (citing pre- filed testimony, OK-4, at 3). Based on his years of per- sonal observation of the river and experience handling citizen complaints and looking at trends documented in *? Section 305(b) of the Clean Water Act, 33 U.S.C. & 1315(b), requires the states to submit to Congress biennial reports on the condition and quality of their surface waters. 58a 305(b) reports and other reports, Tr. at 546-48, he stated, “I know how bad the river is now; I anticipate that any increased load will only make it worse.” Tr. at 548. He testified that the 305(b) reports for both 1984 and 1986 related an “apparent increasing trend” in phosphorus concentrations at all four Illinois River sampling sites, an “apparent decreasing trend” in dis- solved oxygen at the same sites (with the exception of the Baron Fork site in 1986), and an “apparent decreas- ing trend” in nitrogen levels at all four sites (with the exception of Tahlequah in 1986). OK-4, at 2-3. Decreas- ing nitrogen and increasing phosphorus, he claimed, are “indicative of the algae problem on the river.” OK-4, at 2-3. Oklahoma witness and consultant Dr. William Walker reported that algae concentrations in Lake Frances al- ready reach 90 parts per billion, which is three times the level typically considered indicative of severe nuisance conditions. Tr. at 609-10. Lake Frances is already “su- persaturated with nutrients,” Tr. at 691; for example, existing concentrations of phosphorus in Lake Frances are more than ten times levels considered typical of eu- trophic lakes, or where algae problems start to develop, Tr. at 701. According to Dr. Walker, a “plume [of] de- graded water” exists in the river downstream from Lake Frances. Tr. at 701. Jimmie Pigg, part-time ichthyologist with the Okla- homa Water Quality Division and science coordinator for an Oklahoma school district, Tr. at 65, narrated a slide presentation at the administrative hearing showing changes in the condition of the Upper Illinois River since 1972. In response to an objection concerning the rele- vance of part of the testimony, counsel for the State of Oklahoma stated that the evidence was offered for the purposes of “show[ing] that the Illinois River is already in a degraded state and cannot assimilate any more ef- fluent” and that “the Illinois River has already exceeded 59a [its] assimilative capacity.” Tr. at 72, 76. Mr. Pigg said Lake Frances “is really a sewage lagoon,” which “eatch(es}] and hold[s] the material from Arkansas.” Tr. at 73. The Gakstatter study reported that “dense phytoplank- ton populations develop in Lake Frances and also adversely affect water clarity in the Illinois River for several miles downstream,” and that this growth is “stimulated by ex- cessively high phosphorus levels originating from [the sewage treatment plants at] Springdale and Rogers [in Arkansas].” Report at 5.“ The Gakstatter Report also ** An Arkansas party attorney objected to the relevance of cer- tain slides, which showed Sager and Flint creeks (both Illinois River tributaries) below Siloam Springs, Arkansas’s, treatment plant. In defending against the objection, the Oklahoma attorney stated that the slides were “relevant to show that Fayetteville should not be allowed to discharge because it will just exacerbate the existing violation of Oklahoma Water Quality Standards.” Tr. at 76. The objection was overruled, id., although the ALJ indicated he had “serious problems with the utility of these slides,” id. at 72. Mr. Pigg testified to 30 years of personal experience with the Illinois River, including making “collecting trips” and preparing “hundreds of reports” on changes in the fish population. /d. at 65, 86. He was denied the opportunity to offer an opinion, based on his experience with the river, as to whether algae in the river had increased during those 30 years, apparently on the ground that he had not been qualified as an expert. Jd. at 86-87. **It should be noted that the Gakstatter study, on which the ALJ relied, see Decision on Remand, R., A-33, at 10-11, 14-15, was conducted during a two-week period of very atypical weather in August 1985. Precipitation for that month was more than three times the normal amount, streamflow was 50% greater than the normal average, and three inches of rain fell during the survey. Gakstatter Report at 1, 23. Throughout the report the authors conceded several possible effects of these conditions—increased turbidity due to increased surface runoff and scouring of stream sediments, decreased concentrations of chemical parameters due to dilution, and decreased incidence of periphytons (surface algae) ‘use of high stream flow. Moreover, even though the ALJ relied « .« for evidence that the Fayetteville discharge would not affect the Illinois River, the Gakstatter study supports our conclusions 60a provides brief summaries of the results of several other studies. For example, the U.S. Geological Survey (USGS) in 1984 reported the Illinois River did not meet water quality standards for dissolved oxygen, phosphorus, and fecal coliform bacteria; Threlkeld (1983) described Lake Frances as “very euthrophic” due to phosphorus from Springdale and Rogers; the Oklahoma State Water Qual- ity Laboratory (1977) reported Lake Frances was in the “late stages of eutrophication,” due partially to “elevated Illinois River nutrients”; and two EPA (1977) studies classified as eutrophic both Lake Frances and, to a lesser extent, Tenkiller Reservoir. Gakstatter Report at 7-9. The evidence before the ALJ also included the record of a hearing conducted by the Arkansas-Oklahoma Arkan- sas River Compact Commission on June 3-4, 1985. See R., C-1, Tr. at 307. The subject of the Compact Commission hearing was the Illinois River situation and the (at that time) proposed Fayetteville permit. The Commission is- sued an order (also included in the administrative hear- ing record) containing several findings concerning the degraded condition of the river. Findings of Fact, Con- clusions of Law, and Commission Order (“Compact Com- mission Order”), R., OK-5. The Commission began by observing that, historically, the Illinois River “has been recognized by Oklahomans as a watercourse of unique natural scenic beauty and high quality . . . spring-fed waters [that] ran clear and plentiful.” 16. But, the Commission continued, the “Upper Illinois River System in Oklahoma has, in recent years, undergone a process of degradation in water quality, and the process appears to be on an escalating trend.” { 32. Other findings by the Commission include: “[T)he Illinois River has degraded substantially over the past decade . . . [including] radical changes in the river’s concerning the existing degradation of the river and the fact that Fayetteville’s effluent will be carried downstream to the Illinois River in Oklahoma. 6la water color and turbidity, and the existence of increased alga growth [and] offensive odors... .” 33. Violations of the dissolved oxygen standard have been documented by the Oklahoma Department of Health immediately be- low Lake Frances. { 35. Degradation of dissolved oxygen is also occurring farther downstream from Lake Frances. 1 36. A 1984 USGS study (presumably the one cited in the Gakstatter Report) showed violations of Arkansas WQS in the Arkansas portion of the river. 438. Phos- phorus concentrations are continuing to increase in “sig- nificant and undesirable amounts.” { 40. The “Arkansas guideline for maximum phosphorus concentration to pre- vent eutrophication has already been greatly exceeded in certain Arkansas and Oklahoma river segments.” { 40. The “trend of phosphorus degradation of the Upper TIIli- nois River appears to be occurring at all locations.” { 41. Lake Frances is in “an obvious state of eutrophication, marked by putrid smells and dark brown turbid waters.” 145. Based on Oklahoma’s 305(b) report for 1978-83, “(djegradation trends also appear to be occurring with reference to levels of potassium, calcium, sodium, copper and hardness.” {| 46. The Commission acknowledged Ar- kansas’s “exceptions” to certain of Oklahoma’s sampling methods and conclusions, {f 47 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0079%3A03. Public record. Not legal advice.