634
Opinion of White, J.
Even when a State obtains approval to administer its permitting system, the Federal Government maintains an extraordinary level of involvement. EPA reviews state water quality standards. 33 U. S. C. § 1313(c). It retains authority to object to the issuance of particular permits, § 1342(d)(2), to monitor the state program for continuing compliance with federal directives, § 1342(c), and even to enforce the terms of state permits when the State has not instituted enforcement proceedings, § 1319(a).
Under this unusual statutory structure, compliance with a state-administered permit is deemed compliance with the CWA. § 1342(k). Indeed, in EPA v. Oklahoma, decided together with Arkansas v. Oklahoma, the EPA asserted that "the showing necessary to determine under the CWA whether there is compliance with any particular state [pollution] standard is itself a matter of federal, not state, law." Brief for Petitioner, O. T. 1991, No. 90-1266, p. 18, n. 21 (emphasis added). Cf. Arkansas v. Oklahoma, ante, at 110 (recognizing the "federal character" of state pollution standards in interstate pollution controversy). This conclusion is not surprising, since the citizen suit provision of the CWA authorizes any citizen to sue under federal law for a "violation of . . . an order issued by . . . a State with respect to [any effluent] standard or limitation . . . ." 33 U. S. C. § 1365(a).
Given the structure of the CWA, it is apparent that the "arising under" limitation on the waiver of sovereign immunity was not intended to protect the Federal Government from exposure to penalties under state laws that merely provide for the administration of a CWA permit system. Instead, the limitation shields the Government from liability under state laws that have not been subject to initial EPA review and ongoing agency supervision.5 Only by resorting
5 States may adopt more rigorous water quality standards than those established under the CWA. EPA regulations provide that a State is not precluded from:
Page: Index Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 NextLast modified: October 4, 2007