Environmental Protection Agency v. California Ex Rel. State Water Resources Control Board

delivered the opinion of the Court.

The issue in this case which arises under the Federal Water Pollution Control Act Amendments of 1972 (Amendments), 86 Stat. 816, 33 U. S. C. § 1251 et seq. (1970 ed., Supp. IV), is whether federal installations discharging water pollutants in a State with a federally approved permit program are to secure their permits from the State, or from the Environmental Protection *202 Agency (EPA). As with the related Clean Air Act issue decided this day in Hancock v. Train, ante, p. 167, decision of the specific statutory question- — whether obtaining a state permit is among those “requirements respecting control and abatement of pollution” with which federal facilities must comply under § 313 of the Amendments 1 — • is informed by constitutional principles governing submission of federal installations to state regulatory authority.

I

Before it was amended in 1972, the Federal Water Pollution Control Act 2 employed ambient water quality standards specifying the acceptable levels of pollution in a State's interstate navigable waters as the primary mechanism in its program for the control of water pollution. 3 This program based on water quality standards, which were to serve both to guide performance by polluters and to trigger legal action to abate pollution, proved ineffective. The problems stemmed from the character of the standards themselves, which focused on the tolerable effects rather than the preventable causes of water pollution, from the awkwardly shared federal and state responsibility for promulgating such standards, 4 and from the cumbrous enforcement procedures. These combined to make it very difficult to develop and *203 enforce standards to govern the conduct of individual polluters.

Some States developed water quality standards and plans to implement and enforce them, and some relied on discharge permit systems for enforcement. Others did not, and to strengthen the abatement system federal officials revived the Refuse Act of 1899, § 13, 30 Stat. 1152, 33 U. S. C. § 407, which prohibits the discharge of any matter into the Nation’s navigable waters except with a federal permit. 5 Although this direct approach to water pollution abatement proved helpful, it also was deficient in several respects: The goal of the discharge permit conditions was to achieve water quality standards rather than to require individual polluters to minimize effluent discharge, the permit program was applied only to industrial polluters, some dischargers were required to obtain both federal and state permits, and federal permit authority was shared by two federal agencies. 6

In 1972, prompted by the conclusion of the Senate Committee on Public Works that “the Federal water pollution control program . . . has been inadequate in every vital aspect,” 7 Congress enacted the Amendments, declaring “the national goal that the discharge of pollutants into the navagible waters be eliminated by 1985.” 8 *204 For present purposes the Amendments introduced two major changes in the methods to set and enforce standards to abate and control water pollution. First, the Amendments are aimed at achieving maximum “effluent limitations” on “point sources,” as well as achieving acceptable water quality standards. A point source is “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged.” 9 An “effluent limitation” in turn is “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 . . . including schedules of compliance.” 10 Such direct restrictions on discharges facilitate enforcement by making it unnecessary to work backward from an overpolluted body of water to determine which point sources are responsible and which must be abated. In addition, a discharger’s performance is now measured against strict technology-based 11 effluent limitations— specified levels of treatment — to which it must conform, rather than against limitations derived from water *205 quality standards to which it and other polluters must collectively conform. 12

Second, the Amendments establish the National Pollutant Discharge Elimination System (NPDES) 13 as a means of achieving and enforcing the effluent limitations. Under the NPDES, it is unlawful for any person to discharge a pollutant without obtaining a permit and complying with its terms. 14 An NPDES permit serves to transform generally applicable effluent limitations and other standards — including those based on water quality — into the obligations (including a timetable for compliance) of the individual discharger, and the Amendments provide for direct administrative and judicial enforcement of permits. §§ 309 and 505, 33 U. S. C. §§ 1319 and 1365 (1970 ed., Supp. IV). With few exceptions, for enforcement purposes a discharger in compliance with the terms and conditions of an NPDES permit is deemed to be in compliance with those sections of the Amendments on which the permit conditions are based. §402 (k), 33 U. S. C. § 1342 (k) (1970 ed., Supp. IY). In short, the permit defines, and facilitates compliance with, and enforcement of, a preponderance of a discharger's obligations under the Amendments.

*206 NPDES permits are secured, in the first instance, from the EPA, which issues permits under the authority of §402 (a)(1), 33 U. S. C. § 1342 (a)(1) (1970 ed., Supp. IV). Section 402 (a)(3) requires the EPA permit program and permits to conform to the “terms, conditions, and requirements” of § 402 (b). 15 Consonant *207 with its policy “to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, *208 reduce, and eliminate pollution,” 16 Congress also provided that a State may issue NPDES permits “for discharges into navigable waters within its jurisdiction,” but only upon EPA approval of the State's proposal to administer its own program. The EPA may require modification or revision of a submitted program but when a plan is in compliance with the EPA's guidelines under § 304 (h)(2), 33 U. S. C. § 1314 (h)(2) (1970 ed., Supp. IV), and is supported by adequate authority to achieve the ends of §§ 402 (b) (1) — (9), n. 15, supra, and to administer the described program, the EPA shall approve the program and “suspend the issuance of permits under [§402 (a)] as to those navigable waters subject to such program.” 17

The EPA retains authority to review operation of a State's permit program. Unless the EPA waives review for particular classes of point sources or for a particular permit application, §§402 (d)(3), (e), 33 U. S. C. §§ 1342 (d)(3), (e) (1970 ed., Supp. IV), a State is to forward a copy of each permit application to the EPA for review, and no permit may issue if the EPA objects that issuance of the permit would be “outside the guidelines and requirements” of the Amendments. §§ 402 (d) (1), (2), 33 U. S. C. §§ 1342(d)(1), (2) (1970 ed., Supp. IV). In addition to this review authority, after notice and opportunity to take action, the EPA may withdraw approval of a state permit program which is not being administered in compliance with §402. §402 (c)(3), 33 U. S. C. § 1342 (c)(3) (1970 ed., Supp, IY).

*209 The Amendments also sought to enlist “every Federal agency ... to provide national leadership in the control of water pollution in [its] operations." 18 To do so, 33 U. S. C. § 1171 (a), which required federal agencies, “consistent with the paramount interest of the United States as determined by the President [to] insure compliance with applicable water quality standards," was amended by adding § 313, 19 providing that federal installations must “comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements." 33 U. S. C. § 1323 (1970 ed., Supp. IV).

II

On May 14, 1973, the Acting EPA Administrator approved the State of California’s request to administer its own NPDES permit program and, effective that date, suspended EPA issuance of all permits for “all discharges in the State of California, other than those from agencies and instrumentalities of the Federal government.” App. 18. Soon after this first approval of a state program and after correspondence exchanging views on a State’s authority to issue permits to federal installations, the EPA informed the State of Washington that it “does not have the prerogative to delegate permit issuance for Federal facilities to any state.” Id., at 6. Shortly *210 thereafter the State of Washington’s permit program was rejected as "missing important components,” id., at 7, the EPA reaffirming its position that it had “sole authority to issue permits to federal facilities.” Id., at 25.

California and Washington filed petitions for review under §509 (b)(1), which authorizes a court of appeals to review "the Administrator’s action . . . (D) in making any determination as to a State permit program submitted under section 402(b).” 20 The two States argued that § 313 authorized States with approved NPDES permit programs to require federal dischargers to obtain state permits. The States also argued that § 402 gave the EPA no authority to suspend operation of its permit program in a State only for nonfederal dis-chargers. The Court of Appeals agreed. Mindful of “strong structural and terminological similarities between the Clean Air Act and the 1972 Water Pollution Control Act Amendments” and of the division in the Courts of *211 Appeals as to the meaning of § 118 of the Clean Air Act, 21 the court found in the Amendments several measures, which it thought had no counterpart in the Clean Air Act and which in its view indicated that federal dischargers were subject to state permit requirements. However the Clean Air Act issue might be resolved, the court concluded that those other indications in the Amendments were sufficiently clear to satisfy the appropriate constitutional conditions for subjecting federal installations to state regulation, and held that federal installations were required to secure state NPDES permits. 511 F. 2d 963, 973 (CA9 1975). We granted the EPA’s petition for certiorari, 422 U. S. 1041 (1975), and now reverse the judgment of the Court of Appeals.

rH 1 — 1 1 — 1

Our decision in this case is governed by the same fundamental principles applied today in Hancock v. Train, ante, at 179: Federal installations are subject to state regulation only when and to the extent that congressional authorization is clear and unambiguous. As in Hancock v. Train, we must determine whether Congress has subjected federal installations to the degree of state control urged by the States. The only section of the Amendments expressly obliging federal installations to comply with general measures to abate water pollution 22 is § 313, which provides in part:

“Each department, agency, or instrumentality of the executive, legislative, and judicial branches of the Federal Government (1) having jurisdiction *212 over any property or facility, or (2) engaged in any activity resulting, or which, may result, in the discharge or runoff of pollutants shall comply with Federal, State, interstate, and local requirements respecting control and abatement of pollution to the same extent that any person is subject to such requirements, including the payment of reasonable service charges.” 86 Stat. 875, 33 U. S. C. § 1323 (1970 ed., Supp. IY).

Except for the reference to service charges, § 313 is virtually identical to § 118 of the Clean Air Act, 42 U. S. C. § 1857f. 23 Taken alone, § 313, like § 118 of the Clean Air Act, states only to what extent — the same as any person- — -federal installations must comply with applicable state requirements. Section 313 does not expressly provide that federal dischargers must obtain state NPDES permits. Nor does § 313 or any other section of the Amendments expressly state that obtaining a state *213 NPDES permit is a “requirement respecting control and abatement of pollution.” 24

The EPA’s position is that the Amendments make clear “only that facilities of the executive, legislative and judicial branches operating within the states must comply with the applicable effluent limitations and compliance schedules promulgated by the particular state pursuant to its E. P. A.-approved implementation plan,” as incorporated in EPA-issued permits, not that they comply with “state regulations demanding that sources of discharges — including federal facilities — obtain discharge permits.” 25 The States claim that this distinction “between permits and effluent ‘limitations’ . . . ignores the fact that the mechanism by which such ‘limitations’ are formulated and applied to individual dischargers is by the permit system established in section 402.” 26 From this the States, recognizing that § 313 itself does not subject federal dischargers to their permit programs, derive their principal argument that a State’s authority to subject federal installations to its EPA-approved permit program must be implied from the practical needs of administering an NPDES permit program, and that this implication is sufficiently clear to satisfy the governing constitutional standard. In their view, the EPA’s agree *214 ment that the States have authority to develop and set the substantive content of permits issued to federal dis-chargers is an empty concession; without being able to subject federal installations to its own NPDES program a State is without effective means to formulate and apply the conditions which the EPA must make part of the permit for each individual source.

Congress used virtually the same language in § 313 as in § 118 of the Clean Air Act; and our conclusion in Hancock v. Train, ante, p. 167, that the Clean Air Act is without clear indication that Congress intended federal installations emitting air pollutants to be subject to the permit program of a State’s implementation plan makes it difficult for the States to establish that for similar purposes the same language becomes sufficiently clear in § 313 of the Amendments. There are, of course, significant differences between the Clean Air Act and the Amendments. Only the Amendments expressly provide for a permit program to aid in abating pollution. In comparison with the Clean Air Act, the Amendments give the EPA a more prominent role in relation to the States; a State is not required to develop an NPDES permit program, and until a State does develop a permit program all dischargers in the State are subject to a permit program developed and carried out by the EPA. In addition, under the Amendments the EPA’s role in developing the effluent limitations that serve as the basis for a State’s NPDES permit conditions 27 is more prominent than in developing the ambient air qual *215 ity standards which are the foundation of the emission standards in a State’s Clean Air Act implementation plan. In the aggregate, these differences tend to support the EPA’s position and in any event they hardly require a conclusion contrary to Hancock v. Train, particularly since, in the Court of Appeals’ words, “certain parts of the legislative history would seem to indicate that the 'requirements’ language of Section 313 refers simply and solely to substantive” standards, to effluent limitations and standards and schedules of compliance. 511 E. 2d, at 969. 28

*216 With these obstacles to the States' position in mind, we examine the reasons which collectively led the Court of Appeals to conclude and the States to contend that the Amendments clearly require federal installations to secure state NPDES permits. The Court of Appeals first concluded that such an implication appears in the final phrase of the first sentence of § 313 — “including the payment of reasonable service charges.” This language, it is argued, must refer to charges incident to a state permit program: If payment of such charges is a “requirement,” it must be that Congress intended federal installations to secure state NPDES permits, for there would be no reason to order federal installations to pay fees for a permit which they are not required to obtain. However, the legislative history of § 313 casts no light on the meaning of this clause, 29 and it is not immedi *217 ately clear from the face of § 313 that the phrase does refer to application and service charges associated with an NPDES permit program. Indeed, the term “service charges” might as well be taken to refer to recurring charges for performing a service such as treating sewage, as to fees for accepting and processing a permit application. The EPA so reads the statute and it is not an unreasonable construction. 30 At the very least, the “service charges” language hardly satisfies the rule that federal agencies are subject to state regulation only when and to the extent Congress has clearly expressed such a purpose.

The Court of Appeals also found textual support for its conclusion in § 510 of the Amendments. 31 This *218 section, which is patterned after § 116 of the Clean Air Act, 32 provides that the States may set more restrictive standards, limitations, and requirements than those imposed under the Amendments. 33 Section 510 quite plainly was intended to strengthen state authority. It may also have been intended to permit the States to impose stricter standards and effluent limitations on federal installations than would have been imposed under an EPA permit in the absence of an approved state NPDES program. But this hardly answers the question before us, which is whether these higher standards are to be enforced through a state rather than an EPA permit system. It is nevertheless argued that the meaning of the phrase “requirements respecting control and abatement of pollution” used in § 313 is informed by its use in § 510, an argument akin to one made and rejected in Hancock v. Train, ante, at 186-187, n. 47. We reject it here for much the same reasons: The phrase cannot have the same meaning in both sections, and there is scant reason to credit the States’ position that treating “standards” and “requirements” disjunctively in § 510 somehow dictates that “requirements” in § 313 shall embrace more than “standards.”

Another contention drawing upon § 510 is that a State’s authority to impose stricter substantive standards on federal installations is meaningless if a State cannot subject federal dischargers to its permit system. This is simply an adjunct 34 to the States’ primary argument *219 that no state NPDES permit system can function effectively unless federal dischargers are required to obtain state permits and that federal installations are therefore impliedly, but clearly subject to state permit programs. We cannot agree.

Before a State has its NPDES program approved, it is the EPA which issues permits for all dischargers, federal and nonfederal. Since the Amendments do not require the States to develop NPDES programs, we must assume that the Congress was satisfied that the EPA could administer the program, not only by promulgating the nationwide effluent limitations and other standards required by the Amendments, but also by translating those limitations into the conditions of individual permits for individual federal and nonfederal dischargers. We must also assume that the Congress contemplated that there may be some States, which would elect not to develop an NPDES program but would nonetheless determine — as § 510 permits — to adopt water quality standards or other limitations stricter than those the EPA itself had promulgated and would otherwise apply. This being the case, Congress must have contemplated that the EPA was capable of issuing permits in that State — to both federal and nonfederal dischargers — and of enforcing those stricter standards. Some of those standards — in fact all but those pegged to the quality of the receiving waters — could be translated into permit conditions for each discharger without coordinating the conditions in other permits, because the effluent limitations in the Amendments are technology based and the timetable by which compliance is to be achieved is not made to depend on the performance of other dischargers. Other standards, primarily those involving water quality standards, would require coordination among the permit conditions of numerous polluters — federal and nonfed- *220 eral, and it is evident that Congress contemplated that the EPA was capable of carrying out this function as well.

The presence of the EPA as a permit-issuing authority means that although federal dischargers are not securing state NPDES permits they are nevertheless being subjected to the administrative authority of a federal agency which is required to make a State’s “more stringent limitation [s], including those necessary to meet water quality standards, treatment standards, or schedules of compliance” part of the conditions of the permits it must issue. 35 We recognize that there may be some problems of coordination between the EPA and the state pollution control agency in the implementation of state water quality standards. State officials may view the EPA implementation of a State’s — or its own-water quality standards as placing a disproportionate share of the additional abatement effort on the nonfederal dis-chargers in the State, thereby obligating the State to impose undesirably restrictive effluent limitations on those nonfederal — predominantly private — dischargers. At the same time, Congress might have been apprehensive that *221 state regulatory officials, if in the position to do so, would impose a disproportionate share of the burden on federal dischargers. However that may be, we believe that these possible problems of coordination in the administration of water quality standards fail to provide an adequate basis for finding a clear congressional intention to subject federal dischargers to the degree of control inherent in adhering to state permit requirements respecting water quality standards. 36

The States make several other arguments in support of their position that Congress intended federal dis-chargers to be subject to state NPDES permit programs, that “requirements” in § 313 include securing a state NPDES permit. We find none of them persuasive. They assert that since the EPA’s authority to issue permits to federal dischargers stems at least in part from § 313, it is “capricious” to conclude that the word “requirements” in § 313 refers to permits issued by the EPA under §402 (a), but not to permits issued by a State under §402 (b). The answer to this argument is that the EPA’s authority to issue permits to federal as well *222 as nonfederal dischargers is granted by §402 (a), not § 313. Nor does the “requirement” that a federal dis-charger secure a permit stem from § 313; that also arises from § 402 (a) alone. 37

The States, like the Court of Appeals, 511 F. 2d, at 973, also find support for their position in § 505 of the Amendments, 33 U. S. C. § 1365 (1970 ed., Supp. IY), which provides that a citizen may commence civil actions in district court “against any person (including ... the United States . . .) who is alleged to be in violation of ... an effluent standard or limitation under this Act . . . .” § 505 (a)(1), 33 U. S. C. § 1365 (a)(1) (1970 ed., Supp. IV). One of the definitions of “effluent standard or limitation” for purposes of § 505 is “a permit or condition thereof issued under section 402 of this Act, which is in effect under this *223 Act (including a requirement applicable by reason of section 313 of this Act).” §505 (f)(6), 33 TJ. S. C. § 1365 (f)(6) (1970 ed., Supp. IV). California reads § 505 (f) to equate a “requirement” under § 313 with a permit issued under § 402, as if § 505 (f) (6) were phrased: “any permit or condition thereof issued under Section 402 of this Act, which is in effect under this Act (including one issued to a federal discharger).” In a similar vein, Washington asserts that “[cjitizens may bring suit to enforce permits issued under Section 402,” including “permits and conditions thereof applicable because of Section 313.” Brief 18. It is more reasonable, however, to interpret “requirement” in the parenthetical expression in § 505 (f) (6) as referring principally to a “condition,” not to a “permit.” This is because of the Amendments’ primary reliance on the NPDES as a means to abate and control water pollution. See supra, at 205. For enforcement purposes § 402 (k) deems a permit holder who is in compliance with the terms of its permit to be in compliance “with sections 301, 302, 306, 307, and 403, except any standard imposed under section 307 for a toxic pollutant injurious to human health.” 33 U. S. C. § 1342 (k) (1970 ed., Supp. IV). Thus, the principal means of enforcing the pollution control and abatement provisions of the Amendments is to enforce compliance with a permit. Of the six subdivisions of § 505 (f) defining “effluent standard or limitation,” only § 505 (f) (6) refers to any of the standards or limitations as translated into the conditions of an NPDES permit. Thus, while §§ 505 (f) (2)-(4) permit suits for violation of effluent standards or limitations promulgated under §§ 301, 302, 306, and 307, a suit against a permit holder will necessarily be brought under the definition in § 505 (f)(6); unless the plaintiff can show violation of the permit condition, violation of the Amendments cannot be established. This is true both *224 for conditions imposed in accordance with EPA-promulgated effluent limitations and standards and for those imposed in accordance with more stringent standards and limitations established by a State pursuant to § 510. The reference in § 505 (f) (6) to requirements applicable by reason of § 313 is to be read as making clear that all dischargers (including federal dischargers) may be sued to enforce permit conditions, whether those conditions arise from standards and limitations promulgated by the Administrator or from stricter standards established by the State. 38 In short, we cannot accept the States’ position that the meaning of “requirements” in § 313 they urge is supported by its use in § 505 (f) (6).

Finally, it is argued that when a State submits a plan in conformity with § 402, the EPA must approve it and must then suspend the issuance of all EPA permits with respect to the waters covered by the plan, including permits to federal agencies. 39 Because it is inconceivable *225 that Congress would have intended federal instrumen-talities to operate without permits, it is contended that Congress anticipated the state permit system to apply. *226 The difficulty with this position is that under § 402, the EPA obviously need not, and may not, approve a state plan which the State has no authority to issue because it conflicts with federal law. 40 If § 313 expressly said that federal instrumentalities must comply with state discharge standards but need not secure state permits, it would be untenable to urge that a state plan which nevertheless attempts to subject federal agencies to state permit requirements would have to be approved simply because it was otherwise in compliance with § 402. As we construe § 313, this is the situation before us. By the same token, we do not think that EPA permit authority with respect to federal agencies terminates wheb. the EPA purports to approve a state plan except for that portion of it which seeks to subject federal instrumen-talities to the state permit regime.

From the outset of the EPA’s administration of the NPDES and in its first regulations establishing the § 304 (h) (2) guidelines for state NPDES permit programs, see 37 Fed. Reg. 28391 (1972), the EPA has taken the position that authority to suspend issuance of EPA permits extends only “to those point sources subject to such approved program.” 40 CFR § 124.2 (b) (1975). The implications that the state program would only embrace nonfederal dischargers on those navigable waters subject to the program and that the EPA *227 was authorized to and would continue to issue permits to federal dischargers were soon made explicit in 40 CFR §§ 125.2 (a) (2), (b) (1975), 41 which provide that federal dischargers are to comply with the EPA permit program' and that state NPDES permit programs do not cover federal agencies and instrumentalities. This construction by the agency charged with enforcement of the Amendments is reasonable and in the absence of any cogent argument that it is contrary to congressional intentions we sustain the EPA’s understanding that the States are without authority to require federal dis-chargers to secure their NPDES permits. 42

IV

Our conclusion is that the Federal Water Pollution Control Act Amendments of 1972 do not subject federal facilities to state NPDES permit requirements with the requisite degree of clarity. Should it be the intent of Congress to have the EPA approve a state NPDES program regulating federal as well as nonfederal point sources and suspend issuance of NPDES permits as to *228 all point sources discharging into the navigable waters subject to the State’s program; it may legislate to make that intention manifest.

The judgment of the Court of Appeals is

Reversed.

Mr. Justice Stewart and Mr. Justice Rehnquist dissent. They agree substantially with the reasoning of the Court of Appeals for the Ninth Circuit in this case, 511 F. 2d 963, and they would, accordingly, affirm its judgment.