Amicus Curiae Brief — Arkansas v. Oklahoma

: \ C .) MAY 31 199)

Nos. 90-1262 and 90-1266 OFFICE OF THE CLEeRy

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

STATE OF ARKANSAS, et al.,

| Petitioners,

Vv.

STATE OF OKLAHOMA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

AMICUS BRIEF OF THE

COLORADO WATER CONGRESS

IN SUPPORT OF PETITIONERS

MARK T. PIFHER * GREGORY J. HOBBS, JR.

Special Counsel to Colorado Special Counsel to Colorado

Water Congress Water Congress

ANDERSON, JOHNSON & DAVIS, GRAHAM & STUBBS

GIANUNZIO 370 Seventeenth St., Suite 4700

104 S. Cascade Ave., Suite 204 Denver, CO 80201-0185

Colo. Springs, CO 80901-0240 (303) 892-9400

(719) 632-3545

May 31, 1991 * Counsel of Record

WILSON - Eras PrintinG Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

44

TABLE OF CONTENTS

TABLE OF AUTHORITIES 5 iailelishimennivaeiisiibides

INTEREST OF THE AMICUS CURIAE .......000000W...

SUMMARY OF ARGUMENT ................0.............

FR GS LE

I. THE TENTH CIRCUIT MISCONSTRUED

THE RELEVANT PROVISIONS OF THE

II.

A. The Tenth Circuit Misinterpreted Section

B.

C.

ile iat cleetiastinenteninienicienaninee

Section 302 Of The Act Militates Against

The Tenth Circuit Conclusion...

Section 303 Of The Act Indicates That States

Have Jurisdiction Only Over Activities

Within Their Boundaries ..................-.-.--.-

. The Language Of Section 401 Of The Act

Does Not Support The Tenth Circuit Con-

EES a Oe a ee

. The Permitting Provisions Of Section 402

Only Allow For Recommendations By The

FARE RR SE

Section 505 Of The Act Indicates An Intent

To Enforce Only In-State Requirements .......

. Section 101(g) And The Governing Case

Law Supports EPA Authority Under The

THE TENTH CIRCUIT DECISION WILL

UNDERMINE APPLICATION OF RECENT

EPA POLICIES AND REGULATIONS ............

10

12

14

17

19

20

22

ii

TABLE OF CONTENTS—Continued

Page

A. The Circuit Court Decision Will Disrupt

Water Allocation In Promoting Wetland

PSR OTE G I oecnceccecocccesccssssstssseensanene 22

B. The Circuit Court Opinion Will Lead To A

Disruptive Application Of Biocriteria Re-

QUIT ORRGTIED 2.22 2c.nccoccosscscsesssesesscemnineenaaas 23

C. The Circuit Court Opinion Is Inconsistent

With A Reasoned Application Of Section

BRD .....caccucocaccoccssntensenssssncmnsesanniesansaaaaaaaanannnnan 24

iii

TABLE OF AUTHORITIES

Cases Page

A-B Cattle Co. v. United States, 196 Colo. 539,

a 5, 6

Bushkin Assoc., Inc. v. Raytheon Company, 906

eR 10

Chevron, U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837, 842 (1984)... 12,13

City of Milwaukee v. Illinois, 451 U.S. 304 (1981). 7

Coffin v. Left Hand Ditch Co., 6 Colo. 448, 447

ESE 2

Colorado v. New Merico, 467 U.S. 310 (1984)... 3

Colorado River Water Conservation District v.

Colorado Water Conservation Board, 197 Colo.

469, 5694 P.2d 5670 (1979) ee... 2

Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976)... 4

Comstock v. Ramsay, 55 Colo. 244, 1383 P. 1107

a necuemensonsecce 21

Environmental Defense Fund, Inc. v. Costle, 657

SE 5, 20

Florida Gas Transm. Co. v. F.E.R.C., 876 F.2d 42

I ccesenennece 14

Garcia v. U.S., 469 U.S. 70 (1984) nn... 10

HCSC-Laundry v. United States, 450 U.S. 1, 5

I SSS 18

Hinderlider v. La Plata River & Cherry Creek

Ditch Co., 304 U.S. 92, 102 (1988) .......... Siieeiiel 14, 19

Homestake Min. Co. v. E.P.A., 477 F. Supp. 1279,

Ee 13

International Paper Company v. Ouellette, 479

ET 7

Memphis Light, Gas and Water Div. v. Craft, 436

ES 14

National Wildlife Federation v. Gorsuch, 693 F.2d

cc nsccennsnnces 5, 20, 21, 22

Nebraska v. Wyoming, 325 U.S. 589 (1945)... 3

Northern Colorado Water Conservancy District v.

Board of County Commissioners, 482 F. Supp.

rr ccccenaceaceussoneces 5

Oregon Natural Resources Council v. Lyng, 882

F.2d 1417, 1424 (9th Cir. 1989) 24, 25

iv

TABLE OF AUTHORITIES—Continued

Page

Public Service Co. of Colorado v. F.E.R.C., 754

F.2d 1655 (10th Cir. 1986) .................................. 14

Pulaski Irrigation Ditch Co. v. City of Trinidad,

70 Colo. 565, 569, 208 P. 681 (1922) —............ 21

Riverside v. Andrews, 758 F.2d 508 (10th Cir.

a 5

State of Oklahoma v. E.P.A., 908 F.2d 595, 606

(10th Cir. 1990) _.......8, 9, 10, 11, 17, 26

United States v. Bell, 724 P.2d 631 (1986)... 4

United States v. City and County of Denver, 656

i - & ae 4

United States v. District Court for Eagle County,

ARTES TS or 4

United States v. Earth Sciences, Inc., 599 F. 2d 368

(10th Cir. 1979) aS a eRe er ne ane eT 5

United States v. New Mexico, 438 U. S. 696

EEE SO Sa ore 3

United States v. _ Northern Colorado Water Con-

servancy District, 608 F.2d 422 (10th Cir.

A 3

United States v. ‘Rio Grande ‘Dam €& Irrig. Co.,

ESE ee 18

Weibert v. Rothe Brothers, Inc., 200 Colo. 310,

618 P.2d 1367, 1871-72 (1980) ............................. 14, 21

Wyoming v. Colorado, 259 U.S. 419, 457-458

EE mune 3

Statutes and Regulations

Clean Water Act

Section 101 (a), 33 U.S.C. § 1251(a) .............. 25

Section 101 (g), 33 U.S.C. § 1251(g) 5, 20, 21, 24

Section 208 (a), 33 U.S.C. § 1288(a) ............... 12, 13

Section 301, 38 U.S.C. § 1811 _.......................... 7,10,11

Section 301(b) (1) (A) and § 301(b) (1) (B),

I ee 11

Section 301(b)(1)(A) and (B), 33 U.S.C.

OW EEE &

Section 301(b) (1) (C), 33 U.S.C. § 1311 (b)

et] ne 8, 9, 10

Vv

TABLE OF AUTHORITIES—Continued

Page

Section 302,33 U.S.C.§ 1312... —.... 7,10, 11

Section 302 (b) (2), 33 U.S.C. § 1312 (b) (2) 11

Section 303, 33 U.S.C. § 1313... 7,8, 11, 13, 20, 23

Section 303 (c), 33 U.S.C. § 1313(c) 10, 13

Section 303 (d), 33 U.S.C.§ 1313(d)............ 11,18

Section 304, 33 U.S.C.§ 1314... cy

Section 304(a) (2),33 U.S.C.§ 1314... 11

Section 319, 33 U.S.C. § 1829 ...............__.7, 24, 25, 26

Section 319(a) (1) (A), 38 U.S.C. § 1329(a)

(1) (A) 25

Section 319 (b) a) ‘and (b) (4), 33 US.C.

§ 1829(b) (1) and (b) (4). 25, 26

Section 319(b), 33 U.S.C. § 1329(b) 25

Section 401, 33 U.S.C. § 1341 . 7, 14, 15, 16,17

Section 401 (a) (2), 33 U.S.C. § 1341 (a) (2) 14

Section 402, 33 U.S.C. § 1342 _ 17,18

Section 402 (b) , 33 U.S.C. § 1342(b) . 18

Section 402(b) (1) (A), 33 U.S.C. § 1342(b)

(1) (A) . ae 18

Section 402 (b) (5), 33 U.S.C. $1342 _ 7,17

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

Section 404, 33 U.S.C.§ 1344... 2

Section 505 (h) , 33 U.S.C. § 1365 (h) 19

Section 510, 33 U.S.C. § 1370 a oa 9

Section 518(e), 33 U.S.C.§ 1377(e) | 4

i) | |) 5) EO , 14

LT LER 26

43 U.S.C.§ 666 _. oe . 4

40 C.F.R.§121.1(g) | oe | 16

40 C.F.R. § 121.2(a) (3) . 16

40 C.F.R. 131.12 . ert Souk oi ae ae 15, 16

40 C.F.R. § 131. 12(a) (2) ieebieeieiceet Sel i Sete 16

40 C.F.R. § 131.12(a) (3) s ae 16

Te a 13

Miscellaneous

Colorado Constitution Article XVI, Sections 5 and

a

to

vi

TABLE OF AUTHORITIES—Continued

Hobbs & Raley, Water Right Protection in Water

Quality Law, 60 Univ. Colo. L. Rev. 841, 872

ST cliches tiitiaainaalidiiieaiigelibiiteaiiitdincastnansmiiigemes

EPA: Questions and Answers on Antidegrada-

8 Foe

EPA: Nonpoint Source Guidance (December

1987) .

EPA: National Guidance ‘for “Water Quality

Standards for Wetlands, July, 1990 .

EPA: Biological Criteria, National ‘Program

Guidance for Surface Waters, April, 1990...

Article [X of the 1965 Arkansas River Basin Com-

pact between Kansas and Oklahoma...

Page

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

Nos. 90-1262 and 90-1266

STATE OF ARKANSAS, et al.,

7 Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

AMICUS BRIEF OF THE

COLORADO WATER CONGRESS

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE

Counsel for the parties to this litigation have consented

to the filing of this amicus brief by the Colorado Water

Congress (“CWC”). Letters from counsel for the par-

ties are on file with the Clerk of this Court. The CWC

submits this brief in support of the Petitioners.

The Colorado Water Congress is a statewide organiza-

tion composed of cities, counties, water user associations,

agricultural ditch and reservoir companies, water con-

servancy and water conservation districts, businesses,

law firms, engineering firms, individuals, and Colorado

State agencies interested in water matters affecting the

State of Colorado and those who hold or seek to hold

water rights under Colorado law.

2

Representative members include the cities of Aurora,

Boulder, Colorado Springs, Denver, Durango, Fort Col-

lins, Grand Junction, Pueblo, and the counties of Adams,

Conejos, Delta, Eagle, Jackson, Jefferson, La Plata,

Mesa, Moffat, Pitkin, Routt, Summit, and Weld. Repre-

sentative water districts include the Colorado River

Water Conservations District, the Northern Colorado

Water Conservancy District, the Rio Grande Water Con-

servation District, the Southeastern Water Conservancy

District, and the Southwestern Water Conservation Dis-

trict. Such cities, counties and districts provide water to

the population of Colorado, approximately two and three

quarter million people, and in combination with agri-

cultural ditch and reservoir companies, ensure those

water supplies necessary for Colorado’s economy, includ-

ing its irrigated farms, its businesses, and the recrea-

tional industry. Representative business members of

CWC include Adolph Coors Company, CF&I Steel Cor-

poration, Colorado Farm Bureau, Colorado Cattlemen’s

Association, Colorado Ski Country U.S.A., Colorado Asso-

ciation of Commerce and Industry, and the Rocky Moun-

tain Oil and Gas Association.

Members of CWC hold pollutant discharge elimination

permits from the State of Colorado under a permit pro-

gram approved by the United States Environmental Pro-

tection Agency in accordance with the federal Clean

Water Act. See C.R.S. 25-8-501 et seq. In addition, mem-

bers of CWC hold water rights for beneficial use under

the provisions of Colorado water law, allocated and ad-

ministered according to the doctrine of prior appropria-

tion as described in Colorado Constitution Article XVI,

Sections 5 and 6; Colorado statutes, primarily the 1969

Water Rights Administration and Adjudication Act,

C.R.S. 37-92-101 et seq.; and cases of the Colorado Su-

preme Court such as Coffin v. Left Hand Ditch Co., 6

Colo. 443, 447 (1882) and Colorado River Water Con-

servation District v. Colorado Water Conservation Board,

197 Colo. 469, 594 P.2d 570 (1979), which upholds Colo-

3

rado’s instream flow program as within the doctrine of

prior appropriation.

As with the other Western States carved out of the

public domain by settlement policies fostered by the fed-

eral government, see U.S. v. New Mewico, 438 U.S. 696

(1978), Colorado’s strength and well-being is directly de-

pendent on its ability to store the Spring snowmelt high

up in the watershed, to divert directly from the streams

when the water is running high, and to release from

storage, particularly after mid-July when natural! flow

declines to extremely low levels. The ability to meet the

year-round water demand of cities, businesses and farms

is inextricably tied to water released from reservoirs. In

addition, the Front Range of Colorado, east of the Con-

tinental Divide, receives annual precipitation of from 12

to 15 inches and is dependent on supplemental trans-

mountain diversions from Colorado’s Western Slope. See

United States v. Northern Colorado Water Conservancy

District, 608 F.2d 422 (10th Cir. 1979). Colorado’s hy-

drologic cycle and the key role of water storage and de-

velopment to States like it and Wyoming were addressed

by this Court in Wyoming v. Colorado, 259 U.S. 419, 457-

458 (1922).

As the quintessential upstream State, comprising the

headwaters of the Platte, Arkansas, Colorado, and Rio

Grande Rivers, Colorado participated in nine interstate

compacts and several equitable apportionment cases allo-

cating among sister States waters arising within and

flowing from the state.' See e.g., Colorado v. New Mez-

ico, 467 U.S. 310 (1984); Nebraska v. Wyoming, 352

1In fact, in certain instances the states have jointly addressed

water quality concerns as evidenced by Article IX of the 1965

Arkansas River Basin Compact between Kansas and Oklahoma:

The states of Kansas and Oklahoma mutually agree to:

A. The principle of individual state effort to abate man-made

pollution within each state’s respective borders, and the con-

tinuing support of both states in an active pollution-abatement

program ;

4

U.S. 589 (1945); Wyoming v. Colorado, 259 U.S. 419

(1922). Eighteen states are direct recipients of water

originating in Colorado, as are a number of Indian

tribes. See section 518(e), 33 U.S.C. §1377(e). Con-

sequently, Colorado has closely scrutinized policies, deci-

sions and regulatory developments which could adversely

affect development of its legal share of the water resource.

Colorado is also the home of the McCarran Amendment

eases which interpret and apply the provisions of 43

U.S.C. § 666 governing the joinder of the United States’

water rights claims in State forums. See United States

v. District Court for Eagle County, 401 U.S. 520

(1971), Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976), United States

v. City and County of Denver, 656 P.2d 1 (Colo.

1982), and United States v. Bell, 724 P.2d 631 (1986).

Such cases involved the creation, scope, administration

and priority of rights to water claimed to arise by the

establishment of federal land reservations. CWC and its

members were actively involved in each of those cases.

With the advent of major federal environmental Acts,

such as the Clean Water Act, CWC and its members have

become increasingly concerned that the misapplication of

federal water quality laws could undermine the water

allocation law of the States. Section 101(g) of the

B. The cooperation of the appropriate state agencies in Kan-

sas and Oklahoma to investigate and abate sources of alleged

interstate pollution within the Arkansas river basin whenever

such matters are called to their attention by the commission;

C. Enter into joint programs for the identification and con-

trol of sources of natural pollution within the Arkansas river

basin which the commission finds are of interstate significance;

D. The principle that neither state may require the other to

provide water for the purpose of water-quality control as a

substitute for adequate waste treatment;

E. Utilize the provisions of the federal water pollution con-

trol act in the resolution of any pollution problems which cannot

be resolved within the provisions of this compact.

5

Clean Water Act, 33 U.S.C. § 1251(g), provides that

the authority of each State to allocate quantities of

water shall not be superseded, abrogated or other-

wise impaired by programs under the Clean Water

Act, nor shall the Act supersede or abrogate rights to

quantities of water which have been established by any

State. Federal agencies are directed to cooperate with

State and local agencies “to prevent, reduce and elim-

inate pollution in concert with programs for managing

water resources.” Thus, the Clean Water Act is an exer-

cise in fundamental federalism designed to achieve a na-

tional program of water quality control implemented on

a State by State basis to protect beneficial uses, thereby

supporting and not undermining the allocation, adminis-

tration, and development of each State’s allocated water

resource. See, generally, Hobbs and Raley, ‘Water

Rights Protection in Water Quality Law,” 60 Univ. Colo.

L. Rev, 841, 872 (1989).

The State of Colorado, CWC, and its members have

participated in a number of cases seeking careful appli-

cation of the policies of the Clean Water Act, including

the policy of controlling the discharge of pollutants and

the policy of respecting State water allocation and ad-

ministration systems and water rights created under

them. Such cases include the Colorado River Basin sa-

linity control case, Environmental Defense Fund v. Cos-

tle, 657 F.2d 275 (D.C. Cir. 1981); the section 404

nationwide permit dam construction case, Riverside v.

Andrews, 758 F.2d 508 (10th Cir. 1981); the reservoir

release discharge of pollutants case, National Wildlife

Federation v. Gorsuch, 693 F.2d 156 (D.C. Cir. 1982) ;

the section 208 water quality planning case, Northern

Colorado Water Conservancy District v. Board of County

Commissioners, 482 F. Supp. 1115 (D. Colo. 1980); the

“waters of the United States” point source discharge per-

mit case, United States v. Earth Sciences, Inc., 599 F.2d

368 (10th Cir. 1979); and the clear water reservoir re-

lease case, A-B Cattle Co. v. United States, 196 Colo.

6

539, 589 P.2d 57 (Colo. 1978). Each of these cases is

important to this Court’s consideration of the Federal/

State balance struck by Congress in the law and policies

applicable to the interface between federal water quality

law and State adjtidicated water rights.

Finally, the past investment of CWC members in water

development projects, such as dams and reservoirs, and in

wastewater treatment facilities, will be put at risk as

continued operation thereof may be placed in jeopardy.

Necessary future projects will be hampered by the un-

certainty arising from the need to meet all downstream

water quality standards which are constantly subject to

change, and which, according to the lower Court, include

a prohibition against discharge where current down-

stream violations exist. Long range financial planning

and bonding may kecome impossible, and the State’s eco-

nomic well-being will be placed in doubt.

The decision of the Tenth Circuit bestows upon an

individual downstream State veto authority over water

use and development in upstream States, is counter

to the provisions and policy of the Clean Water Act gov-

erning interstate pollution matters, and encourages States

to improve upen their allocated water resource by adopt-

ing state line water quality and land use desigffations

which will lock out further upstream water use and dis-

charges even though they meet the goal and letter of

the Clean Water—Act’s State-by-State classified use and

water quality standards program.

SUMMARY OF ARGUMENT

The Tenth Circuit decision effectively provides down-

stream states with virtual veto authority over discharge

activities located in an upstream state. In addition, it

establishes an absolute prohibition against any additional

point source discharges to those waters where violations

already exist if such discharges will contribute to the

condition that produced the violation. These additional

7

contributions need not even be detectable. This ruling,

which is conflict with the prior holdings of this Court in

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

(1987), and City of Milwaukee v. Illinois, 451 U.S. 304

(1981), could foreclose future upstream development in

a headwater state such as Colorado while, at the very

least, leading to destructive disputes between the states

over the presence of downstream impacts, the propriety

of downstream standards and policies, and the appropri-

ate allocation of water resources.’

The Circuit Court decision is inconsistent with the

statutory scheme embodied in the various pertinent pro-

visions of the Clean Water Act. Congress made a con-

scious distinction in Sections 301, 302 and 303 of the Act

between “federal” standards and effluent limitations, and

those adopted by the states. There is no indication that

state standards were to have direct extraterritorial appli-

cation. However, pursuant to Section 401 of the Act,

where a federal license or permit was necessary, affected

states could put their objections of record. Similarly,

pursuant to Section 402(b) (5), such states could “make

“recommendations” to the permitting state relative to

applications pending in the permitting state. An accom-

modation process, with EPA oversight, was the key to

insuring interstate equity while preserving s‘ate sover-

eignty. The Tenth Circuit opinion totally undermines

this result.

The Circuit Court opinion will have similarly disastrous

results if it is applied, as it must be, to certain new ele-

ments of state water quality standard programs, such as

water quality standards for wetlands, biocriteria, and Sec-

tion 319 nonpoint source controls. Each of these programs,

which EPA is demanding be incorporated into the state

water quality standards regulatory process, will control

hydrologic modifications in order to ostensibly protect the

* The CWC will not independently discuss the governing case law,

but will rather adopt by reference the arguments made by Peti-

tioner, State of Arkansas, and amicus, State of Colorado.

8

“biological” integrity of downstream aquatic resources.

This could seriously disrupt water supply operations in

arid or semi-arid upstream states such as Colorado, where

existing flows are diverted, used and reused, pursuant to

the prior appropriation doctrine, in order to meet agri-

cultural, municipal and industrial needs.

ARGUMENT

I. THE TENTH CIRCUIT MISCONSTRUED THE REL-

EVANT PROVISIONS OF THE FEDERAL ACT

In rendering its decision, the Tenth Circuit cited vari-

ous provisions of the Clean Water Act, indicating that

one must “look to the CWA as a whole” in determining

whether a discharge permit must insure compliance with

the applicable water quality standards of all affected

states. State of Oklahoma v. E.P.A., 908 F.2d 595, 606

(10th Cir. 1990). However, just such a review inexorably

leads to the conclusion that the Tenth Circuit decision

must be overturned,

A. The Tenth Circuit Misinterpreted Section 301

(b)(1)(C)

Once water quality standards are established by a state

pursuant to Section 303 of the federal Act, effluent limi-

tations are applied to point source dischargers for pur-

poses of ensuring that such standards are met. Pursuant

to Section 301(b)(1)(A) and (B), 33 U.S.C. $1311

(A) (B), technology-based effluent limitations are to be

achieved by a date certain, including secondary treatment

for publicly-owned treatment works. Section 301(b)

(1) (C), 33 U.S.C. § 1311(b)(1)(C), then further di-

rects the achievement of

. . any more stringent limitation, including those

necessary to meet water quality standards, treatment

standards, or schedules of compliance, established

pursuant to any state law or regulations (under au-

9

thority preserved by § 510 of this title) or any other

Federal law or regulation, or required to implement

any applicable water quality standard established

pursuant to this chapter. (emphasis added)

The Tenth Circuit concluded that this provision would

“require dischargers to meet the applicable requirements

of other affected states”. Oklahoma, 908 F.2d at 606.

However, this determination by the Court is rebutted by

the clear language of the statute.

Section 301(b) (1) (C), on its face, simply states that

limitations must be imposed which are “necessary to meet

water quality standards . . . established pursuant to any

state law or regulations (under authority preserved by

§ 510 of this title... .” Section 510, 33 U.S.C. § 1370,

in turn, provides in part:

Except as expressly provided in this chapter, nothing

in this chapter shall (1) preclude or deny the right

of any state or political subdivision thereof or inter-

state agency to adopt or enforce (A) any standard

or limitation respecting discharges of pollutants, or

(B) any requirement respecting control or abate-

ment of pollution; except that if an effluent limita-

tion, or other limitation, effluent standard, prohibi-

tion, pretreatment standard, or standard of per-

formance is in effect under this chapter, such State

or political subdivision or interstate agency may not

adopt or enforce any effluent limitation, or other

limitation . .. which is less stringent .... ‘empha-

sis added)

Hence, the state standards to which reference are made

in Section 301(b) (1) (C) are something other than stand-

ards ‘“‘in effect under this chapter.” That is to say, they

are not the “federal law” to which the Tenth Circuit made

reference in justifying its decision. Oklahoma, 908 F.2d

at 607.

The distinction found in Section 510 between state-

adopted standards and federal criteria is then further

highlighted in Section 301(b)(1)(C) as quoted above,

10

wherein reference is made to limitations “established

pursuant to any state law... or required to implement

any applicable water quality standards established pur-

suant to this chapter.” (emphasis added) This phrase

indicates Congressional intent that there be a demarca-

tion between standards established under state law, which

standards need EPA approval (§ 303(c)), and standards

established pursuant to the Act. If, as the Tenth Circuit

concludes, EPA-approved state standards are “federal

law,” such state standards would indeed be “established

pursuant to this chapter,” and the distinction rendered

meaningless. However, each word of a statute must be

given meaning and interpreted according to its plain

terms. Garcia v. U.S., 469 U.S. 70 (1984); Bushkin

Assoc., Inc. v. Raytheon Company, 906 F.2d 11, 14 (1st

Cir. 1990). Hence, though Section 301(b)(1)(C) does

not directly address the ability of one state to impose its

water quality standards upon another state, the only fair

reading of the statutory scheme runs counter to the lower

Court’s conclusion.

B. Section 302 Of The Act Militates Against The Tenth

Circuit Conclusion

Aware of the fact that the effluent limitations estab-

lished pursuant to Section 301 would not necessarily result

in the attainment of the desired water quality, Congress

provided, in Section 302 of the Act, 33 U.S.C. § 1312, for

the establishment of ‘“‘water quality related effluent limita-

tions” for specific categories of pollutants. These limita-

tions were to be more stringent requirements based not

upon available technology, but rather upon the quality of

the water in the stream. The Tenth Circuit took great

comfort in the fact that Section 302 references “water

quality in a specific portion of the navigable waters,” and

not “intrastate water quality effects.” Oklahoma, 908 F.2d

at 615.

Indeed the statute’s use of the term “specific portion

of the navigable waters” .. . rather than specifying

11

waters of the source or permitting state, suggests

that the section contemplates regulation of water

quality without regard to state boundaries. Vesting

authority in EPA, instead of in individual states,

arguably suggests a similar intent.

Oklahoma, 908 F.2d at 615.

Section 302 of the Act, not unlike Section 301, does not

directly address thd issue of interstate application of man-

dated water quality controls. However, the 1987 amend-

ments to Section 302, amendments which were not cited by

the lower Court, specifically provide for modification by the

Administrator of effluent limitations established there-

under “with the concurrence of the State.” § 302(b) (2),

33 U.S.C. § 1312(b) (2). Thus, not only was the Tenth

Circuit’s insistence upon strict compliance statutorily

waived, but concurrence of “the State” and not “all af-

fected States,” was to be sought.

Finally, the Circuit Court conclusion that “vesting of

authority in EPA, instead of in individual states,” sup-

ports the concept of interstate application of state-adopted

water quality standards is simply contrary to the Court’s

express justification for requiring compliance with the

water quality standards of affected states, i.e., that EPA-

approved state standards constitute federal law. Under

this scenario, state adoption of water quality standards

places the individual states in the position of EPA, and

the distinction between state and federal authority once

again becomes moot. There would simply be no need to

vest authority in the federal agency. Thus, though there

may be merit in the Court’s observation that the vesting

of authority in a “federal” agency (EPA) indicates a

desire to effectuate regulations with interstate applica-

tion, its determination that this suggests approval of

“state” veto power over out of state permits does not

logically follow.

12

C. Section 303 Of The Act Indicates That States Have

Jurisdiction Only Over Activities Within Their

Boundaries

Congress, cognizant of the fact that technology-based

limitations would not, in every instance, be adequate to

meet water quality standards, adopted the concept of

total maximum daily loads (TMDL’s) in Section 303(d)

of the Act, 33 U.S.C. § 1313(d).

(1)(A) Each state shall identify those waters

within its boundaries for which the effluent limita-

tions required by Section 301(b) (1) (A) and Section

301(b) (1) (B) of this title are not stringent enough

to implement any water quality standard applicable to

such waters. The State shall establish a priority rank-

ing of such waters, taking into account the severity of

the pollution and the uses to be made of such

waters...

(C) Each state shall establish for the waters iden-

tified in paragraph (1)(A) of this subsection, and

in accordance with the priority ranking, the total

maxmium daily load [TMDL], for those pollutants

which the Administrator identifies under Section 304

(a) (2) of this title, as suitable for such calculation.

Such load shall be established at a level necessary to

implement the applicable water quality standards

with seasonal variations and a margin of safety

which takes into account any lack of knowledge con-

cerning the relationship between effluent limitations

and water quality. (emphasis added)

Therefore, each state was to calculate TMDL’s for waters

“within its boundaries” in order to meet water quality

standards. Had Congress desired to establish “interstate”

wasteload allocations, it could have so provided by statute.

It did not do so. It is not now for the judiciary to

fashion such a program.’ See, Chevron, U.S.A., Ine. v.

% Congress did identify, in Section 208(a) of the Act, 33 U.S.C.

§ 1288(a), a process for dealing with areas which have “substantial

water quality control problems” and are loctaed in two or more

13

Natural Resources Defense Council, Inc., 467 U.S. 837,

842 (1984).

Further, contrary to the Circuit Court decision, Sec-

tion 303(d) does net mandate either immediate compliance

with existing violations of water quality standards, or

a prohibition against new discharges to the offending

stream segment. Rather, it allows states the flexibility to

establish a “priority ranking” in remediating the prob-

lems, and to permit new discharges so long as they are

incorporated into the TMDL process.

The provisions of Section 303 are also of vital signifi-

cance in analyzing the propriety of the Tenth Circuit deci-

sion for one additional reason. It is pursuant to this sec-

tion that states promulgate the water quality standards

which are the cornerstone for the regulatory process in

question. Notice of a rulemaking for purposes of adopting

such standards on an individual state level is provided in

accordance with the mandates of state law, and dissem-

inated on a state-wide basis. Colorado, for example,

utilizes a Water Quality Information Bulletin for those

on the mailing list, and publishes notice in the offi-

cial state register. A hearing is then held before the

appropriate state agency, standards are adopted by the

state agency, and the standards are then submitted to

EPA for approval pursuant to Section 303(c) of the Act,

33 U.S.C. § 1313(c). So long as the standards are more

stringent than federal requirements, EPA has no choice

but to approve the standards. Homestake Min. Co. v.

E.P.A., 477 F. Supp. 1279, 1284 (D. S.D. 1979). Notice

of the action taken by EPA may then appear in the Fed-

eral Register. See, 40 C.F.R. § 131.21(d).

It is clear from the above procedural outline that if

the Tenth Circuit decision is a correct analysis of the

states. This provision calls for joint consultation and cooperation

in the development of area-wide waste treatment management plans.

This is a far ery from the veto authority provided to one state

under the Tenth Circuit opinion.

14

federal Act, those critically affected by the standard set-

ting process are not a party to the rule-making proceed-

ings, and in fact receive no notice thereof. However, as

stated by this Court in Memphis Light, Gas and Water

Div. v. Craft, 436 U.S. 1, 9 (1978), the Fourteenth

Amendment places procedural constraints on the actions

of government that work a deprivation of interests enjoy-

ing the stature of “property” within the meaning of the

Due Process Clause. See also, Florida Gas Transm. Co.

v. F.E.R.C., 876 F.2d 42 (5th Cir. 1989). Under Colo-

rado law, a water right is a vested property right. Pub-

lic Service Co. of Colorado v. F.E.R.C. 754 F.2d 1555

(10th Cir. 1985) ; Wiebert v. Rothe Bros., Inc., 200 Colo.

310, 618 P.2d 1367 (1980); see also, Hinderlider v.

Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 102,

(1938). Given the dramatic effect, under the lower Court

decision, which the promulgation of water quality stand-

ards by lower basin states could have upon the exercise

of upstream water rights, all upper basin states would be

entitled to APA notice. See, 5 U.S.C. § 553. However,

such notice is not current provided, disclosing but one

more reason why the Tenth Circuit decision is in error.

D. The Language Of Section 401 Of The Act Does Not

Support The Tenth Circuit Conclusions

Section 401 of the federal Act, 33 U.S.C. § 1341, es-

tablished a process whereby a state has the opportunity

to certify that “any applicant for a federal license or

permit to conduct any activity” will meet the applicable

water quality requirements of the Act as adopted by the

state. Though this section does provide a mechanism for

considering the views of affected downstream states, the

Cireuit Court’s analysis of the significance of this lan-

guage is overly simplistic. Section 401(a) (2), 33 U.S.C.

£ 1341 (a) (2), states in part:

Whenever such a discharge may affect, as determined

by the Administrator, the quality of the waters of

any other state, the Administrator . . . shall so

15

notify such other state, the licensing or permitting

agency, and the applicant. If . .. such other state

determines that such discharge will affect the qual-

ity of its waters so as to violate any water quality

requirement in such state, and within such sixty-

day period notifies the Administrator and the licen-

sing or permitting agency in writing of its objection

to the issuance of such license or permit and requests

a public hearing on such objection, the licensing or

permitting agency shall hold such a hearing. The

Administrator shall at such hearing submit his eval-

uation and recommendations with respect to any

such objection to the licensing or permitting agency.

Such agency, based upon the recommendations of

such state, the Administrator, and upon any addi-

tional evidence, if any, presented to the agency at

the hearing, shall condition such license or permit

in such manner as may be necessary to insure com-

pliance with applicable water quality requirements.

If the imposition of conditions cannot insure such

compliance, such agency shall not issue such license

or permit. (emphasis added)

Therefore, pursuant to Section 401, it is the Administra-

tor, not the potentially impacted state, who determines if

the discharge may affect the quality of waters of that state.

Should the Administrator make such a determination of

possible impact, there is no requirement of automatic and

unequivocal compliance with the water quality require-

ments of the affected state, but rather the Administrator

submits an “evaluation and recommendation” to the per-

mitting agency. The permitting agency then considers

the recommendation, along with other tendered evidence,

in determining what conditions he believes appropriate to

insure conformance with applicable water quality require-

ments. Rather than automatic compliance, there is a

weighing and balancing of the evidence heard.‘

*It must not be forgotten that EPA also considers a state’s

antidegradation policy to be a part of its water quality standards

program. 40 C.F.R. 131.12. Under the federal policy, no degrada-

tion is permitted of the highest quality waters even though existing

16

Further, Section 401 is addressed solely to situations

where there exists issuance of ‘‘federal licenses or permits.”

Many discharge permits, whether issued in the first in-

stance or upon renewal by delegated state agencies, would

not require such certification. Congress evidently saw

fit to single out federally approved projects discharging

to interstate waters for closer scrutiny. However, this

certainly does not indicate a Congressional desire to pro-

mote confrontation between the states in the implementa-

tion of their general permitting programs. In fact,

though the federal regulation governing Section 401 certifi-

eation (40 C.F.R. § 121.2(a)(3)) requires a statement

“that there is reasonable assurance that the activity will

be conducted in a manner which will not violate appli-

cable water quality standards,” the term “water quality

standards” is defined in the regulations as follows:

(g) “Water quality standards” means standards es-

tablished pursuant to § 10(c) of the Act, and state-

adopted water quality standards for navigable

waters which are not interstate waters. (emphasis

added)

40 C.F.R. § 121.1(g¢). Thus, Section 401 certification re-

view by the very terms of the pertinent federal regulations,

is limited to a determination that there will be no ex-

ceedence of “federal’’ standards adopted by EPA under

uses would be fully protected. 40 C.F.R. § 131.12(a) (3). Limited

degradation is permitted in certain other waters “if allowing lower

water quality is necessary to accommodate important economic or

social development in the area in which the waters are located.”

40 C.F-R-§ 131.12(a) (2). The policy applies to point and nonpoint

sources alike. EPA, Questions and Answers on Antidegradation,

August 1985. Jf the Circuit Court decision is correct, downstream

states would not only be prohibiting upstream development where

the highest quality waters lay below such activities, but would be

making determinations about the economic and social utility of

projects in other states for remairing waters, even though the

development would probably not be occurring in the downstream

state. This would give rise to untold inequities and jurisdictional

disputes.

* 17

the Act, or state promulgated standards for wholly intra-

state waters. The certification would not even include

review of state adopted standards for interstate waters,

the type of waters at issue in the Tenth Circuit opinion.

E. The Permitting Provisions Of Section 402 Only

Allow For Recommendations By The Affected State

Section 402 of the Act, 33 U.S.C. § 1342, establishes the

discharge permit system. Specifically, Section 402(d) (2),

33 U.S.C. § 1342(d) (2), as cited by the Tenth Circuit,

provides in part:

(2) No permit shall issue (A) if the Adminis-

trator within ninety days of the date of his no-

tification under Subsection (b)(5) of this section

objects in writing to the issuance of such permit

or (B) if the Administrator within ninety days of

the date of transmittal of the proposed permit by

the state, objects in writing to the issuance of such

permit as being outside the guidelines and require-

ments of this chapter .. . (emphasis added)

Subsection (b) (5), as cross-referenced, states:

The Administrator shall approve each such submit-

ted program unless he determines that adequate au-

thority does not exist:

* * * *

(5) To insure than any State (other than the per-

mitting State) whose waters may be affected by the

issuance of a permit may submit written recom-

mendations to the permitting State (and the Ad-

ministrator) with respect to any permit application

and, if any part of such written recommendations

are not accepted by the permitting State, that the

permitting State will notify such affected State (and

the Administrator) in writing of its failure to so

accept such recommendations together with its rea-

sons for so doing; (emphasis added )*

5 The Circuit Court’s conclusion that § 402(b)(5) “derives from

§ 401,” Oklahoma 908 F.2d at 612, is totally unsubstantiated by

anything in the Act or its legislative history.

18

Hence, though affected downstream states can make

“recommendations” to the permitting state and the Ad-

ministrator, this does not support, and indeed is contrary

to, any conclusion that there must be absolute compliance

with the water quality standards of the downstream

state.

In addition, though it is true that Section 402(b) (1) (A)

of the Act, 33 U.S.C. § 1342(b) (1) (A), generally requires

compliance with water quality standards and effluent

limitations, the Tenth Circuit’s reliance upon this pro-

vision ignores the accepted principle of statutory con-

struction whereby the specific provision controls over

the general HCSC-Laundry v. United States, 450 U.S.

1, 5 (1981). In this case, the specific provisions address-

ing interstate disputes mandate the previously-referenced

balancing process.

Finally, it is curious that the lower Court, in its discus-

sion of Section 402, completely failed to note what is a key

provision in the resolution of this controversy. Section

402(b), 33 U.S.C. § 1342(b), entitled “State permit pro-

grams,” bestows permitting authority upon the states in

the following words:

At any time afier the promulgation of the guidelines

required by subsection (i) (2) of Section 304 of this

title, the governor of each state desiring to admin-

ister its own permit program for discharges into

navigable waters within its jurisdiction may submit

to the Administrator a full and complete description

of the program it proposes to establish and admin-

ister under State law or under an interstate com-

pact. (eraphasis added)

Waters located outside the state, such as the waters

of the Illinois River within Arkansas, are not “within

(the] jurisdiction” of Oklahoma, and thus not subject to

its discharge permit program. See, United States v. Rio

Grande Dam & Irriqg. Co., 174 U.S. 690 (1899). Any

extraterritorial permitting authority would depend upon

19

the execution of a compact agreement. See also, Hinder-

lider v. La Plata & Cherry Ditch Co., 304 U.S. 92

(1938).

F. Section 505 Of The Act Indicates An Intent To

Enforce Only In-State Requirements

The Tenth Circuit’s reliance upon Section 505(h), 33

U.S.C. § 1365(h), is similarly misplaced. Under this

provision,

A Governor of a State may commence a civil action

under subsection (a) of this section, without regard

to the limitations of subsection (b) of this section,

against the Administrator where there is alleged a

failure of the Administrator to enforce an effluent

standard or limitation under this chapter the viola-

tion of which is occurring in another State and is

causing an adverse effect on the public health or

welfare in his State, or is causing a violation of any

water quality requirement in his State. (emphasis

added )

Section 505(h) specifically establishes two conditions

which must be met before its provisions can be invoked

by the Governor of an affected state. First, there must

be a failure to enforce a standard or effluent limitation,

the violation of which is occurring in another state. Sec-

ond, that violation must be causing an adverse effect on

the public health or welfare in the affected state, or a

violation of a water qualtiy requirement in the affected

state. The initial triggering condition is, therefore, a

violation occurring in the state of discharge, which viola-

tion remains unpunished. The facts before the Tenth

Circuit involved a potential violation in the downstream

(affected) state without a concomitant violation in the up-

stream state. Hence, Section 505(h) was of limited utility

in rendering a decision in the Oklahoma/Arkansas dispute.

However, Section 505(h) does run contrary to the gen-

eral conclusions reached by the Circuit Court, as Con-

gress simply could have given the Governors of affected

downstream states the power to sue for a violation of

20

the downstream state’s standards by out-of-state dis-

chargers if that was indeed its intent.

G. Section 101(g) And The Governing Case Law Sup-

ports EPA Authority Under The Act

A paradigm case upon interstate water quality dispute

is Environmental Defense Fund Inc. v. Costle, 657 F.2d

275 (D.C. 1981) where it was argued unsuccessfully by

EDF that EPA had failed under the Clean Water Act

to require the adoption of State line salinity control

water quality standards in each of the seven States of the

Colorado River Basin: Colorado, Wyoming, Utah, New

Mexico, Arizona, Nevada, and California. See EDF, 657

F.2d at 287-288. The seven basin state Salinity Control

Forum was organized to address salinity control meas-

ures, including restrictions in point source discharge per-

mits written by each State and subject to veto by EPA

and nonpoint source on-farm salinity control projects,

in order to reduce salinity loading between and among

the States which could adversely affect classified water

uses in each of the Sta‘es. EDF, 657 F.2d at 282, 297-

298. The primary motivation for the interstate salinity

control cooperative approach approved in this case was

to allow, and provide for, the continued development of

each of the States’ share of Colorado River Compact

water, free from the threat of an individual State at-

taching restrictive salinity water quality standards en-

forceable on an upstream state. Otherwise, the “Law

of the River” applicable to water allocations would

surely have given way to State-by-State preemption of

the compact allocations in the guise of honoring a down-

stream State’s water quality and land use designations.

The EDF v. Costle Court determined that the EPA Ad-

ministrator had ample cause and authority to address

the complex matter of interstate water pollution through

a combination of the Agency’s regulatory authority and

working with State authorities within the framework of

the water quality standards program, 33 U.S.C. § 1313.

21

Similarly, in National Wildlife Federation v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1182), the Court observed that

section 101(g) of the Clean Water Act, 33 U.S.C.

§ 1251(g), evidenced Congressional intent not to “inter-

fere any more than necessary with state water man-

agement” and to minimize federal control over state de-

cisions on water quantity.” The Court recognized that

reservoirs are key to making use of water in a State,

and that EPA was correct in not categorizing releases

from dams as a point source of pollution. NWF, 693 F.2d

at 178, 179.

Admittedly, the facts before the Tenth Circuit in the

Oklahoma/Arkansas case involve a point source of pollu-

tion. However, every act of withdrawing and using a

quantity of water under State water law involves some

diminution or change in the quality of that water as a

result of being used. Return flows to a water short river

system from prior uses are a key component of the water

resource available to fill the appropriations of down-

stream water users. See, Comstock v. Ramsay, 55 Colo. 244,

248, 133 P. 1107, 1108 (1913). The return flow which per-

colates back into the soil, or is conveyed back to the stream

by a point source, is used and reused by downstream

water users. The Colorado water courts are in the daily

business of defining historic consumptive use and ad-

judicating junior water rights and changes of water

rights, including plans of augmentation and exchange,

for use of the return flows. See, e.g., Weibert v. Rothe

Brothers, Inc., 200 Colo. 310, 316-17, 618 P.2d 1367, 1371-

72 (1980). A water quality policy which prevents addi-

tional water uses upstream undermines the upstream

State’s ability to put its allocated water resource to benefi-

cial purposes under State law. In fact, an overly restrictive

water quality policy discouraging return flows from point

sources encourages evaporative, consumptive treatment

techniques which diminish the quantity of water available

back to the stream for downstream uses, adversely affect-

ing instream flows. See Pulaski Irrigation Ditch Co. v.

Trinidad, 70 Colo. 565, 569, 203 P. 681, 683 (1922).

22

Zero discharge was a goal tempered by practicality.

NWF, 693 F.2d at 181. This Court should read section

101(g) as precluding interpretation of the Clean Water

Act in a manner which would allow a downstream State

to unilaterally enforce its water quality standards and

land use designations on upstream States.

II. THE TENTH CIRCUIT DECISION WILL UNDER-

MINE APPLICATION OF RECENT EPA POLICIES

AND REGULATIONS

In holding that activities in upstream states must com-

ply absolutely with the water quality standards of all

downstream states, the Tenth Circuit not only misinter-

preted the pertinent provisions of the Clean Water Act,

but also failed to analyze the far-reaching impacts of its

holding upon the implementation of recent EPA policies

and regulations.

A. The Circuit Court Decision Will Disrupt Water Al-

location In Promoting Wetland Protection

In its July, 1990, National Guidance for Water Quality

Standards for Wetlands, EPA stated:

In addition to other narrative criteria, narrative bio-

logical criteria provide a further basis for man-

aging a broad .range of activities that impact the bio-

logical integrity of wetlands and other surface

waters, particularly physical and hydrologic modifi-

cations. For instance, hydrologic criteria are one

particularly important but often overlooked com-

ponent to include in water quality standards to help

maintain wetlands quality. Hydrology is a primary

factor influencing the type and location of wet-

lands. . . . States should consider the establishment

of criteria to regulate hydrologic alterations to wet-

lands. (emphasis added)

Thus, assuming the legal propriety of this provision, if a

downstream state were to adopt hydrologic criteria as

part of its water quality standards program, and if that

23

criteria were applicable to upstream states, the down-

stream state would in effect be controlling the very flow

of the river in enforcing its standards. This would be

the case despite the fact that there existed no discharge

of pollutants to the waterway. The potential effect of

such a provision upon appropriators within an upstream

state such as Colorado, as well as upon interstate com-

pact apportionments, is apparent. New upstream ap-

propriations, which inevitably reduce flows, could be pro-

hibited, while full development by the upstream state of

its compact entitlements could be foreclosed.

B. The Circuit Court Opinion Will Lead To A Dis-

ruptive Application Of Biocriteria Requirements

In April, 1990, EPA published a document entitled:

“Biological Criteria, National Program Guidance for

Surface Waters.” In this publication, EPA indicated that

“to meet the objectives of the Act and to comply with

statutory requirements under §§ 303 and 304, states are

to adopt biological criteria in state standards.” Jd. at 3.

As defined by EPA:

Narrative biological criteria are definable statements

of condition or attainable goals for a given use des-

ignation. They establish a positive statement about

aquatic community characteristics expected to occur

within a water body (e.g., ‘aquatic life shall be as

it naturally occurs” or ‘‘a natural variety of aquatic

life shall be present and all functional groups well

represented”’).

Id. at viii. EPA then continues:

To develop values for biological criteria, states should

(1) identify unimpaired reference water bodies to

establish the reference condition and (2) characterize

® EPA has further indicated that “supporting statements for the

criteria should promote water quality to protect the most natural

community possible for the designated use.” (emphasis added) /d.

at 15.

24

the aquatic communities inhabiting reference sur-

face waters. Currently, two principal approaches are

used to establish reference sites: (1) The site-spe-

cific approach, which may require upstream-down-

stream or near field-far field evaluations, and (2)

the regional approach, which identifies similarities

in the psysico-chemical characteristics of watersheds

that influence aquatic ecology.

Id. at viii. If an impairment of use is found, the causes,

be they “chemical, physical, [or] biological stress” are

diagnosed, including habitat degradation, and plans are

developed to address the problem. “Violation of biological

criteria is sufficient cause for states to initiate regulatory

action.” Jd. at 14.

Once again, if biocriteria is incorporated into the

water quality standards program of the downstream

state, and if it is strictly enforceable against the up-

stream state, absolute protection of the biological in-

tegrity of downstream river segments may demand that

there be no further modification in the flow regime. Ex-

isting flows may be necessary to meet fish or plant needs,

or to dilute other sources of pollution. In fact, the neces-

sary control program designed to attain reference reach

conditions could require changes in existing upstream

practices. Not only would the downstream state be poten-

tially interfering with upstream water diversion activities

in contravention of Section 101(g) of the Clean Water

Act, 33 U.S.C. § 1251(g), but it may be imposing land

use controls for purposes of attenuating nonpoint source

pollution. This would inevitably lead to a bitter confron-

~” gation not currently contemplated under the Act.

C. The Circuit Court Opinion Is Inconsistent With A

Reasoned Application Of Section 319

Finally, it must be acknowledged that a large portion

of the remaining surface water pollution in the United

States is a result of nonpoint sources. See, Oregon Nat-

25

ural Resources Council v. Lyng, 882 F.2d 1417, 1424

(9th Cir. 1989). In 1987, Congress amended the Act to

provide that:

It is the national policy that programs for the control

of nonprofit sources of pollution be developed and

implemented in an expeditious manner so as to

enable the goals of this chapter to be met through

the control of both point and nonpoint sources of

pollution.

Section 101(a), 33 U.S.C. § 1251(a). Included within

the various categories of nonpoint sources as identified

by EPA are hydrologic/habitat modifications, agricul-

tural practices, and urban runoff. See, Environmental

Protection Agency, Nonpoint Source Guidance (December,

1987). Pursuant to Section 319 of the 1987 Amendments,

33 U.S.C. § 1329, the Governor of each state is to prepare

a report identifying waters which “without additional

action to control nonpoint sources of pollution, cannot

reasonably be expected to attain or maintain applicable

water quality standards or the goals and requirments of

this chapter.” Section 319(a) (1) (A), 33 U.S.C. § 1329

(a)(1)(A). The Governor “for that state or in combi-

nation with adjacent states” is then to prepare a man-

agement program for controlling pollution “added by non-

point sources to the navigable waters within the state,”

such program to include “an identification of programs

(including, as appropriate, nonregulatory or regulatory

programs for enforcement . . .) to achieve implementation

of the best management practices [BMP’s] by . . . par-

ticular nonpoint sources ... .” (emphasis added) Sec-

tion 319(b), 33 U.S.C. § 1329(b).’ The program will

employ BMP’s in an effort to attain and maintain water

quality standards.

7 It is also interesting to note that pursuant to Section 319(b) (3),

33 U.S.C. § 1329(b) (4), states are to “. . . develop and implement a

management program under this subsection on a _ watershed-

by-watershed basis within such state.” (emphasis added)

26

The Section 319 program is currently voluntarily in na-

ture and driven by the prospect of federal grant funding.*

However, if a downstream state were to promulgate a

“regulatory program” to meet its water quality stand-

ards, pursuant to the Tenth Circuit opinion, the down-

stream state could arguably require that activities lo-

cated in upstream states, such as agricultural endeavors

and water diversion projects, subject themselves to the

BMP’s developed by the downstream state. Once again,

this could lead to a chaotic situation whereby one state

is attempting to regulate development activities in the

upstream states.

Finally, it should be emphasized that the language of Sec-

tion 319, as quoted above, specifically references the control

of pollution added to the navigable waters “within the

state,” as well as the development of management pro-

grams on a “watershed-by-watershed basis within such

state.” Section 319 (b)(1) and (b)(4), 33 U.S.C.

$ 1329(b) (1) and (b)(4). Such Congressional pro-

nouncements militate against interstate application of

state non-point source controls. Yet if such is the

case, assuming the Tenth Circuit holding is correct, Con-

gress apparently chose to treat the major remaining con-

tributors of pollutants, i.e., nonprofit sources, in a differ-

ent fashion than point sources, creating the alleged

“gaping loophole” of which the Circuit Court was so

fearful. Oklahoma, 908 F.2d at 632. This analysis simply

discloses the erroneous nature of the Tenth Circuit con-

clusion. No state was to have veto authority over either

point or nonpoint source activities occurring in another

state.

SIn 1990, Congress amended the Coastal Zone Management Act

so as to require certain nonpoint source controls. 16 U.S.C. § 1455b.

Similar attempts at adopting a uniform mandatory program under

the CWA can be expected as part of the current CWA reauthoriza-

tion process.

27

CONCLUSION

For the foregoing reasons, this Court should reverse

the decision of the Tenth Circuit and find (1) that facili-

ties need not comply with the water quality standards

of all downstream states, and (2) that a preexisting vio-

lation of water quality standards on any downstream

segment does not automatically preclude the issuance of

a new permit.

Respectfully submitted,

MARK T. PIFHER * GRreGorY J. Hopss, Jr.

Special Counsel to Colorado Special Counsel to Colorado

Water Congress Water Congress

ANDERSON, JOHNSON & DAVIS, GRAHAM & STUBBS

GIANUNZIO 370 Seventeenth St., Suite 4700

104 8S. Cascade Ave., Suite 204 Denver, CO 80201-0185

Colo. Springs, CO 80901-0240 (303) 892-9400

(719) 632-3545

May 31, 1991 * Counsel of Record