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Opinion of the Court
to save the right and jurisdiction of a state to regulate activity occurring within the confines of its boundary waters." Illinois v. Milwaukee, 731 F. 2d 403, 413 (CA7 1984), cert. denied, 469 U. S. 1196 (1985).
This Court subsequently endorsed that analysis in International Paper Co. v. Ouellette, 479 U. S. 481 (1987), in which Vermont property owners claimed that the pollution discharged into Lake Champlain by a paper company located in New York constituted a nuisance under Vermont law. The Court held the Clean Water Act taken "as a whole, its purposes and its history" pre-empted an action based on the law of the affected State and that the only state law applicable to an interstate discharge is "the law of the State in which the point source is located." Id., at 493, 487. Moreover, in reviewing § 402(b) of the Act, the Court pointed out that when a new permit is being issued by the source State's permit-granting agency, the downstream State
"does not have the authority to block the issuance of the permit if it is dissatisfied with the proposed standards. An affected State's only recourse is to apply to the EPA Administrator, who then has the discretion to disapprove the permit if he concludes that the discharges will have an undue impact on interstate waters. § 1342(d)(2). . . . Thus the Act makes it clear that affected States occupy a subordinate position to source States in the federal regulatory program." Id., at 490-491.6
6 This description of the downstream State's role in the issuance of a new permit by a source State was apparently consistent with the EPA's interpretation of the Act at the time. The Government's amicus curiae brief in Ouellette stated that "the affected neighboring state [has] only an advisory role in the formulation of applicable effluent standards or limitations. The affected state may try to persuade the federal government or the source state to increase effluent requirements, but ultimately possesses no statutory authority to compel that result, even when its waters are adversely affected by out-of-state pollution. See 33 U. S. C. § 1341(a)(2), 1342(b)(3) and (5) . . . ." Brief for United States as Amicus Curiae, O. T. 1986, No. 85-1233, p. 19 (emphasis added; footnote omitted).
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