¶ 67. (dissenting).
I agree with the court of appeals and would affirm its decision.
*78¶ 68. The ultimate issue presented is whether the DNR is authorized to determine whether, on challenge, terms of a state-issued wastewater discharge permit comply with federal law.
¶ 69. The majority opinion defers to the DNR, agreeing that the petitioners' remedy for a violation of federal law rests with the federal Environmental Protection Agency.1 I agree with the court of appeals that the DNR has authority to determine whether a state-issued permit complies with federal law.
¶ 70. The majority opinion errs in two fundamental ways: First, the majority misinterprets the balance created between federal oversight and state application and enforcement of the Clean Water Act. Second, by inverting the federal/state balance, the majority has left the petitioners in the present case, as well as future challengers, with no effective forum in which to express their concerns that terms in a state-issued permit do not comply with federal law.
* * * *
¶ 71. The Clean Water Act establishes a partnership between the federal government and the states to eliminate water pollution across the country. Save the Bay, Inc. v. Adm'r of EPA, 556 F.2d 1282, 1284 (5th Cir. 1977). The partnership promotes a delicate balance *79between the federal government and state governments in administering the Clean Water Act.2 The majority opinion inverts this balance between federal and state regulation, thereby effectively eliminating the petitioners' access to a review of the terms of the permit.
¶ 72. The balance under the Clean Water Act is clear: Congress intended the states to play the lead role in administering water pollution control laws.3
¶ 73. The Clean Water Act delegates to the states the authority to issue permits. 33 U.S.C. § 1342(b). Wisconsin's permit program was authorized by the federal government in 1974, and the Wisconsin Department of Natural Resources (DNR) has been administering the permit program since that time.4 To obtain *80approval for its permit program, Wisconsin had to show that its permit program ensures compliance with the requirements of the Clean Water Act. 33 U.S.C. § 1342(b)(1)(A). The Wisconsin statutes also require that the permit program comply with the Clean Water Act whenever applicable. Wis. Stat. § 283.31(3)(d)2.
*79We have been called upon to examine a statutory scheme that has the potential for the optimum of federalism... . The success of their federalist venture will depend not only upon the grace, but also the substance of movement by both partners in the ballet. We have endeavored to ink a most self-effacing role for the federal judiciary, one which should foster a harmonious background to the dance and necessitate intervention only when a point of unmelodious discord seriously threatens the contrapuntal balance.
*80¶ 74. After the Environmental Protection Agency approves a State's plan, the State takes the primary role in issuing permits and administering and enforcing the laws.5 "[The] legislative history, more explicit and unequivocal than generally found, leans in almost every expression toward a minimal federal intervention when a state plan has been approved."6
¶ 75. The State must provide the Environmental Protection Agency with notice of all proposed permits. Wis. Stat. § 243.41(1). It did in this case. The federal Environmental Protection Agency retains the authority to object to state-issued permits that it finds fall outside the requirements of the Clean Water Act. 33 U.S.C. § 1342(d)(2); see also Save the Bay, 556 F.2d at 1294. The Environmental Protection Agency's oversight and review of Wisconsin-issued permits is, however, wholly discretionary.
*81¶ 76. The Environmental Protection Agency is not required to but may, in its discretion, enforce state compliance with federal requirements by objecting to state-issued permits. Thus the EPA may decide that a state-issued permit is not in compliance with federal law but nevertheless does not warrant an objection. As the Wisconsin court of appeals explained, the legislative history shows that the Clean Water Act envisioned that the Environmental Protection Agency would not veto every permit out of compliance with federal law and would use what power it had over state-issued permits "judiciously."7
¶ 77. That the Environmental Protection Agency did not object to the permit in the instant case is not, as the majority opinion asserts at ¶ 63, an "effective determination" that the permit complies with federal law. The Environmental Protection Agency's failure to object means only that the Environmental Protection Agency decided not to object.
¶ 78. The majority opinion attempts to pass off judicial review of the state-issued permit to the federal courts. Majority op., ¶ 65 ("If CWAC is entitled to a remedy, the remedy rests with the EPA."). The federal courts are not, however, willing to receive the pass.
¶ 79. In fact, the federal courts of appeals, including the Seventh Circuit court of appeals, have made it clear that they are ineligible receivers. If the Environmental Protection Agency does not exercise its discretion to review the state permit, the federal courts will not act. "Congress spread across the record clear and convincing evidence of legislative intent to preclude *82federal review of state-issued permits." Am. Paper Inst. Inc. v. U.S. EPA, 890 F.2d 869, 875 (7th Cir. 1989).
¶ 80. I conclude that petitioning the Environmental Protection Agency for review of a permit's terms does not represent a significant avenue in which to review compliance with federal law. The Environmental Protection Agency's discretionary decision not to object to permit terms cannot effectively be challenged in federal court.8
¶ 81. Meaningful federal judicial review is not available and the majority opinion eliminates the opportunity for meaningful review in state courts to determine whether the terms of a DNR-issued water pollution permit comport with federal law. The majority reads the statutes to mean that once the state has issued a permit and the Environmental Protection Agency has chosen not to veto that permit, further state review of challenges based on federal law would be superfluous.
¶ 82. The majority opinion inverts the balance created between the state's application and enforcement of permitting and federal oversight, leaving the petitioners in the present case, as well as future petitioners, with no forum in which to meaningfully express their concerns that a state permit does not comply with federal law.
¶ 83. Under the Clean Water Act, the states have significant authority to monitor their own programs to assure compliance with state and federal laws. This level of state autonomy to issue permits, with judicious federal oversight, necessitates the ability of interested parties to ensure compliance with both state and federal water pollution control regulations within the State permitting process.
*83¶ 84. Nonetheless, the majority opinion accepts the DNR's position that the DNR does not have authority to review permit terms' compliance with federal law. The law is clear, however, that state courts and state administrative agencies may interpret and apply federal laws, and the legislature has directed that permits issued comply with federal law.9 Wis. Stat. §§ 283.31(3)(d)2., 283.63.
¶ 85. As a result of the majority opinion, the petitioners in the instant case have no effective remedy. Parties affected by a permit in violation of federal law cannot hold the DNR accountable through the administrative review process and judicial review in state courts. The underlying theme of the majority opinion is to restrict meaningful review of state-issued permits. Wis. Stat. §§ 283.31(3)(d)2., 283.63. The majority opinion denies meaningful review in the name of finality for permit holders. Majority op., ¶ 64.
¶ 86. Restricting review of permits issued in Wisconsin affects permit holders, businesses, other government entities, and concerned citizens alike. These interested parties must be afforded some avenue to challenge permits that are issued in violation of federal law. The majority opinion does not agree, and instead *84leaves the petitioners in the present case, and all future challengers of Wisconsin-issued water pollution permits, without a forum to bring an effective challenge that the terms of a permit are unreasonable based on a violation of federal law.
¶ 87. Because the majority inverts the federal-state partnership and the balance set forth in the Clean Water Act and effectively eliminates a meaningful forum for the petitioners, I dissent. I would instead hold that the DNR has the authority to determine whether permit conditions it established comply with federal law, and that the DNR should provide the petitioners with a public hearing on the permit in question.
¶ 88. Because I agree with the decision of the court of appeals, I dissent.
¶ 89. I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.Contrary to the majority opinion, I conclude that the DNR's statutory interpretation is not entitled to any deference. The instant case does not present a decision on the applicability or administration of a highly technical statute regulating water pollution. Instead the instant case presents a question of the DNR's scope of authority. Furthermore, the DNR does not have a long or consistent interpretation of Wis. Stat. §§ 283.31(3)(d)2. and 283.63 relating to the facts of the instant case.
The federal fifth circuit court of appeals described the partnership and balance in the oft-cited Save the Bay, Inc. v. Administrator of EPA, 556 F.2d 1282, 1296-97 (5th Cir. 1977), as follows:
Save the Bay, Inc. v. Adm'r of EPA, 556 F.2d 1282 (5th Cir. 1977); District of Columbia v. Schramm, 631 F.2d 854 (D.C. Cir. 1980).
States applying for authority must show that their permitting programs will be at least as stringent as the federal permitting program. 33 U.S.C. § 1342(b)(1)(A) (state permit programs must show that they "insure compliance with" all provisions of the Clean Water Act). Once a state has illustrated that its permit program will comply with the requirements of the Clean Water Act, it is authorized to issue and enforce its own permits for water pollution.
The delegation of power to the State of Wisconsin is explicit: "The program that you conduct pursuant to this authority must at all times be in accordance with Section 402 of the Act, all guidelines promulgated pursuant to Section 304(h)(2) of the Act, and the Memorandum of Agreement between the Regional Administrator of EPA's Region V and the Administrator of the Division of Environmental Protection, Wisconsin Department of Natural Resources . ..." Letter from Russell E. Train, U.S. E.P.A., to Governor Patrick J. Lucey, dated Feb. 4, 1974, granting authority to conduct a State Permit Program.
Save the Bay, 556 F.2d at 1294.
Andersen v. DNR, 2010 WI App 64, ¶ 27, 324 Wis. 2d 828, 783 N.W.2d 877.
District of Columbia v. Schramm, 631 F.2d 854 (D.C. Cir. 1980).
N. States Power Co. v. Bugher, 189 Wis. 2d 541, 525 N.W2d 723 (1995) (holding federal claims were precluded because they should have been raised during state administrative proceedings); Hogan v. Musolf, 163 Wis. 2d 1, 471 N.W.2d 216 (1991) (Department of Revenue and Tax Appeals Commission have authority to determine whether state tax laws violate federal laws); Froebel v. Meyer, 217 F.3d 928 (7th Cir. 2000) (federal Clean Water Act claim should have been brought in state administrative and court tribunals, not federal courts); Am. Paper Inst. Inc. v. U.S. EPA, 890 F.2d 869, 875 (7th Cir. 1989) (state courts are competent to decide questions of federal law).