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High Court Lets Arkansas Dump In Illinois River

Allan Cromley Published: February 27, 1992

WASHINGTON - Oklahoma lost its bid Wednesday before the U.S. Supreme Court to keep Fayetteville, Ark., from dumping treated sewage into the Illinois River.

Without dissent, the court held that a Fayetteville sewage plant may continue to discharge daily up to 6.1 million gallons of treated sewage into a stream that flows into the Illinois, and ultimately into Oklahoma and Lake Tenkiller.

The court overturned a 10th Circuit Court of Appeals finding that the Environmental Protection Agency had erred in allowing the discharge.

"Congress has entrusted such decisions to the Environmental Protection Agency" and not the courts, said Justice John Paul Stevens, who wrote the court's opinion.

Oklahoma Attorney General Susan Loving immediately challenged the ruling, saying the state would fight a reissuance of Fayetteville's EPA permit.

Oklahoma had contended that the discharge, permitted by the EPA in 1988, violated Oklahoma water standards, which allow "no degradation" of water quality in the Illinois River.

The state argued that pollution from Arkansas generates algae-creating phosphorus in the Illinois River that will contribute to the destruction of fish.

The river, which has recreational use in Oklahoma, empties into the Tenkiller Reservoir southeast of Muskogee.

In briefs filed with the court, Arkansas argued that the Clean Water Act did not require Arkansas to comply with Oklahoma's water quality standards.

Stevens agreed with an administrative law judge who found that the discharge would not have an "undue impact" on Oklahoma's waters.

The Bush administration had sided with Arkansas, contending that veto of the EPA permit for Fayetteville would jeopardize many of the approximately 12,000 EPA-approved permits for pollution discharges up for renewal each year.

The 10th Circuit court took the position that the Illinois River in Oklahoma was already polluted and that any additional pollution would be unacceptable.

Stevens wrote in his opinion, "The court of appeals construed the Clean Water Act to prohibit any discharge of effluent that would reach waters already in violation of existing water quality standards.

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