Amicus Curiae Brief — Arkansas v. Oklahoma

Supreme Court of the United State

OCTOBER TERM, 1991

STATE OF ARKANSAS, et al.,

in Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents.

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

V.

STATE OF OKLAHOMA, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE CHEROKEE NATION OF OKLAHOMA

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

JIM WILCOXEN __ RANDALL S. ATTAR-ABATE *

General Counsel for Special Counsel to

Cherokee Nation of Cherokee Nation of Oklahoma

Oklahoma

WILCOXEN & WILCOXEN VERMONT LAW SCHOOL

112 North Fifth Street P.O. Box 96

P.O. Box 357 Chelsea Street

Muskogee, OK 74402 South Royalton, VT 05068

(918) 683-6696 (802) 763-8303

July 22, 1991 * Counsel of Record

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

FCT AVAILABLE CO

TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICUS CURIAE..

SUMMARY OF ARGUMENT .....000.. ;

ARGUMENT ......................... Seo ARISE RP Soro vee ee LRT CORR

I.

Il.

THE TENTH CIRCUIT PROPERLY DETER-

MINED THAT THE TERMS OF EFFLUENT

DISCHARGE PERMITS IN UPSTREAM

STATES MUST COMPLY WITH THE WATER

QUALITY STANDARDS OF ALL AFFECTED

DOWNSTREAM STATES TO FULFILL THE

RIGOROUS POLLUTION CONTROL MAN-

DATE UNDER THE CLEAN WATER ACT

A. The Plain Language Of The Clean Water Act

Provisions Pertaining To Water Quality

Standards And Effluent Discharge Limita-

tions Evinces A Strict Regulatory System

Which Demands Vigilant Compliance To En-

sure Ongoing Improvement In The Quality

Of The Nation’s Waters 0...

B. The Legislative History Of The Act Confirms

Congress’ Intent To Require Upstream

States To Comply With The Water Quality

Standards Of Downstream States 0... .

THE TENTH CIRCUIT’S DECISION IS CON-

SISTENT WITH AND FURTHERS CON-

GRESS’ UNIFORM FEDERAL REGULATORY

SCHEME UNDER THE CLEAN WATER ACT

IN WHICH CONGRESS INTENDED THAT

STATES REGULATE IN A MANNER WHICH

OPTIMIZES WATER POLLUTION REDUC-

TION AND PREVENTION, IRRESPECTIVE

OF GEO-POLITICAL BOUNDARIES ................

Page

to

11

ii

TABLE OF CONTENTS—Continued

’ Page

A. The Plain Laguge Of The Clean Water Act

Provisions Pertaining To Federal And State

Responsibilities Under The Act Demonstrates

The Primacy Of The Federal Role Through

The Act’s System Of Uniform Federal Over-

sight, Whereby Congress Sought To Ensure

That The States Adequately Fulfill The Act’s

Federal Pollution Reduction Objective _........ 13

B. Allowing Upstream States To Issue Effluent

Discharge Permits Which Do Not Strictly

Comply With The Water Quality Standards

Of All Affected Downstream States Would

Foster An Antagonistic And Piecemeal Reg-

ulatory System In Contravention Of The

Act’s Cooperative And Uniform Pollution

Reduction Structure ............. ....... cnnsiaieadealemaaial 15

ee Fe 19

iii

TABLE OF AUTHORITIES

CASES Page

Environmental Protection Agency v. State Water

Resources Control Bd., 426 U.S. 200 (1976)... 6

Lake Erie Alliance for the Protection of the

Coastal Corridor v. United States Army Corps

of Engineers, 526 F. Supp. 1063 (W.D. Pa.

1981), aff'd without opinion, 707 F.2d 1392 (3d

Cir. 1983), cert. denied, 404 U.S. 915 (1983)..—ss«s7,8

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

(1987) .............. Te seuencere 15

Montgomery Envtl. Coalition v. Costle, 646 F.2d

Ee 14

Oklahoma v. Environmental Protection Agency,

908 F.2d 595 (10th Cir. 1990) 000... passim

Sierra Club v. Union Oil Co., 813 F.2d 1480 (9th

Cir. 1987), judgment vacated, 485 U.S. 931

(1988)... SE -

United States v. Puerto Rico, 721 F.2d 832 ( ist

SS ~

United States v. Oregon, 366 U.S. 643 (1961) 9

STATUTES AND REGULATIONS

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

SSS passim

§ 101 (a), 33 U.S.C. § 1251 (a) A _5, 6,11

§ 101 (a) (1), 33 U.S.C. § 1251 (a) (1)... 3

§ 101 (b), 33 U.S.C. § 1251(b) am _ 18,15

= 160, Se Use. © BBeS....................................... J, 15

§ 108(a), 33 U.S.C. § 1253 (a)... 16

ER 5

§ 301 (b) (1) (C), 33 U.S.C. § 1311 (b) (1) (C) 6

§ 401, $8 U.S.C. § 1841 ...................................... 7

§ 401 (a) (1), 33 U.S.C. § 1341 (a) (1)... tS 7

§ 401 (a) (2), 33 U.S.C. § 1341 (a) (2) 7

a 5,13

§ 402 (a) (2), 33 U.S.C. § 1342(a) (2)... 6

§ 402 (b), 33 U.S.C. § 1342(b)... 13

§ 402(b) (1) (A), 33 U.S.C. § 1842(b) (1) (A). 6

§ 402 (c) (3), 33 U.S.C. § 1342 (ce) (3)... " 14

iv

TABLE OF AUTHORITIES—Continued

Page

§ 402 (d) (2), 33 U.S.C. § 13842(d) (2) ............... 14

§ 505 (h), 38 U.S.C. § 13865(h)........- 16

Bae ei OO I ce ecccecnsccsecccnecacenteccmeenenees 13

eee 7

40 C.F.R. § 122.41(n) (1990) 0... oi ede x

FEDERAL REGISTER

49 Fed. Reg. 37,998 (1984)... ~

49 Fed. Reg. 38,038 (1984) ................--..eeeee eee. x

LEGISLATIVE MATERIALS

Water Pollution Control Legislation, 1972: Hear-

ings on H.R. 11896 before the House Comm. on

Public Works, 92d Cong., Ist Sess. 290 (state-

ment of William D. Ruckelshaus, Administrator,

EPA), reprinted in 2 Congressional Research

Service of the Library of Congress, A Legisla-

tive History of the Water Pollution Control Act

Amendments of 1972 1188 (Comm. Print 1973)

(herinafter 1927 Leg. Hist.) ............................... 9,10

1 1972 Leg. Hist. 517 (House debate on H. R.

11896) (statement of Rep. Harrington) ............ 17

2 1972 Leg. Hist. 1495 (Rep. of Sen. Comm. on

9

S. Rep. No. 414, 92d Cong., 2d Sess., reprinted in

1972 U.S. Code Cong. & Admin. News 3668,

TERE AL TORIES eral O OEE se be ED Sy CR 9,18

S. Rep. No. 370, 95th Cong., 1st Sess., reprinted in

1977 U.S. Code Cong. & Admin. News 4326,

4398 ....... SERAAS SS ieee UE EIS a 15

118 Cong. Rec. 33,755 ( 1972) (statement of Rep.

Harsha), reprinted in 1 1972 Leg. Hist. 246. 10

OTHER AUTHORITIES

Brief for Respondent, Oklahoma v. Environmental

Protection Agency, 908 F.2d 595 (i0th Cir.

1990) (Nos, 89-9503, 89-9507, and 89-9516). passim

Vv

TABLE OF AUTHORITIES—Continued

Collins, The Dilemma of the Downstream State:

The Untimely Demise of Federal Common Law

Nuisance, 11 B.C. Envtl. Aff. L. Rev. 297

CITI ich einihicistinscaiinlisiiceimaadiiineiaastietaiiademtideepnaapmeimadtie

Gould, Regulation of Point Source Pollution under

the Federal Water Pollution Control Act, in

Water Quality Administration 87 (B. Lamb ed.

RES eee Snes a nese oe ee OO

In the Matter of NPDES Permit for the City of

Fayetteville, Ark., NPDES No. AR0020010, Or-

der on Motions (1987) (Yost, ALJ)... fase

Natural Resources Defense Council, A Citizens’

Campaign for Clean Water, 9 Newsline 3 (July

a eelsitte

Van Putten & Jackson, The Dilution of the Clean

Water Act, 19 J.L. Reform 863 (1986) _... Fetes

Page

12, 18

12

ee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1262

STATE OF ARKANSAS, et al.,

. Petitioners,

STATE OF OKLAHOMA, et al.,

Respondents.

No. 90-1266

ENVIRONMENTAL PROTECTION AGENCY,

. Petitioner,

STATE OF OKLAHOMA, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE CHEROKEE NATION OF OKLAHOMA

AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

The Cherokee Nation of Oklahoma respectfully submits

this brief as amicus curiae in support of respondents

State of Oklahoma, et al., and urges this Court to affirm

the decision of the United States Court of Appeals for

the Tenth Circuit in Oklahoma v. Environmental Protec-

tion Agency, 908 F.2d 595 (10th Cir. 1990).

2

INTEREST OF THE AMICUS CURIAE

The Cherokee Nation of Oklahoma is America’s sec-

ond largest Indian Tribe. Many of its 125,000 members

have lived in northeastern Oklahoma for over 150 years.

The Illinois River in Oklahoma runs through this portion

of the state.

Many tribal members use the river today for fishing

and recreational purposes. The Tribe is committed to

protection and preservation of the environment, including

maintenance of the highest water quality of the Illinois

River, for present and future generations.

SUMMARY OF ARGUMENT

The decision of the Tenth Circuit in this case must be

affirmed to fully acknowledge and fulfill the rigorous and

uniform federal water pollution enforcement structure

embodied in the Clean Water Act. The Tenth Circuit

properly determined that the terms of upstream effluent

discharge permits must ensure compliance with the water

quality standards of all affected downstream states.

The “zero discharge” goal embodied in the Clean Water

Act is an organizing paradigm around which the Act’s

enforcement is structured. Through this policy objective,

Congress envisioned ongoing improvement in the quality

of the nation’s water through the delicate and critical

interplay between effluent discharge limitations and

water quality standards. The plain language, legislative

history and regulations pertaining to the effiuent dis-

charge and water quality standard provisions confirm the

propriety of the Tenth Circuit’s interpretation of the

Act and decision in this case.

Congress did not intend the enforcement policies and

mechanisms under the Act to operate in isolation of or,

worse yet, in contradition to one another. A reversal of

the Tenth Circuit’s decision would, however, produce re-

sults at odds with the goals and enforcement structure

3

of the Act. The Clean Water Act’s mandate to ensure a

uniform and rigorous system of pollution control dove-

tails harmoniousiy under Oklahoma’s interpretation of

the Act. A decision in favor of Arkansas in this case

would completely undermine the broad policy goals and

enforcement structure of the Act and would be tant-

amount to ignoring Congress’ demonstrated intent to es-

tablish a rigorous and uniform federal system of water

pollution control and reduction. The Clean Water Act’s

noble and necessary objective must not be reduced to

empty rhetoric.

ARGUMENT

I. THE TENTH CIRCUIT PROPERLY DETERMINED

THAT THE TERMS OF EFFLUENT DISCHARGE

PERMITS IN UPSTREAM STATES MUST COMPLY

WITH THE WATER QUALITY STANDARDS OF

ALL AFFECTED DOWNSTREAM STATES TO FUL-

FILL THE RIGOROUS POLLUTION CONTROL

MANDATE OF THE CLEAN WATER ACT

Our Nation’s waters are in crisis. Congress estab-

lished a goal that by 1985, we would achieve zero

discharge of all pollutants into our rivers, lakes, and

coastal waters.' Yet, billions of pounds of toxic and

other pollutants continue to reach the nation’s waters

each year. The result of this pollution-contaminated

seafood, beach closings, unsafe drinking water, dis-

eased and disappearing wildlife—threatens our public

health and our economy.

Natural Resources Defense Council, A Citizens’ Cam-

paign for Clean Water, 9 Newsline 3 (July 1991) (em-

phasis in original).

This case presents an important opportunity for this

Court to fully acknowledge and fulfill the rigorous pollu-

tion reduction objective of the Clean Water Act. This

Court can do so by upholding the decision of the Tenth

Circuit in this matter. More specifically, this Court can

1See Clean Water Act §101(a) (1), 38 U.S.C, § 1251(a)(1),

4

send a clear message to the states that the zero discharge

policy and correspondingly uniform federal enforcement

structure of the Clean Water Act unequivocally mandate

that effluent discharge permits in upstream states strictly

comply with the water quality standards of all affected

downstream states.

In considering the arguments in this case, it is impor-

tant to note that this case does not turn upon issues re-

lating to traditional notions of federalism, state sov-

ereignty, or interstate commerce. As properly framed by

the Tenth Circuit in the proceedings below, this case pre-

sents a narrow question of statutory interpretation:

|W |hether federal iaw embodied in the Clean Water

Act requires a discharge permit to ensure compliance

with the applicable water quality standards of all af-

fected states. Traditional concepts of state powers

and the § 1370 savings clause cannot provide the an-

swer to that question. We must look to the Clean

Water Act as a whole.

Oklahoma v. Environmental Protection Agency (herein-

after “Okla. v. EPA”), 908 F.2d 595, 606 n.9 (10th

Cir. 1990) (emphasis in original).

Indeed, upon examination of the Clean Water Act as a

whole, the plain language, legislative history, and regu-

lations of the water quality and effluent discharge permit

provisions of the Act demonstrate the wisdom and nec-

essity of the Tenth Circuit’s decision in this case.

A. The Plain Language Of The Clean Water Act Pro-

visions Pertaining To Water Quality Standards And

Effluent Discharge Limitations Evinces A Strict

Regulatory System Which Demands Vigilant Com-

pliance To Ensure Ongoing Improvement In The

Quality Of The Nation’s Waters

In enacting the i972 and 1977 amendments to the

Federal Water Pollution Control Act (hereinafter “Clean

Water Act” or “CWA”), Congress envisioned and estab-

5

lished an aggressive regulatory program to drastically

reduce and ultimately eliminate the discharge of pollu-

tants into the waters of the United States. Rather than

assessing the relative costs and benefits of water pollu-

tion control, the Clean Water Act has recognized and

mandated that clean water must be considered a necessary

and worthwhile goal in itself. See Gould, Regulation of

Point Source Pollution under the Federal Water Pollu-

tion Control Act, in Water Quality Administration 87

(B. Lamb ed. 1980).

An examination of the operative enforcement mecha-

nisms under the Clean Water Act supports the Tenth Cir-

cuit’s interpretation of the Act and its decision in this

case. In section 10l‘a) of the Act, Congress declared

that its guiding objective in the administration of the

Act’s provisions is to “restore and maintain the chem-

ical, physical and biological integrity of the Nation’s

waters.” 33 U.S.C. §125l(a). In accordance with this

policy objective, Congress further declared in section

301(a) that the discharge of any pollutant by any per-

son is unlawful unless pursuant to a permit under the

provisions of the Act. 33 U.S.C. $1311(a). Pursuant

to the directive embodied in section 301(a), Congress es-

tablished a strict federal regulatory system which em-

ploys a delicate interplay between federal-state water

quality standards and source-by-source, technology-based

effluent discharge restrictions (NPDES permits) to pre-

vent the degradation of the nation’s waters. 33 U.S.C.

§§ 1312, 1313; 1342. All of the aforementioned provi-

sions underscore Congress’ intent to establish a more

rigorous and comprehensive scheme of federal water pol-

lution control and reduction in the Clean Water Act.

Several provisions of the CWA relate more directly to

the interstate water pollution issue at stake in this case

and its connection with the enforcement structure and

pollution reduction goals of the Act. Specifically, sections

301 and 402, when read together, mandate that any efflu-

6

ent discharge (NPDES) permit in an upstream state

must ensure compliance with the water quality standards

of all affected downstream states. Section 301, which

prohibits the discharge of any pollutant except pursuant

to the section 402 or section 404 permit requirements,

provides in section 301(b)(1)(C):

in order to carry out the objective of this chapter

li.e., to “restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters,” 33

U.S.C. § 1251] there shall be achieved . . . not later

than July 1, 1977, any more stringent limitation, in-

cluding those necessary to meet water quality stand-

ards, .. . established pursuant to any state law or

regulations (under authority preserved by section

1370 of this title) .. . or required to implement any

applicable water quality standard established pur-

suant to this chapter. |

33 U.S.C. §1311(b)(1)(C), incorporated in Okla. v.

EPA, 908 F.2d at 604-05 (emphasis added), citing Brief

for Respondent at 16, Oklahoma v. Environmental Pro-

tection Agency, 908 F.2d 595 (10th Cir. 1990) (Nos. 89-

9503, 89-9507, and 89-9516) (hereinafter “EPA Brief’’).

In conjunction with section 301, section 402 further com-

mands that “any NPDES permits issued under the Act

contain terms adequate to ensure compliance with all re-

quirements of section 301.” Sections 402(a)(2) and

(b) (1) (A); 38 U.S.C. $$ 1842(a) (2) and (b)(1)(A);

EPA Brief at 16.2 In addition to the mandatory language

of sections 301 and 402, the EPA regulations issued pur-

suant to section 402 further confirm Oklahoma’s interpre-

tation of the interplay between water quality standards

and NPDES permits. ‘No permit may be issued: .. . (d)

When the imposition of conditions cannot insure compli-

2“Thus, these sections are not merely timing provisions, as Ar-

kansas asserts (citation omitted), but establish fundamental re-

quirements of the Act.” Id. See, e.g., Environmental Protection

Agency v. State Water Resources Bd., 426 U.S. 200, 205 n.12 (1976).

7

ance with the applicable water quality requirements of all

affected States.” 40 C.F.R. § 122.4(d) (1990) (emphasis

added).

Section 401 provides additional support for Oklahoma’s

position. Section 401(a) establishes that no permit may

be granted for federal government discharge activities

“until a certification has been obtained from the state in

which the discharge originates finding that the discharge

will comply with, among other things, the |state’s] section

301 water quality requirements.” Section 401(a) (1), 33

U.S.C. $ 1341(a)(1); EPA Brief at 17. More impor-

tantly, Congress demonstrated its concern for the water

quality of potentially affected downstream states in these

circumstances by providing a notice requirement in sec-

tion 401(a) (2)* “to ensure that such permits also comply

with the water quality standards of non-source, non-

certifying states.” Jd. Therefore, consistent with Okla-

homa’s position, “the purpose of the [section 401(a) (2) |

- notice requirement is to enable a state whose water qual-

ities may be’ affected by the proposed federal activity an

opportunity to insure that its standards will be complied

with.” Lake Erie Alliance for the Protection of the

Coastal Corridor v. United States Army Corps of Engi-

neers, 526 F. Supp. 1063, 1075 (W.D. Pa. 1981), aff'd

without opinion, 707 F.2d 1392 (3d Cir. 1983), cert.

3 Section 401(a)(2) provides:

Whenever such a discharge may affect, as determined by the

[EPA) Administrator, the quality of the waters of any other

State, the Administrator .. . shall so notify such other state... .

If... such other State determines that-such discharge will

affect the quality of its waters so as to violate any water re-

quirement in such State, . . . [The licensing and permitting}

agency, based upon the recommendations of such State, .. .

shall condition such license or permit in such a manner as may

be necessary to ensure compliance with applicable water quality

requirements. If the imposition of conditions cannot insure such

compliance such agency shall not issue such license or permit.

33 U.S.C. § 1341(a)(2) (emphasis added ).

8

denied, 464 U.S. 915 (1983); see also United States v.

Puerto Rico, 721 F.2d 832, 833-34 (1st Cir. 1983) (cer-

tification is a “condition precedent to the EPA’s issuance

of a NPDES permit”), incorporated in Okla. v. EPA at

610.

Oklahoma’s position gains further support from EPA’s

upset regulations. Again, the delicate interplay between

technology-based effluent discharge permits and water

quality standards is determinative. In this regard, EPA

has declared that while technology-based effluent limita-

tions may be exceeded under certain narrowly-tailored

circumstances‘, water quality-based standards must be

met at all times. 49 Fed. Reg. 37,998, 38,038 (1984),

quoted in Sierra Club v. Union Oil Co., 813 F.2d 1480,

1489 (9th Cir. 1987), judgment vacated, 485 U.S. 931

(1988). EPA rejected an industry proposal to permit

the assertion of an upset defense for violation of water

quality standards because of the impracticality of having

permittees conduct monitoring on all stream segments that

may be affected to ensure that water quality standards

were not violated. 49 Fed. Reg. at 38,038 (emphasis

added), quoted in Okla. v. EPA at 613. Therefore, as

enunciated in the Tenth Circuit’s decision, EPA’s rejection

of the industry proposal reaffirms the Act’s unequivocal

mandate that the terms of effluent discharge permits in

upstream states must strictly comply with the water qual-

ity standards of all affected downstream states.

B. The Legislative History Of The Act Confirms Con-

gress’ Intent To Require Upstream States To Comply

With The Water Quality Standards Of Downstream

States

It is a well-established principle of statutory construc-

tion that when the meaning of statutory language is clear

on its face, the courts need not resort to legislative history

‘ For instance, failure of pollution control equipment may be suffi-

cient for an industry to successfully assert the defense. See 40

C.F.R. § 122.41(n) (1990).

9

to ascertain congressional intent. See, e.g., United States

v. Oregon, 366 U.S, 643, 648 (1961). Nevertheless, should

this Court find the meaning of the statutory language to

be ambiguous, the legislative history of the applicable

statutory provisions of the CWA in this case reinforces

Congress’ demonstrated intent to require upstream states

to comply with the water quality standards of downstream

states.

In restructuring the Clean Water Act with the 1972

and. _ 1977 amendments to the Act, Congress sought to

rectify the problems it perceived with the efficacy of en-

forcement under the earlier versions of the Act. Con-

gress determined in the CWA that there was a pressing

need for a more aggressive and comprehensive system of

water pollution control.’ “A key reason for Congress’

restructuring of the mechanism for water pollution con-

trol in 1972 was its recognition that ‘water moves in

hydrological cycles and it is essential that discharge of

pollutants be controlled at the source.” EPA Brief at

20 (citing 2 Congressional Research Service of the Li-

brary of Congress, A Legislative History of the Water

Pollution Control Act Amendments of 1972 (hereinafter

1972 Leg. Hist.) 1495 (Comm. Print 1973) (Rep. of Sen.

Comm. on Pub. Works on S. 2770). Accordingly, Con-

gress established a technology-based effiuent discharge

permit system under section 402 to operate in conjunction

with the water quality standard system to ensure more

5“Unlike its predecessor program [FWPCA] which permitted the

discharge of a certain amount of pollutants . . ., this legislation

[CWA] would clearly establish that no one has the right to pollute—

that pollution continues because of technological limits, not because

of any inherent right to use the nation’s waterways for the purpose

of disposing of wastes.” S. Rep. No. 414, 92d Cong., 2d Sess.,

reprinted in 1972 U.S. Code Cong. & Admin. News 3668, 3709. See

also Van Putten & Jackson, The Dilution of the Clean Water Act,

19 J. L. Reform 863, 867 (1986) (“Diluting wastes by discharging

them into the nation’s waters was viewed as an acceptable method

of disposal, at least up to some point of acceptable water quality

degradation”).

10

efficient contro] and reduction of pollution in the nation’s

waters.

During hearing on the 1972 amendments to the Act,

EPA Administrator Ruckelshaus expressed his under-

standing of how the newly-established interaction between

water quality standards and effluent limitations was in-

tended to operate:

Water quality standards need to be strengthened and

expanded to cover all waters—interstate and intra-

state. They also need to be achieved. Effluent limi-

tations are a means for achievement. They should

not become an end in themselves, nor should they be

defined in statutory law solely in terms of the tech-

nology needed to achieve them.

Water Pollution Control Legislation, 1972: Hearings on

H.R. 11896 before the House Comm. on Public Works,

92d Cong., Ist Sess. 290 (statement of William D. Ruck-

elshaus, Administrator, EPA), reprinted in 2 1972 Leg.

Hist. at 1188, incorporated in EPA Brief at 21 n.17.

Ruckelshaus’ views are reinforced by other comments in

the legislative history regarding the duties of dischargers

to meet water quality standards.

If there are a multitude of point sources on a given

stretch of water, the potential of exceeding the water

quality standards exists, even though each point

source is meeting best practicable control technology.

If ‘best practicable control technology’ . . . is inade-

quate to meet the water quality standards, . . . each

point source shall be required to meet effluent limita-

tions which would be consistent with the applicable

water quality standards.

118 Cong. Rec. 33755 (1972) (remarks of Rep. Harsha)

(emphasis added), incorporated in EPA Brief at 22.

Therefore, the legislative history elucidates and con-

firms Oklahoma’s interpretation of the interplay between

effluent limitations and water quality standards. The

11

documented concern in the legislative history regarding

the protection of both intrastate and interstate waters

through simultaneous compliance with effluent discharge

permits and applicable water quality standards is critical.

It reinforces the plain meaning of the applicable CWA

statutory provisions: effluent discharge permits in up-

stream states must assure compliance with the water

quality standards of the source state as well as the water

quality standards of affected downstream states. Any

other reading would directly contravene Congress’ goals

in establishing effluent limitations as a complementary

enforcement tool to ensure ongoing improvement in the

quality of all states’ waters.

Il. THE TENTH CIRCUIT’S DECISION IS CONSIST-

ENT WITH AND FURTHERS CONGRESS’ UNI-

FORM FEDERAL REGULATORY SCHEME UNDER

THE CLEAN WATER ACT IN WHICH CONGRESS

INTENDED THAT STATES REGULATE IN A MAN-

NER WHICH OPTIMIZES WATER POLLUTION

REDUCTION AND PREVENTION, IRRESPECTIVE

OF GEO-POLITICAL BOUNDARIES

In the Clean Water Act’s policy directive under section

101(a) to “restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters,’ Con-

gress’ reference to the “nation’s waters” refers to nothing

more than the sum total of the waters of the fifty states.

33 U.S.C. § 1251(a). As such, if the states do not regu-

late the waters within their borders in a manner consis-

tent with the goals and enforcement structure of the Act,

the quality of the “nation’s waters” is jeopardized.

The Clean Water Act made ineffective state water pol-

lution control a federal concern. Accordingly, Congress

established a more uniform and comprehensive scheme of

federal administration of water pollution control in the

CWA which appropriately divested the states of their

exclusive and largely ineffective regulation of water pol-

12

lution within their borders prior to the 1972 Act.*® To

fulfill the federal water pollution reduction policy under

the Act, Congress envisioned a regulatory system devoid

of geo-political lines’ to enhance the quality of the na-

tion’s waters and remedy the inadequacies of the state-

by-state approach to water pollution control. The rela-

tionship between the federal and state enforcement roles

under the CWA must be considered in light of the fore-

going goals and concerns.

® See Collins, The Dilemma of the Downstream State: The Un-

timely Demise of Federal Common Law Nuisance, 11 B.C. Envtl.

Aff. L. Rev. 295, 336-37 (1984). The first federal legislative stand-

ards for water pollution control were water quality-based standards

in the 1965 amendments to the Federal Water Pollution Control Act.

“(T]he decentralized water scheme in the [1965] FWPCA relied

primarily upon the states to regulate pollution problems. The lack

of nationally uniform water quality standards, the tendency for

states not to actively regulate their own discharges, and the result-

ing interstate competition for industry at the expense of pollution

controls contributed to the continual downgrading of water quality

standards. For all of these reasons, under the FWPCA water quality

standards alone were conceptually unsound to deal with the diverse,

mobile problems of modern pollution.” /d. (citing S. Rep. No. 414,

92d Cong., Ist Sess., reprinted in 1972 U.S. Code Cong. & Admin.

News 3668, 3674).

™“We are dealing here with a federal law which, although recog-

nizing individual states’ rights to control pollution within their

borders, intended to set up a relatively uniform framework for

dealing with water pollution of the waters of the United States

irrespective of geo-political boundaries.” In the Matter of NPDES

Permit for the City of Fayetteville, Ark.. NPDES No. AR0020010,

Order on Motion (1987) (Yost, ALJ) (hereinafter “ALJ Order on

Motions”) at 5 (emphasis added). See also EPA Brief at 23 (“Con-

gress’ concerning regarding uniformity are satisfied where water

quality standards apply to NPDES permits based upon the impact

of a discharge, rather than upon the artificial construct of a state

line”) (emphasis added).

13

A. The Plain Language Of The Clean Water Act Provi-

sions Pertaining To Federal And State Responsi-

bilities Under The Act Demonstrates The Primacy

Of The Federal Role Through The Act’s System Of

Federal Oversight, Whereby Congress Sought To

Ensure That The States Adequately Fulfill The

Act’s Federal Pollution Reduction Objective

Congress has unequivocally acknowledged and sup-

ported the important role that states play in the imple-

mentation and enforcement of the CWA. In section 101

(b) of the Act, Congress declared: “It is the policy of the

Congress to recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce

and eliminate pollution.” The regulatory rights and re-

sponsibilities of states under the Act cannot be under-

stood in isolation of the Act’s enforcement structure and

policy, however. In this regard, Congress established a

uniform regulatory structure whereby the states are en-

titled to regulate under the Act, but only in a manner

which does not undermine or jeopardize the attainment of

the federal water pollution reduction objective under the

Act.

This uniform regulatory system in the CWA requiring

strict federal supervision of state implementation is most

clearly evident in section 402, the NPDES permit sys-

tem. 33 U.S.C. § 1342. Under section 402(b), a state

must first be authorized by EPA to exercise permit issu-

ing authority over sources within its borders. Once ap-

proved, the terms of effluent discharge permits issued pur-

suant to approved state programs must at all times be

consistent with minimum federal requirements. See also

§ 510, 33 U.S.C. § 1370 (“[a] state ... may not adopt or

enforce any . . . effluent limitation . . . less stringent than

the . . . standard of performance under this chapter’).

Thus, the CWA establishes initial and ongoing federal

oversight of approved state programs.

The EPA’s supervisory powers are certainly not limited

to passive oversight of state programs. In fact, Congress

14

authorized the EPA to specifically restrict and/or revoke

states’ authority to administer a state NPDES permit

program. For instance, EPA may revoke a state’s author-

ity to administer a state NPDES program “if the state

fails to administer the program in accordance with the

requirements of the Act.” Section 402(c) (3), 33 U.S.C.

§ 1342(c) (3), incorporated in EPA Brief at 18 n.12.

Moreover, EPA is empowered to block the issuance of a

state NPDES permit * on the grounds that either: “(1)

the permitting state failed to accept recommendations

from another state whose waters may be affected by is-

suance of the permit; or (2) the permit is outside [i.e.,

inconsistent with] the guidelines and requirements of the

Act.” Section 402(d) (2), 33 U.S.C. § 1342(d) (2), Id. at

18-19.

This system of strict and ongoing federal oversight in

the CWA is critical in determining the outcome of this

case for essentially two reasons. First, because the state

enforcement role under the Act is circumscribed in rela-

tion to the nature and scope of the federal regulatory

role, the Tenth Circuit’s decision must be upheld to en-

sure that the states attain compliance with the strict and

overriding federal pollution reduction objective. Second,

allowing an upstream state to degrade the water quality

of a downstream state through the issuance of effluent

permits in the source state could effectively discourage

and preclude compliant downstream states from taking

initiative in the nationwide effort to reduce the pollution

of the nation’s waters, as Congress envisioned in section

SIn dicta, the D.C. Circuit expressed its support for the “permit

blocking” power of the EPA to also apply to downstream states

whose water quality will be affected by an NPDES permit in an

upstream state. “A state whose water quality will be affected by the

issuance of a permit for discharge in another state may block that

permit unti) conditions are imposed insuring compliance with ap-

plicable water quality requirements of the objecting state.” Mont-

gomery Envtl. Coalition v. Costle, 646 F.2d 568, 594 n.21 (D.C. Cir.

1980).

15

101(b) of the Act.® 33 U.S.C. § 1251(b). Accordingly,

the Tenth Circuit’s decision must be upheld to avoid mak-

ing a mockery of the Act’s worthy and necessary pollu-

tion reduction policy and correspondingly uniform federal

enforcement structure.

B. Allowing Upstream States To Issue Effluent Dis-

charge Permits Which Do Not Strictly Comply With

The Water Quality Standards Of All Affected

Downstream States Would Foster An Antagonistic

And Piecemeal Regulatory System In Contravention

Of The Cooperative And Uniform Pollution Reduc-

tion Structure Under the Act

Congress understood that the use of effluent limita-

tions as a means of regulation without regard for all

affected downstream water quality (both within and out-

side of the source state) would undermine the aggressive

and uniform regulatory scheme of the Act. See, ¢.g., S.

Rep. 370, 95th Cong., 1st Sess. at 73, reprinted in 1977

U.S. Code Cong. & Admin. News 4326, 4398 (“The com-

mittee is concerned that the Agency is not conducting a

vigorous overview of state programs to assure uniform-

ity and consistency of permit requirements and of the

enforcement of violations of permit conditions.”) em-

phasis added). Accordingly, Congress sought to establish

and foster a uniform and cooperative regulatory scheme

to reduce both intrastate and interstate water pollution.

Congress’ uniformity objective is most clearly evident

in section 103 of the Clean Water Act, entitled “Inter-

state Cooperation and Uniform Laws.” 33 U.S.C. § 1253.

In this section, Congress declared:

* This interpretation does not establish a system whereby an af-

fected state can demand an additional layer of permit compliance

under the Act from the permitting state. See, e.g., International

Paper Co. v. Ouellette, 479 U.S. 481, 491 (1987) (“An affected state

may not establish a separate permit system to regulate an out-

of-state source”). Instead, the source state permit must merely

“incorporate terms sufficient to assure compliance with the affected

state’s water quality standards.” EPA Brief at 20-21, n.15.,

16

The Administrator shall encourage cooperative ac-

tivities 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 elim-

ination of pollution; and encourage compacts between

States for the prevention and control of pollution.

Section 103 (a), 38 U.S.C. § 1253(a).

This section is significant for the purposes of the instant

case for a variety of reasons. First and foremost, Con-

gress expressly considered the issue of interstate water

pollution in this section and did so in the context of seek-

ing to encourage and sustain uniformity and cooperation

in the enforcement of the Act’s provisions. Second, the

use of interstate compacts is merely encouraged in the

interest of cooperation and uniformity but is not man-

dated as the only method through which the Act considers

interstate water pollution. In other words, Congress’ in-

clusion of this provision does not in any way undermine

the propriety of the Tenth Circuit’s holding regarding the

interstate water pollution issue in this case.

Although Congress acknowledged in section 103(a)

that the goal of uniformity among states should be fos-

tered “so far as practicable,” this language does not

envision granting upstream states the opportunity to de-

grade the water quality of downstream states under cer-

tain circumstances. Instead this language merely reflects

Congress’ recognition of the need to foster more coopera-

tion among states’ water pollution control activities at

all times. Moreover, in section 505(h), Congress pro-

vided an avenue for recourse in the event of conflicting

water pollution control objectives between and among

states. 33 U.S.C. § 13865(h). Section 505(h) preserves

a downstream state’s ability to assert its right to ensure

full enforcement of its water quality standards, unim-

peded by the effects of effluent permits in upstream

17

states." Therefore, section 505(h) is an additional en-

forcement mechanism which, in conjunction with sec-

tion 103, is designed to ensure that the national goal of

uniform pollution reduction as administered by the

states is not undermined.

The Tenth Circuit’s decision is consistent with the

Act’s uniform enforcement mandate and should be af-

firmed in order to avoid potentially adverse policy

ramifications in contravention of the Act’s objectives. Of

primary concern is the potential for “pollution shopping”

on the part of industry if this Court were to overturn

the Tenth Circuit’s decision. More specifically, if NPDES

permitees in upstream states are not required to ensure

that their discharges will not degrade the water quality

standards of downstream states, states will then be per-

mitted to compete to entice indusry to operate in their

state by offering to industry the “temptation” of lax

water pollution controls. Congress expressly considered

and was concerned about this problem of “industries mov-

ing from state to state in search of less strict pollution

standards. ... We must establish national effluent limi-

tations to prevent industrial ‘shopping. .. .” 1 1972

Leg. Hist. at 517 (House debate on H.R. 11896) (state-

ment of Rep. Harrington).

As a corrollary to the introduction of “pollution shop-

ping,” reversal of the Tenth Circuit’s decision would also

create “pollution havens” and promote antagonistic,

rather than cooperative, activity between and among

states in the area of water pollution control. Such an out-

come would exalt economic and political considerations

over the unequivocal pollution reduction goals and struc-

ture of the Act. Moreover, in addition to directly under-

” Section 505(h) “authorizes a state to bring an action against

the Administrator for failure to enforce an effluent standard or

limitation, the violation of which is occurring in another state but

which causes a violation of any state water quality requirement in

the affected state.” EPA Brief at 19, n.14.

18

mining the spirit of uniformity and cooperation among

states embodied in section 103, the very concept of “pollu-

tion havens” is directly at odds with Congress’ intent in

enacting the Clean Water Act and its amendments con-

sidered as a whole."

In addition to the foregoing adverse ramifications, a

reversal of the Tenth Circuit’s decision would promote

inequitable treatment of complaint downstream states

under the Act. “If the permit terms of an upstream dis-

charger need not take account of impacts in a down-

stream state, achievement of downstream ‘standards

would be impossible in many circumstances or would be

possible in others only by imposing a disproportionate

burden on dischargers located in the downstream state.”

EPA Brief at 21. Moreover, the Tenth Circuit’s deci-

sion must be upheld to guard against the absurd and in-

equitable consequences which would flow from Arkansas’

construction of the Act pursuant to which “persons liv-

ing on one side of a state line would somehow have

superior rights to persons living on the same river 100

yards away, but in another state.” ALJ Order on Mo-

tions at 5. Congress certainly did not intend to foster

such a random and inconsistent application of the Act’s

pollution reduction mandate.

To overturn the decision of the Tenth Circuit in this

case would be tantamount to ignoring the irrefutable

truth that water moves in hydrological cycles and that

11“Setting more stringent standards is consistent with the gen-

eral balance between clean water imperatives and economic con-

siderations implicit throughout the Act... the Act does not purport

to reach its goals by applying cost-benefit-alternative analysis. Eco-

nomic and political constraints are not established as key factors

in setting pollution control standards.” Collins, The Dilemma of

the Downstream State: The Untimely Demise of Federal Common

Law Nuisance, 11 B.C. Envtl. Aff. L. Rev. at 340. See also S. Rep.

No. 414, supra, note 5 (“pollution continues because of technological

limits, not because of any inherent right to use the nation’s water-

ways for the purpose of disposing of wastes”).

19

many waters form or cross the borders of two or more

states. In order to preserve and fulfill the fundamental

pollution reduction objective and uniform enforcement

structure of the Clean Water Act, the decision of the

Tenth Circuit must be affirmed.

CONCLUSION

For all of the foregoing reasons, the judgment of the

United States Court of Appeals for the Tenth Circuit

should be affirmed.

Respectfully submitted,

JIM WILCOXEN RANDALL S. ATTAR-ABATE *

General Counsel for Special Counsel to

Cherokee Nation of Cherokee Nation of Oklahoma

Oklahoma

WILCOXEN & WILCOXEN VERMONT LAW SCHOOL

112 North Fifth Street P.O. Box 96

P.O. Box 357 Chelsea Street

Muskogee, OK 74402 South Royalton, VT 05068

(918) 683-6696 (802) 763-8303

July 22, 1991 * Counsel of Record