On April 26, 1979, the United States Court of Appeals for the Seventh Circuit wrote another chapter in the saga of the State of Illinois' protracted battle to end the City of Milwaukee's discharges of raw and inadequately treated sewage into Lake Michigan. In Illinois v. City of Milwaukee¹ the court of appeals affirmed a trial court's decision that Milwaukee's raw sewage "overflows" into the lake constitute an enjoinable public nuisance under federal common law and upheld the lower court's order to the city to eliminate those overflows within eight years. In what may be the most significant aspect of the ruling, the Seventh Circuit also concluded that the Federal Water Pollution Control Act (FWPCA) Amendments of 1972² as amended by the Clean Water Act of 1977³ do not limit the availability of more stringent relief under the preexisting federal common law. Despite this important conclusion, the court reversed for lack of sufficient evidentiary support the lower court's imposition of effluent limitations on discharges from defendants' sewage treatment plants more stringent than those set by the Act or included in Milwaukee's current discharge permit. The case was thus remanded for additional fact finding on this question.

The Seventh Circuit's opinion in Illinois convincingly deflates several possible impediments to the use of the federal common law of nuisance to remedy particularly harmful instances of water pollution that for one reason or another are not adequately addressed under the FWPCA's regulatory program. Other problems with this cause of action, however, continue to make it a less than ideal legal weapon. The decision also sets up a conflict with earlier First and Fourth Circuit decisions which undercut the availability and utility of such actions in this regard.