The central mechanism in the Federal Water Pollution Control Act (FWPCA)¹ for limiting discharges from industrial point sources is the national pollutant discharge elimination system (NPDES) permit program. Every discharge from such a source into navigable waters must be authorized by an NPDES permit issued under §402 of the Act.² While Congress initially placed permitting authority for this program in the hands of the Environmental Protection Agency (EPA), it envisioned transfer of the function of permit issuance to the states.³ The statute provides EPA with continuing supervisory responsibility over state actions implementing the program, however. It requires state permitting agencies to submit proposed permits to EPA for approval and authorizes the Agency to veto state permitting decisions that do not comport with the "guidelines and requirements" of the Act.⁴

In a ruling of some importance to the smooth functioning of this federal-state mechanism, the United States Supreme Court recently held, in Crown Simpson Pulp Co. v. Costle,⁵ that the federal courts of appeals are the proper forum in which to seek judicial review of such EPA objections to state issuance of proposed NPDES permits. Prior to the Supreme Court's ruling, a conflict in authority on this question in the circuit courts of appeals threatened to cause confusion and hinder implementation of the statutory scheme. The Court's decision promises to facilitate expeditious resolution of NPDES permit disputes under the Act. Left unresolved, however, is whether an EPA veto, in the context of the Agency's new power under the Clean Water Act of 1977 to issue its own permits if the state refuses to accept its objections, is an interlocutory determination reviewable only after a permit has finally been issued.