# Amicus Curiae Brief — Arkansas v. Oklahoma

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 946

## Text

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

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0080%3A20. Public record. Not legal advice.