(dissenting in part).
Although I agree with the treatment of the jurisdictional issues, I respectfully dissent from the majority opinion for the following reasons.
At issue in this case are two differently phrased standards for water pollution control. The first, “maximum extent feasible,” was established in 1965 as part of the legislative compromise which created the Burns Harbor Waterway and the Indiana Dunes *370National Lakeshore. The second, “effluent limitations reflecting application of best practicable technology,” was articulated in the 1972 Federal Water Pollution Control Act as binding on the EPA’s permit decision-making. It is unclear from the record, briefs and oral argument whether these two phrases in fact establish two distinct standards, one higher than the other, or are merely a restatement of the same idea.
The record shows that the EPA deemed the 1965 language inapplicable and therefore never determined its meaning. In response to Porter County Isaak Walton League’s challenge to the issuance of a NPDES permit to NIPSCO, the General Counsel of the EPA decided that “the [1965] Act on its face does not impose any obligations on parties other than those named in it.” Thus, because Congress left the question of the sufficiency of the water pollution control assured by the state to the Secretary of the Army and because the EPA was not in existence at the time, the General Counsel concluded that “Public Law 89-298 has no applicability in establishing effluent limitations of the NPDES permit at issue.” In its brief the EPA argues and the majority adopts the view that because the 1965 language is ambiguous it is not really a standard capable of enforcement. Furthermore, the EPA asserts and the majority also adopts the view that even if PL 89-298 presents a more stringent standard than that articulated in FWPCA, responsibility for implementing such standard was left solely to the discretion of the Secretary of the Army and that duty has since been fulfilled.
Section 301(b)(1)(C), however, requires the EPA Administrator to effectuate more stringent standards for pollution control where created by federal or state statute, not just the “best practicable technology,” in the granting of section 402 permits. In this case, I cannot see how the EPA can fulfill its duty to implement “more stringent requirements” if the agency does not make a determination what constitutes “maximum feasible control” and expressly states that condition.
“If an order is valid only as a determination of policy or judgment which the agency alone -is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. . . [A]n appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.” Securities Comm’n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1942).
If there is a difference between the two standards, and if, as petitioners argue, the 1965 is higher, the 1965 standard should control the EPA’s permit issuance with regard to Burns Harbor. I would set aside the EPA’s decision and remand for determination whether the effluent limitations prescribed in the permit fulfill the 1965 language and, if not, for imposition of limitations which would.