# Petition for Writ of Certiorari — Arkansas v. Oklahoma > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0080%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 499 U.S. 946 ## Text ee re ee hal 90-1 2664 FEB g 1991 AAI) Iu the Supreme Court of the United States OCTOBER TERM, 1990 ENVIRONMENTAL PROTECTION AGENCY, PETITIONER WG, STATE OF OKLAHOMA, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT KENNETH W. STARR Solicitor General RICHARD B. STEWART Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General MICHAEL A. McCorp ANNE S. ALMY Gary S. GUZY Attorneys Department of Justice Washington, D.C. 20530 E. DONALD ELLIOTT (202) 514-2217 General Counsel Environmental Protection Agency Washington, D.C. 20460 ed QUESTIONS PRESENTED 1. Whether determination of the appropriate standards governing the issuance of permits under the Clean Water Act for discharges into interstate waters involves a question of federal law, requiring a reviewing court to uphold the validity of the En- vironmental Protection Agency’s permitting action if based upon a reasonable interpretation and applica- tion of the federally approved water quality stand- ards of the receiving State. 2. Whether the Environmental Protection Agency reasonably concluded that the contemplated discharge would comply with the applicable water quality standards because it would have no detectable impact on current water quality within the receiving State. 3. Whether the court exceeded the proper scope of judicial review. (I) II PARTIES TO THE PROCEEDINGS The petitioner is the United States Environmental Protection Agency. The respondents are the State of Arkansas, the Arkansas Department of Pollution Control & Ecology, the City of Fayetteville, Arkansas, the Beaver Water District, the State of Oklahoma, the Oklahoma Scenic Rivers Commission and Pollution Control Coordinat- ing Board, and Save the Illinois River (STIR). TABLE OF CONTENTS Page ai dace senientsndniecsinsdennenccccecsscccescescccoseesee 1 a... ssausaunesssencssnccsces 7 1 Statutory and regulatory provisions tavelved a ~ 2 EE SS ST EEE T 2 Reasons for granting the petition . OSS i 12 Conclusion .............. ee cdciaaeti Tee 27 ee la Appendix B ..... II iiesdisiidieeasdddeeninecoaspenacceesztceoseocene 98a TTI Taisitatiecneteepysnsqseeecevacessvessenseseescsseccosecoscssvoceecceocs 100a TABLE OF AUTHORITIES Cases: Arkansas v. Oklahoma, 488 U.S. 1000 (1989)... 9 Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. Iai ececnsenetecadseceonecceusveeeunneseceess 19 Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 Tt liieeeid tints Abciensensmenmnecnsecsencscnsceraresesecenee 18 Champion Int'l Corp. Vv. EPA, 850 F.2d 182 (4th ES LE TEE 15 Chevron U.S.A. Ine. V. NRDC, Inc., 467 U.S. 837 tai ccicndcenseatenscetecsnenecentneconnccceces 17-18 Citizens to Preserve Overton Park, Inc. Vv. Volpe, rT 25 Consolo v. Federal Maritime Comm'n, 383 U.S. EEE SE 19 Department of the Treasury Vv. FLRA, 110 S. Ct. EES TLE 26 EPA V. California ex rel. State Water Resources Control Bd., 426 U.S. 200 (1976)... 2 SSE 3,4 E.1. duPont de Nemours & Co. Vv. Train, 430 U.S. a ecsesecnenes 2 Ford Motor Credit Co. Vv. Milhollin, 444 U.S. 555 (1980) ........ Er 17 FCC Vv. Pottsville Broadcasting Co., 309 U.S. 134 ST an CE 7% 26 IV Cases—Continued : FPC v. Idaho Power Co., 344 U.S. 17 (1952)........ Gardebring Vv. Jenkins, 485 U.S. 415 (1988)........ Illinois Vv. Milwaukee, 406 U.S. 91 (1972) ............. International Paper Co. v. Ouellette, 479 U.S. 481 GIDE — a AN WAAWWAWKWWANW NN & ¥ — moro Vv Statutes, regulations and rule—Continued : Page § 402 (d) (2), 33 U.S.C. 1342(d) (2) ............. 5, 15 §$ 402 (d) (2) (a), 33 U.S.C, 1342 (d) (2) (a)... 5 $ 402 (d) (2) (A), 33 U.S.C. 1342(d) (2) (A). 15 § 402(d) (2) (B), 33 U.S.C. 1342(d) (2) (B).. 5,15 § 402 (d) (4), 33 U.S.C. 1342 (d) (4) —............. 5 OB OBO, Fe ee FIG eccccncccncscccvnssccccccceseccccccasssesse 4 § 404 (a), 33 U.S.C. 1344 (a)... ee 4 § 502 (6), 33 U.S.C. 1362 (6) ...............------2.------- 4 § 502(11), 33 U.S.C. 1862(11) ........................... 2 § 502 (14), 33 U.S.C. 1362 (14) ..............-....... 2 Oklahoma Scenic Rivers Act, Okla. Stat. tit. 82, § 1451 (1970): 2 sheoupnamnascaivomptuennnatisdsinianuiaiemnetoe 23 ay 6, 23 40 C.F.R.: Pt. 122: BREED BERGE) ccccccccecesccussscszscnsssscensensesvaese 24 Bestion 188.44 (6E) (1) -....----...--...-c2.ecc2-00-0 4 7 3 Pt. 131, Subpt. B ................ Le Section 131.12(a) (3) ....... seneiianiateniaabiaaeniel 17 8 8 24 In the Supreme Court of the United States OCTOBER TERM, 1990 No. ENVIRONMENTAL PROTECTION AGENCY, PETITIONER v~. STATE OF OKLAHOMA, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT The Solicitor General, on behalf of the United States Environmental Protection Agency, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case. OPINION BELOW The opinion of the court of appeals (App., infra, la-97a) is reported at 908 F.2d 595. JURISDICTION The judgment of the court of appeals was entered on July 11, 1990. Petitions for rehearing were de- nied on October 11, 1990 (App., infra, 98a-99a). On December 29, 1990, Justice White extended the time for filing a petition for a writ of certiorari to and including February 8, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). (1) STATUTORY AND REGULATORY PROVISIONS INVOLVED The relevant provisions of the Clean Water Aet, 33 U.S.C, 1251 et seq., are reproduced at App. C, infra, 100a-106a. The relevant provisions of the Oklahoma Water Quality Standards are reproduced at App., infra, 96a-97a. STATEMENT 1. The Clean Water Act, 33 U.S.C. 1251 ef seq., is a comprehensive statute designed “to restore and maintain the chemical, physical, and biological integ- rity of the Nation’s waters” through reduction and eventual elimination of the discharge of pollutants into those waters. Section 101(a), 33 U.S.C. 1251 (a). The Act anticipates a partnership between the federal government and the States to achieve this fundamental goal. The Administrator of the Envi- ronmental Protection Agency (EPA) is, with certain explicit exceptions not relevant here, responsible for administering the Act. Section 101(d), 33 U.S.C. 1251(d). A major responsibility of the Administra- tor under the Act is the developrrent and promulga- tion of uniform national technology-based standards, known as “effluent limitations guidelines,” for cate- gories and classes of discharges. Sections 301 and 304, 33 U.S.C. 1311 and 1314. EJ. duPont de Nemours & Co. v. Train, 430 U.S. 112, 126-136 (1977). An “effluent limitation” is “a[] restriction * * * on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources * * *.” Seec- tion 502(11), 33 U.S.C. 1362(11).' ‘A point source is “any discernible, confined and discrete conveyance * * * from which pollutants are or may be dis- charged.” Section 502(14), 33 U.S.C. 1362(14). A second major source of authority for reducing pollution is found in Section 303, which directs States, with federal approval and oversight, to institute a range of comprehensive requirements, potentially more stringent than the federally promulgated guide- lines, to assure protection of the quality of all state waters. Section 303(a), (b), and (c) (1), 33 U.S.C. 1313(a), (b), and (c)(1). These water quality stan- dards are not technology-based standards; instead, they are based on the desired uses and condition of the particular waterway involved. Congress utilized water quality standards “as a supplementary basis * * * so that numerous point sources, despite individ- ual compliance with effluent limitacions, may be fur- ther regulated to prevent water quality from falling below acceptable levels.” EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 205 n.12 (1976). Section 303(c)(2), 33 U.S.C. 1313(c) (2). A water quality standard is a method of express- ing the desired condition of a waterway. Water qual- ity standards under the Act generally consist of three elements: (1) a designated “use” of that waterway (e.g., public water supply, recreation, propagation of fish, or agriculture) consistent with the goals of the Act as set forth in Section 101; (2) “criteria” speci- fying the amount of various pollutants that may be present in those waters and still protect the desig- nated uses, expressed in numerical concentration limits or narrative form; and (3) a restriction on the degradation of higher quality waters, /.¢e., an antidegradation provision. Section 303(c)(2), 35 U.S.C. 1313(c)(2); Section 303(d)(4)(B), 33 U.S.C. 1313(d)(4)(B); 40 C.F.R. Pt. 131, Subpt. B. The States must submit their water quality standa:ds to EPA for review and approval. Upon approval by EPA, a state-adopted water quality standard “shall 4 thereafter be the water quality standard for the ap- plicable waters of that State.” Section 303(c) (3), 33 U.S.C. 1313 (¢) (3). The primary means for achieving and enforcing effluent limitations and state water quality require- ments is the “national pollutant discharge elimina- tion system” (NPDES) permit program under Sec- tion 402 of the Act, 33 U.S.C. 1342. State Water Re- sources Control Bd., 426 U.S. at 205. The Act pro- hibits the discharge of any pollutant’ into the waters of the United States except when authorized by an NPDES permit or a Section 404 permit.* Section 301(a), 33 U.S.C. 1311(a). Thus, an NPDES permit —which typically includes a timetable for compliance —transforms generally applicable effluent limitations and state water quality standards into obligations of the individual discharger. See 40 C.F.R. 122.44 ‘AY 1). The Act provides that EPA will issue NPDES per- mits except in those States where EPA has approved a state permit program pursuant to Section 402(b), 33 U.S.C. 1342(b).* Even in those States with ap- proved permit programs, the State must submit a copy of each proposed permit to EPA before it may 2 The term “pollutant” is defined in Section 502(6) of the Act. 33 U.S.C. 1362(6). * Section 404 permits authorize the discharge of “dredged or fill material,” whereas NPDES permits authorize the dis- charge of all other pollutants. Section 404(a), 33 U.S.C. 1244(a). The permit at issue here is an NPDES permit. ‘IEPA had permit-issuing authority in this case, which involves discharges arising in Arkansas, because Arkansas did not have an approved permit program at the time the permit application was made. Arkansas’ permit program has subsequently been approved by EPA. 5 be issued. Section 402(d)(1) and (2), 33 U.S.C. 1342(d)(1) and (2). EPA may object to the issu- ance of an NPDES permit if it determines that is- suance would be “outside the guidelines and require- ments” of the Act. Section 402(d) (2) (B), 33 U.S.C. 1342(d)(2)(B). On receipt of such an objection, the State may submit an appropriately revised permit; if it fails to do so, EPA will issue a permit “in ac- cordance with the guidelines and -requirements” of the Act. Section 402(d) (4), 33 U.S.C. 1342(d) (4). The Clean Water Act establishes specific mecha- nisms for resolving interstate water pollution ques- tions, i.e., situations where a discharge in one State may affect the waters of another State. The statu- tory conditions for EPA approval of state permit pro- grams require each state program to contain spe- cified provisions for dealing with such situations. The source, or permit issuing, State must have pro- cedures for notifying other States “the waters of which may be affected” of a permit application con- templating such discharges. Section 402(b) (3), 33 U.S.C. 1342(b)(3). The potentially affected State must then be given an opportunity to “submit writ- ten recommendations to the permitting State” and EPA regarding the application. Section 402(b) (5), 33 U.S.C. 1342(b) (5). If any part of those recom- mendations is not accepted by the permitting State, that State must notify the affected State and EPA. Section 402(b) (5), 33 U.S.C. 1342(b) (5). EPA then has the right to object to the issuance of the permit, as provided in Section 402(d)(2)(a), 33 U.S.C. 1342(d) (2) (a). Where EPA itself retains permit-issuing author- ity, the statutory procedures for the resolution of in- terstate disputes are contained in the provisions gov- 6 erning the issuance of federal licenses and permits that may affect water quality. Thus, Section 401(a), 33 U.S.C. 1341(a), requires applicants for federal licenses or permits for activities that may result in discharges to navigable waters to provide a certifica- tion from the source State that the proposed: dis- charge will comply, inter alia, with applicable water quality standards. If the source State denies cer- tification, no permit may be issued. Section 401(a), 33 U.S.C. 1341(a). Whenever EPA (or any other federal permitting authority) determines that a discharge might affect water quality in another State, it must notify that State. Section 401 (a) (2), 33 U.S.C. 1341(a) (2). If the notified State determines that the discharge will violate its water quality requirements, the federal permitting author- ity must (if the State requests) hold a hearing to consider the State’s objections and EPA’s recommen- dations, and “condition such * * * permit in such manner as may be necessary to insure compliance with applicable water quality requirements.” Section 401(a) (2), 33 U.S.C. 1341(a) (2).° 2. This case involves an interstate dispute con- cerning the waters of the Illinois River, which orig- inates in the State of Arkansas and flows into the State of Oklahoma.* In the early 1980’s the City of Fayetteville, Arkansas, operated a sewage treatment plant that discharged all of its wastewater into the *If EPA is itself the permitting agency, the hearing is held pursuant to the provisions of Section 402(a), 33 U.S.C. 1342 (a). ®*In 1970, Oklahoma designated the portion of the Illinois River from the state line to the Tenkiller Reservoir a state scenic river. App., infra, 50a, 62a; Okla. Stat. tit. 82, § 1452 (b) (1) (1976). 7 White River, which is not a tributary of the Illinois River. The White River was unable to assimilate that waste without violating the Arkansas water quality standards. To alleviate this situation, Fay- etteville constructed a new wastewater treatment plant, with federal financial assistance provided by EPA under the Clean Water Act. The plant was de- signed so that the plant’s discharges into the White River would not cause a violation of the state water quality standards: wastewater pollutants were to be reduced, and half of the treated effluent was to be discharged into the Illinois River. App., infra, 2a, 5a.” In 1985, Fayetteville applied to EPA for an NPDES permit for its new treatment plant. Follow- ing public notice and an informal public hearing (see 40 C.F.R. Pt. 124), EPA issued an NPDES permit to Fayetteville on November 5, 1985, to become effec- tive on December 10, 1985. The permit authorized split flow into both the White and Illinois Rivers and contained stringent limits on oxygen demand, total suspended solids, and phosphorus in the discharge. It also prohibited discharge of inadequately treated sewage, so that in the case of a plant malfunction, untreated waste would have to be stored and re- 7 Fayetteville’s plans prompted the State of Oklahoma to move this Court for leave to file an original action against the State of Arkansas (and other entities) alleging causes of action under the federal and state common law of nuisance. Oklahoma v. Arkansas, No. 93 Orig. In response to the Court’s invitation, the United States filed a brief opposing the motion for leave to file the complaint, on the ground that the Clean Water Act permitting procedures would afford the State an adequate remedy for any threat to its water quality standards. This Court denied the motion for leave to file the complaint. 460 U.S. 1020 (1983). 8 treated. Finally, a reopener in the permit specified that if an ongoing study of existing problems in the Illinois River showed a need for more stringent lim- itations on Fayetteville’s discharge to ensure com- pliance with Oklahoma water quality standards, the permit would be modified accordingly. App., infra, 5a-6a. Both Oklahoma and Arkansas requested an evi- dentiary hearing before EPA on its issuance of the NPDES permit. After an evidentiary hearing, the Administrative Law Judge upheld the permit, find- ing that the discharge into the Illinois River would not have an “undue impact” on Illinois River water quality in Oklahoma. App., infra, 2a. Oklahoma ap- pealed to the Administrator; the Chief Judicial Offi- cer, acting on behalf of the Administrator, reversed and remanded to the ALJ for a redetermination. The Chief Judicial Officer ruled that the Fayetteville discharges would have to comply with the Oklahoma water quality standards at the state boundary.’ Com- pliance with the antidegradation provisions was to be judged by whether there would he a “detectable” or “measurable” impact on water quality parameters * State-designated scenic rivers, such as the portion of the Illinois River at issue here, are protected by Oklahoma’s antidegradation and beneficial use standards. The beneficial use standard prohibits “any new point source discharge of wastes [into such rivers] except under conditions described in Section 3.” Oklahoma Water Quality Standard (OWQS) § 5, App., infra, 96a. Section 3, Oklahoma’s antiderradation provision, in turn provides that “No further water quality degradation which would interfere with or become injurious to existing instream water uses shall be allowed.” App., infra, 96a. Recognizing that certain high quality waters . currently exceed their beneficial use standards, Section 3 also provides that “No degradation shall be allowed in high quality waters * * *.” App., infra, 97a. 9 (i.e., on the measurements of pollutants governed by the standards) at the boundary. Jbid. On remand, the ALJ ruled that a “detectable” impact had not been established, and upheld the permit. He explic- itly ruled that the proposed discharge would not cause violations of any of the Oklahoma water qual- ity standards. Oklahoma’s appeal to the Administra- tor resulted in an affirmance by the Chief Judicial Officer. Jd. at 2a-3a. The permit went into effect, and the discharge commenced on January 21, 1989.” 3. Three petitions for review challenging EPA’s final decision were filed in early 1989. The Arkansas petition challenged EPA’s authority to require, as a condition ,of an NPDES permit, that an Arkansas discharger comply with Oklahoma water quality standards. The petitions by the Oklahoma parties and by an environmental group, Save The Illinois River (STIR), alleged violations of Oklahoma water quality standards resulting from EPA’s grant of the NPDES permit. The Arkansas petition, which was initially brought in the Eighth Circuit, was trans- ferred to the Tenth Circuit and consolidated with those of the Oklahoma parties and STIR. ®In the course of the administrative proceedings, several rulings were made to which Arkansas objected; Arkansas thereupon moved this Court for leave to file an original action against Oklahoma concerning the application of Oklahoma’s water quality standards to an Arkansas permittee. Arkansas v. Oklahoma, No. 115 Orig. The United States filed a brief as amicus curiae, arguing that Arkansas was attempting to bypass the established administrative procedures for resolv- ing this interstate dispute. Arkansas’ remedy, the brief ar- gued, was to let the permitting process run its course and seek judicial review under the Clean Water Act if it was dis- pleased with the result. The Court denied leave to file an original action. 488 U.S. 1000 (1989). 10 On July 11, 1990, the Tenth Circuit issued its opinion in this matter. App., infra, la-95a. The court first determined that EPA had properly inter- preted the Act to require it to consider, in the NPDES permit procedure, whether a discharge would violate the federally approved water quality standards of a downstream State. Jd. at 14a-48a. The court nevertheless reversed EPA’s decision to is- sue the permit. The court rejected EPA’s conclusion that the antidegradation provisions of the Oklahoma water quality standards (OWQS)” are satisfied so long as the Fayetteville discharge does not result in any detectable change to any water quality param- eter at the Oklahoma state line. Finding that EPA “incorrectly construed and applied [the] Oklahoma regulations” (id. at 60a, 83a-84a), the court adopted an interpretation of the antidegradation provisions of the OWQS not proposed by any party (id. at 48a). In light of the court’s view of the federal policies embodied in the Clean Water Act and EPA regula- tions," it read the OWQS antidegradation provisions as prohibiting any further release of pollutants that 1” See note 8, supra. "! See, e.g., App., infra, 85a-90a (discussing Clean Water Act policy and legislative history), App., infra, 54a (court’s examination of state policy is “guided by the minimum re- quirements * * * set forth in EPA’s regulation”), App., infra, 85a (EPA’s position inconsistent with “federal water pollu- tion control strategy engineered by the Clean Water Act and enhanced by Oklahoma law”), App., infra, 90a (“We will not ascribe to the [Clean Water] Act either the gaping loop- hole or the irrational purpose necessary to uphold EPA’s action.”), App., infra, 94a (EPA “decision is inconsistent with the language of the Clean Water Act, as interpreted in light of the legislative history, and frustrates the policy that Congress sought to implement”). ee ee ——o 11 will reach an “already degraded” river.” The court summarized its view of the relevant provisions (App., infra, 90a-9la): [I]f a body of water is experiencing [water quality standard] violations and a proposed new source would discharge the same pollutants to which those standards apply, that source may not be permitted if its effluent will reach the de- graded waters. Analyzing the record presented to EPA, the court concluded that there was “ample evidence from which the ALJ could have concluded” (App., infra, 63a) that the Illinois River in Oklahoma was already de- graded (id. at 62a-73a),"* and that pollutants from the Fayetteville discharge would reach the Oklahoma boundary (id. at 73a-76a) and would contribute to the existing degradation of the river at that point (id. at 76a-82a)."" The court expressly “reject{ed] any notion that once water quality standards have been violated (i.e., the quality of the receiving waters 12 The court used 1970, the date of Oklahoma’s designation of the rolevant portion of the Illinois River as a “scenic river,” as the benchmark from which to determine whether water quality vad been degraded. App., infra, 62a. 13 Because the parties had not considered the historic water quality of the Illinois River significant to the propriety of the issuance of the permit, the court’s factual findings on this aspect of the case constitute gleanings from “a record that consists of five boxes and four years of briefs, orders, tran- scripts, prepared testimony, correspondence, technical reports, and miscellaneous other documents” (App., infra, 62a) on a matter that had not been addressed in the EPA proceedings, nor briefed and argued by the parties. See fd. at 61a n. 40. 4 The court was not deterred by its recognition that this latter issue is “more a scientific question than it is a legal one” (App., infra, 76a). 12 has been degraded), the incremental impact of a proposed additional discharge must itself be detect- able.” App., infra, 90a. Instead, the court was of the view that it was necessary to deny the permit because “[a]t worst, [permitting the proposed dis- charges] will increase the frequency and severity of ongoing violations; at best, it will thwart efforts to bring the river back into compliance with the ap- plicable standards.” Jd. at 91a. In sum, the court concluded that “EPA’s failure to exercise its authority to deny the Fayetteville permit is arbitrary and capricious or otherwise not in ac- cordance with law.” App., infra, 94a. Under the analysis adopted by the court, Fayetteville dis- charges “may not be permitted” (id. at 61a), and “the Fayetteville permit may not issue” (id. at 83a n.49). Accordingly, instead of remanding to EPA for reconsideration of the permit decision under the judicially prescribed standards, the court of appeals simply “reverse[d] EPA’s decision authorizing Fay- etteville’s municipal treatment plant to discharge a portion of its effluent to the Illinois River basin.” Jd. at 95a." REASONS FOR GRANTING THE PETITION This case presents an important issue of adminis- trative law in the context of a fundamental part of EPA’s mission under the Nation’s environmental laws. In its decision, the court of appeals has sig- nificantly undermined EPA’s authority to implement the Clean Water Act by usurping EPA’s role under * On October 31, 1990, the court granted Arkansas’ mo- tion to stay the issuance of the mandate pending this Court’; action on petitions for certiorari: accordingly, the discharges from the Fayetteville plant are continuing. 13 the Act as the arbiter of interstate water pollution disputes. The court reversed EPA’s permitting de- cision on the basis of the court’s own interpretation of federally approved water quality standards. That approach dramatically transforms the appropriate province of both court and agency. Under a proper analysis, the validity of EPA’s permitting decision depends on whether the Agency reasonably inter- preted and applied those standards, and is not prop- erly subject to collateral attack based on the review- ing court’s own interpretation of those standards as a question of the law of the receiving State sim- pliciter. Otherwise, EPA’s exercise of its federal statutory responsibilities would be deprived of coher- ence and predictability, notwithstanding the Agency’s peculiar expertise with respect to Clean Water Act standards. The decision of the court of appeals is thus seriously inconsistent with well established prin- ciples governing judicial review of agency actions. If not reversed, it will inevitably sow seeds of confusion among States that share particular waters—and all those who use those waters—as to the standards for discharges into those waters. 1.a. This Court has previously considered the pro- visions of the Clean Water Act regarding discharges into interstate waters. It has done so in the context of resolving interstate disputes over the standards to be applied in the issuance of permits for such dis- charges. See Illinois v. Milwaukee, 406 U.S. 91, 105 (1972) (Milwaukee 1): Milwaukee y. Illinois, 451 U.S. 304 (1981) (Milwaukee 11); International Paper Co. v. Ouellette, 479 U.S. 481 (1987). In these cases, the Court has emphasized that interpretation of the Act’s requirements is a matter of federal, not state law (Milvaukee I, 406 U.S. at 102, 105; Ouel- ‘te, 479 U.S. at 492), and that the 1972 Amend- 14 ments to the Federal Water Pollution Control Act (now the Clean Water Act) “establish an all- encompassing program of water pollution regulation”’ (Milwaukee II, 451 U.S. at 318), under which “[fjederal courts lack authority to impose more stringent effluent limitations * * * than those im- posed by the agency charged by Congress with ad- ministering this comprehensive scheme” under the guise of applying federal common law. /d. at 320." And in Ouellette, the Court specifically concluded that “the CWA precludes a court from applying the [common] law of an affected State against an out-of-state source.” Instead, “the Act limits the right to administer the permit system to the EPA and the source States.” 479 U.S. at 494-495. It fol- lows from this Court’s precedents that the question of the proper standards to be applied to the Fayette- ville discharges under the Clean Water Act ulti- mately involves a question of federal, not simply Oklahoma, law. b. The statutory scheme confirms that EPA has ultimate responsibility for the interpretation and ap- plication of water quality standards whenever inter- state pollution issues arise in the course of permit proceedings. In explaining why courts should not invoke federal com- mon law to supplement the comprehensive statutory scheme, the Court noted (451 U.S. at 325): “[n]ot only are the tech- nical problems difficult—doubtless the reason Congress vested authority to administer the Act in administrative agencies possessing the necessary expertise—but the general area i+ particularly unsuited to the [case-by-case] approach inevita- ble under a regime of federal common law.” These same factors, of course, counsel reliance on the expert agency’s interpretation and application of the relevant federal stand- ards. See pp. 22-25, infra. 15 The Act directs EPA to address interstate water pollution issues in either of two ways, depending upon whether the source State or EPA is the permit- issuing authority. If the source State’s program has been approved by EPA under Section 402(b), 33 U.S.C, 1342(b), the State may issue the permit, un- less EPA objects pursuant to Section 402(d)(2), 33 U.S.C. 1342(d) (2). Where, as here, EPA is the permit-issuing authority, EPA is directly responsible for determining whether a proposed permit will meet all applicable requirements of the Act and imple- menting regulations (Section 402(a)). Although the federal permitting authority may not issue a permit if the source State determines that the permit will not comply with its water quality standards, the fed- eral permitting authority need only consider the “recommendations” of the receiving State in deter- mining whether the permit will comply with that State’s standards. Section 401(a)(1) and (2), 35 U.S.C. 1341(a)(1) and (2). As this Court ex- plained in Ouellette, 479 U.S. at 491, “the Act makes it clear that affected States occupy a subordinate po- sition to source States in the federal regulatory pro- gram.” Thus, in any interstate dispute involving the 17 That provision sets forth two grounds for an objection. See Champion Int’l Corp. Vv. EPA, 850 F.2d 182, 185 (4th Cir. 1988). Under Section 402(d) (2) (A), EPA may object when there is an unresolved interstate dispute that has been brought to EPA’s attention under the procedures in Section 402 (b) (5) (providing for notification to EPA of a receiving State’s objections to the issuance of the permit, and of the permitting State’s action with regard to those objections). Under Section 402(d)(2)(B), 33 U.S.C. 1342(d) (2) (B), EPA may—even in the absence of a state complaint—object to the issuance of any permit “as being outside the guidelines and requirements” of the Act. 16 application of a downstream State’s water quality standards, the statutory scheme provides that EPA —not the downstream State—is to determine the proper application of the standards, either in review- ing the permits for possible objection under Section 402(d) or in its role as permit issuer. , This federal responsibility is consistent with the fact that the Act requires EPA to review proposed State water quality standards before they may be- come effective. Section 303(c), 33 U.S.C. 843 (c). Before granting approval, EPA must determine that the proposed standard “meets the requirements” of the Act. Section 303(c) (3), 33 U.S.C. 1313(e) (3)." In determining whether a proposed standard meets the statutory requirement, it is, of course, necessary for EPA to determine the meaning of that standard. Therefore, if a dispute concerning the meaning of the standard subsequently arises in the context of a per- mitting decision, EPA’s interpretation of the dis- puted provision, which will reflect its understanding of that provision when approval to implement it was granted, should normally be dispositive." This is particularly true where, as in this case, the water quality standard adopted by the State substan- tially reflects the model standard promulgated by **If EPA cannot make that finding, it must permit the State to make the changes necessary to bring the standards into conformity with the Act. If the State fails to do so in a timely manner, EPA will promulgate the water quality stand- ards for the State. Section 303(c) (3) and (4), 33 U.S.C. 1513(¢) (3) and (4). ' Since many water quality standards are in narrative form and are necessarily stated in general terms, disagree- ments as to their meaning will often surface only when the standards are applied in the context of a specific proceeding. 17 EPA.” Absent a clear indication at the time the pro- posed standard was submitted to EPA for approval that the State intended a different meaning, it is surely reasonable for EPA to construe the state standard as having the same meaning as the model provision. Indeed, this approach is necessary to en- sure uniform application of substantially identical terms and thus to provide certainty and predictabil- ity in the administrative process. c. For all these reasons, it is particularly impor- tant in the context of EPA’s administration of the Clean Water Act to apply the well-established rule that a reviewing court should defer to an agency’s reasonable interpretation of a regulation it is charged with administering. Gardebring v. Jenkins, 485 U.S. 415, 429-430 (1988); Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566 n.9 (1980): United States v. Larionoff, 431 U.S. 864, 872-873 (1977); Navistar Int’l Transp. Corp. v. EPA, 858 F.2d 282, 288 (6th Cir. 1988), cert. denied, 490 U.S. 1039 (1989) (EPA’s interpretation of a federally approved state air quality standard is accorded the same deference by a reviewing court as EPA’s inter- pretation of its own regulations). Cf. Chevron U.S.A. Ine. v. NRDC, Inc., 467 U.S. 837, 844 2° Compare the antidegradation provision of OWQS § 3: No degradation shall be allowed in high quality waters which constitute an outstanding resource or in waters of exceptional recreational or ecological significance. with the corresponding language in EPA’s model antidegrada- tion regulations (40 C.F.R. 131.12(a) (3)): Where high quality waters constitute an outstanding National resource, such as * * * waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected. 18 (1984). Thus, if the terms of a standard are ambig- uous or silent on a particular point in the context of an interstate dispute, EPA’s interpretation of the standard should be followed “unless it is plainly er- roneous or inconsistent with the regulation.” United States vy. Larionoff, 431 U.S. at 872 (quoting Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945) ). In short, the question is not whether EPA inter- preted the water quality standards applicable to the Oklahoma portion of the Illinois River the same way they would be interpreted by the reviewing court or by Oklahoma itself (see, e.g., App., infra, 60a); in- stead, the question is whether EPA’s reading and ap- plication of those standards in the permitting pro- ceeding was reasonable. But rather than focusing on that question and considering whether there was sub- stantial evidence in the record to support EPA’s find- ings, the court took an almost diametrically opposite approach. It combed the record to find evidence to sustain the court’s own contrary findings, in support of an interpretation of the relevant regulations that the court developed on its own initiative. Jd. at 73a, 76a, 8la-82a. The court’s decision thus reflects its assurance that it was capable of making scientifically-based policy de- terminations without benefit of briefing or argument, and without evaluation by the expert agency to which Congress assigned the responsibility for making such policy determinations. The court embarked on an in- dependent analysis of the complex and highly tech- nical evidence contained in this very extensive ad- ministrative record, which led it to reject the scien- tific findings underlying EPA’s action.” *! Most notably, in footnote 47 of the opinion (App., infra, 76a-79a), the court severely criticized the ALJ’s understanding aT 19 That inquiry went well beyond the permissible scope of judicial review. The proper inquiry is whether the administrative agency’s findings are sup- ported by substantial evidence, and “‘the possibility of drawing two inconsistent conclusions from the evi- dence does not prevent an administrative agency’s finding from being supported by substantial evi- dence.” Consolo vy. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966). Moreover, when examining agency scientific findings, as opposed to simple find- ings of fact, “a reviewing court must generally be at its most deferential.” Baltimore Gas & Elec. Co. v. NRDC, Inc., 462 U.S. 87, 103 (1983). of certain expert testimony. In doing so, however, the court took statements of the ALJ out of context, focused on the irrelevant, and materially misconceived what the ALJ did say. The first error ascribed to the ALJ is an alleged failure to recognize that algae can consume, as well as produce, oxygen. Jd. at 76a, 84a. In fact, all the ALJ was saying was that Dr. Walker erred in not recognizing that photosynthesis by algae increases oxygen (a fact the court concedes) ; to infer from that statement that the ALJ did not recognize that other processes could also consume oxygen is unwarranted conjecture. The second basic error ascribed to the ALJ concerns phos- phorus assimilation. Id. at 77a-78a, 84a. Here, the court apparently misunderstood the ALJ’s point, which was that the testimony showed that increased flow would increase the assimilative capacity of the stream, and that that would be particularly beneficial in summer when algae flourish and the flow would otherwise be low. In any event, Dr. Walker (whom the court recognized as “eminently qualified,” id. at 77a n. 47) testified that there would be no measurable phosphorus increase at the state line from the Fayetteville discharge. Tr. 702-703. This tes- timony surely provides adequate support for the ALJ’s con- clusion that the antidegradation provision would not be vio- lated by the phosphorus in the Fayetteville effluent. 20 2.a. Analyzed under the appropriate standards for judicial review, the record here amply supported EPA’s permitting decision. EPA concluded that the Fayetteville discharge would not cause a prohibited degradation of Oklahoma waters because it would cause no detectable change in the quality of any waters within the State. That conclusion was entirely reasonable and consistent with the policies and pur- poses of the Clean Water Act. The court of appeals’ preferred reading of the EPA-approved antidegrada- tion provision apparently turned on its belief that “degradation” must be measured from some historic point, and that if current river quality is poorer than it was at that time, no further discharges may be permitted regardless of whether such discharges will have any detectable effect within the State. These beliefs, however, represent policy choices, rather than demonstrating that EPA’s decision was in any way unreasonable. The court found the “plain language” of the OWQS beneficial use and antidegradation provisions showed that they disallow discharges of pollutants into a scenic river if “its water quality has been degraded or if the new source would degrade it.” App., infra, 53a-54a (emphasis in original). But the court did not identify the regulatory language upon which it relied, and in fact no language in the regulations suggests that whether water quality “has been de- graded” is a relevant consideration. See OWQS § 3, App., infra, 97a. Instead, the regulations themselves give no indication that the time from which “de- gradation” is to be measured is at any time in the past—still less do they give any indication of how such a benchmark date would be determined. In- stead, the standards address only the prospective im- pact of a proposed activity. The regulations protect 21 the status quo by prohibiting new discharges which threaten to degrade the river—i.e., to cause it to fall below the quality it has at the time the permit is under consideration. They are thus entirely consist- ent with the federal standards on which they are modeled, since those standards are also clearly de- signed to protect the status quo. See note 20, supra. It is scarcely surprising that, as the court itself noted (App., infra, 48a), “neither of the EPA judicial offi- cers nor any of the parties addresse[d] whether, or how, this [preexisting condition] is relevant to Fay- etteville’s application to discharge to the [Illinois River.” Under EPA’s model antidegradation provi- sion, it is not relevant; and the court erred in hold- ing that EPA was required to conclude otherwise in interpreting that provision as adopted by Oklahoma.™ The court also incorrectly rejected EPA’s conclu- sion that the antidegradation provision applies only to detectable changes.** A discharge that has no per- 22 Indeed, the court’s misconception led it into the further error of believing that the water quality of the river itself could constitute a violation of an antidegradation provision. See, e.g., App., infra, 61a-62a, 90a. That is a flawed and un- workable concept. Unlike designated use standards and nu- meric criteria, antidegradation provisions are designed to pro- tect the status quo—particular discharges may of course violate the antidegradation provision, but that provision takes the river as it is; it is designed to prevent backsliding. 23 The court’s discussion on this matter is somewhat obscure. The court notes EPA’s finding that the challenged discharge will have no detectable impact on Oklahoma waters, observing (App., infra, 89a, footnote omitted), “[w]hile this may prove true (and we pass no judgment thereon), we reject the argu- ment” that the antidegradation provision is therefore satis- fied. Apparently the court believes that the first adverse impact must be detectable, but subsequent ones need not be. See id. at 90a-9la. The regulation itself, of course, contains 22 ceptible effect on the quality of a stream would not normally be considered to “degrade” it; the concept of degradation surely implies at least some verifiable change in quality.“ And it is only discharges that can be expected to result in degradation that are pro- hibited by the applicable regulations, not all dis- charges from any additional sources whatsoever, or even discharges of pollutants that are already present in the affected waters. See App., infra, 81a. In short, EPA’s interpretation of the applicable regulations was reasonable and consistent with the complex statutory and regulatory scheme for the pro- tection of this nation’s waters. Since Congress has entrusted the administration of that scheme to EPA, the court should have deferred to that Agency’s rea- sonable interpretation, rather then substituting its own reading, based on its own policy preferences. b. Serious adverse consequences in the adminis- tration of the Clean Water Act will flow from sub- stitution by reviewing courts of their own inter- pretation of an EPA-approved water quality stand- ard for that of EPA. First, the Agency’s responsi- bility for approving state standards will be undercut if its reasonable interpretations of those standards are nonetheless to be jettisoned on judicial review. This is of fundamental practical importance, because EPA’s ability to perform effectively its statutory role in resolving interstate disputes over the issuance of no such distinction between initial and subsequent dis- charges—it simply prohibits “degradation”. ** As Oklahoma itself observed in briefing before EPA, “any detectible [sic] increase in any ‘wastes’, defined as ‘[i]ndus- trial waste and all other liquid, gaseous or solid substances which may pollute or tend to pollute any waters of the State,’ will be a violation of the [scenic river] designation” (empha- sis added). A.R. Doc. B146, at 45. 23 NPDES permits requires the Agency to rely on its own reasonable construction of a state standard. In- deed, if reviewing courts were free to substitute their own interpretations of an EPA-approved state stand- ard, the similarly worded standards of various States could well have different meanings in different cir- cuits, or even within the same circuit. The resultant uncertainty and confusion—especially in lengthy river systems involving several or numerous receiv- ing States—would lead to precisely the situation that Congress sought to avoid by enacting the comprehen- sive Clean Water Act Amendments to replace the former case-by-case approach of the federal common law. Milwaukee IT, 451 U.S, at 324-325. Indeed, the dangers of judicial intrusion into EPA’s responsibilities are vividly illustrated by the Tenth Cireuit’s reinterpretation of the EPA-approved water quality standards. The court’s interpretation involved two fundamental misconceptions. First, the court’s belief that an antidegradation provision requires that a protected river be returned to its quality at some point in the past may well be administratively un- workable. The court offered no principled basis on which the historical benchmark date is to be selected.” 25 The Oklahoma antidegradation provision does not, of course, establish any such benchmark date. The court simply adopted the date the river was designated under the Okla- homa Scenic Rivers Act, Okla. Stat. tit. 82, § 1452(b) (1) (1970). That statute, however, bears no direct relation to Oklahoma’s water quality standards. It simply recognizes that the designated part of the Illinois River is among those state rivers that should be preserved because of their “unique nat- ural scenic beauty, water conservation, fish, wildlife and out- door recreational values.” Okla. Stat. tit. 82, § 1452(a) (1970). While the date of designation under that statute is certainly one possible benchmark date, it is not readily appar- 24 Moreover, the court simply assumed that it is possible to determine what the quality of the water was at that particular historical date with sufficient preci- sion to make its use as a benchmark feasible. The record here is quite barren of any support of that assumption.” The court’s adoption of a “zero-discharge” policy is equally flawed. Nothing in the Act or the EPA- approved antidegradation regulations requires such a draconian policy.” At least where the effects of a discharge are undetectable at the State boundary, the receiving State can have little more than a theoretical ent why it is preferable to any other historic date—or even to some theoretical time when the river was in a “pristine” condition. ** The parties, EPA’s Administrative Law Judge, and EPA’s Chief Judicial Officer all accepted the traditional view that Oklahoma’s antidegradation provision requires compliance to be measured from existing water quality. App., infra, 48a. Therefore, the record below simply does not address the issue created by the court’s novel interpretation of the anti- degradation provision, and the court supported its applica- tion of that provision to these facts by concluding that “[t]he record contains substantial evidence from which the ALJ could have found that the water quality of the Illinois scenic river has been degraded.” Jd. at 61a. This distortion of the proper scope of judicial review is by itself a significant de- parture from the accepted and usual course of judicial pro- ceedings. See Rule 10 of the Rules of this Court. “7 Nor is it entirely clear whether the court intended this policy to apply only to “high quality waters” subject to an antidegradation policy similar to Oklahoma’s, or whether it was intended to apply to any application for a permit to dis- charge into waters not presently in compliance with any applicable standard. Cf. 40 C.F.R. 122.4(d) (requiring per- mit for additional discharges into non-complying waters to contain conditions that will assure compliance). basis for concluding that its water has been degraded. In such circumstances, it is at least reasonable for the responsible agency to conclude that the balance of equities favors permitting the discharge and that the discharge is not prohibited. Cf. App., infra, 92a (recognizing that “it is arguably unfair to ‘punish’ Fayetteville for preexisting dischargers’ past failure to comply with [water quality standards]’’). 8. The court exacerbated its errors by the extreme and unwarranted remedy it imposed. The court flatly “reversed” Fayetteville’s permit without remanding to EPA. App., infra, 95a. If a reviewing court finds that the agency’s findings are not supported by the record, the court must allow the agency an oppor- tunity to supplement the record, to reexamine its findings on the basis of the full record, and to correct or clarify them. See generally Kleppe v. Sierra Club, 427 U.S. 390 (1976); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The court’s failure either to defer to EPA’s scientific expertise or to give EPA an opportunity to explain satisfactorily its reasoning or otherwise address the court’s con- cerns transgressed the limits of judicial review. Accordingly, even if the court had been correct in finding the permit to be inconsistent with applicable standards, firmly established principles of administra- tive law would require a remand to EPA for further proceedings. It is for the administrative agency and not the court to evaluate different courses of action and ultimately make a choice. Kleppe v. Sierra Club, 427 U.S. at 410 n.21; Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 416. This Court stated the “guiding principle” nearly forty years ago: [T]he function of the reviewing court ends when an error of law is laid bare. At that point the 26 matter once more goes to the [agency] for re- consideration. FPC vy. Idaho Power Co., 344 U.S. 17, 20 (1952). See FCC vy. Pottsville Broadcasting Co., 309 U.S. 134, 140-146 (1940).. An agency’s task on remand re- mains “irfused with judgment and discretion, requir- ing the ‘ “accommodation of conflicting policies that were committed to the agency’s care.”’” Depart- ment of the Treasury v. FLRA, 110 S. Ct. 1623, 1629 (1990) (citations omitted). “It is not a_ task [courts] ought to undertake on the agency’s behalf in reviewing its orders.” Jd. at 1630. In sum, the court of appeals undermined the care- fully developed legislative system for resolving inter- state permitting disputes under the Clean Water Act by imposing its own construction of the applicable water quality standards on the parties. Moreover, it did so on the basis of independent fact finding that ignored the technical expertise of the federal agency to which such determinations are reserved, and im- posed a judicially devised remedy without remanding the case to that agency for further evaluation and correction of any perceived inadequacies in its approach. 27 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. KENNETH W. STARR Solicitor General RICHARD B. STEWART Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General MICHAEL A. McCorp ANNE 8. ALMY Gary 8. GUZY Attorneys E. DONALD ELLIOTT General Counsel Environmental Protection Agency FEBRUARY 1991 >, -— = Se Saree 7 : et : 2 ee a a _ —- - APPENDIX A UNITED STATES COURT OF APPEALS TENTH CIRCUIT Nos. 89-9503, 89-9507 and 89-9516 THE STATE OF OKLAHOMA, OKLAHOMA SCENIC RiIv- ERS COMMISSION AND POLLUTION CONTROL COORDI- NATING BOARD; SAVE THE ILLINOIS River (STIR), a non-profit corporation of the State of Oklahoma; CITY OF FAYETTEVILLE, ARKANSAS; THE BEAVER WATER DISTRICT; STATE OF ARKANSAS; ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND ECOL- OGY, PETITIONERS Vv. ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT OKLAHOMA WILDLIFE FEDERATION, INTERVENOR July 11, 1990 Before ANDERSON and BRORBY, Circuit Judges, and THEIS,* District Judge. BRORBY, Circuit Judge. In these consolidated appeals, appellants challenge certain actions of the U.S, Environmental Protection * The Honorable Frank G. Theis, Senior United States Dis- trict Judge for the District of Kansas, sitting by designation. (la) 2a Agency (EPA) in issuing a discharge permit pursu- ant 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 au- thority 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 waste- water treatment plant. Fayetteville proposed to dis- charge treated wastewater via a split flow into the White River in Arkansas and into Mud Creek, a trib- utary of the Illinois River, an Arkansas-Oklahoma interstate stream. The State of Oklahoma and a non- profit group, Save The Illinois River (STIR), re- quested denial of the permit. The State of Arkansas and the Oklahoma parties requested an evidentiary hearing on EPA’s issuance of the permit. A hearing request was granted in part and denied in part by an Administrative Law Judge (ALJ), and the partia' denial was upheld by the EPA Administrator acting through his Chief Judicial Officer (CJO). After the evidentiary hearing, the ALJ determined that the per- mit would not have an undue impact on water quality or violate Oklahoma’s water quality standards (WQS). This initial decision was appealed by both Arkansas and Oklahoma. On appeal, the ALJ’s deci- sion was affirmed in part and reversed in part and remanded for a determination whether the record showed by a preponderance of the evidence that the permitted discharge would not cause an actual, de- tectable violation of WQS. On remand the ALJ re- viewed the record and made detailed findings. He concluded that the permit could issue as written, find- ing that it would not result in any measurable viola- 3a tions of Oklahoma’s WQS. The ALJ’s decision 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 River Commission, Oklahoma Pollution Control Co- ordinating Board, and STIR (the “Oklahoma par- ties,” or Oklahoma) set forth ten issues in their joint brief-in-chief. Essentially they contend that EPA erred in concluding that the permit would not violate Oklahoma’s WQS; that EPA did not properly con- sider 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 Arkan- sas, Arkansas Department of Pollution Control Ecol- ogy, City of Fayetteville, and Beaver Water District (the “Arkansas parties,” or Arkansas) challenge 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. $$ 1251-1387, is its prohibition of any discharge of pollutants to navigable waters except as permitted by the Act. 33 U.S.C. $$ 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 defined expansively as “any addi- tion of any pollutant to navigable waters from any point source.” § 1262(12)(A). “Pollutant” is also broadly defined; it includes “dredged spoil, solid waste, . . . sewage, garage, sewage sludge, .. . 4a chemical wastes, . . . rock, sand, . . . and industrial, municipal, and agricultural waste.” § 1362(6). “Point source” encompasses “any discernible, con- fined and discrete conveyance, including . . . any pipe, ditch, channel, tunnel, [or] 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 limita- tions established in and pursuant to the Act. Efflu- ent limitations,” i.e., limits on “quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources,” §1362(11), may be water quality-based, $$ 1312, 1313, or technology-based, §§ 1311(b), 1314(b). EPA is required to establish water-quality based restrictions whenever 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 quality stand- ards for the applicable waters of the State. § 1313. Federal and state effluent limitations and water quality standards are transformed into individual point source obligations through NPDES discharge permits. § 1342; EPA v. California ex rel. State Water Resources Control 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. § 1342(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 pro- grams in general, § 1342(c), (d). 5a 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 De- cember 1988. The permit (NPDES Permit No. AR0020010) specifies that half of the city’s treated wastewater will be discharged 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 dis- charged to an unnamed stream in northwestern Ar- kansas, 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 Tenkiller Ferry Reservoir has been designated an Oklahoma state scenic river and was proposed for study as a potential addition to the National Wild and Scenic Rivérs-System when the WSRA was enacted in 1970. 16 U.S.C. § 1276(40). To date, this segment, which is approximately sixty miles long, has not been designated a component 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 es- tablishes maximum or minimum effluent concentra- 6a tions of those pollutants and other chemical pars me- ters. Permit, EPA Supp. Addendum at 12-30. The permit prohibits the discharge of any incompletely treated effluent to Mud Creek. Jd. at 27. It also in- cludes, inter alia, a provision for modifying the per- mit to incorporate more stringent limitations if an ongoing study of the Illinois River demonstrates such limitations are needed to ensure compliance with water quality standards. 7d. 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, findings, and conclusions unless they are outside the agency’s statutory authority, are not supported by substantial evidence, or are arbitrary, capricious, an abuse of discretion, 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 rele- vant data and articulate a satisfactory explana- tion for its action including a “rational connec- tion 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 and whether there has been a clear error of judgment.” Nor- mally, an agency rule would be arbitrary and capricious if the agency has relied on factors Ta which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its deci- sion 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 ‘Con- gress 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 ex- pressed intent of Congress.’” Martin 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 admin- istering the statute,’ is entitled to substantial defer- ence. Chevron, 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 interpretation of the Clean Water Act is reasonable, we should not disturb it unless it “is con- trary to the policies Congress sought to implement in 133 U.S.C. §1251(d) provides: “Except as otherwise ex- pressly provided in this chapter, the Administrator of the Environmental Protection Agency . . . shall administer this chapter.” 8a enacting the statute.” 813 F.2d at 1065; see also 467 U.S. at 845, 104 S.Ct. at 2783. II]. Preliminary Procedural Matters As an initial matter we address EPA’s argument that Arkansas lacks standing to challenge EPA’s in- terpretation 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 favorable decision of this Court, just as its allegations as to future permit condi- tions are purely speculative. EPA Brief at 13-14. EPA also rejects Arkansas’s argument that it may be collaterally estopped in sub- sequent proceedings if it does not pursue this argu- ment now by assuring Arkansas that EPA would not contest the justiciability of the claim if raised in the context of future permit decisions. EPA Brief at 14; see Arkansas Reply Brief at 11 n. 18. * Arkansas also attempted to raise the Clean Water Act interpretation 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 re- solved in the context of judicial review of the issuance of Fayetteville’s permit. Arkansas Reply Brief at 11 n. 18; EPA Brief at 10. The Supreme Court denied Arkansas’s motion. Arkansas v. Oklahoma, —— U.S. ——, 109 S.Ct. 776, 102 L.Ed.2d 769 (1989). Arkansas now argues that “it cannot rely to its detriment on such ‘assurances’ from the EPA in 9a Section 509 of the Clean Water Act provides that “Trjeview of [EPA’s] action ... in [, inter alia,] issuing 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 legisla- tive history corroborates what the language itself suggests—that the Act intended liberal review of EPA’s actions in issuing permits and promulgating rules and standards. The Senate Public Works Com- mittee explained section 509’s judicial review provi- sion as follows: Any person has standing in court to challenge administratively developed standards, rules and regulations under the Act. The courts are in- creasingly adapting this test to what administra- tive actions are reviewable. ... The Courts have granted this review to those being regulated and to those who seek “to protect the public interest in the proper administration of a regulatory sys- tem enacted for their benefit.” Since precluding review does not appear to be warranted or de- sirable, the bill would specifically provide for such review within controlled time periods. .. . ... For review of permits issued under section 402 [33 U.S.C. § 1342] . . ., the section places jurisdiction 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 (em- phasis 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 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. 10a expansive language 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)”); cf. 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 pub- licly owned treatment works seeking the permit is located, which partially financed the facility’s con- struction, and which, among other entities, has re- view and approval authority over the facility’s con- struction and operation. We conclude Arkansas 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 3 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 statu- tory 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 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 review” within a reasonable time after the petition is filed. § 124.91 (c)(1). “Final Agency action” for purposes of judi- cial review occurs “upon completion of the remanded proceeding, including any appeals to the [EPA] Ad- ministrator from the results of the remanded pro- ceeding.” § 124.91(f)(3). Although the parties do not raise this issue, we have detected 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 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,” Arkansas Brief at 32 n. 24, Arkansas’s argument that Oklahoma WQS should not apply to a discharge lo- cated 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 * 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 ap- ply to a discharge located in Arkansas. See Decision on Re- mand, R. A-33, at 2-3; Supplemental Joint Briefs submitted by Arkansas Parties, R., B-144 at 7-8, 25-33. 12a because the CJO failed to “issue an order either granting or denying [Arkansas’s] petition for re- view.” §$124.91(c)(1). Although all parties peti- tioned EPA for review of the ALJ’s decision on re- mand, 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 acknowl- edge 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 Ar- kansas’s appeal. EPA’s position on the basic issue raised by the Arkansas parties—whether the Fayette- ville 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 sec- ond and final opinion the CJO clearly affirmed his June 1988 ruling that Oklahoma WQS are applicable to the Fayetteville discharge. In so doing, he im- plicitly, 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 re- quirement for “an order . . . denying review.” Cf. Mathews v. Eldridge, 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 Mevico, 423 F.2d 1048, 1049 (10th Cir.1970)). Moreover, no objection to Arkansas’s failure to seek review of EPA’s initial decision should now be al- lowed, given that Arkansas participated in the review of the initial decision (by responding to Oklahoma’s petition) and the CJO expressly provided that the “parties will have the opportunity to petition for 13a review of the ALJ’s 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 dis- cussion 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 pollution to comply with the water quality standards of all affected downstream states? Okla- homa assumes such a requirement in that it chal- lenges EPA’s determination that the Fayetteville per- mit would not result in violations of Oklahoma's water quality standards and argues accordingly that no discharge to Oklahoma’s Illinois River system should be allowed. Oklahoma formulates the issues on appeal as “{w]hether the Chief Judicial Officer erred in deny- ing review” of various ALJ rulings and whether the CJO and ALJ “erred in [refusing] to reopen the evi- dentiary hearing.” Despite this formulation, it seems clear that the Oklahoma parties’ chief concerns relate to the substantive issues underlying these procedural questions. The substantive issues are: (1) the ade- quacy of the treatment technology employed by the Fayetteville plant and the possible superiority of land application methdos; (2) the propriety of considering evidence concerning future reductions in the dis- charges of other Arkansas cities; (3) the propriety 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 interpre- tation and application of Oklahoma’s beneficial use l4a limitation, nutrient standard, and anti-degradation policy; (5) the relevance of new information concern- ing overflows at the old treatment plant; and (6) whether Fayetteville met its burden of proof in show- ing that a permit should be issued for its treatment plant. Our review of the record convinces us that we need not resolve many of the issues raised by the Oklahoma parties. In the following pages we address first the statutory interpretation question by Arkan- sas and then a significant issue not raised by any party—the significance of evidence of existing deg- radation of Illinois River water quality. A. Construction of the Clean Water Act 1. 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 cer- tain of the waters of a downstream state. It can ac- complish 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 downstream state, so will be the actual quality of the interstate waters in the downstream state. In other words, the lowest com- mon denominator will prevail. The ultimate question posed to this court is whose water quality standards take precedence under the Clean Water Act—the up- stream 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 15a with federal law, including the federally approved water quality standards of affected states. Specifically, Arkansas alleges an affected down- stream state “may advise and make recommenda- tions, but nowhere in the Clean Water Act did Con- gress authorize affected States such as Oklahoma to impose their water quality standards upon a dis- charger in another state.” Arkansas’s Brief at 39. We treat this, the principal issue of this case, as whether the Clean Water Act requires that any dis- charge permitted under 33 U.S.C. § 1342 comply with all applicable water quality standards, including the affected downstream state.’ This is an issue of first * 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 provides for EPA 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 deter- mines 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 Okla- homa has the “right to block” a permit issued by Arkansas. See, e.g., Arkansas’s Brief at 33, 36, 38-40. The 1982 Okla- homa water quality standards, which EPA judged applicable 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 l6a impression in the circuit courts.° standards” to mean EPA-approved water quality standards that govern the affected waters, and “Oklahoma water quality stanards” to mean Oklahoma’s EPA-approved water quality regulations. ‘This statement requires a brief explanation of a recent Fourth Circuit case. In Champion Int'l Corp. v. EPA, 648 F.Supp. 1390 (W.D.N.C.1986), motion for withdrawal of mandate denied, 652 F.Supp. 1398 (W.D.N.C.1987), the dis- trict court upheld EPA’s assumption of permitting authority under 38 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 stand- ards. 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 permit, in disregarding the Tennessee water quality stand- ard 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 statement: “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 decision 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 pro- ceeding are not now subject to judicial review. EPA has neither granted nor denied a permit, so such action is not yet reviewable under [33 U.S.C.] § 1369(b) (1). The 17a EPA’s Chief Judicial Officer, in his first order in this case dated June 28, 1988, stated the law and ap- plied it as follows: nature of EPA’s objections are well within the contem- plation 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 with- out its delegated authority, so as to subject that action to present judicial review under Leedom v. Kyne, [358 184, 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 ascer- tain whether or not EPA acted within its delegated author- ity,” and agreed with the district court’s decision that EPA was so acting. But it held that, once the district court made that determination, it should have dismissed for want of sub- ject matter jurisdiction and not reached the merits. /d. Champion's holding is limited to the narrow determination that EPA had not acted “clearly beyond the boundaries of its authority.” Jd. at 186. Indeed, the court added: “Even if EPA may ultimately be shown to be incorrect in its objections to North Carolina’s permit (and we do not intimate that they are), its acts are not so clearly outside its authority to sub- ject 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 affected downstream state’s water quality standards. One other case deserves brief mention here. In Montgomery Envtl. Coalition, the D.C. -Cireuit stated: “A state whose water quality will be affected by the issuance of a permit for discharge in another state may block that permit until conditions are imposed insuring compliance with applicable water quality requirements of the objecting state.” 646 F.2d at 594 n. 21. But in the next breath the court acknowledged this was not an issue in Montgomery; thus, the language is dictum. 18a The CWA requires an NPDES permit to im- pose any effluent limitations necessary to com- ply with applicable state water quality standards. _.. The meaning of [33 U.S.C. § 1311(b) (1) (C)] is plain and straightforward. It requires unequivocal compliance with applicable water quality standards, and does not make any excep- tions for cost or technological feasibility. .. . _.. In this case, the permit should be upheld if the record shows by a preponderance of the evidence that the authorized discharge would not cause an actual detectable violation of Okla- homa’s water quality standards. Order on Petitions for Review, R., A-28, at 11-13. The CJO explained that in an interstate dispute the “only applicable water quality standards are those that have been approved by EPA under the CWA.” Order on Petitions 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. § 1370.” Order on Petitions for Review at 12 n. 13. On remand, the ALJ expressed similar 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); Jn- ternational Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). There- fore the Fayetteville discharge must meet Okla- 19a homa’ W.Q.S. as they exist at the border of the two states. ... . . . To accept [the Arkansas parties’ argu- ment that the beneficial use limitations do not apply to Fayetteville] would violate the princi- pals [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 standards. Such a result is contrary to the [Clean Water Act], regulations and Court de- cisions. Decision on Remand, R., A-33, at 4-5. The ALJ’s in- terpretations of Oklahoma’s WQS, including the Bene- ficial Use Limitations, were ultimately affirmed by the CJO. The CJO also reiterated the mandate of his first order—that “ ‘the permit should be upheld if . . . the authorized discharges would not cause . [a] violation of Oklahoma’s water quality stand- ards,’”—and accepted the ALJ’s conclusion that no violation would occur. Second Order on Petitions for Review, R., A-37, at 7-8. The Arkansas parties contend we need look no farther than the Clean Water Act to decide this issue because “Congress has clearly manifested its intent [in the CWA] that affected states cannot impose their water quality standards upon dischargers in other states.” Arkansas Brief at 42; see id. at 33-40. 20a Alternatively, if we decide congressional intent is ambiguous, they urge us to reject EPA’s interpreta- tion as unreasonable. Jd. at 42. EPA also claims the CWA is “clear that the terms of an NPDES permit must include compliance with state water quality standards—regardless of the source of a discharge.” EPA Brief at 15-16. Therefore, EPA maintains, resort to the legislative history—which EPA con- tends corroborates EPA’s interpretation—is unneces- sary. 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 in- tent is ambiguous, EPA alternatively defends the rea- sonableness of its interpretation of the CWA and ar- gues that, under Chevron, 467 U.S. at 844-45, 104 S. Ct. at 2782-83, it must therefore be upheld. EPA Brief at 13, 15. We do not find the Clean Water Act, on its face, quite as clear a manifestation of congressional intent on this issue as many of the parties suggests. Sig- nificantly, however, EPA’s interpretation is not one the agency adopted only, or in the first instance, in the context of this permit proceeding. Rather, EPA’s position herein is consistent with its CWA-imple- menting regulations. For example, 40 C.F.R. § 122.4 (d) expressly provides: “No permit may be issued: . . . (d) When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States.” (Emphasis added.) Concomitantly, EPA’s rules require permits to include, where applicable, “any requirements. . . necessary to... [cJonform to applicable water qual- ity requirements . . . 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) 2la (4). See also 40 C.F.R. §131.10(b) (state “shall ensure its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters”). We accord def- erence to the consistent interpretation of a statute by the agency entrusted with its administration. See 33 U.S.C. $1251(d); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 44, 70 L.Ed.2d 23 (1981); ef. E.I. 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 ex- pertise, and ambiguous statutory language). After considering the Act as a whole and its legislative history, we conclude EPA’s interpretation is reason- able and consistent with Congress’s purposes in en- acting 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 chap- ter [i.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 strin- gent limitations, 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 applicable 22a water quality standard established pursuant to this chapter. (Emphasis added.) Section 402(a) (2) and (b) (1) (A) of the CWA, 33 U.S.C. § 1342(a) (2), (b) (1) (A), in turn mandates that any NPDES permit is- sued under the Act contain terms adequate to insure compliance with § 301 above. See EPA Brief at 16. EPA rejects Arkansas’s argument that these sec- tions are “mere timing provisions.” Jd. (citing Ar- kansas Brief at 34-35). On the contrary, EPA ar- gues, these sections establish fundamental require- ments 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 uniform appli- cability of such standards.” EPA Brief at 16-17.’ 7 Under the 1972 CWA amendments, water quality stand- ards are considered “supplementary control measures” —‘‘sup- plementary” in the sense that they are in addition to point source effluent limitations, the control measure upon which the 1972 CWA Amendments primarily rely to achieve the Act’s objective of eliminating pollutant discharges into nevi- gable waters by 1985. State Water Resources Control Bd., 426 U.S. at 203-05 & n. 12, 96 S.Ct. at 2024-25 & n. 12 (““[w]ater quality standards are retained as a supplementary basis for effluent limitations . . . so that numerous point sources, despite individual compliance with effluent limita- tions, may be further regulated to prevent water quality from falling below acceptable levels”). See 33 U.S.C. §§ 1251 (a) (1), 1811(b) (1) (A) ; see also S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3675 (“Under this Act the basis of pollution prevention and elimination will be .. . effluent limitations. Water quality will be a measure of program effectiveness and performance, not a means of elimination and enforcement.”). That WQS are “supple- mentary” in the scheme of the Clean Water Act is, however, irrelevant to the question of their applicability across state lines. 23a Arkansas counters that § 1311 does not explain whether the “more stringent limitations” must be achieved by dischargers in other states, but that sec- tion 510, 33 U.S.C. § 1370 limits the “reach” of any stricter standards to discharges originating within the state imposing those standards. Arkansas Brief at 35." This argument 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, how- ever. First, § 1370 is a savings clause that merely pre- serves 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 In- ternational Paper Co. v. Ouellette, 479 U.S. 481, 493, 107 S.Ct. 805, 812, 93 L.Ed.2d 883 (1987) (§ 1370 * 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 limitation respecting dis- charges of pollutants, or (B) any requirement respecting con- trol 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 limitation, effluent standard, prohibition, pretreatment standard, or standard of performance which is less stringent than the effluent limitation, or other limita- tion, effluent standard, prohibition, pretreatment standard, or standard of performance under this chapter, or (2) be con- strued as impairing or in ay manner affecting any right or jurisdiction of the States with respect to the waters (includ- ing boundary waters) of such States. 24a savings clause “preserves the authority of a State,” but “does not preclude pre-emption” of state law) ; Milwaukee v. Illinois, 451 U.S. 304, 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 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 ap- plies only to the second of two principal provisions of § 1370. That provision (subparagraph (2)) refers broadly to “any right or jurisdiction of the States.” In contrast, the first provision (subparagraph (1) ) specifically addresses the rights of states and their subdivisions to regulate pollution. Subparagraph (1) says nothing about the boundaries 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)— ®We do not suggest one state may directly regulate the conduct of a discharger in another state. Such exercise of jurisdiction would exceed traditional bounds of sovereignty. Nor does the Act redefine those bounds to allow dual per- mitting. See Ouellette, 479 U.S. at 491, 107 S.Ct. at 811. But the question posed here is whether federal law embodied in the Clean Water Act requires a discharge permit to ensure compliance with the applicable WQS of all affected states. Traditional concepts of state powers and the § 1370 savings clause cannot provide the answer to that question. We must look to the CWA as a whole. 25a there shall be achieved . . . any more stringent limitation, including those necessary to meet water quality standards . . . established pur- Suant to any State law or regulations . . . or required to implement any applicable water quality standard established pursuant to this chapter (emphasis added )—exposes the irrationality of Ar- kansas’s argument. In order to ensure that the EPA- approved water quality standards in all states are “met” or “implemented,” it is “necessary” to require dischargers to meet the applicable requirements of other affected states as well as those of the source state. There could be no assurance of achieving a Sstate’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 con- struction of the Act would make achieving down- stream 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.” More- over, rewarding sources for locating in states with less stringent water quality requirements (by re- lieving them from complying with more stringent downstream WQS) would also result in “pollution shopping,” contrary to Congress's intent in passing the 1972 CWA amendments."' The agency contends that its regulations and the legis- lative history manifest an intent to distribute the burden of meeting water quality standards among all discharges on and affecting a particular waterway. See EPA Brief at 22 & n. 19. "In its bill amending section 402 of the Act in 1977 to au- thorize EPA to issue an NPDES permit where it determines a 26a Arkansas counters that EPA’s construction of the Act would have “chaotic” consequences because any downstream state could impose its requirements on proposed sources in any upstream state. Arkansas Brief at 46-47. Thus, Arkansas hypothesizes, a per- mit authorizing a discharge to the Mississippi River in Minnesota would be subject to challenge based on the water quality standards of each of the nine down- stream states. /d. at 16 (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 /llinois v. Milwaukee, 731 F.2d at 414). We find little practical merit in Arkansas’s argu- ment. The ability, as well as the authority, to require compliance 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 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. 1st 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 requirements, if any, of the downstream state, even though that state may be most affected by the discharge. 27a water quality of a particular pollution source be- comes so attenuated as to be undetectable. 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 “im- possible to predict the standard[s]” applicable to a new discharge, as Arkansas claims. First, EPA ap- proval of state WQS determines the potentially ap- plicable rules. Furthermore, the permitting system established in the 1972 and 1977 amendments to the CWA clearly provides for consiltation with and in- put by states that may be affected. Finally, com- puter modeling (such as that performed for the Fayetteville plant) can predict the extent of a new source’s potential impact, thus demonstrating which states’ WQS must be met. 3. Illinois v. Milwaukee and Ouellette Arkansas cites International Paper Co. v. Ouellette and //linois v. Milwaukee in support of its statutory construction argument, but that reliance is misplaced. In each of those cases an affected state was seeking to enjoin 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 en- sure compliance with federal law, ie, its EPA- approved WQS. The Seventh Circuit in J/inois v. Milwaukee recognized this distinction when it pointed out that See part ITI.B. of this opinion for a discussion of the significance in the permitting context of preexisting WQS violations. _ Illinois’ basie grievance is that the permits issued to Milwaukee pursuant to the [CWA] do not impose stringent enough controls on the dis- charges, Nevertheless, Illinois failed to partici- pate in the permit issuing process when the Mil- waukee permits were issued... . [T]hat process seems now to be the appropriate federal forum for adjusting the competing 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 un- der Wisconsin [law] nor sought to enforce federal limitations as provided for under the 1972 [CWA]” and concluded that the CWA “preclude[s] the type of application of state law sought by Illinois.” 731 F.2d at 414. The Supreme Court’s decision in Ouellette is some- what more problematic, even though, like //linois v. Milwaukee, it is not factually or procedurally similar to this case. The specific issue in Ovellette was whether the CWA preempted a common law nuisance suit filed in a Vermont court under Vermont law against a New York discharger, which was the source of the alleged injury in Vermont. The Court con- cluded that “Vermont nuisance law is inapplicable 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 concerning inter- state 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 applying the law of an affected State against an out-of-state source,” id. at 494, 107 S.Ct. at 813. 29a 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 state- ments concerning the regulatory framework of the CWA and the relative role of source and affected states which Arkansas embraces. In particular, Ar- kansas asks us to give weight to the following dis- cussion : While source States have a strong voice in regulating their own pollution, the CWA contem- plates 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 ad- visory role in regulating pollution that originates beyond its borders .... Significantly, however, an affected State does not have the authority to block the issuance of the permit if it is dissatis- fied with the proposed standards. An affected State’s only recourse is to apply to the EPA Ad- ministrator, who then has the discretion to dis- approve 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 Brie‘ 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 en- forcement action in which the issue was the avail- ability of a nuisance remedy under the common law of an affected state against an out-of-state discharger. Even the Court’s broadly stated holdings were ex- pressed in terms of “a sfate-law claim concerning interstate water pollution,” 479 U.S, at 487, 107 S.Ct. 30a at 809 (emphasis added), and “applying the law of an affected State,” id. at 494, 107 S.Ct, at 813 (em- phasis added). In contrast, the case before us poses the question of the applicability of the federally ap- proved water quality standards of an affected down- stream state in permitting a discharge in an up- stream state." Moreover, Ouellette contains other dicta that miti- gate the apparent impact of the language quoted above. For instance, the Court noted that nothing in its decision affected the plaintiffs’ 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 examples, that the plaintiffs had the opportunity to protect their interests before permit issuance by commenting on and objecting to the pro- posed permit conditions, and that they still were en- titled 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 permit-issuing authority to “discharges . . . within its jurisdiction” is beyond dispute. 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 discharge in an upstream state. The Act contains several provisions % Both EPA judicial officers here referred to this distinc- tion in discussing what water quality standards are “appli- cable” or “enforceable” for purposes of NPDES permitting. Order Denying Review, R., A-3, at 7; Order on Petitions for a R., A-28, at 11-12 n. 13. 8la for considering and protecting the water quality of downstream states (including provisions authorizing the actions taken by EPA here). Those provisions are not inconsistent with the Act’s implicit prohibi- tion of dual permitting systems. Indeed, if properly implementad, they negate any need for separate per- mits issued by source and affected states. The Court’s opinion in Ouellette corroborates this reasoning. 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 Con- gress’ 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 Con- gress, after devising an elaborate permit system 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. Plainiy, Ouellette was concerned not with the CWA’s provisions for incorporating a downstream’s water quality criteria in the permitting process, but with preventing a downstream state from circumventing or superseding that process by imposing on an already-permitted source additional requirements based on its own state law. So viewed, Ouellette is entirely consistent with EPA’s interpretation of the applicability of Okla- homa’s WQS. Cf. Champion, 652 F.Supp. at 1400 32a (concluding that nothing in Ouellette required a mod- ification of the decision at 648 F.Supp. 1390 that a North Carolina discharge permit must require com- pliance with an applicable Tennessee WQS). 4. The Statutory and Regulatory Framework The erroneous interpretation of Ouellette, which Arkansas advocates, runs aground when the Clean Water Act is considered as a whole. The Act con- tains 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 discharge of pollutants except pursu- ant to a permit, 33 U.S.C. §§ 1311, 1342; requiring EPA to establish effluent limitations for point source discharges, $$ 1311-1312; providing for EPA’s ap- proval of water quality standards, § 1313, and state permit programs, § 1342(b); and establishing mini- mum procedural requirements for state permit pro- grams, §1314(i). As discussed above, however, states are not precluded from imposing pollution limi- tations more stringent than those promulgated by EPA. 33 U.S.C. \§ 1370; 40 C.F.R. § 122.1(f); Mil- waukee v. Illinois, 451 U.S. at 327-28, 101 S.Ct. at 1797-98, Moreover, the CWA requires the application of best available control technology or best practicable treatment to discharges of pollutants, 33 U.S.C. $1311, and the Act’s legislative history reveals that Congress intended the CWA to be “technology- forcing.” S.Rep. No. 414, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3709 (Act contains a “mandate to press technology and economics” to achieve practicable and attainable levels of effluent reduction, thus, “increasingly tougher controls on in- dustry” will be required); see also Natural Resources em, 33a Defense Council, Inc. v. EPA, 822 F.2d 104, 123-24 (D.C.Cir.1987). Any standard or limitation adopted by a state and approved by EPA becomes the “water quality standard for the applicable waters of that State,” and thus is federally enforceable. 33 U.S.C. § 1313(c)(3). See also $$ 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. 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 “cer- tification” 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 qual- ity requirements. Section 1341(a)(2) provides: Whenever such a discharge may affect, as deter- mined by the [EPA] Administrator, the quality of the waters of any other State, the Administra- tor... shall so notify such other State.... If . such other State determines that such dis- charge 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 hearing . . ., the licensing or permitting agency shall hold such a hearing. ... [The licensing or permitting] agency, based upon the recommendations of such State, ... shall con- dition such license or permit in such manner as 34a may be necessary to insure compliance with ap- plicable water quality requirements. If the im- position of conditions cannot insure such compli- ance Such agency shall not issue such license or permit. “(The purpose of the [§ 1341(a)(2)] notice re- quirement is to enable a state whose water qualities may be affected by the proposed federal activity an opportunity to insure that its stanrads will be com- plied 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 with- out opinion, 707 F.2d 1392 (3d Cir.), cert. denied, 464 U.S. 915, 104 S.Ct. 277, 78 L.Ed.2d 257 (1983) ). EPA’s regulations reaffirm this view, see 40 C.F.R. $§ 121.1-.30," as does the limited case law, see, e.9., 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 certifica- tion, or one imposing conditions or restrictions, is not reviewable administratively by the EPA” and is “exempt from review in federal court’). Arkansas disputes that “applicable water quality requirements” in § 1341(a)(2) refers to the WQS of the affected state."* Based on its plain language, how- ever, we agree with EPA that the purpose of this pro- vision must be to enable affected states to ensure that their water quality will not be jeopardized by a 1 Subpart B of these rules deals specifically with deter- mining 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 34 n. 27. 35a discharge in another state. Only a strained interpre- tation of the statute could produce the result Arkan- sas seeks—that “applicable water quality require- ments” 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 permitting 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 requirements of affected states that would be violated if the permit were not appropri- ately conditioned. We reject Arkansas’s argument to the contrary. The legislative history of the certification statute sheds additional light on this matter. In 1977 Con- gress amended the statute 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. S.Rep. No. 370, at 72, reprinted in 1977 U.S.Code Cong. & Admin.News 4326,4397; H.Conf.Rep. No. 830, at 96, reprinted in 1977 U.S.Code Cong. & Admin.News 4424, 4471."° According to the commit- ‘ 16 See supra note 5 for a brief discussion of § 303 of the CWA, 33 U.S.C. § 1313. 36a tees, the amendment was not meant to change the law but to follow and clarify the original congres- sional intent that “State water quality standards would be imposed through Section 301, and thus cer- tification by the State would include consideration of water quality standards.” 1977 U.S.Code Cong. & Admin.News at 4397. The conference committee added that “‘[s]ection 303 is always included by ref- erence where section 301 is listed.”” H.Conf.Rep. No. 830, at 96, reprinted in 1977 U.S.Code Cong. & Ad- min.News 4424, 4471. The Senate committee offered this further explanation of the amendment: [A]ll States have approved water quality stand- ards. Thus, it is reasonable to require that Fed- eral permits and licenses should take into account State water quality plans, standards and require- ments.adopted under section 303 to assure main- tenance of water quality in the respective States. Id. at 4398. Neither the statute as amended nor the committee reports concerning the bills distinguish be- tween source and affected states. Thus, EPA’s view that sources subject to NPDES permits must comply with all approved state water quality standards is a reasonable interpretation in light of this history. 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 permits, the EPA Administrator retains au- thority to veto any proposed permit if he objects to its issuance. 33 U.S.C. § 1342(d)(2).” EPA may 17 EPA may also withdraw approval of a state permit pro- gram if EPA determines the state is not administering its program in accordance with CWA requisites. 33 U.S.C. § 1342 (c) (3). a ee ees 37a object on the basis of either of two grounds: (1) that a permitting state failed to accept recommendations from another state whose waters may be affected by permit issuance; or (2) that the permit is “ ‘outside [i.e., inconsistent with] the guidelines and require- ments’ of the Act.” EPA Brief at 18-19 (quoting 33 U.S.C. § 1342(d)(2))." The statute mandates that “[n]Jo 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., Ist Sess. 97, reprinted in 1977 U.S.Code Cong. & Admin.News 4424, 4472. Given that a per- mit program administered by EPA is subject to the same requirements as apply to an approved state pro- gram, § 1342(a)(3), no reasonable argument would justify invalidating a state-issued permit that fails to account for the,WQS of another state, yet allowing EPA to issue a permit objectionable on the same ground.” 18 EPA’s regulations elaborate on these two grounds, enu- merating seven possible bases for an EPA objection to a state- issued permit. 40 C.F.R. § 123.44(c). 1 Section 1342(d) (3), the paragraph immediately follow- ing the veto provision, states: “The [EPA] Administrator may, as to any permit application, waive paragraph (2) of this subsection.” The discretionary language of this para- graph initially gave us pause, especially in light of the manda- tory tone of paragraph (2) (‘No 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 to review or not review a permit 38a Although several of the CWA terms discussed in the foregoing paragraphs have no direct application to the permit in this case (because EPA, not Ar- kansas, is the permitting agency), they reflect the objectives and policies behind the Act and the statu- tory framework established for implementing them. Because nothing in the Act suggests that permits is- sued by states are subje¢t to more stringent require- ments 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 directed to 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) (discussing legislative history of § 402 of the CWA). Such discretion is consistent with congressional intent to allow EPA-approved, qualified states to administer their own per- mit 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 and pro- posed permit under this section, we do not believe it has “discretion” to overlook any violation of the CWA revealed by its review. Cf. § 1842(c) (3) (if EPA determines a state permit program is not being administered in accordance with § 1342, it “shall withdraw approval of such program” (em- phasis added) ) ; § 1813(t) (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. Interpreting § 1342 (d) (3) otherwise (i.e., as making all of the provisions 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. § 1811(a). state permitting agencies is instructive as to EPA’s permitting responsibilities and authority as well. The Arkansas parties construct a similar argu- ment (based on the relation between EPA’s and the states’ permitting responsibilities) to urge an oppo- site result, however. 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 admin- ister... . Thus, it makes little sense to sug- gest . . . that a source state discharger must comply with affected state water quality stand- ards when the permitting authority is the EPA rather than a delegated state. Arkansas Brief a 38-39.” Arkansas correctly sug- gests it would make “little sense” if the applicability of a downstream state’s water quality standards de- pended 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. * Section 1342 (b) (5) provides: The Administrator shall approve each such submitted [permit] program unless he determines that adequate au- thority does not exist . . . [t]o insure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State (and the Ad- ministrator) with respect to any permit application 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 the Adminis- trator) in writing of its failure to so accept such recom- mendations together with its reasons for so doing[.] 40a First, in a [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_0080%3A02. Public record. Not legal advice.