milwaukee illinois argued december decided april original proceedings brought respondent state illinois alleging petitioners city milwaukee sewerage commission milwaukee county metropolitan sewerage commission wisconsin cities polluting lake michigan overflows untreated sewage sewer systems discharges inadequately treated sewage treatment plants recognized existence federal common law give rise claim abatement nuisance caused interstate water pollution declined exercise original jurisdiction availability lower action illinois milwaukee accordingly illinois filed suit respondent state michigan intervened federal district seeking abatement federal common law public nuisance petitioners allegedly creating discharges five months later congress passed federal water pollution control act act amendments established new system regulation making illegal discharge pollutants nation waters except pursuant permit incorporated conditions regulations environmental protection agency epa establishing specific effluent limitations permits issued either epa qualifying state agency petitioners operated sewer systems permits issued wisconsin department natural resources dnr action pending dnr brought action wisconsin state compel compliance permits requirements state entered judgment requiring discharges treatment plants meet effluent limitations permits establishing timetable additional construction control sewage overflows thereafter district found existence federal nuisance proved entered judgment specifying effluent limitations treated sewage construction timetable eliminate overflows went considerably beyond terms petitioners permits state enforcement order appeals ruling amendments act preempted federal common law nuisance upheld district order elimination overflows reversed insofar district effluent limitations treated sewage stringent petitioners permits applicable epa regulations held federal common law area national concern resorted absence applicable act congress compelled consider federal questions answered federal statutes alone recognized illinois milwaukee supra congress addresses question previously governed decision rested federal common law need unusual exercise lawmaking federal courts disappears unlike determination whether federal law state law requires evidence clear manifest congressional purpose preempt state law determination whether federal statutory federal common law governs starts assumption congress federal courts articulate appropriate standards applied matter federal law pp federal remedy available respondents case pp least far concerns respondents claims congress viewed amendments act total restructuring complete rewriting existing water pollution legislation considered illinois milwaukee left formulation appropriate federal standards courts application often vague indeterminate nuisance concepts maxims equity jurisprudence rather occupied field establishment comprehensive regulatory program supervised expert administrative agency pp contemplated congress problem effluent limitations discharges petitioners treatment plants thoroughly addressed administrative scheme established congress thus basis federal reference federal common law impose stringent limitations similarly overflows untreated sewage petitioners sewer system addressed regulatory regime established act dnr imposing conditions suited act goals bringing enforcement action specifically addressed overflow problem absence overflow effluent limitations permits enforcement order render federal common law available since relevant question concentration various pollutants permitted degree control required preventing overflows ensuring sewage undergoes treatment decision made appropriate agency basis permit procedure done pp illinois milwaukee decided illinois forum protect interests unless federal common law created however amendments congress provided ample opportunity state affected decisions neighboring state agency seek redress respondents avail statutory procedures pp section act provides nothing act shall preclude adopting enforcing limitations discharge pollutants stringent adopted act indicate congressional intent preserve federal remedy recognized illinois milwaukee nothing suggests may call upon federal courts employ federal common law establish stringent standards applicable discharges subdivision provision act provides nothing section shall limit remedies might exist indicate congressional intent preserve federal remedy mean act whole supplant formerly available federal actions means particular section authorizing citizen suits pp legislative history amendments regard certain discussions provisions relating effect amendments pending lawsuits relevant discussions focused suits brought federal statutes federal common law related suits brought federal government suggest intent concerning continued validity federal common law pp rehnquist delivered opinion burger brennan stewart white powell joined blackmun filed dissenting opinion marshall stevens joined post elwin zarwell argued cause petitioners briefs richard cutler samuel recht james baxter iii andrew barnes james brennan michael mccabe joseph karaganis special assistant attorney general illinois argued cause respondents brief respondent state illinois tyrone fahner attorney general sanford gail special assistant attorney general russell eggert brief respondent state michigan frank kelley attorney general robert derengoski solicitor general stewart freeman thomas emery assistant attorneys general andrew levander argued cause pro hac vice amicus curiae urging affirmance brief solicitor general mccree assistant attorney general moorman deputy solicitor general claiborne dirk snel martin matzen michele corash briefs amici curiae urging reversal filed bronson la follette attorney general david hanson deputy attorney general nancy arnold linda bochert assistant attorneys general state wisconsin george crockett city detroit john cannon legal foundation briefs amici curiae urging affirmance filed robert abrams attorney general shirley siegel solicitor general cyril moore mary lyndon assistant attorneys general state new york william becker new england legal foundation briefs amici curiae filed richard kissel jeffrey fort illinois state chamber commerce robert hillstrom metropolitan waste control commission ross davis john gunther stephen chapple national league cities et al justice rehnquist delivered opinion litigation first us recognized existence federal common law give rise claim abatement nuisance caused interstate water pollution illinois milwaukee subsequent decision congress enacted federal water pollution control act amendments granted certiorari consider effect legislation previously recognized cause action petitioners city milwaukee sewerage commission city milwaukee metropolitan sewerage commission county milwaukee municipal corporations organized laws wisconsin together construct operate maintain sewer facilities serving milwaukee county area square miles population one million people facilities consist series sewer systems two sewage treatment plants located shores lake michigan miles illinois border respectively sewer systems separated combined variety separated sewer system carries sewage treatment combined sewer system gathers sewage storm water runoff transports conduits treatment occasion particularly spell wet weather overflows occur system result discharge sewage directly lake michigan tributaries leading lake michigan overflows occur discrete discharge points throughout system respondent illinois complains discharges well inadequate treatment sewage two treatment plants constitute threat health citizens pathogens viruses bacteria allegedly discharged lake overflows inadequately treated sewage transported lake currents illinois waters illinois also alleges nutrients sewage accelerate eutrophication aging lake respondent michigan intervened issue illinois claim first brought illinois sought leave file complaint original jurisdiction illinois milwaukee supra declined exercise original jurisdiction dispute two illinois available action federal district reasoned federal law applied dispute one sovereign state political subdivisions another state concerning pollution interstate waters various laws congress enacted touching interstate waters necessarily federal remedies available illinois appeal federal common law abate public nuisance interstate navigable waters recognized however may happen new federal laws new federal regulations may time field federal common law nuisance time comes pass federal courts empowered appraise equities suits alleging creation public nuisance water pollution five months later congress recognizing federal water pollution control program inadequate every vital aspect legislative history water pollution control act amendments committee print compiled senate committee public works library congress ser hereinafter leg hist passed federal water pollution control act amendments pub stat amendments established new system regulation illegal anyone discharge pollutants nation waters except pursuant permit act ed supp iii extent environmental protection agency charged administering act promulgated regulations establishing specific effluent limitations limitations incorporated conditions permit see generally epa state water resources control board permits issued either epa qualifying state agency petitioners operated sewer systems discharged effluent permits issued wisconsin department natural resources dnr duly qualified act ed supp iii agency superintendence epa see epa state water resources control board supra petitioners fully comply requirements permits contemplated act see stat ann west state agency brought enforcement action state may state entered judgment requiring discharges treatment plants meet effluent limitations set forth permits establishing detailed timetable completion planning additional construction control sewage overflows trial illinois claim commenced january july district rendered decision finding respondents proved existence nuisance federal common law discharge inadequately treated sewage petitioners plants discharge untreated sewage sewer overflows ordered petitioners eliminate overflows achieve specified effluent limitations treated sewage app pet cert judgment order entered november specified construction timetable completion detention facilities eliminate overflows separated sewer overflows completely eliminated combined sewer overflows detention facilities constructed must large enough permit full treatment water storm largest storm record milwaukee area aspects decision concerning overflows concerning effluent limitations exception effluent limitation phosphorus went considerably beyond terms petitioners previously issued permits enforcement order state appeal appeals seventh circuit affirmed part reversed part ruled amendments federal common law nuisance applying federal common law nuisance water pollution case ignore act look policies principles guidance reversed district insofar effluent limitations imposed treated sewage stringent permits applicable epa regulations order eliminate overflows however construction schedule designed achieve goal upheld ii federal courts unlike state courts general courts possess general power develop apply rules decision erie tompkins hudson goodwin cranch enactment federal rule area national concern decision whether displace state law generally made federal judiciary purposefully insulated democratic pressures people elected representatives congress wallis pan american petroleum erie recognized much ruling federal generally apply federal rule decision despite existence jurisdiction absence applicable act congress congress spoken particular issue however exists significant conflict federal policy interest use state law wallis supra found necessary restricted instances wheeldin wheeler develop federal common law see clearfield trust nothing process suggests courts better suited develop national policy areas governed federal common law areas usual important concerns appropriate division functions congress federal judiciary inapplicable see tva hill diamond chakrabarty gilman always recognized federal common law subject paramount authority congress new jersey new york resorted absence applicable act congress clearfield trust supra compelled consider federal questions answered federal statutes alone duhme fdic jackson concurring see also board commissioners little lake misere land miree dekalb county burger concurring judgment federal common law necessary expedient committee consideration jones falls sewage system train en banc congress addresses question previously governed decision rested federal common law need unusual exercise federal courts disappears pointedly recognized illinois milwaukee new federal laws new federal regulations may time field federal common law nuisance lower decision extensively relied upon case texas pankey federal common law applies ntil field made subject comprehensive legislation authorized administrative standards quoted illinois milwaukee supra arizona california example declined apply federal doctrine equitable apportionment developed dealing interstate water disputes congress view majority addressed question true used doctrine equitable apportionment decide river controversies cases congress made statutory apportionment case decided congress provided method allocating among lower basin mainstream water entitled compact congress exercised constitutional power waters courts power substitute notions equitable apportionment apportionment chosen congress realize congress never enacted comprehensive maritime code admiralty courts often called upon supplement maritime statutes death high seas act however announces congress considered judgment issues beneficiaries limitations period contributory negligence survival damages act address every issue law speak directly question courts free supplement congress answer thoroughly act becomes meaningless contrary suggestions respondents appropriate analysis determining federal statutory law governs question previously subject federal common law employed deciding federal law state law considering latter question start assumption historic police powers superseded federal act unless clear manifest purpose congress jones rath packing quoting rice santa fe elevator hesitated find state law whether express implied congress indicated see ray atlantic richfield enforcement state regulations impair federal superintendence field florida lime avocado growers paul analysis included due regard presuppositions embracing federal system including principle diffusion power matter doctrinaire localism promoter democracy san diego building trades council garmon concerns implicated fashion question whether federal statutory federal common law governs accordingly sort evidence clear manifest purpose required indeed noted cases present start assumption congress federal courts articulate appropriate standards applied matter federal law iii conclude least far concerns claims respondents congress left formulation appropriate federal standards courts application often vague indeterminate nuisance concepts maxims equity jurisprudence rather occupied field establishment comprehensive regulatory program supervised expert administrative agency amendments federal water pollution control act merely another law touching interstate waters sort surveyed illinois milwaukee found inadequate supplant federal common law rather amendments viewed congress total restructuring complete rewriting existing water pollution legislation considered case leg hist remarks chairman blatnik house committee drafted house version amendments remarks jones see leg hist remarks chairman randolph senate committee drafted senate version amendments see also epa state water resources control board congress intent enacting amendments clearly establish program water pollution regulation every point source discharge prohibited unless covered permit directly subjects discharger administrative apparatus established congress achieve goals major purpose amendments establish comprehensive policy elimination water pollution leg hist emphasis supplied congressman remarks legislation complete without reference comprehensive nature amendments house sponsor described bill comprehensive water pollution bill ever drafted leg hist mizell senator randolph chairman responsible committee senate stated perhaps comprehensive legislation ever developed field perhaps comprehensive legislation congress ever developed particular field environment obviously correct described amendments establishing comprehensive program controlling abating water pollution train city new york establishment comprehensive program congress certainly exist illinois milwaukee decided strongly suggests room courts attempt improve program federal common law see texas pankey turning particular claims involved case action congress supplanting federal common law perhaps clearest question effluent limitations discharges two treatment plants considered duly issued permits city commission discharges treated sewage jones island south shore treatment plants incorporate required act see ed supp iii specific effluent limitations established epa regulations pursuant act ed supp iii app see cfr thus question problem effluent limitations thoroughly addressed administrative scheme established congress contemplated congress basis federal impose stringent limitations imposed regulatory regime reference federal common law district case appeals believe also erred stating neither minimum effluent limitations prescribed epa pursuant provisions act effluent limitations imposed wisconsin agency national pollutant discharge elimination system limit federal authority require compliance stringent limitations federal common law overflows present different case point source discharges act prohibited unless subject duly issued permit discharge treated sewage overflows permit procedure act referred expert administrative agencies control three permits issued petitioners explicitly address problem overflows jones island south shore permits addition covering discharges treatment plants also cover overflows various lines leading plants issued december permits require city commission initiate program leading elimination control discharge overflow bypass points jones island south shore respectively collector system assure attainment applicable water quality standards app specific discharge points identified commission required submit detailed plan dnr designed achieve objectives including alternative engineering solutions cost estimates file report attached form overflows occur install monitoring devices selected overflows discharge points file detailed quarterly reports overflows points commission also required complete facilities planning combined sewer area facilities planning elements include feasibility study analysis environmental assessment elimination control discharges combined sewers quarterly progress reports planning required permit issued city december covers discharges sanitary sewer crossovers combined sewer crossovers combined sewer overflows discharge points specifically identified separated sewers city required initiate program leading elimination sanitary sewer crossovers gravity electrically operated relief pumps detailed plan achieve objective must submitted alternative engineering solutions cost estimates overflows must reported dnr specified form monitoring devices required installed selected points provide detailed quarterly reports combined sewers city required initiate program leading attainment control overflows city combined sewer system city required cooperate assist city commission facilities planning combined sewers see supra page submit quarterly progress reports dnr file reports discharges install monitoring devices selected discharge points provide detailed quarterly reports discharges eliminated controlled app enforcement action brought dnr state resulted judgment requiring limination bypassing overflowing occurs within sewerage systems dry weather later july wet weather overflows separated sewers subject coordinated effort commissions resulting correction problem july pursuant plan submitted dnr combined sewer overflows commissions required accomplish abatement project design work completed july construction july annual progress reports required submitted dnr quite clear foregoing state agency duly authorized epa issue discharge permits act addressed problem overflows petitioners sewer system agency imposed conditions considered best suited goals act provided detailed progress reports continually monitor situation enforcement action considered appropriate state agency brought contemplated act specifically addressed overflow problem interstice filled federal common law overflows covered act addressed regulatory regime established act although federal may disagree regulatory approach taken agency responsibility issuing permits act disagreement alone basis creation federal common law respondents strenuously argue federal common law continues available stressing neither permits enforcement order effluent limitations overflows argument think something red herring difference treatment overflows treated effluent agencies due differences nature problems extent problems addressed relevant question overflow discharges discharges treated sewage concentration various pollutants permitted rather question degree control required preventing overflows ensuring sewage undergoes treatment question answered construction plans designed accommodate certain amount sewage otherwise discharged overflow occasions epa promulgated regulations mandating specific control guidelines recognition problem site specific see epa program requirements memorandum prm costs benefits control various portions pollution due combined sewer overflows bypasses vary greatly characteristics sewer treatment system duration intensity frequency aerial extent precipitation type extent development service area characteristics uses water quality standards receiving waters decisions grants control combined sewer overflows therefore must made basis detailed planning local level invocation federal common law district appeals face congressional legislation supplanting peculiarly inappropriate areas complex water pollution control district noted well known us arcane subject matter expert testimony case sometimes heads us one height another certainly less candid acknowledge grasp testimony less complete like app pet cert also significant congress addressed amendments one major concerns underlying recognition federal common law illinois milwaukee concerned case illinois forum protect interests unless federal common law created see amendments congress provided ample opportunity state affected decisions neighboring state agency seek redress state agency must ensure state whose waters may affected issuance permit receives notice permit application opportunity participate public hearing wisconsin law accordingly guarantees notice hearing see stat ann west supp respondents received notice permits involved public hearings held participate way section provides state agencies must ensure affected opportunity submit written recommendations concerning permit applications issuing state epa affected state epa must receive notice statement reasons part recommendations affected state accepted respondents avail statutory opportunity supp iii epa may veto permit issued state waters another state may affected respondents request action act supp iii added epa may issue permits stalemate issuing objecting state develops basic grievance respondents permits issued petitioners pursuant act impose stringent enough controls petitioners discharges statutory scheme established congress provides forum pursuit claims expert agencies means process quite inconsistent scheme federal courts effect write ticket guise federal common law permits already issued permittees planning operating reliance respondents argue congressional intent preserve federal remedy recognized illinois milwaukee evident statute section provides nothing act shall preclude adopting enforcing limitations discharge pollutants stringent adopted act one thing however say may adopt stringent limitations state administrative processes even may establish limitations state nuisance law apply dischargers quite another say may call upon federal courts employ federal common law establish stringent standards applicable dischargers standards established federal common law federal standards authority impose stringent standards seem relevant section clearly contemplates state authority establish stringent pollution limitations nothing however suggests done actions premised federal common law subsection provides nothing section shall restrict right person class persons may statute common law seek enforcement effluent standard limitation seek relief including relief administrator state agency emphasis supplied subsection virtually identical subsections provisions several environmental statutes subsection common language accompanying provisions think means provision suit revoke remedies assuredly read mean act whole supplant formerly available federal actions particular section authorizing citizen suits one however maintains provision federal common law thus persuaded aids respondents case even indulging unlikely assumption reference common law includes limited federal common law opposed routine state common law see committee consideration jones falls sewage system train dissent considers particularly revealing post colloquy involving senators griffin muskie hart concerning pendency action epa reserve mining co senator griffin expressed concern one provision conference agreement might adversely affect number pending lawsuits brought refuse act including reserve mining litigation leg hist provision concerned senator griffin enacted stat provides pertinent part december case permit discharge applied pursuant section final administrative disposition application made discharge shall violation section act section act march unless administrator plaintiff proves final administrative disposition application made failure applicant furnish information reasonably required requested order process application senator muskie responded senator griffin concerns quoting stating ithout question intent conferees provision include enforcement actions brought refuse act federal water pollution control act acts congress leg hist later senator hart stated understanding explanation senator maine suit pending reserve mining refuse act way affected counts existing federal water pollution control act law senator muskie hart remarks viewed context clear bear issue first place although federal claim reserve mining litigation senator griffin focused refuse act federal common law senator muskie reference acts congress rather clearly discussing federal common law importantly however senator muskie based response senator griffin reserve mining suit affected specific section bill applicable suits brought federal government pending amendments enacted senator hart based response explanation given senator muskie even assumed legislators focusing federal aspects reserve mining litigation think senators muskie hart informed senator griffin reserve mining suit affected act displace federal common law nuisance senator griffin question focused understandably assurances received nothing colloquy suggests intent concerning continued validity federal common law issue simply come senator griffin concerns fully answered particular section applicable case us therefore conclude federal remedy available respondents case judgment appeals therefore vacated case remanded proceedings consistent opinion ordered footnotes combined sewers obviously susceptible overflows storms storm water transported conduits sewage since ground water water storm sewers occasionally enter separated sewers overflows systems also likely wet weather system exceed inherent capacity given points overflow devices either mechanical gravity activated resulting discharge effluent see eutrophication natural process nutrient concentration body water gradually increases process allegedly accelerated nutrients sewage particularly phosphorus discharged water see complaint also sought relief counts ii iii illinois statutory common law see app district stated case decided principles federal common law nuisance app pet cert went find liability three counts complaint appeals ruled federal common law state statutory common law controls case illinois milwaukee supra therefore address state law claims although respondent illinois argues point brief issue us simply whether federal legislation supplanted federal common law question whether state law also available subject illinois petition certiorari appeals also rejected petitioners contentions personam jurisdiction illinois statute exercise personam jurisdiction failed meet test international shoe washington venue improper agree given existence federal claim commencement suit prior enactment amendments personal jurisdiction properly exercised venue also proper see hart relations state federal law colum rev ederal intervention thought requiring special justification decision justification shown essentially discretionary belonged cases congress omitted regard note inconsistency illinois argument decision district federal state nuisance law apply case state law applied need federal common law federal common law exists state law used dissent errs labeling approach automatic displacement post evident infra question whether previously available federal action displaced federal statutory law involves assessment scope legislation whether scheme established congress addresses problem formerly governed federal common law detailed review respondents claims post assessment dissent suggests consideration whether particular common law applied reasonable dissent reference unique role federal common law plays resolving disputes one state citizens government another post advance argument whether interstate nature dispute implicates commerce among several congress authorized enact substantive federal law governing dispute although formulated interstate common law kansas colorado done usual principles apply rather interstate disputes frequently call application federal rule congress spoken congress spoken decision controls even context interstate disputes see arizona california since represented congress federal courts concerns displacing state law counsel finding state law absence clear intent actually suggest willingness find congressional displacement federal common law simply opinion illinois milwaukee used term usually employed determining federal law displaces state law reason assume analysis used decide usual questions appropriate dissent considers water pollution control act broad systematic post emphasizes illinois milwaukee view federal statutes barrier recognition federal common law post suggestion present legislation similarly barrier ignores congress view previous legislation inadequate every vital aspect leg hist congress clear intent witnessed statements citations text something quite different amendments point source defined act supp iii discernible confined discrete conveyance pollutants may discharged question discharges involved case point source discharges casual perusal legislative history demonstrates views comprehensive nature legislation practically universal see leg hist young blatnik clausen roberts roe reuss dingell caffery cooper hart appeals recognized congress amendments established comprehensive detailed system regulation eventual elimination pollutant discharges nation waters conclusion undermined congress decision permit establish stringent standards see congress recognized role comprehensive nature action suggests exclusive source federal law cases recognizing comprehensive character federal program insufficient basis find state law point since considering branch federal government source federal law whether law state law see supra since federal courts create federal common law necessary expedient problems requiring federal answers addressed federal statutory law see supra comprehensive character federal statute quite relevant present question question whether state law course depend upon absence applicable act congress still applied regulatory approach dnr overflows reflected permit conditions plucked thin air rather followed approach epa regulations issued pursuant act governing availability federal funds treatment works construction including construction facilities control sewer overflows regulations provide permits detailed evaluation feasibility engineering alternatives costs prior commencement particular construction project see cfr facilities planning referred permits control combined sewer overflows term art defined exhaustive detail epa regulations see facilities planning constitutes first step qualifying federal financial assistance construction projects statutorily articulated intent congress make funds available subject certain conditions projects control overflows see ed supp iii see also pp leg hist muskie magnuson impressed arguments way immediate solutions required dischargers requirements may effect epa regulations requiring exhaustive planning examination alternatives foreclosing resource funds congress intended available light conclusion need consider petitioners argument assuming availability cause action lower courts erred concluding respondents evidence sufficed establish existence nuisance see epa benefit analysis combined sewer overflow control regulations governing combined sewer overflows require permits outfall differ permits treatment plants specify effluent limitations based technology water quality standards npdes permits combined sewer overflows contain effluent limitations though usually require monitoring data collection point perhaps made clear one asks inadequacy treatment congress courts rectified creation federal common law imposing stricter effluent limitations district filling gap regulatory scheme simply providing different regulatory scheme true overflows district simply ordered planning construction designed achieve stringent control overflows planning construction undertaken pursuant permits point evident examining respondents arguments basic complaint permits issued petitioners act control overflows treated discharges sufficiently stringent manner permits act deal subjects instant permits respondents argue act inadequate legislation considered illinois milwaukee particular permits issued suffice create interstice filled federal common law must noted legislative activity resulting amendments largely occurred prior decision illinois milwaukee drafting filing committee reports debate houses took place prior decision conference activity occurred therefore difficult argue particular provisions designed preserve federal remedy yet recognized dissent cites several cases proposition federal nuisance remedy existed ong illinois milwaukee post legislative activity resulting amendments however decision ohio wyandotte chemicals indicated state common law control claim illinois wyandotte like present suit brought state abate pollution nuisance created defendants ruled action otherwise cognizable federal district adjudicated state law erie tompkins illinois milwaukee found necessary overrule statement see full set forth provides except expressly provided chapter nothing chapter shall preclude deny right state political subdivision thereof interstate agency adopt enforce standard limitation respecting discharges pollutants requirement respecting control abatement pollution except effluent limitation limitation effluent standard prohibition pretreatment standard standard performance effect chapter state political subdivision interstate agency may adopt enforce effluent limitation limitation effluent standard prohibition pretreatment standard standard performance less stringent effluent limitation limitation effluent standard prohibition pretreatment standard standard performance chapter construed impairing manner affecting right jurisdiction respect waters including boundary waters see clean air act supp iii deepwater port act marine protection research sanctuaries act noise control act solid waste disposal act safe drinking water act supp iii surface mining control reclamation act supp iii toxic substances control act dissent criticism reading post misplaced nothing unusual congress enacting particular provision taking care enactment disturb remedies without considering whether rest act remedies may available fact language repeated haec verba provisions vast array environmental legislation see supra indicates reflect considered judgment remedies previously available continue available particular statute dissent refers reading extremely strained dissent relying evidence congress intent preserve federal nuisance remedy must read nothing section mean nothing act prefer read statute written congress knows say nothing act means see pub stat dissent senators muskie hart responded senator hart quoted text post strictly accurate senator muskie never responded senator hart rather quoted text clear reference like senator hart use phrase law rather particular significance present context phrase acts congress inaccuracy dissent appears little importance since dissent attaches great weight views senator muskie see post similar colloquy house also relied upon dissent representative wright responded question representative dingell precisely manner senator muskie responded senator griffin relying referring acts congress leg hist representative dingell never mentioned federal common law question dissent also relies failure congress enact amendment proposed representative aspin post reliance ignores fact unsuccessful attempts legislation best guides legislative intent red lion broadcasting fcc also even assuming failure enact aspin proposal indication congress intent warning views subsequent congress form hazardous basis inferring intent earlier one consumer product safety gte sylvania admonitions even come play however since aspin proposal never introduced either house congress even appear congressional record fate aspin proposal precedents dealing statutory interpretation nothing whatever congress intent concerning federal common law enacted amendments justice blackmun justice marshall justice stevens join dissenting nine years ago illinois milwaukee unanimously determined illinois bring federal action city milwaukee three wisconsin cities two sewerage commissions time illinois alleged discharge raw untreated sewage wisconsin entities lake michigan created public nuisance citizens illinois remitted parties appropriate federal district whose powers adequate resolve issues illinois promptly initiated present litigation pursued three years pretrial discovery trial entailed hundreds exhibits scores witnesses extensive factual findings district app pet exhaustive review evidence appeals today decides judicial exercise meaningless charade cf hughes tool trans world airlines dissenting opinion inasmuch says federal remedy approved illinois milwaukee implicitly extinguished congress six months decision believe congress intended extinction surely contemplate result reached today respectfully dissent analysis federal displacement rests convinced faulty assumption contrasting congressional displacement common law federal state law assumes soon congress addresses question previously governed federal common law need unusual exercise lawmaking federal courts disappears ante automatic displacement approach inadequate two respects fails reflect unique role federal common law plays resolving disputes one state citizens government another addition ignores frequent recognition federal common law may complement congressional action fulfillment federal policies well settled body federal common law survived decision erie tompkins erie made clear federal courts courts limited jurisdiction lack general power formulate impose rules decision however upset since disturbed deeply rooted specialized federal common law arisen effectuate federal interests embodied either constitution act congress chief among federal interests served common law resolution interstate disputes implementation national statutory regulatory policies erie fashioned federal law interstate nature controversy renders inappropriate law either state see nebraska wyoming hinderlider la plata kansas colorado apportioning waters interstate stream see also cissna tennessee howard ingersoll resolving interstate boundary conflict disputes arise clear federal system laws one state impose upon sovereign rights interests another constitution art iii explicitly extends judicial power controversies state another state citizens equitably resolving disputes developed body may improperly called interstate common law kansas colorado long decision illinois milwaukee federal common law enunciated assured state right free unreasonable interference natural environment resources interference stems another state citizens georgia tennessee copper missouri illinois see new jersey city new york new york new jersey right federal protection consequence state entry union commitment constitution words justice holmes speaking union made forcible abatement outside nuisances impossible thereby agree submit whatever might done renounce possibility making reasonable demands ground still remaining interests alternative force suit georgia tennessee copper sources federal common law recognized illinois milwaukee concluded common law interstate nuisance supplied requisite jurisdiction bring action district deciding reasoned appropriate federal courts fashion federal common law overriding federal interest need uniform rule decision controversy touches basic interests federalism relied heavily upon interstate air pollution water allocation cases complaining party state invoking original jurisdiction addition recounted history federal interstate water quality legislation suggested abiding federal interest purity interstate waters justified application federal common law significantly found barrier federal common law despite number federal statutes regulations already provided remedies abate pollution interstate waters thus quite contrary statements intimations today ante illinois milwaukee create federal common law nuisance well congress acted ample recognition foundation federal common law nuisance applicable illinois situation congress presumed unaware relevant history deemed oblivious decision illinois milwaukee announced six months prior passage federal water pollution control act amendments act amendments stat central question whether given presumed awareness congress passing amendments intended prevent recourse federal common law nuisance answer question seems requires thorough exploration congressional intent offered congress spoken particular problem interstate water pollution far back broad systematic fashion enactment water pollution control act also known clean water act illinois milwaukee properly regarded expressions congressional intent obstacle incentive application federal common law fact congress addressed complicated difficult problem purifying nation waters taken presumptive evidence let alone conclusive proof congress meant foreclose approaches controlling interstate water pollution possible extinction federal common law issue reviewing obligated look magnitude legislative action also care evidence specific congressional intent ii view language structure clean water act leave doubt congress intended preserve federal common law nuisance section act reads nothing section shall restrict right person class persons may statute common law seek enforcement effluent standard limitation seek relief including relief administrator state agency emphasis added sections clean water act also support conclusion congress intention extinguishing federal common law nuisance although act established detailed comprehensive regulatory system aimed eliminating discharge pollutants navigable waters purport impose unitary enforcement structure abating water pollution particular congress expressly provided effluent limitations promulgated act preclude state establishing stringent limitations also made clear federal officers agencies foreclosed adopting enforcing stricter pollution controls standards required act thus statutory scheme permit issued epa qualifying state agency insulate discharger liability federal state law contrary permit granted pursuant confers assurances respect certain specified sections act requirements provisions well separate legal obligations remain unaffected see epa state water resources control board congress plainly anticipated discharges might required meet standards stringent minimum effluent levels approved epa stringent standards necessarily established statutes common law act contemplates shared authority federal government individual see supp iii entirely understandable congress thought neither imperative desirable insist upon exclusive approach improvement water quality offers three responses view congressional intent regard language attributes critical significance words section concludes congress meant assure provision extinguish formerly available federal actions ante thus reads though congress said section take away remedies remainder statute extremely strained reading statutory language one odds manifest intent congress permit stringent remedies federal state law see construed suggests authorizes abrogation rights statutory common law area water pollution control construction therefore render suspect meaningless act provisions rather interpreting license supplant legal remedies outside act construe reference section simply preventing rights action subjected procedural jurisdictional limitations imposed persons sue act also relies certain language contained legislative history amendments ante based remarks several act proponents comprehensive water pollution bill prepared date finds strong congressional suggestion room improvement federal common law nothing talismanic generalized references fact legislators may characterize efforts comprehensive prior legislation hardly prevents authorizing continued existence supplemental legal equitable solutions broad serious problem addressed moreover ignores express statements legislative intent contradict position senate report accompanying legislation explicitly describes congressional intent informing noted however section specifically preserve rights remedies law thus damages shown remedies remain available compliance requirements act defense common law action pollution damages reprinted legislative history water pollution control act amendments committee print compiled senate committee public works library congress ser leg finally attaches significance fact amendments provided rigorous administrative mechanism addressing interstate controversies ante evidently regards provision new administrative abatement process type jurisdictional requirement criticizes illinois failure invoke mechanism seeking form judicial relief ante even case new notice hearing procedure became available two years illinois commenced action suggestion illinois failed pursue administrative abatement federal statute indeed undisputed illinois made prolonged diligent efforts secure administrative relief nonetheless effect concludes enough exhaust administrative remedies existed time action initiated complainant must also prepared pursue new wholly unforeseen administrative avenues even seeks final judgment federal aware case adopts harsh approach pursuit administrative remedies see basis imposing requirement context moreover contrary implies congress never intended failure participate administrative process serve jurisdictional bar nothing language suggests neighboring state participation process anything voluntary optional indeed conference committee considering amendments act presented proposal made participation jurisdictional prerequisite proposal adopted conference committee among opponents department justice letter sent conferees department made clear understanding absent amendment federal common law continue relied upon national effort control water pollution justice department position survival federal common law consistent stance taken epa litigation throughout period since amendments enacted epa fact relied upon federal common law nuisance addition remedies available statute seeking protect water quality agency charged enforcing implementing act epa interpretation scope limits statute entitled considerable deference see udall tallman agency publicly consistently acted upon interpretation congressional silence without significance particularly since area subject frequent intense legislative attention agency continued reliance federal common law firmly grounded language structure statute fail see lightly disregard interpretation iii assuming congress preserve federal common law nuisance respondents properly stated federal claims relief remains question whether particular common law applied reasonable ruling explicitly address question nonetheless detailed review respondents claims effect concludes federal common law applied district appeals defective particular asserts federal courts may exceed statutory minimum approach sanctioned congress see ante may use federal power impose state stringent pollution limitation standards upon polluters see ante contrast believe courts acted correctly respects appeals properly recognized determination congress preserve rights action federal common law grant federal courts freedom disregard statutory regulatory structure approved congress noted illinois milwaukee various federal environmental protection statutes necessarily mark outer bounds federal common law may provide useful guidelines fashioning rules decision guidelines however bear primarily problems proof faced parties determine exclusive source law applied instance problems proof arise familiar form action public nuisance involves unreasonable interference right common general public drawing decision georgia tennessee copper appeals concluded nuisance established federal common law defendant carrying activity causing injury significant threat injury cognizable interest complainant whether particular interference qualifies unreasonable whether injury sufficiently substantial warrant injunctive relief form relief take questions decided basis particular facts circumstances judgments times difficult require courts perform functions beyond traditional capacities experience choosing precise legal principles apply courts draw upon relevant standards conduct available communities federal common law concerned th task federal task federal courts little lake misere land time federal law controls particular question problem state law may furnish appropriate measure content federal law see board see also textile workers lincoln mills clearfield trust today characterizes inappropriate application stringent standards illinois state law fact reflects federal proper exercise discretion act sets forth certain effluent limitations appeals applying federal common law given instance may well decline impose effluent limitations stringent required congress complainant failed show stricter standards abate nuisance appreciably diminish threat injury far different proposition pronounce today federal courts lack authority impose stringent effluent limitations federal common law imposed statutory scheme ante emphasis added authority federal courts area firmly established decision illinois milwaukee delineating legitimate scope federal common law expressly noted relevance state standards adding state high standards may well ask strict standards honored compelled lower degrading standards neighbor emphasis added act attributes comparable respect stricter effluent limitation levels imposed individual since congress fully expected neighboring might differ approaches regulation discharge pollutants navigable waters odd say least federal courts deprived power effect reconciliation differences problem controlling overflows particularly amenable application authority courts found see sewer systems operated petitioners include bypass overflow points raw sewage discharged directly lake michigan rivers flow lake single month discharge discrete overflow points amounted million gallons untreated sewage ibid trial determined untreated fecal wastes containing billions pathogenic bacteria viruses periodically transported prevailing currents illinois waters lake michigan found presence pathogens illinois waters poses significant risk injury illinois residents threatening contaminate drinking water supplies infect swimmers pursuant act publicly owned treatment works existence must apply secondary treatment defined administrator july provision act explicitly addresses discharge raw sewage public waters overflow points indeed congress expressed concern combined sewer overflows significant source untreated sewage polluting nation waters commissioned study problem view toward possible legislation administrator issued regulations define secondary treatment terms certain minimum levels effluent quality also acknowledged combined sewer overflows raise special concerns must resolved basis record demonstrates congress administrator recognized inadequacy statutory scheme surely show responsible parties intended role federal common law lower courts case carefully evaluated regulatory systems developed state deal overflow problem determined standards promulgated illinois regulatory scheme stringent developed wisconsin agency imposed petitioners wisconsin judgment see district order imposed standards reflected rigorous approach adopted illinois restore protect illinois waters appeals noted wisconsin allowed petitioners time eliminate correct overflow problem petitioners conceded feasibility complying district deadlines view appeals acted responsibly manner wholly consistent jurisdiction envisioned illinois milwaukee iv one final disturbing aspect decision eliminating federal common law nuisance area effect encouraging recourse state law wherever federal statutory scheme perceived offer inadequate protection pollution outside state either enforcement standards remedies afforded recourse inevitable statutory scheme accords significant role state well federal law present context also unfortunate since undermines prior conclusion federal rather state law govern regulation interstate water pollution illinois milwaukee instead promoting uniform federal approach problem alleviating interstate pollution fear today decision lead turn courts statutory assistance filling interstices federal statute rather encourage prospect adhere principles clearly enunciated illinois milwaukee affirm judgment appeals decision issued april complaint filed district northern district illinois may quarrel distinction issues federalism stake assessing congressional state law concerns implicated distinction suggests deciding whether federal law state law must sensitive potential frustration national purposes permitted control conduct subject federal regulation san diego building trades council garmon see florida lime avocado growers paul reason analysis role federal law often determined nothing basis hand federal interests alone stake participation federal courts often desirable indeed necessary federal policies developed congress fully effectuated see miree dekalb county opinion concurring judgment little lake misere land whole concept interstitial federal lawmaking suggests cooperative interaction courts congress less attainable questions involved see generally hill power federal courts constitutional preemption colum rev friendly praise erie new federal common law rev see also leybold federal common law judicially established effluent standards remedy federal nuisance actions env aff rev previously indicated federal common law nuisance provided basis jurisdiction see texas pankey recently however confirmed existence original jurisdiction consider nuisance action brought one state vindicate sovereign interests interests citizens whole see ohio wyandotte chemicals citing cases discussed supra significance wyandotte refusal prudential reasons exercise original jurisdiction concededly obtained additional observation far appears present record action otherwise cognizable federal district adjudicated state law emphasis added explained one year later based preoccupation litigation public nuisance ohio law illinois milwaukee see act june stat see also rivers harbors appropriation act stat ch stat point ante rely arizona california mobil oil higginbotham cases stand broad proposition announced today arizona california congress developed formula apportioning limited waters colorado river directed federal agency implement formula face express congressional allocation declined substitute notions equitable apportionment mobil oil higginbotham confronted statute created precise federal remedy none since federal law statute passed address wrongful death high seas statute expressed intent preserve create federal remedies acceded particularized judgment congress unlike statutes issue two cases act addressed broad complex subject state federal law previously spoken recognized encouraged many different approaches controlling water pollution see discussion part ii infra inevitably federal must acknowledge tension obligation apply federal common law implementing important federal interest need exercise judicial defer congress congress course may resolve tension making known flexible creative judicial response basis must yield interest certainty comprehensive legislative scheme time fact congress properly check exercise federal common law mean done specific case free disregard expressions legislative desire preserve federal common law overlook congressional intent curtail indeed admonished statutes construed derogation common law unless intent clear isbrandtsen johnson citing cases say congress spoken ante begin inquiry critical question congress said national sea clammers assn city new york cert granted california tahoe regional planning agency jennings cert denied see also illinois outboard marine cert pending supp mont ex rel scott steel supp nd ira bushey sons supp aff cert denied relies committee consideration jones falls sewage system train criticizing unlikely assumption preserved anything routine state common law ante jones falls offers support criticism since concerned intrastate pollution navigable waters indeed assumed continued applicability federal common law state sought vindicate rights interstate controversy concluded controversy entirely local state common law nuisance preserved furnished relevant remedy cf new jersey city new york compliance permit requirements federal statute bar injunctive relief federal nuisance action significant elsewhere statute congress expressly manifested intention foreclose applicability laws see congress thus demonstrated capable particular area chose points judicial decision construed language fashion see supra nothing new federal law area characterized proponents comprehensive similar claims made advancing legislation place illinois milwaukee decided see purpose bill provide comprehensive program preventing abating controlling water pollution cong rec bill provides surgeon general shall encourage comprehensive program control stream pollution secure cooperation combating evil auchincloss different congress years later deemed legislation inadequate see ante carries significance postmortems one may expect congress concerning act see also pp reprinted leg hist see reserve mining epa previously observed senator muskie perhaps act primary author credited views accordingly see du pont de nemours train epa national crushed stone see leg hist see also colloquy dingell wright dingell ante elaborately attempts minimize fact recognized participants senate colloquy reserve mining case involved nuisance count seeking assurances pending litigation adversely affect ed senator griffin stated explicitly lawsuit based two federal statutes common law public nuisance leg hist senator muskie final response senator griffin indicated understanding suit whole affected act moreover senator hart reference law reserve mining case pertained counts already mentioned entire discussion reserve mining case initiated due senator griffin concern possible retroactive effect litigation already commenced senators muskie hart well epa took position disruption pending action commenced february three months prior action letter senator griffin epa general counsel added caveat obvious significance reasonable conclude courts interpret legislation deprive jurisdiction pending litigation absence clear explicit language clear explicit language effect pending bill leg hist brief respondent illinois describing unsuccessful pursuit administrative remedies see describing administrative processes statute observes scheme established provides forum pursuit neighboring state claim controls imposed sufficiently stringent ante emphasis added nothing inconsistent making forum available encouraging use time permitting pursuit remedies problems efficiency approach congress course free modify statutory scheme following district ruling case congressman aspin wisconsin proposed amendment sec section federal water pollution control act amended adding end thereof following new subsection case state whose waters may affected issuance permit section fails submit recommendations permitting state authorized subsection section state failing make submission persons shall standing bring action abate whole part nuisance common law discharge subject recommendations amendment made subsection section shall applicable action brought abate whole part nuisance common law discharge pollutants unless final decision rendered prior effective date amendment app brief respondent illinois letter senator muskie james moorman assistant attorney general land natural resources division common law serves give injured party may neglected statute overburdened enforcing agency form redress good argument removing opportunity remedy basic principle common law public nuisance one liable damages caused another benefit one action outweigh harm sound principle shown pollution injured someone sufficient defense claim generalized standards statute complied polluters properly held standard holds liable unnecessarily injuring others simply violating statutory law number cases common law inevitably small meritorious basis abolishing cause action emphasis added app brief respondent illinois see illinois outboard marine cert pending hooker chemicals plastic wdny filed several courts held state claim relief federal common law nuisance see ira bushey sons supp aff cert denied solvents recovery supp restatement second torts tent draft see generally prosser law torts ed rodgers environmental law see restatement second torts prosser note federal common law interstate water pollution disputes law forum see reserve mining epa en banc armco steel supp sd tex commonwealth barnes tucker boomer atlantic cement people ex rel stream control port huron board elm grove mining fink board trustees app murphysboro sanitary water board app thus merit suggestion ante technical difficulty subject matter renders inappropriate recourse common law complexity properly presented federal question hardly suitable basis denying federal courts power adjudicate indeed expert agency charged administering act hesitated invoke jurisdiction appropriate moreover district may abused discretion basis concluding standards irrelevant federal common law see also unpublished order appeals app pet cert unpublished findings fact conclusions law district little gained undertaking extensive review record evidence points appeals concluded findings trial clearly erroneous see reason disturb appeals view evidence congress amended act permit administrator grant extensions deadline certain conditions see pub stat supp iii pub stat see study issued october see epa report congress control combined sewer overflow see cfr addition sewers pipes lead treatment facility considered publicly owned treatment works purposes see cfr absence treatment requirements combined sewer overflows administrator mandates individualized analysis system seeks federal assistance see epa benefit analysis combined sewer overflow control wisconsin agency wisconsin state courts devised one approach regulating combined sewer overflows milwaukee system alone establish applicable legal standard federal common law one adopted wisconsin hold otherwise effect nullify neighboring state stringent pollution control standards even circumstances significant risk harm neighboring state citizenry established polluting state violating approved standards neighboring state higher standards recourse act precisely context recognized significance federal common law illinois milwaukee