# Reply Brief — Arkansas v. Oklahoma

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0079%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1992
- **Citation:** 503 U.S. 91

## Text

Nos. 90-1262, 90-1266
OFFIGE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

STATE OF ARKANSAS, et al.,

. Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents.

ENVIRONMENTAL PROTECTION AGENGY,
Petitioner,

Vv.

STATE OF OKLAHOMA, et al.,

Respondents.

On Writs of Certiorari to the
United States Court of Appeals
for the Tenth Circuit

REPLY BRIEF OF PETITIONERS

IN No. 90-1262
WINSTON BRYANT EDWARD W. WARREN, P.C.
Attorney General DAVID G. NORRELL
MARY B. STALLCUP (Counsel of Record)
ANGELA S. JEGLEY GARY E. MARCHANT
OFFICE OF THE DAWN P. DANZEISEN
ATTORNEY GENERAL KIRKLAND & ELLIS
200 Tower Building Suite 1200
323 Center Street 655 Fifteenth Street, N.W.
Little Rock, AR 72201 Washington, D.C. 20005

(202) 879-5070
Dated: September 4, 1991

( Additional Counsel Listed On Inside Front Cover)

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

JAMES N. McCorbD
CITY OF FAYETTEVILLE
207 West Center Street
Fayetteville, AR 72701

ANNE ROBERTS BOBO
A.D.P.C. & E.

P.O. Box 8913

Little Rock, AR 72219-8913

WALTER R. NIBLOCK
THE NIBLOCK LAW FIRM
P.O. Drawer 818
Fayetteville, AR 72702

NANCY L. HAMM
LAW OFFICES OF

LAURA J. MCKINNON
One East Center, Suite 211
First National Bank Building
Fayetteville, AR 72702

TABLE OF CONTENTS

Page
PARTIES TO THE PROCEEDINGS*....____. i
TABLE OF AUTHORITIES... —<CsS iii
ESE 1
-~ I. THE CWA GIVES EPA DISCRETION
WHETHER TO IMPOSE ADDITIONAL
RESTRICTIONS TO PROTECT DOWN.
STREAM WATER QUALITY ........_.. 2
A. The Goals Of The Act Do Not Support Re-
spondents’ Statutory Construction... 2

B. The CWA Expressly Grants Permitting
Agencies The Discretion To Arbitrate In-
terstate Disputes On A Case-By-Case Basis.. 6

C. The Legislative History, EPA‘s Regulations,
And Ouellette Further Confirm That Down-

" Permit Based On EPA’s Discretion Whether
To Apply Downstream Standards... 13

Il. EVEN IF DOWNSTREAM STANDARDS
WERE AUTOMATICALLY APPLICABLE,
THE COURT OF APPEALS SHOULD NOT
HAVE OVERTURNED THE PERMIT IN
ESS SE 14

A. The CWA Delegates To EPA The Discretion
To Determine Compliance With Downstream

a A 14
B. Federal Law Does Not Require A Ban On
New Discharges... 16

*There have been no changes in the parties to the proceedings
listed on page ii of the Arkansas petitioner’s initial brief on the
merits.

ii

TABLE OF CONTENTS—Continued
Page

C. The Oklahoma Antidegradation Standard
Also Does Not Prohibit The Fayetteville

CONCLUSION .................. pneeneenibenetie sinisiadhdeplamscbibtaiiidani linia 20

iii
TABLE OF AUTHORITIES

Cases Page
Adams v. Howerton, 673 F.2d 1036 (9th Cir.),
cert. denied, 458 U.S. 1111 (1982) 2.00000... 8
Air Pollution Control Dist. of Jefferson County,
Kentucky v. EPA, 739 F.2d 1071 (6th Cir.
I cictiesientchcateniadamnnadcntachidinciaiayebilialdalesasiandcideibcesieenindsiadebieee 15, 20
Brown Vv. General Services Admin., 425 U.S. 820
ESE SE RES CSE ESS Rae ao UCR 9
California Vv. Federal Energy Regulatory Comm’n.,
I ae, 13
Chevron, U.S.A., Inc. Vv. NRDC, 467 U.S. 837
ad a ea eco nC 12
Chrysler Corp. Vv. Dep't. of Transportation, 472
ee CD GE, BID cccccesinnsccsitcotnnsenonnnsentnesoens 15
City of Milwaukee V. Illinois, 451 U.S. 304 (1981). 20
Commonwealth Edison Co. Vv. Train, 649 F.2d 481
I hae 17
Connecticut v. EPA, 656 F.2d 902 (2d Cir. 1981). 20
Crown Simpson Pulp Co. v. Costle, 445 U.S. 193
(1980) x
Edward J. DeBartolo Corp. v. ‘Florida Gulf Coast
Building & Construction Trades Council, 485
RE Ea SS Se 12
EEOC v. Arabian American Oil Co., 111 S. Ct. 1227
(1991)... OR Es i eee RO Re 12
Environmental Defense Fund, Inc. v. Tennessee
Water Quality Control Board, 660 S.W.2d 776
a ccepetinnn 8
EPA Vv. California ex rel. State Water Resources
Control Board, 426 U.S. 200 (1976)... 15
Ginsberg & Sons Vv. Popkin, 285 U.S. 204 (1932)... 9
International Paper Co. Vv. Ouellette, 479 U.S. 481
a Re A: Pee Tea passim
Jett v. Dallas Indep. School Dist., 491 U.S. 701
(1989) . : 9
Lodge 1858, “American Fed’n of Gov't Employees
v. Webb, 580 F.2d 496 (D.C. Cir.), cert. denied,
439 U.S. 927 (1978) ................... thn Smarr Nahe AR 9

iv

TABLE OF AUTHORITIES—Continued

Page
Louisiana Public Service Comm'n. Vv. Federal Com-
munications Comm’n., 476 U.S. 355 (1986)... 8
MacEvoy Co. Vv. United States, 322 US. 102
SEED cncssennipeenecibtntibbaivetndideiameneiioenenteasen 9
Maislin Industries, U.S., Inc. Vv. Primary Steel,
US OL 12
Miner’s Advocacy Council v. State Dep’t of Envi-
ronmental Conservation, 778 P.2d 1126 (Alaska
1989), cert. denied, 110 S.Ct. 1127 (1990) —........ 8
National Wildlife Fed’n. v. Federal Energy Regu-
latory Comm’n., 912 F.2d 1471 (D.C. Cir. 1990).. 8
National Wildlife Fed’n. v. Gorsuch, 693 F.2d 156
i ON, ois resi ciitinrenertienatiiiiatepipaiiantemmnns 4
NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1975)... 10
Paccar, Inc. v. National Highway Traffic Safety
Admin., 573 F.2d 632 (9th Cir.), cert. denied,
ENTE SESS SEER ar 15
Patterson v. McLean Credit Union, 491 U.S. 164
IIIT esciincincetticiesincainendeeiatiasenneiatiniantineaniessipieimeneaen 12
Puerto Rico Department of Consumer Affairs V.
Isla Petroleum Corp., 485 U.S. 495 (1988) _......... 13
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
ee aa eee 13
Rust v. Sullivan, 111 S. Ct. 1759 (1991)... 12
United States v. Storer Broadcasting Co., 351 U.S.
ae 11
Watt v. Alaska, 451 U.S. 259 (1981)... x
Will v. Michigan Dep’t. of State Police, 491 U.S.
BD Ce ntititinttentninientcnestsennititeniniatititintneeeme 10
Statutes and Regulations
Clean Water Act, as amended, 33 U.S.C. §§ 1251-
FE LR een passim
Section 301, 33 U.S.C. § 1311 _..... PR ae 9
Section 301 (b)(1)(C), 33 U.S.C. §13811
Oe 9
Section 401, 33 U.S.C. § 1341 _. ee .. 12
Section 401 (a) (1), 33 U.S.C. § 1341 (a) (1). 7,16

Section 401 (a) (2), 33 U.S.C. § 1341 (a) (2) ..passim

v

TABLE OF AUTHORITIES—Continued

Page

Section 402, 33 U.S.C. § 1842 000. passim
Section 402 (a) (3), 33 U.S.C. § 1842 (a) (3).. 1,6,8
Section 402 (b), 33 U.S.C. § 1342(b) 00. 8
Section 402 (b) (5), 33 U.S.C. § 1342 (b) (5).. 1, 6, 8,

10

Section 402 (d) (2), 33 U.S.C. § 1342 (d) (2).. 1, 6, 7,

15

Section 402 (d) (3), 33 U.S.C. § 1342 (d) (3).. 7
Section 510, 33 U.S.C. § 1870 000. 9,19

40 C.F.R. § 122.4 (d) tL LE a eR Oe 11,14
40 C.F.R. § 122.44 (d) (4) ......... OE ac,» a, We 11
eee 17
48 Fed. Reg. 51,413 (1983)... ents 11

Legislative Materials

117 Cong. Rec. 38,800 (Nov. 2, 1971) (statement
of Sen. Muskie) , reprinted in 2 Senate Comm. on
Public Works, 93d Cong., Ist Sess., A Legislative
History of the Water Pollution Control Act
Amendments of 1972, at 1262 (1973) (Leg. Hist.
RRO Ener 4
S. Rep. No. 50, 99th Cong., Ist Sess. (1985), re-
printed in 2 Senate Comm. on Env’t & Public
Works, 100th Cong., 2d Sess., Legislative His-
tory of the Water Quality Act of 1987, at 1420
(1988) (Leg. Hist. of 1987) _.... ks See ae oe 6
Senate Consideration of the Conference Report
Oct. 4, 1972, reprinted in 1 Leg. Hist. of 1972,

ee eke Se eee eee aD 7
Miscellaneous
1982 Oklahoma Water Quality Standards (OWQS),
RRR a Rc Rae Se 5,19

Amicus Curiae Brief of Sierra Club, in Support
of Respondents (Sierra Club Br.) x

vi
TABLE OF AUTHORITIES—Continued

Brief Amici Curiae of Champion International
Corporation, American Paper Institute, National
Forest Products Association, American Iron and
Steel Institute, American Mining Congress, the
Fertilizer Institute, Chemical Manufacturers,
Association, National Association of Manufac-
turers, Associated Industries of Arkansas, Ar-
kansas Federation of Air and Water Users, Inc.,
and Arkansas Poultry Federation in Support of
Petitioners (Champion Br.) ................................

Brief for the Natural Resources Defense Council,
et al., in Support of Respondents (NRDC Br.)..

Brief of the Association of Metropolitan Sewerage
Agencies, the National Institute of Municipal
Law Officers, the Municipal Leagues Represent-
ing Over 9000 Cities in Twenty-Six States, and
Five Individual Cities as Amici Curiae in Sup-
port of Petitioners (AMSA/Municipal League
| ct RARE CE ND TE + eM AOR eR

Brief of the State of Colorado as Amicus Curiae
in Support of Petitioners (Colorado Br.) _...........

Brief of the States of Illinois, et al., as Amici
Curiae in Support of Respondents (Illinois
eR ie AE IE - PE RP TEE

Brief of the States of Nevada, New Hampshire,
North Dakota and South Dakota as Amici Curiae
in Support of Petitioners (Nevada Br.) ........... 5

EPA Region IV, Question and Answers on Imple-
mentation of Tier III of the Federal Antidegra-
dation Policy: Protection of Outstanding Na-
tional Resource Waters (April 20, 1989) _...........

EPA Region V, Guidance for AntiDegradation Pol-
icy Implementation for High Quality Waters
I aha tliitatenccttaes

EPA Region 9, Guidance on Implementing the An-
tidegradation Provisions of 40 C.F.R. 181.12
rr

Page

1, 4, 6

1,8

, 10,12

17

17

vii
TABLE OF AUTHORITIES—Continued

Letter from Lawrence R. Edmison, Director of
Oklahoma Department of Pollution Control, to
Myron O. Knudson, Director, Waste Manage-
ment Div., EPA Region VI (May 29, 1986)...

Letter from Myron O. Knudson, Director, Waste
Management Div., EPA Region VI, to James
Barnett, Executive Director, Oklahoma Water
Resources Board (Sept. 15, 1986) 0...

Memorandum From Martin Maner..............

C. Sands, Sutherland on Statutes and Statutory
Construction, (4th ed. 1984) OEE Ep

Sunstein, Law and Administrati». After Chevron,
90 Colum. L. Rev. 2071 (1990) 0.

Page

19

REPLY BRIEF OF PETITIONERS

Respondents and their amici devote most of their
briefs to refuting a position the Arkansas petitioners
never take. In particular, they characterize Arkansas
as contending that downstream state standards can be
ignored and “have no bearing” in permit decisions, and
they then attack this “Arkansas interpretation” as one-
sided and contrary to the goals of the Clean Water Act
(CWA). See, e.g., Okla. Br. at 19; Illinois Br. at 12-13;
NRDC Br. at 14. This characterization is simply wrong,
and as a result, most of respondents’ analysis fails to
address the issues actually before this Court.

The Arkansas petitioners’ opening brief demonstrated
that Congress meant in 1972 to establish a balance be-
tween the interests of upstream and downstream states.
Pursuant to this balance, section 402 of the CWA does
require EPA and source state permitting agencies to con-
sider the standards and objections of downstream states,
and EPA can use its final veto authority to assure that
downstream states are treated reasonably. CWA §§ 402
(b) (5), 402(d) (2), 402(a) (3). At the same time, these
provisions also show that downstream state standards
are not directly applicable to out-of-state sources, and
they expressly grant permitting agencies the discretion
not to impose additional conditions for achieving the
cownstream standards. See Ark. Br. at 13-17. The plain
language of these controlling provisions, and this Court’s
interpretation of these provisions just four years ago in
International Paper Co. v. Ouellette, 479 U.S. 481, 490-91,
497 (1987), therefore foreclose the Tenth Circuit’s con-
trary view, which makes downstream state standards
automatically applicable and eliminates al] permitting
agency discretion.

Whether as a consequence of their “strawman” strat-
egy or of necessity, respondents virtually ignore section
402, this Court’s holding in Ouellette, and a number of
other grounds given by EPA and Arkansas for reversal
of the Tenth Circuit’s decision. Moreover, the goals that
respondents invoke and the other arguments they do pre-

2

sent in no way justify overturning Ouellette and making
downstream state standards apply automatically to facili-
ties in upstream states. See infra Section I. But even if
the Oklahoma standards were somehow applicable, EPA
still acted well within its discretion to issue the Fayette-
ville permit here, and the Tenth Circuit’s decision must
be reversed. See infra Section II.

I. THE CWA GIVES EPA DISCRETION WHETHER
TO IMPOSE ADDITIONAL RESTRICTIONS TO
PROTECT DOWNSTREAM WATER QUALITY.

A. The Goals Of The Act Do Not Support Respondents’
Statutory Construction.

Although respondents and their amici repeatedly invoke
the “goals” of the Clean Water Act, neither those goals
nor the statute as a whole can support their interpreta-
tion of the Act. In fact, despite their efforts to arrogate
the mantle of reasonableness, respondents and their amici
are the ones advocating an extreme approach for the res-
olution of interstate disputes, as shown both by the
facts of this case and the consequences of their statutory
construction.

After considering all the evidence, EPA found that
the Fayetteville discharge into tributaries of the Illinois
River would have no adverse effect on Oklahoma water
quality. Due to the high rate of assimilation in Arkansas
(about 75%), EPA concluded that the Fayetteville dis-
charge would increase the river’s total phosphorus level
by no more than six pounds per day at the Oklahoma
border. Ark. P.A. 129a. Moreover, since those six pounds
were diluted in an additional 3.5 million gallons of water
each day, the Fayetteville discharge as a whole would
actually improve Oklahoma water quality, by increasing
the river’s assimilative capacity for nutrients and diluting
the pre-existing phosphorus concentrations at the border.’

1The pre-existing phosphorus concentration at that point was
approximately 0.4 mg/l. Memorandum from Martin Maner, R.,
Vol. IX, Dkt. No. ARK-6 (part 3), Ark. Ex. 10. Since the six pounds
of phosphorus from the Fayetteville discharge that reach the

3

Although phosphorus was the pollutant of greatest con-
cern at the hearings, EPA also found that the Fayette-
ville discharge would improve dissolved oxygen levels at
the Oklahoma border, and even Oklahoma’s primary ex-
pert witness conceded during the hearings that “there
will be no change in terms of algae growth, taste, odor
and turbidity.” Ark. P.A. at 134a, 139a. See generally
Ark. P.A. at 127a-144a.

By comparison, Fayetteville’s prior treatment plant
was not nearly so effective, and as Oklahoma admits, had
become a serious detriment to river quality and the
environment. In addition, with the growth of the area,
Fayetteville concluded that even a new state-of-the-art
facility could not solve these problems if it continued
discharging all its effluent into the White River. Ark.
Br. at 4. Accordingly, the split-flow design Fayetteville
ultimately selected, which combined the assimilative capa-
bility of the Illinois River tributaries in Arkansas and
the White River, was essential for minimizing the facil-
ity’s overall impact.’

EPA’s issuance of a permit based on this split-flow
design was thus the only rational alternative from an
environmental standpoint, and for the reasons shown
above, the decision certainly did not protect Arkansas’
water quality “at Oklahoma’s expense,” notwithstanding
Oklahoma’s rhetorical premise. See Okla. Br. at 1, 6-7.

border are diluted by the 3.5 million gallons of water added by the
plant’s discharge, the maximum phosphorus concentration in the
Fayetteville effluent reaching the border would be less than 0.25
mg/l. See Ark. P.A. at 128a-129a; J.A. at 67; R., Vol. VII, Dkt. No.
C-1 (Vol. II), at 316. In fact, the Fayetteville plant discharges
less phosphorus than the permit maximum assumed in these cal-
culations.

2 Ark. Br. at 4-6. Respondents’ suggestion that Fayetteville could
readily have chosen a complete “land applicatjon” alternative is
unfounded. See Okla. Br. at 7. In fact, Fayetteville did study this
alternative, and the City was unable to implement this approach
(beyond its current use) for a variety of reasons, including the
City’s inability to enter agreements with sufficient neighboring
landowners to handle the additional wastewater. See also Ark.
P.A. at 115a n.11.

4

This conclusion is even more obvious froni a broader re-
gional perspective, since improvements underway at three
other Arkansas facilities nearer the border were expected
to reduce phosphorus discharges into the Illinois River
by about 400 pounds per day, easily offsetting the six
pounds added by Fayetteville. See Ark. P.A. at 128a,
132a, 153a; EPA Br. at 9 n.10.

The Tenth Circuit’s invalidation of the Fayetteville
permit, despite these facts, itself demonstrates the ex-
treme nature of the court’s holding. The defense of that
holding by respondents and their amici similarly reveals
the extreme statutory interpretation required to support
that holding and its consequences for the rest of the na-
tion. Specifically, they contend that: (i) a discharger
must automatically comply with the standards of all
downstream states; (ii) downstream states can adopt
standards that preclude any new discharges in upstream
states; (iii) EPA has no authority to disapprove a state
standard that is more stringent than federal minimum
requirements; and (iv) EPA and state permitting agen-
cies have no discretion in interpreting or applying down-
stream standards with respect to upstream sources. £.9g.,
Okla. Br. at 6, 31-32; NRDC Br. at 22. In their view,
Oklahoma has the complete and unfettered ability to ban
unilaterally all new discharges into most of the water-
ways of Northwest Arkansas, which eventually flow into
Oklahoma. /d.

Respondents base this wooden construction almost ex-
clusively on the CWA’s goal of eliminating all discharges
by 1985. As laudable as that goal may be, Congress rec-
ognized from the outset that this goal was aspirational
rather than operational.’ No state, including Oklahoma,
ean achieve this goal, now or in the immediate future,
and neither EPA nor any court other than the Tenth

3 As Senator Muskie, the Senate sponsor of the provision, ex-
plained: “{T|he 1985 deadline for achieving no-discharge of pollu-
tants is a policy objective. It is not locked in concrete. It is not
enforceable.” 117 Cong. Rec. 38,800 (1971), reprinted in 2 Leg.
Hist. of 1972, at 1262. See also National Wildlife Fed’n v. Gorsuch,
693 F.2d 156, 178-81 (D.C. Cir. 1982).

5

Circuit has interpreted the goal in the manner proposed
by respondents and their environmental interest group
supporters.

Not only do respondents misperceive the nature of Con-
gress’ goals, but they also ignore the counterproductive
and disruptive consequences of their extreme interpreta-
tion. As this Court recognized in Ouellette, Congress in-
tended to establish a balance between upstream and down-
stream states, not to grant downstream states control
over out-of-state sources. 479 U.S. at 490-91, 497. To
maintain this balance, consistent with long-established
principles of federalism and state equality, EPA and
source state permitting agencies must have discretion
regarding the application of downstream standards. As
explained by the municipal leagues and other affected par-
ties supporting Arkansas here, upstream sources would
otherwise be required to comply with inconsistent and con-
stantly changing standards from as many as ten down-
stream states.‘ Moreover, by eliminating EPA’s role as
a meaningful arbiter, respondent’s view would interfere
with the construction of environmentally improved facil-
ities, as in this case, and even expose upstream sources
to selective bans or discrimination.

Consequently, the Tenth Circuit’s and respondents’ con-
struction of the statute would actually interfere with,
not serve, the goals of the statute.

* AMSA/Municipal League Br. at 8-12; Nevada Br. at 15-16;
Colorado Br. at 13-14; Champion Br. at 6 & n.5; Ark. Br. at 29-30.

5Jd. Although denying any discriminatory intent, Oklahoma has
adopted much more lenient standards for downstream segments of
the Illinois River where almost all Oklahoma dischargers are lo-
cated. J.A. at 54. Furthermore, all five river segments designated
as scenic rivers by the Oklahoma legislature, and thus subject to
the most stringent “(a)” limitations on new discharges, happen to
be adjacent to the Arkansas border. See 1982 Oklahoma Water
Quality Standards (QWQS), App. A. R., Vol. X, Dkt. No. OK-6A, at
17. In each case, these classifications affect almost exclusively Arkan-
sas sources since Oklahoma has adcpted more lenient standards for
virtually every downstream segment where its own dischargers are
located.

6

B. The CWA Expressly Grants Permitting Agencies
The Discretion To Arbitrate Interstate Disputes On
A Case-by-Case Basis.

While dwelling on their singular view of the CWA’s
goals, respondents essentially ignore the statutory pro-
vision Congress enacted in 1972 that specifically gov-
erns disputes over interstate waterways. See Ark. Br.
at 3, 13. This provision, which was added as section
402 when Congress created the NPDES program, controls
the issuance of permits by both EPA and state permit-
ting agencies, as respondents appear to accept. CWA
§§ 402(b) (5), 402(a) (3). By its plain terms, this pro-
vision creates a consultative and discretionary mechanism
that requires permitting agencies to consider, but not
necessarily accept, the recommendations of downstream
states regarding their standards. Section 402 also author-
izes, but plainly stops short of requiring, EPA to veto a
permit that fails to require compliance with downstream
state standards. CWA § 402(d) (2).°

Although respondents themselves appear to concede the
discretionary nature of these provisions, see Okla. Br. at
18 n.15, their environmental interest group supporters
nevertheless suggest reading § 402(d)(2) as compelling
EPA to veto permits that do not ensure compliance with
downstream standards. NRDC Br. at 12-13. The words
of the statute will not tolerate this reading. On its very
face, this section is permissive and states that the permit

® See Ark. Br. at 14-15. Section 402(a) (3) makes the provisions
of §402(b)(5) directly applicable to EPA when it acts as the
permitting agency, and in that situation, the consultative and dis-
cretionary procedures obviously merge. See Ark Br. at 15. Some
of the relevant factors that EPA may consider in its case-by-case
determinations include the relative hardships to the upstream and
downstream states, the volume of the discharge, whether the dis-
charge will violate downstream standards, the frequency and dura-
tion of any such violation, whether the downstream standards
exceed the federal requirements, and whether the downstream
state applies similar restrictions to sources in its own state. Cf.
S. Rep. No. 50, 99th Cong., lst Sess. 49 (1985), reprinted in 2
Leg. Hist. of 1987, at 1420, 1470.

7

shall be denied “if the Administrator . . . objects.” CWA
§ 402(d)(2) (emphasis added). Moreover, it would be
absurd to read this “if” as creating a mandatory duty
for EPA when § 402(d)(3), the following subsection,
expressly authorizes EPA to waive any review of a state
permitting agency’s decision not to follow a downstream
state’s recommendations. Not surprisingly, therefore,
every other court of appeals interpreting § 402(d) (2)
has concluded that EPA’s decision to veto a permit is
discretionary, not mandatory. See Ark. Br. at 14.

For their part, respondents suggest that instead of
§ 402, interstate disputes should be controlled by lan-
guage in § 401(a)(2), an older provision that predates
the NPDES program. In particular, this provision re-
quires EPA to seek the views of downstream states and,
based upon the “evaluation and recommendations” of the
EPA Administrator, to condition permits “in such manner
as may be necessary to insure compliance with applicable
water quality requirements.” CWA § 401(a)(2) (em-
phasis added). Respondents’ reliance on this provision is
misplaced for a number of reasons.

First, nowhere does § 401(a) (2) say that “applicable”
requirements means all downstream state standards. Re-
spondents simply assume that it does, thereby begging
te question. In fact, the provision means that once EPA
makes its case-by-case determination whether to treat a
particular downstream standard as “applicable,” the per-
mit must ensure compliance with the ones EPA makes
“applicable.” Second, respondents’ presumed meaning of
“applicable” in § 401(a)(2) would conflict with the ac-
knowledged meaning of the same word in § 401(a) (1),
the preceding subsection. In that provision, “applicable”
was deliberately limited to the standards set by the source
state. Congress made this clear beyond question when it
specifically decided against requiring a certification of
compliance with downstream state standards under this
provision." Moreover, every court construing this provi-

™ See Ark. Br. at 16-17 & n.16; see also Senate Consideration of
the Conference Report, Oct. 4, 1972, reprinted in 1 Leg. Hist. of

8

sion has held, contrary to the implication of several amici
(Sierra Club Br. at 7; Illinois Br. at 10), that it only
requires a certification of compliance with source state
standards.*

A third problem with respondents’ attempted use of
$401(a)(2) is that this provision does not even apply
when state agencies act as the permitting authority under
section 402(b). See Ark. Br. at 16 & n.15. Respondents’
construction would thus violate this Court’s admonition
that it makes no sense to construe the CWA as imposing
different requirements depending on the “fortuitous cir-
cumstance” of whether EPA or a state acts as the per-
mitting agency. Crown Simpson Pulp Co. v. Costle, 445
U.S. 193, 196-97 (1980). Longstanding principles of
statutory construction similarly militate against constru-
ing § 401(a) (2) to create this conflict with § 402. See,
e.g., Louisiana Pub. Service Comm'n v. FCC, 476 US.
355, 370 (1986); Adams v. Howerton, 673 F.2d 1036,
1040 (9th Cir.), cert. denied, 458 U.S. 1111 (1982).
Finally, even if § 401(a) (2) could only be read as cre-
ating this conflict, the permissive provisions in §§ 402
(b) (5) and 402(a)(3) must nevertheless control in
NPDES permitting decisions, since Congress enacted the
latter provisions more recently and they serve as the
specific legal authority for issuing NPDES permits in
the first place.’

1972, at 161, 176 (exhibit of Sen. Muskie) (state certification is
intended “to assure compliance with water quality standards in that
State’) (emphasis added).

8 See National Wildlife Fed’n v. FERC, 912 F.2d 1471, 1483-84
(D.C. Cir. 1990); Miners Advocacy Council v. State Dep't of
Environmental Conservation, 778 P.2d 1126, 1129 (Alaska 1989),
cert. denied, 110 S. Ct. 1127 (1990) ; Environmental Defense Fund,
Inc. V. Tennessee Water Quality Control Bd., 660 S.W.2d 776, 779
(Tenn. Ct. App. 1983).

® Ark Br. at 15-16. See 2A C. Sands, Sutherland on Statutes and
Statutory Construction § 51.02, at 453-54 (4th ed. 1984); Watt v.
Alaska, 451 U.S. 259, 166 (1981) (more recent enactment prevails).
In addition, it has long been accepted that a more specific provision

—_

9

In sum, therefore, section 402 must be regarded as
the governing provision, and rather than make down-
stream standards automatically applicable, this provision
directs permitting agencies to determine on a case-by-case
basis whether downstream state standards warrant im-
posing additional conditions in a permit.’

C. The Legislative History, EPA’s Regulations, And
Ouellette Further Confirm That Downstream Stand-
ards Are Not Automatically Applicable.

The legislative history of the CWA likewise demon-
strates that Congress did not intend to make downstream
state standards apply automatically to out-of-state facili-
ties, as explained in Arkansas’ opening brief. Ark. Br.
at 19-24. In response, neither respondents nor their
amici are able to cite any contrary evidence in the legis-
lative history that actually addresses the interstate ap-

preempts an inconsistent provision that is more general. Brown Vv.
General Services Admin., 425 U.S. 820, 834-35 (1976); Jett v.
Dallas Indep. School Dist., 491 U.S. 701, 734-35 (1989). See also
MacE voy Co. v. United States, 322 U.S. 102, 107 (1944) (“How-
ever inclusive may be the general language of a statute, it ‘will not
be held to apply to a matter specifically dealt with in another part
of the same enactment. ... Specific terms prevail over the general
in the same or another statute which otherwise might be con-
trolling’” (quoting Ginsberg & Sons vy. Popkin, 285 U.S. 204, 208
(1932) )). Moreover, § 402 would also take precedence as the last
provision in point of arrangement. See, e.g., 2A C. Sands, Suther-
land on Statutes, supra, § 46.05, at 92; Lodge 1858, Am. Fed'n of
Gov't Employees v. Webb, 580 F.2d 496, 510 (D.C. Cir.), cert.
denied, 439 U.S. 927 (1978).

%” Respondents and their amici also rely on section 301(b)
(1)(C) to support their argument that downstream standards are
automatically applicable. See, e.g., Okla. Br. at 17. However, this
provision does not address the issue of whether downstream stand-
ards apply to out-of-state dischargers, and respondents’ reading
again simply begs the question. See Ark. Br. at 17 n.17. Moreover,
there is no suggestion in the legislative history that Congress in-
tended § 301 to require the extra-territorial application of more
stringent downstream state standards. In fact, the language and
legislative history of § 510 demonstrates that such standards were
to apply only to in-state dischargers. See Ark. Br. at 25-27.

10

plication of water quality standards. Under these cir-
cumstances, it is inconceivable that Congress could have
adopted respondents’ extreme interpretation, especially
without expressly saying that it was doing so, given the
extraordinary impact on state sovereignty and the sub-
stantial constitutional implications of allowing one state
to regulate facilities in another state."

In the absence of any legislative history sufficient to
support their own interpretation, respondents merely cite
the general statutory goals and complain that Arkansas’
position would cause “interstate water quality to be set
at the lowest common denominator.” Okla. Br. at 19.
What respondents ignore is that Congress chose other
measures to address such concerns, and not the measure
Oklahoma would prefer here. Specifically, Congress did
require EPA to set uniform technology-based effluent lim-
itations, which apply nationally, and granted EPA the
authority to review source state standards for consist-
ency with federal minimum requirements. These meas-
ures were purposefully crafted to ensure adequate pro-
tection of downstream water quality, and even then,
Congress still gave permitting agencies the discretion to
impose additional conditions in light of downstream
standards.”

As another substitute for legislative intent, respondents
contend that EPA’s regulations support their extreme

11 The extra-territorial application of state standards in this
manner would require an “unmistakably clear” authorization from
Congress. Ark. Br. at 31; Nevada Br. at 16. A clear congressional
statement is required not only by these constitutional implications,
but also by the rule that “if Congress intends to alter the usual
constitutional balance between the States and the Federal Govern-
ment, it must make its intention to do so unmistakably clear in the
language of the statute.” Will v. Michigan Dep't of State Police,
491 U.S. 58, 65 (1989) (quotations omitted).

12 See citations to the legislative history in NRDC v. Train, 510
F.2d 692, 709-10 (D.C. Cir. 1975); Ark. Br. at 19-22; AMSA
Municipal League Br. at 8. The consultative mechanism of sections
402(b) (5) and 401(a) (2) were enacted to resolve those few inter-
state disputes that might arise despite the uniform federal require-
ments.

11

interpretation and require automatic application of down-
Stream state standards. See 40 C.F.R. §§ 122.4(d),
122.44(d) (4). However, these regulations merely confirm
that permitting agencies must require compliance with
any “applicable water quality requirements” of down-
stream states, without determining which of those re-
quirements will, in fact, be applicable in any given case.
Like section 401(a) (2), therefore, these regulations are
consistent with section 402 and maintain EPA’s discre-
tionary authority to decide which downstream standards,
based on a case-by-case consideration of all relevant fac-
tors, should be applied to a particular discharge.

This is precisely the interpretation offered by EPA
when adopting its regulations on water quality stand-
ards. At that time, EPA explicitly stated that it would
resolve interstate water quality disputes on a case-by-case
basis, considering all the relevant factors:

While it is theoretically possible that two States
might have incompatible standards, both of which
meet the requirements of the Act and this regulation,
such a situation is likely to be rare. If it occurs, EPA
will assist the States in resolving the inconsistency.
The exact procedures will depend upon the specific
circumstances. Therefore, we do not believe it is ap-
propriate to include specific procedures in the Water
Quality Standards Regulation to resolve interstate
conflicts.

48 Fed. Reg. 51,413 (1983). Respondents offer nothing

'S Even if EPA’s regulations were read to have a broader effect,
they could not change the fact that Congress specifically gave EPA
the discretion to determine in each case whether and how a facility
should be required to satisfy downstream standards. Consequently,
even if the regulations were somehow read to mean that EPA will
generally find downstream standards “applicable,” the agency still
retains its full discretion under § 402 to consider and interpret
those standards, see Ark. Br. at 31-33, as well as to depart from such
a presumption of applicability in any individual proceeding. See,
e.g., United States v. Storer Broadcasting Co., 351 U.S. 192, 204-05
(1956).

12

to suggest that the cited regulations should be construed
differently, or given any broader effects in this case."

Accordingly, in light of the plain statutory language
and need for a balanced approach, this Court already
rejected respondents’ and the Tenth Circuit’s construction
of the Act just four years ago in Ouellette. In particular,
the Court held that sections 402 and 401 give down-
stream states only an “advisory role” in regulating an
out-of-state discharge, whereas the EPA Administrator
is delegated “the discretion to disapprove the permit
if he concludes that the discharges will have an undue
impact on interstate waters.” 479 U.S. at 490-91; see
also Ark. Br. at 17-18. Respondents’ attempt to dismiss
this Court’s prior construction as “dicta” does not make
this Court’s interpretation go away, of course. Okla. Br.
at 19 n.16. Moreover, respondents’ characterization is
wrong. In fact, the Court’s construction of sections 402
and 401 was essential for its holding that these provisions
preempt the application of a downstream state’s common
law. Under the preemption doctrine, the Court was first
required to interpret these CWA provisions allocating

14 Moreover, any EPA regulation that made downstream stand-
ards automatically applicable would constitute an abdication of the
role Congress specifically entrusted to EPA as mediator of inter-
state water quality disputes. Furthermore, since the federally-
approved standards remain state law, and their extra-territorial ap-
plication to other states requires clear Congressional authorization
as a matter of constitutional law, see Ark. Br. at 27; Nevada Br.
at 13-14, such a rule would be highly questionable under Chevron,
U.S.A., Inc. Vv. NRDC, 467 U.S. 837 (1984). See Sunstein, Law
and Administration After Chevron, 90 Colum. L. Rev. 2071, 2110-14
(1990) (Chevron deference is not appropriate when an agency
adopts a rule on its own that requires clear Congressional authori-
zation); see also EEOC vy. Arabian Am. Oil Co., 111 S. Ct. 1227,
1237 (1991) (Scalia, J., concurring) (citing Sunstein); Rust v.
Sullivan, 111 8S. Ct. 1759, 1780 (1991) (Blackman, J., dissenting)
(citing Sunstein); Edward J. DeBartolo Corp. Vv. Florida Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
This Court has also recognized that less deference should be given
to an agency construction that conflicts with an earlier interpreta-
tion by this Court. Maislin Industries, U.S., Inc. v. Primary Steel,
Inc., 110 S. Ct. 2759, 2768 (1990); Patterson v. McLean Credit
Union, 491 U.S. 164, 172 (1989).

13

into interstate waterways before it could determine
whether those provisions conflicted with, and hence pre-
empted, the application of a downstream state’s common
law. Based on the Court’s conclusion that downstream
state standards do not apply extra-territorially under
the CWA, the Court then concluded that the extra-terri-
torial application of a downstream state’s common law
also must be preempted, for otherwise the downstream
state would be allowed to do indirectly what it cannot do
directly. 479 U.S. at 490-91, 495. Given the clear and
unequivocal expression of Congressional intent required
by this Court to make such a preemption holding,” re-
spondents can scarcely support any other construction of
the Act in this case.

D. This Court Should Uphold The Fayetteville Permit
Based on EPA’s Discretion Whether To Apply
Downstream Standards.

Since the CWA gave EPA discretion whether to require
compliance with the Oklahoma standards at all in this
case, EPA necessarily also had broad discretion in inter-
preting and applying those standards here. Thus, had
the Tenth Circuit properly interpreted the CWA’s inter-
state provisions and recognized this broad discretion, it
could never have overturned EPA’s decision to issue the
Fayetteville permit. See Ark. Br. at 31-33.

EPA now modestly suggests in its reply brief that this
Court can reverse the Tenth Circuit and uphold the
Fayetteville permit without needing to address the gen-
eral applicability of downstream state standards under
the CWA." While this conclusion is undoubtedly correct,
for the series of reasons addressed in EPA’s brief and in

1° This Court requires that the intent of Congress be “clear and
manifest” before finding that a federal statute preempts state law.
California Vv. FERC, 110 8. Ct. 2024, 2029 (1990); Puerto Rico
Dep't of Consumer Affairs V. Isla Petroleum Corp., 485 U.S. 495,
499-500 (1988); Ouellette, 479 U.S. at 491; Rice v. Santa Fe Ele-
vator Corp., 331 U.S. 218, 230 (1947).

16 EPA Reply Br. at 7-8. The Court could not, however, affirm
the Tenth Circuit’s decision without reaching these broader issues.

14

Section II of this brief, there certainly is no reason for
this Court to stop short of deciding the central question
presented here. This Court has already decided that ques-
tion énce in Ouellette, as described above, and failing <0
reaffirm that decision here would create widespread un-
certainty and turmoil. The Tenth Circuit, for example,
felt free to disregard the Ouellette interpretation, and
the court of appeals’ decision is now being extended in
other regions of the country. Accordingly, this Court
should reaffirm its Ouellette interpretation to provide the
simplest and most straightforward basis for decision here,
clarify the responsibilities of all states under the CWA,
and prevent disruptive interstate disputes from multiply-
ing in the future.

Il. EVEN IF DOWNSTREAM STANDARDS WERE
AUTOMATICALLY APPLICABLE, THE COURT OF
APPEALS SHOULD NOT HAVE OVERTURNED
THE PERMIT IN THIS CASE.

As EPA and Arkansas both demonstrated in their
opening briefs, even if downstream standards do auto-
matically apply to out-of-state sources, the Tenth Circuit’s
decision in this case must still be reversed on several
independent grounds and the Fayetteville permit upheld.

A. The CWA Delegates To EPA The Discretion To
Determine Compliance With Downstream Stand-
ards.

Respondents and their amici offer no credible basis
for rejecting the two independent sources of discretion
under the CWA that authorized EPA to find that the
Fayetteville discharge complies with Oklahoma stand-
ards. First, even if the Oklahoma standards did apply
automatically, EPA must be responsible for defining the
term “compliance” as used in the CWA. See, e.g., CWA
§ 401(a) (2); 40 C.F.R. § 122.4(d). As a matter of fed-
eral law, EPA defined that term here to include an ele-
ment of detectability and concluded that the Fayetteville
discharge would comply with the Oklahoma standards so
long as it did not heve any detectable impact on down-
stream water quality. See Ark. P.A. at 117a n.16; EPA

15

Br. at 18 n.21; Ark. Br. at 34-36. Respondents object to
EPA’s definition of compliance by citing cases holding
that the CWA does not require a permit violation to be
“detectable” or a prohibited discharge to be “harmful.”
Okla. Br. at 24-25; OWF Br. at 10 n.7. These cases,
however, deal with entirely different contexts in which
the agency simply used alternative means for objectively
determining the Act’s requirements. In the instant con-
text, EPA reasonably concluded that an objective test
such as detectability was necessary to assess compliance
with Oklahoma water quality standards, consistent with
well-established judicial precedent.'7 Such objective cri-
teria are especially necessary for demonstrating compli-
ance with water quality standards, because of the com-
plexity and uncertainties in modelling or measuring the
effects of particular discharges on water quality many
miles downstream."

Second, the CWA also gives EPA, as a matter of fed-
eral law, the discretion to interpret state water quality
standards in the interstate context. As Ouellette unques-
tionably does hold, a downstream state’s standards can
apply to out-of-state sources only through federal law.
The state standards cannot apply, of their own force, be-
yond the adopting state’s borders. Consequently, when
downstream standards are applied in the interstate con-
text, they must be subject to federal interpretation.
Moreover, Congress’ delegation of responsibility to
EPA necessarily carries with it the included authority
to interpret the downstream standards that the agency
applies in the interstate context.” This is particularly

17 See, e.g., Paccar, Inc. v. NHTSA, 573 F.2d 632, 644 (9th Cir.),
cert. denied, 439 U.S. 862 (1978); Chrysler Corp. v. Dep't of
Transp., 472 F.2d 659, 675 (6th Cir. 1972). See also Air Pollution
Control Dist. of Jefferson County, Ky. v. EPA, 739 F.2d 1071, 1092
(6th Cir. 1984).

18 See EPA V. California ex rel. State Water Resources Control
Bd., 426 U.S. 200, 204 (1976).

If nothing else, section 401(a)(2) gives a federal permitting
agency the authority to interpret downstream standards. While it

16

true where the state standards are based on federal
models published by EPA, as is the case here. See EPA
Br. at 20 n.25; Ark. Br. at 37. As shown in the opening
briefs and demonstrated again below, EPA reasonably
exercised this discretion in finding that the Fayetteville
discharge would comply with all the Oklahoma standards.

B. Federal Law Does Not Require A Ban On New
Discharges.

The Arkansas petitioners’ opening brief further demon-
strated that there is no basis for the Tenth Circuit’s hold-
ing that the CWA requires a ban on all new discharges
upstream from a pre-existing violation of a water quality
standard. See Ark. Br. at 42-49. Indeed, respondents
and their amici do not even attempt to defend the Tenth
Circuit’s novel interpretation of the CWA as requiring a
generic permit ban upstream from any water quality
violation. Rather, they offer an alternative theory that
the federal antidegradation policy for outstanding na-
tional resource waters (ONRWs) requires an absolute
ban on new discharges into such waters or their tribu-
taries. Okla. Br. at 35-36. EPA’s regulations impose no
such ban on new discharges. On its face, and as its very
name indicates, that policy simply prohibits “degrada-
tions” and requires only that “water quality shall be
maintained and protected.” 40 C.F.R. § 131.12(a) (3).
Thus, a new discharge that will have no detectable effect
on water quality, such as the Fayetteville discharge, is
plainly not prohibited by EPA’s antidegradation policy.”

is the source state that certifies compliance with its standards un-
der section 401(a) (1), it is the federal permitting agency that has
the ultimate decisionmaking power under section 401(a)(1) to con-
sider what requirements to impose to protect the water quality of
downstream states.

20 Respondents are also mistaken in contending that the Fayette-
ville 201 Facilities Plan Environmental Information Document and
the findings of the Arkansas-Oklahoma Arkansas River Compact
Commission call into question EPA’s finding that the Fayetteville
discharge will have no detectable impact on Oklahoma water quality.
‘To the contrary, Dr. Thompson, representing the private consulting
organization that drafted the 201 Plan document, testified that the

17

While EPA has never elaborated the requirements
of its antidegradation policy in a national rulemaking,
several] EPA regional offices have produced guidance doc-
uments, reviewed by EPA headquarters, which confirm
that the federal policy imposes no such ban on new dis-
charges.** Moreover, even if the federal antidegradation
policy were to require an absolute ban on new discharges
directly into an ONRW, it is clear that such a restriction
would never apply to tributaries of an ONRW.~ In this
case, Fayetteville discharges into a tributary of a tribu-
tary of a tributary of the Illinois River, which Oklahoma
has designated a scenic river after it crosses the Oklahoma

only Oklahoma water quality standard the Fayetteville discharge
would possibly violate is a prohibition against all new discharges,
assuming such a prohibition applies to Arkansas; and, he testified
that the Fayetteville discharge would have no measurable effect at
the Oklahoma border. R., Vol. VII, Dkt. No. C-1 (Vol. II), at 246-47,
282-83. Similarly, the Compact Commission report only discussed
the potential increase in phosphoros loading to the Illinois River
(R., Vol. X, Dkt. No. OWF-1, at 20), and ended up rejecting Okla-
homa’s claim that Arkansas was violating the Compact by adversely
affecting Oklahoma water quality. Jd. at 25.

*1F.g., EPA Region V, Guidance For AntiDegradation Policy
Implementation For High Quality Waters, at 4-5 (Dec. 3, 1986)
(“an increased pollutant load” does not constitute “a lowering of
water quality ... if the increase is so small that no significant
change in water quality can be demonstrated”); EPA Region 9,
Guidance on Implementing the Antidegradation Provisions of 40
CFR 131.12, at 4 (June 3, 1987) (“If the action will not lower water
quality, no further analysis is needed and EPA considers 40 CFR
131.12 to be satisfied”). See also Commonwealth Edison Co. Vv.
Train, 649 F.2d 481, 485 (7th Cir. 1980).

22 Although some other EPA regions would appear to ban new
discharges directly into an ONRW, even those regions do not pro-
hibit new discharges into a tributary of an ONRW. See, e.g., EPA
Region IV, Question and Answers on Implementation of Tier III
of the Federal Antidegradation Policy: Protection of Outstanding
National Resources Waters, at 2 (April 20, 1989) (“New point
source dischargers are allowed to waters tributary to ONRW’s as
long as the discharge will not result in a lowering of water quality
as the tributary waterbody enters the ONRW basin or cause a
change in the essential character or special use which makes the
water an ONRW.”).

18

border. Thus, there is no basis whatsoever under federal
law for prohibiting the Fayetteville discharge.

C. The Oklahoma Antidegradation Standard Also Does
Not Prohibit The Fayetteville Discharge.
Respondents and their amici also offer no valid ground
for denying the Fayetteville permit under any reasonable
reading of Oklahoma state law. As an initial matter, the
Tenth Circuit identified several alleged errors made by
EPA’s Administrative Law Judge (ALJ) in applying
Oklahoma’s standards. Ark. P.A. at 45a-46a, 51la-53a.
Respondents and their amici do not contest petitioners’
demonstration that these alleged errors were either non-
existent or harmless, and thus do not affect the validity
of EPA’s decision to approve the permit. Ark. Br. at
38-41.?°

Unable to defend the Tenth Circuit’s decision on these
grounds, and unwilling to defend the court’s “permit ban”
holding as a construction of the federal CWA, respond-
ents instead attempt to recharacterize the court’s holding
as based on Oklahoma’s individual antidegradation stand-

23 Although respondents do offer an attack on the ALJ’s eutrophi-
cation findings, this attack merely repeats the Tenth Circuit’s error
of misinterpreting the ALJ’s findings. Specifically, the Tenth Cir-
cuit accused the ALJ of committing a “glaring error” by allegedly
concluding that nutrient uptake by algae reduces the rate of
eutrophication. Okla. Br. at 23 n.21; Ark. P.A. at 68a-69a n.47.
In fact, the court simply misread the relevant sentence in the ALJ’s
opinion, and Oklahoma never even mentioned this issue in any
of the proceedings below. The ALJ actually stated that at low
flows, “the assimilative processes is [sic] at its most effective stage
and therefore removes more nutrients upon which algae feed before
they reach the Oklahoma border.” Ark. P.A. at 129a. Properly
read, and as confirmed by the evidence cited in the rest of the
ALJ’s decision, this sentence simply recognizes that, in low flow
situations, nutrient assimilation is enhanced, thereby lowering the
amount of nutrients reaching the border and consequently reducing
algal growth. In other words, consistent with the testimony at the
hearing, it is the natural assimilative processes of the river, and
not algal growth, which the ALJ concluded would reduce the rate
of eutrophication. See R., Vol. VII, Dkt. No. C-1 (Vol. II), at 309.

19

ard. In particular, respondents contend that the Tenth
Circuit gave Oklahoma’s standard a dual meaning de-
pending on whether or not the downstream waters are
already degraded. See, e.g., Okla. Br. at 30. As shown
above, there is no basis for this dual meaning or permit
ban in the CWA or federal antidegradation policy. See
infra pages 16-17. Respondents’ opportunistic attempt to
engraft this interpretation on its own standard also lacks
any foundation. Oklahoma never advanced such an inter-
pretation in the proceedings below, and there is absolutely
no suggestion on the face of the standard that it has two
meanings depending on whether or not there is existing
degradation.

Apart from proposing this novel recharacterization,
respondents offer their own theory that the Oklahoma
antidegradation standard absolutely prohibits any new
discharge, regardless of pre-existing conditions. The
standard also cannot support this interpretation, since its
language only prohibits “degradation” of an ONRW;; it
says nothing about banning new discharges that will not
degrade water quality. J.A. at 28. Indeed, even the
Tenth Circuit would not accept this view and instead in-
terpreted Oklahoma’s standard to prohibit only new dis-
charges that result in “any human-caused, detectable
change” in water quality. Ark. P.A. at 49a (emphasis
added).

Moreover, the Beneficial Use Limitations (Section 5)
of the 1982 OWQS only designate “scenic river areas” and
“such tributaries of those streams as may be appropri-
ate” as being subject to “(a)” protection for ONRW
waters. J.A. at 46-47. These limitations therefore do not
even apply to unlisted tributaries, and Oklahoma’s 1982
standards clearly did not designate the Arkansas tribu-
taries of the Illinois River in question here as being subject
to the ONRW protections. 1982 OWQS, App. A, J.A. at
54.** Indeed, Oklahoma itself interpreted its 1982 stand-

24In 1985, Oklahoma did revise the OWQS to extend ONRW
protection to all tributaries of scenic rivers. However, the 1982

20

ards in this manner as the basis for permitting an in-
creased load for the Tahlequah, Oklahoma wastewater

treatment plant.**

Finally, even if the Oklahoma standard did prohibit all
new discharges, going far beyond the federal minimum
requirements, it would constitute a more stringent state
standard adopted under section 510 of the CWA and as
such, must only apply to in-state dischargers. City of Mil-
waukee v. Illinois, 451 U.S. 304, 328 (1981); see also

Ark. Br. at 25-27."
CONCLUSION

For the foregoing reasons, the judgment of the court
of appeals should be reversed and the permit approved by
EPA should be reinstated.

OWQS, and not the 1985 OWQS, apply to the Fayetteville permit.
Ark. P.A. at 45a n.29. Moreover, when EPA approved the 1985
OWQS which extended ONRW status to tributaries, EPA expressly
limited this extension to “streams or portions of streams within
the boundaries of Oklahoma.” Letter from Myron O. Knudson, Di-
rector, Waste Management Div., EPA Region VI, to James Barnett,
Executive Director, Oklahoma Water Resources Bd. (Sept. 15,
1986), R., Vol. VIII, No. EPA-6, at 3.

25 See Letter from Lawrence R. Edmison, Director of Oklahoma
Dep’t of Pollution Control, to Myron O. Knudson, Director, Waste
Management Div., EPA Region VI (May 29, 1986). R., Vol. VIII,
Dkt. No. EPA-5. Oklahoma subsequently changed its position in
light of its opposition to the Fayetteville discharge and the 1985
modifications to the OWQS.

26 A similar dichotomy exists for interstate pollution abatement
under the Clean Air Act. Courts have concluded that an upwind
state must protect against interference with the air quality stan-
dards of the downwind state that are based on federal requirements,
but is not required to comply with downwind state standards
that are more stringent than the requirements of federal law.
Connecticut v. EPA, 656 F.2d 902, 909 (2d Cir. 1981); Air Pollu-
tion Control Dist. of Jefferson County, Ky. v. EPA, 739 F.2d 1071
(6th Cir. 1984).

WINSTON BRYANT
Attorney General :
Mary B. STALLCUP
ANGELA S. JEGLEY
OFFICE OF THE
ATTORNEY GENERAL
200 Tower Building
323 Center Street
Little Rock, AR 72201

JAMES N. McCorp
CITY OF FAYETTEVILLE
207 West Center Street
Fayetteville, AR 72701

ANNE ROBERTS BoBo
A.D.P.C. & E.

P.O. Box 8913

Little Rock, AR 72219-8913

Dated: September 4, 1991

21

Respectfully submitted,

EDWARD W. WARREN, P.C.

DAvip G. NORRELL
(Counsel of Record)

GARY E. MARCHANT

DAWN P. DANZEISEN

KIRKLAND & ELLIS

Suite 1200

655 Fifteenth Street, N.W.

Washington, D.C. 20005

(202) 879-5070

WALTER R. NIBLOCK
THE NIBLOCK LAW FIRM
P.O. Drawer 818
Fayetteville, AR 72702

NaNcy L. HAMM
LAW OFFICES OF

LAURA J. MCKINNON
One East Center, Suite 211
First National Bank Building
Fayetteville, AR 72702

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0079%3A16. Public record. Not legal advice.