Amicus Curiae Brief — South Florida Water Management District v. Miccosukee Tribe of Indians

Z FIYED

~! SEP 10 2003

No. 02-626

! UFFICE OF Te CLERK

In The

Supreme Court of the Anited States

°

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Petitioner,

V.

MICCOSUKEE TRIBE OF INDIANS, et al.,

Respondents.

¢

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

¢

BRIEF AMICI CURIAE OF THE STATES

OF COLORADO AND NEW MEXICO

IN SUPPORT OF PETITIONER

¢

KEN SALAZAR, Attorney General*

ALAN J. GILBERT, Solicitor General

FELICITY HANNAY, Deputy

Attorney General

ANTHONY S. TRUMBLY, Senior

Assistant Attorney General

State of Colorado

1525 Sherman Street, 5th Floor

Denver, Colorado 80203

(303) 866-3557

(303) 866-3558 (fax)

*Counsel of Record for all Amici

PATRICIA A. MADRID,

Attorney General

GLENN R. SMITH, Deputy

Attorney General

STEPHEN R. FARRIS, Assistant

Attorney General

State of New Mexico

P.O. Drawer 1508

Santa Fe, New Mexico 87504

(505) 827-6010

(505) 827-4440 (fax)

[Additional Amici Listed on Inside Cover]

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

MARK J. BENNETT MARK L. SHURTLEFF

Attorney General Attorney General

State of Hawaii State of Utah

425 Queen Street 236 State Capitol

Honolulu, HI 96813 Salt Lake City, UT

LAWRENCE WASDEN 84114-0810

Attorney General PATRICK J. CRANK

State of Idaho Attorney General

P.O. Box 83720 State of Wyoming

Boise, ID 83720-0010 123 State Capitol

Jon BRUNING Cheyenne, WY 82202

Attorney General

State of Nebraska

2115 State Capitol

Lincoln, NE 68509

BRIAN SANDOVAL -

- Attorney General

State of Nevada

100 North Carson Street

Carson City, NV 89701-4717

WAYNE STENEHJEM

Attorney General

State of North Dakota

600 East Boulevard Avenue

Bismarck, ND 58505-0040

LAWRENCE E. LONG

Attorney General

State of South Dakota

500 East Capitol Avenue

Pierre, SD 57501-5070

GREG ABBOTT

Attorney General

State of Texas

P.O. Box 12548

Austin, TX 78711-2548

BEST AVAILABLE COPY |

QUESTION PRESENTED

Does the mere diversion and delivery, from one stream or

water body to another, of water that contains pollutants

require a National Pollutant Discharge Elimination

System permit under the federal Clean Water Act, 33

U.S.C. §§ 1251-1387?

~~

.

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE 0...0..0ccccccccsecsvesvesveees 1

SUMMARY OF ARGUMENT. ...........cccecsessecseeseeeeenees 5

PE AAT TR ERLE 6

The Eleventh Circuit’s Opinion is Contrary to

the Plain Language of the Clean Water Act

and Congress's Intent to Defer to the States’

ER Ge Ce ccnenccccstnnnntnteincinmnisianancemaniaats

A. Congress Expressly Rejected Interference

with State Water Law ...0...............::cceceeeeeees

B. Section 101(g) of the Clean Water Act

Expresses a Clear Intent to Protect State

C. The Legislative History of Section 101(g)

Confirms Congress’s Intent to Refrain

From Interfering with State Water Law

ee

Requiring NPDES Permits For Transbasin

Diversions Would Interfere With the States’

SF ee

A. The Supreme Court and Congress Have

Long Deferred to the States’ Water

Allocation Laws, Beginning with the

Equal Footing Doctrine .......................0000008

B. Requiring NPDES Permits for Transbasin

Diversions/Deliveries Would Abrogate

Water Allocations Because Diverters

Would Have to Forgo the Full Exercise of

Their Water Rights to Comply with Permit

11

12

If.

iii

TABLE OF CONTENTS - Continued

~

C. Requiring NPDES Permits for Transbasin

Diversions/Deliveries Would Interfere with

the Maximum Utilization of the States’

iii acini

D. Requiring NPDES Permits For Transbasin

Diversions/Deliveries Would Interfere with

Interstate Water Allocations .......................

States Can and Do Appropriately Address

Water Quality Impacts from the Diversion/

Gy Ge crerinnrtriieniniinntnnciinseeisneninininmnitinns

A. State “Water Quantity Law” Permits the

Conveyance of Water for Beneficial Uses

But Not for Waste Disposal.........................

B. State “Water Quality Law” Appropriately

Addresses the Water Quality Effects of

Transbasin Diversions/Deliveries ...............

IS cocnssenseccscsncescssesesnsesssnsensenteasmsenccsomunes

Page

18

iv

TABLE OF AUTHORITIES

Page

CASES

Arizona v. California, 373 U.S. 546 (1963)........................ 21

Atchison v. Peterson, 87 U.S. 507 (1874)..............cccccceeeeees 23

California Oregon Power Co. v. Beaver Portland

Cement Co., 295 U.S. 142 (1935) ................ccccceceeeeeees 6,13

California v. United States, 438 U.S. 645 (1978) ........ 12, 14

City of Los Angeles v. City of Glendale, 23 Cal.2d 68

scien ceartataataena leant iterates iltiaiaiiiiaaiinat 19

Dingwell v. Town of Litchfield, 4 Conn. App. 621,

I ice enraretiineibeell 27

Dubois v. United States Dep’t of Agric., 102 F.3d

I isi crtar i ciccenirndaaieaneeminetneniiienimintatl 29

Envtl. Def. Fund, Inc. v. E. Bay Mun. Dist., 26

oP DE 26

Erickson v. McLean, 62 N.M. 264, 308 P2d 983

ner eee TEE 24

Fellhauer v. People, 167 Colo. 320, 447 P.2d 986

ITT irises aeecaadiatieieneiaiatl 18

Fox River Paper Co. v. R.R. Comm'n of Wisconsin,

I I aii aticaci canara 13

Gregory v. Ashcroft, 501 U.S. 452 (1991)............cccccccceeeeeeee 6

Hoffman v. Stone, 7 Cal. 46 (1857) ...............ccccccceseeeeeeeeeees 19

In Re Concerning Application for Plan for Augmentation

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

I ensenisigrhdaesensaiarahlieiateaaiasnteniilnetaaiietnincen el nmarisitsiatraindaaaiianial 27

Jicarilla Apache Tribe v. United States, 657 F.2d

NN 18

v

TABLE OF AUTHORITIES -— Continued

Page

Joslin v. Marin Mun. Water Dist., 67 Cal.2d 132,

eee 24

Kaiser Steel Corp. v. W.S. Ranch Co., 81 N.M. 417,

ESSE nce aS Tm 18

Kansas v. Colorado, 206 U.S. 46 (1907)................. 12, 13, 15

Leo v. Gen. Elec. Co., 145 A.D.2d 291, 538 N.Y.S.2d

ES Ee se cee ae a SO 27

Miccosukee Tribe of Indians of Florida v. S. Florida

Water Mgmt. Dist., 280 F.3d 1364 (CA11 2002)...1, 3, 5, 30

Mt. Emmons Mining Co. v. Town of Crested Butte,

ee 28

N. Plains Res. Council v. Fid. Exploration & Dev.

EEE 29

Nat’ Wildlife Fed’n v. Gorsuch, 693 F.2d 156

Sa inet ceieaadiasineietalananatintatiieeeeatetertinaiieeminnieenll 22

Penn. R.R. v. Sagamore Coal Co., 281 Pa. 233, 126

ETT LE FO 27

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

A Ti octtnintenareenias naan eaearn ial enrmnieremneeenieteietiatenl 27

Planning and Conservation League v. Dep't of

Water Resources, 83 Cal. App. 4th 892, 100 Cal.

BEET STITT tocnsucrnrinintasnsitiinieiensennesnminenmemntitanatiinl 19

PUD No. 1 of Jefferson County v. Wash. Dep’t of

Ecology, 511 U.S. 700 (1994).............cccccsecesssseceeeeeees 26, 27

Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109

SE UII csintitninienineninginummmpmmntmeeennienemenneiel 23

Sharp v. 251st St. Landfill, Inc., 925 P.2d 546 (Okla.

a icsirnseninseeuneniennmmnennsnnietapiannmntrnsteeumimencnsnsiil 27

vi

TABLE OF AUTHORITIES — Continued

Page

Shokal v. Dunn, 109 Idaho 330, 707 P.2d 441 (1985)........ 25

Solid Waste Agency of N. Cook County v. United

States Army Corps of Eng’rs, 531 U.S. 159 (2001).......... 6,7

Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo.

TIT sesiesiertantesecnihamasinieanaiimaniinnieessiaiiamnanbiteimiiuataaniniainneeties 24

Tulkisarmute Native Comty. Council v. Heinze, 898

DO 25

United States v. Alpine Land & Reservoir Co., 697

oO 0) EE 23

United States v. Lopez, 514 U.S. 549 (1995) ...........cceceeees 6

United States v. Rio Grande Dam & Irrigation Co.,

a 14

Wisniewski v. Gemmill, 123 N.H. 701, 465 A.2d 875

TIT sssenshesentsintesineusianatinineenleannigantanientatbiaiibebaneanpeanentit 25

STATUTES

Act to provide for the Admission of the State of

Wyoming into the Union, ch. 664, 26 Stat. 222

GR ccensouvnsusssnmesssnsessemneenmggenemnennennensmmmanene 13

ARIZ. REV. STAT. § 45-1811) (2002) .........cccccceeeeeereeeeeeeenes 23

CALIFORNIA WATER CODE § 7075 (2002)...........::cccccceeeeeeeees 19

Clean Water Act, 33 U.S.C. § 18138 .0.........ccccccccccceeeeeeeeeeeees 3

Clean Water Act, 33 U.S.C. § 1313(d)...........cccccccceceeeereeeees 17

Clean Water Act, 33 U.S.C. § 1341(a)(1) ..........cccccececeeeeeees 26

Clean Water Act, 33 U.S.C. § 1370 .0........cccccccccceeeeeeeeeeeeeeees i]

Clean Water Act, 33 U.S.C. § 1251 00.......ccccccccccceeeeeeeees 7, 8,9

Clean Water Act, 33 U.S.C. § 1344.00.00... cece ceeeeeeeeeeeees 26

Vii

TABLE OF AUTHORITIES — Continued

Page

COLO. REV. STAT. § 25-8-101(1) (2002) ..........ccccecsceseeneeneees 29

COLO. REV. STAT. § 25-8-104 (2002) ..0........ccccccceseeseeeseeeneees 29

CoLo. REV. StaT. § 25-8-202(7)(b)A) (2002)............ccecceeees 29

COLo. REV. STAT. § 25-8-205(1)(c) (2002) ...........ccccceeseeseeees 28

COoLo. REV. STAT. § 25-8-503(5) (2002) ............cccccceeceeseeeees 28

COoLo. REV. STAT. § 31-15-707(1) (2002) ...........ccccccceeeseeeees 28

COLO. REV. STAT. § 37-80-120 (2002) ...........:ccccceereeeseeeeeees 19

CoLo. REv. Sta. § 37-83-104 (2002) ..............0000 ennenmenisian 19

COoLo. REV. STAT. § 37-92-308(7) (2002) ...........ccccceceeeseeees 20

Colorado River Compact, 42 Stat. 171 (1921)................... 20

Crested Butte, [Colo.], Town Code, 4 14-5-10(B)

SEITE ciciteiennianssllnccscnneiiiiimunmaineminieiianmemmnnesl 28

Desert Land Act of 1877, ch. 107, 19 Stat. 377

ne 13

Federal Reclamation Act, 43 U.S.C. § 383 .................. 13, 14

FLA. STAT. § 373.019(13) (2002) .............cccccsscceeeescceeereeeeeees 25

FLA. STAT. § 373.223(1) (2002) ............cserccccsrrcsserererseeeeeeees 25

Joint Resolution to Admit the Territories of New

Mexico and Arizona as states into the Union,

Pub. Res. 8, 37 Stat. 39 (1911) .............cceceesssssereceeeenees 13

Mining Act of 1866, codified at 43 U.S.C. § 661 ................000 13

Mining Act of 1870, 16 Stat. 218, codified at 30 U.S.C.

PEE iia nasenensiateinnmeiienmensddtneenuinsiindatinneeamemanentee 13

MONT. CODE. ANN. § 85-2-102 (2002).............cccceeeeeeeeeeeeeees 23

IN.BG, CORBR.. O86. DVI, § B ...ccsccccrcsccccccccecccossccccsccvcscscesscees 13

Viii

TABLE OF AUTHORITIES — Continued

Page

National Environmental Policy Act, 42 U.S.C.

By GEE wesernsenccenececncssennssesensasannmnenntennsnpsesnsemioginsesusctnnsenescee 17

Rio Grande Compact, 53 Stat. 785 (1939) ............:cccceeeeees 20

., fo © 9 § ) ee 13

OTHER AUTHORITIES

42 Fed. Reg. 36,788 (July 15, 1977).........cccccssecsceeseeseeeeees 10

42 Fed. Reg. 36,793 (July 15, 1977)..........cccccseceseeeseeeeeeees 10

H.R. ConF. REP. No. 95-830, at 52 (1977), reprinted

in 3 LEGISLATIVE HISTORY OF THE CLEAN WATER

FING cccscemnssetnieidinnientiannsiannianinininnininanns 11

S. DesB.: August 4, 1977, reprinted in 1977

LEGISLATIVE HISTORY at 1030.............cccccceeeseeeeeeeeeeeeeeeees 10

S. DeEB.: Dec. 15, 1977, reprinted in 1977

FD FY | en 11

REGULATIONS

eRe FE 8 ee 26

SD CER. © BB Aied GI ccecscccccccsccsccescscsccsccncncsrssovesesnenees 26

40 CBR. § IBB.Zi]) (BOGE) ...crrcrecccerccccessccscccccssccccescccesesees 20

40 C.F.R. § 122.44(d)(1)(i) (2002) ....... cece ecccceeeeeeteeeeeeeeeeeeees 15

Pe eee 20

40 C.BR. § 196.200) (BOGE)...ncrcoccccsccccccscsccescosccoccccssoscesesees 20

40 C.F.R. § 124.15(a) and (b) (2002) .........eccceeceseeeeneeeenees 20

Pe BP 17

40 C.F.R. § 131.12 (2002) ................cccccsccrrrcccseseerereeeeeeeees 17

1

INTEREST OF AMICI CURIAE

Amici curiae, the Attorneys General of Colorado and

New Mexico, joined by other states listed on the inside

cover of this brief, submit this brief in support of Peti-

tioner South Florida Water Management District seeking

reversal of the lower court’s decision in Miccosukee Tribe of

Indians of Florida v. S. Florida Water Mgmt. Dist., 280

F.3d 1364 (CA11 2002) (“Miccosukee”).’

The Eleventh Circuit decision would impose permit-

ting requirements on the simple diversion and delivery of

water in an unaltered condition from one basin to another

basin. These requirements would interfere with the states’

ability to meet the needs of their residents and to meet

their obligations under interstate water compacts. In

addition, the decision would impair individual water

rights as a water right owner could be forced to give up or

reduce water diversions or construct prohibitively expen-

sive treatment facilities in order to meet these permitting

requirements.

All fifty states allocate the waters within their

boundaries for “beneficial” or “reasonable” use under one ~

of two prevailing legal doctrines. The arid western states

generally follow the prior appropriation doctrine whereas

other states use the riparian doctrine. The holding of the

Eleventh Circuit would substantially and inappropriately

' The eighteen member states of the Western States Water Council

recently adopted, by a vote of fifteen with three abstentions, a resolu-

tion opposing a requirement that transbasin diversions/deliveries

obtain a discharge permit unless the purpose of the diversion/delivery is

waste disposal.

2

interfere with the operation of state water laws estab-

lished under both doctrines.

West of the 100th Meridian, the nation is generally

arid; that is, it receives less than the thirty inches of

annual precipitation necessary to sustain non-irrigated

agriculture. Unfortunately, the timing and location of

precipitation do not correlate well with on-the-ground

demands. Hence, it is necessary to divert and deliver

water through a complex system of manmade and natural

conveyances and reservoirs that operate under some form

of the prior appropriation system. This allows the West to

sustain its cities, farms and ranches. Without this system,

many nationally important agricultural regions could not

support crops, including Weld and Larimer Counties in

Colorado, the Central and Imperial Valleys of California,

the Snake River Valley of Idaho and the Yakima Valley of

Washington. Without this system, many of the West's

great cities, including Albuquerque, Denver, Las Vegas,

Los Angeles, Phoenix, San Francisco and Salt Lake City,

simply would not have flourished.

In Colorado, forty-nine major transbasin diver-

sions/deliveries move an average of 550,000 acre feet per

year of water (“af/year”) to supplement supplies in other

basins. Transbasin diversions/deliveries include the

Colorado-Big Thompson/Windy Gap Projects, which deliver

nearly 280,000 af/year to supplement the water supplies of

thirty cities and towns and over 600,000 acres of farmland.

Colorado Springs employs six transbasin diversions/

deliveries to move 75,000 af/year, eighty percent of its total

supply, to city residents. Denver similarly moves over

200,000 af/year through two transmountain tunnels to

meet nearly half the city’s needs. Sixty percent of Colorad-

ans depend on transbasin diversions/deliveries for at least

3

part of their domestic supplies. In addition, over fifty

percent of Colorado’s irrigated farmland relies on trans-

basin diversions/deliveries. To date, none of these facilities

has been subjected to National Pollutant Discharge

Elimination System (“NPDES”) permitting.’

Under the “but for” test of Miccosukee, at each point

where a ditch, canal, tunnel or pipeline delivers its water

to a stream or reservoir, a permit, including terms and

conditions, would be required if the water would not have

reached that point “but for” man’s action.’ For example,

the Fort Lyon Canal in the Arkansas River Basin, Colo-

rado’s driest watershed, carries water from the Arkansas

River and two reservoirs for 113 miles almost to the

Kansas State Line. It serves 93,000 acres of irrigated

farmland, in the process crossing or flowing through seven

creeks and arroyos and two reservoirs. The Eleventh

Circuit’s opinion would require the Canal’s operator to

obtain as many as nine permits. The water of the Arkan-

sas River is high in total dissolved solids, so the Canal’s

operator might have to build one or more water treatment

* Colorado has at least several hundred transbasin diver-

sions/deliveries in the state that could require permits under the

holding of Miccosukee. The water quality of Colorado’s streams and

lakes is generally excellent without the imposition of NPDES permits

on transbasin deliveries. Of its 107,403 miles of streams, only 4,964

(4.6%) are designated as “impaired,” not meeting water quality

standards or designated uses, under the Clean Water Act, 33 U.S.C.

§ 1313. There is no evidence that transbasin diversions/deliveries are

the cause of any of these impairments.

* “Flor an addition of pollutants to be from a point source, the

relevant inquiry is whether — but for the point source — the pollutants

would have been added to the receiving body of water.” Miccosukee, 280

F.3d at 1368.

4

plants in order to meet NPDES permit requirements. This

is neither financially nor technically feasible for canal

shareholders, many of whom are economically-depressed

farmers and ranchers.

In New Mexico, the San Juan-Chama Project diverts

90,500 af/year on average from the Colorado River Basin

through transmountain tunnels to the Rio Grande Basin.

The Project provides water to the cities of Albuquerque

and Santa Fe, to farmers in the Middle Rio Grande Con-

servancy District, and to Indian Tribes and Pueblos. By

offsetting depletions in the Rio Grande Basin, the San

Juan-Chama Project water allows New Mexico to make

full use of its allotment under the Rio Grande Compact. In

the absence of the San Juan-Chama Project, the City of

Albuquerque would be forced to rely upon pumping from

non-renewable aquifers for its municipal supplies, other

cities and Pueblos would be left critically short of a supply,

and thousands of acres of farmland in the Middle Rio

Grande valley would lose their irrigation supply. In times

of severe drought like 2002-2003, imported water from the

San Juan-Chama Project provides much of the water in

storage in the Middle Rio Grande valley in New Mexico.

In Arizona, the Central Arizona Project moves 1.5

million af/year from the Colorado River Basin to supple-

ment dwindling groundwater supplies in the Phoenix and

Tucson areas. In the upper Colorado River Basin, at least

thirty-six major transbasin diversions/deliveries move

700,000 af/year of Colorado River water into other basins

in Colorado, New Mexico, Utah and Wyoming.

California’s State Water Project is the largest trans-

basin transfer in the country, delivering up to 4.7 million

af/year through the San Francisco Bay Delta to provide

5

supplemental water to twenty million Californians and

660,000 acres of irrigated farmland. The Bureau of Recla-

mation’s Central Valley Project similarly delivers about 7.3

million af/year to irrigate 2.6 million acres and for urban

and wildlife uses. In addition, diversions/deliveries from

the Colorado River to Southern California for irrigation

and municipal use total 4.5 to 5.2 million af/year.

¢

SUMMARY OF ARGUMENT

The economic and social well-being of the West and

the nation depend on the ability to divert and move water

resources pursuant _to state law. At risk as a result of the

Eleventh Circuit decision is the continued ability to divert

freely water from one basin for delivery in another basin

in order to meet municipal, agricultural and industrial

demands.

The Eleventh Circuit decision in Miccosukee would

impose discharge permit requirements under the Clean

Water Act on transbasin diversions/deliveries. Such permit

requirements would interfere with the states’ ability to

allocate their waters to meet the needs of their citizens

and to comply with interstate compacts. Water diverters

would face losing the use of some or all of their water

rights in order to meet permit requirements.

This interference in state water law is contrary to the

deference historically shown by Congress and this Court to

the states in matters of water allocation and use. The

Clean Water Act clearly expresses Congress’s intent to

honor long-standing federal deference to state water law.

It certainly lacks any “clear statement” that Congress

intended to alter this established federal-state framework.

6

In the Clean Water Act, Congress appropriately

deferred to the states to protect water quality while

allocating water resources to meet the needs of their

citizens. The states are well equipped to perform this task

under state law.

¢

ARGUMENT

I. The Eleventh Circuit’s Opinion is Contrary to

the Plain Language of the Clean Water Act and

Congress’s Intent to Defer to the States’

Allocation of Water.

Congress expressed its clear intent to honor state

water allocation law in the plain language of the Clean

Water Act (“Act”), as confirmed by the Act’s legislative

history. The holding in Miccosukee directly conflicts with

the language in the Act and Congress’s intent.

A. Congress Expressly Rejected Interference

with State Water Law.

Land and water use decisions are traditionally and

primarily state prerogatives. See Solid Waste Agency of N.

Cook County v. United States Army Corps of Eng’rs, 531

U.S. 159, 174 (2001) (“SWANCC”). As the Court reiterated

in SWANCC, where a statutory interpretation “alters the

federal-state framework by permitting federal encroach-

ment upon a traditional state power,” Congress must

clearly convey its intent. Jd. at 173. See also Gregory v.

Ashcroft, 501 U.S. 452, 461 (1991); United States v. Lopez,

514 U.S. 549, 581 (1995) (Kennedy, J., concurring). Requir-

ing NPDES permits for the simple movement of water

from one basin to another would intrude upon matters

7

that are “subject to the plenary control of the designated

states ....” California Oregon Power Co. v. Beaver Port-

land Cement Co., 295 U.S. 142, 164 (1935). Under the

Eleventh Circuit opinion, this unwarranted intrusion on

state sovereignty occurs in the face of a clear directive

from Congress that it intended to respect the ability of

states to control and manage their water resources.‘

The opening provision of the Clean Water Act clearly

demonstrates Congress's intent to preserve the historical

federal-state balance concerning the allocation of water.

Congress chose to “recognize, preserve, and pro-

tect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollu-

tion, to plan the development and use (including

restoration, preservation, and enhancement) of

land and water resources, and to consult with the

Administrator in the exercise of his authority

under this chapter.”

SWANCC, 531 U.S. at 166-67 (quoting 33 U.S.C. § 1251(b))

(emphasis added). Congress did not intend to interfere

with state water law or allocations.’ The Eleventh Circuit

decision is in derogation of that congressional directive.

* It cannot be forgotten that the owners and operators of the water

systems are not adding pollutants to any water diverted/delivered; they

are simply moving unaltered water from one water body to another.

* States, in the exercise of state law, may require transbasin

diversions to be permitted, but the states should not be required to do

80.

B. Section 101(g) of the Clean Water Act Ex-

presses a Clear Intent to Protect State Wa-

ter Allocations.

Congress adopted section 101(g) as part of its 1977

amendments to the Clean Water Act:

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 this chapter. It is the

further policy of Congress that nothing in this

chapter shall be construed to supersede or abro-

gate rights to quantities of water which have been

established by any State. Federal agencies shall

co-operate with State and local agencies to de-

velop comprehensive solutions to prevent, reduce

and eliminate pollution in concert with programs

for managing water resources.

33 U.S.C. § 1251(g) (emphasis added). In plain language

Congress declared that the authority of each state to

allocate quantities of water will not be impaired by the

Act. Congress did not stop there. Congress took another

step and pledged that nothing in the Act will be construed

to abrogate water rights established by any state. Rather,

to the extent water quality concerns arise in the context of

water allocation decisions, the federal government is to

cooperate with the states in developing appropriate

solutions outside of the regulatory directives of the point

source permit program.°

* See Petitioner’s brief for an explanation of the section 402

. ~eSiake a,

In adopting section 101(g), Congress built upon

language in 1972 Amendments to the Act that already

recognized federal deference to the states.

It is the policy of Congress to recognize, preserve,

and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution, to plan the development and use (in-

cluding restoration, preservation, and enhance-

ment) of land and water resources, and to consult

with the Administrator in the exercise of his au-

thority under the chapter.

33 U.S.C. § 1251(b) (emphasis added). Similarly, section

510 of the 1972 Amendments declared “[e]xcept as ex-

pressly provided in this chapter, nothing in this chapter

shall ... 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 (emphasis added). Thus, as it refined the

Act over the years Congress progressively reinforced

federal deference to state water law and allocations made

thereunder. Requiring discharge permits for the simple

conveyance of water directly conflicts with Congress’s

plain language.

C. The Legislative History of Section 101(g)

Confirms Congress’s Intent to Refrain

From Interfering with State Water Law and

Allocations.

The legislative history of section 101(g) of the Act

expressly confirms Congress’s intent to reaffirm the

longstanding tradition of federal deference to state

10

jurisdiction over water use decisions. The Senate adopted

the Wallop/Hart amendment’ in response to suggestions

that reducing water diversions/deliveries under state

water law might be necessary to solve water quality

problems.’ The Conference Committee, which included

Senators Malcolm Wallop and Gary Hart, made minor

changes to the language of the amendment and added it to

the legislative declaration, explaining:

[I]t is the policy of Congress that the authority of

each State to allocate quantities of water within

its jurisdiction should not be superseded, abro-

gated or otherwise impaired by this Act ... . [and]

that nothing in this Act should be construed to

supersede or abrogate rights to quantities of wa-

ter that have been established by any State.

August 4, 1977, reprinted in 1977 LEGISLATIVE History at 1030.

* The amendment was prompted by concerns over proposals

contained in “the Issue and Option Papers for the Water Resource

... conducted by the Water Resource Council,” released

earlier. 42 Fed. Reg. 36,788 (July 15, 1977). Several

in the Water Resource Council's Issue Paper (“WRC Paper”)

11

H.R. Conr. REP. No. 95-830 at 52 (1977), reprinted in 3

LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 at

236 (1978) (hereinafter “i977 LEGISLATIVE HISTORY”).

Senator Wallop explained the Conference Substitute

in similar terms on the Senate floor:

The conferees accepted an amendment which will

reassure the State [sic] that it is the policy of

Congress that the Clean Water Act will not be

used for the purpose of interfering with State wa-

ter rights systems.

* * a

The amendment simply states that it is the policy

of Congress that the authority of each State to al-

locate quantities of water within its jurisdiction

shall not be superseded, abrogated or otherwise

impaired by this act. It also states that it is the

further policy of Congress that nothing in this act

will be construed for the purpose of superseding

or abrogating rights to quantities of water which

have been established by a State.

S. Des.: Dec. 15, 1977, reprinted in 1977 LEGISLATIVE

History at 531 (emphasis added).

The legislative history of section 101(g) clearly con-

firms that Congress intended to leave historical deference

to state water law undisturbed, while recognizing a more

general federal role in protecting water quality. Where

water quality and quantity concerns intersect, the state’s

authority over quantity is to remaiu inviolate.

II. Requiring NPDES Permits for Transbasin

Diversions Would Interfere with the States’

Water Allocation Laws.

The Eleventh Circuit decision interferes with funda-

mental aspects of the appropriation doctrine of beneficial

12

use because requiring NPDES permits for simple trans-

basin diversions/deliveries would supersede (reduce) state-

established quantitative limits on water rights. Permit

conditions that prevent the physical conveyance and use of

some or all of the water legally available under individual

water rights allocated under state law would directly

abrogate state water allocations. Such federal interference

has important implications, not only for individual water

rights, but also for comity among the states under inter-

state compacts and equitable apportionments and for the

maximum utilization of scarce water resources.

A. The Supreme Court and Congress Have

Le. g Deferred to the States’ Water Alloca-

tion Laws, Beginning with the Equal Foot-

ing Doctrine.

In the complicated field of federal-state relationships,

the Supreme Court and Congress have spoken with a clear

and consistent voice regarding the allocation of water. As

the Court observed in its landmark decision in California

v. United States, 438 U.S. 645, 653 (1978):

The history of the relationship between the Fed-

eral Government and the States in the reclama-

tion of the arid lands of the Western States is

both long and involved, but through it runs the

consistent thread of purposeful and continued

deference to state water law by Congress.

Federal deference to state water allocation law began

with the “equal footing” doctrine. Under that doctrine,

Congress granted the Western states, upon their admis-

sion into the Union, sovereignty over the unappropriated

waters in their streams. See Kansas v. Colorado, 206 U.S.

4 13

46, 94 (1907);’ Fox River Paper Co. v. R.R. Comm'n of

Wisconsin, 274 U.S. 651, 655 (1927).

Congress reaffirmed its deference to states’ water

allocation laws when it passed the Desert Land Act of

1877, ch. 107, 19 Stat. 377 (1877). See also Mining Act of

1866, codified at 43 U.S.C. § 661; Mining Act of 1870, 16

Stat. 218, codified at 30 U.S.C. §§51, 52; California

Oregon Power Co., 295 U.S. 142 (The Desert Land Act

effected a severance of all waters upon the public domain

and reserved such water for use under the laws of the

states). Congress repeatedly reaffirmed federal deference to

state water law when it ratified western states’ constitutions

in their acts of admission.” The federal Reclamation Act of

1902 (“Reclamation Act”) similarly affirmed this principle.

32 Stat. 388 (1902), codified at 43 U.S.C. § 383 “

* In Kansas v. Colorado, Kansas argued that Congress had

expressly applied English common law to both states and that the

common law included the riparian system of water rights. The Court

rejected this view and held “leach state] may determine for itself

whether the common law rule in respect to riparian rights or that

doctrine which obtains in the arid regions of the West of the appropria-

tion of waters for the purposes of irrigation shall control. Congress

cannot enforce either rule upon any State.” 206 U.S. at 94.

” For example, the Wyo. Const., art. VIII, § 1 states “[t}he water

of all natural streams, springs, lakes or other collections of still water

... are hereby declared to be the property of the state.” See Act to

provide for the Admission of the State of Wyoming into the Union, ch.

664, 26 Stat. 222 (1890). N.M. Const., art. XVI, § 2, provides “(the

unappropriated water of every natural stream ... is hereby declared to

belong to the public and to be subject to appropriation for beneficial

use.” See Joint Resolution to Admit the Territories of N.M. and Ariz. as

states into the Union, Pub. Res. 8, 37 Stat. 39 (1911).

" The Act authorized the federal government to construct water

resource development projects. However, section eight of the 1902 Act

specifically provided that:

(Continued on following page)

14

In 1978, the Court cemented federa! deference to state

water law in the case of California v. United States, 438

U.S. 645. In that case, the United States challenged

California’s authority to impose conditions on the opera-

tion of New Melones Reservoir, a federal reclamation

facility. The Court rejected the United States’ arguments

and concluded that section eight of the federal Reclama-

tion Act required the federal government “to comply with

state [water] law in the ‘control, appropriation, use, or

distribution of water.’” California v. United States, 438

U.S. at 675. In reaching this conclusion, the Court relied

upon its earlier decisions. “[E]xcept where the reserved

rights or navigation servitude of the United States are

invoked, the State has total authority over its internal

waters.” Id. at 662 (citing United States v. Rio Grande

Dam & Irrigation Co., 174 U.S. 690, 703 (1899).

It is important to note that the Court also made it

clear that federal deference is not unique to the West, but

applies nationally.

[AJrid lands are to be found mainly, if not only[,]

in the Western and newer States, yet the powers

of the National Government within the limits of

those States are the same (no greater and no

Nothing in this act shall be construed as affecting or in-

tended to affect or to in any way interfere with the laws of

any State or Territory relating to the control, appropriation,

use, or distribution of water used in irrigation, or any vested

right acquired thereunder, and the Secretary of the Interior,

in carrying out the provisions of this Act, shall proceed in

conformity with such laws... .

43 U.S.C. § 383.

a

15

less) than those within the limits of the original

thirteen.

Id. at 655 (quoting Kansas v. Colorado, 206 U.S. at 92).

B. Requiring NPDES Permits for Transbasin

Diversions/Deliveries Would Abrogate Water

Allocations Because Diverters Would Have

to Forgo the Full Exercise of Their Water

Rights to Comply with Permit Conditions.

Under the Eleventh Circuit opinion, many diverters

would have no alternative but to curtail their diver-

sions/deliveries to meet NPDES permitting conditions. If a

discharge merely has “the potential to cause... an excur-

sion above any State water quality standard,” its NPDES

permit must contain conditions to control all contributing

pollutants. 40 C.F.R. § 122.44(d)(1)(i) (2002). Thus, an

NPDES permit required under Miccosukee would neces-

sarily contain conditions that would limit the amount of

pollutants delivered to the receiving water body. Trans-

basin diversions/deliveries in the West generally peak during

spring snow melt when the most water is available, and

levels of total suspended dissolved solids are commonly

elevated.”

To avoid the potential to cause an excursion above the

water quality standards of the receiving water body during

spring runoff, a transbasin diverter might have to expend

millions of dollars to construct a treatment facility or

implement so-called best management practices in an

“ Up to eighty percent of the precipitation in Colorado falls as

snow, for example.

16

attempt to reduce the presence of even natural pollut-

ants.” The facility would be required to treat peak diver-

sions, which might occur only one or two days a year, in

order to protect the water quality of the receiving water

body,’ while sitting idle for most of the year.”

As an alternative to sizing a treatment plant to

accommodate maximum diversions/deliveries, a diverter

could attempt to construct a surge reservoir in order to

feed water at a constant rate into the treatment facility.

Given the location of many such diversions on federal

lands in high mountain areas and the volume of water

involved, neither approach may be economically, techni-

cally or politically feasible.“ In addition, such new

* Thunderstorms create similar problems. In addition, most water

conveyances in the West are open ditches and canals and are directly

impacted by runoff.

“ For example, the Colorado-Big Thompson Project delivers

transbasin water at rates up to 1,293 million gallons per day (MGD),

four times the capacity of the largest existing treatment plant in

Colorado. Average diversions are 220,000 af/year, or 203 MGD. Thus,

the treatment plant might have to be sized to meet peaking flows of 425

percent of average. Similarly, the San Juan-Chama Project in New

Mexico has a capacity to divert up to 614 MGD, 750 percent of the

average diversions, 81 MGD. The California State Water Project

diverted 5.2 million af in 1997 from the San Francisco Delta, or an

average of 4,642 MGD. For comparison, the Metropolitan Water District

of Southern California, the largest municipal water provider in the

United States, delivers an average of 1,700 MGD of raw and treated

water, about a third of the Delta transbasin diversions.

“ Fifty percent of Colorado’s mountain streamflows occurs in just

three months: May, June and July.

“ Many transbasin conveyances are located on federal land,

including national parks and national forests adjacent to wilderness

areas. Permitting a treatment facility and/or surge reservoir would

(Continued on following page)

17

construction would have its own environmental conse-

quences. Instead, diverters would have no alternative but

to curtail diversions/deliveries to meet NPDES permit

conditions, effectively relinquishing a part of their state-

allocated water right.”

invoke the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f,

which can be costly and time consuming.

" In addition, if the transbasin movement of water containing

natural pollutants is held to require a permit under section 402, such

water movement would also be subject to the total maximum daily load

(TMDL) provisions of section 303(d) for “areas with insufficient

controls” (“impaired” waters). 33 U.S.C. § 1313(d). A TMDL defines the

specified maximum amount of each pollutant that can be discharged

(“loaded”) into the water from all combined sources without exceeding

water quality standards. 40 C.F.R. § 130.7 (2002). The TMDL is

allocated among point and nonpoint sources so that water quality

standards can be achieved. Each point source receives a specific waste

load allocation, which is implemented through section 402 discharge

permits. Jd. In many cases, the only practical way for transbasin

diverters to curtail pollutant loadings would be to reduce diver-

sions/deliveries because they could not satisfy waste load allocations

without costly storage or treatment. As a result, they would have to

forgo full use of their state water rights.

Where the quality of waters “exceed[s] levels necessary to support

propagation of fish, shellfish, and wildlife and recreation in and on the

water,” antidegradation provisions apply to maintain and protect

existing uses. 40 C.F.R. § 131.12(2) (2002). Discharges cannot lower

existing water quality absent a “necessity” determination, which would

include an alternatives analysis. (A state may allow degradation if it

finds that “allowing lower water quality is necessary to accommodate

important economic or social development in the areas in which the

waters are located.” 40 C.F.R. § 131.12(a)(2) (2002). Although trans-

basin water is often suitable for beneficial use without treatment,

transbasin deliveries would be subject to this requirement under the

Eleventh Circuit’s holding. Jd. Similar to deliveries to impaired waters,

the only practical way for many transbasin diverters to meet antide-

gradation requirements for high quality waters would be to curtail

(Continued on following page)

18

C. Requiring NPDES Permits for Transbasin

Diversions/Deliveries Would Interfere with

the Maximum Utilization of the States’ Water

Resources.

As evidenced by the devastating drought and

accompanying fires of the past few years in the western

United States, there is a pressing need to maximize the

use of scarce water resources. Maximum utilization of

water resources is enhanced by innovative state programs,

such as dry-year transfers of water from agricultural to

urban use, conjunctive (cooperative) use of surface and

groundwater, and aquifer recharge.” States and water users

also regularly bank, exchange and augment their water

supplies, and even reclaim and reuse wastewater. Each of

these strategies employs water that is under-utilized or

that would otherwise be wasted and turns it into a

valuable asset to meet agricultural, municipal and

industrial water needs.” In many western states, however,

diversions/deliveries, forgoing the use of a portion of their state water

right.

* See, e.g., Fellhauer v. People, 167 Colo. 320, 336, 447 P.2d 986,

994 (1968) (“As administration of water approaches its second century

the curtain is opening upon the new drama of Maximum utilization”)

(emphasis added); Jicarilla Apache Tribe v. United States, 657 F.2d

1126, 1133 (CA10 1981) [quoting Kaiser Steel Corp. v. W.S. Ranch Co.,

81 N.M. 414, 417, 467 P.2d 986, 989 (1970) (“utilization [of water) for

maximum benefits is a requirement second to none, not only for

progress but for survival”), and concluding that “[mJaximum utilization

then is a fundamental requirement which prevents waste of water.”)

* An extensively used strategy in Colorado for improving water

system efficiency and yield is exchanges, which are a legal and engi-

neering approach for minimizing capital, transmission, and/or treat-

ment costs. In an exchange, a water user is allowed to take water from

a new location on the stream or a different source, such as another

tributary, but only if the water is replaced elsewhere and in a manner

(Continued on following page)

eee —

we

19

such water supply innovations are available only as a

direct consequence of the ability to transport water

utilizing natural watercourses from a basin with an

excess to a basin with a shortage.” Requiring an NPDES

that ensures no injury to other water rights. See CoLo. REV. STAtT.

§§ 37-80-120, 37-83-104 (2003). The City of Denver relies on exchanges

to supply its customers reliably and efficiently.

California began utilizing large-scale water transfers involving the

State Water Project to ameliorate drought in 1991. In addition,

conjunctive use of surface and ground water, the storage of surface

supplies in times of plenty in underground aquifers for subsequent

withdrawal and use, is the basis of the Kern Water Bank, another

drought-management strategy. See Planning and Conservation League

v. Dep't of Water Resources, 83 Cal. App. 4th 892, 100 Cal. Rptr.2d 173

(2000).

* For example, California Courts have consistently concluded that

the realities of western water development require that those who

develop surface water supplies be allowed to use natural channels to

convey and deliver these supplies where they are needed. As early as

1857, the California Supreme Court noted: —

It would be a harsh rule, however, to require those engaged

in these enterprises to construct an actual ditch along the

whole route through which the waters were carried, and to

refuse them the economy that nature occasionally afforded

in the shape of a dry ravine, gulch, or cafion.

Hoffman v. Stone, 7 Cal. 46 (1857).

The California Supreme Court noted the importance of this rule

(codified in CALIFORNIA WATER CODE § 7075 (2002)) in reviewing the

propriety of Los Angeles’ water distribution system:

By availing itself of these natural reservoirs, it spared its

citizens the cost of financing the construction of additional

dams, if, indeed, appropriate sites were available at the

lower end of the aqueduct. Early in the history of the state,

this court recognized the advantage of permitting the use of

natural surface facilities, stream beds, dry canyons and the

like, for the transportation of water ....

City of Los Angeles v. City of Glendale, 23 Cal.2d 68, 76-77 (1943)

[citations omitted].

20

permit and accompanying controls on each transbasin

diversion would stifle these critical water management

initiatives, since permit requirements would stand in the

way of simply moving the water from one basin or sub-

basin to another. For example, even if the construction of a

new treatment facility were not required, it may be

impossible to obtain an NPDES permit in time to allow a

new transbasin delivery to address a drought emergency

in another basin.” Similarly, a time-consuming permitting

process would curtail the use of “water banks” as a

mechanism to effectuate such water transfers.”

D. Requiring NPDES Permits for Transbasin

Diversions/Deliveries Would Interfere with

Interstate Water Allocations.

A significant number of transbasin water diver-

sions/deliveries occur on interstate stream systems, the

waters of which have been allocated among the states by

interstate compact or Supreme Court decree.” Requiring

” The minimum time between submission of an application and

issuance of a permit is 210 days, not including time to prepare the

application or time for the permitting agency to review the application

and write the permit. See 40 C.F.R. § 122.21(c) (permit application

shall be submitted 180 days before discharge), 124.10(b) (30 day public

comment period), 124.15(a) and (b) (permit effective 30 days after

agency decision unless no comments requested changes), 123.25 (2002).

In contrast, Colorado can immediately approve an emergency water

transfer under state law. COLO. REV. STaT. § 37-92-308(7) (2002).

* A water bank is a formal mechanism for pooling water for rental

to other users.

* See, e.g., Colorado River Compact, 42 Stat. 171 (1921) ‘Ariz.,

Cal., Colo., Nev., N.M., Utah, Wyo.); Rio Grande River Compact, 53

(Continued on following page)

21

permits under the Clean Water Act for these water trans-

fers would pose significant problems for such interstate

allocations.

States may not be able to fully utilize their compact

entitlements if technically or economically impossible

NPDES permit conditions prevent transbasin deliveries of

surplus water to other basins with unmet demands.” For

example, Colorado uses much of its surplus Colorado River

Compact entitlement to meet needs in the water-short

South Platte River and Arkansas River Basins. Similarly,

New Mexico uses much of its Colorado River entitlement

in the Rio Grande Basin, and Arizona uses most of its

Colorado River entitlement in the Gila River and Salt

River Basins. California also uses much of its Colorado

River Compact water outside the basin in order to serve

municipalities along its southern coast.

Transbasin diversions/deliveries can also be a signifi-

cant source of waters necessary to mitigate the impact of

excess “native water” diversions in the receiving basin. In

other words, return flows from transbasin diversions/

deliveries; i.e., imported waters, can be an essential part of

the supply a state uses to meet interstate obligations to

downstream states. New Mexico indirectly relies on

transbasin de)veries from the Colorado River Basin

(through exchange) to satisfy native Rio Grande water

rights, leaving Rio Grande water to meet compact obliga-

tions to Texas from the Colorado River Basin. In the

Stat. 785 (1939) (Colo., N.M., Tex.); Arizona v. California, 373 U.S. 546

(1963) (allocating the lower Colo. River among Ariz., Cal. and Nev.).

* See ILB.

22

severe drought of 2003, New Mexico would have been

forbidden from storing water in the Rio Grande Basin if

water from transbasin diversions/deliveries had not been

available, leaving cities such as Santa Fe with a critically

short supply.”

III. States Can and Do Appropriately Address

Water Quality Impacts from the Diversion/

Delivery of Water.

State control over the use of water resources repre-

sents sound public policy, according to the D.C. Circuit.

Nat'l Wildlife Fed’n v. Gorsuch, 693 F.2d 156, 182 (CADC

1982). Water quality impacts associated with dams and

diversions “may not be amenable to the nationally uniform

controls contemplated by § 402 because pollution problems

are highly site-specific . . . .” Jd. at 177, n. 62.

States have established laws to appropriately protect

water quality while allocating water resources to meet the

needs of their citizens. These laws explain why there is no

evidence that the historic absence of NPDES permitting

requirements on transbasin diversions/deliveries causes

significant water quality problems, and why reversing the

Eleventh Circuit decision would not lead to adverse water

quality impacts.

* Since there were less than 400,000 af of usable water in storage

in the Rio Grande Project by the end of 2002, the Rio Grande Compact

prohibited New Mexico from storing water for the benefit of Texas in

reservoirs constructed after 1929. Rio Grande Compact, art. 7, 53 Stat.

785 (1939). All the reservoirs above Elephant Butte in New Mexico were

constructed after 1929.

sd

23

A. State “Water Quantity Law” Permits the

Conveyance of Water for Beneficial Uses

But Not for Waste Disposal.

The states have adopted one or both of two overlap-

ping doctrines for the allocation of water for use. The

western states generally follow the prior appropriation

doctrine.” The riparian doctrine is prevalent in the East.

In prior appropriation states, water may be diverted

only for beneficial use. Atchison v. Peterson, 87 U.S. 507,

514 (1874). “Beneficial use is ‘a restrictive concept of valid

water uses in the water law of the arid western states

requiring that water only be used for purposes that are

beneficial to the user and to society in general, such as

irrigation and municipal uses.’” Rio Grande Silvery

Minnow v. Keys, 333 F.3d 1109, 1132 n. 33 (CA10 2003)

(emphasis added). “[O}n the point of what is beneficial use

the law is ‘general and without significant dissent.’”

United States v. Alpine Land & Reservoir Co., 697 F.2d

851, 854 (CA9 1983).”

* The prior appropriation doctrine is generally followed west of the

100th Meridian, where natural precipitation is inadequate for crop

production; i.e., Alaska, Arizona, Colorado, Idaho, Montana, Nebraska,

New Mexico, Utah and Wyoming. California, Kansas, Mississippi,

Nebraska, North Dakota, Oregon, South Dakota, Texas and Washington

also include elements of the riparian doctrine in their water laws.

” For example, “‘{bJeneficial use’ includes but is not limited to use

for domestic, municipal, recreation, wildlife, including fish, agricul-

tural, mining, stockwatering and power purposes.” ARIz. Rev. STart.

§ 45-181(1) (2002). “ ‘Beneficial use’... means . . . a use of water for the

benefit of the appropriator, other persons, or the public, including but

not limited to agricultural (including stock water), domestic, fish and

ee Ee tee

uses ... .” Mont. CODE ANN. § 85-2-102(2) (2002). Beneficial use is “the

(Continued on following page)

24

If the purpose of a water diversion were disposal of

waste, such as mine drainage, there would be no end use

of the water that benefits either the conveyor or society.

Such waste disposal is contrary to state water law because

there is no beneficial use, hence the proponent of the

water transfer would not acquire the right to “use” the

water.” Where the purpose of the diversion was to deliver

water to another basin for irrigation and municipal use,

however, farmers and city residents benefit from the use of

the water, and the diversion/delivery would be recognized

by state law.” In essence, the appropriation doctrine

inherently does not allow the diversion of water for waste

disposal purposes. Therefore, a deference to state law in

this case would not lead to unregulated waste disposal.

The riparian doctrine of “reasonable use” is analogous

to “beneficial use;” water may only be used for productive

purposes and not for waste disposal. For example, in

Florida,

“(rjeasonable-beneficial use” means the use of

water in such quantity as is necessary for eco-

nomic and efficient utilization for a purpose and

in a manner which is both reasonable and consis-

tent with the public interest.

use of such water as may be necessary for some useful and beneficial

purpose ....” State ex rel. Erickson v. McLean, 62 N.M. 264, 273, 308

P.2d 983, 988 (1957).

* See, e.g., Joslin v. Marin Mun. Water Dist., 67 Cal.2d 132, 429

P.2d 889 (1967) (“The use of waters as an agent to expose or to carry

and deposit sand, gravel and rock, is as a matter of law unreasonable

within the meaning of the constitutional amendment”).

* See, e.g., Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo.

1996).

25

Fia. Stat. § 373.019(13) (2002).” As in a western prior

appropriation state, to obtain a state permit to use water

in Florida “the applicant must establish that the proposed

use of water ... [iJs a reasonable-beneficial use, .. . [w]ill

not interfere with any presently existing legal use of

water; and ... [iJs consistent with the public interest.”

FLA. STAT. § 373.223(1) (2002). The analysis is the same

under the Florida statute as it is in any western state;

that is, if the purpose of the diversion is to dispose of

waste, the diversion is not authorized by state water law.

A number of states can also apply a “public interest

test” when evaluating a water right request so as to protect

water quality. For example, in Idaho “if an applicant’s

appropriation of water ‘will conflict with the local public

interest’. . . then the Director ‘may reject such application

and refuse issuance of a permit therefor, ... or may grant

a permit upon conditions.’” Shokal v. Dunn, 109 Idaho

330, 336, 707 P.2d 441, 448 (1985). Similarly, Alaska “may

not issue a permit unless doing so is in the public interest

... consider[ing] the impacts of water appropriation on

fish and game resources [and] public health ....” Tulkis-

armute Native Cmty. Council v. Heinze, 898 P2d 935, 950

(Alaska 1995). California’s State Water Resources Control

Board “has been granted broad authority to control and

condition water use, insuring utilization consistent with

the public interest .... The [board’s] powers extend to

” The New Hampshire Supreme Court similarly explained “a

riparian owner has a right to the beneficial use of the water of a river or

stream passing through or adjacent to his land .... An upstream

riparian owner may divert water from its channel for any lawful use, so

long as he returns it to the channel ... in substantially the same

condition as when it reached the upstream riparian owner's land.”

Wisniewski v. Gemmill, 123 N.H. 701, 465 A.2d 875 (1983).

26

regulation of water quality ....” Envtl. Def. Fund, Inc. v.

E. Bay Mun. Dist., 26 Cal.3d 183, 198, 605 P.2d 1, 9 (1980).

Reversal of the Eleventh Circuit decision would not lead

to unregulated waste disposal practices as some may fear.

B. State “Water Quality Law” Appropriately Ad-

dresses the Water Quality Effects of Trans-

basin Diversions/Deliveries.

, Two essential characteristics must be protected by

state water laws for a water right to have meaning: first,

the actual physical quantity of water must be available at

the point of diversion and, second, the quality of the water

must be adequate for the beneficial use. State laws accord-

ingly protect both quantity and quality, through the

common law, by statute, and through state water quality

programs.”

" The construction of water diversion facilities, whether by

headgate, dam, or a combination of both, most often occurs in waters

regulated not only by state law but also by section 404 of the Clean

Water Act, 33 U.S.C. § 1344. Review under section 404 also triggers the

need for state reviews under section 401 of the Act. Jd. at § 1341.

The Corps cannot issue a section 404 permit without a state section

401 certification that such activity will comply with, inter alia, applica-

ble state water quality standards. 33 U.S.C. § 1341(aX1); 33 C.FR

§ 325.2(b), 330.4(c) (2002). Through section 401 certification, States (or

the EPA Administrator where a state lacks authority to give the

certification, 33 U.S.C. § 1341(a)) may accordingly address and prevent

adverse water quality impacts that could otherwise result from these

activities. For example, section 401(d) allows states to impose “other

limitations” to assure compliance with state water quality standards

and with “any other appropriate requirement of State law ....” PUD

No. 1 of Jefferson County v. Wash. Dep't of Ecology, 511 U.S. 700, 713-14

(1994). The Court has upheld such limitations on the construction and

subsequent operation of a diversion based on state water quality

(Continued on following page)

27

The states’ common law regards water pollution as a

nuisance and, therefore, a trespass against the complain-

ant’s right to use water. The basic premise is that water

quality cannot be impaired to an extent that would pre-

vent subsequent uses. In Colorado, “a common law theory

based on the prior appropriation doctrine . . . 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 Concerning Application for

Plan for Augmentation of the City and County of Denver,

44 P.3d 1019, 1028 (Colo. 2002).

Other states reach similar results. See, e.g., Phillips v.

Davis Timber Co., Inc., 468 So. 2d 72, 79 (Miss. 1985)

(plaintiff “entitled to an injunction enjoining and prohibit-

ing further PCP pollution into his lake ... .”); Leo v. Gen.

Elec. Co., 145 A.D.2d 291, 538 N.Y.S.2d 844, 846 (1989)

(commercial fishermen have standing to sue for nuisance

fishermen and obtain an injunction to prevent water

pollution); Dingwell v. Town of Litchfield, 4 Conn. App.

621, 496 A.2d 213 (1985) (upholding injunction against

town’s pollution of well); Penn. R.R. v. Sagamore Coal Co.,

281 Pa. 233, 238, 126 A. 386, 387 (1924) (pollution of

stream creates an enjoinable nuisance); Sharp v. 251st St.

Landfill, Inc., 925 P.2d 546, 556 (Okla. 1996) (permanent

injunction against landfill that would pollute water). The

states’ ability to control water use need not be trampled

upon, as would be true under the Eleventh Circuit opinion,

in order to protect other water users from undue harm.

standards, including designated uses, water quality criteria, and

antidegradation. Jd. at 715-16, 719.

28

Some states have found it appropriate to enact state

water quality provisions to protect users of water allocated

under state law from injury. For example, Colorado law

confers the power on each municipality “to enact all ordi-

nances and regulations necessary” to protect municipal

“water from pollution.” CoLo. REv. StaT. § 31-15-707(1)(b)

(2002). Municipal jurisdiction extends “five miles above the

point” in the stream or source from which water is taken. Id.

This statute allows municipalities to protect the quality of

their water supplies independent of the Clean Water Act.”

The Colorado Water Quality Control Act provides

general authority to regulate any “activity” that causes

“the quality of any state waters to be in violation of any

applicable water quality standard.” CoLo. REv. STAT.

§ 25-8-205(1)(c) (2002). The Act also contains specific

regulatory authority empowering the state to protect

water quality through the adoption of control regulations,

analogous to NPDES permits, for discharges from the

“diversion, carriage, and exchange of water from or into

streams, lakes, reservoirs or conveyance structures, or

storage of water in or the release of water from lakes,

reservoirs, or conveyance structures.”” CoLo. REV. STAT.

* The Town of Crested Butte, Colo., prohibits “[aJll non-point and

point sources of pollutants caused by or associated with land use

activities in the Watershed District which will result in any measurable

increase in pollution over existing water quality.” Crested Butte, [Colo.],

4 145-10(B) (2003). See also Mt. Emmons Mining Co. v. Town of Crested

Butte, 690 P.2d 231 (Colo. 1984).

* Control regulations may, for example, “describe precautionary

measures, both mandatory and prohibitory, that must be taken by any

person . . . [who] could reasonably be expected to cause pollution of any

state waters ... or ... be in violation of any applicable water quality

standard.” CoLo. REV. Stat. § 25-8-205(1)(c) (2002).

29

§ 25-8-503(5) (2002). The state may also adopt control

regulations when necessary to assure compliance with

water quality standards and classifications and “to

protect present and future beneficial uses” of water.

CoLo. REv. STAT. § 25-8-202(7)(b\IIA) (2002).* This

statutory authority allows the state to control the dis-

charge of pollutants in situations analogous to Dubois v.

United States Dep’t of Agric., 102 F.3d 1273, 1277 (CA1

1996) (transfer of water containing pollutants into “rela-

tively pristine” pond), and N. Plains Res. Council v. Fid.

Exploration & Dev. Co., 325 F.3d 1155 (CA9 2003) (dis-

posal of wastewater from production of coal bed methane),

while simultaneously ensuring that water rights are not

impaired. CoLo. REv. Stat. § 25-8-104. Thus, state laws

can and do appropriately address any water quality

problems potentially associated with water conveyances,

while respecting water allocations. In contrast, court-

mandated NPDES permitting requirements would consti-

tute wholesale interference with transbasin deliveries of

water for beneficial use under state water law.

®

CONCLUSION

If water is the “life blood” of the West, then transbasin

diversions/deliveries are surely the “arteries” that sustain

the region’s cities, towns, agriculture and industry. Such

“ While conveyances are not subject to NPDES permitting,

Colorado statute prohibits the discharge of any pollutant into a ditch or

man-made conveyance for the purposes of evading NPDES permitting

requirements. COLO. REV. Stat. § 25-8-101(1) (2002). Thus, a discharger

could not evade permitting by discharging pollutants to a transbasin

water conveyance rather than a stream.

30

transbasin diversions are no less important in other parts

of the country, such as New York City and other eastern

metropolitan areas. The Eleventh Circuit decision in |

Miccosukee runs roughshod over the states’ management

of their water resources. In marked contrast, the states

are well suited to manage water quality impacts associ-

ated with transbasin diversions/deliveries under state law.

The decision must be reversed.

Respectfully submitted,

KEN SALAZAR, Attorney General*

ALAN J. GILBERT, Solicitor General

FELICITY HANNAY, Deputy

Attorney General

ANTHONY S. TRUMBLY, Senior

Assistant Attorney General

State of Colorado

1525 Sherman Street, 5th Floor

Denver, Colorado 80203

(303) 866-3557

(303) 866-3558 (fax)

*Counsel of Record for all Amici

PATRICIA A. MADRID,

Attorney General

GLENN R. SMITH, Deputy

Attorney General

STEPHEN R. FARRIS, Assistant

Attorney General

State of New Mexico

P.O. Drawer 1508

Santa Fe, New Mexico 87504

(505) 827-6010

(505) 827-4440 (fax)

(N