OCTOBER TERM, 1991
Syllabus
ARKANSAS ET AL.
v. OKLAHOMA ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH
CIRCUIT
No. 90-1262. Argued December 11, 1991-Decided February
26,1992*
The Clean Water Act provides for two sets of water quality
measures: effluent limitations, which are promulgated by the
Environmental Protection Agency (EPA or Agency), and water quality
standards, which are promulgated by the States. The Act generally
prohibits the discharge of effluent into a navigable body of water
unless the point source obtains a National Pollution Discharge
Elimination System (NPDES) permit from a State with an EPA-approved
permit program or from the EPA itself. A Fayetteville, Arkansas,
sewage treatment plant received an EPA-issued permit, authorizing
it to discharge effluent into a stream that ultimately reaches the
Illinois River upstream from the Oklahoma border. Respondents,
Oklahoma and other Oklahoma parties, challenged the permit before
the EPA, alleging,
inter alia, that the discharge violated
Oklahoma water quality standards, which allow no degradation of
water quality in the upper Illinois River. The EPA's Chief Judicial
Officer remanded the initial affirmance of the permit by the
Administrative Law Judge (ALJ), ruling that the Act requires an
NPDES permit to impose any effluent limitations necessary to comply
with applicable state water quality standards, and that those
standards would be violated only if the record shows by a
preponderance of the evidence that the discharge would cause an
actual
detectable violation of Oklahoma's water quality
standards. The ALJ then made detailed findings of fact, concluding
that Fayetteville had satisfied the Chief Judicial Officer's
standard, and the Chief Judicial Officer sustained the permit's
issuance. The Court of Appeals reversed, ruling that the Act does
not allow a permit to be issued where a proposed source would
discharge effluent that would contribute to conditions currently
constituting a violation of applicable water quality standards. It
concluded that the Illinois River was already degraded, that the
Fayetteville effluent would reach the river in Oklahoma, and that
the effluent would contribute to the river's deterioration even
though it would not detectably affect the river's water
quality.
*Together with No. 90-1266, Environmental Protection Agency
v.
Oklahoma et al., also on certiorari to the same
court.
92
Syllabus
Held: The EPA's action was authorized by the Clean Water
Act.
Pp.98-114.
(a) Where interstate discharge is involved, both federal common
law of nuisance,
Milwaukee v.
Illinois, 451 U. S. 304, and an
affected State's common law,
International Paper Co. v.
Ouellette, 479
U. S. 481,493, are pre-empted. Affected States may not block a
permit, but must apply to the EPA Administrator, who may disapprove
a plan if he concludes that the discharge will have an undue impact
on interstate waters.
Id., at 490-491. Pp.98-101.
(b) The EPA has construed the Act as requiring that EPA-issued
permits comply with the requirements for a permit issued under an
approved state plan and with § 401(a) of the Act, which appears to
prohibit the issuance of a federal permit over the objection of an
affected State unless compliance with the affected State's water
quality requirements can be insured. Pp. 101-103.
(c) The EPA's requirement that the Fayetteville discharge comply
with Oklahoma's water quality standards is a reasonable exercise of
the substantial statutory discretion Congress has vested in the
Agency. There is no need to address the question whether the Act
requires compliance with affected States' standards, for it clearly
does not limit the EPA's authority to mandate such compliance. EPA
regulations, which since 1973 have required that an NPDES permit
not be issued when compliance with affected States' water quality
standards cannot be insured, are a reasonable exercise of the
Agency's discretion and are a well-tailored means of reaching the
Act's goal of achieving state water quality standards. The EPA's
authority is not constrained by the limits in
Ouellette,
supra, concerning an affected State's direct input into the
permit process, does not conflict with the Act's legislative
history and statutory scheme, and is not incompatible with the
balance among competing policies and interests that Congress struck
in the Act. pp. 104-107.
(d) Contrary to the Court of Appeals' interpretation, nothing in
the Act mandates a complete ban on discharges into a waterway that
is in violation of existing water quality standards. Instead, the
Act vests in the EPA and the States broad authority to develop
long-range, areawide programs to alleviate and eliminate existing
pollution. Pp. 107-108.
(e) The Court of Appeals exceeded the legitimate scope of
judicial review of an agency adjudication when it invalidated the
EPA's issuance of the permit on the ground that the Agency
misinterpreted Oklahoma's water quality standards. It substituted
its own reading of the law for the EPA's. Thus, it failed to give
substantial deference to the Agency's reasonable, consistently held
interpretation of its own regulations, which incorporate the
Oklahoma standards. It also disregarded well-
93
established standards for reviewing factual findings of agencies
by making its own factual findings when the ALJ's findings were
supported by substantial evidence. See generally
Universal
Camera Corp. v.
NLRB, 340 U. S. 474. As a
result, the court's conclusion that the river's degradation was an
important and relevant factor which the EPA failed to consider was
based on its own erroneous interpretation of the controlling law.
Had it been properly respectful of the EPA's permissible reading of
the Act-that what matters is not the river's current status, but
whether the proposed discharge will have a detectable effect on
that status-it would not have adjudged the Agency's decision
arbitrary and capricious. Pp. 109-114.
908 F.2d
595, reversed.
STEVENS, J., delivered the opinion for a unanimous Court.
Edward W Warren argued the cause for petitioners in No. 90-1262.
With him on the briefs were Winston Bryant, Attorney General of
Arkansas, Mary B. Stallcup, Angela S. Jegley, David G. Norrell,
James N. McCord, Walter R. Niblock, and Nancy L. Hamm. Deputy
Solicitor General Wallace argued the cause for petitioner in No.
90-1266. With him on the briefs were Solicitor General Starr,
Assistant Attorney General Stewart, Harriet S. Shapiro, Michael A.
McCord, Anne S. Almy, Gary S. Guzy, and E. Donald Elliott.
Robert A. Butkin, Assistant Attorney General of Oklahoma,
argued the cause for respondents in both cases. With him on the
brief for respondents State of Oklahoma et al. were
Susan B.
Loving, Attorney General,
Brita Haugland Cantrell,
Assistant Attorney General, and
Julian Fite. Theodore E.
Dinsmoor and
Susan Hedman filed a brief for respondent
Oklahoma Wildlife Federation. t
tBriefs of
amici curiae urging reversal were filed for
the State of Colorado by
Gale A. Norton, Attorney General,
Raymond T. Slaughter, Chief Deputy Attorney General,
Timothy M. Tymkovich, Solicitor General,
Martha E.
Rudolph, Assistant Attorney General, and
Martha Phillips
Allbright; for the State of Nevada et al. by
Nicholas
J. Spaeth, Attorney General of North Dakota,
Frankie Sue Del Papa, Attorney General of Nevada,
John P.
Arnold, Attorney General of New Hampshire, and
Mark
94
JUSTICE STEVENS delivered the opinion of the Court. Pursuant to
the Clean Water Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251
et seq., the Environmental Protection Agency (EPA or Agency)
issued a discharge permit to a new point source in Arkansas, about
39 miles upstream from the Oklahoma state line. The question
presented in this litigation is whether the EP A's finding that
discharges from the new source would not cause a detectable
violation of Oklaho-
Barnett, Attorney General of South Dakota; for the Association
of Metropolitan Sewerage Agencies et al. by Lee C. White, Benjamin
L. Brown, Howard Holme, Don A. Zimmerman, Geoff Wilson, Thomas W
Kelty, James M. Kaup, Fred G. Stickel III, Robert E. Johnson, John
E. Gotherman, Mark I. Wallach, Roy D. Bates, Ogden Stokes, Thomas
S. Smith, Robert
J. Alfton, and John Dodge; for Champion
International Corp. et al. by
J. Jeffrey McNealey, Michael
K. Glenn, Theodore L. Garrett, Corinne A. Goldstein, Charles R.
Nestrud, Richard A. Flye, Jerry C. Jones, and Jess Askew III; for
the Colorado Water Congress by Mark T. Pifher; and for the Mountain
States Legal Foundation et al. by William Perry Pendley.
Briefs of
amici curiae urging affirmance were filed for
the State of Illinois et al. by
Roland W Burris, Attorney
General of Illinois,
Rosalyn Kaplan, Solicitor General, and
James L. Morgan, Assistant Attorney General,
Charles W
Burson, Attorney General of Tennessee,
John Knox Walkup,
Solicitor General, and
Michael D. Pearigen, Deputy Attorney
General,
Jimmy Evans, Attorney General of Alabama,
Grant
Woods, Attorney General of Arizona,
Daniel E. Lungren,
Attorney General of California,
Richard Blumenthal, Attorney
General of Connecticut,
Charles M. Oberly III, Attorney
General of Delaware,
Robert A. Butterworth, Attorney General
of Florida,
Michael E. Carpenter, Attorney General of Maine,
and
Jon H. Edwards, Assistant Attorney General,
Frank
J. Kelley, Attorney General of Michigan,
Mike
Moore, Attorney General of Mississippi,
Robert J.
Del Tufo, Attorney General of New Jersey, and
T. Travis
Medlock, Attorney General of South Carolina; for the Cherokee
Nation of Oklahoma by
Jim Wilcoxen; for the Natural
Resources Defense Council et al. by
Jessica C.
Landman and
Mark Van Putten; for the Scenic Rivers
Association of Oklahoma et al. by
Kathy Carter-White, Joel Glenn
Richardson, Harvey Chaffin, and
Bill J.
Ballard; for the Sierra Club by
Stephan C.
Volker; for the U. S. Senator from Oklahoma, Don Nickles, et
al. by
James George Jatras; and for
Mike Synar,
Member of Congress,
pro se.
95
ma's water quality standards satisfied the EP A's duty to
protect the interests of the downstream State. Disagreeing with the
Court of Appeals, we hold that the Agency's action was authorized
by the statute.
I
In 1985, the city of Fayetteville, Arkansas, applied to the EPA,
seeking a permit for the city's new sewage treatment plant under
the National Pollution Discharge Elimination System (NPDES). After
the appropriate procedures, the EP A, pursuant to § 402(a)(1) of
the Act, 33 U. S. C. § 1342(a)(1), issued a permit authorizing the
plant to discharge up to half of its effluent (to a limit of 6.1
million gallons per day) into an unnamed stream in northwestern
Arkansas.1 That flow passes through a series of three creeks for
about 17 miles, and then enters the Illinois River at a point 22
miles upstream from the Arkansas-Oklahoma border.
The permit imposed specific limitations on the quantity,
content, and character of the discharge and also included a number
of special conditions, including a provision that if a study then
underway indicated that more stringent limitations were necessary
to ensure compliance with Oklahoma's water quality standards, the
permit would be modified to incorporate those limits. App. 84.
Respondents challenged this permit before the EP A, alleging,
inter alia, that the discharge violated the Oklahoma water
quality standards. Those standards provide that "no degradation [of
water quality] shall be allowed" in the upper Illinois River,
including the portion of the river immediately downstream from the
state line.2
1 The permit also authorized the plant to discharge the
remainder of its effluent into the White River, a river that does
not flow into Oklahoma; this aspect of the permit is not at issue
in this litigation.
2 Section 5 of the Oklahoma water quality standards
provides:
"All streams and bodies of water designated as (a) are protected
by prohibition of any new point source discharge of wastes or
increased load
96
Following a hearing, the Administrative Law Judge (ALJ)
concluded that the Oklahoma standards would not be implicated
unless the contested discharge had "something more than a mere
de minimis impact" on the State's waters. He found that the
discharge would not have an "undue impact" on Oklahoma's waters
and, accordingly, affirmed the issuance of the permit. App. to Pet.
for Cert. in No. 90-1262, pp. 101a-103a (emphasis deleted).
On a petition for review, the EPA's Chief Judicial Officer first
ruled that § 301(b)(1)(C) of the Clean Water Act "requires an NPDES
permit to impose any effluent limitations necessary to comply with
applicable state water quality standards." 3
Id., at
116a-117a. He then held that the Act
from an existing point source except under conditions described
in Section 3.
"All streams designated by the State as 'scenic river areas,'
and such tributaries of those streams as may be appropriate will be
so designated. Best management practices for control of nonpoint
source discharge should be initiated when feasible." App.46-47.
Oklahoma has designated the portion of the Illinois River
immediately downstream from the state line as a "scenic river."
Okla. Stat., Tit. 82, § 1452(b)(1) (Supp. 1989); see also App.
54.
Section 3 of the Oklahoma water quality standards provides, in
relevant part:
"The intent of the Anti-degradation Policy is to protect all
waters of the State from quality degradation. Existing instream
water uses shall be maintained and protected. No further water
quality degradation which would interfere with or become injurious
to existing instream water uses shall be allowed. Oklahoma's waters
constitute a valuable State resource and shall be protected,
maintained and improved for the benefit of all the citizens.
"No degradation shall be allowed in high quality waters which
constitute an outstanding resource or in waters of exceptional
recreational or ecological significance. These include water bodies
located in national and State parks, Wildlife Refuges, and those
designated 'Scenic Rivers' in Appendix A." App. 27-28.
3 Section 301(b)(1)(C) provides, in relevant part, that
"there shall be achieved-
97
and EP A regulations offered greater protection for the
downstream State than the ALJ's "undue impact" standard suggested.
He explained the proper standard as follows:
"[A] mere theoretical impairment of Oklahoma's water quality
standards-i. e., an infinitesimal impairment predicted
through modeling but not expected to be actually detectable or
measurable-should not by itself block the issuance of the permit.
In this case, the permit should be upheld if the record shows by a
preponderance of the evidence that the authorized discharges would
not cause an actual detectable violation of Oklahoma's water
quality standards." Id., at 117a (emphasis in original).
On remand, the ALJ made detailed findings of fact and concluded
that the city had satisfied the standard set forth by the Chief
Judicial Officer. Specifically, the ALJ found that there would be
no detectable violation of any of the components of Oklahoma's
water quality standards.
Id., at 127a-143a. The Chief
Judicial Officer sustained the issuance of the permit.
Id.,
at 145a-153a.
Both the petitioners in No. 90-1262 (collectively Arkansas) and
the respondents in this litigation sought judicial review.4
Arkansas argued that the Clean Water Act did not require an
Arkansas point source to comply with Oklahoma's water quality
standards. Oklahoma challenged the EP A's determination that the
Fayetteville discharge would not produce a detectable violation of
the Oklahoma standards.
The Court of Appeals did not accept either of these arguments.
The court agreed with the EPA that the statute required compliance
with Oklahoma's water quality standards,
"(C) not later than July 1, 1977, any more stringent
limitation, including those necessary to meet
water quality
standards ... established pursuant to any State law or regulations
... or required to implement any applicable water quality
standard established pursuant to this chapter." 33
4 The Arkansas petition was filed in the Court of Appeals for
the Eighth Circuit and transferred to the Tenth Circuit where it
was consolidated with the petition filed by the respondents.
98
see
908 F.2d
595, 602-615 (CAlO 1990), and did not disagree with the
Agency's determination that the discharges from the Fayetteville
plant would not produce a detectable violation of those standards.
Id., at 631-633. Nevertheless, relying on a theory that
neither party had advanced, the Court of Appeals reversed the
Agency's issuance of the Fayetteville permit. The court first ruled
that the statute requires that "where a proposed source would
discharge effluents that would contribute to conditions currently
constituting a violation of applicable water quality standards,
such [a] proposed source may not be permitted."
Id., at 620.
Then the court found that the Illinois River in Oklahoma was
"already degraded," that the Fayetteville effluent would reach the
Illinois River in Oklahoma, and that that effluent could "be
expected to contribute to the ongoing deterioration of the scenic
[Illinois R]iver" in Oklahoma even though it would not detectably
affect the river's water quality.
Id., at 621-629.
The importance and the novelty of the Court of Appeals' decision
persuaded us to grant certiorari. 499 U. S. 946 (1991). We now
reverse.
II
Interstate waters have been a font of controversy since the
founding of the Nation.
E. g., Gibbons v.
Ogden, 9
Wheat. 1 (1824). This Court has frequently resolved disputes
between States that are separated by a common river, see,
e. g.,
Ohio v.
Kentucky, 444 U. S. 335 (1980),
that border the same body of water, see,
e. g., New York v.
New Jersey, 256 U. S. 296 (1921), or
that are fed by the same river basin, see,
e. g., New Jersey
v.
New York, 283 U. S. 336 (1931).
Among these cases are controversies between a State that
introduces pollutants to a waterway and a downstream State that
objects. See,
e. g., Missouri v.
Illinois, 200 U. S. 496 (1906). In
such cases, this Court has applied principles of common law
tempered by a respect for the sovereignty of the States. Compare
id., at 521, with
Georgia v.
Tennessee Copper
Co., 206 U. S.
230, 237 (1907). In forging what "may
99
not improperly be called interstate common law,"
Illinois
v.
Milwaukee, 406 U. S. 91, 105-106
(1972)
(Milwaukee I), however, we remained aware "that new
federal laws and new federal regulations may in time pre-empt the
field of federal common law of nuisance."
Id., at 107.
In
Milwaukee v.
Illinois, 451 U. S. 304 (1981)
(Milwaukee II), we held that the Federal Water Pollution
Control Act Amendments of 1972 did just that. In addressing
Illinois' claim that Milwaukee's discharges into Lake Michigan
constituted a nuisance, we held that the comprehensive regulatory
regime created by the 1972 amendments pre-empted Illinois' federal
common law remedy. We observed that Congress had addressed many of
the problems we had identified in
Milwaukee I by providing a
downstream State with an opportunity for a hearing before the
source State's permitting agency, by requiring the latter to
explain its failure to accept any recommendations offered by the
downstream State, and by authorizing the EP A, in its discretion,
to veto a source State's issuance of any permit if the waters of
another State may be affected.
Milwaukee II, 451 U. S., at
325-326.
In
Milwaukee II, the Court did not address whether the
1972 amendments had supplanted
state common law remedies as
well as the federal common law remedy. See
id., at 310, n.
4. On remand, Illinois argued that § 510 of the Clean Water Act, 33
U. S. C. § 1370, expressly preserved the State's right to adopt and
enforce rules that are more stringent than federal standards.5 The
Court of Appeals accepted Illinois' reading of § 510, but held that
that section did "no more than
5 Section 510 provides in relevant part:
"Except as expressly provided in this [Act], nothing in this
[Act] 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 discharges of
pollutants, or (B) any requirement respecting control or abatement
of pollution [with exceptions]; or (2) be construed as impairing or
in any manner affecting any right or jurisdiction of the States
with respect to the waters (including boundary waters) of such
States." 33 U. S. C. § 1370 (emphasis added).
100
to save the right and jurisdiction of a state to regulate
activity occurring within the confines of its boundary waters."
Illinois v.
Milwaukee, 731 F.2d
403, 413 (CA7 1984), cert. denied, 469 U. S. 1196 (1985).
This Court subsequently endorsed that analysis in
International Paper Co. v.
Ouellette, 479 U. S. 481 (1987), in
which Vermont property owners claimed that the pollution discharged
into Lake Champlain by a paper company located in New York
constituted a nuisance under Vermont law. The Court held the Clean
Water Act taken "as a whole, its purposes and its history"
pre-empted an action based on the law of the affected State and
that the only state law applicable to an interstate discharge is
"the law of the State in which the point source is located."
Id., at 493, 487. Moreover, in reviewing § 402(b) of the
Act, the Court pointed out that when a new permit is being issued
by the source State's permit-granting agency, the downstream
State
"does not have the authority to block the issuance of the permit
if it is dissatisfied with the proposed standards. An affected
State's only recourse is to apply to the EPA Administrator, who
then has the discretion to disapprove the permit if he concludes
that the discharges will have an undue impact on interstate waters.
§ 1342(d)(2) .... Thus the Act makes it clear that affected States
occupy a subordinate position to source States in the federal
regulatory program." Id., at 490-491.6
6 This description of the downstream State's role in the
issuance of a new permit by a source State was apparently
consistent with the EPA's interpretation of the Act at the time.
The Government's
amicus curiae brief in
Ouellette
stated that "the affected neighboring state [has] only an advisory
role in the formulation of applicable effluent standards or
limitations. The affected state may try to persuade the federal
government or the source state to increase effluent requirements,
but
ultimately possesses no statutory authority to compel that
result, even when its waters are adversely affected by out-of-state
pollution. See 33 U. S. C. § 1341(a)(2), 1342(b)(3) and (5)
.... " Brief for United States as
Amicus Curiae, O. T. 1986,
No. 85-1233, p. 19 (emphasis added; footnote omitted).
101
Unlike the foregoing cases, this litigation involves not a
state-issued permit, but a federally issued permit. To explain the
significance of this distinction, we comment further on the
statutory scheme before addressing the specific issues raised by
the parties.
III
The Clean Water Act anticipates a partnership between the States
and the Federal Government, animated by a shared objective: "to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." 33 U. S. C. § 1251(a). Toward
this end, the Act provides for two sets of water quality measures.
"Effluent limitations" are promulgated by the EPA and restrict the
quantities, rates, and concentrations of specified substances which
are discharged from point sources. See §§ 1311, 1314. "[W]ater
quality standards" are, in general, promulgated by the States and
establish the desired condition of a waterway. See § 1313. These
standards supplement effluent limitations "so that numerous point
sources, despite individual compliance with effluent limitations,
may be further 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).
The EP A provides States with substantial guidance in the
drafting of water quality standards. See generally 40 CFR pt. 131
(1991) (setting forth model water quality standards). Moreover, §
303 of the Act requires,
inter alia, that state authorities
periodically review water quality standards and secure the EPA's
approval of any revisions in the standards. If the EPA recommends
changes to the standards and the State fails to comply with that
recommendation, the Act authorizes the EP A to promulgate water
quality standards for the State. 33 U. S. C. § 1313(c).
The primary means for enforcing these limitations and standards
is the NPDES, enacted in 1972 as a critical part of Congress'
"complete rewriting" of federal water pollution
102
law.
Milwaukee II, 451 U. S., at 317. Section 301(a) of
the Act, 33 U. S. C. § 1311(a), generally prohibits the discharge
of any effluent into a navigable body of water unless the point
source has obtained an NPDES permit. Section 402 establishes the
NPDES permitting regime, and describes two types of permitting
systems: state permit programs that must satisfy federal
requirements and be approved by the EPA, and a federal program
administered by the EPA.
Section 402(b) authorizes each State to establish "its own
permit program for discharges into navigable waters within its
jurisdiction." 33 U. S. C. § 1342(b). Among the requirements the
state program must satisfy are the procedural protections for
downstream States discussed in
Ouellette and
Milwaukee
II. See §§ 1342(b)(3), (5).7 Although these provisions do not
authorize the downstream State to veto the issuance of a permit for
a new point source in another State, the Administrator retains
authority to block the issuance of any state-issued permit that is
"outside the guidelines and requirements" of the Act. §
1342(d)(2).8
7 Section 402(b) requires state permit programs
"(3) [t]o insure that ... any other State the waters of which
may be affected ... receive notice of each application for a permit
and to provide an opportunity for public hearing before a ruling on
each such application;
"(5) [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
Administrator) 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 Administrator) in writing of its failure to
so accept such recommendations together with its reasons for so
doing." 33 U. S. C. § 1342(b).
Although § 402(b) focuses on state-issued permits, § 402(a)(3)
requires that, in issuing an NPDES permit, the Administrator follow
the same procedures required of state permit programs. See 33 U. S.
C. § 1342(a)(3); see also § 1341(a)(2).
8 Section 402(d)(2) provides:
"(2) No permit shall issue (A) if the Administrator within
ninety days of the date of his notification under subsection (b)(5)
of this section objects
103
In the absence of an approved state program, the EP A may issue
an NPDES permit under §402(a) of the Act. (In these cases, for
example, because Arkansas had not been authorized to issue NPDES
permits when the Fayetteville plant was completed, the permit was
issued by the EP A itself.) The EPA's permit program is subject to
the "same terms, conditions, and requirements" as a state permit
program. 33 U. S. C. § 1342(a)(3). Notwithstanding this general
symmetry, the EPA has construed the Act as requiring that
EPA-issued NPDES permits also comply with §401(a). That section,
which predates §402 and the NPDES, applies to a broad category of
federal licenses, and sets forth requirements for "[a]ny applicant
for a Federal license or permit to conduct any activity including,
but not limited to, the construction or operation of facilities,
which may result in any discharge into the navigable waters." 33 U.
S. C. § 1341(a). Section 401(a)(2) appears to prohibit the issuance
of any federal license or permit over the objection of an affected
State unless compliance with the affected State's water quality
requirements can be ensured.9
in writing to the issuance of such permit, or (B) if the
Administrator within ninety days of the date of transmittal of the
proposed permit by the State objects in writing to the issuance of
such permit as being outside the guidelines and requirements of
this chapter. Whenever the Administrator objects to the issuance of
a permit under this paragraph such written objection shall contain
a statement of the reasons for such objection and the effluent
limitations and conditions which such permit would include if it
were issued by the Administrator." 33 U. S. C. § 1342(d)(2).
9 Section 401(a)(2) provides, in relevant part:
"Whenever such a discharge may affect, as determined by the
Administrator, the quality of the waters of any other State, the
Administrator ... shall so notify such other State, the licensing
or permitting agency, and the applicant. If, within sixty days
after receipt of such notification, such other State determines
that such discharge will affect the quality of its waters so as to
violate any water quality requirements in such State, and within
such sixty-day period notifies the Administrator and the licensing
or permitting agency in writing of its objection to the issuance of
such license or permit and requests a public hearing on such
objection, the licensing or permitting agency shall hold such a
hearing. The Administra-
104
IV
The parties have argued three analytically distinct questions
concerning the interpretation of the Clean Water Act. First, does
the Act require the EP A, in crafting and issuing a permit to a
point source in one State, to apply the water quality standards of
downstream States? Second, even if the Act does not
require
as much, does the Agency have the statutory authority to mandate
such compliance? Third, does the Act provide, as the Court of
Appeals held, that once a body of water fails to meet water quality
standards no discharge that yields effluent that reach the degraded
waters will be permitted?
In these cases, it is neither necessary nor prudent for us to
resolve the first of these questions. In issuing the Fayetteville
permit, the EP A assumed it was obligated by both the Act and its
own regulations to ensure that the Fayetteville discharge would not
violate Oklahoma's standards. See App. to Pet. for Cert. in No.
90-1262, pp. 116a-117a, and n.14. As we discuss below, this
assumption was permissible and reasonable and therefore there is no
need for us to address whether the Act requires as much. Moreover,
much of the analysis and argument in the briefs of the parties
relies on statutory provisions that govern not only federal permits
issued pursuant to §§ 401(a) and 402(a), but also state permits
issued under § 402(b). It seems unwise to evaluate those arguments
in a case such as these, which only involve a federal permit.
tor shall at such hearing submit his evaluation and
recommendations with respect to any such objection to the licensing
or permitting agency. Such agency, based upon the recommendations
of such State, the Administrator, and upon any additional evidence,
if any, presented to the agency at the hearing, shall condition
such license or permit in such manner as may be necessary to insure
compliance with applicable water quality requirements. If the
imposition of conditions cannot insure such compliance such agency
shall not issue such license or permit." 33 U. S. C. §
1341(a)(2).
105
Our decision not to determine at this time the scope of the
Agency's statutory
obligations does not affect our
resolution of the second question, which concerns the Agency's
statutory
authority. Even if the Clean Water Act itself does
not require the Fayetteville discharge to comply with Oklahoma's
water quality standards, the statute clearly does not limit the
EPA's authority to mandate such compliance.
Since 1973, EPA regulations have provided that an NPDES permit
shall not be issued "[w]hen the imposition of conditions cannot
ensure compliance with the applicable water quality requirements of
all affected States." 10 40 CFR § 122.4(d) (1991); see also 38 Fed.
Reg. 13533 (1973); 40 CFR § 122.44(d) (1991). Those
regulations-relied upon by the EPA in the issuance of the
Fayetteville permitconstitute a reasonable exercise of the Agency's
statutory authority.
Congress has vested in the Administrator broad discretion to
establish conditions for NPDES permits. Section 402(a) (2) provides
that for EPA-issued permits "[t]he Administrator shall prescribe
conditions ... to assure compliance with the requirements of
[§402(a)(1)] and
such other requirements as he deems
appropriate." 33 U. S. C. § 1342(a)(2) (emphasis added).
Similarly, Congress preserved for the Administrator broad authority
to oversee state permit programs:
"No permit shall issue ... if the Administrator ... objects in
writing to the issuance of such permit as being outside the
guidelines and requirements of this chapter." § 1342(d)(2).
The regulations relied on by the EPA were a perfectly reasonable
exercise of the Agency's statutory discretion. The application of
state water quality standards in the interstate context is wholly
consistent with the Act's broad purpose "to restore and maintain
the chemical, physical, and
lOThis restriction applies whether the permit is issued by the
EPA or by an approved state program. See 40 CFR § 123.25
(1991).
106
biological integrity of the Nation's waters." 33 U. S. C. §
1251(a). Moreover, as noted above, § 301(b)(1)(C) expressly
identifies the achievement of state water quality standards as one
of the Act's central objectives. The Agency's regulations
conditioning NPDES permits are a well-tailored means of achieving
this goal.
Notwithstanding this apparent reasonableness, Arkansas argues
that our description in
Ouellette of the role of affected
States in the permit process and our characterization of the
affected States' position as "subordinate," see 479 U. S., at
490-491, indicates that the EPA's application of the Oklahoma
standards was error. We disagree. Our statement in
Ouellette
concerned only an affected State's input into the permit process;
that input is clearly limited by the plain language of § 402(b).
Limits on an affected State's direct participation in permitting
decisions, however, do not in any way constrain the
EPA's
authority to require a point source to comply with downstream water
quality standards.
Arkansas also argues that regulations requiring compliance with
downstream standards are at odds with the legislative history of
the Act and with the statutory scheme established by the Act.
Although we agree with Arkansas that the Act's legislative history
indicates that Congress intended to grant the Administrator
discretion in his oversight of the issuance of NPDES permits,H we
find nothing in that history to indicate that Congress intended to
preclude the EPA from establishing a general requirement that such
permits be conditioned to ensure compliance with downstream water
quality standards.
Similarly, we agree with Arkansas that in the Clean Water Act
Congress struck a careful balance among competing policies and
interests, but do not find the EPA regulations con-
11 See,
e. g., 1 Legislative History of Water
Pollution Control Act Amendments of 1972 (Committee Print compiled
for the Senate Committee on Public Works by the Library of
Congress), Ser. No. 93-1, pp. 322,388-389, 814 (1973); see also 33
U. S. C. § 1342(d)(3).
107
cerning the application of downstream water quality standards at
all incompatible with that balance. Congress, in crafting the Act,
protected certain sovereign interests of the States; for example, §
510 allows States to adopt more demanding pollution-control
standards than those established under the Act. Arkansas emphasizes
that § 510 preserves such state authority only as it is applied to
the waters of the regulating State. Even assuming Arkansas'
construction of § 510 is correct, cf.
id., at 493, that
section only concerns
state authority and does not constrain
the
EPA's authority to promulgate reasonable regulations
requiring point sources in one State to comply with water quality
standards in downstream States.
For these reasons, we find the EP A's requirement that the
Fayetteville discharge comply with Oklahoma's water quality
standards to be a reasonable exercise of the Agency's substantial
statutory discretion. Cf.
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837, 842845
(1984).
V
The Court of Appeals construed the Clean Water Act to prohibit
any discharge of effluent that would reach waters already in
violation of existing water quality standards.12 We find nothing in
the Act to support this reading.
12 "[W]e hold that the Clean Water Act prohibits granting an
NPDES permit under the circumstances of this case (i. e., where
applicable water quality standards have already been violated) and
reverse EPA's decision to permit Fayetteville to discharge any part
of its effluent to the Illinois River Basin."
908
F.2d 595, 616 (CAlO 1990).
"Congress cannot reasonably be presumed to have intended to
exclude from the CWA's 'all-encompassing program,' 451 U. S., at
318, a permitting decision arising in circumstances such as those
of this case. It is even more unfathomable that Congress fashioned
a
'comprehensive ... policy for the
elimination of
water pollution,'
id., which sanctions continued pollution
once minimum water quality standards have been transgressed. More
likely, Congress simply never contemplated that EPA or a state
would consider it permissible to authorize further pollution under
such
108
The interpretation of the statute adopted by the court had not
been advanced by any party during the Agency or court proceedings.
Moreover, the Court of Appeals candidly acknowledged that its
theory "has apparently never before been addressed by a federal
court." 908 F. 2d, at 620, n. 39. The only statutory provision the
court cited to support its legal analysis was § 402(h), see
id., at 633, which merely authorizes the EPA (or a state
permit program) to prohibit a publicly owned treatment plant that
is violating a condition of its NPDES permit from accepting any
additional pollutants for treatment until the ongoing violation has
been corrected. See 33 U. S. C. § 1342(h).
Although the Act contains several provisions directing
compliance with state water quality standards, see,
e.
g., § 1311(b)(1)(C), the parties have pointed to nothing
that mandates a complete ban on discharges into a waterway that is
in violation of those standards. The statute does, however, contain
provisions designed to remedy existing water quality violations and
to allocate the burden of reducing undesirable discharges between
existing sources and new sources. See,
e. g., §
1313(d). Thus, rather than establishing the categorical ban
announced by the Court of Appeals-which might frustrate the
construction of new plants that would improve existing
conditions-the Clean Water Act vests in the EP A and the States
broad authority to develop long-range, areawide programs to
alleviate and eliminate existing pollution. See,
e.
g., § 1288(b)(2).
To the extent that the Court of Appeals relied on its
interpretation of the Act to reverse the EPA's permitting decision,
that reliance was misplaced.
circumstances. We will not ascribe to the Act either the gaping
loophole or the irrational purpose necessary to uphold EPA's action
in this case."
Id., at 632 (footnotes omitted).
109
VI
The Court of Appeals also concluded that the EPA's issuance of
the Fayetteville permit was arbitrary and capricious because the
Agency misinterpreted Oklahoma's water quality standards. The
primary difference 13 between the court's and the Agency's
interpretation of the standards derives from the court's
construction of the Act. Contrary to the EPA's interpretation of
the Oklahoma standards, the Court of Appeals read those standards
as containing the same categorical ban on new discharges that the
court had found in the Clean Water Act itself. Although we do not
believe the text of the Oklahoma standards supports the court's
reading (indeed, we note that Oklahoma itself had not advanced that
interpretation in its briefs in the Court of Appeals), we reject it
for a more fundamental reason-namely, that the Court of Appeals
exceeded the legitimate scope of judicial review of an agency
adjudication. To emphasize the importance of this point, we shall
first briefly assess the soundness of the EPA's interpretation and
application of the Oklahoma
13 The court identified three errors in the EP A's reading of
the Oklahoma standards. First, the court correctly observed that
the ALJ and the Chief Judicial Officer misinterpreted § 4.10(c) of
the standards as governing only the discharge of phosphorus into
lakes, rather than the discharge of phosphorus into lakes and into
all "perennial and intermittent streams."
Id., at 617
(emphasis omitted). This error was harmless because the ALJ found
that the discharge into Lake Francis would comply with § 4.10(c)
and it is undisputed that that discharge produced a greater threat
to the slow-moving water of the lake than to the rapid flow in the
river.
The second flaw identified by the court was the ALJ's mistaken
reliance on the 1985, rather than the 1982 version, of the Oklahoma
standards. We agree with the Chief Judicial Officer, who also noted
this error, that the portions of the two versions relevant to this
case "do not differ materially." App. to Pet. for Cert. in No.
90-1262, p. 150a. Therefore, this error was also harmless.
Because these two errors were harmless, we have focused in the
text on the major difference between the court's and the EPA's
readings of the Oklahoma standards: the "no degradation"
provision.
110
standards and then comment more specifically on the Court of
Appeals' approach.
As discussed above, an EPA regulation requires an NPDES permit
to comply "with the applicable water quality requirements of all
affected States." 40 CFR § 122.4(d) (1991). This regulation
effectively incorporates into federal law those state-law standards
the Agency reasonably determines to be "applicable." In such a
situation, then, state water quality standards-promulgated by the
States with substantial guidance from the EPA14 and approved by the
Agency-are part of the federal law of water pollution control.
Two features of the body of law governing water pollution
support this conclusion. First, as discussed more thoroughly above,
we have long recognized that interstate water pollution is
controlled by
federal law. See
supra, at 98-100.
Recognizing that the system of federally approved state standards
as applied in the interstate context constitutes federal law is
wholly consistent with this principle. Second, treating state
standards in interstate controversies as federal law accords with
the Act's purpose of authorizing the EPA to create and manage a
uniform system of interstate water pollution regulation.
Because we recognize that, at least insofar as they affect the
issuance of a permit in another State, the Oklahoma standards have
a federal character, the EPA's reasonable, consistently held
interpretation of those standards is entitled to substantial
deference. Cf.
INS v.
National Center for Immigrants'
Rights, 502 U. S.
183, 189-190 (1991);
Chevron U. S.
A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837
(1984). In these cases, the Chief Judicial Officer ruled that the
Oklahoma standards-which require that there be "no degradation" of
the upper Illinois River-would
14 See
supra, at 101. Oklahoma's water quality standards
closely track the EPA's model standards in effect at that time.
Compare §3 of the Oklahoma standards with 40 CFR § 35.1550(e)(1)
(1981).
111
only be violated if the discharge effected an "actually
detectable or measurable" change in water quality. App. to Pet. for
Cert. in No. 90-1262, p. 117a.
This interpretation of the Oklahoma standards is certainly
reasonable and consistent with the purposes and principles of the
Clean Water Act. As the Chief Judicial Officer noted, "unless there
is some method for measuring compliance, there is no way to ensure
compliance."
Id., at llSa, n. 16 (internal quotation marks
omitted; citation omitted). Moreover, this interpretation of the
Oklahoma standards makes eminent sense in the interstate context:
If every discharge that had some theoretical impact on a downstream
State were interpreted as "degrading" the downstream waters,
downstream States might wield an effective veto over upstream
discharges.
The EPA's application of those standards in these cases was also
sound. On remand, the ALJ scrutinized the record and made explicit
factual findings regarding four primary measures of water quality
under the Oklahoma standards: eutrophication,15 esthetics,16
dissolved oxygen,17 and met-
15 Eutrophication is the "normally slow aging process by which a
lake evolves into a bog or marsh .... During eutrophication the
lake becomes so rich in nutritive compounds (especially nitrogen
and phosphorus) that algae and other microscopic plant life become
superabundant, thereby 'choking' the lake .... " App. 57-58. With
regard to eutrophication, the ALJ found that the Fayetteville plant
would discharge 30 pounds of phosphorus per day, only about 6
pounds of which would reach the Arkansas/Oklahoma border, and that
such a small amount would not result in an increase in
eutrophication. App. to Pet. for Cert. in No. 90-1262,
16 With regard to esthetics, the ALJ concluded that the only
discharged compound that would affect esthetics was phosphorus and
that, again, the amount of that substance crossing the border would
not affect the esthetic quality of Oklahoma's waters.
Id.,
at 135a-136a.
17With regard to dissolved oxygen, the ALJ found that in the 39
miles between discharge and the border the effluent would
experience "complete oxygen recovery" and therefore would not
affect the dissolved oxygen levels in the river.
Id., at
140a.
112
als.18 In each case, the ALJ found that the Fayetteville
discharge would not lead to a detectable change in water quality.
He therefore concluded that the Fayetteville discharge would not
violate the Oklahoma water quality standards. Because we agree with
the Agency's Chief Judicial Officer that these findings are
supported by substantial evidence, we conclude that the Court of
Appeals should have affirmed both the EP A's construction of the
regulations and the issuance of the Fayetteville permit.
In its review of the EP A's interpretation and application of
the Oklahoma standards, the Court of Appeals committed three
mutually compounding errors.
First, the court failed to give due regard to the EPA's
interpretation of its own regulations, as those regulations
incorporate the Oklahoma standards. Instead the court voiced its
own interpretation of the governing law and concluded that "where a
proposed source would discharge effluents that would contribute to
conditions currently constituting a violation of applicable water
quality standards, such [a] proposed source may not be permitted."
908 F. 2d, at 620. As we have already pointed out, that reading of
the law is not supported by the statute or by any EPA regulation.
The Court of Appeals sat in review of an agency action and should
have afforded the EPA's interpretation of the governing law an
appropriate level of deference. See generally
Chevron,
supra, at 842-844.
Second, the court disregarded well-established standards for
reviewing the factual findings of agencies and instead made its own
factual findings. The troubling nature of the court's analysis
appears on the face of the opinion itself: At least four times, the
court concluded that "there was substantial evidence before the ALJ
to support" particular findings which the court thought
appropriate, but which were
18 With regard to metals, the ALJ concluded that the
concentrations of metals would be so low as not to violate the
Oklahoma standards.
Id., at 143a.
113
contrary to those actually made by the ALJ. 908 F. 2d, at 620,
625, 627, 629. Although we have long recognized the "substantial
evidence" standard in administrative law, the court below turned
that analysis on its head. A court reviewing an agency's
adjudicative action should accept the
agency's factual
findings if those findings are supported by substantial evidence on
the record as a whole. See generally
Universal Camera Corp.
v.
NLRB, 340
U. S. 474 (1951). The court should not supplant the agency's
findings merely by identifying alternative findings that could be
supported by substantial evidence.
Third, the court incorrectly concluded that the EPA's decision
was arbitrary and capricious. This error is derivative of the
court's first two errors. Having substituted its reading of the
governing law for the Agency's, and having made its own factual
findings, the Court of Appeals concluded that the EPA erred in not
considering an important and relevant fact-namely, that the upper
Illinois River was (by the court's assessment) already
degraded.
As we have often recognized, an agency ruling is "arbitrary and
capricious if the agency has ... entirely failed to consider an
important aspect of the problem."
Motor Vehicle Mfrs. Assn. of
United States, Inc. v.
State Farm Mut. Automobile Ins.
Co., 463 U. S.
29, 43 (1983). However, in these cases, the degraded status of
the river is only an "important aspect" because of the Court of
Appeals' novel and erroneous interpretation of the controlling law.
Under the EPA's interpretation of that law, what matters is not the
river's current status, but rather whether the proposed discharge
will have a "detectable effect" on that status. If the Court of
Appeals had been properly respectful of the Agency's permissible
reading of the Act and the Oklahoma standards, the court would not
have adjudged the Agency's decision arbitrary and capricious for
this reason.
In sum, the Court of Appeals made a policy choice that it was
not authorized to make. Arguably, as that court sug-
114
gested, it might be wise to prohibit any discharge into the
Illinois River, even if that discharge would have no adverse impact
on water quality. But it was surely not arbitrary for the EPA to
conclude-given the benefits to the river from the increased flow of
relatively clean water 19 and the benefits achieved in Arkansas by
allowing the new plant to operate as designed-that allowing the
discharge would be even wiser. It is not our role, or that of the
Court of Appeals, to decide which policy choice is the better one,
for it is clear that Congress has entrusted such decisions to the
Environmental Protection Agency.
Accordingly, the judgment of the Court of Appeals is
Reversed.
19 Justice Holmes recognized this potential benefit years
ago:
"There is no pretence that there is a nuisance of the simple
kind that was known to the older common law. There is nothing which
can be detected by the unassisted senses-no visible increase of
filth, no new smell. On the contrary, it is proved that the great
volume of pure water from Lake Michigan which is mixed with the
sewage at the start has improved the Illinois River in these
respects to a noticeable extent. Formerly it was sluggish and ill
smelling. Now it is a comparatively clear stream to which edible
fish have returned. Its water is drunk by the fisherman, it is
said, without evil results."
Missouri v.
Illinois,
200 U. S. 496,
522 (1906).
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