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Arkansas v. Oklahoma. | 503 U.S. 91, 112 S.Ct. 1046, 117 L.Ed.2d 239 (1992)

Most waterways flow downstream into rivers, without any regard for state borders. So how can downstream states control water pollution from upstream states? In Arkansas versus Oklahoma, we’ll see if the Environmental Protection Agency, or EPA, has the authority to regulate one state’s pollution discharges based on a downstream state’s water quality standards.

The city of Fayetteville, Arkansas, applied to the EPA for a National Pollution Discharge Elimination System, or NPDES, permit to discharge treated sewage from a newly constructed sewage plant. The sewage would first be discharged into a stream in northwest Arkansas, then travel through 17 miles of creeks, and eventually get deposited into the Illinois River, 22 miles upstream from the Arkansas Oklahoma border. The EPA issued the permit but put specific limits on the permit, including limiting the quantity and content of the discharge. The permit was also conditioned on maintaining Oklahoma’s water quality standards for the Illinois River. If more stringent limitations were needed for Oklahoma to meet its water quality standards, then the permit would need to be modified.

Oklahoma challenged the EPA’s decision to issue the permit. An administrative law judge heard the case and affirmed the EPA’s decision to issue the permit. The judge held that the discharge would only have a de minimis impact on Oklahoma’s water quality. Oklahoma petitioned for review, and the EPA’s chief judicial officer held that as long as the permit wouldn’t cause a detectable violation of Oklahoma’s water quality standards, then the permit should be upheld.

After the EPA’s holding, Arkansas and Oklahoma sought judicial review of the case. Arkansas argued that its point sources didn’t need to comply with Oklahoma’s water quality standards. Oklahoma argued that the EPA was incorrect in finding that the discharge wouldn’t cause a detectable violation of the standards. The court of appeals reversed the decision to issue the permit. The court held that the Illinois River was already degraded, so even if the discharge wouldn’t detectably affect the quality of the river, it would contribute to the deterioration. The United States Supreme Court granted cert.

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