American Paper Institute, Inc. v. United States Environmental Protection Agency

No. 88-1395; No. 88-1396 (7th Cir. August 1, 1989)

The court holds that an attack by the pulp and paper mill industry on the authority of the Environmental Protection Agency (EPA) under the Federal Water Pollution Control Act (FWPCA) to object to proposed state-issued National Pollution Discharge Elimination System (NPDES) permits is not ripe for review, and the court does not have subject matter jurisdiction over a challenge to EPA's antidegradation regulation. EPA objected under the FWPCA that the permits fail to properly monitor and limit the discharge of toxic pollutants and violate federal and state antidegradation policies. The court initially holds that the industry's claims are not moot even though the state has agreed to modify the permits to meet EPA's objections. The court holds that it has subject matter jurisdiction under FWPCA § 509(b)(1)(F) to review EPA's objections to the proposed NPDES permits. The court holds, however, that the industry's challenge is not ripe for review. First, EPA's objection is an intermediate step in the process of issuing a permit and does not constitute final agency action warranting judicial review. Premature judicial intervention each time EPA objects to a proposed permit would disrupt the relationship between the states and EPA, impair the effectiveness of the FWPCA, and slow the permitting process. Second, denial of review at this stage poses no hardship to industry requiring a change of practices or an expenditure of funds to comply with new rules. The objections are not directed at the point source and are not final. Although industry anticipates that EPA's objections may affect future increases in production, present practices continue under its prior permits. Moreover, it is not inconsistent with Congress' intent to restrict petitioners in states with permit-issuing programs to state court review. Because the issues raised regarding individual point sources tend to be specific to that point source, it is not necessary for the federal courts to decide all issues regarding point sources. Congress' emphasis on state involvement in water quality control, and the specificity of the issues raised, indicate that the state tribunals can adequately address challenges to permits issued by that state. Finally, the court holds that EPA's antidegradation regulation, requiring the state to maintain existing water quality once a desired water quality standard is reached, is outside its subject matter jurisdiction. The court lacks jurisdiction under § 509(b)(1)(E) since EPA's antidegradation regulation is a written policy indicating agency water quality goals, not an administrative rule setting forth effluent limitations or implementation guidelines.

A concurring judge would hold that the matter is ripe for judicial review, and that only the state court, not the federal court, has jurisdiction to review state agency permitting decisions.

Counsel for Petitioner
Russel S. Frye
Chadbourne & Park
Ste. 900, 1101 Vermont Ave. NW, Washington DC 20005
(202) 289-3000

Counsel for Respondent
Steven Neugeboren
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7703

Before WOOD, JR., FLAUM, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

[19 ELR 21361]

WOOD, JR., Circuit Judge.

American Paper Instituteand four paper and pulp mill owners challenge the federal Environmental Protection Agency's (EPA's) authority to object to permits proposed by Wisconsin Department of Natural Resources (WDNR) and to promulgate antidegradation regulations under the water pollution control statute, 33 U.S.C. §§ 1251-1376. The EPA claims that this court lacks subject matter jurisdiction to review American Paper Institute's claims. It argues in the alternative that the claims are not ripe for review. We agree with the EPA that the claim regarding the EPA's objections is not ripe for review and the attack on the antidegradation policy is not within our subject matter jurisdiction. We therefore dismiss American Paper Institute's petition.

I. BACKGROUND

A Structure of the Clean Water Act

Disturbed over the ineffectiveness of existing water pollution control, Congress restructured the Federal Water Pollution Control Act (FWPCA) in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In the 1972 amendments, Congress specifically outlined its goals: to have "fishable and swimmable" waters by 1983 and to eliminate all pollutant discharges into navigable waters by 1985. In 1977 Congress amended the statute again through the Clean Water Act but did not change the primary structure of the program implemented in 1972.

Under the Act,¹ the primary means of imposing water pollution control on dischargers or "point sources" is a permit system called the National Pollutant Discharge Elimination System (NPDES). Each point source must obtain a NPDES permit before it may emit identified pollutants into American waters. The NPDES permit restricts the quantity, rate, and concentration of pollutants that the point source may emit into the water and provides a schedule for compliance with the water quality standards and effluent limitations applicable to that point source. Any discharge without a NPDES permit is illegal. 33 U.S.C. § 1311(a).

The EPA administers the NPDES program in each state unless the EPA previously authorized a state program to issue NPDES permits. 33 U.S.C. § 1342(b). Thirty-nine states presently have their own permit-issuing programs over which the EPA retains oversight authority. In states with permit programs, the state proposes the NPDES permit it intends to issue to a point source and the EPA has ninety days to object to the permit. The EPA may object if it finds that the state ignored recommendations from another state whose waters could be affected by the emissions from the point source or that the permit is "outside the guidelines and requirements" of the Act. 33 U.S.C. § 1342(d)(2). If the EPA objects, it provides a comment period, and a public hearing when requested by the state or interested parties. 40 C.F.R. § 123.44(e) (1988). The EPA then must modify, withdraw, or reaffirm its objections. 40 C.F.R. § 123.44(g) (1988).

If the EPA reaffirms its objections, the state and the EPA proceed in either of two ways. The state may modify the terms of its proposed permit within thirty days of the EPA's decision to stand by its objections.² If the state agrees to modify the permit, it must again allow a comment period before issuing the permit. If the state refuses to modify the proposed permit, the EPA may assume exclusive authority to issue the permit. 33 U.S.C. § 1342(d)(1) & (4). Before the EPA can issue its own permit, however, it must again propose a version of the permit, allow a comment period and possibly conduct a hearing. 40 C.F.R. §§ 124.6, 124.10, 124.12 (1988). Prior to the 1977 amendments, the EPA was not authorized to resolve the impasse in this fashion. Before 1977 the EPA could veto a permit proposed by the state but had no authority to issue a federal permit if the state refused to meet EPA [19 ELR 21362] objections. No permit would issue under FWPCA if the state and the EPA did not agree on the terms of the permit.

In addition to its duties under the NPDES program, the EPA must develop and oversee state promulgation of water quality standards for the waters of the United States. 33 U.S.C. § 1313(c). In accordance with its interpretation of this authority, the EPA has created an antidegradation policy, which requires the states to promulgate antidegradation plans. Under the antidegradation policy outlined in EPA regulations, 40 C.F.R. § 131.12 (1988), the individual states must design antidegradation plans that address how the state will maintain existing water quality once a desired water quality standard is reached. The EPA antidegradation policy stipulates the following standards: At a minimum, the states must devise antidegradation plans that maintain existing water quality if the water quality is below the "fishable and swimmable" goal. Where "fishable and swimmable" water quality has been reached, the state can reduce water quality only if "an important social and economic development" in the area in which the waters are located justifies the reduction. The state must prevent water constituting an "outstanding national resource" from being degraded. Finally and more specifically, the state may relax stringent limitations on thermal pollution if certain conditions are met.

B. The Present Challenge

The EPA, in February 1974, authorized WDNR to issue permits to point sources in Wisconsin. Pursuant to that authority, WDNR proposed to issue thirteen permits to paper and pulp mills in Wisconsin.

On September 10, 1986 the EPA notified WDNR that it objected to the thirteen permits that WDNR had proposed. The EPA spelled out its objections more specifically on November 28, 1986, allowed comments on the objections, and at the request of WDNR and other interested parties, provided a public hearing on the objections. In response to comments made, the EPA modified some of its objections, but on November 4, 1987 the EPA reaffirmed its remaining objections with regard to eleven of the permits.³ The EPA stated that the eleven proposed permits failed to properly monitor and limit the discharge of toxic pollutants as required by federal and state law and five of the eleven permits violated federal and state antidegradation policies. The EPA gave WDNR thirty days to modify the permits.

On December 3, 1987 WDNR modified the permits to meet the EPA's objections. American Paper Institute and four paper and pulp mill owners petitioned this court to review the EPA objections and the antidegradation policy supporting the objections. For the sake of clarity we will refer to all petitioners as American Paper Institute or API.⁴

II. DISCUSSION

American Paper Institute challenges the EPA's authority to object to the WDNR-proposed permits. API contends that the EPA exceeded its authority when it objected to proposed permits that, API argues, were within the guidelines and requirements of the Act. Furthermore, API claims that nowhere in the Act is the EPA authorized to promulgate an antidegradation policy for the states.

The EPA, in response, asserts that the merits of API's claims are not reviewable in this court. The EPA claims as an initial matter that the issues raised by API are moot because the state has agreed to the terms of the EPA objections and issued modified permits. The EPA contends that, if we decide that the issues are not moot, they are nevertheless not reviewable because 33 U.S.C. § 1369(b)(1), the provision of the Act granting the federal court of appeals subject matter jurisdiction over a limited set of EPA actions, does not cover the actions challenged by API. The EPA also argues that the doctrine of ripeness precludes our review.

We find that the issues raised by American Paper Institute arenot moot but decline to review them on the related grounds of ripeness and subject matter jurisdiction.

A. Mootness

The EPA claims that API's challenges to the objections and to the promulgation of an antidegradation policy are moot because the state has agreed to modify the permits in compliance with the EPA's concerns. "A case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969). A case becomes moot if "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).

API may now bring a claim regarding the issued permits to the state tribunal, but API argues that the relief it could obtain in the state tribunal would not address the harm that is caused by the EPA objections to the permits. It contends that the state tribunal does not have authority to review the EPA objections and that the validity of the permit as originally proposed will never be addressed. Without addressing the merits of this argument (as we will later in this opinion), we recognize that the state tribunal will not address the legality of the permits as initially proposed by the state and will only consider whether the permits in their final form conform to state and federal law. The Wisconsin Pollution Discharge Elimination Law,Wis. Stat. Ann. § 147.20(1) (West 1989), provides administrative review of "the reasonableness of or necessity for any term or condition of any issued, reissued or modified permit." API does not allege that it is harmed because a permit will not be issued, but because the particular permits originally proposed will not be issued. Because the state administrative tribunal is obligated by statute only to review the permit in its final form, we find that API has a viable claim.

The claim also remains legally cognizable. A decision by this court today in favor of API's position would preclude the EPA in the future from raising objections similar to those contested. If API sought modifications of the permits, the EPA could not raise again objections that we had reviewed and rejected. See Wis. Stat. Ann. § 147.03(2m)(West 1989) ("department may, upon request of the permittee, revise or modify a schedule of compliance in an issued permit if it determines that the revision or modification is necessary because of the happening of an event over which the permittee has little or no control"); Wis. Stat. Ann. § 147.20 (West 1989) (permittee may trigger modification through successful appeal of issued permit); Memorandum of Agreement between the State of Wisconsin Department of Natural Resources and United States Environmental Protection Agency, Region V, Section X(A) (approved February 4, 1974) (Petitioner's Exhibit A to [19 ELR 21363] Memorandum in Opposition to Respondent's Motion to Dismiss the Petitions as Moot).

Further, API questions the very effectiveness of state relief on the issues raised. Whether review after the permit is issued eradicates the effects of the alleged violation is an issue that underlies API's challenge. We cannot say that the issue will be completely addressed in the state tribunal where the state's ability to provide adequate relief is not at issue.

B. The EPA Objections to the State-Proposed Permits

(1) Subject Matter Jurisdiction under 33 U.S.C. § 1369(b)(1)(F)

American Paper Institute argues that we have subject matter jurisdiction pursuant to 33 U.S.C. § 1369(b)(1)(F) to review the EPA objections to the proposed permits. 33 U.S.C. § 1369(b)(1)(F) states that

review of the [EPA] Administrator's action . . . (F) in issuing or denying any permit under section 1342 of this title . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action.

33 U.S.C. § 1369(b)(1)(F) (emphasis added). American Paper Institute asserts that the EPA in effect "denied permits" when it objected to the permits proposed by WDNR. API argues that subsection 1369(b)(1)(F) applies to permits in their proposed (as well as final) form and the EPA "denies" a permit when it objects to a proposal from the state. According to API, the objections were denials because the EPA gave WDNR no choice but to accept the EPA objections if WDNR wanted to retain control over the permit program.

The Third Circuit lends some support to API's position, but the Second Circuit dissuades us from liberally interpreting section 1369(b)(1). The Third Circuit in Modine Mfg. Corp. v. Kay, 791 F.2d 267 (3d Cir. 1986), favored a liberal reading of section 1369(b)(1). It noted that the Supreme Court encouraged the courts to liberally interpret statutory provisions providing judicial review, see Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), and favored appellate review of administrative cases. Modine, 791 F.2d at 270. On the other hand, the Second Circuit has stated that section 1369(b)(1) should be read restrictively because it is both specific and complex, indicating Congress's intent to provide appellate review in limited cases only. Central Hudson Gas & Elec. v. United States EPA, 587 F.2d 549, 556 (2d Cir. 1978) ("the complexity and specificity of section [1369(b)(1)] in identifying what actions of EPA under the [Act] would be reviewable in the courts of appeals suggests that not all such actions are so reviewable"); Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 518 (2d Cir. 1976).

Faced with an unhelpful congressional record⁵ and conflicting circuit cases on how broadly to interpret section 1369(b)(1), we begin our analysis of subsection 1369(b)(1)(F) by looking at the Supreme Court's decision in Crown Simpson Pulp Co. v. Costle, 445 U.S. 193 (1980). In Crown Simpson the Supreme Court addressed facts virtually identical to those before us — the state proposed permits, the EPA objected to the proposed permits, and the paper mills seeking the permits challenged the EPA's authority to object. 445 U.S. at 193-94. The court of appeals dismissed the claim for lack of jurisdiction. 445 U.S. at 195; Crown Simpson Pulp Co. v. Costle, 599 F.2d 897 (9th Cir. 1979). The Supreme Court in Crown Simpson agreed with the concurring opinion of District Judge Renfrew, sitting by designation on the court of appeals, who emphasized that granting jurisdiction for review in the appellate court under section 1369(b)(1) would best comport with Congress's goal of prompt review of EPA actions. 445 U.S. at 196; see Crown Simpson, 599 F.2d at 905-06 (J. Renfrew, concurring). The Court then gave three reasons for finding subject matter jurisdiction in the appellate court under subsection 1369(b)(1)(F): if the EPA objected to the state's proposal, the EPA effectively denied a permit because an impasse between the state and the EPA precluded the issuance of a permit; under a contrary interpretation of (b)(1)(F), denials of permits would be reviewable at different levels of the judicial system depending on whether the state in which the case arose was authorized to issue permits; and review at different levels of the judicial system would cause delays in resolving disputes. 445 U.S. at 196-97. The Supreme Court held that the court of appeals had subject matter jurisdiction under subsection 1369(b)(1)(F) to review the EPA objections to state-proposed permits. 445 U.S. at 196.

Crown Simpson would appear to end our inquiry except that Congress arguably altered the underpinnings of the Crown Simpson decision when it amended the Act in 1977. Congress amended the Act in 1977 to give the EPA authority to issue a permit if the state refused to modify its proposed permit. The EPA argues that under the 1977 amendments it no longer "denies" the permit when it objects to a proposed permit. Following an objection, either the state will issue a modified permit or the EPA will take control and issue the permit itself. Unlike the situation before 1977, a permit can issue even if the state and the EPA reach an impasse.

Because the law has changed since the challenge was brought in Crown Simpson,⁶ we need to consider whether the Supreme Court's reasons for deciding as it did are still applicable. The EPA emphasizes the first reason for the Supreme Court's decision in Crown Simpson — an objection from the EPA at that time had the effect of a denial. As the EPA has argued, the 1977 amendments to the Act changed that result. Under the 1977 amendments, the EPA has the authority to issue the permit itself or the state can issue a modified permit if it accedes to the EPA's objections. An objection from the EPA will no [19 ELR 21364] longer stymie the issuance of a permit. Senator Muskie, the senate manager of the conference committee version of the Clean Water Act of 1977, indicated that Congress was aware of this change: "The Administrator's action in objecting to a permit would generally not be subject to judicial review since it will always be followed by further administrative action." 123 Cong. Rec. S19563 (daily ed. Dec. 15, 1977) (statement of Sen. Muskie), reprinted in 3 Congressional Research Service, Library of Congress, 95th Cong., 2d Sess., A Legislative History of the Clean Water Act of 1977, at 470 (Comm. Print 1978) (emphasis added). We agree with the EPA that the 1977 amendments to the Act changed the effect of an EPa objection.

The Supreme Court, however, did not base its finding of subject matter jurisdiction in Crown Simpson on this reason alone. The Court in Crown Simpson also emphasized that appellate subject matter jurisdiction should be granted under subsection 1369(b)(1)(F) because a contrary interpretation would lead to a bifurcated system in which the district court would review claims regarding permits proposed by states (but not yet issued) and the appellate court would review claims regarding permits proposed by the EPA.⁷ The Court felt this additional layer of review for claims regarding EPA objections initiated in district court would unnecessarily delay review.

The Supreme Court's analysis assumes that the district courts possess federal question jurisdiction to review EPA objections if the appellate courts decline subject matter jurisdiction under section 1369(b)(1).⁸ Agency action is reviewable in the district court under federal question jurisdiction unless there is clear and convincing evidence that Congress intended to limit review. See Califano v. Sanders, 430 U.S. 99, 105 (1977) (jurisdiction is conferred on federal courts to review agency action under federal question jurisdiction, subject only to preclusion-of-review statutes); Abbott Laboratories, 387 U.S. at 141 ("only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review"); Five Flags Pipe Line Co. v. Department of Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1988) ("If Congress makes no specific choice [as to which court has jurisdiction] . . . then an aggrieved person may get 'nonstatutory review' . . . in federal district court"); Champion Int'l Corp. v. United States EPA, 850 F.2d 182, 187 (4th Cir. 1988) ("In the ordinary case, agency action is reviewable in the district courts under 28 U.S.C. § 1331 unless review has been limited by statute."). Although some courts havehinted that section 1369(b)(1) precludes district court review of challenges to the Act,⁹ we find nothing in the Act or the 1977 amendments that indicates Congress intended to preempt district court review.¹⁰

If we hold that we lack subject matter jurisdiction to review the EPA objections under subsection 1369(b)(1)(F), we arguably open the door for review in district court under federal question jurisdiction for petitioners in states with permit programs. See Central Hudson, 587 F.2d at 555 (agency action that does not fall within one of the six categories described in 33 U.S.C. § 1369(b)(1) is reviewable under federal question jurisdiction in the district court). This is exactly the type of bifurcated review that the Supreme Court wanted to avoid in Crown Simpson.¹¹ Thus, we find the reasoning in Crown Simpson problematic: an objection from the EPA may no longer have the effect of a denial — refuting the Supreme Court's first reason for granting jurisdiction in Crown Simpson, but our refusal to review the objection will create the bifurcated system that the Supreme Court also found unacceptable — violating the Supreme Court's second and third reasons for granting jurisdiction in Crown Simpson. We therefore have chosen a solution that reflects both of the Supreme Court's concerns and addresses directly the underlying issues in a question involving the reviewability of agency action.

The Supreme Court urged a pragmatic approach to [19 ELR 21365] the issue of subject matter jurisdiction under subsection 1369(b)(1)(F). See Natural Resources Defense Council, Inc. v. EPA, 656 F.2d 768, 776 (D.C. Cir. 1981) (Crown Simpson emphasized the practical impact of the decision rather than a literal reading of the statute). As a practical matter we think the better approach is to review this issue for ourselves, rather than risk opening the door to duplicative district court review. We hold that we have subject matter jurisdiction under subsection 1369(b)(1)(F) to review the EPA's objections.

This interpretation of subsection 1369(b)(1)(F) is warranted by the facts before us. Congress did not specify that only permits in their final form were subject to review under subsection 1369(b)(1)(F). Proposed permits, although not infinal form, are complete and detailed proposals offered by the state. See Ford Motor Co. v. United States EPA, 567 F.2d 661, 668 (6th Cir. 1977) (modification to existing permit as proposed by the state is a "permit" for purposes of 33 U.S.C. § 1369(b)(1)(F)). Unless the EPA objects, they become final permits. Likewise, it is reasonable to find that an objection from the EPA, as a practical matter, "denies" the proposed permit for jurisdiction purposes. An objection from the EPA carries great weight with the state-permitting agency; an objection from the EPA would strongly persuade a state agency to modify a proposed permit.

(2) Ripeness

By acknowledging that we have subject matter jurisdiction to review the EPA objections under 33 U.S.C. § 1369(b)(1)(F), cf. District of Columbia v. Schramm, 631 F.2d 854, 859 (D.C. Cir. 1980), we have not, however, addressed completely the reviewability of API's challenge to the EPA objections. In addition to our duty to determine whether we have subject matter jurisdiction to review API's claim, we are also bound by the doctrine of ripeness to determine whether this issue is appropriately before any court at this time.

We hold that API's challenge to the EPA objections is not reviewable because it is not ripe for review. Section 1369(b)(1) expressly provides for judicial review if a permit is issued or denied and identifies an appropriate forum for review but, as this case demonstrates, is not dispositive on the timing of review. Cf. Bethlehem Steel Corp. v. United States EPA, 536 F.2d 156, 160 (7th Cir. 1976) (jurisdiction provision of Clean Air Act pertains to the existence of judicial review and the appropriate forum, not the timing of review).

We extract some guidance on the issue of timing from Senator Muskie's comment in describing the Clean Water Act to the Senate. Senator Muskie emphasized that normally a court should not review a permit and its terms until all administrative action is completed and a final permit is issued or denied. See 123 Cong. Rec. S19563 (daily ed. Dec. 15, 1977), reprinted in 3 Congressional Research Service, Library of Congress, 95th Cong., 2d Sess., A Legislative History of the Clean Water Act of 1977, at 470 (Comm. Print 1978). Likewise, the Supreme Court emphasized timing in Crown Simpson by holding that appellate review of EPA objections was available because an objection at that time had the finality of a permit denial. See Crown Simpson, 445 U.S. at 196.

In considering the timing for review of agency action we look to the doctrine of ripeness for guidance. The Supreme Court explained that the policy behind the doctrine

is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.

Abbott Laboratories, 387 U.S. at 148-49. The Supreme Court suggested a test for applying the ripeness doctrine to a particular case: "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149.

a. Fitness for Review

Issues that are fit for judicial decision are purely legal in nature and concern completed matters. See Bethlehem Steel, 536 F.2d at 161. Fitness for review also connotes finality. Under the ripeness doctrine the courts seek to avoid interference with agency procedures by examining final agency actions only. Id.; see National Resources Defense Council, Inc. v. Thomas, 845 F.2d 1088, 1092-93 (D.C. Cir. 1988). Although we find the question of the EPA's authority to object to permits to be a legal issue and the factual record sufficiently developed, we do not believe that the objections are final agency action warranting review at this time.

Before the EPA issues its objections, it corresponds with the state regarding its concerns. From the correspondence between the state and the EPA a factual record develops. Likewise the parties' respective positions are developed during the formal comment period and possibly in a hearing. Although the parties may continue to quibble over the effect of the state's or the EPA's limitations on point sources and the necessity for certain technical procedures, the factual record has been developed and the parties' positions have become defined. Although the issue of whether the EPA has exceeded its authority will always require inquiry into the factual record, its resolution rests on statutory interpretation. It is a legal issue and the record is sufficiently developed for court review.

The point of contention has transformed itself into a legal question — whether the EPA's tenacity exceeds its authority — but the finality of the EPA action remains in question. See, e.g., Commonwealth Edison Co. v. Train, 649 F.2d 481, 485 (7th Cir. 1980) ("Thus, even if the issue of the validity of the regulations is a purely legal one which will not be aided by development of a factual record, the absence of a coercive order directed at [petitioners] makes the issues in this case unfit for judicial determination."); Bethlehem Steel, 536 F.2d at 161 (although issue under Clean Air Act was legal and concerned completed matters it was not ripe because it was not final agency action). The courts must determine whether the action is "sufficiently final . . . that [they] would have no interest in postponing review." See Midwestern Gas Transmission Co. v. Federal Energy Regulatory Comm'n, 589 F.2d 603, 618 (D.C. Cir. 1978). The finality of an administrative action must be interpreted "pragmatically." Abbott Laboratories, 387 U.S. at 149; Bethlehem Steel, 536 F.2d at 161. We believe that we have ample reason for delaying review in this case.

When the EPA objects to a permit proposed by the state, one of two results will follow under the Clean Water Act. Either the state will acquiesce to the EPA objections within thirty days and modify the permit it had proposed or the EPA will take over the issuance of the permit. If the state modifies its proposed permit, public notice and a period for comment follow. If the EPA acquires permit-issuing authority, it must propose a new permit, allow a comment period, possibly hold a hearing on the terms of the new permit, and issue a permit. As these additional steps indicate, an objection from the EPA is an intermediate step in the process of issuing a permit. The EPA directs its objections to the state and not tothe party attempting to obtain the permit. See Commonwealth Edison, 649 F.2d at 484 (water quality standard issue not ripe for review because regulation was directed at the states and not at the utilities alleging injury). The state must respond before the process can [19 ELR 21366] move forward. While it is true that the permit process is shortened if the state agrees to modify its proposed permit, the administrative process is not fully completed before a permit is issued.¹²

If we were to intervene before the final permit was issued, we would disrupt the relationship between the state and the EPA. As Congress emphasized, the effectiveness of the Act depends upon cooperation between the EPA and the state. See H.R. Rep. No. 911, 92d Cong., 2d Sess. 126-27 (1972) (referring to state-EPA relationship as "the Federal-State partnership that is necessary if we are ever to have clean and safe waters"). Rather than cooperate with the EPA regarding the EPA objections, the states and interested parties would have an incentive not to cooperate in order to trigger review in an outside forum. Congress has indicated, by deliberately giving the EPA authority to issue a permit if the state refuses to modify its proposal, that the state should not be allowed to usurp the EPA's authority at an intermediate stage in the permitting process. 123 Cong. Rec. H38967 (daily ed. Dec. 15, 1977) (Rep. Roberts of Texas states "Authorizing EPA to issue the permit in such an instance is intended as a means to protect the discharger and to provide an opportunity for resolving any remaining disagreements over a permit in the context of EPA's administrative procedures and any subsequent judicial review."). See also 118 Cong. Rec. H33750 (daily ed. Oct. 4, 1972) (Rep. Jones of Alabama explains the state's responsibility for running the permit program and the EPA's authority to preclude issuance if the state exceeds the strictures of the Act); 118 Cong. Rec. H33761 (daily ed. Oct. 4, 1972) (Rep. Wright of Texas emphasizes the EPA's authority to prevent the issuance of a permit if outside the guidelines of the Act). The delicate balance of power and cooperation upon which Congress relied would be disrupted if review was permitted each time the EPA objected to a state-proposed permit.

Furthermore, if the court intervenes after the EPA objects, it dilutes the state's influence on the permit-issuing process. Review after the EPA objects suggests that the state has no influence over the EPA once the EPA has objected. The state, however, can force the EPA to again evaluate its objections before a permit will issue by refusing to modify its proposal. The EPA must again propose a permit and allow a comment period and possible hearing. More importantly, review after the EPA objects gives the EPA a disincentive to direct its objections to the states. Rather than address its objections to the state agencies which undoubtedly understand technical points of disagreement better than a court, the EPA will construct its case with an eye towards judicial review.

Finally, review of the EPA objections, followed by judicial review of the final permit, would slow the permit-issuing process. Congress established section 1369(b)(1), not to delay the implementation of water control, but to encourage speedy resolution of concrete disputes. Review of EPA objections, in addition to review when the permit is finally issued (which is warranted by Wisconsin and federal law), does not conform to Congress's intent of expediting the permit-issuing process.

b. Hardship to the Parties

In examining the hardship prong of the ripeness doctrine, we tend to divide the types of hardship requiring immediate review into two categories. We will find hardship if petitioners must change their conduct or face immediate sanctions. Bethlehem Steel, 536 F.2d at 163; Central Hudson, 587 F.2d at 559. Regulatory measures that require "immediate and significant change" in the affairs of petitioners inflict hardship. See Commonwealth Edison, 649 F.2d at 484. We will also find hardship if no other adequate legal remedy exists. Bethlehem Steel, 536 F.2d at 163; Central Hudson, 587 F.2d at 559.

API argues that both types of hardship are present here. It states that five of the eleven mills seeking permits were "entitled . . . to increased effluent limitations because of actual or planned increases in production" but will not obtain the increases because of the EPA objections. API also contends that the issues it raises now will be insulated from review if it is obligated to wait until a final permit is issued. API emphasizes that it will be confined to review in the state court if we deny review today.

At the time that the EPA objects, however, API is not obligated to change its practices or expend funds to comply with new rules. API conducts its operations under its prior permits. Although it may anticipate that future increases in production will be affected by future changes in the permits, the EPA objections, because they are not directed at the point source and are not final, do not require API to alter its present practices. The objections have no direct legal effect upon API. See Commonwealth Edison, 649 F.2d at 485. While API has an inkling of what type of permits it will not receive (based on what it has learned about the EPA objections), it does not know the type of expense or alterations that the final permit will require. The possibility of "future injury is not sufficient to warrant our review." Bethlehem Steel, 536 F.2d at 162.

API is incorrect when it suggests that the underlying federal issues it raises will be insulated from review. While it is true that our decision may restrict petitioners to state court when the state agrees to modify the proposed permit, the state court has full authority to review underlying federal issues. See Donnelly v. Yellow Freight System, Inc., Nos. 88-1733 and 88-1797, slip op. at 5 (7th Cir. Apr. 28, 1989) ("state courts must stand ready to vindicate federal rights, subject to review by the Supreme Court"); Commonwealth Edison, 649 F.2d at 486 n.8 ("state courts are competent to and often must and do decide questions of federal law"). API states that the issue will be posed to the state tribunal as "whether the WDNR was authorized under state law to issue the permits." A state tribunal could find that WDNR was not authorized to issue the permit if the permit exceeded the "guidelines and requirements" of the Act or if WDNR and the EPA overstepped their respective roles in developing that permit. Review in the state court need not preclude review of the underlying federal issues.

We are not troubled by API's contention that the state tribunal will never directly review the appropriateness of the permit originally proposed by the state. When a federal program mandates that a state and federal agency work together, different versions of a joint project will undoubtedly be publicly suggested and modified as the parties work together. By insulating this preliminary work product from immediate review, we allow the state and federal agency to propose new ideas without fear that the proposals will be subject to immediate review and challenge in the courts. The EPA provides sufficient opportunity for interested parties to comment and contribute to the initial work product that we feel comfortable in precluding court review of permits in their proposed form.

Similarly, it is not inconsistent with Congress's intent to restrict petitioners in states with permit-issuing programs to State court review. See Schramm, 631 F.2d at 863 ("The state courts are the proper forums for resolving questions about state NPDES permits, which are, after all, questions of state law."). The Act emphasizes [19 ELR 21367] the importance of state involvement and control over water quality in order to effectively enforce the goals of the Act. See H.R. Rep. No. 911, 92d Cong., 2d Sess. 126-27 (1972) ("It is impossible for the Federal Government to succeed in this program without the close and active cooperation of the States. [An NPDES permit system] which requires duplicative effort or destroys the initiative of the States or local governments is wasteful and non-productive."). Permits are specific to a group of point sources or to individual point sources. Because the issues raised regarding individual point sources tend to be specific to that point source, it is not necessary for the federal courts to decide all issues regarding point sources. Congress's emphasis on state involvement in water quality control and the specificity of the issues raised, indicate that the state tribunals can adequately address challenges to permits issued by the state.

C. The EPA's Antidegradation Policy

American Paper Institute also asks this court to review the EPA's promulgation of an antidegradation policy, 40 C.F.R. § 131.12 (1988), and the EPA Region V's interpretation of the antidegradation policy, EPA Region V Antidegradation Guidance, December 3, 1986 (Petitioners' Brief, Appendix Vol. I at 83). The EPA claims that these actions are not reviewable under 33 U.S.C. § 1369(b)(1)(E), but even if they are, they are time-barred¹³ and unripe for review. Because we agree with the EPA that we lack subject matter jurisdiction under subsection 1369(b)(1)(E) to review the EPA's actions, we do not reach the issue of ripeness.

API argues that subsection 1369(b)(1)(E) provides us with jurisdiction to examine the EPA's antidegradation policy and the regional office's interpretation of the policy. Subsection (b)(1)(E) states:

Review of the Administrator's action . . . (E) in approving or promulgating any effluent limitation or other limitation under section 301, 302, 306, or 405 . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business.

33 U.S.C. § 1369(b)(1)(E) (emphasis added). The EPA disagrees with API's characterization of the antidegradation policy as "effluent limitations or other limitations," contending that the antidegradation policy and the regional interpretation of the policy are water quality standards or (even more remotely) guidelines for creating water quality standards.

Congress did not explicitly provide for an antidegradation policy in the Act¹⁴ but defined effluent limitations in section 1362 as

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 into navigable waters, the waters of the contiguous zone, or the ocean, including schedules of compliance.

33 U.S.C. § 1362(11).

When examining whether an EPA regulation is an "effluent limitation or other limitation" for purposes of subsection 1369(b)(1)(E), other courts have considered the specificity of the regulation, the persons to whom the regulation is directed, and the effect of the regulation on point sources. See, e.g., American Iron & Steel Inst. v. United States EPA, 543 F.2d 521, 527 (3d Cir. 1976); Natural Resources Defense Council, 656 F.2d at 775-76. As a rule of thumb, effluent limitations dictate in specific and technical terms the amount of each pollutant that a point source may emit. Montgomery Envtl. Coalition v. Costle, 646 F.2d 568, 574 (D.C. Cir. 1980). Effluent limitations describe the measures needed to implement the criteria defined in the water quality standards. Cf. Trustees for Alaska v. EPA, 749 F.2d 549, 557 (9th Cir. 1984) ("effluent limitations are a means of achieving water quality standards").

The Court of Appeals for the District of Columbia interprets the term "effluent limitation or other limitation" as used in subsection 1369(b)(1)(E) to include more than numerical limitations. The D.C. Circuit held that Consolidated Permit Regulations (CPRs) were limitations within the meaning of subsection (b)(1)(E). National Resources Defense Council v. United States EPA, 673 F.2d 400, 403-06 (D.C. Cir.), cert. denied, 459 U.S. 879 (1982). The court, in expansive language, acknowledged that CPRs did not contain the specific, technical language of effluent limitations and were more policy-oriented. Id. at 405. It held, however, that the CPRs were reviewableunder subsection (b)(1)(E) because policy-oriented regulations were better addressed in appellate court and the Supreme Court favored a broad interpretation of section 1369(b)(1). Id. Likewise, the D.C. Circuit held that regulations that allowed municipalities to apply for variances from the normal requirements of secondary treatment were reviewable under subsection (b)(1)(E) as "effluent limitations." See Natural Resources Defense Council, 656 F.2d at 775.

API urges that we take an expansive approach, like that of the D.C. Circuit, and find jurisdiction because the antidegradation policy and regional office's interpretation place some restrictions on the effluents that may be emitted by a point source. If we accepted API's position, we would in effect allow the term "other limitation" to swallow up distinctions that Congress made between effluent limitations and other types of EPA regulations. Water quality standards would be arguably reviewable as effluent limitations — a position that we reject. Bethlehem Steel v. EPA, 538 F.2d 513, 514-15 (2d Cir. 1976); cf. Trustees for Alaska, 749 F.2d at 557. Congress could easily have provided jurisdiction for all types of restrictions on point sources by providing a general jurisdiction provision in the Act. See Bethlehem Steel, 538 F.2d at 517. Instead, Congress specified those EPA activities that were directly reviewable by the court of appeals. We interpret the "other limitation" language of subsection 1369(b)(1)(E) as restricted to limitations directly related to effluent limitations.

This approach is not inconsistent with the D.C. Circuit's decisions. While the regulations before the D.C. Circuit implemented policy, they also were highly specific and detailed provisions that directed the point sources to engage in specific types of activity. The CPRs, for example, dictate who must apply for a permit and when, the information that must be contained in a NPDES permit, the application requirements for existing point sources and for new sources, and other highly specific information. See 40 C.F.R. pts. 122-25 (1988).

In comparison, the antidegradation regulation and regional office's interpretation letter provide a general outline of the EPA's policy for maintaining existing water quality.¹⁵ The antidegradation regulation and regional office's [19 ELR 21368] interpretation letter require the state to maintain a water quality standard once that standard has been reached. They also allow the state to permit a point source to emit a greater amount of effluent if the point source can prove that the change is necessary for economic development and that the water quality will not dip below the standard previously achieved. Like a water quality standard, the antidegradation regulation and regional office's letter dictate the type of uses and water quality criteria for the navigable water. See 33 U.S.C. § 1313(c)(2). Unlike an effluent limitation, the antidegradation regulation and regional office's letter do not limit the permissible amount of discharge, but establish criteria for increasing the amount that a point source may emit.

The antidegradation regulation and regional office's letter set policy to be applied to all point sources. They speak in general terms and do not specify what type of proof is needed, the methods to be employed to measure water quality, or the type of economic development that is considered necessary. The EPA addressed its antidegradation regulation and the regional office's letter to the states and not to the point sources. Commonwealth Edison, 649 F.2d at 484. Furthermore the antidegradation regulation is written in terms of policy and indicates the EPA's goals with regard to maintaining existing water quality. These factors indicate that the antidegradation regulation and regional office's letter are not effluent limitations or guidelines for implementing effluent limitations. They therefore do not come within the jurisdiction of the appellate court under 33 U.S.C. § 1369(b)(1)(E).

III. CONCLUSION

We therefore find that although we have subject matter jurisdiction to review the EPA objections to the proposed permits, we are influenced by the doctrine of ripeness to decline review. We also find that the EPA's promulgation of an antidegradation policy is not within our subject matter jurisdiction, as dictated by 33 U.S.C. § 1369(b)(1)(E). We dismiss API's petition for review.

FAIRCHILD, Senior Circuit Judge, concurring. I can agree that EPA's interjection of objections to the originally proposed state permits is "action . . . in denying any permit" for the purpose of Section 1369(b)(1)(F) authorizing review by a court of appeals, although I consider this a close question. I can also agree that immediately after the objection was interposed, the matter was not ripe for review because of the likelihood of further administrative action and the uncertainty whether the action would be state or federal. [It should be recognized that the same lack of finality which makes the matter unripe at this stage creates a strong argument that Congress did not intend to confer jurisdiction to review at this stage in the first place.] In the case before us, however, the matter has proceeded to a further stage in that modified state permits have issued including enough additional limitation on discharges so that EPA has approved. If ripeness be the proper concern, the matter can never become more ripe for federal review.

EPA's objections must have been premised on the proposition that the proposed state permits needed more stringent limitation in order to comply with the federal Act. After the issuance of the modified state permits there is still a controversy whether the more stringent limitation which has resulted from the EPA objection is required by federal law. The matter has not become moot for lack of controversy.

It seems to me, however, that the Act must contemplate in this situation that review of the validity of requiring the resulting more stringent limitation is left to the state. Although the controversy remains, it is not longer a controversy which a federal court of appeals has jurisdiction to decide. The opposite view would mean that Congress intended a most improbable and awkward division of the review of state issued permits between state and federal tribunals. See Chesapeake Bay Foundation v. Virginia State Water, 495 F. Supp. 1229, 1237 (E.D. Va. 1980) ("It thus appears that Congress reserved unto the states the reviewability of state agency permitting decisions.")

1. For the sake of clarity, we will refer to the water pollution control statute in its current form, 33 U.S.C. §§ 1251-1376, as "the Act" unless we need to distinguish between the pre-1977 and post-1977 versions of the statute, in which case we will use the respective terms Federal Water Pollution Control Act (or FWPCA) and Clean Water Act.

2. The state has ninety days to modify its proposed permit if no hearing is held. 33 U.S.C. § 1342(d)(4).

3. In response to EPA objections, WDNR revised the permits it proposed for the Neenah Paper Company and the City of Appleton; based on those revisions, the EPA withdrew its objections to both permits. Neither permit is a subject of this appeal.

4. American Paper Institute is a trade association, some of whose members requested the permits. Trade associations have standing to bring legal challenges on behalf of their members. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 342-43 (1977). The EPA does not challenge API's standing to bring this action.

5. The EPA argues that Senator Muskie's comment in describing the Clean Water Act to the Senate in the 1977 debates indicates a clear intent to preclude federal review of the EPA objections under 33 U.S.C. § 1369(b)(1)(F). Senator Muskie stated:

It is intended that this process be utilized to insure the rapid issuance of an effective, valid permit. The Administrator's action in objecting to a permit would generally not be subject to judicial review since it will always be followed by further administrative action. The final issuance of a permit by EPA would be subject to judicial review pursuant to section [1369](b)(1)(F).

123 Cong. Rec. S19563 (daily ed. Dec. 15, 1977), reprinted in 3 Congressional Research Service, Library of Congress, 95th Cong., 2d Sess., A Legislative History of the Clean Water Act of 1977, at 470 (Comm. Print 1978).

American Paper Institute points out that it is unclear whether Senator Muskie was referring to situations in which the state retains permitting authority or was addressing only those situations in which the EPA takes over issuance of the permit. Furthermore, Senator Muskie made this isolated comment without further explanation or reference to prior Supreme Court precedent regarding subsection (b)(1)(F). Congress is presumed to be aware of a judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change. Lindahl v. Office of Personnel Management, 470 U.S. 768, 782 n.15 (1985); Lorillard v. Pons, 434 U.S. 575, 580 (1978). Congress did not amend subsection 1369(b)(1)(F) when it passed the Clean Water Act. We do not find Senator Muskie's and Congress's intent clear based solely on this comment. Although his comment is clearly relevant, we do not find it dispositive and proceed to analyze the jurisdiction question further.

6. The challenge brought in Crown Simpson preceded the 1977 amendments to FWPCA which empowered the EPA to issue its own permit if the state refused to modify its proposed permit. 33 U.S.C. § 1342(d)(4). The Supreme Court, however, reviewed the challenge after FWPCA was amended. Because the law applicable to the Crown Simpson challenge did not include the Clean Water Act amendment of 1977, the Supreme Court declined to "consider the impact, if any, of this amendment on the jurisdictional issue presented." 445 U.S. at 194.

7. Petitioners in states without state-run permit programs may challenge a permit originated and proposed or denied by the EPA under 33 U.S.C. § 1369(b)(1)(F). Cf. Chicago Assoc. of Commerce & Indus. v. United States EPA, Nos. 87-3057 and 87-3074, slip op. at 11 n.11 (7th Cir. Apr. 28, 1989) (appellate court has jurisdiction to review EPA administrator's denial of a modified permit to obtain removal credits from a public facility under 33 U.S.C. § 1369(b)(1)(F)). When the EPA announces its proposed permit, it "issues" the permit (without waiting for comment from the state). It would be incongruous for the EPA to object to a permit that it proposed. Therefore that step is skipped and the EPA simply issues the permit, at which time petitioners may seek review in the federal court of appeals.

8. In discussing the petitioners' access to district court if the appellate court denied jurisdiction under subsection 1369(b)(1)(F), the Supreme Court cited E.I. duPont de Nemours & Co. v. Train, 430 U.S. 112, 127-28 (1977). The duPont Court held that the court of appeals would have jurisdiction to review effluent limitations designed to meet 1983 and 1977 goals because splitting review of these effluent limitations between the district and appellate court would be "highly anomalous." Id.; District of Columbia v. Schramm, 631 F.2d 854, 857 n.10 (D.C. Cir. 1980) (district court has jurisdiction to review EPA's failure to object to state proposed permit); Central Hudson Gas & Elec. Corp. v. United States EPA, 587 F.2d 549, 555 (2d Cir. 1978) ("the general grant of federal question jurisdiction found in 28 U.S.C. § 1331(a) . . . gives the district courts jurisdiction to review agency action"). At least one court has noted, however, that the jurisdiction of district courts to hear cases under the Act is arguably unsettled. Natural Resources Defense Council v. United States EPA, 673 F.2d 400, 402 n.4, 404 n.14 (D.C. Cir. 1982).

9. Certain language in the Fourth Circuit's decision in Champion Int'l Corp. v. United States EPA, 850 F.2d 182 (4th Cir. 1988), suggests that the Clean Water Act amendment authorizing the EPA to issue a permit if the state refused to modify its proposal evidenced Congress's intent to preclude both appellate and district court jurisdiction. We believe the underlying reasoning of Champion, however, closely parallels our own. In Champion the appellate court vacated the district court's opinion on the merits in a challenge to the EPA's objections because the Fourth Circuit held that the district court lacked jurisdiction to review the EPA's objections. 850 F.2d at 183. The Fourth Circuit intertwined its discussion of the doctrine of finality with the issue of subject matter jurisdiction under subsection 1369(b)(1)(F). The Fourth Circuit emphasized that subsection 1369(b)(1)(F) explicitly gave jurisdiction to the appellate court but apparently rejected reviewability under 1369(b)(1)(F) because the objections were not final permit denials. See id. at 187-88. The court also held that the district court did not have jurisdiction because the objections were not final versions of the permits to be issued. See id. at 188. We read Champion as holding that, even if the district court had federal question jurisdiction to review the EPA objections, the objections were not final agency action. This is in keeping with our own findings. See also E.I. duPont de Nemours & Co. v. Train, 528 F.2d 1136 (4th Cir. 1975) ("Only those courts upon which Congress has bestowed authority [under the Clean Water Act] have jurisdiction" to review challenges), aff'd, 430 U.S. 112 (1977).

10. Senator Muskie's comment, in explaining the EPA's new authority to issue a permit after the EPA objects, indicates that he believed all federal review would be foreclosed. This isolated comment, however, does not constitute clear and convincing evidence that such was Congress's intent.

We glean from Senator Muskie's comment an intent to delay review until the administrative action is final. Although the issues of finality and subject matter jurisdiction are intermeshed, they address different judicial concerns. Senator Muskie was not referring to the review section of the Act, 33 U.S.C. § 1369(b)(1), when he made this comment but was explaining 33 U.S.C. § 1342(d)(4), the provision that gave the EPA authority to issue a permit if the state refused to modify its proposed permit. No debate followed his comment. Nor did Congress alter section 1369(b)(1) when it passed the Clean Water Act amendments in 1977. Although we believe Senator Muskie's comment is relevant to the issue of whether the objections are final administrative action, we can not interpret this isolated comment as indicating a clear intent to deny subject matter jurisdiction in the district courts if we deny review under subsection 1369(b)(1)(F).

11. Some petitioners (those from states with permitting authority) would attempt to obtain jurisdiction in district court while other petitioners (those from states without permitting authority) would obtain direct review in appellate court.

12. API argues that the Supreme Court decided whether the objection was final agency action ripe for review when it decided Crown Simpson. That issue, although related to the appellate court's jurisdiction to review the EPA objections, differs from the issue of ripeness. Furthermore, the procedures following an EPA objection have materially changed since Crown Simpson was decided.

13. The EPA argues that API must have brought the claim within 120 days of the promulgation of the antidegradation statute in order to obtain relief under section 1369(b)(1). Because we hold that we do not have subject matter jurisdiction, we do not reach the merits of this argument.

14. EPA contends that it promulgated the antidegradation policy under 33 U.S.C. § 1313, the statutory provision for water quality standards and implementation plans. Because we do not have jurisdiction under subsection 1369(b)(1)(E) to review the substantive claim, we will not address whether the EPA has correctly interpreted its authority under the statute.

15. The antidegradation regulation as issued by the EPA states:

(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 levels necessary to support propagation of fish, 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.

(4) In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be consistent with section 316 of the Act.

40 C.F.R. § 131.12 (1988).