Respondents Brief — New York, et al., Petitioners v. Environmental Protection Agency, et al.

Supreme Court briefJan 19, 2018

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Nos. 17-418 and 17-446

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In The

Supreme Court of the United States

-----------------------------------------------------------------STATES OF NEW YORK, CONNECTICUT, DELAWARE,

ILLINOIS, MAINE, MICHIGAN, WASHINGTON,

and THE PROVINCE OF MANITOBA, CANADA,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

-----------------------------------------------------------------RIVERKEEPER, INC., THEODORE GORDON

FLYFISHERS, INC., and WATERKEEPER ALLIANCE, INC.,

Petitioners,

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, et al.,

Respondents.

-----------------------------------------------------------------On Petitions For Writ Of Certiorari To The United

States Court Of Appeals For The Second Circuit

-----------------------------------------------------------------JOINT BRIEF OF INTERVENOR-RESPONDENTS

WESTERN STATES AND WESTERN WATER

PROVIDERS IN OPPOSITION TO

PETITIONS FOR WRIT OF CERTIORARI

-----------------------------------------------------------------PETER D. NICHOLS

CYNTHIA H. COFFMAN,

Attorney General

BERG HILL GREENLEAF

FREDERICK R. YARGER*,

RUSCITTI LLP

Solicitor General

1712 Pearl Street

GLENN E. ROPER,

Boulder, Colorado 80302

Deputy Solicitor General

303-402-1600

LAURA CHARTRAND,

pdn@bhgrlaw.com

Lead Counsel for IntervenorDeputy Attorney General

Respondents Western

ANNETTE M. QUILL,

Water Providers

Sr. Asst. Attorney General

Counsel for National Water

1300 Broadway, 10th Floor

Resources Association,

Denver, Colorado 80203

Lower Arkansas Valley

720-508-6000

Water Conservancy District

Fred.Yarger@coag.gov

Counsel for Intervenor-Respondent

the State of Colorado

*Counsel of Record

[Additional Counsel Listed On Signature Page]

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

QUESTION PRESENTED

Throughout the western United States, water

transfers are integral to the delivery of essential water

supplies for municipal, industrial, and agricultural

use. These projects have always fallen under state

regulatory authority—indeed, for nearly the entire

45-year history of the Clean Water Act, the Environmental Protection Agency has consistently interpreted

the Act to defer to state administration of water transfers. In 2008, seeking to codify that longstanding interpretation, EPA promulgated the Water Transfers Rule.

Below, the Second Circuit Court of Appeals—like

the Eleventh Circuit in an earlier case—upheld the

Rule, citing the Act’s policy of deference to state authority over water allocation and management; the

reasonableness of the Rule’s interpretation of the Act

in light of decisions by this Court and lower federal

courts; and the drastic negative consequences that

would flow from requiring, for the first time, that all

water transfers across the country be subject to the

Act.

The question presented is as follows:

Is EPA’s Water Transfers Rule—which balances the Clean Water Act’s deference to state

authority over water resources with the goal

of protecting water quality—a reasonable interpretation of the Act?

PARTIES TO THE PROCEEDINGS

Respondents accept the Petitioners’ lists of Parties

to the Proceeding with the following addition:

The City of Colorado Springs, acting by and

through its water utility enterprise Colorado Springs

Utilities, intervened as a defendant in the district

court, was an appellant in the court of appeals, and is

not a respondent here, although is a member of the

Western Urban Water Coalition.

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, IntervenorRespondents the Western Urban Water Coalition, the

National Water Resources Association, the Idaho Water Users Association, and the (California) State Water

Contractors, hereby disclose that they have no parent

corporations nor have they issued stock. The other

western water providers1 are all governmental entities

Central Arizona Water Conservation District, Central Utah

Water Conservancy District, City and County Of Denver, by and

through its Board of Water Commissioners, City and County of

San Francisco Public Utilities Commission, City of Boulder (Colorado), City of Aurora (Colorado), El Dorado Irrigation District,

Idaho Water Users Association, Imperial Irrigation District, Kane

County (Utah) Water Conservancy District, Las Vegas Valley Water District, Lower Arkansas Valley Water Conservancy District,

Metropolitan Water District of Southern California, National Water Resources Association, Salt Lake and Sandy (Utah) Metropolitan Water District, Salt River Project, San Diego County Water

Authority, Southeastern Colorado Water Conservancy District,

Washington County (Utah) Water District, and Western Urban

Water Coalition.

iii

CORPORATE DISCLOSURE STATEMENT –

Continued

exempt from Rule 29.6. The State Intervenor-Respondents

are sovereign entities and are likewise exempt from

Rule 29.6.

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

PARTIES TO THE PROCEEDINGS .....................

CORPORATE DISCLOSURE STATEMENT ........

TABLE OF CONTENTS ........................................

TABLE OF AUTHORITIES ...................................

STATEMENT OF THE CASE ................................

I. The Clean Water Act’s NPDES requirements impose strict conditions on regulated

activities even when they do not actually

cause exceedances of water quality standards ...............................................................

II.

Water transfers are essential to the West ....

III.

For over a century, the federal government

has consistently deferred to state water

management—including through the Clean

Water Act ......................................................

IV. EPA promulgated the Rule to codify its

longstanding interpretation of the Act,

which the Second Circuit upheld as reasonable ............................................................... 10

REASONS FOR DENYING THE PETITIONS .....

The decision below is consistent with this

Court’s jurisprudence and with lower court

cases decided after the Water Transfers

Rule formally implemented EPA’s longstanding interpretation of the Act ........................ 15

TABLE OF CONTENTS – Continued

Page

II. The Second Circuit correctly held that the

Rule is reasonable given the severe practical consequences of overturning EPA’s interpretation of the Act and the range of

regulatory alternatives to the NPDES program ............................................................. 21

A. Subjecting all water transfer projects

nationwide to NPDES permits would be

cost prohibitive and would ignore the

practical realities facing western water

providers ................................................ 22

B. State and federal regulatory mechanisms

apart from the NPDES program protect

water quality in the context of water

transfers ................................................. 25

CONCLUSION .......................................................

TABLE OF AUTHORITIES

Page

CASES

California v. Campbell, 138 F.3d 772 (9th Cir.

1997) ........................................................................28

California v. United States, 438 U.S. 645 (1978) ...........8

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 451 F.3d 77 (2d Cir.

2006) .................................................................. 18, 19

Catskill Mountains Chapter of Trout Unlimited,

Inc. v. City of New York, 273 F.3d 481 (2d Cir.

2001) .................................................................. 18, 19

Chevron U.S.A., Inc. v. Natural Res. Defense

Council, Inc., 467 U.S. 837 (1984) ................... passim

Comm. to Save Mokelumne River v. E. Bay Mun.

Util. Dist., 13 F.3d 305 (9th Cir. 1993) ......................3

Del-Aware Unlimited, Inc. v. Pennsylvania, 508

A.2d 348 (Pa. Commw. Ct. 1986).............................18

Dubois v. U.S. Dep’t of Agric., 102 F.3d 1272 (1st

Cir. 1996) .................................................................18

Friends of the Everglades v. S. Fla. Water Mgmt.

Dist., 570 F.3d 1210 (11th Cir. 2009) ................ 19, 20

Friends of the Everglades v. EPA, 699 F.3d 1280

(11th Cir. 2012)........................................................20

In re Application for Plan for Augmentation of

City and Cty. of Denver, 44 P.3d 1019 (Colo.

2002) ........................................................................28

vii

TABLE OF AUTHORITIES – Continued

Page

Los Angeles County Flood Control District v.

Natural Resources Defense Council, 568 U.S.

78 (2013) ..................................................................17

Miccosukee Tribe of Indians v. So. Fla. Water

Mgmt. Dist., 280 F.3d 1364 (11th Cir. 2002) .... 15, 22

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005) ................................21

Phillips v. Davis Timber Co., Inc., 468 So. 2d 72

(Miss. 1985) .............................................................28

PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994) ......... 17, 18

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe,

541 U.S. 95 (2004) ........................................... passim

Stokes v. Morgan, 680 P.2d 335 (N.M. 1984) ..............27

Tarrant Reg’l Water Dist. v. Herrman, 569 U.S.

614 (2013) ..................................................................8

United States v. New Mexico, 438 U.S. 696 (1978) .........8

STATUTES

CAL. WATER CODE § 13050 ..........................................28

COLO. REV. STAT.

§ 25-8-103(19) ..........................................................28

§ 25-8-205(1)(c) .............................................................. 27

§ 25-8-503(5)................................................................... 27

viii

TABLE OF AUTHORITIES – Continued

Page

CONN. GEN. STAT.

§ 22a-423 .................................................................28

DEL. CODE ANN. tit. 7, § 6003(a)(2) .............................28

Federal Water Pollution Control Amendments of

1972, 86 Stat. 816

33 U.S.C. §§ 1251-1388 et seq. ...................................2

33 U.S.C. § 1251(b) .............................................. 9, 29

33 U.S.C. § 1251(g) .................................. 9, 16, 18, 25

33 U.S.C. § 1253(b) ..................................................30

33 U.S.C. § 1288(a)(2) ..............................................26

33 U.S.C. § 1311(a) ....................................................2

33 U.S.C. § 1313(a) ....................................................3

33 U.S.C. § 1313(c)(2)(A) ...........................................3

33 U.S.C. § 1342.........................................................2

33 U.S.C. § 1342(a) ....................................................3

33 U.S.C. § 1370.......................................................29

33 U.S.C. § 1370(2) ....................................................9

ME. REV. STAT. tit. 38, § 361-A(7) ...............................28

MICH. COMP. LAWS § 324.3101(z) ................................28

N.D. CENT. CODE

§ 61-28-09(1) ............................................................28

§ 61-32-03 ................................................................28

TABLE OF AUTHORITIES – Continued

Page

N.M. STAT.

§ 72-5-23 ..................................................................27

§ 72-5-26 ..................................................................27

§ 72-12-7 ..................................................................27

N.M. STAT. ANN. § 74-6-4 ............................................28

N.Y. ENVTL. CONSERV. LAW § 17-0105(2) ....................28

RULES AND REGULATIONS

Water Transfers Rule, 73 Fed. Reg. 33,697 (June

13, 2008) .......................................................... passim

40 C.F.R. § 122.3 ...........................................................1

40 C.F.R. § 122.28 .........................................................3

40 C.F.R. § 122.44(d)(1)(i) ....................................... 3, 25

40 C.F.R. § 131.12 .........................................................3

5 COLO. CODE REGS. 1002, § 31.16 ..............................25

71 Fed. Reg. 32,887 (June 7, 2006) ..............................11

OTHER AUTHORITIES

Ann R. Klee & Benjamin H. Grumbles, U.S. EPA,

Agency Interpretation on Applicability of Section 402 of the Clean Water Act to Water Transfers (Aug. 5, 2005) ....................................................10

TABLE OF AUTHORITIES – Continued

Page

Bureau of Reclamation et al., Memorandum of

Understanding 16-LM-60-257B, Grand Lake

Clarity Stakeholders’ Memorandum of Understanding 1 (2016), http://co.grand.co.us/Document

Center/View/7935 ....................................................29

Colo. Dep’t of Public Health & Env’t, Total Maximum Daily Loads, https://www.colorado.gov/

pacific/cdphe/total-maximum-daily-loads-tmdls ......27

Colo. River Basin Salinity Control Forum, Water

Quality Standards for Salinity, Colorado River

System (Oct. 2017), http://www.coloradoriver

salinity.org/docs/2017%20Review%20-%20FINAL.

pdf ...................................................................... 30, 31

Delaware River Basin Interstate Compact between the State of Delaware, the State of New

Jersey, the State of New York, and the Commonwealth of Pennsylvania, Pub. L. No. 87328, 75 Stat. 688, art. 5, sec. 5.1 (Sept. 27,

1961) ........................................................................30

Environmental Protection Agency, Regions VII

and IX, The Mineral Quality Problem in the

Colorado River: Summary Report (1971) ...............30

North Front Range Water Quality Planning

Assoc., 2016 Plan Update—Area-Wide Water

Quality Management Plan (208 Plan),

http://www.nfrwqpa.org/awqmp.shtml ...................26

Red River of the North Compact between the

State of South Dakota, the State of North Dakota, and the State of Minnesota, Pub. L. No.

456, 52 Stat. 150, art. II (Apr. 2, 1938) ...................30

TABLE OF AUTHORITIES – Continued

Page

U.S. Dep’t of the Interior, Bureau of Reclamation, Colo. River Basin Water Supply & Demand Study, Executive Summary (Dec. 2012) .........6

U.S. Dep’t of the Interior, Bureau of Reclamation, Colo. River Basin Water Supply & Demand

Study, Technical Report B—Water Supply Assessment (Dec. 2012) ...............................................23

STATEMENT OF THE CASE

“Water transfers” are precisely what they sound

like—activities that convey water from one place to another, ensuring that it is available where it is needed

most. These projects, which are typically governmentoperated, do not introduce pollutants into sources

of water. They simply move water from one natural

source and transport it for use elsewhere.

The Water Transfers Rule (the “Rule”), promulgated by the Environmental Protection Agency in

2008, interprets the Clean Water Act to exclude water

transfers from one particular federal regulatory program, the National Pollution Discharge Elimination

System (“NPDES”). Water Transfers Rule, 73 Fed. Reg.

33,697 (June 13, 2008) (codified at 40 C.F.R. § 122.3).

The NPDES is the same program that applies to municipal wastewater treatment plants and to industrial

sources of pollutants like oil refineries, which—unlike

water transfers—invariably discharge waste that can

degrade receiving waters.

The Rule does not represent a new regulatory approach; to the contrary, it embodies decades of agency

practice. That longstanding practice is particularly important to the western United States, where water

transfers have always been both common and critically

important. And the practice is consistent with a large

body of federal law—including the Clean Water Act—

that requires deference to state water administration.

Thus, understanding the Rule and this litigation requires an explanation of the NPDES program, as well

as historical background concerning water transfers

and an explanation of the federal government’s traditional deference to state water administration.

The Clean Water Act’s NPDES requirements

impose strict conditions on regulated activities even when they do not actually cause

exceedances of water quality standards.

The Federal Water Pollution Control Amendments

of 1972, 86 Stat. 816 (codified as amended at 33 U.S.C.

§§ 1251–1388 et seq.), are commonly known as the

Clean Water Act (the “Act”). The Act creates a wide variety of pollution control programs and regulatory

measures aimed at improving and maintaining the

quality of surface waters across the country. One of its

central provisions prohibits “the discharge of any pollutant by any person” into covered waters, unless the

discharge complies with one of the Act’s provisions. 33

U.S.C. § 1311(a).

The principal provision of the Act under which

a discharge may be allowed is Section 402, which

establishes a permitting program known as the “National Pollutant Discharge Elimination System.” 33

U.S.C. § 1342. NPDES permits grant permission to discharge a specified amount of specified pollutants into

waters covered by the Act. See id.; see also S. Fla. Water

Mgmt. Dist. v. Miccosukee Tribe (“Miccosukee”), 541

U.S. 95, 102 (2004). NPDES permits must include limitations designed to meet the water quality standards

of waters receiving the discharge. States are primarily

responsible for adopting and periodically revising water quality standards. 33 U.S.C. § 1313(a), (c)(2)(A).

Even if a discharge merely has the “potential to

cause[ ] or contribute to . . . an excursion above any

State water quality standard,” its NPDES permit must

contain conditions to control all “pollutants or pollutant parameters.” 40 C.F.R. § 122.44(d)(1)(i); see also

Comm. to Save Mokelumne River v. E. Bay Mun. Util.

Dist., 13 F.3d 305, 309 (9th Cir. 1993) (“The Act does

not impose liability only where a point source discharge creates a net increase in the level of pollution.

Rather, the Act categorically prohibits any discharge of

a pollutant from a point source without a permit.”). In

short, every NPDES permit must contain conditions

that limit the amount of pollutants delivered to the receiving waters regardless of whether water quality

standards would actually be exceeded as a result of the

delivery. These limitations apply to both individual

permits, which regulate the discharge of a single permittee, and general permits, which may be used to

cover one or more “categories” of discharges. See 33

U.S.C. § 1342(a); 40 C.F.R. §§ 122.28, 122.44(d)(1)(i), 131.12.

At issue here is whether all water transfers across

the United States, which add no pollutants to transferred water, constitute “discharges” for which an

NPDES permit is required.

II.

Water transfers are essential to the West.

Unlike the eastern half of the country, the western

United States is predominantly arid. To say that

“water is the lifeblood of the West” is neither an exaggeration nor a cliché. Without the thousands of water

transfers that support western agriculture and urban

areas from Denver to Los Angeles, settlement of the

“Great American Desert” would have been impossible.

The Colorado River provides a stark example of

the importance of water transfers to the American

West. Snow falls and collects in the sparsely populated

Rocky Mountains, hundreds or thousands of miles

from major urban and agricultural centers. Yet this

snowfall accounts for 85 to 90 percent of the entire precipitation in the Colorado River Basin, an area encompassing one-eighth of the continental United States.

For obvious reasons, water transfers within this vast

portion of the country are ubiquitous, and they have

been for over a century.

The State of Colorado alone provides numerous

examples. “[O]ver forty interbasin diversions . . . serve

the State’s water needs,” Pet. App. 22a,2 and those

transfers have existed since the early days of Colorado’s statehood. In the 1880s, irrigators began diverting the headwaters of the Colorado River from west

of the Continental Divide to the eastern part of the

State in order to increase supply in the Cache la

Poudre River, one of the first rivers to be tapped

for irrigation within Colorado. Decades later, the

Colorado-Big Thompson Project was completed to

This brief relies on the Petition Appendix in case number

17-418 and does not cite the separate Petition Appendix in case

number 17-446.

deliver water from the Colorado River through a 13.1mile-long tunnel under Rocky Mountain National

Park. Water from that project supplies 8 counties and

33 municipalities and irrigates 720,000 acres in northeastern Colorado. Other trans-mountain and inter-basin transfers from the Colorado River system supply

more than 4 million residents of Colorado’s major urban areas, including the Denver-Boulder metropolitan

area as well as Colorado Springs and Pueblo.

Outside of Colorado, water transfers perform a key

role in meeting obligations under interstate water

compacts, water apportionment decrees, federal legislation, and international treaties. For example, New

Mexico obtains much of its share of the Colorado River

via the interstate San Juan-Chama Project. That project transfers water hundreds of miles from southcentral Colorado, through the Continental Divide, and

across the state line to New Mexico, supplying more

than a million people living in Santa Fe, Albuquerque,

and the Rio Grande Basin. The cities of Cheyenne, Wyoming, and Salt Lake City, Utah, are also located outside the Colorado River Basin and also rely on water

transfers to utilize their States’ share of the River.

Further west, the Central Arizona Project diverts

water from the Colorado River to residents of the Phoenix and Tucson metro areas—which, with more than 5

million people, account for 80 percent of the State’s

population. The Las Vegas Valley Water District transfers Nevada’s share of the Colorado River from Lake

Mead, on the Arizona border, to serve the over 2 million

residents of, and 40 million annual visitors to, one

of the country’s premier tourist destinations. The Colorado River Aqueduct transfers water from the River

some 242 miles to the southern California coast, supplying 19 million people from Los Angeles to San Diego. The All-American Canal transfers the last of the

United States’ Colorado River entitlement to irrigate

560,000 acres in the Imperial and Coachella Valleys,

which grow many of the nation’s wintertime vegetables. The Colorado River is also vital to Mexico under

the 1944 Mexican Treaty, supporting a thriving agricultural industry and providing municipal water supplies for millions of people.

The following map, created by the United States

Department of the Interior, Bureau of Reclamation,3 illustrates the scale of the Colorado River Basin and

provides perspective on the critical importance of water transfers to the massive portion of the western

United States that the River serves:

The map is included in U.S. Dep’t of the Interior, Bureau of

Reclamation, Colo. River Basin Water Supply & Demand Study,

Executive Summary, at 2 (Dec. 2012).

For the sake of comparison, the Potomac and Hudson Rivers serve about 6 million and 4 million people

respectively. The “hard working” Colorado River, meanwhile, supplies about 30 million residents of its basin

plus another 25 million residents of other basins, for a

total of 55 million people. Yet the Potomac and Hudson

are blessed with three to four times the amount of natural precipitation and two to three times the average

flow of the Colorado River. The scarce resources of the

Colorado River are needed to serve a vast area both

within and outside the basin. Water transfers are, and

long have been, the primary means of doing so.

III. For over a century, the federal government

has consistently deferred to state water

management—including through the Clean

Water Act.

Given the tremendous importance of water resources to the settlement and continued prosperity of

the West, the western States have long valued their

ability to manage those resources both within their

borders and in cooperation with neighboring States.

The ability to manage water is “an essential attribute

of sovereignty,” one that States do not cede lightly. Tarrant Reg’l Water Dist. v. Herrman, 569 U.S. 614, 631

(2013).

Congress, for its part, has consistently reaffirmed

the importance of—and its deference to—state authority over water resources. “Where Congress has expressly addressed the question of whether federal

entities must abide by state water law, it has almost

invariably deferred to the state law.” United States v.

New Mexico, 438 U.S. 696, 702 & n.5 (1978) (noting the

existence of 37 statutes in which Congress expressly

recognized the importance of deferring to state water

law); see also California v. United States, 438 U.S. 645,

650, 653 (1978) (discussing deference to state water

programs as codified in laws dating from the mid1800s).

The Act itself reflects this federal policy of preserving state authority to manage and administer water

use. Section 101(b) of the Act makes this policy explicit:

“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,

[and] to plan the development and use . . . of land and

water resources. . . .” 33 U.S.C. § 1251(b). Other provisions of the Act reiterate and implement that policy.

See, e.g., 33 U.S.C. § 1251(g) (“It 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 [the

Clean Water Act]. It is further the policy of Congress

that nothing in [the Act] shall be construed to supersede or abrogate rights to quantities of water which

have been established by any State.”). Indeed, nothing

in the Act may “be construed as impairing or in any

manner affecting any right or jurisdiction of the States

with respect to the waters (including boundary waters)

of such States.” 33 U.S.C. § 1370(2).

This long thread of deference to state water administration, reflected in dozens of federal statutes

spanning over a century of federal policymaking, is

particularly important here. The federal government

has, for the entire history of the Clean Water Act, deferred to state administration of water transfer projects. Pet. App. 14a–15a.

IV. EPA promulgated the Rule to codify its longstanding interpretation of the Act, which the

Second Circuit upheld as reasonable.

Origins of the Water Transfers Rule. The Water Transfers Rule has its roots in this Court’s 2004

decision in Miccosukee. There, the Court, in the course

of vacating a district court ruling that required a water

transfer to obtain an NPDES permit, acknowledged

the “longstanding EPA view that the process of transporting, impounding, and releasing navigable waters

cannot constitute an addition of pollutants to the waters of the United States.” 541 U.S. at 107 (internal

quotation marks omitted). But the Court noted that

this longstanding EPA policy had not been formalized.

Id. at 107, 109.

In the wake of Miccosukee, EPA moved to formalize its decades-old position. In 2005, it issued an official

memorandum supporting its interpretation that Congress did not intend to include water transfers within

the regulatory scheme of the NPDES program. Ann R.

Klee & Benjamin H. Grumbles, U.S. EPA, Agency Interpretation on Applicability of Section 402 of the Clean

Water Act to Water Transfers (Aug. 5, 2005). The memorandum analyzed the text, structure, and legislative

history of the Clean Water Act, ultimately concluding

that EPA’s longstanding position was based on the best

reading of the Act, particularly in light of the Act’s policy of deference to state management of water resources:

Water transfers are an integral part of water

resource management; they embody how States

and resource agencies manage the nation’s

water resources and balance competing needs

for water. Water transfers also physically implement state regimes for allocating water

rights, many of which existed long before enactment of the Clean Water Act. Congress was

aware of those regimes, and did not want to

impair the ability of these agencies to carry

them out.

Id. at 9.

A year later, EPA published notice of its proposed

nationwide “Water Transfers Rule.” 71 Fed. Reg. 32,887

(June 7, 2006). After providing an extended comment

period and reviewing thousands of comments, EPA issued its final Rule in 2008. 73 Fed. Reg. 33,697.

The Rule clarified that a water transfer, “an activity that conveys or connects waters of the United

States without subjecting the transferred water to intervening industrial, municipal, or commercial use,” is

excluded from regulation under the Clean Water Act’s

NPDES program. Id. at 33,697. This is so because

transfers do not result in the “addition” of a pollutant

to the waters of the United States. Id. at 33,700–03.

The same is not true if “pollutants are introduced from

outside the waters being transferred,” and the Rule

acknowledges that States continue to have authority

both to administer the use of transferred water and to

monitor and address water quality as part of water

transfers. Id. at 33,701–02. “[T]he heart of this matter,”

the Rule explains, “is the balance Congress created between federal and State oversight of activities affecting the nation’s waters.” Id. at 33,701.

Challenges to the Rule. Soon after the Rule was

promulgated, a coalition of States led by New York, as

well as the Province of Manitoba, Canada, and several

environmental, sporting, and conservation organizations, challenged the Rule in the Southern District of

New York. After related litigation in other courts resolved threshold jurisdictional issues, Pet. App. 27a–

28a, the district court granted the applications of all

parties who sought to intervene in the case. A large coalition of western States and water providers joined

the case in defense of the rule: Colorado and 10 other

States—Alaska, Arizona (Department of Water Resources), Idaho, Nebraska, Nevada, New Mexico, North

Dakota, Texas, Utah, and Wyoming—along with 26

municipal water providers, water districts, and water

associations supplying approximately 116 million people, one-third of the nation’s population.

The district court concluded that the Clean Water

Act neither forecloses nor requires the policy reflected

in the Water Transfers Rule. Pet. App. 160a, 176a.

Even so, the court held that the Rule represented an

unreasonable interpretation of the Act and was therefore invalid under the second step of the Chevron

framework. See id. at 177a–78a (applying Chevron

U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467

U.S. 837 (1984)). In doing so, the district court discounted the provisions in the Act that expressly preserve the historic deference to States in the realm of

water allocation and management. See id. at 166a–

72a. The district court granted summary judgment for

the plaintiffs, vacated the Rule, and remanded it to

EPA. Id. at 250a.

The Second Circuit’s decision. EPA and the intervenor-defendants appealed to the Second Circuit. In

a 2-1 decision, the court reversed the judgment of the

district court and reinstated the Rule. Pet. App. 83a–

84a.

The majority analyzed the Rule under the twostep Chevron framework, concluding under the first

step (as did the district court) that the Clean Water Act

is silent or ambiguous on the specific issue of whether

Congress intended for water transfers to be regulated

under the NPDES permitting scheme. Pet. App. 55a–

56a.

Under the second step of Chevron, the majority

concluded that EPA’s construction of the Act was reasonable. Pet. App. 83a–84a. The majority observed that

“in the nearly forty years since the passage of the

Clean Water Act, water transfers have never been subject to a general NPDES permitting requirement.” Id.

at 67a. And, importantly, both this Court’s decision in

Miccosukee and later circuit court decisions “support

. . . the reasonableness of the Rule’s interpretation” because those cases either implicitly or explicitly concluded that the Rule is within the Act’s permissible

interpretive scope. Id. at 71a–74a.

The dissent would have upheld the district court’s

decision under both step one and step two of Chevron.

Pet. App. 85a–86a. In coming to this conclusion, the

dissent did not mention or analyze any of the provisions of the Act that require a policy of deference to

state authority over water resources.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITIONS

The United States, in its Brief in Opposition, comprehensively explains why this case is inappropriate

for certiorari. This brief does not attempt to repeat

those arguments. Instead, it focuses on two discrete

points. First, the decision below—rather than reflecting a conflict among jurisdictions on the issue presented here, Pet. 19–22 (No. 17-418)—is consistent

with this Court’s decision in Miccosukee and other

cases, as well as with circuit court interpretations of

the Clean Water Act that post-date the promulgation

of the Rule. Second, the Rule is reasonable under Chevron, given the practical realities facing water transfer

projects—particularly in the West—and the alternative regulatory mechanisms that can and do address

water quality concerns in the context of water transfers.

The decision below is consistent with this

Court’s jurisprudence and with lower court

cases decided after the Water Transfers Rule

formally implemented EPA’s longstanding interpretation of the Act.

The Petition by the State of New York asserts that

the decision below is “in substantial tension” with the

rulings of this Court. Pet. 21 (No. 17-418). It argues further that lower courts have “conflicting views of the

Act’s meaning” and that those views are “irreconcilable.” Id. at 21. Neither assertion is correct.

This Court’s cases. In Miccosukee—decided before EPA promulgated the Rule—this Court considered

whether a water transfer project in southern Florida

required an NPDES permit. Miccosukee came to the

Court from the Eleventh Circuit, which had held that

NPDES permits are required for water transfers. Miccosukee Tribe of Indians v. So. Fla. Water Mgmt. Dist.,

280 F.3d 1364 (11th Cir. 2002). This Court vacated that

decision. In doing so, it noted but did not reach EPA’s

argument that the Act excludes water transfers from

the NPDES program, an argument EPA made upon

the Court’s invitation to participate as amicus curiae.

EPA urged the Court to defer to the agency’s longstanding view that the process of “transporting, impounding, and releasing navigable waters” cannot

constitute an “addition” of pollutants to “the waters

of the United States.” Miccosukee, 541 U.S. at 107.

Because this argument had not been adequately

raised in prior stages of the litigation, the Court

declined to reach it, instead remanding to resolve outstanding factual disputes. Id. at 109, 111–12. But the

Court made clear that the argument would be “open to

the parties on remand.” Id. And it explicitly acknowledged the reasonableness of EPA’s construction of the

Act. A contrary approach—i.e., “construing the NPDES

program to cover [water] transfers”—could “violate

Congress’ specific instruction that ‘the authority of

each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired.’ ” Id. at 108 (quoting 33 U.S.C.

§ 1251(g)). And, the Court noted, “[i]f we read the Act

to require an NPDES permit for every engineered diversion of one navigable water into another, thousands

of new permits might have to be issued, particularly by

western States, whose water supply networks often

rely on engineered transfers among various natural

water bodies.” Id. (citing an amicus brief filed by a coalition of States led by the State of Colorado).

Implicit in these observations was the assumption

that EPA had latitude under Chevron to formalize its

longstanding interpretation of the Act as a matter of

administrative policy. Indeed, the Court called out the

fact that EPA had not cited “any administrative documents” officially announcing its interpretation—a

clear invitation for EPA to engage in rulemaking. Id.

at 107. Of course, in response to Miccosukee, EPA did

just that.

In arguing that Miccosukee is “in substantial

tension” with the Rule, the Petition by the State of

New York ignores Miccosukee’s recognition of the

reasonableness of the agency interpretation of the Act

on which the Rule is based. Pet. 21 (No. 17-418). If Miccosukee had in fact foreclosed that interpretation,

there would have been no need for the Court to explicitly hold that EPA’s arguments would “be open to the

parties on remand.” 541 U.S. at 109, 112. As the Second

Circuit acknowledged below, Miccosukee supports the

Rule rather than undermines it. Pet. App. 67a–70a.4

Apart from Miccosukee, New York relies on two

other decisions by this Court to demonstrate “tension”

between the decision below and this Court’s jurisprudence. Its reliance on those two cases is likewise misplaced; neither one is in conflict with the decision

below.

The first, Los Angeles County Flood Control District v. Natural Resources Defense Council, addressed

only a “narrow question,” holding that no discharge of

a pollutant occurs when water flows between upper

and lower portions of the same river. 568 U.S. 78, 82,

84 (2013). This holding is “consistent with both [EPA’s]

reading of the CWA . . . and with [a contrary] reading.”

Pet. App. 74a n.33. It “does not provide support for either side of the debate over . . . the Water Transfers

Rule.” Id. at 75a n.33.

The second, PUD No. 1 of Jefferson County v. Washington Department of Ecology, was decided a decade

Indeed, for this reason Miccosukee forecloses the first question presented in the Petition by the State of New York, which

asserts that the Rule violates the plain meaning of the Clean Water Act. Pet. i (No. 17-418).

before Miccosukee. 511 U.S. 700 (1994). The State of

New York asserts that PUD No. 1 forecloses the argument that the Rule is reasonably supported by the

Clean Water Act’s explicit policy of deference to state

water administration. Pet. 21–22 (No. 17-418). But

that assertion is directly contrary to the later-decided

Miccosukee, which suggested that EPA’s interpretation

of the Act to exclude water transfers from the NPDES

program is not only supported by, but may in fact be

mandated by, the Act’s deference to state authority

over water resources. Miccosukee, 541 U.S. at 108

(quoting 33 U.S.C. § 1251(g)).

Lower court decisions. The Petition by the State

of New York cites four cases in arguing that the decision below “conflicts with decisions of other federal and

state courts.” Pet. 19 (No. 17-418). All of those cases

arose before EPA’s promulgation of the Rule and therefore did not provide occasion for the deciding courts to

engage in the Chevron analysis on which the decision

below is based. Id. (citing Catskill Mountains Chapter

of Trout Unlimited, Inc. v. City of New York (“Catskill

II”), 451 F.3d 77 (2d Cir. 2006); Catskill Mountains

Chapter of Trout Unlimited, Inc. v. City of New York

(“Catskill I”), 273 F.3d 481 (2d Cir. 2001); Dubois v. U.S.

Dep’t of Agric., 102 F.3d 1272 (1st Cir. 1996); and DelAware Unlimited, Inc. v. Pennsylvania, 508 A.2d 348

(Pa. Commw. Ct. 1986)).5 Indeed, two of those cases,

Catskill I & II, came from the Second Circuit itself.

The Notice of Final Rule itself recognizes that none of these

earlier decisions “viewed the question of statutory interpretation

through the lens of Chevron deference.” 73 Fed. Reg. at 33,700.

And, in any event, Catskill I & II are not inconsistent

with the decision below, which upheld the rule under

Chevron deference—an issue Catskill I & II neither

reached nor foreclosed. As the Second Circuit observed

below, “[n]owhere in Catskill I did we state that [the

Act] could bear only one meaning. . . . Such a statement would have been inconsistent with our acknowledgement that Chevron deference might be owed to a

more formal agency interpretation. Nor did we make

any such statement in Catskill II.” Pet. App. 38a.

Indeed, the only post-Rule case cited in New York’s

Petition upheld the Rule, based on the same rationale

contained in the decision below. Pet. 20 (No. 17-418)

(citing Friends of the Everglades v. S. Fla. Water Mgmt.

Dist. (“Friends I”), 570 F.3d 1210 (11th Cir. 2009)).

Friends I comes from the Eleventh Circuit, the same

jurisdiction in which Miccosukee arose. In Friends I,

the Eleventh Circuit explained that it was compelled

to depart from its earlier decision in Miccosukee (i.e.,

that water transfers are governed by the NPDES program) because EPA’s promulgation of the Rule was “a

change” in the legal landscape, and “[a]n important

one.” Friends I, 570 F.3d at 1218. The Rule “was not

available at the time of . . . earlier decisions” like

Miccosukee, and those decisions therefore “are not

precedent against” the Rule. Id. The Eleventh Circuit

analyzed EPA’s Rule using the Chevron framework, ultimately concluding that the Rule is “a reasonable, and

therefore permissible, construction of the language” of

the Clean Water Act. Id. at 1228.6

In the present case, the Second Circuit—like the

Eleventh Circuit—also heeded the “important” fact

that the Rule now triggers Chevron and makes earlier

decisions inapposite. See Pet. App. 23a (“None of these

[earlier] decisions classified the EPA’s views on the

regulation of water transfers as sufficiently formal to

warrant Chevron deference.”). New York is thus incorrect in asserting that there is a present conflict among

jurisdictions that requires resolution by this Court.

The opposite is true: the two courts of appeal that reviewed the Rule have both upheld it under the same

rationale. None have rejected EPA’s Rule.

After upholding EPA’s Water Transfers Rule in Friends I,

the Eleventh Circuit later dismissed several petitions for direct

appellate review of the Water Transfers Rule on the ground that

the circuit courts of appeal lack original jurisdiction to hear challenges to the Rule. Friends of the Everglades v. EPA, 699 F.3d 1280

(11th Cir. 2012) (“Friends I I”). Although it declined to address the

merits of EPA’s Rule, the Eleventh Circuit reiterated its earlier

holding that “the water-transfer rule was a reasonable interpretation of an ambiguous provision of the Clean Water Act” and

therefore passed muster under Chevron’s deferential standard of

review. Id. at 1285.

II.

The Second Circuit correctly held that the

Rule is reasonable given the severe practical consequences of overturning EPA’s interpretation of the Act and the range of

regulatory alternatives to the NPDES program.

The point of Chevron is to grant regulatory agencies the discretion they need to balance competing policy concerns. Nat’l Cable & Telecomms. Ass’n v. Brand

X Internet Servs., 545 U.S. 967, 981 (2005). The Water

Transfers Rule is a paradigm example, as the court below recognized after carefully analyzing the policy considerations that the Rule embodies. Pet. App. 83a.

Given the arguments in the Petition by the State of

New York, two relevant policy considerations bear discussion here: first, the crippling burdens that would be

imposed on water providers if EPA were forced to depart from its longstanding policy of deferring to state

administration of water transfers and, second, the

availability of other regulatory mechanisms (beyond

the NPDES program) to address potential water quality issues in the context of water transfer projects.

See Pet. 27 (No. 17-418) (incorrectly claiming that the

burdens of subjecting water transfers to the NPDES

system are based on “unsupported speculation”); id. at

15–17 (wrongly asserting that without regulation under the NPDES system, water transfers would be given

“free reign to pollute”).

A. Subjecting all water transfer projects

nationwide to NPDES permits would be

cost prohibitive and would ignore the

practical realities facing western water

providers.

The court below recognized the “potentially serious and disruptive practical consequences of requiring

NPDES permits for water transfers,” as did EPA when

it promulgated the Rule. Pet. App. 83a; see, e.g., 73 Fed.

Reg. at 33,700. “[C]ompliance with an NPDES permitting scheme for water transfers,” the Second Circuit

explained, “is likely to be burdensome and costly for

permittees, and may disrupt existing water transfer

systems.” Pet. App. 75a. This Court made similar observations in Miccosukee: “It may be that construing

the NPDES program to cover [water] transfers would

raise the costs of water distribution prohibitively. . . .”

Miccosukee, 541 U.S. at 108. Some have argued that

water transferors could reduce regulatory burdens by

operating under general rather than individual

NPDES permits. See id. at 108–09. But while in some

cases general permits provide an opportunity for

shorter review and approval periods, they impose the

same requirements and discharge limitations as individual permits. See supra, Statement § I. General permits therefore would not ameliorate the exorbitant

costs to water providers.

Some estimates, the Second Circuit recognized,

put these costs at “$4.2 billion to treat just the most

significant water transfers in the Western United

States.” Pet. App. 75a. Individual water providers, the

court said, could bear “hundreds of millions of dollars”

in compliance costs. Id. Costs of this scale are neither

feasible for water providers to bear, nor are they justified given the realities facing western water supply

systems. E.g., C.A. App. 346 (explaining that the costs

of compliance for one project “could exceed $315 million, double the initial cost of the entire . . . project”).

In the West, water characteristics vary naturally

between watersheds and water bodies. This is because

runoff from precipitation in mountainous regions accounts for the vast majority of the water supply. A.R.

1433 at 4, see also, e.g., U.S. Dep’t of the Interior,

Bureau of Reclamation, Colo. River Basin Water Supply & Demand Study, Technical Report B—Water Supply Assessment at B-12 (Dec. 2012). And, due to natural

processes like erosion, this runoff—which can travel

long distances over varied terrain—naturally contains

elevated levels of “total suspended solids” (i.e., suspended particles of soil and sediment), “total dissolved

solids” (i.e., dissolved particles of soil and sediment),

and “turbidity” (muddiness). See A.R. 1433 at 15–16.

Indeed, these natural erosive processes are responsible

for much of the West’s dramatic topography, from gullies carved into 14,000-foot mountains to water-filled

depressions that sit below sea level, like the Salton

Sea. Id.

Subjecting the thousands of western water transfers to the massive costs of a mandatory NPDES system, and requiring them to remove naturally occurring

constituents from transferred water, would yield far

fewer environmental benefits than one might assume.

Colorado, for example, has more than 1,700 diversions

that transfer water within river basins, as well as over

40 major trans-mountain projects that, based on conservative estimates, move 500,000 acre-feet of water

per year. C.A. App. 320. Yet although Colorado, like

every other State, is required under Section 303(d) of

the Clean Water Act to develop a list of waters that fail

to meet water quality standards, the State “has never

encountered a water body whose quality is impaired as

a result of pollutants transferred from one water body

to another.” Id. at 320–21. The administrative record

includes few reports of 303(d)-impairment caused by

water transfers, despite the massive numbers of water

transfers in the United States. See, e.g., id. at 292

(“Michigan’s experience over the past thirty years has

found that water transfers that cause water quality

problems are relatively rare.”); see also 73 Fed. Reg. at

33,698 (noting the prevalence of water transfers, particularly in the West). In many projects, transferred

waters are of equal or better quality than are receiving

waters. C.A. App. 320 (“Colorado has not experienced

water quality problems caused by water transfers. Indeed, most major transfers in Colorado occur relatively

high in river basins and transfer high quality water

from one river basin to another.”).

Complying with NPDES program requirements

for the naturally occurring constituents present in

western transferred water would be a daunting task.

Water transferors have no ability to control the natural

processes that determine the quality of source waters.

C.A. App. 346–47. Yet they could be required to treat

the water they transfer for up to three dozen naturally

occurring parameters and constituents if the transfer

caused any change in the quality of the receiving

waters, as discussed above in the Statement. See, e.g.,

40 C.F.R. § 122.44(d)(1)(i); 5 Colo. Code Regs. 1002,

§ 31.16. This is why the costs of subjecting water transfers to the NPDES program would be prohibitive. And

for some projects, compliance would not only be costly

but also technically infeasible. C.A. App. 346. Some water providers would thus have no realistic alternative

but to curtail the use of their water rights to meet

NPDES requirements, e.g., id. at 346–47—a result that

“violate[s] Congress’ specific instruction that ‘the authority of each State to allocate quantities of water

within its jurisdiction shall not be superseded, abrogated or otherwise impaired [by the Act],’ ” Miccosukee,

541 U.S. at 108 (quoting 33 U.S.C. § 1251(g)).

B. State and federal regulatory mechanisms

apart from the NPDES program protect

water quality in the context of water

transfers.

The Rule does not establish a regulation-free zone.

To the contrary, the Rule was enacted in part because

state and federal regulatory mechanisms are available

to mitigate the potential environmental effects of water transfers. E.g., 73 Fed. Reg. at 33,699 (noting that

the Act “reserves the ability of States to regulate water

transfers under State law”); id. at 33,702 (explaining

that the Act “establishes a variety of programs and

regulatory initiatives in addition to the NPDES

permitting program”). These alternatives, the Second

Circuit recognized, illustrate why the Rule is an example of Chevron working as it should, allowing an

agency to take account of the full range of policy considerations in determining how best to interpret a federal statute. “The existence of these available

regulatory alternatives suggests that exempting water

transfers from the NPDES permitting program would

not necessarily defeat the fundamental water-quality

aims of the Clean Water Act, which further counsels in

favor of the reasonableness of the Water Transfers

Rule.” Pet. App. 79.

State mechanisms. Under the Rule, States are

not required to subject water transfers to the NPDES

program. But this does not mean that other state-level

regulatory tools under the Clean Water Act are unavailable. One example is regulation under mandatory

state water quality management plans—or “Section

208 Plans”—which must set forth methods for controlling water pollution in defined geographic areas.

See 33 U.S.C. § 1288(a)(2). Colorado’s Section 208 plans

cover the many basins across the State that include

water transfer projects. E.g., North Front Range Water

Quality Planning Assoc., 2016 Plan Update—AreaWide Water Quality Management Plan (208 Plan),

http://www.nfrwqpa.org/awqmp.shtml (describing plans

for the Cache la Poudre River Basin and Big Thompson

River Basin). Another example is regulation for “total

daily maximum loads” under Section 303(d) of the Act,

through which States must quantify the amount of

specific pollutants water bodies can assimilate without

exceeding water quality standards. Again, these requirements apply in basins affected by water transfers,

imposing measures to protect the water quality of

those basins. Colo. Dep’t of Public Health & Env’t,

Total Maximum Daily Loads, https://www.colorado.gov/

pacific/cdphe/total-maximum-daily-loads-tmdls (setting forth information on total maximum daily loads

for various river basins in the State).

In addition to these mechanisms under the Clean

Water Act, States have additional regulatory authority—independent of the Act—to address potential water quality issues associated with water transfers. In

fact, multiple, overlapping authorities exist in many

States. See Pet. App. 77a & n.37. Colorado, for example,

has “control regulations,” under which the State Water

Quality Control Commission can prescribe mandatory

or prohibitory measures for any activity that causes

the quality of state waters to violate any water quality

standard. COLO. REV. STAT. §§ 25-8-503(5); 25-8-205(1)(c).

These tools would be available “[i]f, in the future, concerns regarding water quality impacts due to contaminants contained in water transfers should arise in

Colorado.” C.A. App. 321. The New Mexico State Engineer has authority to deny a transfer of surface or

ground water if the transfer will be detrimental to the

public welfare of the State, which includes considerations of water quality. N.M. STAT. §§ 72-5-23, 72-5-26,

72-12-7; see also Stokes v. Morgan, 680 P.2d 335, 341

(N.M. 1984) (explaining that the state engineer could

withhold a permit due to “intrusion of poor quality water”). In North Dakota, water transfers may be subject

to non-NPDES permits that contain protective conditions, and transfers must in any event comply with the

“state’s water quality standards established to protect

aquatic life.” N.D. CENT. CODE §§ 61-32-03, 61-28-09(1).

Indeed, beyond these examples, every State has

authority under its own laws to protect water quality

in the context of water transfers. See, e.g., A.R. 1460 at

2.7 And regulation under those laws is often substantially broader than regulation under the Clean Water

Act itself would be. Many States, including several of

the Petitioners here, regulate not just the “navigable

waters” that are subject to the Act, but also ground water and other waters that fall outside the Act’s mandatory scope. See, e.g., CAL. WATER CODE § 13050; COLO.

REV. STAT. § 25-8-103(19); CONN. GEN. STAT. § 22a-423;

DEL. CODE ANN. tit. 7, § 6003(a)(2); ME. REV. STAT. tit.

38, § 361-A(7); MICH. COMP. LAWS § 324.3101(z); N.M.

STAT. ANN. § 74-6-4; N.Y. ENVTL. CONSERV. LAW § 170105(2). This reflects the fact that—as the Act itself

recognizes—States have “primary responsibilit[y] . . .

Additionally, state common law categorizes water pollution

as a trespass against a downstream user’s water rights. In Colorado, for example, “a common law theory . . . prohibits the discharge of contaminants into streams where doing so makes the

water unsuitable for an[other] appropriator’s normal use of water.” In re Application for Plan for Augmentation of City and Cty.

of Denver, 44 P.3d 1019, 1028 (Colo. 2002). The same is true in

other States. See, e.g., California v. Campbell, 138 F.3d 772, 780

(9th Cir. 1997) (noting that under California law water pollution

is a public nuisance); Phillips v. Davis Timber Co., Inc., 468 So. 2d

72, 79 (Miss. 1985) (holding that the plaintiff was “entitled to an

injunction enjoining and prohibiting further [pentachlorophenol]

pollution into his lake”).

to prevent, reduce, and eliminate pollution.” 33 U.S.C.

§ 1251(b); see also id. § 1370 (recognizing that States

may impose more stringent water quality regulations

than those required by the Act).

Federal alternatives. The federal government

likewise has regulatory tools available outside the

NPDES program to address any potential negative effects of water transfers. The Second Circuit listed a few

such tools, including provisions under the Clean Water

Act itself, as well as “other federal statutes and regulations . . . like the Safe Drinking Water Act” and “the

Federal Energy Regulatory Commission’s regulatory

scheme for non-federal hydropower dams.” Pet. App.

76a–77a. Given that the federal government is often

involved in major water transfer projects, statutes like

the National Environmental Policy Act (“NEPA”) and

the Endangered Species Act can also play a significant

role.8

The Petition by the State of New York claims that

these tools are insufficient to “resolv[e] interstate disputes over water pollution.” Pet. 17 (No. 17-418). But

water transfers “do not often have interstate or international effects.” Pet. App. 79a. And when they do,

These statutes can prompt state-federal cooperation in the

context of water transfers. For example, the Colorado-Big Thompson Project affects the clarity of receiving waters, and federal,

state, and local parties with interests in the project are working

together under a memorandum of understanding to address the

issue while Reclamation completes its NEPA process. See Bureau

of Reclamation et al., Memorandum of Understanding 16-LM-60257B, Grand Lake Clarity Stakeholders’ Memorandum of Understanding 1 (2016), http://co.grand.co.us/DocumentCenter/View/7935.

other mechanisms are available to address crossboundary issues. For example, more than a dozen interstate compacts involving more than twenty-five

States facilitate interstate pollution control.9 Indeed,

the Act specifically authorizes States to negotiate interstate compacts “for the prevention and control of

pollution.” 33 U.S.C. § 1253(b).

Other provisions of the Act requiring interstate coordination have been successful in the past. In the Colorado River Basin—which includes a huge number of

water transfer projects—salinity has been a particular

concern to downstream States since the 1970s. See Environmental Protection Agency, Regions VII and IX,

The Mineral Quality Problem in the Colorado River:

Summary Report (1971). In response to this concern,

EPA promulgated a basin-wide salinity control plan,

and Congress legislated on the issue, in the early

1970s. See Colo. River Basin Salinity Control Forum,

Water Quality Standards for Salinity, Colorado River

System 5 (Oct. 2017), http://www.coloradoriversalinity.org/

docs/2017%20Review%20-%20FINAL.pdf. Around the

same time, the seven Colorado River Basin States

See, e.g., Delaware River Basin Interstate Compact between

the State of Delaware, the State of New Jersey, the State of New

York, and the Commonwealth of Pennsylvania, Pub. L. No. 87-328,

75 Stat. 688, art. 5, sec. 5.1 (Sept. 27, 1961) (“The commission may

. . . acquire, construct, operate and maintain projects and facilities

to control potential pollution and abate or dilute existing pollution

of the water resources of the basin.”); Red River of the North Compact between the State of South Dakota, the State of North Dakota, and the State of Minnesota, Pub. L. No. 456, 52 Stat. 150,

art. II (Apr. 2, 1938) (“Each of the States . . . undertake to cooperate . . . for . . . the prevention of the pollution of such waters.”).

established an interstate cooperative effort, the Salinity Control Forum, to satisfy the States’ obligation under the Act to work together in addressing water

quality concerns. Id. (“The Forum was created for interstate cooperation and to provide the states with the

information necessary to comply with Section 303(a)

and (b) of the Clean Water Act.”). As a result of these

efforts, salinity levels in the basin have declined significantly. Id. at 13 (“To date, it is estimated that the Program has reduced the annual salt loading in the

Colorado River by approximately 1,330,000 tons, resulting in over 100 mg/L reduction in salinity concentrations in the Lower Basin.”).10

In short, the States and the federal government

have tools available to address water quality concerns

in the context of water transfers, and they in fact employ those tools. The State of New York suggests that

the NPDES program is the only option. Pet. 14–16 (No.

17-418). This is incorrect. Water transfers have never

been subject to the NPDES program nationwide. The

Rule therefore does not create new “dangers,” cause

new “harms,” or “undermine” the alternative protective mechanisms within the Act or other regulatory regimes. Id. at 15–17.

-----------------------------------------------------------------10

Salinity on the Colorado River has also prompted international cooperation. In the 1970s, the United States and Mexico

engaged in discussions on the subject, which led to an agreement

of measures be taken to address salinity issues. Permanent and

Definitive Solution to the Int’l Problem of the Salinity of the Colorado River, Minute No. 242 (Aug. 30, 1973), Int’l Boundary and

Water Comm’n United States and Mexico.

CONCLUSION

For these reasons, as well as those set forth in the

Brief in Opposition by the United States, the Court

should deny the petitions for writ of certiorari.

Respectfully submitted,

CYNTHIA H. COFFMAN,

Attorney General

FREDERICK R. YARGER*,

Solicitor General

GLENN E. ROPER,

Deputy Solicitor General

LAURA CHARTRAND,

Deputy Attorney General,

ANNETTE M. QUILL,

Sr. Asst. Attorney General

PETER D. NICHOLS,

Special Assistant Attorney General

Counsel for Intervenor-Respondent the

State of Colorado

*Counsel of Record

PETER D. NICHOLS

BERG HILL GREENLEAF RUSCITTI LLP

Lead Counsel for Intervenor-Respondents

Western Water Providers

Counsel for National Water

Resources Association, Lower

Arkansas Valley Water

Conservancy District

Additional Counsel for the Western States

HECTOR BALDERAS,

JAHNA LINDEMUTH

Attorney General

STATE OF ALASKA

TANIA MAESTAS,

Deputy of Civil Affairs P.O. Box 110300

CHOLLA KHOURY,

Juneau, Alaska 99811-0300

Director, CONSUMER

(907) 465-2133

AND ENVIRONMENTAL

PROTECTION DIVISION

PETER D. NICHOLS,

Special Assistant

Attorney General

STATE OF NEW MEXICO

P.O. Box Drawer 1508

Santa Fe, New Mexico 87504

(505) 827-6010

DOUG PETERSON

Attorney General of

the State of Nebraska

2115 State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

LAWRENCE G. WASDEN

Idaho Attorney General

P.O. Box 83720

Boise, Idaho 83720-0010

(208) 334-2400

WAYNE STENEHJEM

Attorney General of

North Dakota

600 E. Boulevard Avenue

Bismarck, North Dakota

58505-0040

(701) 328-2210

ADAM LAXALT

Attorney General for

the State of Nevada

OFFICE OF THE

ATTORNEY GENERAL

100 North Carson Street

Carson City, Nevada 89701

(775) 684-1100

TYLER GREEN

Utah Solicitor General

OFFICE OF THE UTAH

ATTORNEY GENERAL

160 East 300 South,

5th Floor

P.O. Box 140858

Salt Lake City, Utah

84114-0858

(801) 366-0533

KEN PAXTON

Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2100

KENNETH C. SLOWINSKI,

PETER K. MICHAEL

Chief Counsel

Attorney General

STATE OF ARIZONA

of Wyoming

DEPARTMENT OF

OFFICE OF THE

WATER RESOURCES

ATTORNEY GENERAL

3550 North Central Avenue 123 State Capitol

Phoenix, Arizona 85012

Cheyenne, Wyoming 82002

(602) 771-8474

(307) 777-7844

Additional Counsel for the Western Water Providers

DON BAUR, ESQ.

MARCIA SCULLY,

PAUL B. SMYTH, ESQ.

General Counsel

PERKINS COIE LLP

JILL C. TERAOKA, Senior

700 13th Street NW,

Deputy General Counsel

Suite 600

KAREN L. DONOVAN, Senior

Washington, DC 20005-2000 Deputy General Counsel

Counsel for Western Urban PATRICK B. ROHEN,

Water Coalition

Deputy General Counsel

METROPOLITAN WATER

DISTRICT OF

SOUTHERN CALIFORNIA

P.O. Box 54153

Los Angeles, California

90054

PATRICIA L. WELLS,

General Counsel

CITY AND COUNTY

OF DENVER, BOARD OF

WATER COMMISSIONERS

1600 West 12th Avenue

Denver, Colorado 80204

JAY JOHNSON, ESQ.

General Counsel

CENTRAL ARIZONA WATER

CONSERVATION DISTRICT

P.O. Box 43020

Phoenix, Arizona 85080

JOANNA SMITH HOFF, ESQ.

Assistant Counsel

IMPERIAL IRRIGATION DISTRICT

P.O. Box 937

Imperial, California 92251

SHAWN E. DRANEY, ESQ.

SNOW, CHRISTENSEN AND

MARTINEAU, PC

P.O. Box 45000

Salt Lake City, Utah 84145

Counsel for Metropolitan

Water District of Salt

Lake City & Sandy

THOMAS A. CARR, ESQ.

City Attorney

CITY OF BOULDER

1777 Broadway

Boulder, Colorado 80302

STEVEN E. CLYDE, ESQ.

CLYDE SNOW & SESSIONS

201 South Main Street,

13th Floor

Salt Lake City, Utah

84111-2216

Counsel for Central

Utah Water

Conservancy District

DALLIN W. JENSEN, ESQ.

PARSONS BEHLE & LATIMER

201 South Main Street,

Suite 1800

Salt Lake City, Utah 84111

Counsel for Washington

County Water Conservancy

District, Kane County

Water Conservancy District

PATRICK B. SIGL, ESQ.

STEFANIE MORRIS, ESQ.

Supervising Attorney,

General Counsel,

LAND & WATER RIGHTS

STATE WATER CONTRACTORS

LAW SERVICES

1121 L Street, Ste. 1050

Salt River Project

Sacramento, California

1500 N. Mill Avenue

95814

Tempe, Arizona 85281-1298 Counsel for [California]

State Water Contractors

LEE MILLER, ESQ.

General Counsel

SOUTHEASTERN COLORADO

WATER CONSERVANCY

DISTRICT

31717 United Avenue

Pueblo, Colorado 81001

CHRISTINE MCKENNEY

Assistant City Attorney

CITY OF AURORA

15151 E. Alameda Parkway,

Fifth Floor

Aurora, Colorado 80012

JONATHAN KNAPP

Deputy City Attorney

OFFICE OF THE

CITY ATTORNEY

CITY AND COUNTY OF

SAN FRANCISCO

1390 Market Street,

Suite 418

San Francisco, California

94102

GREGORY J. WALCH, ESQ.

General Counsel

SOUTHERN NEVADA

WATER AUTHORITY

1001 South Valley

View Boulevard

Las Vegas, Nevada 89153

Counsel for Las Vegas

Valley Water District

BRIAN POULSEN, ESQ.

General Counsel

EL DORADO

IRRIGATION DISTRICT

2890 Mosquito Road

Placerville, California 95667

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.