Amicus Curiae Brief — Arkansas v. Oklahoma

Supreme Court, U.S. |

p go, Be oO.

> 14

Nos. 90-1262, me

IN THE SUPREME COURT OF THE UNI

October Term, 1990

STATE OF ARKANSAS, et al.,

Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents.

ENVIRONMENTAL PROTECTION AGENCY

Petitioner,

STATE OF OKLAHOMA, et al.,

Respondents.

BRIEF OF THE STATE OF COLORADO AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

On Writs of Certiorari to the United States

Court of Appeals for the Tenth Circuit

MARTHA PHILLIPS ALLBRIGHT GALE A. NORTON*

Attorney General

Bradley, Campbell, Carney

& Madsen RAYMOND T. SLAUGHTER

Professional Corporation Chief Deputy Attorney General

1717 Washington Avenue

Golden, CO 80401 TIMOTHY M. TYMKOVICH

(303) 278-3300 Solicitor General

MARTHA E. RUDOLPH

Assistant Attorney General

Natural Resources Section

Attorneys for Petitioner

110 Sixteenth Street, 10th Floor

Denver, Colorado 80202

Telephone: (303) 620-4700

*Counsel of Record

Utyp

TABLE OF CONTENTS

PAGE

INTEREST OF THE AMICUS CURIAE ......... 2

SUMMARY OF THE ARGUMENT ............ 3

DT Choke vadeeeedadbdnecseseserer 5

I. THE CLEAN WATER ACT

ENCOURAGES AND MANDATES

COOPERATION, NOT

CONFRONTATION, AMONG THE

STATES REGARDING MATTERS OF

INTERSTATE WATER QUALITY ... 5

II. THE CWA DOES NOT GIVE

DOWNSTREAM STATES ABSOLUTE

VETO POWER OVER UPSTREAM

DEE cess cb baceedeevecesss 10

Il. INTERSTATE COMMERCE MAY NOT

BE PROHIBITED BY STATE WATER

QUALITY STANDARDS .......... 15

EEC er ee ee ee eee eee eee 18

Perse ae VE ed et he nneensseeess 19

TABLE OF AUTHORITIES

CASES PAGE

Arizona v. California, 373 U.S. 546 (1963) ...... 8, 17

Browning-Ferris Inc. v. Anne Arundel County,

292 Md. 136, 438 A.2d 269, 3 ERC 1712

~~~ Scesccecceccecccces 15

Citizens to Preserve Overton Park, Inc. v. Volpe,

DSCC cca esccceccccccccs 12

Colorado v. Kansas, 320 U.S. 383 (1943) ........ 7, 8

EDF v. Costle, 657 F.2d 275 (D.C. Cir. 1981) ..... 4,9

First lowa Hydro-Elec. Co-Op v. Federal

Power Comm., 328 U.S. 152 (1946) ......... 17

Gibbons v. Ogden, 22 U.S. 1 (1824) ............. 16

Heart of Atlania Motel v. United States, 379 U.S. 241

DPPC E EEG GRGaeeeccccceccccccces 16

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

PCE EUUPD cccccecccccccces 12

Huron Portland Cement Co. v. Detroit, 406 U.S.

EEC e eck e be ccccccececces 15

International Paper Co. v. Ouellette,

PTD sc csccccscoccccccece 11

Katzenbach v. McClung, 379 U.S. 294 (1964) ...... 16

Nebraska v. Wyoming, 325 U.S. 589 (1945) ......... 8

Oklahoma v. EPA, 908 F.2d 595 (10th Cir. 1990) .... 1

Philadelphia v. New Jersey, 437 U.S. 617

Dt ¢tscnenateehadeuedebneadheeus 15

Pike v. Bruce Church, Inc., 397 U.S. 137, 142

SE £664 60n6004040 64 06sRb bo URS ORs 16

South Carolina v. Georgia, 93 U.S. 4 (1876) ....... 17

Sporhase v. Nebraska Ex. Rel. Douglas, 458 U.S.

Pe GD 66.0 6.004 cb Oh hwhéwakeeene ete 17

United States v. Chandler-Dunbar Water Power

ig ae ED canbe oueeuwaee 17

United States v. Willow River Power Co..,

i ere ee 17

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

er eee 12

Westen & So. Life Ins. Co. v. State Bd. of

Equalization, 451 U.S. 648, 652 (1981) ....... 16

Wickard v. Filburn, 317 U.S. 111 (1942) .......... 16

Wisconsin v. Duluth, 96 U.S. 379 (1877) .......... 17

CONSTITUTIONAL PROVISIONS PAGE

Ses Ge, GR GS cece ccccccccscecess 16

Jie. FF Fe) FT FS PPPrrererrrerrrire 10

STATUTES PAGE

Administrative Procedure Act, 5 U.S.C. § 553 ..... 12

Clean Water Act, 33 U.S.C. §§ 1251-1387 ......... 2

Section 101(b), 33 U.S.C. § 1251(b) .......... 5

Section 101(g), 33 U.S.C. § 1251(g) ........ 4, 6

Section 103, 33 U.S.C. § 1253 .......... passim

Section 103(a), 33 U.S.C. § 1253(a) ....... 6, 14

Section 103(b), 33 U.S.C. § 1253(b) ....... 6, 10

Section 303, 33 U.S.C. § 1313 ........... ‘ooo @

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

Section 303(d), 33 U.S.C. § 1313(d) ......... 14

Section 401(a)(1), 33 U.S.C. § 1341(a)(1) ...... 5

Section 401(a)(2), 33 U.S.C. § 1341(a)(2) ...... 4

Section 402, 33 U.S.C. § 1342 ........... 4, 14

section 510, 33 U.S.C. § 1370 ........... 12, 13

Section 518(e), 33 U.S.C. § 1377(e) ......... 13

Colorado River Basin Salinity Control Act,

a ae. ons 200 ees ba eeeees 10

RULES PAGE

in ocbiewscGeceua bananas |

OTHER AUTHORITIES PAGE

Decision of the General Counsel No. 58 (EPA,

March 29, 1977), Memorandum: Revision of

Water Quality Standards and Implementation

Plans Under § 303 of the Federal Water

cS ee 12

Nos. 90-1262, 90-1266

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1990

STATE OF ARKANSAS, et al.,

Petitioners,

v.

STATE OF OKLAHOMA, et al.,

Respondents.

ENVIRONMENTAL PROTECTION AGENCY

Petitioner,

v.

STATE OF OKLAHOMA, et al.,

Respondents.

BRIEF OF THE STATE OF COLORADO AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

On Writs of Certiorari to the United States

Court of Appeals for the Tenth Circuit

The State of Colorado respectfully submits this brief

aS amicus curiae in support of petitioners and urges this

Court to reverse the decision by the United States Court of

Appeals for the Tenth Circuit in Oklahoma v. EPA, 908

F.2d 595 (10th Cir. 1990).’

' This amicus brief is submitted by the Colorado Attorney General

on behalf of the State. Pursuant to Supreme Court Rule 37.5, the

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

INTEREST OF THE AMICUS CURIAE

The State of Colorado is unique in its geographic

placement in the United States. Seven major rivers have

their headwaters within the mountains of Colorado. The

water diverted for use in Colorado is used and reused many

times over from the time it collects into the streams and

rivers of Colorado until it reaches a point of destination in

the ocean. Colorado is upstream of 18 states and an

undetermined number of Indian tribes which may seek to

promulgate water quality standards. Colorado has a keen

interest in assuring the continued availability of clean,

healthful water both for the use of its citizens and visitors

and for the use of the rest of the downstream states.

Colorado strongly supports the concepts and goals

expressed in the Clean Water Act ("CWA") and its

amendments.’ However, the State of Colorado believes

that the CWA provides the framework for resolving

interstate differences with respect to water quality through

negotiation of interstate agreements and compacts as

specifically provided for by the CWA, § 103.’ The ruling

of the Tenth Circuit Court of Appeals in no way furthers

the goals and interests mandated by the CWA, but instead

frustrates the amicable and cooperative solution of

interstate water quality matters by pitting upstream and

downstream staies against each other. Colorado is

? For the purposes of this brief, the Federal Water Pollution

Control Act, as amended by the Water Quality Act of 1987 and as

codified at 33 U.S.C. §§ 1251-1387, shall be referred to as the Clean

Water Aci or "CWA."

> 33 U.S.C. § 1253.

concerned that if this decision is upheld, the

implementation of the CWA may result in inconsistencies

with interstate compacts allocating water quantity,

prohibitions on economic activity in upstream states that

would result in impermissible burdens on_ interstate

commerce, and chaos in the water quality planning process.

For these reasons, the State of Colorado has a

compelling interest in the issues presented by this case and

respectfully urges this Court to reverse the decision of the

Tenth Circuit.

SUMMARY OF THE ARGUMENT

The Clean Water Act does not contemplate that states

will resolve basic issues related to interstate water quality in

the context of an individual discharge permit, but rather

through interstate agreements and compacts involving all

affecced and interested states. The CWA directs the

Administrator of EPA and the states to work cooperatively

to resolve interstate issues, which could include numeric

standards, classifications, waste land allocations and regional

wastewater treatment planning, among others.

The Tenth Circuit erred by determining that EPA has

no discretion in how downstream state water quality

standards are implemented in an upstream discharge

permit, and by substituting its interpretation and

implementation of the Oklahoma water quality standards

for that of EPA. The CWA is designed to permit states to

determine the beneficial uses of water within their

boundaries and to apply standards which protect such uses.*

These water quality standards are reviewed by EPA against

the goals and requirements of the CWA, and if consistent

with the federal act, are approved by EPA.’ When EPA,

or a State implementing an EPA-approved permit program,

considers issuing or renewing a discharge permit, it is these

state-determined and EPA-approved standards which must

be met.°

The statute provides a mechanism by which another

State may be heard as to its concerns with a proposed

permit.’ Congress has established EPA as the arbiter in

determining whether a downstream state’s concerns are

valid and compelling, in those instances where compliance

with water quality standards is raised in the context of a

specific permit. Where, as in the case at hand, EPA

determines after proper process and consideration that no

adverse impact will result to the downstream state, the

Court may not substitute its judgment for that of EPA.‘

Section 402 is not intended as the forum for resolution of

broader water quality issues, nor as an opportunity for one

State to exercise unilateral veto over all discharges in an

upstream state.

‘ CWA §§ 101(g), 303.

> CWA § 303.

* CWA § 401(a)(1).

” CWA §§ 402(b), 401(a)(2).

* EDF v. Costle, 657 F.2d 275 (D.C. Cir. 1981).

4

Further, the Tenth Circuit’s judicial expansion of the

Statutory mandate of the CWA to allow unilateral power of

one state over the granting of any and all permits in

another state, as it has ruled here, has the potential to

foreclose ajl future development of public and private

facilities in upstream states, an impermissible interference

with interstate commerce. Such a result is not an accurate

reflection of either the language of the CWA or the intent

of Congress.

The State of Colorado concurs with the arguments

made by Amici States Nevada, et al., in their brief.

Colorado believes certain additional arguments have not

been articulated for the Court by other parties and will

focus its brief on those issues.

ARGUMENT

I. THE CLEAN WATER ACT ENCOURAGES AND

MANDATES COOPERATION, NOT

CONFRONTATION, AMONG THE _ STATES

REGARDING MATTERS OF INTERSTATE WATER

QUALITY.

Section 101 (b) of the CWA states the policy of

Congress to "recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce, and

eliminate pollution, to plan the development and use

(including restoration, preservation, and enhancement) of

land and water resources, and to consult with the

Administrator in the exercise of his authority under this

Chapter... ."

Section 101 (g) of the CWA further provides that "[i]t

is the policy of Congress that the authority of each state to

allocate quantities of water within its jurisdiction shall not

be superseded, abrogated or otherwise impaired by this

Chapter. It is the further policy of Congress that nothing

in this Chapter shall be construed to supersede or abrogate

rights to water which have been established by any

State....”

It is clear from these sections that Congress intended

for the states to exercise responsibility for achieving the

goals of the Act, and that the water quality goals of the Act

are not to abrogate or impair the water quantity framework

of the states, including the interstate compacts approved by

Congress which control the allocation of a portion of the

water which originates in the State of Colorado.

That Congress did not intend the adversarial position

among upstream and downstream states which will result

from the Tenth Circuit ruling is clear from another section

of the CWA. Section 103 provides as follows:

Sec. 103. (a) The Administrator shall encourage

cooperative activities by the States for the

prevention, reduction, and elimination of

pollution, encourage the enactment of improved

and, so far as practicable, uniform State laws

relating to the prevention, reduction, and

elimination of pollution; and encourage compacts

between States for the prevention and contro! of

pollution.

(b) The consent of the Congress is hereby given

to two or more States to negotiate and enter

6

into agreements or compacts, not in conflict with

any law or treaty of the United States, for

(1) cooperative effort and mutual assistance for

the prevention and control of pollution and the

enforcement of their respective laws relating

thereto, and (2) the establishment of such

agencies, joint or otherwise, as they may deem

desirable for making effective such agreements

and compacts. No such agreement or compact

shall be binding or obligatory upon any State a

party thereto unless and until it has been

approved by the Congress.

(Emphasis added)

Thus, the mandate of Congress is not for states to use

the discharge permitting process as an arena for resolving

water quality disagreements and not to permit a

downstream state to prohibit upstream development, but to

pursue such water quality issues through interstate

compacts, the negotiation of which can include all affected

and interested states on a river system.

The use of interstate compacts has long been favored

over protracted litigation among sovereign states. As this

Court said in Colorado v. Kansas, 320 U.S. 383, 392 (1943),

dealing with the apportionment of the use of water quantity

by each state:

The reason for judicial caution in adjudicating

the relative rights of states in such cases is that,

while we have jurisdiction of such disputes, they

involve the interests of quasi-sovereigns, present

complicated and delicate questions, and, due to

the possibility of future change of conditions,

5

necessitate expert administration rather than

judicial imposition of a hard and fast rule. Such

controversies may appropriately be composed by

negotiation and agreement, pursuant to the

compact clause of the Federal constitution. We

say of this case, as the court has said of

interstate differences of like nature, that such

mutual accommodation and agreement should, if

possible, be the medium of settlement, instead of

invocation of our adjudicatory power.

In the various Western water quantity apportionment

cases before this Court,’ the Court has recognized a

preference for resolving interstate water allocation matters

by agreement or compact whenever possible to avoid time-

consuming litigation. As this Court is well aware from

these cases, such litigation among two or more states over

technical matters can require many years of evidentiary

trial. The allocation of water quality assimilative capacity

is very similar to allocation of water quantity in that it

requires a basin-wide cooperative and equitable distribution

to ensure that each state maintains a reasonable balance of

power and equitable use of common natural resources.

Judicial economy is not served by invoking this Court’s

original jurisdiction to resolve highly technical matters which

can only be addressed by cooperative compromise. Many

water quantity compacts have been entered into voluntarily

in lieu of protracted original jurisdiction litigation.

However, in the water quality area, the states are also

* See, e.g, Colorado v. Kansas, 320 U.S. 383 (1943); Nebraska v.

Wyoming, 325 U.S. 589 (1945); Arizona v. California, 373 U.S. 546

(1963).

subject to Congressional direction” to cooperate in resolving

disagreements which has never been present in the water

quantity disputes.

Without the equitable allocation of water quantities

among states on the various Western rivers, accomplished

by compact or judicial decree, each state. downstream of

Colorado would have been compelled to participate in the

litigation of each and every water rights application filed in

Colorado on a given river system. The burden this would

have placed on the downstream states, as well as on the

individual water rights applicants and the State of Colorado,

is unfathomable. The situation presented by the Tenth

Circuit’s ruling is likewise unfathomable. Just as water

quantity has been addressed by multi-state agreements and

compacts, so must the broad issues of water quality be

determined rather than by piecemeal process, permit by

permit, and rulemaking by rulemaking.

That such cooperation and collaboration can occur

and is a suitable way to deal with water quality issues

affecting all states in a stream basin is clear from the

results of the Colorado River Basin salinity agreements.

The history of the issue and its resolution is well

documented by the United States Court of Appeals for the

District of Columbia Circuit in EDF v. Costle, 657 F.2d 275

(1981).

Without reiterating all of the Court of Appeals’

discussion in that case, suffice it to say that salinity as an

interstate pollution issue would be virtually impossible to

CWA § 103.

resolve without the basin-wide approach adopted by the

seven basin states and embraced by Congress in the

Colorado River Basin Salinity Control Act." The

alternative to this basin-wide approach under the Tenth

Circuit’s scheme of things would be for each state

downstream of Colorado to protest, litigate and prohibit all

discharges and water diversions in the name of complying

with state and federal water quality standards for salinity.

The special significance of § 103(b) of the CWA

should not be overlooked. Article I, Section 10, Clause 3

of the United States Constitution prohibits a state from

entering into any agreement or compact with one or more

other states without consent from Congress.”

Section 103(b) provides express consent from Congress for

the states to proceed by compact to resolve interstate water

quality issues and demonstrates the recognition of Congress

that such matters are not otherwise appropriately resolved

within the statute, and need to be addressed in a broader

forum than the statutory permitting process.

Il. THE CWA DOES NOT GIVE DOWNSTREAM

STATES ABSOLUTE VETO POWER OVER

UPSTREAM DISCHARGES

The Tenth Circuit has strained reasonable

interpretation of the CWA to arrive at what is essentially a

" Colorado River Basin Salinity Control Act, 43 U.S.C. §§ 1571-

1599.

" *No state shall, without consent of Congress . . . enter into any

Agreement or Compact with another State... ." U.S. Const. art. I,

§ 10, cl. 3.

10

veto power by downstream states over discharges in

upstream states. Neither the statutory language nor the

intent of Congress support this result, and in fact, in light

of § 103 which favors negotiation of interstate compacts,

this result upsets and disturbs the balance of power

established by Congress in water quality matters.

By ruling that EPA has no discretion in applying the

water quality standards of a downstream state to an

upstream state discharge permit, and by holding that

application of the downstream water quality standards, such

as the antidegradation standard of Oklahoma, prevents

issuance of any discharge permit, the Tenth Circuit has

ignored the remedy selected by Congress to deal with

interstate water quality issues and has instead attempted to

vest contro! of upstream development and economic activity

with the downstream state. Such a result ignores the

fundamental premise of the union of sovereign states and

the respective equality of each state within that union.

To reach this result the Tenth Circuit has discarded

the well reasoned logic enunciated by this Court in

International Paper Co. v. Ouellette, 479 U.S. 481 (1987),

wherein the Court determined that it is not proper or

permissible for a state to impose its state water quality

standards upon a discharger of another state. The Tenth

Circuit did this in part by determining that state water

quality standards, once approved by EPA, become federal

law or regulation. This logic is faulty for several reasons.

First, virtually all state water quality standards, which

are implemented through discharge permits as effluent

limitations, are approved by EPA. State standards are to

be automatically approved by EPA, pursuant to § 303(c), if

11

they meet the federal CWA standards. Moreover, § 510

provides that EPA must approve state standards that are

more stringent than the federal standards. Thus, any

downstream state can adopt an antidegradation or other

no-discharge water quality standard more stringent than

required by the CWA, which must be approved by EPA

without discretion and without consideration or balancing of

the impact to upstream states.

The Tenth Circuit has also missed the distinction

between EPA "approved" and EPA "promulgated" water

quality standards. Simple approval by EPA does not give

State standards any federal status.” When EPA

promulgates standards or regulations for national

application, it is subject to certain procedural requirements,

including publishing notice of the proposed regulation for

public review and comment." If these procedures ensuring

due process to affected persons and states are not followed,

the regulation is subject to judicial reversal.” State

promulgated standards are not subject to the same national

notice and comment requirements, thus there is no due

process afforded interested and affected persons or states

outside the borders of the promulgating state. Neither is

" Decision of the General Counsel No. 58 (EPA, March 29, 1977),

Memorandum: Revision of Water Quality Standards and Implementation

Plans Under § 303 of the Federal Water Pollution Control Act; United

States Steel Corp. v. Train, 556 F.2d 822, 837 (7th Cir.) ("the standards

are state, not federal regulations"); Homestake Mining Co. v. EPA,

477 F. Supp. 1279, 1284 (D.S.D. 1979).

Administrative Procedure Act, 5 U.S.C. § 553.

' Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402

(1971).

12

the EPA approval process contemplated by §§ 303(c) and

510 subject to the procedural and substantive due process

requirements otherwise imposed upon federal regulations.

In short, the Tenth Circuit has tried to accomplish, by

declaring state water quality standards approved by EPA to

have the force and effect of federal regulation, what EPA

could not have done itself in promulgating federal

standards.

As a practical matter, should the Court uphold the

Tenth Circuit ruling, Colorado and its permittees would

have no choice but to become involved in every standard

setting proceeding in each of the states which are

downstream to Colorado. This is impractical and

unwarranted. Colorado has some 900 discharge permits,

including approximately 400 domestic facilities and 500

industrial facilities. To suggest that each of them

participate in every rulemaking proceeding of every

downstream state to ensure fair and accurate water quality

standards in each of those states is ludicrous. Five

downstream states directly border Colorado and another 13

downstream states could have equally significant impacts on

Colorado water quality standards and discharge permits. In

addition, a presently undetermined number of Indian tribes

are expected to assert authority under the CWA to

promulgate water quality standards with the same force and

effect as state water quality standards.”

Consider as well, that if one or more downstream

state(s) objected to even ten percent of these permits, so

that each of those ninety had to be litigated in the federal

* CWA § 518(e).

13

coUMs, multiplied by the number of upstream/downstream

combinations, these matters would hopelessly clog the

federal judicial calendar.

The fact that these examples are so ludicrous explains

why Congress did not have in mind that states and

permittees should have to participate in water quality

Standards setting in each state, or that constant litigation

under § 402 of the CWA _ was the solution to interstate

water quality matters.

Section 402 of the CWA clearly sets forth the

procedure for issuance of discharge permits within each

State. An opportunity for comment by another state is

accorded. Once a decision to issue a permit is made, the

Statute provides that EPA is the final arbiter of whether the

permit should issue, based upon a consideration of whether

actual injury will result.

Matters such as waste load allocation for an interstate

river where the maximum pollutant level exists are not

provided for in § 303(d) but can be addressed in the

context of an interstate compact. This is how EPA should

have directed the controversy over the Fayetteville permit

under the directive to EPA in § 103.

Section 103(a) requires EPA to encourage cooperation

among the states and requires EPA to suggest resolution of

problems such as those raised by Oklahoma by interstate

compact. The obvious intent of Congress is that the

interstate compact process is the only reasonable means of

bringing together all the interested and potentially affected

States On a stream or river system to allocate waste loads,

14

just as they allocate water quantity use allocations through

such compacts.

i

Ill. INTERSTATE COMMERCE MAY NOT BE

PROHIBITED BY STATE WATER QUALITY

STANDARDS.

To follow the Tenth Circuit logic means that if any

one or all of the states downstream from Colorado were to

promulgate an antidegradation standard such as that of

Oklahoma, Colorado would not be able to permit any more

discharges in the state, thus placing the state in an

untenable economic posture. Colorado believes this result

constitutes an impermissible burden on _ interstate

commerce.

The "dormant" commerce clause” has been used in

discussions of state limitations on the transport of solid and

hazardous wastes. This Court in Philadelphia v. New Jersey,

437 U.S. 617 (1977), recognized that the need for national

regulation and state cooperation in resolving interstate

differences regarding the disposal of solid and hazardous

wastes outweighed state interests in limiting acceptance of

such wastes.

" The implied limitation on state power recognized in the

Commerce Clause has been referred to as the "dormant" or "negative"

component of Congress’s commerce power. See generally Huron

Portland Cement Co. v. Detroit, 406 U.S. 170 (1960); Browning-Ferris

Inc. v. Anne Arundel Caunty, 292 Md. 136, 438 A.2d 269, 3 ERC 1712

(Md. Ct. App. 1980).

15

The Commerce Clause, Article I, Section 8, Clause 3

of the United States Constitution, empowers Congress "[t]o

regulate Commerce . . . among the several states."

In terms, the Clause is a grant of authority to

Congress, not an explicit limitation on the power

of the states. In a long line of cases stretching

back to the early days of the republic, however

. . . [the United States Supreme Court has]

recognized that the Commerce Clause contains

an implied limitation on the power of the States

to interfere with or impose burdens on interstate

commerce.

Westem & So. Life Ins. Co. v. State Bd. of Equalization,

451 U.S. 648, 652 (1981). As this Court has recognized,

the scope of Congress’s commerce power is vast."

Indeed, in the absence of congressional action, the

dormant C»mmerce Clause may be invoked by courts to

determine whether state regulations impermissibly burden

interstate commerce.”

As early as the case of Gibbons v. Ogden, 22 US. 1

(1824), this Court held that “the power to regulate

commerce comprehends the control . . . of all navigable

waters and includes . . . the power to keep them open and

free from any obstructions."

'* See Katzenbach v. McClung, 379 U.S. 294 (1964); Heart of Atlanta

Motel v. United States, 379 U.S. 241 (1964); Wickard v. Filburn, 317 U.S.

111 (1942).

"° Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

16

The power to regulate commerce comprehends

the control for that purpose, and to the extent

necessary, of all the navigable rivers of the

United States which are accessible from a state

other than in which they lie. For this purpose,

they are the public property of the nation, and

subject to all the requisite legislation by

Congress. This necessarily includes the power to

keep them open and free from any obstruction

from their navigation interposed by the states, or

otherwise; to remove obstructions where they

exist; and to provide, by such sanction as is

deemed proper, against the incurrence of the

evil, and for punishment of the offenders.

United States v. Chandler-Dunbar Water Power Co., 229 U.S.

53, 59 (1913).”

In the Clean Water Act, however, Congress has

spoken clearly on the subject of maintaining quality of this

country’s waters, and has provided direction in § 103 for

the resolution of interstate water quality issues. By acting

within the scope of its commerce power to regulate the

quality of waters of the United States, it has superseded all

state or local action that conflicts with it, including state

regulations which are inconsistent with or discourage

conduct the CWA is designed to foster.

® See also South Carolina v. Georgia, 93 U.S. 4 (1876), Wisconsin

v. Duluth, 96 U.S. 379 (1877); United States v. Willow River Power Co.,

324 U.S. 499 (1945); First lowa Hydro-Elec. Co-Op v. Federal Power

Comm., 328 U.S. 152 (1946); Arizona v. California, 373 U.S. 546 (1963);

Sporhase v. Nebraska Ex. Rel. Douglas, 458 U.S. 941 (1982).

17

What could create more of an impermissible burden

on interstate commerce than for a downstream state to

promulgate and impose water quality standards which ban

all new discharges upstream?

CONCLUSION

The State of Colorado urges this Court to carefully

consider the broad and untenable ramifications which the

Tenth Circuit’s ruling has on the implementation of the

goals and concepts of the Clean Water Act throughout this

nation. The State of Colorado respectfully submits that this

Court must reverse the decision of the Tenth Circuit Court

of Appeals.

Respectfully submitted,

MARTHA PHILLIPS ALLBRIGHT GALE A. NORTON*

Attorney General

Bradley, Campbell, Carney

& Madsen RAYMOND T. SLAUGHTER

Professional Corporation Chief Deputy Attorney General

1717 Washington Avenue

Golden, CO 80401 TIMOTHY M. TYMKOVICH

(303) 278-3300 Solicitor General

MARTHA E. RUDOLPH

Assistant Attorney General

Natural Resources Section

Attorneys for Petitioner

110 Sixteenth Street, 10th Floor

Denver, Colorado 80202

Telephone: (303) 620-4700

*Counsel of Record

13

4

VATE

APPENDIX A

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