65 Ohio St. 3d 86 | Ohio | 1992
I
The present controversy centers on the application of the state antidegradation rule embodied in Ohio Adm.Code 3745-1-05. However, a thorough understanding of this regulation is impossible without considering the history of federal and state efforts to reduce widespread water pollution, the current statutory approach to the elimination of pollution and the role of the federal antidegradation standard in furthering this national policy. For a detailed history of federal legislation in this area, see Appendix.
The Water Quality Act of 1965, Pub.L. No. 89-234, 79 Stat. 903, required states to establish water quality standards, and authorized federal enforcement against polluters. Pollution control based on water quality standards was difficult due to the need to show that a particular source of pollution had reduced water quality below the standard.
Therefore, in 1972 Congress directly controlled the discharge of pollutants. Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92-500, 86 Stat. 816. The 1972 Amendments established a fundamentally different approach to prevention and abatement of water pollution. Rather than relying on water quality standards, the 1972 Act established effluent limits for all point sources of pollution. The effluent limits were incorporated into National Pollutant Discharge Elimination System (“NPDES”) permits issued to point sources.
Effluent limits were based on levels of technology. For existing private , industrial point sources, the least stringent level, to be attained by 1977, was the best practicable control technology currently available (“BPTCA”). Section 1311(b)(1)(A), Title 33, U.S.Code. The next level, to be achieved by 1983, was the best available technology economically achievable (“BATEA”). Section 1311(b)(2)(A), Title 33, U.S.Code.
In contrast to existing sources, new sources of pollution are required to use a higher level of technology, the best available demonstrated control technology (“BADCT”). Section 1316(a)(1), Title 33, U.S.Code. Unlike BPTCA and BATEA, BADCT is not determined by the best performer (BATEA) or the average of best performers (BPTCA) in an industrial category. Instead, it may be based on innovative processes on the forefront of science, engineering and technology.
Publicly owned treatment works (“POTWs”) are required by Sections 1311(b)(1)(B) and (C), Title 33, U.S.Code to use secondary treatment technologies, which are tantamount to the BPTCA. See Congressional Research Service, A Legislative History of the Water Pollution Control Act Amend
In addition to these technology-based direct limits on effluents, water quality standards remain as a basis for pollution control under the 1972 Amendments. If the required level of technology is insufficient to meet the applicable water quality standard, additional pollution control strategies must be employed. See Arkansas v. Oklahoma (1992), 503 U.S. -, 112 S.Ct. 1046, 117 L.Ed.2d 239.
Ohio water quality standards, as required by Section 1313(a), Title 33, U.S.Code, and R.C. 6111.041, are prescribed in Ohio Adm.Code Chapter 3745-1. Quantitative criteria state the maximum permissible concentrations of particular pollutants, or maximum mortality rates of waterborne organisms. Narrative criteria state actual and desired uses for bodies of water (such as warmwater habitats), and limit effluents to levels that protect these uses.
Federal law also requires states to adopt an antidegradation policy that protects high quality waters. In this regard, Section 131.12, Title 40, C.F.R. states as follows:
“(a) The State shall develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy pursuant to this subpart. The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following:
“(1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
“(2) Where the quality of the waters exceeds levels necessary to support propagation offish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.
“(3) Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.” (Emphasis added.)
“(A) Existing instream water uses as defined in rule 3745-1-07 of the Administrative Code and designated in rules 3745-1-08 to 3745-1-32 of the Administrative Code, shall be maintained and protected. No further water quality degradation which would interfere with or become injurious to existing designated uses is allowable.
“(B) Waters in which existing water quality is better than the criteria prescribed in these rules and exceeds those levels necessary to support propagation of fish, shellfish and wildlife and recreation in and on the water shall be maintained and protected. However, the director of Ohio environmental protection agency may, after compliance with public notice and intergovernmental coordination requirements listed at 40 CFR part 25 and part 29, and after due consideration of such technical, economic, social and other criteria as provided by sections 301 and 302 of the act, 33 U.S.C. sections 1311 and 1312, choose to allow lower water quality. Degradation of water quality shall not interfere with or become injurious to existing or planned uses, and the director shall require that the most stringent statutory and regulatory controls for waste treatment be employed by all new and existing point sources, and that feasible management or regulatory programs pursuant to sections 208 and 303 of the act, 33 U.S.C. sections 1288 and 1313, be applied to nonpoint sources.
“(C) ‘State resource waters’ are surface waters of the state that lie within national, state and metropolitan park systems, wetlands, and wildlife refuges, areas, and preserves, and also include wild, scenic and recreational rivers, publicly owned lakes and reservoirs and waters of exceptional recreational or ecological significance (e.g., waters which provide a habitat for identified threatened or endangered species) as determined by the director of Ohio environmental protection agency. Present ambient water quality in state resource waters will not be degraded for all substances determined to be toxic or to interfere with any designated use as determined by the director of Ohio environmental protection agency. All other substances shall be limited to the criteria associated with each designated use, as outlined in rules 3745-1-07 to 3745-1-32 of the Administrative Code. Areas that do not meet general water quality standards as defined in rules 3745-1-07 to 3745-1-32 of the Administrative Code shall not be degraded as stated above for all such classified areas.” (Emphasis added.)
Ohio Adm.Code 3745-1-09 designated Blacklick Creek as an exceptional warmwater habitat. Ohio Adm.Code 3745-1-07 provided in relevant part:
Thus, former Ohio Adm.Code 3745-1-07 recognized the distinction between water quality criteria associated with a particular use and the separate requirements of the state antidegradation policy. Likewise, Ohio Adm.Code 3745-1-09, which designated Blacklick Creek as an exceptional warmwater habitat, provides iri relevant part:
“(A) * * * Each water body may be assigned one or more water supply use designations and/or one recreational use designation. In addition, a water body may be designated as a state resource water as described in the antidegradation policy. The most stringent criteria associated with any one of the use designations assigned to a water body will a,pply to that water body." (Emphasis added.)
On February 4,1987, the Clean Water Act was amended. Pub.L. No. 100-4, 101 Stat. 7. Significantly, Congress specifically incorporated the antidegradation standard into law. Addressing the requirements for state water quality standards, the Water Quality Act of 1987 enacted new Subparagraph 303(d)(4)(B), Section 1313(d)(4)(B), Title 33, U.S.Code, which limited state revisions to such standards. This subparagraph provides:
“(4) Limitations on revision of certain effluent limitations.—
U * * *
“(B) Standard attained. — For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable water quality standards, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any water quality standard established under this section, or any other permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section." (Emphasis added.) 101 Stat. at 69.
The importance of this amendment, in addition to requiring states to incorporate the antidegradation policy into their water quality standards, is its recognition of the distinction between water quality sufficient to support a
The Ohio antidegradation policy is required by federal law, Section 1313(d)(4)(B), Title 33, U.S.Code; Section 131.6, Title 40, C.F.R., and state law, R.C. 6111.041; Northeast Ohio Regional Sewer Dist. v. Shank (1991), 58 Ohio St.3d 16, 21, 567 N.E.2d 993, 998, to conform to federal water quality standards. These standards require the establishment of an antidegradation policy that generally prohibits any deterioration of water quality even where the existing level exceeds that necessary to support a designated use. Nevertheless, appellants contend that Ohio Adm.Code 3745-1-05 permits deterioration to a point short of interference with the designated use.
This interpretation conflicts with federal law. The requirements of the Federal Clean Water Act are comprehensive and interconnected. The guiding principle of the Act is that discharge of pollutants into the waters of the nation is unlawful. As an exception to this general prohibition, the Act permits discharge where the point source possesses an NPDES permit authorizing the activity. The permit must, at minimum, incorporate the national technological control requirements applicable to the type of point source. In the case of POTWs, the technology generally required is that corresponding to the secondary treatment criteria prescribed by Section 301(b)(1)(B) of the Clean Water Act, Section 1311(b)(1)(B), Title 33, U.S.Code. However, the national technology-based standards constitute the minimum level of effluent control. Even where the prescribed technology is applied, a point source may not discharge effluent which would violate the applicable water quality standards. In the present case, the applicable water quality standard is the current ambient condition of Blacklick Creek inasmuch as the antidegradation policy establishes that quality as the benchmark. Generally, a permit that allows violation of a water quality standard is prohibited. However, Section 131.12, Title 40, C.F.R. allows limited degradation after compliance with the “public participation provisions of the State’s continuing planning process.” Ohio Adm.Code 3745-l-05(B) specifically refers to the public hearing requirement of Part 25, Title 40, C.F.R.
It is apparent, therefore, that federal law requires these procedural safeguards before degradation may be permitted. Moreover, even if considered in isolation, Ohio Adm.Code 3745-1-05 compels an identical result. Appellants •contend that they have complied with Ohio Adm.Code 3745-1-05 because their plants will employ the best available control technology economically achiev
Appellants interpret the term “existing water quality” in Ohio Adm.Code 3745-l-05(B) as meaning that which supports “existing designated uses” as that term is employed in Ohio Adm.Code 3745-l-05(A). The interpretation urged by appellants, however, would make subsections (A) and (B) of Ohio Adm.Code 3745-1-05 redundant and would render meaningless the language of subsection (B) that “[w]aters in which existing water quality is better than the criteria prescribed in these rules * * * shall be maintained and protected.” Thus, the only reasonable interpretation of Ohio Adm.Code 3745-l-05(B) is that it protects, as it clearly states, waters currently exceeding existing water quality standards.
While appellants disparage the court of appeals for employing language not contained in the rule, a perceptible change in water quality is clearly what Ohio Adm.Code 3745-l-05(B) was intended to prevent. Furthermore, their attempt to equate degradation of existing water quality with an interference with an existing use not only creates a redundancy but also renders the first and third sentences of subsection (B) inconsistent. The first sentence of subsection (B) provides a general rule against degradation of water quality. The second sentence provides that departure from this ideal may occur only after compliance with certain procedural requirements. The third sentence states that any permitted degradation is limited to that which occurs despite the most stringent statutory and regulatory controls for waste treatment.
Moreover, the Director and EBR have interpreted Ohio Adm.Code 3745-1-05 in such a manner that the designated use dictates the required level of technology. This interpretation violates the central principle of federal and state water pollution efforts since the adoption of the 1972 Amendments. Essentially, state environmental officials began with an erroneous frame of reference (i.e., water quality criteria associated with a designated use). From that, they derived a technological standard that limits pollutants to a level consistent with water quality criteria for exceptional warmwater habitats. This approach has numerous deficiencies. First, the analysis proceeds from a false premise that the applicable water quality standard is determined by the use designation rather than the antidegradation policy. Second, it presumes that effluent limitations are dictated by the assimilative capabilities of the receiving stream. However, water quality standards as the primary method of pollution abatement were expressly rejected by Congress in the 1972 Amendments. Rather, reference to water quality standards is appropriate only where use of the required technology results in violation of state water quality standards. Finally, the appropriate technology should be determined only after the public hearing and after limited degradation is allowed by state authorities.
Appellants argue that we must defer to the agency’s interpretation of the legislation and regulations it enforces. However, as observed by the United States Supreme Court:
“When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” (Footnote omitted.) Chevron U.S.A., Inc. v. Natural Resources
Consequently, where a statute or administrative regulation is unambiguous, there is no need for statutory construction.
We therefore reject the transpositional interpretation of the state antidegradation rule advanced by appellants and conclude that, pursuant to Ohio Adm.Code 3745-1-05, the Ohio Director of Environmental Protection may not issue a permit authorizing an activity that would degrade waters which exceed water quality standards unless (1) he has complied with the public notice and intergovernmental coordination requirements of Parts 25 and 29, Title 40, C.F.R., (2) he has conducted a public hearing to consider the technical, economic and social criteria provided in Sections 1311 and 1312, Title 33, U.S.Code, and (3) as a result of the public hearing, he has chosen to allow lower water quality in the receiving stream. Where this determination has been made, the degradation of water quality must be kept to an absolute minimum by the employment of the most stringent statutory and regulatory controls for waste treatment and under no circumstances may such degradation interfere with or become injurious to any existing or planned uses of the receiving waters.
The “degradation” of high quality waters within the meaning of Ohio Adm.Code 3745-1-05 occurs whenever the permitted activity increases the amount of pollutants.
II
Our decision today therefore necessitates that the present cause be remanded to the Director for a public hearing pursuant to Ohio Adm.Code 3745-1-
“Prior to establishment of any effluent limitation pursuant to subsection (a) of this section, the Administrator shall issue notice of intent to establish such limitation and within ninety days of such notice hold a public hearing to determine the relationship of the economic and social costs of achieving any such limitation or limitations, including any economic or social dislocation in the affected community or communities, to the social and economic benefits to be obtained (including the attainment of the objective of this chapter) and to determine whether or not such effluent limitations can be implemented with available technology or other alternative control strategies." (Emphasis added.) Former Section 302(b)(1) of the Act, 86 Stat. 846, superseded. by Pub.L. No. 100-4, 101 Stat. at 39, now codified at Section 1312(b)(1), Title 33, U.S.Code.
The exception to antidegradation contained in Ohio Adm.Code 3745-l-05(B) is narrow. Moreover, during any de novo proceeding which could result in the issuance of an NPDES permit, the burden of proof is upon the applicant to establish that it was reasonable for the Director to find that the conditions for its issuance have been met.
Furthermore, in considering economic and social factors, the Director should not limit his inquiry to effects upon the locality served by the facilities. Rather, these considerations necessarily involve the impact of various alternatives on the greater community. See Van Putten & Jackson, supra, 19 U.MichJ.L.Ref. at 899. The alternative of centralized treatment has many economic, environmental and public policy attributes. Most notable is the Congressional intent to promote centralization. In this regard, Section 101(a)(5) of the Clean Water Act, Section 1251(a)(5), Title 33, U.S.Code, provides:
“[I]t is the national policy that areawide waste treatment management planning processes be developed and implemented to assure adequate control of sources of pollutants in each State[.]” See, also, Sections 1281(a) and (c), 1288(b)(1), (b)(2)(C)(i) and (c)(1), Title 33, U.S.Code, discussed supra.
The policy favoring centralization pervades the Clean Water Act. See Chemical Manufacturers Assn. v. United States Environmental Protection Agency (C.A.5, 1989), 870 F.2d 177, 195. In particular, Section 208(e) of the Act, Section 1288(e), Title 33, U.S.Code, provides that no NPDES permit may be issued which conflicts with an areawide wastewater treatment plan.
Moreover, any consideration of economic and social criteria must not disregard the substantial investment by federal, state and local governments in developing areawide waste treatment systems. In Ohio alone, approximately $4 billion in public funds have been invested to upgrade such systems. See OEPA Ohio Water Resource Inventory, Executive Summary (1992) 3. Since 1970, these investments have dramatically improved Ohio water quality. Id. The elimination of the Reynoldsburg treatment plant on Blacklick Creek was
The social and environmental consequences of ignoring the crucial role of centralized wastewater treatment in the development of the Columbus metropolitan area cannot be overstated. In particular, the remarkable improvement in the Scioto River south of the Columbus Southerly and Jackson Pike facilities, id. at 5, is as much a function of local as of federal investment. This local share, based as it is on the contributions of the numerous ratepayers of the Columbus system, allows Columbus to spread the cost of needed improvements over many customers and to achieve the economies of scale necessary to invest in advanced treatment technologies.
Ill
The public hearing to which Ohio Adm.Code 3745-l-05(B) refers is directed to ascertaining whether social and economic factors justify limited degradation of high quality waters. Where the Director finds that these factors justify such degradation, he “shall require that the most stringent statutory and regulatory controls for waste treatment be employed by all new and existing point sources.” Appellants do not dispute that Ohio Adm.Code 3745-1-05(B) demands technology beyond that required when the receiving waters
In considering appellants’ arguments, we must therefore determine when the appropriate level of technology is ascertained, how it is ascertained and what form it ultimately takes.
The answer to the first inquiry is provided by Ohio Adm.Code 3745-l-05(B). The relevant technology is determined only after a public hearing has resulted in a decision to allow limited degradation of high quality waters.
How the technology is determined is governed by the Clean Water Act and state antidegradation policies. The Act generally precludes any effluent discharge which would adversely affect high quality waters. As a narrow exception, Ohio Adm.Code 3745-l-05(B) and its federal counterpart permit degradation, but only contingent upon use of the most stringent statutory and regulatory controls.
Accordingly, the rule also provides an answer as to what “the most stringent statutory and regulatory controls” means. While appellants concede that this language mandates a high level of technology, they insist that the required technology is BATEA. However, since the 1977 amendments to the Act, BATEA is no longer applicable to conventional pollutants. Moreover, BATEA is not the most stringent level of control required by Ohio Adm.Code 3745-l-05(B) and its federal counterpart. Accordingly, the appropriate level of technology applicable to a new point source proposed to be located on a high quality body of water is that represented by BADCT.
Accordingly, a lack of national new-source performance standards for domestic wastewater treatment does not prevent the development of site-specific effluent limitations based on BADCT. See E.I. du Pont de Nemours & Co. v. Train (1977), 430 U.S. 112, 122, 97 S.Ct. 965, 972, 51 L.Ed.2d 204, 213-314. The director of a state agency to which the federal government has delegated the authority to issue permits enjoys the same authority as the Administrator of USEPA. See Section 1342(b), Title 33, U.S.Code. Such authority includes the ability to condition the permit on technological standards which exceed national standards when necessary to address site-specific concerns including water quality criteria. Likewise, the Administrator may
In determining the appropriate technology, the Director is required to consider its costs. Section 1316(b)(1)(B), Title 33, U.S.Code.
This standard would likewise apply to the determination of BADCT in this case. However, the regulatory authority is to consider cost on an industry-wide basis and is not to limit its analysis to the financial ability of the individual discharger. Chemical Manufacturers Assn. v. United States Environmental Protection Agency, supra, 870 F.2d at 219-220, fn. 157, and 262. Moreover, it has been held that cost is less of a factor for new sources than for existing sources. Id. at 196. Additionally, the expense of the technology is not to be weighed against the water quality benefits to be derived therefrom. Rather, the regulatory authority “must consider only ‘the cost of achieving such effluent reduction.’ ” Am. Paper Inst. v. Train, supra, 543 F.2d at 338-339. See, also, Reynolds Metals Co. v. United States Environmental Protection Agency, supra, 760 F.2d at 565. It is therefore immaterial that small dischargers may be unable to afford the necessary technology where other members of the affected industry are able to do so.
Accordingly, we further conclude that the most stringent statutory and regulatory controls for waste treatment to which Ohio Adm.Code 3745-1-05 refers constitute that level of technology applicable to new sources of pollution which achieves the greatest reduction of pollutants. Where the USEPA
IV
The final argument advanced by appellants concerns the timing of the foregoing process. Specifically, appellants contend that the public hearing requirement, the economic and social criteria analysis and the subsequent determination of the appropriate statutory and regulatory controls must precede only the issuance of the NPDES permit and not the issuance of a permit to install a treatment facility. In support of this view, appellants maintain that the reference in Ohio Adm.Code 3745-1-05(B) to federal law evidences the agency’s intent that the rule applies only to an NPDES permit. This is so, appellants argue, because NPDES permits are required by federal law while permits to install are creatures of state law. The argument of appellants is without merit. Ohio Adm.Code 3745-1-05, a state regulation, cannot control a federal permit process. Second, there is absolutely nothing in Ohio Adm.Code 3745-1-05 suggesting that the antidegradation inquiry should be delayed until the NPDES permit is considered. Rather, Ohio Adm.Code 3745-31-02(A) requires that an application for a permit to install a disposal system include the plans therefor. Obviously, these plans cannot be approved until the analysis required by Ohio Adm.Code 3745-1-05 has been conducted. Finally, the policy reasons cited by the court of appeals are extremely persuasive. It would indeed be a waste of resources and a distortion of the regulatory process if such an inquiry was undertaken only after a plant is built. Such an interpretation of Ohio Adm.Code 3745-1-05 would also contradict a central premise of the Clean Water Act — that the greatest level of effluent reduction possible should be incorporated into a new facility at the design stage. See Hines, supra, 62 Iowa L.Rev. at 701.
We therefore hold that the public hearing requirement to which Ohio Adm.Code 3745-1-05 refers must be satisfied before a permit may be issued to install a new source of pollution pursuant to Ohio Adm.Code 3745-31-02(A).
V
In summary, the antidegradation policy embodied in Ohio Adm.Code 3745-1-05 cannot be fully understood without considering its federal counterpart and the history and purposes of the Clean Water Act. The unambiguous meaning of the state and federal rules is that any deterioration of high quality waters violates the policy. The existing ambient condition of the receiving
Accordingly, the judgment of the court of appeals is affirmed and the cause is remanded to the Director for proceedings not inconsistent with this opinion.
Judgment affirmed and cause remanded.
APPENDIX
A History of Federal Water Pollution Control Legislation
The United States Congress initially attempted to pursue nationwide action against deteriorating water quality by enacting the Federal Water Pollution Control Act on June 30, 1948. 62 Stat. 1155, codified at former Section 1151 et seq., Title 33, U.S.Code. The approach relied upon the states to establish water quality standards failed to provide for any federal review or enforcement and limited the role of the national government to funding state water pollution control activities and providing technical assistance. See Gaba, Federal Supervision of State Water Quality Standards under the Clean Water Act (1983), 36 Vand.L.Rev. 1167, 1177.
To correct the perceived deficiencies in the Water Pollution Control Act of 1948, Congress revised it in 1965. Water Quality Act of 1965, Pub.L. No. 89-234, 79 Stat. 903.
“The purpose of this Act is to enhance the quality and value of our water resources and to establish a national policy for the prevention, control, and abatement of water pollution.” (Emphasis added.)
The 1965 amendments required states to adopt water quality standards and prescribed federal review and enforcement of these standards. Gaba, supra, 36 Vand.L.Rev. at 1177-1178. The Water Quality Act of 1965 further required states to obtain federal approval of water quality standards and the plans for their implementation and enforcement. Id. at 1178.
Section 5(a) of the 1965 Act provided guidance to state and federal authorities regarding the establishment of water quality standards. It provided in part:
“Standards of quality established pursuant to this subsection shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this Act. In establishing such standards the Secretary, the Hearing Board, or the appropriate State authority shall take into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other legitimate uses.” (Emphasis added.) 79 Stat. at 908.
While the Water Quality Act of 1965 sought to abate and prevent water pollution, it did not expressly address the preservation of high quality waters in their natural state. Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clean Air and Clean Water (1977), 62 Iowa L.Rev. 643, 658. Nevertheless, in May 1966, the United States Department of the Interior promulgated guidelines addressing this issue. See U.S. Department of the Interior Federal Water Pollution Control Administration, Guidelines for Establishing Water Quality Standards for Interstate Waters (1966). The guidelines unequivocally provided for maintenance and protection of waters of exceptional quality.
“ ‘Water whose existing quality is better than the established standards as of the date on which such standards become effective will be maintained at their existing high quality. These and other waters of a State mil not be lowered in quality unless and until it has been affirmatively demonstrated to the State water pollution control agency and the Department of the Interior that such change is justifiable as a result of necessary economic or social development and will not interfere with or become injurious to any assigned vises made of or presently possible in, such waters. This will require that any industrial, public or private project or development which would constitute a new source of pollution or an increased source of pollution to high quality waters will be required, as part of the initial project design, to provide the highest and best degree of waste treatment available under existing technology, and, since these are also Federal standards, these waste treatment requirements will be developed cooperatively.’ ” (Emphasis added.) U.S. Department of the Interior Federal Water Pollution Control Administration, Compendium of Department of the Interior Statements on Non-degradation of Interstate Waters (Aug. 1968) 1-2, as quoted in Hines, supra, 62 Iowa L.Rev. at 659, fn. 53.
Every state had incorporated an approved version of the antidegradation requirement into its water quality standards within four years of the announcement of the policy by Secretary Udall. See Hines, supra, 62 Iowa L.Rev. at 659-660; Note, Nondegradation of Water Quality: The Need for Effective Action (1975), 50 Notre Dame Law. 890, 893. On July 9, 1970, the United States Environmental Protection Agency (“USEPA”) was created. Effective December 2, 1970, the agency assumed responsibility for the enforcement of the Water Quality Act of 1965. Reorganization Plan No. 3 of 1970, 84 Stat. 2086, 2087, Section 2(1).
Meanwhile, Congress had begun to reassess the national water pollution control effort. Despite the expanded federal role in the enforcement of state water quality standards, there was widespread concern that substantial progress toward the goals of the 1965 Act had not been made. See Gaba, supra, 36 Vand.L.Rev. at 1179; Pedersen, Turning the Tide on Water Quality (1988), 15 Ecology L.Q. 69, 75. Dissatisfaction with the Water Quality Act was attributable, in part, to the cumbersome process for developing enforceable federal water quality standards. See Gaba, supra, 36 Vand.L.Rev. at 1178-1179; Pedersen, supra, 15 Ecology L.Q. at 74; Montgomery Environmental Coalition v. Costle (C.A.D.C.1980), 646 F.2d 568, 574; Natural Resources Defense Council v. United States Environmental Protection Agency (C.A.9, 1990), 915 F.2d 1314, 1316. However, the major deficiency in the 1965 Act was its fundamental reliance on water quality standards as the mechanism for
Accordingly, significant revisions were proposed. The result was the Federal Water Pollution Control Act Amendments of 1972. Pub.L. No. 92-500, 86 Stat. 816. While characterized as amendments, what emerged was a major departure from past attempts to protect water quality. See Am. Frozen Food Inst. v. Train (C.A.D.C.1976), 539 F.2d 107, 115. At the outset, the 1972 Amendments set forth a general prohibition against water pollution. Pub.L. No. 92-500, Section 301(a), 86 Stat. 816, 844. The focus of the 1972 Act was therefore upon the discharge of pollutants rather than their effect upon the receiving waters. Thus, it has been observed that:
“With the 1972 Amendments, Congress departed radically from past federal approaches to water pollution control. Congress abandoned the underlying premise of all previous federal water pollution control policies — that water
The 1972 Amendments used significantly different language in describing the purposes of the Act. The Water Quality Act of 1965 had provided as follows:
“The purpose of this Act is to enhance the quality and value of our water resources and to establish a national policy for the prevention, control, and abatement of water pollution.” (Emphasis added.) Pub.L. No. 89-234, Section 1(a), 79 Stat. 903.
In contrast, the 1972 Amendments announced the following policy:
“The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. * * * ” (Emphasis added.) Pub.L. No. 92-500, Section 101(a), 86 Stat. 816.
While it could be argued that the 1965 Act had already authorized an antidegradation standard by establishing “a national policy for the prevention * * * of water pollution,” the 1972 Amendments expressly adopted the antidegradation policy by proclaiming as their objective the restoration and maintenance of “the chemical, physical and biological integrity of the Nation’s waters.” This view is underscored by the Senate Public Works Committee Report on the 1972 Amendments, wherein it was observed:
“Maintenance of such integrity requires that any changes in the environment resulting in a physical, chemical or biological change in a pristine water body be of a temporary nature, such that by natural processes, within a few hours, days or weeks, the aquatic ecosystem will return to a state functionally identical to the original.” S.Rep. No. 414, 92d Cong., 2d Sess. 76 (1971), reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3742.
The 1972 Amendments established a fundamentally different approach to water pollution prevention and abatement. Rather than relying upon ambient water quality as the measure of compliance, the 1972 Act established effluent limitations with respect to all “point sources” of pollution.
In this respect:
“ ‘The term “total cost of application of technology” as used in section 304(b)(1)(B) is meant to include those internal, or plant, costs sustained by the owner or operator and those external costs such as potential unemployment, dislocation, and rural area economic development sustained by the community, area, or region.’ ” (Emphasis added.) Congressional Research Service, A Legislative History of the Water Pollution Control Act Amend
Generally, the BPTCA limitations require the implementation of technologies which “represent the average of the best levels of performance by existing plants of various sizes, ages, and unit processes within the category or subcategory for control of conventional pollutants.” Chemical Manufacturers Assn. v. United States Environmental Protection Agency (C.A.5, 1989), 870 F.2d 177, 203. See, also, E.I. du Pont de Nemours & Co. v. Train (1977), 430 U.S. 112, 131, 97 S.Ct. 965, 976, 51 L.Ed.2d 204, 219, fn. 21.
The BPTCA standard is the minimum level of technology required of point sources under the Act. Am. Iron & Steel Inst. v. United States Environmental Protection Agency (C.A.3, 1975), 526 F.2d 1027, 1057; Am. Paper Inst. v. Train (C.A.D.C.1976), 543 F.2d 328, 334.
Section 301(b)(2)(A) of the Act, codified in part at Section 1311(b)(2)(A), Title 33, U.S.Code, prescribed that existing sources of water pollution achieve effluent limitations obtainable through the employment of the best available technology economically achievable (“BATEA”) not later than July 1, 1983. Section 304(b)(2)(B) of the Act, Section 1314(b)(2)(B), Title 33, U.S.Code, directs the Administrator to determine BATEA by considering factors which “take into account the age of equipment and facilities involved, the process employed, the engineering aspects of the application of various types of control techniques, process changes, the cost of achieving such effluent reduction, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems appropriate[.]”
In contrast to the BPTCA standard, the BATEA standard requires that level of pollution reduction achieved by “the best performer in an industrial category.” Chemical Manufacturers Assn. v. Natural Resources Defense Council (1985), 470 U.S. 116, 155, 105 S.Ct. 1102, 1123, 84 L.Ed.2d 90, 117 (Marshall, J., dissenting). See, also, Am. Frozen Food Inst. v. Train, supra, 539 F.2d at 119.
With respect to the costs of compliance, the BATEA standard likewise differs from that applicable to BPTCA. Unlike BPTCA, the costs associated with BATEA do not depend upon the financial ability of the individual discharger to comply but rather upon the financial ability of the industry in general.
“The term ‘standard of performance’ means a standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants." (Emphasis added.)
As is evident from the plain language of Section 306(a)(1), the “best available demonstrated control technology” (“BADCT”) standard required the greatest degree of effluent reduction technologically feasible. E.I. du Pont de Nemours & Co. v. Train, supra, 430 U.S. at 120-121, 97 S.Ct. at 971, 51 L.Ed.2d at 213. It therefore establishes a level of technology which differs significantly from the BPTCA and BATEA standards applicable to existing sources of pollution. Id. This view is underscored by the enactment by Congress of a separate section of the 1972 Amendments (i.e., Section 306) dealing specifically with new pollution sources. As one court has observed:
“Intuitively, there is some force to the observation that Congress would not have devised a completely new statutory scheme for regulation of new sources if it intended that the effluent standards for such plants would be identical to those required for existing sources.” Chemical Manufacturers Assn. v. United States Environmental Protection Agency, supra, 870 F.2d at 263.
The BADCT standard is the most stringent level of pollution control technology mandated by the Act. Am. Paper Inst. v. Train, supra, 543 F.2d at 334; Am. Iron & Steel Inst. v. United States Environmental Protection Agency, supra, 526 F.2d at 1059. The imposition of more exacting technologi
Because of the advantages of addressing pollution control requirements at the design stage, the cost of compliance becomes less of a factor in establishing the technology for a new source of pollution.
Section 306(b)(1)(A) of the 1972 Act, Section 1316(b)(1)(A), Title 33, U.S.Code, identifies the industries for which the Administrator is to develop standards of performance. Among the standards developed for particular industries were effluent limitations for conventional pollutants. See, e.g., Chemical Manufacturers Assn. v. United States Environmental Protection Agency, supra, 870
In addition to the standards established for private industrial dischargers, Sections 301(b)(1)(B) and (C) of the 1972 Act, Sections 1311(b)(1)(B) and (C), Title 33, U.S.Code, prescribe effluent limitations for publicly owned treatment works (“POTWs”). These sections provide:
“In order to carry out the objective of this Act there shall be achieved—
<( * * *
“(B) for publicly owned treatment works in existence on July 1, 1977, or approved pursuant to section 203 of this Act prior to June 30, 1974 (for which construction must be completed within four years of approval), effluent limitations based upon secondary treatment as defined by the Administrator pursuant to section 304(d)(1) of this Act; or,
“(C) not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 510) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this Act." (Emphasis added.)
Thus, in contradistinction to private point sources, POTWs are generally required to meet the level of effluent reduction achievable through the use of “secondary treatment” technologies.
The technology-based standards prescribed by the 1972 Amendments create nationally uniform obligations independent of any applicable water quality criteria. See Consolidation Coal Co. v. Costle (C.A.4, 1979), 604 F.2d 239, 245, reversed on other grounds sub nom. United States Environmental Protection Agency v. Natl. Crushed Stone Assn. (1980), 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268. See, also, Pedersen, supra, 15 Ecology L.Q. at 76, fn. 36.
Accordingly, the technology-based requirements applicable to a particular point source constitute the minimum level of effluent reduction required. See, generally, Van Putten & Jackson, supra, 19 U.MichJ.L.Ref. at 880. Where the nationally uniform technological standards are insufficient to meet applicable water quality criteria, additional controls must be employed. See Arkansas v. Oklahoma, supra, 503 U.S. -, 112 S.Ct. 1046, 117 L.Ed.2d 239; Natural Resources Defense Council v. United States Environmental Protection Agency (C.A.9, 1990), 915 F.2d 1314, 1317. Section 303(a) of the 1972 Act, Section 1313(a), Title 33, U.S. Code, directs the states to adopt water quality standards, provides for federal review of the standards and authorizes the Administrator to adopt standards where the state has failed to comply.
The Act “divides water quality standards into uses and criteria. ‘Uses’ are the functions — such as recreation, irrigation, or provision of wildlife habitat— that the state has assigned a given body of water. ‘Criteria’ are the technical judgments as to the specific pollution levels that are compatible with those uses.” Pedersen, supra, 15 Ecology L.Q. at 92-93.
Water quality criteria generally assume three forms. The criteria may be expressed in numerical terms reflecting the maximum permissible concentration of a particular pollutant in the receiving water. The criteria may be expressed in terms of bioassay results which reflect mortality rates of certain water-borne organisms relative to the concentration levels of particular pollutants. Finally, the criteria may be narrative in nature and limit, for example, the concentrations of discharged substances to a level below that which produces adverse effects in humans, animals or plants. See Gaba, supra, 36 Vand.L.Rev. at 1205.
The 1972 Amendments also provided financial assistance to POTWs for construction of areawide treatment facilities. Section 201(a) of the Act, Section 1281(a), Title 33, U.S. Code, sets forth the purpose behind the construction grant program established by the 1972 Amendments. It provides:
“It is the purpose of this title to require and to assist the development and implementation of waste treatment management plans and practices which will achieve the goals of this Act.”
Section 201(c) of the Act, Section 1281(c), Title 33, U.S. Code, provides further:
“To the extent practicable, waste treatment management shall be on an areawide basis and provide control or treatment of all point and nonpoint sources of pollution, including in place or accumulated pollution sources.”
Section 201(g)(1) of the Act, Section 1281(g)(1), Title 33, U.S. Code, authorizes the Administrator to award grants “to any State, municipality, or intermunicipal or interstate agency for the construction of publicly owned treatment works.” The amount of these grants was then set at seventy-five percent of the construction cost. See Section 202(a) of the Act, Section 1282(a)(1), Title 33, U.S. Code. Section 204(a)(1) of the Act, now codified as amended at Section 1284(a)(1), Title 33, U.S. Code, conditions grants upon compliance with any required areawide waste treatment management plan developed pursuant to Section 208 of the Act. Section 207 of the Act, Section 1287, Title 33, U.S. Code, authorized initial appropriations for the construction grant program of up to $5 billion for fiscal year 1973, up to $6 billion for fiscal year 1974 and up to $7 billion for fiscal year 1975.
Appellee city of Columbus has been designated the areawide waste treatment management agency for the region in which the JWSD and Lionmark plants would be sited. Section 208(d) of the 1972 Act, Section 1288(d), Title 33, U.S. Code, restricts grants available under Section 201(g)(1) to those facilities which conform to a Section 208 plan. Moreover, Section 208(f)(2), Section 1288(f)(2), Title 33, U.S. Code, provided for federal funding of all of the cost of the planning process for fiscal years 1973, 1974 and 1975, and up to seventy-five percent thereafter. Finally, Section 208(f)(3), Section 1288(f)(3), Title 33, U.S. Code, authorized initial appropriations of up to $50 million for fiscal year 1973, up to $100 million for fiscal year 1974 and $150 million for fiscal year 1975.
On March 11, 1974, pursuant to Section 402(b) of the 1972 Act, Section 1342(b), Title 33, U.S. Code, the OEPA was authorized to administer the NPDES permit program within the state. 39 F.R. 26061. On July 10, 1975, the USEPA proposed rules for preparing state water quality management plans. The rules required that states incorporate within these plans an antidegradation policy consistent with the policy announced by the Department of the Interior.
Effective July 25,1980, R.C. 6111.041 was enacted in its present version. It provides in relevant part:
“In furtherance of sections 6111.01 to 6111.08 of the Revised Code, the director of environmental protection shall adopt standards of water quality to be applicable to the waters of the state. Such standards shall be adopted pursuant to a schedule established, and from time to time amended, by the director, to apply to the various waters of the state, in accordance with Chapter 119. of the Revised Code. Such standards shall be adopted in accordance with section 303 of the ‘Federal Water Pollution Control Act’ and shall be designed to improve and maintain the quality of such waters for the purpose of protecting the public health and welfare, and to enable the present and planned use of such waters for public water supplies, industrial and agricultural needs, propagation of fish, aquatic life, and wildlife, and recreational purposes.” (Emphasis added.)
“(a) The State shall develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy pursuant to this subpart. The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following:
“(1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
“(2) Where the quality of the waters exceed[s] levels necessary to support propagation offish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.
“(3) Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.” (Emphasis added.)
This provision differs in many important respects from the rule originally proposed by the agency. First, the USEPA had proposed to limit the antidegradation policy to the protection of existing uses. After public comment, this proposal was rejected and the agency retained the language of former Section 131.12, Title 40, C.F.R., protecting both uses and water quality. See 48 F.R. 51402. Second, the agency amended Section 131.12(a)(2), Title 40, C.F.R. to provide that, where the state has allowed existing water quality to degrade, it must ensure that the remaining quality is sufficient “to protect existing uses fully.” The agency commented that:
“This means that the full use must continue to exist even if some change in water quality may be permitted.” 48 F.R. 51403.
Third, the agency had proposed that the states be authorized to allow limited degradation of high quality waters when necessary to accommodate “significant economic or social development.” (Emphasis added.) The rule
“In the context of the antidegradation policy the word ‘important’ strengthens the intent of protecting higher quality waters. Although common usage of the words may imply otherwise, the correct definitions of the two terms indicate that the greater degree of environmental protection is afforded by the word ‘important.’” 48 F.R. 51403.
Finally, USEPA clarified Section 131.12(a)(3), Title 40, C.F.R. The agency remarked that:
“ * * * § 131.12(a)(3) dealing with the designation of outstanding National resource waters (ONRW) was changed to provide a limited exception to the absolute ‘no degradation’ requirement. EPA was concerned that waters which properly could have been designated as ONRW were not being so designated because of the flat no degradation provision, and therefore were not being given special protection. The no degradation provision was sometimes interpreted as prohibiting any activity (including temporary or short-term) from being conducted. States may allow some limited activities which result in temporary and short-term changes in water quality. Such activities are considered to be consistent with the intent and purpose of an ONRW. Therefore, EPA has rewritten the provision to read ‘ * * * that water quality shall be maintained and protected,’ and removed the phrase ‘No degradation shall be allowed * * *.’ ” (Emphasis sic.) 48 F.R. 51403.
The agency’s departure from the proposed rule significantly strengthened it. The reference to protecting existing uses fully where limited water quality degradation is permitted underscores the distinction between preservation of existing water quality and protection of existing uses. Plainly, these are not synonymous concepts to the federal agency which drafted the rule.
Despite this regulatory history, it has been urged that “degradation” means only deterioration of water quality below a level protective of an existing use. Courts and commentators have rejected this argument. See Oklahoma v. United States Environmental Protection Agency, supra, 908 F.2d at 618; Gaba, supra, 36 Vand.L.R. at 1192-1193; Note, supra, 50 Notre Dame Law. at 900, fn. 82. This consensus is largely a product of the legislative history of the Clean Water Act and the actions taken by the USEPA to enforce the policy. See, e.g., West Virginia Coal Assn. v. Reilly (S.D.W.Va.1989), 728 F.Supp. 1276, 1290; Van Putten & Jackson, supra, 19 U.Mich.J.L.Ref. at 893, fn. 127. Given this legislative and administrative background, the federal antidegradation regulation has been concisely summarized as follows:
“First, all existing uses and the level of water quality necessary to protect those uses must be maintained. This tier established the ‘absolute floor’ of water quality in all waters in the United States. The second tier provides protection of actual water quality in areas where the quality exceeds levels necessary to support the existing uses. States may allow exceptions for limited degradation of these ‘high quality waters’ after extensive public involvement, as long as existing uses are fully protected. The third and highest level of protection is for waters that the states designate as ‘Outstanding National Resource Waters’ (ONRW). Only ‘temporary and short-term changes’ in water quality are permitted in ONRW.” Anderson, supra, 17 Envtl.L. at 620-621.
In addition to incorporating a national antidegradation policy into USEPA regulations, Section 131.6, Title 40, C.F.R. also explicitly prescribes minimum requirements for state water quality standards. In particular, Section 131.6 provides:
“The following elements must be included in each State’s water quality standards submitted to EPA for review:
it * * *
“(d) An antidegradation policy consistent with § 131.12.”
. The court of appeals derived the perceptible change standard from the decision of the Tenth Circuit Court of Appeals in Oklahoma v. United States Environmental Protection Agency (C.A.10, 1990), 908 F.2d 595. The previous discussion reveals our belief that this standard is consistent with federal statutory law, federal administrative regulations and the decisions of the state and federal courts which have considered the issue. We are not unmindful of the reversal of the Tenth Circuit judgment by the United States Supreme Court in Arkansas v. Oklahoma, supra, 503 U.S. -, 112 S.Ct. 1046, 117 L.Ed.2d 239. However, a careful reading of the latter decision reveals that the Supreme Court did not disagree with the perceptible change standard.
. Conversely, where uncertainty exists regarding legislative or administrative intent in the drafting of a statute or regulation, all rules of construction are available to assist a reviewing court. In the present context, such aids would include the rule of construction that environ- . mental statutes are to be liberally construed to effect their purposes. See United States v. Johnson & Towers, Inc. (C.A.3, 1984), 741 F.2d 662, 666; United States v. Frezzo Bros., Inc. (C.A.3, 1979), 602 F.2d 1123, 1128.
. Since the adoption of Ohio Adm.Code 3745-1-05 on April 4, 1985, Section 1312(b)(1), Title 33, U.S.Code has been amended, effective February 4, 1987, altering the public hearing requirement. Pub.L. No. 100-4, 101 Stat. 7, 39-40. However, inasmuch as the rule was based on the earlier federal statute and the rule has not been amended since the statute’s amendment, we must interpret the rule in accordance with the statute in effect when the rule was adopted.
. Accordingly, the EBR erred in concluding that appellees, as challengers to the issuance to the permit, bore the burden of proof.
. Indeed, one of the witnesses for appellants acknowledged that denitrification would achieve a higher quality of effluent than that produced by the proposed facilities.
The witness further acknowledged that such technology was in use at larger plants. However, the witness stated that denitrification was rejected for the facilities in question because the limited capacity of these facilities did not justify the expense. The ability of large areawide treatment plants such as the Columbus Southerly facility to purchase such technologies is one major reason that such plants are promoted by the Clean Water Act. In any event, denitrification is clearly an available and proven technology which must be considered in the development of BADCT for the JWSD and Lionmark facilities. See Armco, Inc. v. United States Environmental Protection Agency (C.A.6, 1989), 869 F.2d 975, 981.
. This acknowledgment appears to conflict with the testimony adduced before the EBR. A witness who testified for appellants remarked that the facilities in question employed “conventional” technology. See fn. 15, supra. If, by this statement, the witness was suggesting that the facilities can achieve a level of effluent reduction which corresponds to secondary treatment standards, that level does not meet the requirement of Ohio Adm.Code 3745-l-05(B) that the most stringent statutory and regulatory controls be employed. Conventional plants employing secondary treatment technologies have achieved the minimum level of effluent control, not the mcudmum level required by the rule.
. Indeed, as one commentator has observed:
“Any new source of pollutant discharge must achieve effluent reduction reflecting ‘best available demonstrated control technology (hereinafter BADCT).’ EPA has published regulations defining effluent limits which reflect BADCT for various industrial categories. The Udall nondegradation statement does not prohibit new discharge into high-quality waters, but only
. Stricter effluent standards applicable to POTWs are clearly envisioned by the Act. See Section 1311(b)(1)(C), Title 33, U.S. Code. Technology sufficient to achieve these standards is promoted by the federal grant program under Section 201 of the Clean Water Act, Section 1281(g)(2)(A), Title 33, U.S. Code. This level of technology was originally required of all POTWs by July 1, 1983. See Section 301(b)(2)(B), Federal Water Pollution Control Act Amendments of 1972, 86 Stat. 816, 845. While this requirement was removed from the Clean Water Act by the 1981 Amendments, 95 Stat. 1623, 1632, it nevertheless continues to represent a level of technology capable of achieving a greater degree of effluent control.
. Such examples are for illustrative purposes only. Obviously, the benchmark remains BADCT. Thus, it is the duty of the Director, in the first instance, to determine the level of technology which achieves the greatest degree of pollution reduction. This determination would be made only after the Director, following the public hearing, has allowed limited degradation of high quality waters to occur. It is at this stage of the process that he would consider an application for a permit to install.
. For example, the record before the EBR indicated that denitrification was effective in further reducing the amount of ammonia discharged to a receiving stream. Denitrification not only is a demonstrated technology but is actually in operation in Columbus.
. The technological standard with which appellants would normally be required to comply is an effluent limitation achievable through employment of secondary treatment. We assume that the facilities in question have attained this standard.
. The agency responsible for the implementation of the Water Quality Act of 1965 was the Federal Water Pollution Control Administration, Department of the Interior. See Gaba, supra, at 1179-1180, fn. 66; Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clean Air and Clean Water (1977), 62 Iowa L.Rev. 643, 658.
. The guidelines provided in relevant part:
“5. Water quality criteria should be accompanied by a description of present water quality and uses, together with uses expected in the future and the water quality required to make those uses possible. The water quality standards proposed by a State should provide for:
“(a) Potential and future water uses as well as the present intended use and uses;
“(b) The upgrading and enhancement of water quality and the use or uses of streams or portions thereof that are presently affected by pollution;
“(c) The maintenance and protection of quality and use or uses of waters now of a high quality or of a quality suitable for present and potential future uses.’’ (Emphasis added.) U.S. Department of the Interior Federal Water Pollution Control Administration, Guidelines for Establishing Water Quality Standards for Interstate Waters (1966) 4. See, also, Hines, supra, 62 Iowa L.Rev. at 658.
The guidelines are significant in two respects. First, they state unequivocally that maintenance of existing water quality must be pursued. Second, they distinguish between the maintenance and protection of current water quality and preservation of existing uses.
. Statutory authority for the policy was derived from the purposes clause of the Water Quality Act of 1965. Pub.L. No. 89-234, Section 1(a), 79 Stat. 903. Explaining the rationale of the department, Max Edwards, Assistant Secretary of the Interior, remarked:
“ ‘The purpose and intent of the Water Quality Act of 1965 was to ‘ * * * enhance the quality and value of our water resources * * * ’ and the strategy of water quality standards was to carry out that purpose and intent. Clearly and simply, where standards as established and enforced result in a lowering of the present high quality to that level, we have not met the intent of the law on the books’ ” (Emphasis added.) U.S. Department of the Interior Federal Water Pollution Control Administration, Compendium of Department of the Interior Statements on Non-degradation of Interstate Waters (Aug. 1968) 43, as quoted in Hines, supra, 62 Iowa L.Rev. at 657, fn. 41.
. Water quality standards generally include numerical and narrative criteria describing the chemical or biological condition of the receiving waters and the uses designated therefor. Policy Guideline No. 3 issued by the Department of the Interior in 1966 provided:
“Water quality criteria should be applied to the stream or other receiving water or portions thereof. The criteria should identify the water uses to be protected and establish limits on pollutants or effects of pollution necessary to provide for such uses. Numerical values should be stated for such quality characteristics where such values are available and applicable. Where appropriate, biological bioassay parameters may be used. In the absence of appropriate numerical values or biological parameters, criteria should consist of verbal descriptions in sufficient detail as to show clearly the quality of water intended (e.g., ‘substantially free from oil’).” U.S. Department of the Interior Federal Water Pollution Control Administration, Guidelines for Establishing Water Quality Standards for Interstate Waters (1966) 4.
. For example, the Water Quality Act of 1965 provided in relevant part:
“The discharge of matter into such interstate waters or portions thereof, which reduces the quality of such waters below the water quality standards established under this subsection (whether the matter causing or contributing to such reduction is discharged directly into such waters or reaches such waters after discharge into tributaries of such waters), is subject to abatement in accordance with the provisions of paragraph (1) or (2) of subsection (g) of this section. * * * ” (Emphasis added.) 79 Stat. at 909.
It has been observed that the deficiencies in the approach taken by the 1965 Act “stemmed from the character of the standards themselves, which focused on the tolerable effects rather than the preventable causes of water pollution * * United States Environmental Protection Agency v. California ex rel. State Water Resources Bd. (1976), 426 U.S. 200, 202, 96 S.Ct. 2022, 2023, 48 L.Ed.2d 578, 582. Moreover, “the scheme failed to provide adequate incentives to individual entities to pollute less; an entity’s dumping [of] pollutants into a stream was ignored if the stream met the standards.” Natural Resources Defense Council v. United States Environmental Protection Agency, supra, 915 F.2d at 1316.
. The 1972 Amendments define a “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete
. The effluent limitations were instituted, in large part, because water quality standards were difficult to administer and of limited success. In explaining the thrust of the 1972 Amendments, the Senate Committee report stated:
“The legislation recommended by the Committee proposes a major change in the enforcement mechanism of the Federal water pollution control program from water quality standards to effluent limits.
“Under the 1965 Act, water quality standards were to be set as the control mechanism. States were to decide the uses of water to be protected, the kinds and amounts of pollutants to be permitted, the degree of pollution abatement to be required, the time to be allowed a polluter for abatement.
“The water quality standards program is limited in its success. After five years, many States do not have approved standards. Officials are still working to establish relationships between pollutants and water uses. Time schedules for abatement are slipping away because of failure to enforce, lack of effluent controls, and disputes over Federal-State standards.
“The Committee adopted this substantial change because of the great difficulty associated with establishing reliable and enforceable previse effluent limitations on the basis of a given stream quality. Water quality standards, in addition to their deficiencies in relying on the assimilative capacity of receiving waters, often cannot be translated into effluent limitations — defendable in court tests, because of the imprecision of models for water quality and the effects of effluents in most waters.
“Under this Act the basis of pollution prevention and elimination will be application of effluent limitations. Water quality will be a measure of program effectiveness and performance, not a means of elimination and enforcement.
“The Committee recommends the change to effluent limits as the best available mechanism to control water pollution. With effluent limits, the Administrator can require the best control technology; he need not search for a precise link between pollution and water quality.’’ (Emphasis added.) S.Rep. No. 414, 92d Cong., 2d Sess. 8, reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3675.
. The exception was bom of necessity. As noted in the Senate Committee Report:
“This section [now codified at Section 1311(a), Title 33, U.S.Code] clearly establishes that the discharge of pollutants is unlawful. Unlike its predecessor program which permitted the discharge of certain amounts of pollutants under the conditions described above, this legislation would clearly establish that no one has the right to pollute — that pollution continues because of technological limits, not because of any inherent right to use the nation's waterways for
. In a sense, this approach applies to environmental protection efforts the maxim that “necessity is the mother of invention.” See S.Rep. No. 414, 92d Cong., 2d Sess. 76 (1971), reprinted in 1972 U.S.Code Cong. & Admin.News 3668, 3798. See, also, Chemical Manufacturers Assn. v. Natural Resources Defense Council (1985), 470 U.S. 116, 155-156, 105 S.Ct. 1102, 1123, 84 L.Ed.2d 90, 117 (Marshall, J., dissenting); Van Putten & Jackson, supra, 19 U.Mich.J.L.Ref. at 889-890, and at fn. 118.
. Thus, the Conference Report to the 1972 Amendments provides in relevant part:
“ ‘In determining the “best available technology” for a particular category or class of point sources, the Administrator is directed to consider the cost of achieving effluent reduction. The Conferees intend that the factors described in section 304(b) be considered only within
. A “new source” is defined in Section 306(a)(2) of the 1972 Act, Section 1316(a)(2), Title 33, U.S.Code, as follows:
“The term ‘new source’ means any source, the construction of which is commenced after the publication of proposed regulations prescribing a standard of performance under this section which will be applicable to such source, if such standard is thereafter promulgated in accordance with this section.”
. See Chemical Manufacturers Assn. v. United States Environmental Protection Agency, supra, 870 F.2d at 196; Am. Iron & Steel Inst. v. United States Environmental Protection Agency, supra, 526 F.2d at 1058. The cost of compliance would appear to be less of a factor in the BATEA context as well. See Am. Paper Inst. v. Train, supra, 543 F.2d at 338-339.
. Transfer technology has been described as “technology which has been developed in one process or industry but which the Administrator believes can be successfully ‘transferred’ to other processes or industries which operate under similar conditions.” Am. Iron & Steel Inst. v. United States Environmental Protection Agency, supra, 526 F.2d at 1059, fn. 72a.
. “Secondary treatment” refers to “a physical/biological process for removing solids and pollutants characterized by biological oxygen demand and pH.” Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency (C.A.3, 1986), 790 F.2d 289, 293, fn. 2. Federal secondary treatment standards have been prescribed by the United States Environmental Protection Agency at Part 133, Title 40, C.F.R.
. The proposed rule, Section 130.10, Title 40, C.F.R., provided:
“(a) The State shall prepare a planning process which shall provide for:
“(4) The development, review and adoption of water quality standards in accordance with Section[s] 303(c)(1) and (2) of the Act; [and]
“(5) The development and implementation of a Statewide policy on antidegradation, consistent with the criteria identified in § 131.11(e) of this chapter[.]” 40 F.R. 29884.
The requirements for a state plan enumerated above were set forth in the conjunctive. Thus, the antidegradation standard was independent of water quality standards based on designated uses.
Proposed Section 131.11(e), Title 40, C.F.R., provided:
“The following elements shall be included in each State water quality management plan:
“(e) Water quality standards. (1) The applicable water quality standards established pursuant to Section[s] 303(a) through (c) of the Act and recommendations for revision of water quality standards applicable to each body of water. The recommendations for revision of water quality standards shall be consistent with the following:
“(2) The Statewide antidegradation policy and the methods for implementing such policy, established pursuant to § 130.10(a)(5) of this chapter. The antidegradation policy and implementation methods shall be consistent with the following:
“(i) Existing in-stream beneficial water uses shall be maintained and protected. No further water quality degradation which would result in impairment of existing in-stream beneficial uses is allowable.
“(ii) Existing high quality waters which exceed those levels necessary to support propagation offish, shellfish and wildlife and recreation in and on the water shall be maintained and protected unless the State chooses, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process and subject to the provisions of § 131.11(e)(2)(i) of this part, to allow lower water quality as a result of necessary and justifiable economic or social development. In such cases, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and feasible management or regulatory programs pursuant to Section 208 of the Act for nonpoint sources, both existing and proposed.
“(iii) Determinations under § 131.11(e)(2)(H) shall not be subject to disapproval by the Administrator (except where regulatory or statutory requirements have not been satisfied), except for any water quality impairment which affects waters or water uses protected by Federal statute (e.g., the National Park System; Wild and Scenic Rivers, Endangered Species, etc.)." (Emphasis added.) 40 F.R. 29889.
Thus, this section likewise differentiated between general water quality standards associated with beneficial uses and the antidegradation policy.
It also demonstrated greater federal concern for particular categories of high quality waters (i.e., those within national parks, those constituting wild and scenic rivers and those which support endangered species).
. Section 130.10, Title 40, C.F.R. provided in relevant part:
“(b) In addition to the requirements of § 130.10(a), the State agency planning process shall provide for the following:
“(1) The development, review and adoption of water quality standards in accordance with § 130.17(a) and with section[s] 3(c)(1) and (2) of the Act;
“(2) The development, adoption and implementation of a Statewide policy on antidegradation, consistent with the criteria identified in § 130.17(d);
tl * * *
“(c) The description of the State planning process that is to be submitted by the Governor pursuant to § 130.40(b) shall contain, as a minimum, the following:
“(5) A schedule for review and revision, where necessary, of water quality standards and for development and adoption of a Statewide policy on antidegradation, together with a schedule of milestones which includes proposed dates for public hearings on the revisions and antidegradation policy. The schedule shall provide that the water quality standards and the antidegradation policy will be reviewed and revised in ample time to be used as a basis for 1977-1983 management and regulatory decisions.” (Emphasis added.) 40 F.R. 55338.
Moreover, Section 130.17, Title 40, C.F.R. provided in relevant part:
“(a) The State shall hold public hearings for the purpose of reviewing water quality standards and shall adopt revisions to water quality standards, as appropriate, at least once
“(b) The water quality standards of the State shall:
“(1) Protect the public health or welfare, enhance the quality of water and serve the purposes of the Act;
“(2) Specify appropriate water uses to be achieved and protected, taking into consideration the use and value of water for public water supplies, propagation of fish, shellfish, and wildlife, recreation purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation; and
“(3) Specify appropriate water quality criteria necessary to support those water uses designated pursuant to § 130.17(b)(2).
“(c) In reviewing and revising its water quality standards pursuant to § 130.17(a), the State shall adhere [to] the following principles:
“(2) The State shall maintain those water uses which are currently being attained. Where existing water quality standards specify designated water uses less than those which are presently being achieved, the State shall upgrade its standards to reflect the uses actually being attained.
“(4) The State shall take into consideration the water quality standards of downstream waters and shall assure that its water quality standards provide for the attainment of the water quality standards of downstream waters.
“(e) The State shall develop and adopt a Statewide antidegradation policy and identify the methods for implementing such policy pursuant to § 130.10(b)(2). The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following'.
“(1) 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 is allowable.
“(2) Existing high quality waters which exceed those levels necessary to support propagation offish, shellfish and wildlife and recreation in and on the water shall be maintained and protected unless the State chooses, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, to allow lower water quality as a result of necessary and justifiable economic or soical delevolpment [sic]. In no event, however, may degradation of water quality interfere with or become injurious to existing instream water uses. Additionally, no degradation shall be allowed in high quality waters which constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance. Further the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and feasible management or regulatory programs pursuant to section 208 of the Act for nonpoint sources, both existing and proposed.” (Emphasis added.) 40 P.R. 55340-55341.
. The 1977 Amendments to the Act provided alternate titles for the revised law. The preamble to the legislation referred to it as the “Clean Water Act of 1977.” However, Section 518 of the Act was amended to read that “[t]his Act may be cited as the ‘Federal Water Pollution Control Act’ (commonly referred to as the Clean Water Act).” 91 Stat. 1566. Apparently, the dual titles were the result of an impasse between the Senate, which favored the new title, and the House of Representatives, which favored retention of the former description of the Act. See Gaba, supra, 36 Vand.L.Rev. at 1168, fn. 3; Van Putten & Jackson, supra, 19 U.MichJ.L.Ref. at 863, fn. 1. For purposes of clarity, we will refer to the 1977 legislation as the Clean Water Act.
. The USEPA further articulated this view in a guidance document prepared to assist in abating nonpoint water pollution. The agency observed that water quality standards are defined as numerical and narrative criteria, the antidegradation policy, and designated uses. See USEPA, Revised Program Guidance Memorandum: SAM-32 (Nov. 14, 1978), cited in Anderson, Water Quality Planning for the National Forests (1987), 17 Envtl.L. 591, 605-606. It is apparent from this reference that, since the antidegradation policy was incorporated into the agency’s rules, it constituted a standard separate and apart from water quality criteria and use designations. Indeed, it has been observed that the decision to degrade constitutes a revision of an operative water quality standard requiring USEPA approval under Section 303(C)(2) of the 1972 Amendments. See Hines, supra, 62 Iowa L.Rev. at 680.
