## Facts

- Congress enacted the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) to restore and maintain the integrity of the nation’s waters.
- The Act created the NPDES permit program, generally prohibiting pollutant discharges into navigable waters without a permit and requiring progressively stricter controls.
- The Act contemplated that states could administer NPDES programs upon EPA approval, after EPA issued guidelines describing minimum program elements.
- Section 101(e) directed that public participation in the development, revision, and enforcement of programs under the Act be provided for, encouraged, and assisted by EPA and the states.
- Illinois applied for EPA approval to run its own NPDES program; EPA approved the application in 1977.
- Illinois’s program provided citizen mechanisms including (1) filing complaints or bringing actions before the Illinois Pollution Control Board and (2) intervention in state enforcement actions.
- At the time of approval, EPA had not promulgated guidelines specifying minimum requirements for public participation in enforcement for state-run NPDES programs.
- Citizens for a Better Environment petitioned for review, arguing EPA could not lawfully assess or approve Illinois’s enforcement-related public-participation provisions without first issuing such guidelines.

## Issues

1. Whether EPA’s approval of Illinois’s NPDES program was invalid because EPA failed to promulgate guidelines establishing minimum requirements for public participation in enforcement before approving the state program.

## Decision

- The Seventh Circuit granted the petition for review and set aside EPA’s approval of Illinois’s NPDES program.
- The court held the approval was invalid because EPA had not established guidelines to evaluate the adequacy of Illinois’s public-participation provisions in enforcement.
- The court rejected EPA’s position that the Act’s public-participation language was too general to require guidelines as a prerequisite to program approval and that EPA could make an ad hoc adequacy determination.

## Legal Principles

- When a statutory scheme directs an agency to encourage and structure public participation and contemplates state program approval based on minimum federal elements, the agency must issue prospective, generally applicable standards sufficient to evaluate state submissions.
- Under the Clean Water Act, EPA may not validly approve a state NPDES program’s enforcement-related citizen-participation provisions without first promulgating guidelines specifying the minimum public-participation requirements for enforcement.
- Agency approval of a state program made without required evaluative guidelines is inconsistent with the statute and must be set aside.

## Conclusion

The court invalidated EPA’s approval of Illinois’s state-run NPDES program because EPA had not first issued enforceable guidelines defining the minimum requirements for public participation in enforcement, leaving EPA without a lawful benchmark to assess the state program’s adequacy.


Citizens for a Better Env’t v. EPA, 596 F.2d 720 (7th Cir. 1979)