Amicus Curiae Brief — Arkansas v. Oklahoma

Nos. 90-1266 MAY 3] 199)

OFF

IN THE WCE OF THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1990

STATE OF ARKANSAS, et al.,

. Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents,

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Vv.

STATE OF OKLAHOMA, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE STATES OF

NEVADA, NEW HAMPSHIRE, NORTH DAKOTA

AND SOUTH DAKOTA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

FRANKIE SUE DEL PAPA NICHOLAS J. SPAETH

Attorney General Attorney General

STATE OF NEVADA (Counsel of Record)

Heroes Memorial Building STATE oF NorTH DAKOTA

Capitol Complex State Office Building

Carson City, Nevada 89710 900 East Boulevard

wh Bismarck, North Dakota 58505

Date: May 31, 1991 (701) 224-3640

(Additional Counsel Listed On Inside Front Cover)

ee

SS

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

JOHN P. ARNOLD

Attorney General

STATE OF NEw HAMPSHIRE

25 Capitol Street

Concord, New Hampshire 03301

MARK BARNETT

Attorney General

STATE OF SOUTH DAKOTA

500 East Capitol

Pierre, South Dakota

57501-5070

TABLE OF CONTENTS

Page

INTEREST OF THE AMICI CURIAE.......__. 2

SUMMARY OF THE ARGUMENT .........__ 7

EEN LIS 8

I. THE CLEAN WATER ACT DOES NOT RE-

QUIRE A SOURCE IN ONE STATE TO

COMPLY STRICTLY WITH THE STAND-

ARDS OF DOWNSTREAM STATES _. sinaden 8

A. The Clean Water Act Preserves The Right

Of States To Adopt Stricter Standards That

Apply To In-State, But Not Out-Of-State, .

RES AE SES GIO MAUL x

B. The Extra-Territorial Application Of Down-

stream State Law Is Inconsistent With Con-

gress’ Intent, Constitutional Limitations,

And Our Federal System... 12

C. The Practical Consequences Of The Tenth

Circuit’s Holding Confirm That Congress

Did Not Intend State Standards To Apply

Extra-Territorially .... 18

D. The Tenth Circuit’s Treatment Of Down-

stream State Standards Was Based On A

Flawed Construction Of The Clean Water

EEE ELE a 22

Il. THE TENTH CIRCUIT’S PERMIT BAN IS

INCONSISTENT WITH THE PLAIN LAN-

GUAGE AND EPA’S ADMINISTRATION OF

IIT ciictnepsiaeetetbecesanenntedinshcateiamespeenitendnastsiiissninenae 24

EAE 2 30

ii

TABLE OF AUTHORITIES

Page

Cases

City of Milwaukee Vv. Illinois, 451 U.S. 304 (1981). ll

EPA V. California ex rel. State Water Resources

Control Board, 426 U.S. 200 (1976) 25, 26

Homestake Mining Co. v. EPA, 477 F. Supp. 1279

ee eee 13

Illinois v. City of Milwaukee, 731 F.2d 403 (7th

Cir. 1984), cert. denied, 469 U.S. 1196 (1985)... 20

International Paper Co. v. Ouellette, 479 U.S. 481

eT RL SD passim

Kansas v. Colorado, 206 U.S. 46 (1907) .... 15

Montgomery Environmental Coalition v. Costle,

646 F.2d 568 (D.C. Cir. 1980)... 29

Pennoyer V. Neff, 95 U.S. 714 (1877) 15

Shaffer v. Heitner, 483 U.S. 186 (1977)... 15, 16,

South-Central Timber Dev., Inc. v. Wunnicke, 467

I i 16

Souti_ern Co. Vv. Arizona, 325 U.S. 761

(1945) a a ee ee 15

Sporhase v. Nebraska, 458 U.S. 941 (1982) .._. 16

State v. Champion Int'l Corp., 709 S.W.2d 569

(Tenn. 1986), cert. granted and remanded, 479

PRR Sale 20

United States Steel Corp. v. Train, 556 F.2d 822

LEAR AI yr a Cane 12,14

Statutes and Regulations

Clean Water Act, as amended, 33 U.S.C. §§ 1251-

UU I scan passim

Section 101 (b), 338 U.S.C. § 1251(b) 8

Section 301,383 U.S.C.§1311 2

Section 301(b), 33 U.S.C. § 1311(b) 11, 25, 26

Section 301(b) (1) (C), 38 U.S.C. § 1311(b)

EOS ES eae —

Section 301 (b) (2), 33 U.S.C. § 1811 (b) Se

Section 303,33 U.S.C.§1318... 2, 3, 23, 24

Section 303(c),33U.S.C.§1318(c) 9,11

Section 303 (d), 33 U.S.C. § 1313 RS 27

iii

TABLE OF AUTHORITIES—Continued

Section 304(a),33 U.S.C. § 1314(a)

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

Section 402, 33 U.S.C. § 1342.00

Section 402 (a) (3), 33 U.S.C. § 1342(a) (3) _.

Section 402(b), 33 U.S.C. § 1342(b).

Page

3,9

11,21

2,13

Section 402 (b) (5), 33 U.S.C. § 1342(b) (5) 11, 17, 21

Section 402 (d) (2), 33 U.S.C. § 1342(d) (2) _. 11,17

Section 505 (h), 33 U.S.C. § 1365(h)

Section 510, 33 U.S.C. § 1370 00

Section 510(1), 38 U.S.C. § 1870(1)

Section 518, 33 U.S.C. § 1377 sicuniabaimepeiennioes

Pub. L. No. 92-500, § 2, 86 Stat. 816 (1972)

40 C.F.R. § 181.10(g) (6) 20. ,

Legislative Materials and Miscellaneous

111 Cong. Rec. 8665 (1965) (statement of Rep.

EESTI eae neha aEne ee

111 Cong. Rec. 8671 (1965) (statement of Rep.

PESTS eS eel

111 Cong. Rec. 8678 (1965) (statement of Rep.

EE Se ee a ee so ae eee

117 Cong. Rec. 38,805 (Nov. 2, 1971) (statement

of Sen. Randolph), reprinted in 2 Senate Comm.

on Public Works, 93d Cong., Ist Sess., Legisla-

tive History of the Water Pollution Control Act

Amendments of 1972, at 1272 (1973) (Leg.

_ RE aR Ae SR SRS

118 Cong. Rec. 10,795 (Mar. 29, 1972) (statement

of Rep. Robison), reprinted in 1 Leg. Hist. of

AEA ea a

118 Cong. Rec. 33,696 (Oct. 4, 1972) (summary

prepared by Sen. Muskie of Conference Report),

reprinted in 1 Leg. Hist. of 1972, at 171 a

133 Cong. Rec. 1000 (Jan. 8, 1987) (memorandum

to Rep. Udall), reprinted in 1 Senate Comm. on

Env’t & Public Works, 100th Cong., 2d Sess.,

Legislative History of the Water Quality Act of

1987, at 551 (1988) (Leg. Hist. of 1987) _.

11

9,10

18

10

26

iv

TABLE OF AUTHORITIES—Continued

Page

133 Cong. Rec. 1282 (Jan. 14, 1987) (memoran-

dum to Rep. Udall), reprinted in 1 Leg. Hist. of

BS EE ee eee 22

EPA General Counsel, Memorandum: Revision

of Water Quality Standards and Implementation

Plans Under § 308 of the Federal Water Pollu-

tion Control Act (Feb. 3, 1975), incorporated in

In Re Bethlehem Steel Corporation, General

Counsel Op. No. 58 (Mar. 29,1977) ss 14

EPA, National Water Quality Inventory, 1988 Re-

port to Congress, (EPA 440-4-90-003, April

RE TD a NL, RE ies 28, 29

EPA, Water Quality Standards Regulation, 48

Fed. Reg. 51,400 (1988) 18

54 Fed. Reg. 39,099 (1989) ss ti‘—s—~—S 13

F. Grad, Treatise on Environmental Law (1990)... 25

W. Rodgers, Environmental Law: Air and Water

EE Re en ee 10

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. (1971),

reprinted in 1 Leg. Hist. of 1972, at 281 sss" 14

S. Rep. No. 414, 92d Cong., 1st Sess. (1971), re- -

printed in 2 Leg. Hist. of 1972, at 1415 ss .. 25, 26

Supreme Court Rule 37.5... CS 2

U.S. General Accounting Office, Water Pollution:

More EPA Action Needed to Improve the Qual-

ity of Heavily Polluted Waters (GAO/RCED-

OS er eee ee 28

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1262

STATE OF ARKANSAS, et al.,

. Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents.

No. 90-1266

ENVIRONMENTAL PROTECTION AGENCY,

: Petitioner,

STATE OF OKLAHOMA, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE STATES OF

NEVADA, NEW HAMPSHIRE, NORTH DAKOTA

AND SOUTH DAKOTA AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

The States of Nevada, New Hampshire, North Dakota

and South Dakota respectfully submit thise brief as amici

curiae in support of petitioners and urge this Court to

2

reverse the decision by the United States Court of Ap-

peals for the Tenth Cireuit in Oklahoma v. EPA, 908

F.2d 595 (10th Cir. 1990) .'

INTEREST OF THE AMICI CURIAE

The statute at issue in this case, commonly known as

the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251-1387,

establishes the framework now used for regulating water

quality on all of the nation’s waterways. The water-

ways affected by this statutory scheme include thousands

of rivers and streams that at one point or another cross

a state boundary, as well as countless other rivers and

streams that are tributaries of interstate rivers or lakes.

The vast majority of the rivers, streams and even creeks

running through the Amici States are thus subject to the

provisions of the Clean Water Act that govern discharges

into interstate waterways.

As enacted by Congress in 1972, Section 303 of the

Clean Water Act czlls upon each individual state to estab-

lish water quality standards for the waters within that

state. 33 U.S.C. § 1313. In addition, the Act created a

new permitting system, and any “point source” that in-

tends to discharge effluent into a state’s waters must

obtain a permit under this National Pollutant Discharge

Elimination System (“NPDES”). CWA § 402, 33 U.S.C.

3 1342. One condition for receiving an NPDES permit

is that the discharge from a facility must meet national

technology-based effluent limitations set by EPA. CWA

s 301, 33 U.S.C. £1311. Another condition is that the

discharge mus: comply with the water quality standards

set by the state in which the source facility is located.

CWA § 301(b)(1)(C), 33 U.S.C. § 1811(b) (1) (C).

' This brief is submitted on behalf of the Amici States by their

respective Attorneys General. Pursuant to Supreme Court Rule 37.5,

the consent of the parties to the filing of this brief is not required.

"”

vw

Pursuant to Sections 303 and 304(a), the water quality

standards set by each state must meet federal criteria

that EPA publishes and periodically updates, unless a

state demonstrates that less stringent standards are war-

ranted by other economic or environmental considerations.

33 U.S.C, §§ 1313, 1314(a). See also 40 C.F.R. § 131.10

(g) (6). Accordingly, states must submit their stand-

ards for approval by EPA, i.e., for review to assure that

they meet the federal minimum requirements, and states

must review their standards every three years for this

purpose. In recognition that some states might want to

adopt stricter standards, however, the general savings

clause enacted as Section 510 preserves the right of indi-

vidual states to establish water quality standards under

state law that are more stringent than the federal mini-

mum requirements. 33 U.S.C. § 1370.

The Amici States have a vital interest in this case be-

cause the Tenth Circuit’s decision threatens to render

this statutory scheme unworkable and to create unneces-

sary conflicts among the states. In particular, the Tenth

Cireuit held that whenever a downstream state has

adopted a more stringent or otherwise different stand-

ard for any segment of a waterway passing through

that state, the Clean Water Act requires sources in up-

stream states to comply with the downstream state stand-

ards, in addition to the standards of their own state.

Ark. Pet. App. at 43a. As a result, both public and pri-

vate facilities will become subject automatically to the

most stringent standards and to every varying standard

along an interstate waterway, regardless of conditions

in the source state. Moreover, the Tenth Circuit held

*In the agency proceeding under review, EPA had issued an

NPDES discharge permit for a new, state-of-the-art sewage treat-

ment plant built by the City of Fayetteville, Arkansas. Under the

terms of that permit, half of the facility’s effluent would flow intu

a river that crosses into the State of Oklahoma about forty miles

downstream from the point of discharge. EPA had approved the

4

that the agency considering a permit application (here

EPA) lacks any authority under the CWA to interpret,

temper, or deviate in any way from the water quality

standards of the downstream state. Jd. at 33a. Indeed,

the court held that no permit could issue in this ease even

though it did not disturb EPA’s finding that the proposed

discharge would have no detectable effect on the down-

stream state’s water quality. Jd. at 78a.

In addition to compelling a rigid application of down-

stream state standards, the Tenth Circuit held that any

pre-existing violation of a relevant water quality stand-

ard—in either the source state or a downstream state—

triggers a mandatory ban on new permits for upstream

facilities. Jd. at 44a. This permit ban would apply to any

new upstream facility that proposed to discharge effluent

of the type associated with a downstream violation, pro-

vided that some amount of the effluent, even if undetect-

able, would reach the downstream segment. /d. at 79a-

80a. Under the Tenth Circuit’s view, permitting agencies

are bound to enforce this ban immediately, regardless of

the conditions causing a violation or other alternatives

for remedying the violation.

The Amici States are all deeply committed to the goals

of improving water quality. The rigid and unprecedented

approach mandated by the Tenth Circuit, however, would

eliminate the flexibility that is essential for individual

states to achieve those improvements while also serving

the other needs of their citizens. Since the vast majority

of public and private facilities must discharge into water-

ways that eventually reach a downstream state, the Tenth

Circuit’s decision would affect the wastewater treatment

plants owned or operated by nearly every major munici-

pality in the nation, as well as the facilities owned by

permit based on a finding that this discharge would fully comply

with the water quality standards of Arkansas and would have no

adverse impact on water quality in Oklahoma. Ark. Pet. App. at

15la.

5

states themselves and other public entities. The Tenth

Circuit’s approach would also threaten the permitting for

all new industrial facilities locating in these states and

the permit renewals of existing businesses.

Under the Tenth Circuit’s approach, the permitting for

all of these facilities would become absolutely dependent

on the political choices made by downstream states, re-

gardless of the interests of the upstream state. Down-

stream states may elect in many instances to adopt

stricter standards for some segments of a waterway, per-

haps even precluding altogether any new discharges be-

cause the adjacent area is sparsely populated or the facili-

ities in that state can discharge into alternative water-

ways. The Clean Water Act, of course, allows down-

stream states to make this clwice. But segments of that

Same waterway or its tributaries in an upstream state

may pass through more densely populated areas, and the

upstream state may accommodate the needs of those areas

by setting standards that do allow controlled discharges

from appropriate sources.

The Tenth Circuit’s construction of the Clean Water

Act, however, eliminates the upstream state’s ability to

make these judgments. Instead, the citizens and facilities

of the upstream state are bound rigidly to the decisions

made by the downstream state, even though they have no

Say in making those decisions and the downstream states

have no obligation to consider the impact of their deci-

sions on upstream states. This extreme interpretation

undermines the responsibility entrusted by the Act to

upstream states, eliminates the discretion needed for mak-

ing permit decisions, and destroys accountability in the

standard-setting and permitting processes. Even worse,

the Tenth Circuit’s one-sided approach removes any in-

centive for downstream states to negotiate or compromise

with upstream states, and it creates instead a system

that will encourage economic warfare and retaliziton

among the states.

6

The Tenth Circuit’s imposition of a mandatory permit

ban for waterways with pre-existing violations similarly

interferes with the responsibility granted to the states

and permitting agencies. The Clean Water Act contem-

plates a progressive approach to the improvement of water

quality, which allows individual states to establish priori-

ties and allocate the burden of discharge reductions. The

Tenth Circuit’s absolute and immediate ban conflicts with

the fundamental basis and structure of this regulatory

scheme and calls into doubt the availability of permits

for countless new publie and private projects. Moreover,

the court’s holding will create intolerable burdens for the

states that have implemented EPA-approved programs

for issuing NPDES permits to sources within their juris-

diction. CWA § 402(b), 33 U.S.C. § 1342(b). In addi-

tion to the responsibility for evaluating compliance with

their own state standards, the permitting agencies

presumably would be obligated to obtain and consider

data regarding the existence of violations on every down-

stream segment of a waterway, even though such assess-

ments have not been completed on a majority of the na-

tion’s waterways.

For all these reasons, the Amici States have a compel-

ling interest in the issues presented by this case and

respectfully urge this Court to reverse the decision of

the Tenth Circuit.

7

SUMMARY OF THE ARGUMENT

By compelling permitting agencies to impose on all

public and private facilities the water quality standards

of each downstream state, and leaving no flexibility for

interpreting or applying those standards, the Tenth Cir-

cuit’s decision upsets the balance struck by Congress in

the Clean Water Act among the permitting agencies, the

source states, and downstream states. In effect, the deci-

sion deprives both EPA and state permitting agencies of

the discretion to balance the competing interests of the

states, by determining whether a discharge would have

an undue impact on downstream waters. It also allows

downstream states to do indirectly what they may not do

directly—force their own water quality standards on a

point source in an upstream state. See infra Section I.

As shown below, the statutory structure created by

Congress makes each individual state responsible for set-

ting the water quality standards on its own waterways.

For subsequent permitting decisions, the statute then re-

quires EPA and state permitting agencies to consider the

interests of all states affected by a new source and its

discharge. See infra Section I.A. But the statute does

not make downstream state standards absolutely control-

ling, because that would eliminate the responsibility of

other states and undermine the ability to consider all

relevant factors in the permitting process. See infra

Sections I.B., I.C.

The Tenth Circuit’s admittedly novel conclusion that

pre-existing water quality violations mandate imposinz

an immediate ban on new discharges is similarly un-

supported by the language of the Clean Water Act and its

legislative history. See infra Section II. No other court

has construed the Act in this manner in the almost

twenty years since its enactment, and the Tenth Circuit’s

interpretation would conflict with the procedures Con-

gress specifically created for bringing all waterways into

compliance with applicable water quality standards.

8

ARGUMENT

I. THE CLEAN WATER ACT DOES NOT REQUIRE

A SOURCE IN ONE STATE TO COMPLY STRICTLY

WITH THE STANDARDS OF DOWNSTREAM

STATES.

Congress intended when it enacted the Clean Water

Act to maintain the sovereignty of each state over its own

waters, subject to federal review and coordination. Thus,

while the CWA does impose certain minimum federal

requirements on states, Section 101(b) of the Act specifi-

cally declares that “[i]t is the policy of the Congress to

recognize, preserve, and protect the primary responsi-

bilities and rights of States to prevent, reduce, and elim-

inate pollution, [and] to plan the development and use

. . . of land and water resources.” 33 U.S.C. § 1251(b).

By construing the Act in a manner that allows one state

to impose its standards on another, the Tenth Circuit’s

decision undermines this fundamental principle of state

sovereignty.

A. The Clean Water Act Preserves The Right Of States

To Adopt Stricter Standards That Apply To In-

State, But Not Out-Of-State, Sources.

The statutory language, the overall structure of the

Clean Water Act, and generally recognized principles of

State sovereignty all demonstrate that Congress did not

authorize downstream states to impose the water quality

standards adopted for their own waters on sources in

upstream states. Each state’s water quality standards are

intimately connected to the local economic, industrial,

municipal, agricultural and recreational activities of that

state. Recognizing the essentially local character of water

quality policies, Congress preserved each state’s pre-

rogative to establish the standards that would apply to

waterways within the state. This preservation of stand-

--ards adopted pursuant to state law allows the individual

states, most familiar with local conditions and problems,

nian

9

to balance competing uses and determine priorities for

their waters.*

Congress was concerned, however, that if states had

absolute authority to regulate their own waters, some

states might enact insufficiently stringent water quality

standards in order to attract industry and encourage eco-

nomic growth. Such “pollution havens” would be espe-

cially troublesome if they were located in upstream states,

leaving little incentive or opportunity for downstream

states to clean up their own waters.‘

To minimize the problems that might be created by the

adoption of inconsistent standards in neighboring states,

Congress required the states to obtain federal approval

of ambient water quality standards. CWA § 303(c), 33

U.S.C. § 1313(¢e). In reviewing each new or revised state

standard, EPA was directed to ensure that such stand-

ards meet the minimum federal requirements of the CWA.

Id.° If EPA disapproves a state standard because it

does not meet the federal requirements, and the state

subsequently fails to promulgate a revised standard

within the prescribed time limits, EPA is required to

issue a federal standard. Jd. This requirement that every

state adopt and enforce federally-approved standards was

*In amending an earlier version of the Clean Water Act in 1965

to require states to adopt water quality standards, Congress recog-

nized that states should have primary responsibility for setting

water quality standards because of their familiarity with local con-

ditions. See, e.g., 111 Cong. Rec. 8665 (1965) (statement of Rep.

Harsha) (“Standards of water quality ... should be established by

the State and local agencies which are most familiar with the matter

in a given locality, such as the economic impact of establishing and

enforcing stringent standards of water quality.”).

* See, e.g. 111 Cong. Rec. 8671 (1965) (statement of Rep.

Ottinger) ; 111 Cong. Rec. 8678 (1965) (statement of Rep. Dwyer).

* The statute requires EPA to develop and publish water quality

criteria to provide guidance to states in promulgating their stand-

ards. CWA 304(a), 33 U.S.C. § 1314(a).

10

intended “to insure uniform water quality standards

across the Nation.” ®

Also in deference to the principles of state responsibility

and sovereignty, a “savings clause” in the Clean Water

Act preserves the right of states to promulgate stricter

standards than those necessary to meet federal require-

ments. CWA § 510(1), 33 U.S.C. § 1870(1). Most inter-

state disputes over water quality arise when a down-

stream state exercises this right and chooses to adopt

a stricter standard under Section 510.7. Once the down-

stream state promulgates a more stringent standard than

the states upstream, an inherent tension develops between

the water quality policies of the adjoining states. This

conflict becomes manifest if the upstream state plans to

approve an NPDES permit that complies with its own

federally-approved water quality standards, but may not

meet the stricter standards of a downstream state.

Because of prior interstate controversies, Congress was

aware of the potential for such conflicts between states

when it enacted the CWA. Accordingly, in seeking to

balance the interests of upstream and downstream states,

Congress provided several mechanisms to protect down-

stream states from unreasonable degradation of their

water quality by sources in upstream states. Among

these mechanisms, Congress required permitting agencies

to consider the views of downstream states regarding

® See 118 Cong. Rec. 10,795 (Mar. 29, 1972) (statement of Rep.

Robison), reprinted in 1 Senate Comm. on Public Works, 93d Cong.,

Ist Sess., Legislative History of the Water Pollution Control Act

Amendmtnts of 1972, at 727 (1973) [hereinafter Leg. Hist. of 1972 |.

See also 111 Cong. Rec. 8678 (1965) (statement of Rep. Dwyer).

7 Although most waterways flow through more than one state,

few water quality disputes would be expected if adjacent states

adopt identical standards based on the federal criteria. In fact,

many states do base at least some of their water qualiiy standards

on the federal criteria, frequently resulting in uniform state stand-

ards. See 2 W. Rodgers, Environmental Law: Air and Water 247

(1986).

———————

11

the impact of a new source on their water quality, and

Congress anticipated that permitting agencies would place

additional restrictions on those sources as warranted in

specific cases,”

In conjunction with these provisions requiring case-by-

case determinations, Congress also gave EPA the power

to veto state-issued permits that do not adequately pro-

tect the water of downstream states, thereby establishing

EPA as the federal mediator of interstate water quality

disputes. CWA § 402(d)(2), 33 U.S.C. § 1342(d) (2).

Consistent with the statutory goal of preserving state

sovereignty, however, the statutory provisions creating

these mechanisms did not make the downstream stand-

ards automatically applicable to the upstream sources,

and Congress provided no other authority for one state to

impose its water quality standards on sources in another

state.

Both this Court and lower federal courts have recog-

nized this Congressional balance and limitation on the

applicability of state water quality standards. Specifi-

cally, Section 510 has been interpreted as limiting the

applicability of the stricter standards one state may adopt

to sources within that state’s own borders.’ Accordingly,

* CWA § 402(b) (5), 33 U.S.C. § 1342(b) (5); CWA § 402(a) (3);

33 U.S.C. § 1342(a) (3); CWA § 401(a) (2), 33 U.S.C. § 1341 (a) (2).

Congress also required all dischargers to meet uniform national

technology-based effluent limitations, which in most cases will ade-

quately protect downstream water quality. CWA § 301(b), 33

U.S.C. §1311(b). In addition, federal approval of state water

quality standards will ensure that acceptable water quality is

achieved in all states. CWA § 303(c), 33 U.S.C. § 1313(c). Finally,

Congress authorized the Governor of a downstream state that is

adversely affected by a discharge in an upstream state to bring a

civil action against the Administrator when the source causing the

problem is operating in violation of its permit conditions. CWA

§ 505(h), 33 U.S.C. § 1365(h).

* See, e.g., City of Milwaukee v. Illinois, 451 U.S. 304, 328 (1981)

(under Section 510, “[s)tates may adopt more stringent limitations

12

Section 510 simply preserves the historic right of a state

to adopt and apply stricter standards under its own state

law. ‘Congress thus has chosen not to preempt state regu-

lation when the state has decided to force its industry to

create new and more effective pollution-control technol-

ogy.” United States Steel Corp. v. Train, 556 F.2d 822,

830 (7th Cir. 1977) (emphasis added).

The preservation of sovereign state rights in Section

510, therefore, certainly evinces no Congressional intent

to give more stringent standards adopted under state law

a federal imprimatur that would allow them to be applied

extra-territorially against sources in other states. Indeed,

such an application of one state’s law to override the law

in another state would contradict the very purpose of Sec-

tion 510 to preserve the jurisdiction of each state over its

own waters and dischargers.” Thus, the section of the

Act that specifically allows states to adopt more stringent

standards also limits the application of such standards to

sources within a state’s own borders.

B. The Extra-Territorial Application Of Downstream

State Law Is Inconsistent With Congress’ Intent,

Constitutional Limitations, And Our Federal Sys-

tem.

The Tenth Circuit’s holding that a downstream state’s

stricter standards apply automatically to sources in up-

stream states would subvert the statutory scheme that

Congress enacted. As shown above, Congress intended in

through state administrative processes . . . and apply them to in-

state dischargers”) (emphasis added); International Paper Co. v.

Ouellette, 479 U.S. 481, 493 (1987) (more stringent state standards

adopted under Section 510 can only be applied “to discharges flow-

ing directly into a State’s own waters, i.e., discharges from within

the State”) (emphasis in original).

10“ N Jothing in this chapter shall . . . be construed as impairing

or in any manner affecting any right or jurisdiction of the States

with respect to the waters (including boundary waters) of such

States.” CWA § 510, 33 U.S.C. § 1370.

13

Section 402 of the Act that the permitting agency, whether

EPA or the source state, would consider and, if appropri-

ate, impose more stringent standards to protect down-

stream water quality. But as this Court has stated:

[A]n affected State does not have the authority to

block the issuance of the permit ff it is dissatisfied

with the proposed standards. An affected State’s

only recourse is to apply to the EPA Administrator,

who then has the discretion to disapprove the permit

if he concludes that the discharges will have an un-

due impact on interstate waters.

International Paper Co. v. Ouellette, 479 U.S..481, 490-

91 (1987) (emphasis added).

This Court’s construction in Ouellette of the CWA’s in-

terstate provisions is further supported by two addi-

tional considerations. First, state water quality stand-

ards remain state law, even after federal approval. The

court of appeals apparently overlooked this fact and based

its holding, requiring out-of-state sources to strictly com-

ply with the water quality standards of downstream

states, on the assumption that EPA approval automati-

cally transformed the state standards into federal law.

Ark Pet. App. at 13a-14a. However, EPA review merely

ensures that state standards meet the federal criteria; the

agency has no power to disapprove the more stringent

standards allowed by Section 510 for intrastate purposes.

Homestake Mining Co. v. EPA, 477 F. Supp. 1279, 1284

(D.S.D. 1979)."" Since EPA approval of a more stringent

1 In a recent rulemaking, EPA described its policy as follows:

“Pursuant to section 510, States have adopted water quality stand-

ards more stringent than EPA may consider necessary or appro-

priate. EPA has taken the position that the Agency is not author-

ized to disapprove a State water quality standard on the basis

that EPA considers the standard to be too stringent.” 54 Fed. Reg.

39,099 (1989).

14

state standard is perfunctory, such approval does not

“federalize” the standard.”

EPA’s General Counsel confirmed this conclusion re-

garding the actual status of state standards in a 1977

Opinion issued specifically to address the consequences of

revisions to those standards. Based upon the structure of

the Act, the General Counsel concluded that such stand-

ards “remain exclusively State standards” even after

federal approval.’* The General Counsel further ex-

plained that:

EPA’s approval only acknowledges the adequacy of

the State standards and indicates that promulgation

of Federal standards is not required. It does not

create a Federal standard which has an existence

independent of the State standard."

As part of EPA’s reasoning, the Opinion emphasized that

unlike a state implementation plan adopted under the

Clean Air Act, which does become a federal standard

when approved by EPA, a state water quality standard is

not approved by notice and comment rulemaking and is

not directly enforceable.”

12 United States Steel Corp. v. Train, 556 F.2d 822, 887 (7th Cir.

1977) (“the standards are state, not federal regulations”).

‘8 EPA General Counsel, Memorandum: Revision of Water Qual-

ity Standards and Implementation Plans Under § 303 of the Federal

Water Pollution Control Act (Feb. 3, 1975), incorporated in In Re

Bethlehem Steel Corporation, General Counsel Op. No. 58 (Mar. 29,

1977).

14 Id. Similarly, the Conference Report for the 1972 CWA Amend-

ments clearly reflects Congress’ understanding that more stringent

state standards adopted under Section 510 would constitute state law

and not be part of the federal CWA program. S. Conf. Rep. No.

1236, 92d Cong., 2d Sess. 331 (1971), reprinted in 1 Leg. Hist. of

1972, at 281, 331 (“Section 510 provides that States .. . retain the

right to set more restrictive standards and limitations than those

imposed under this Act.”) (emphasis added).

15 EPA General Counsel, supra note 13.

15

A second consideration reinforcing this Court’s interpre-

tation of the CWA in Ouellette is the principle that a

federal statute should not lightly be construed as giving

one state the extraordinary power to control conduct in

an adjoining state. The use of state law by one state to

regulate industry and municipalities in another state is

inimical to our federal system.’* This Court has therefore

long recognized the “cardinal rule” that one state cannot

regulate another:

[No] state can legislate for, or impose its own policy

upon the other... . One cardinal rule, underlying

all the relations of the states to each other, is that

of equality of right. Each State stands on the same

level with all the rest. It can impose its own legisla-

tion on no one of the others, and is bound to yield

its own views to none."”

Following this principle, the Supreme Court has con-

sistently invalidated under the Commerce Clause state

laws that have the “practical effect” of regulating con-

duct beyond the boundaries of the state, regardless of the

intent of the regulation. See, e.g., Southern Pacific Co. v.

Arizona, 325 U.S. 761, 775 (1945). The extension of one

state’s law to regulate entities in another state would

“offend sister States and exceed the inherent limits of the

‘® Even the Tenth Circuit recognized this well-established prin-

ciple: “We do not suggest one state may directly regulate the con-

duct of a discharger in another state. Such exercise of jurisdiction

would exceed traditional bounds of sovereignty.” Ark. Pet. App.

at 22a n.9. The court nevertheless believed that this principle was

not violated in the instant case, based on its mistaken assumption

that EPA’s rubber-stamp approval of a state water quality standard

transformed that standard into federal law. Id.

7 Kansas V. Colorado, 206 U.S. 46, 95-98 (1907). See also Shaffer

V. Heitner, 433 U.S. 186, 197 (1977), quoting Pennoyer v. Neff,

95 U.S. 714, 722 (1877) (two important principles of interstate

relations are “that every state possesses exclusive jurisdiction and

sovereignty over persons and property within its territory .

[and] that no state can exercise direct jurisdiction and authority

over persons and property without its territory”).

16

State’s power.” Shaffer v. Heitner, 433 U.S. at 197.

Moreover, the extra-territoriai application of state law

is objectionable because “[u]nrepresented interests will

often bear the brunt of regulations imposed by one State

having a significant effect on persons or operations in

other States.” South-Central Timber Development, Inc. v.

Wunnicke, 467 U.S. 82, 92 (1984).

Congress, of course, may exercise its own power under

the Commerce Clause and allow states to adopt regula-

tions that would otherwise exceed the limitations imposed

by that Clause. But to do so, and thereby sanction state

regulations that would have extra-territorial effect, this

Court has held that Congress must express its intent with

unmistakable? clarity:

{[FJor a state regulation to be removed from the

reach of the dormant Commerce Clause, congres-

sienal intent must be unmistakably clear. The re-

quirement that Congress affirmatively contemplate

otherwise invalid state legislation is mandated by

the policies underlying dormant Commerce Clause

doctrine. It is not ... merely a wooden formalism.

Wunnicke, 467 U.S. at 91-92 (emphasis added). See also

Sporhase v. Nebraska, 458 U.S. 941, 960 (1982).

Congress certainly did not express such a clear intent

in the CWA. No provision in the Act expressly authorizes

one state to impose its water quality standards on out-of-

state sources. Nor is there any evidence that Congress

intended to cause the same result—without expressly say-

ing so—either by allowing one state to set the applicable

standards for another’s facilities or by requiring per-

mitting agencies to blindly follow a downstream state’s

standards when approving a permit for an upstream

source. To the contrary, the language and structure of

the CWA demonstrate that Congress intended to main-

tain the traditional sovereign roles of each state over its

own waters and sources."*

18 See Ouellette, 479 U.S. at 487 (“We hold that when a court

considers a state-law claim concerning interstate water pollution

17

The legisiative history is thus devoid of any evidence,

much less “unmistakably clear” evidence, that Congress

affirmatively intended for state standards to apply extra-

territorially. In fact, in the statutory provisions where

Congress specifically addressed the issue of interstate

water quality disputes and the potential for inconsistent

state standards, Congress established the notice and hear-

ing procedure of Section 402(b)(5). This provision

plainly gives permitting agencies the discretion to con-

sider downstream standards and impose more stringent

limitations on a case-by-case basis, See Ouellette, 479

U.S, at 490-91; Ark. Pet, at 14-16. Similarly, Congress

gave EPA the discretion to veto state-issued permits that

did not adequately protect downstream water quality,

and unambiguously decided against requiring EPA to veto

every permit that failed to comply with the water quality

standards of downstream states. CWA § 402(d) (2), 33

U.S.C. § 1842 (d) (2).

Given the statutory and constitutional restrictions on

the power of states to regulate beyond their own borders,

the CWA cannot be interpreted as requiring sources in

upstream states to comply automatically with a down-

that is subject to the CWA, the court must apply the law of the

State in which the point source is located.”) ; id. at 494 (“we con-

clude that the CWA precludes a court from applying the law of

an affected State against an out-of-state source”).

" The decision by a source state permitting agency to require

facilities within its jurisdiction to satisfy a downstream state’s

standards obviously does not present the same concerns under the

Commerce Clause. Nor would a case-by-case determination by

EPA, as the permitting or reviewing agency, to impose additional

permit conditions in light of a downstream state’s standards or con-

cerns. If EPA decided instead, however, to adopt a blanket rule that

automatically required sources in upstream states to comply rigidly

with the standards of downstream states, EPA’s rule would be con-

stitutionally suspect. Only Congress has the power to “sanction”

state regulation that would otherwise violate the Commerce Clause.

Moreover, such a rule would constitute an abdication of the respun-

sibility Congress assigned EPA to consider downstream state stand-

ards on a case-by-case basis.

18

stream state’s standards, The court of appeals’ decision

is thus fundamentally inconsistent with the structure of

our federal system and the regulatory scheme established

by Congress in the CWA. A very clear expression of Con-

gressional intent should be required before authorizing

one state to impose its state law standards on another

sovereign state. Absent such a clear expression, the Act

cannot be given the construction adopted by the Tenth

Circuit.

C. The Practical Consequences Of The Tenth Circuit’s

Holding Confirm That Congress Did Not Intend

State Standards To Apply Extra-Territorially.

The Tenth Circuit’s construction of the CWA, unless

overturned, will severely interfere with the NPDES per-

mitting process and will impose extraordinary burdens on

states. These consequences further confirm that Congress

could not have intended the rule adopted by the court of

appeals. Most fundamentally, the decision will disrupt

the careful weighing and integration of socio-economic and

environmental considerations that Congress intended to

underlie th. lishment of water quality standards.”

A downstre: ate that could impose its standards on

an out-of-sta:. ‘ree would have no incentive, or indeed

even the capabiuty, to consider the legitimate socio-

economic interests and needs of upstream communities

and industries.

While the Amici States in no way mean to sugvest that

pollution should be tolerated just because it is expensive

to eliminate, Cong: ess did clearly intend for states to con-

sider the burdens imposed on municipalities and_busi-

nesses as relevant factors in the standard-setting proc-

ess.2’ A state will normally have the appropriate incen-

20 See, e.g., 117 Cong. Rec. 38,805 (Nov. 2, 1971) (statement of

Sen. Randolph), reprinted in 2 Leg. Hist. of 1972, at 1272. See also

EPA, Water Quality Standards Regulation, 48 Fed. Reg. 51,400

(1983).

21 See Ouellette, 479 U.S. at 494.

19

tives to accommodate the interests of sources within its

own borders, but has no similar incentive to consider,

and hence is likely to disregard, the economic impact of

its standards on out-of-state municipalities and indus-

tries.” Thus, the Tenth Circuit’s decision, besides being

contrary to the CWA, would frequently result in the

unfair and unreasonable application of downstream

standards to out-of-state sources.** The nationwide appli-

cation of the decision below would therefore dramatically

increase water quality conflicts and “economic warfare”

between the states.**

By allowing two or more states to impose separate

discharge standards on a single point source, the Tenth

Circuit’s construction of the Act will also create immense

practical problems. Prior to the decision below, state

agencies normally based permit approvals on a facility’s

compliance with the water quality standards of the source

22 Furthermore, out-of-state sources required to comply with a

downstream state’s standards will be deprived of the other safe-

guards provided by the CWA to ensure that water quality standards

do not impose unreasonable burdens. For example, states are au-

thorized to relax water quality standards that “would result in

substantial and widespread economic and social impact.” 40 C.F.R.

§ 131.10(g) (6). A downstream state is unlikely to implement such

a safeguard to protect the economic viability of out-of-state com-

munities.

23 EPA will have no authority to prevent such unfair and unrea-

sonable consequences. The agency has no power to disapprove the

adoption of a state standard on the grounds that it is unreasonably

stringent or will unjustly impact sources in other states. See supra

p. 13. Under the Tenth Circuit’s holding, EPA also lacks the dis-

cretion to consider the fairness and reasonableness of applying a

downstream standard in each particular circumstance.

*4The Tenth Circuit’s holding also creates the opportunity for

some states to intentionally discriminate against sources in ad-

jacent states by adopting stringent water quality standards at their

upstream borders, while establishing lower standards on the same

waterways through the remainder of the state.

20

state only, in accordance with the existing case law.”

The Tenth Circuit’s interpretation, however, would re-

quire permitting agencies in source states to identify,

interpret and apply the relevant standards of all down-

stream states potentially affected by a proposed discharge.

This requirement would overwhelm the state agencies in

upstream states, whose staff would now be obliged con-

stantly to monitor and review the standards of down-

stream states,” and could not possibly have been intended

by Congress. Moreover, because the imposition of a down-

stream state’s standards could have such severe conse-

quences for a state’s economic growth and prosperity, up-

stream states would often be compelled to participate

every time each downstream state revises or sets new

water quality standards, assuming the upstream states

would be able to receive timely notice of such standard-

setting proceedings.*"

25 See, e.g., Ouellette, 479 U.S. at 481 (1987); Illinois v. City of

Milwaukee, 731 F.2d 403 (7th Cir. 1984), cert. denied, 469 U.S.

1196 (1985) ; State v. Champion Int’l Corp., 709 S.W.2d 569 (Tenn.

1986), cert. granted and remanded, 479 U.S. 1061 (1987).

26 Public and private point source dischargers within the Amici

States will also be adversely affected by the decision of the court of

appeals. Existing facilities have been constructed, and new facilities

have been planned, based on compliance with the water quality

standards of the source state. Many facilities may now be required

to achieve stricter effluent limitations to meet the standards of

downstream states. Such changes may involve expensive retrofitting

or remodeling of facilities and the disruption of business operations

and municipal sewer service.

27 As this Court previously recognized in Owellette, the CWA’s

notice provisions regarding interstate waterways further demon-

strate that Congress could not have intended a downstream state’s

standards to apply automatically to sources in an upstream state.

479 U.S. at 495 n.15. The Act generally requires notice and an

opportunity to participate for any entity that would potentially be

affected by a proposed regulation. Significantly, the Act does not

require downstream states to notify upstream states of their new or

revised water quality standards, suggesting that Congress did not

expect such standards would automatically apply to sources in up-

21

The potential for confusion and resulting interstate

disputes would grow exponentially as each state is re-

quired to interpret and apply the standards of other

states.** The disruptive consequences of the Tenth Cir-

cuit’s rule would be further compounded by the 1987

CWA amendment that authorizes EPA to treat Indian

tribes as states under the Act. CWA § 518, 33 U.S.C.

§ 1377. This new provision would vastly increase the

number of different standards that may apply to a single

discharge under the Tenth Circuit’s interpretation of the

statute. The inevitable consequence would be even more

conflicts, and more unreasonable and unfair extra-

territorial applications of standards to sources in other

jurisdictions.”

stream states. In contrast, an upstream state is required to notify

and consider recommendations from downstream states whose water

quality may be affected by a proposed permit in the upstream state.

CWA § 402(b) (5), 33 U.S.C. § 1342(b) (5); CWA § 401(a) (2), 33

U.S.C. § 1341(a) (2). These notice provisions confirm that Congress

intended the permitting agency in the source state, and not a down-

stream state, to determine the applicable standards for discharges

into an interstate waterway.

28 For example, each of the numerous states on the Mississippi

River could adopt its own standard for a particular persistent

pollutant. A permitting agency in a state near the river’s origin

would thus be required to interpret and apply the standards of as

many as eight or nine downstream states. Alternatively, a state

near the mouth of the river may have its standards interpreted and

applied by as many as eight or nine upstream states. In fact, the

situation could be even more complicated, because each state could

adopt more than one standard for the different segments of a par-

ticular waterway within its borders. On almost any major inter-

state waterway in the United States, the Tenth Circuit’s decision

will create a confusing tangle of inconsistent and overlapping stand-

ards, each of which may be subject to several conflicting interpre-

tations.

29 In fact, the legislative history of the 1987 amendments shows

that Congress did not intend to authorize either a state or an Indian

tribe to apply its standards extra-territorially. The understanding

of Congress was that “there is nothing in the existing Act or in

the proposed amendments which gives EPA the power to force one

22

The Tenth Circuit’s interpretation of the Act as re-

quiring out-of-state sources to comply with the water

quality standards of each and every downstream state

will create massive confusion and economic disruption

across the country. It is inconceivable that Congress

would have intended to enact a statutory scheme having

such sweeping repercussions, especially without clearly

articulating its intent and making those requirements

explicit in the statutory provisions. Rather, Congress

sought to maximize the efficiency and predictability of the

permit system it enacted, by establishing “clear and iden-

tifiable” discharge standards.”

D. The Tenth Circuit’s Treatment of Downstream State

Standards Was Based On A Flawed Construction

Of The Clean Water Act.

From the analysis presented above, it is clear that the

court of appeals’ treatment of downstream state water

quality standards in this case was based on a flawed con-

struction of the CWA. Downstream state standards do

not apply of their own force in the permit decisions for

upstream facilities. Instead, permit agencies must decide

as a matter of discretion whether to impose conditions

that will satisfy all or part of the concerns raised by the

downstream state and reflected in its standards.

In cases where the downstream state standards are

stricter than the federal minimum requirements, pur-

state to changes [sic] its approved water quality standards or

those valid activities done in accordance with its plan in order to

accommodate the water quality needs of another state or states.”

133 Cong. Rec. 1000 (Jan. 8, 1987) (memorandum to Rep. Udall),

reprinted in 1 Senate Comm. on Env’t & Public Works, 100th Cong.,

2d Sess., Legislative History of the Water Quality Act of 1987, at

551 (1988) [hereinafter Leg. Hist. of 1987]; 133 Cong. Rec. 1282

(Jan. 14, 1987) (memorandum to Rep. Udall), reprinted in 1 Leg.

Hist. of 1987, at 395.

39 Ouellette, 479 U.S. at 496 n.16 (quoting S. Rep. No. 414, 92d

Cong., 1st Sess. 81 (1971), reprinted in 2 Leg. Hist. of 1972,

at 1499).

23

suant to Section 510 of the Act, the preceding discussion

demonstrates that Congress generally expected these

standards would be controlling only for in-state sources.

To be sure, Congress still directed EPA (and state per-

mitting agencies) to consider these standards in granting

permits for upstream sources and to determine whether

they warranted imposing additional effluent limitations.

EPA did that here, and the agency concluded that no ad-

ditional permit limitations were needed, in light of the

downstream standards, to protect Oklahoma’s water qual-

ity. Absent a clear abuse of the agency’s discretion in

making this determination, a reviewing court should not

upset the agency’s permit decision, and the Tenth Circuit

gave no basis for finding an abuse of discretion, apart

from the court’s mistaken conclusion that the downstream

standards were directly applicable.

On the other hand, in reviewing an agency’s permit

decision concerning downstream standards intended to

' meet federal minimum requirements, courts must recog-

nize that EPA was responsible for establishing the fed-

eral requirements. EPA therefore has special expertise

for interpreting those standards, on a nationwide basis,

and is most familiar with the scope and content of those

requirements. Consequently, EPA’s interpretation of

those standards in the context of a permit decision, and

the agency’s determination that a particular discharge

will not violate these requirements, must be afforded sub-

stantial weight by a reviewing court. The Tenth Circuit

erred here by expressly declining to afford EPA any

deference on these matters, in addition to the errors in

statutory construction addressed above."

5! The Court need not decide whether the downstream standard

at issue in the present case constitutes a Section 303 standard based

on the federal requirements or is instead a Section 510 standard

that exceeds the federal requirements, because the court of appeals

did not identify any basis for concluding that EPA abused its discre-

tion in either event. Moreover, since EPA found that the proposed

24

II. THE TENTH CIRCUIT’S PERMIT BAN IS INCON-

SISTENT WITH THE PLAIN LANGUAGE AND

EPA’S ADMINISTRATION OF THE CWA.

The Tenth Circuit’s second holding, imposing a ban on

all new discharges upstream from a pre-existing violation

of a relevant water quality standard, is also a radical

departure from the statutory objectives and the current

implementation of the CWA. Moreover, this newly dis-

covered ban will deprive states of the flexibility they need

to bring degraded waterways into compliance with ap-

plicable water quality standards, while at the same time

minimizing economic disruption and dislocation.

According to the court of appeals, the “principal flaw”

in EPA’s decision to issue a permit in this case was the

agency’s failure to recognize that the purposes embodied

in the CWA required imposition of a ban on new dis-

charges upstream from an existing violation of a relevant

water quality standard. Ark. Pet. App. at 75a. This ban

on new permits even applies to new discharges that will

have no detectable effect on downstream water quality.

Id. at 79a-80a. A new discharge would be prohibited

where any amount of effluent, even though undetectable,

might reach the downstream segment that is experienc-

ing a water quality violation. Jd. at 82a n.58.

Not only is the imposition of this “implied” ban wholly

inappropriate for a reviewing court, but the “remedy”

for nonattainment situations chosen by the Tenth Circuit

fundamentally conflicts with the plain language of the

CWA, as well as Congress’ intent and EPA’s administra-

discharge in the present case would comply with the federal mini-

mum requirements in the downstream state, this Court also need not

reach the issue of whether permit agencies have less discretion in

cases involving downstream Section 303 standards (based on the

federal minimum requirements) or should otherwise be under

greater constraints in exercising their discretion to impose limita-

tions on out-of-state sources that would satisfy the Section 303

standards adopted by downstream states.

25

tion of the Act. A brief consideration of the regulatory

scheme that preceded the 1972 CWA Amendments demon-

strates the radical departure caused by the court’s holding.

Prior to 1972, ambient water quality standards were the

primary means for regulating water pollution. See EPA

v. California ex rel, State Water Resources Control Board,

426 U.S. 200, 202-03 (1976). State standards designated

acceptable ambient levels of pollution allowed in receiv-

ing waters. If standards were exceeded, attempts were

made to trace pollution violations to individual dischargers.

Because of the complex relationship between effluent

discharges and water quality, and the resultant difficulty

in linking individual dischargers to particular violations

of water quality,”* the Senate Committee on Public Works

concluded in 1972 that this approach had been “inade-

quate in every vital respect.” ** Thus, the 1972 Amend-

ments shifted the primary focus for controlling water

pollution from the quality of the receiving waters to

technology-based effluent limitations that apply directly to

individual dischargers. CWA § 301(b), 33 U.S.C. § 1311

(b). Each source is now required to comply with the

appropriate limitations, irrespective of the quality of the

receiving water.

Water quality standards were retained as a supple-

mental measure, however in the 1972 Amendments, and

additional, more stringent limitations could be imposed on

dischargers if the technology-based limitations were in-

sufficient to achieve compliance with applicable water

quality standards. CWA § 301(b)(1)(C), 33 U.S.C.

52 “In water pollution, the precise amount of effluent a given river

can handle without deterioration of water quality depends not only

on the amount of effluent emitted, but also on the temperature of

the water, the speed at which the water is traveling, the general

characteristics of the waterway, the time of the year, and the like.”

1 F. Grad. Treatise on Environmental Law § 3.03, at 3-101 (1990).

33S. Rep. No. 414, 92d Cong., Ist Sess. 7 (1971), reprinted in

2 Leg. Hist. of 1972, at 1415, 1425.

26

§$ 1311(b)(1)(C). Nevertheless, Congress unmistakably

signalled its intent that water quality standards were to

be a secondary mechanism for controlling water pollution

when it specifically directed EPA to “assign secondary

priority” to enforcing water quality standards.“ But by

fashioning a ban based on pre-existing water quality vio-

lations, the Tenth Circuit has effectively supplanted

technology-based effluent limitations and reverted to water

quality standards as the primary regulatory mechanism

for control of pollution. This was the very approach that

Congress rejected as unworkable in 1972, and the court’s

decision is therefore clearly inconsistent with the statu-

tory framework.

Congress was well aware that many of the nation’s

waterways were severely polluted when it enacted the

1972 Amendments,” and the absence of any reference in

the statute to imposing a rigid permit ban indicates that

Congress deliberately chose not to adopt that approach.

Rather, in light of those conditions, Congress chose an

incremental approach for achieving acceptable water

quality by reducing pollution through the imposition

over time of progressively more stringent effluent limita-

tions on new and existing point discharges.** Nowhere

34 118 Cong. Rec. 33,696 (Oct. 4, 1972) (summary prepared by

Sen. Muskie of Conference Report), reprinted in 1 Leg. Hist. of

1972, at 171. See EPA V. California ex rel. State Water Resources

Control Board, 426 U.S. 200, 205 n.12 (1976) (“[wlater quality

standards are retained as a supplementary basis for effluent limita-

tions’”’).

35S. Rep. No. 414, 92d Cong., 1st Sess. 7 (1971), reprinted in

2 Leg. Hist. of 1972, at 1415, 1425.

%6 As originally enacted, the 1972 Amendments required point

sources other than publicly owned treatment works to achieve the

“best practicable control technology currently available” by July 1,

1977, and the “best available technology economically achievable”

by July 1, 1983. Pub. L. No. 92-500, § 2, 86 Stat. 816, 845 (1972).

The timetable for achieving the latter standard was subsequently

relaxed to March 31, 1989. See CWA §301(b)(2), 33 U.S.C.

§ 1311(b) (2).

27

in either the Act or its legislative history is there any

suggestion that Congress ever intended to ban new dis-

charges based solely on evidence of pre-existing water

quality violations. Thus, not only is there no “explicit

imprimatur” for the Tenth Circuit’s holding in the CWA,

as even the court conceded, Ark. Pet. App. at 81a, but

the holding runs counter to the plain language of the

statute.

The specific approach Congress enacted in 1972 deals

with existing water quality violations pursuant to an en-

tirely different approach than that created by the Tenth

Circuit. In particular, states with existing water quality

violations are required by Section 303(d) to set maximum

daily loads of discharged effluent which will result in

the attainment of relevant water quality standards. 33

U.S.C. § 1313(d).** Moreover, the Act does not impose

on states any fixed timetable for establishing maximum

daily loads for all waterways with existing water quality

violations. Instead, states may establish maximum daily

loads according to the priority they themselves assign

their various waterways. In contrast to the Tenth Cir-

cuit’s approach, new discharges and increased discharges

from existing sources would still be allowed, provided they

are included in the maximum daily load allocation. 33

U.S.C. § 13813(d). Under this scheme, no one point source

is solely penalized for the water quality violations caused

by other dischargers.

Furthermore, the Tenth Circuit’s ruling would preclude

the issuance of permits even where the proposed dis-

charge would have no detectable effect on the downstream

water quality of interstate and intrastate waterways.

Under the ruling, the mere existence of a water quality

violation in and of itself is sufficient to foreclose a new

permit, notwithstanding the absence of a measurable ef-

fect of the proposed new discharge on the receiving

37 A maximum daily load is the total quantity of effluent that

can be discharged into a waterway per day without exceeding the

relevant water quality standards.

28

waters. Besides having no basis whatsoever in the Act,

and being inconsistent with the specific mechanism Con-

gress created for this situation, the novel approach fash-

ioned by the Tenth Circuit would seriously disrupt the

administration of the Clean Water Act.

Until now, permitting decisions have generally been

based on whether the release of effluent by an individual

point source would itself cause violations of water quality

standards. * Under the Tenth Circuit’s new approach,

however, permitting agencies will be required to look be-

yond the impact of the individual source and assess

whether every downstream segment of the waterway is in

attainment with all applicable water quality standards.

This task will be extremely difficult, if not practically

impossible, because water quality data is only available for

less than one-third of the nation’s stream miles.” The

court’s decision will thus necessitate expensive and time-

consuming data gathering from all downstream states,

information that has not heretofore been collected by

permitting agencies or permit applicants.

The Tenth Circuit’s ban on new permits, if applied

nationwide, will also have significant ramifications for

public facilities and economic development in many states.

As a result of the numerous existing violations of rele-

vant water quality standards throughout the nation,”

38 See U.S. General Accounting Office, Water Pollution: More

EPA Action Needed to Improve the Quality of Heavily Polluted

Waters (GAO/RCED-89-38, Jan. 1989). Technically, a point source’s

compliance-with water quality standards is usually measured at the

edge of a designated area called a “mixing zone” that allows some

dilution of the effluent.

8° EPA, National Water Quality Inventory, 1988 Report to Con-

gress 1 (EPA 440-4-90-003, April 1990). Furthermore, for the

29% of stream miles that have been evaluated, the reliability of

the available data is questionable because of the inconsistent and

imprecise methods that have often been used to assess water quality.

Id. at 3.

# Id. at 1-3.

29

new permits for wastewater treatment and industrial

discharges may be blocked, and economic growth and

development will be impaired. New treatment facilities

employing state-of-the-art technologies are vastly more

efficient than older plants in removing pollutants during

the wastewater treatment process. Moreover, under the

court’s holding, many states and their political subdivisions

may be unable to properly dispose of municipal and in-

dustrial wastes. Thus, the Tenth Circuit’s holding works

to the detriment of the public health, safety and welfare—

an outcome directly contrary to the purpose and objectives

of the Clean Water Act. Restoration of the integrity of

the nation’s waters will only be hindered by the denial

of permits in such circumstances.

During the nineteen years since enactment of the 1972

Clean Water Act Amendments, the Tenth Circuit is the

only court to construe the Act to forbid new permits

where downstream water quality violations exist.*' No

provision of the Act even hints at, much less mandates,

the Tenth Circuit’s conclusion that Congress meant to

absolutely ban new permits in such circumstances. Fur-

thermore, in its administration of the Act, EPA has

never taken the position that the existence of water

quality violations alone excludes consideration of other

factors and operates to forbid issuance of new discharge

permits. The Tenth Circuit’s substitution of its unprece-

dented construction of the statutory provisions is thus an

inappropriate judicial intrusion into the administrative

process and must be reversed.

*! The factual situation presented in this proceeding is not novel

to the courts. For example, an NPDES permit allowing a discharge

from a wastewater treatment plant into the heavily polluted Potomac

River was contested in Montgomery Environmental Coalition Vv.

Costle, 646 F.2d 568 (D.C. Cir. 1980). One of the questions raised

was whether the effluent limitations contained in the permit were

too lax in light of the condition of the receiving waters. Although

the fact that the receiving waters were polluted was squarely before

the D.C. Circuit, the court did not find that pre-existing violations

of water quality standards mandated denial of an NPDES permit.

30

CONCLUSION

For the foregoing reasons, the Supreme Court should

reverse the decision of the Tenth Circuit.

FRANKIE SUE DEL PAPA

Attorney General

STATE OF NEVADA

Heroes Memorial Building

Capitol Complex

Carson City, Nevada 89710

JOHN P. ARNOLD

Attorney General

STATE OF NEW HAMPSHIRE

25 Capitol Street

Concord, New Hampshire

03301

Date: May 81, 1991

Respectfully submitted,

NICHOLAS J. SPAETH

Attorney General

(Counsel of Record)

STATE OF NORTH DAKOTA

State Office Building

900 East Boulevard

Bismarck, North Dakota 58505

(701) 224-3640

MARK BARNETT

Attorney General

STATE OF SOUTH DAKOTA

500 East Capitol

Pierre, South Dakota

57501-5070