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.
"We find nothing in the act to support this reading. " Stevens said the "categorical ban" supported by the appeals court "might frustrate the construction of new plants that would improve existing conditions. " He also sided with the EPA's chief judicial officer, who ruled that Oklahoma standards "would only be violated if the discharge effected an 'actually detectable or measurable' change in water quality. " And the high court sided with an administrative law judge's finding that "the Fayetteville discharge would not lead to a detectable change in water quality (downstream)" and therefore "would not violate the Oklahoma water quality standards. " In finding otherwise, the circuit court "made a policy change that it was not authorized to make," Stevens wrote.
After learning of the ruling, Loving said, "We will not allow the Illinois River to be destroyed. " Loving said the court "has left open the door for us to attack the dumping permit once we show detectable impact on the river. ... " "We will aggressively oppose any reissuance of the Fayetteville plant's EPA permit the moment we have obtained the proof we need of any detectable impact on the river. " Loving said no study of the river's water quality has been finished since Fayetteville began its discharges.
She said a study would take about a year to complete.
A request for a new permit for the Fayetteville plant has been held in abeyance pending the outcome of the lawsuit, she said.
"We'll be trying to get information together to fight that permit by showing that there is a detectable impact," she said.
Sen. David Boren, D-Seminole, also said he was disappointed by the court's decision.
"The EPA clearly did not sufficiently consider Oklahoma's interest," Boren said.
Staff writer Paul English contributed to this report. BIOG: NAME:Archive ID: 495419