426 U.S. 200 (1976), 74-1435, Environmental Protection Agency v. California ex rel.

Docket NºNo. 74-1435
Citation426 U.S. 200, 96 S.Ct. 2022, 48 L.Ed.2d 578
Party NameEnvironmental Protection Agency v. California ex rel.
Case DateJune 07, 1976
CourtUnited States Supreme Court

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426 U.S. 200 (1976)

96 S.Ct. 2022, 48 L.Ed.2d 578

Environmental Protection Agency


California ex rel.

No. 74-1435

United States Supreme Court

June 7, 1976

State Water Resources Control Board

Argued January 13, 1976




While federal installations discharging water pollutants are obliged, under § 313 of the Federal Water Pollution Control Act Amendments of 1972 (Amendments), to comply to the same extent as nonfederal facilities with state "requirements respecting control and abatement of pollution," obtaining a permit from a State with a federally approved permit program is not among such requirements. Federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous, Hancock v. Train, ante p. 167, and here the Amendments do not subject federal facilities to state permit requirements with the requisite degree of clarity. Pp. 211-228.

511 F.2d 963, reversed.

WHITE, J., delivered the opinion of the Court in which BURGER, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEWART and REHNQUIST, JJ., filed a dissenting statement, post, p. 228.

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WHITE, J., lead opinion

MR. JUSTICE WHITE delivered the opinion of the Court.

The issue in this case which arises under the Federal Water Pollution Control Act Amendments of 1972 (Amendments), 86 Stat. 816, 33 U.S.C. § 1251 et seq. (1970 ed., Supp. IV), is whether federal installations discharging water pollutants in a State with a federally approved permit program are to secure their permits from the State, or from the Environmental Protection

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Agency (EPA). As with the related Clean Air Act issue decided this day in Hancock v. Train, ante p. 167, decision of the specific statutory question -- whether obtaining a state permit is among those "requirements respecting control and abatement of pollution" with which federal facilities must comply under § 313 of the Amendments1 -- is informed by constitutional principles governing submission of federal installations to state regulatory authority.


Before it was amended in 1972, the Federal Water Pollution Control Act2 employed ambient water quality standards specifying the acceptable levels of pollution in a State's interstate navigable waters as the primary mechanism in its program for the control of water pollution.3 This program based on water quality standards, which were to serve both to guide performance by polluters and to trigger legal action to abate pollution, proved ineffective. The problems stemmed from the character of the standards themselves, which focused on the tolerable effects, rather than the preventable causes, of water pollution, from the awkwardly shared federal and state responsibility for promulgating such standards,4 and from the cumbrous enforcement procedures. These combined [96 S.Ct. 2024] to make it very difficult to develop and

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enforce standards to govern the conduct of individual polluters.

Some States developed water quality standards and plans to implement and enforce them, and some relied on discharge permit systems for enforcement. Others did not, and, to strengthen the abatement system, federal officials revived the Refuse Act of 1899, § 13, 30 Stat. 1152, 33 U.S.C. § 407, which prohibits the discharge of any matter into the Nation's navigable waters except with a federal permit.5 Although this direct approach to water pollution abatement proved helpful, it also was deficient in several respects: the goal of the discharge permit conditions was to achieve water quality standards, rather than to require individual polluters to minimize effluent discharge, the permit program was applied only to industrial polluters, some dischargers were required to obtain both federal and state permits, and federal permit authority was shared by two federal agencies.6

In 1972, prompted by the conclusion of the Senate Committee on Public Works that "the Federal water pollution control program . . . has been inadequate in every vital aspect,"7 Congress enacted the Amendments, declaring "the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985."8

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For present purposes, the Amendments introduced two major changes in the methods to set and enforce standards to abate and control water pollution. First, the Amendments are aimed at achieving maximum "effluent limitations" on "point sources," as well as achieving acceptable water quality standards. A point source is "any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged."9 An "effluent limitation," in turn, is

any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources . . . including schedules of compliance.10

Such direct restrictions on discharges facilitate enforcement by making it unnecessary to work backward from an over-polluted body of water to determine which point sources are responsible and which must be abated. In addition, a discharger's performance is now measured against strict technology-based11 effluent limitations -- specified levels of treatment -- to which it must conform, rather than against limitations derived from water

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quality standards to which it and other polluters must collectively conform.12

Second, the Amendments establish the National Pollutant Discharge Elimination System (NPDES)13 as a means of achieving and enforcing the effluent limitations. Under the NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms.14 An NPDES permit serves to transform generally applicable effluent limitations and other standards -- including those based on water quality -- into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits. §§ 309 and 505, 33 U.S.C. §§ 1319 and 1365 (1970 ed., Supp. IV). With few exceptions, for enforcement purposes, a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the Amendments on which the permit conditions are based. § 402(k), 33 U.S.C. § 1342(k) (1970 ed., Supp. IV). In short, the permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the Amendments.

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NPDES permits are secured, in the first instance, from the EPA, which issues permits under the authority of § 402(a)(1), 33 U.S.C. § 1342(a)(1) (1970 ed., Supp. IV). Section 402(a)(3) requires the EPA permit program and permits to conform to the "terms, conditions, and requirements" of § 402(b).15 Consonant

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with its policy "to [96 S.Ct. 2026] recognize, preserve, and protect the primary responsibilities and rights of States to prevent,

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reduce, and eliminate pollution,"16 Congress also provided that a State may issue NPDES permits "for discharges into navigable waters within its jurisdiction," but only upon EPA approval of the State's proposal to administer its own program. The EPA may require modification or revision of a submitted program, but when a plan is in compliance with the EPA's guidelines under § 304(h)(2), 33 U.S.C. § 1314(h)(2) (1970 ed., Supp. IV), and is supported by adequate authority to achieve the ends of §§ 402(b)(1)-(9), n. 15, supra, and to administer the described program, the EPA shall approve the program and "suspend the issuance of permits under [§ 402(a)] as to those navigable waters subject to such program."17

The EPA retains authority to review operation of a State's permit program. Unless the EPA waives review for particular classes of point sources or for a particular permit application, §§ 402(d)(3), (e), 33 U.S.C. §§ 1342(d)(3), (e) (1970 ed., Supp. IV), a State is to forward a copy of each permit application to the EPA for review, and no permit may issue if the EPA objects that issuance of the permit would be "outside the guidelines and requirements" of the Amendments. §§ 402(d)(1), (2), 33 U.S.C. §§ 1342(d)(1), (2) (1970 ed., Supp. IV). In addition to this review authority, after notice and opportunity to take action, the EPA may withdraw approval of a state permit program which is not being administered in compliance with § 402. § 402(c)(3), 33 U.S.C. § 1342(c)(3) (1970 ed., Supp. IV).

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The Amendments also sought to enlist "every Federal agency . . . to provide national leadership in the control of water pollution in [its] operations."18 To do so, 33 U.S.C. § 1171(a), which required federal agencies,

consistent with the paramount interest of the United States as determined by the President [to] insure compliance with applicable water quality standards,

was amended by adding § 313,19 providing that federal installations must

comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements.

33 U.S.C. § 1323 (1970 ed., Supp. IV).


On May 14, 1973, the Acting EPA Administrator approved the State of California's request to administer its own NPDES permit program and, effective that date, suspended EPA issuance of all permits for "all discharges in the State of California, other than those from agencies and instrumentalities of the Federal government." App. 18. Soon after this first approval of a state program and after correspondence exchanging views on a State's authority to issue permits to federal installations, the EPA informed the State of Washington that it "does not have the prerogative to delegate permit issuance for Federal facilities...

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