Amicus Curiae Brief — Environmental Protection Agency v. Defenders of Wildlife

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Nos. 06-340 and 06-549

IN THE

Supreme Court of the United States

NATIONAL ASSOCIATION OF HOME BUILDERS. ET AL..

Petitioners,

Vv.

DEFENDERS OF WILDLIFE. ET AL..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

ARIZONA POWER AUTHORITY, CENTRAL

ARIZONA WATER CONSERVATION DISTRICT,

AND UTILITY WATER ACT GROUP

IN SUPPORT OF PETITIONERS

VIRGINIA S. ALBRECHT

Counsel of Record

KARMA B. BROWN

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

KATHY ROBB

HUNTON & WILLIAMS LLP

200 Park Avenue

New York. NY 10166

February 20. 2007 (212) 309-1128

Wii SON-EPES PRINTING CO INC —- (202) 789-0096 -— VWasHINGTON D C 20002

TABLE OF CONTENTS

Page

pes i 8 | ee il

INTERESTS OF AMICI CURIAE..........000..0ssccessocssereees |

SUMMARY OF ARGUMENT ................ccccccsssreeesseeees 6

I. THE NINTH CIRCUIT'S HOLDING AP-

PLYING ESA SECTION 7(A)(2) TO CWA

SECTION 402(B) CONTRADICTS CON-

GRESS’S CLEAR INTENT IN THE CWA ..... 8

A. The Clean Water Act Splits Federal and

State Authority to Promote Water Quality

ee ceecihscisiesintsitaninesicespsstiededibienitiabianiniesinnian 10

B. ESA Section 7(a)(2) Applies Only to Dis-

cretionary Acts and Therefore Does Not

Apply to CWA Section 402(b) ................... 14

Il. THE NINTH CIRCUIT’S OPINION IS AN

ANOMALY THAT MUST BE REVERSED ... 15

A. The Court of Appeals Misapplied the

Causation Analysis of Public Citizen.......... 15

B. Other Circuits Have Properly Construed

~ ESA Section 7(a)(2) to Apply Only to

DESCTEUORETY. ACTIONS .......0000cccecoresserersescesees ae,

C. The Decision Creates Uncertainty About

the Application of ESA Section 7(a)(2) to

Federal Agencies’ Non-Discretionary Acts .. 21

SE EET Y ecincininiinnnnidentnntietiactininnibamnietes 24

(1)

TABLE OF AUTHORITIES

FEDERAL CASES Page

Am. Forest and Paper Ass'n v. U.S. EPA, 137

Pe Fo 3) Lh Sh. Eeerenere 17,18

Arizona v. California, 373 U.S. 546 (1963) .......... 4

Arizona v. California, 376 U.S. 340 (1964) .......... 22

Arizona v. California, 126 S. Ct. 1543 (2006) ...... 4

Arkansas v. Oklahoma, 503 U.S. 91 (1992).......... 10

Auer v. Robbins, 519 U.S. 452 (1997)...........0000008 15

Conservation Law Found. of New England, Inc.

v. Andrus, 623 F.2d 712 (1st Cir. 1979)............ 19, 20

Defenders of Wildlife v. Administrator, EPA, 882

fay | __ Orr aeneN Nee 19, 20

Defenders of Wildlife v. Norton, 257 F. Supp. 2d

ny SN inrsintieertinliunennintaiadbinintdacinidinaniaaine 21, 22

Defenders of Wildlife v. U.S. EPA, 420 F.3d 946

(9th Cir. 2005), cert. granted, 127 S. Ct. 852,

(Jan. 5, 2007) (No. 06-340), 127 S. Ct. 853

(Jam. 5, 2007). (INO. 06-549) ......0ccccssccccercccecerscees passim

Defenders of Wildlife v. U.S. EPA, 450 F.3d 394

els SII eertenicnnssnieitniciiieieliaainaenianieinitininantiee 20, 21

Dep't of Transp. v. Public Citizen, 541 U.S. 752

Sire ea ee srcissienssenssitesisenndinbiniseunindacaiieisatiiinmelinendiabediionien 16

Envtl. Prot. Info. Ctr. v. Simpson Timber Co..,

yon Mw FT, ey | 19

Ground Zero Ctr. for Non-Violent Action v. U.S.

Dep't of the Navy, 383 F.3d 1082 (9th Cir.

Ges Wiis etlnitaiieiiniceialacsdiaesialiidealdabdeiniiamlat 19

In re Operation of Mo. River Sys. Litig.. 421 F.3d

a 17

Marbled Murrelet vy. Babbitt. 83 F.3d 1068 (9th

EERE ARPES in Leen SPOONS ne 7. 15, 19

Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986) ... 13

Motor Vehicle Mfrs. Ass'n v. State Farm Mutual

Auto. Ins. Co.. 463 U.S. 29 (1983) oo. )

ili

TABLE OF AUTHORITIES—-Continued

Page

Natural Res. Def. Council v. Houston, 146 F.3d

ELAN: SUITED ticsiscuthictischncuitchiadetintintncibcesidntnens 19

Platte River Whooping Crane Critical Habitat

Maint. Trust v. Fed. Energy Regulatory

Comm'n, 962 F.2d 27 (D.C. Cir. 1992)......... 17, 18, 19

Rio Grande Silvery Minnow v. Keys, 356 F.

Supp. 2d 1222 (D.N.M. 2002) ...........:cccesseeeeees 23

Shell Oil Co. v. Train, 585 F.2d 408 (9th Cir.

SPT iiscsiesineeciinibpeieisbiciendiveheinpemeliecititiiinsadadaciadabaiisiie 8

Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir.

eink sssiiediendnigiicitdsusisihiiaanitsiinnntidninkidibiindtinebien 19

United States v. Mead, 533 U.S. 218 (2001)......... 15

Western Watersheds Project v. Matejko, 456

Poe eee en 19 .

DOCKETED CASES

Rio Grande Silvery Minnow v. U.S. Bureau of

Reclamation, Case No. 05-2399 (and consoli-

dated cases) (10th Cir. filed Dec. 29, 2005)...... 23

FEDERAL STATUTES

7 U.S.C. §§ 136-136y (2000 & Supp. IV 2004)... 20

F OBA... G USGL Cr ecrececerssccesccsessesnsscssccens 13

16 U.S.C. §§ 791la. et seg. (2000 & Supp. IV

Pier a idiipennccndldicteanicninnitniatbicddeiepneninnnnpiadaienibitunsee 18

16-U.S.C. § 1533(a)(3). ESA § 4(a)(3) (2000 &

SR, SOUP ITE chsenerenieneuinesstiensictinnnubiadmecsinmneanuennion 9

16 U.S.C. § 1536(a)(2). ESA § 7(ap(2) (2000 &

Bir Ge MII iciddastucuinsepuibiensacninatunaionmneninientens passim

16 U.S.C. § 1538, ESA § 9 (2000)........................ 12

33 U.S.C. §§ 1251-1387 (2000 & Supp. II 2003)... 10

33 U.S.C. § 1251(b). CWA § 101(b) (2000)......... i.

33 ULS.C. § 1251(2). CWA § 101(g) (2000)... 1]

iV

TABLE OF AUTHORITIES—Continued

Page

33 U.S.C. § 1313(a), CWA § 303(a) (2000)........ te 11

33 U.S.C. § 1313(c)(2)(A), CWA § FEAERERA)

Ie issuinsshiesidndassitaiiepdiiipitieniatadjaiasiinieaibndsiiidibinadoonniee 1]

33 U.S.C. § 1313(c)(3), CWA § 303(c)(3) (2000)... 11

33 U.S.C. § 1313(c)(4), CWA § 303(c)(4) (2000)... 1]

33 U.S.C. § 1313(d)(1), CWA § 303(d)(1) (2000)... 12

33 U.S.C. § 1313(d)(2), CWA § 303(d}(2) (2000)... 12

33 U.S.C. § 1342(b), CWA § 402(b) (2000)......... passim

33 U.S.C. § 1342(d)(2), CWA § 402(d)(2) (2000)... 9

ee Oe innctincsndtinninsicistbivilaitccintenies 14

A ns IE I cinnscsiticiniicenindniintemndtenticncense 14

42 U.S.C. § 629(b) (2000 & Supp. III 2003)......... 14

42 U.S.C. § 654 (2000 & Supp. III 2003) ............. 14

a ea te I cticipcccicsiscsneccnceitinimisniameeten 14

42 U.S.C. § 1396a (2000 & Supp. III 2003).......... 14

Oe Ce FST CO vcccccscsinssnnnscsscsenncsosenssses 13

Be Chie Fr Pe Ge i crtcesttnsicccnccencescassacscses 13

43 U.S.C. §§ 1501, ef seg. (2000)...........cceseeeeeees 4

BP UA. BUFR ROOD cccsccsntsasescccsssesesenses 4

LEGISLATIVE HISTORY

HOUSE CONSIDERATION OF THE REPORT OF THE

CONFERENCE COMM. (Oct. 4, 1972). reprinted

in | LEGISLATIVE HISTORY OF THE WATER

POLLUTION CONTROL ACT AMENDMENTS OF

I Ee ee 10, 11

STATE STATUTES

ARIZ. Rev. STAT. §§ 30-101, ef seg. (2002 &

Se aT Sica iiedesitssscotnisiciasisisianineciniminieiesonvenmen 3

ARIZ. REV. STAT. §§ 45-1701, ef seg. (2003)........ 3

Vv

TABLE OF AUTHORITIES—Continued

Page

ARIZ. Rev. STAT. §§ 48-3701, ef seg. (2005 &

BUDD. SIGS ) onscescssssenssetssinsasiniaaaaaa 4

REGULATIONS

FO CP RR. © GEE CG cccsccscnsccisncasistionmmammabiaiann 14, 15

50 C.F.R. § 402.03 (2006)......... Sresnesianinobiinaines 7,9, 14, 15

MISCELLANEOUS

Draft Memorandum of Agreement Between the

Enviresmental Protection Agency, Fish and

Wilditsxe Service, and National Marine Fish-

eries Service Regarding Enhanced Coordi-

nation Under the Clean Water Act and the

Endangered Species Act, 64 Fed. Reg. 2742

(penpeees FAR. VS, TO peccccsscssesinsnicidinimauninan 6

IN THE

Supreme Court of the Anited States

Nos. 06-340 and 06-549

NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL..

Petitioners.

Vv.

DEFENDERS OF WILDLIFE, ET AL..,

Respondents.

ee —

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICI CURIAE

ARIZONA POWER AUTHORITY, CENTRAL

ARIZONA WATER CONSERVATION DISTRICT,

AND UTILITY WATER ACT GROUP

IN SUPPORT OF PETITIONERS

INTERESTS OF AMICI CURILAE '

Whether Section 7(a)(2) of the Endangered Species Act

(“ESA” or “the Act”) overrides statutory mandates or con-

straints placed on an agency's discretion by other Acts of

' The letters of consent have been filed with the Clerk of Court. Pur-

suant to Rule 37.6 of this Court, Amici state that their counsel authored

this brief and Amici paid for it. This brief was not written in whole or in

part by counsel for a party to these cases, and no one other than Amici

made a monetary contribution to its preparation.

2

Congress is of exceptional national importance and critical to

States, to nationally significant agricultural and business

interests, and to entities, such as Amici, who are responsible

for delivering power and water to tens of millions of people.

All parties have consented to the filing of this Brief.

Amici Arizona Power Authority, Central Arizona Water

Conservation District, and Utility Water Act Group’s mem-

bers provide water or power, either directly or indirectly, to

States, tribes, municipalities, public agencies, irrigation and

power districts, homes, businesses, and other customers.

Amici operate and own permitted facilities in States that hold

delegated Clean Water Act (“CWA”) permitting authority

and are therefore concerned about the interplay between the

CWA and the ESA. Reading ESA Section 7(a)(2) to apply to

the Environmental Protection Agency’s (“EPA”) nondiscre-

tionary delegation of CWA permitting authority to the States

and, by extension, to arguably trump the long-standing

federal allocations of water and power that Amici and

their customers depend upon to meet their needs, would

have devastating implications for Amici’s future water and

power operations.

The decision creates uncertainty about an agency’s obli-

gations under ESA Section 7(a)(2) despite the limitations of

the agency’s own organic authority. The decision, therefore,

threatens federal water and power projects throughout the

west, including those that depend upon the water and power

facilities of the Colorado River. The decision also threatens

the Utility Water Act Group's members who operate in, and

hold National Pollutant Discharge Elimination System

(“NPDES”) permits issued by, Arizona and other delegated

States. Those members face uncertainty. disruption and delay

as States grapple with the potential ramifications of this

decision.

Amici’s concern is mt only with the impact of the panel's

decision on the NPDES permit program, but also the impact

3

the decision may have on Amici’s future water and power

operations and rights to water and power under contracts they

have entered into with federal entities. Whether ESA Section

7(a)(2) overrides statutory mandates or other binding legal

obligations of federal agencies is critical to the security of

Amici’s rights and to the well-being of the communities and

customers that they serve.

Arizona Power Authority

The Arizona Power Authority (“APA”) is a corporate and

political body of the State of Arizona established by the

legislature in 1944. Ariz. Rev. STAT. §§ 30-101, ef seq.,

§§ 45-1701, et seg. The APA is responsible for acquiring and

marketing the State of Arizona’s 377-megawatt share of

power from Hoover Dam and then transmitting this power

over the Parker-Davis and Pacific Intertie transmissions

systems.

The APA serves 32 wholesale customers, including towns.

irrigation, water and electrical districts throughout Arizona,

with power—electrical energy generated from the flow of the

Colorado River—from the Hoover Dam. Any interruption or

diminution of the delivery of power from Hoover Dam

would significantly impact the APA’s delivery of power to its

customers.

Central Arizona Water Conservation District

The Central Arizona Water Conservation District

(“CAWCD”) is a political subdivision of the State of Arizona

that was formed for the purpose of contracting with the

United States for the delivery of the water supply and for the

repayment of the State's share of the costs of constructing the

Central Arizona Project (“CAP”). This Court's decree in

Arizona vy. California confirmed Arizona's right to consump-

”

4

tively use 2.8 million acre-feet (“maf”)? of Colorado River

water annually. Arizona v. California, 373 U.S. 546, 577

(1963) (opinion) and 126 S. Ct. 1543 (2006) (amended

decree) (hereinafter “Decree”). Despite the Decree, however,

Arizona could not fully use its Colorado River water because

it lacked a water delivery system capable of transporting

Colorado River water to the heavily populated regions of

central and southern Arizona. Accordingly, in 1968, Con-

gress enacted the Colorado River Basin Project Act, which

authorized the Secretary of the Interior (“Secretary”) to

construct the water delivery system known as the CAP. 43

U.S.C. §§ 1501, et seg. (“Basin Project Act”).

In order to provide for CAP operation and repayment, the

Basin Project Act also gave the Secretary the authority to

enter into a master contract with an Arizona organization

having the power to levy assessments against all taxable real

property within its boundaries. 43 U.S.C. § 1524(b)(1). In

response, the CAWCD was formed in 1971 as a municipal

corporation of the State of Arizona. ARIZ. REV. STAT. §§ 48-

3701, et seg. CAWCD comprises Maricopa, Pinal and Pima

counties and encompasses roughly 80 percent of Arizona’s

water users and taxpayers. In 1972, CAWCD entered into a

master contract with the Secretary, providing for the repay-

ment of reimbursable CAP construction costs and the deliv-

ery of the CAP water supply. CAWCD is also responsible for

operating and maintaining the CAP aqueduct system.

Pursuant to the Basin Project Act, its own Arizona enabl-

ing legislation, and the master contract, CAWCD has entered

into numerous subcontracts for delivery of CAP water sup-

plies to agricultural irrigation districts and municipal and in-

dustrial entities in central and southern Arizona. CAWCD’s

~ An acre-foot equals 325.851 gallons—the amount of water needed to

cover one acre of land with water one foot deep. One acre-foot of water

can supply the household needs of a four-person tamily for one vear.

5

subcontractors include the cities of Phoenix, Tucson, Scotts-

dale, Mesa, Peoria, Glendale, Tempe and Chandler, all of

which depend upon the delivery of Colorado River water by

means of the CAP. In 2006, CAWCD delivered over 1.5 maf

of Colorado River water to agricultural, municipal, and tribal

entities served by the CAP. Overall, Colorado River water

delivered by the CAP makes up about one-third of Arizona’s

annual renewable water supplies.

Utility Water Act Group

The Utility Water Act Group (““UWAG”) is an ad hoc

group of 211 individual energy companies and three national

trade associations of energy companies, the Edison Electric

Institute, the National Rural Electric Cooperative Associa-

tion, and the American Public Power Association. The

individual energy companies operate power plants and other

facilities that generate, transmit, and distribute electricity to

residential, commercial, industrial, and institutional customers

nationwide. The Edison Electric Institute is the association

of U.S. shareholder-owned energy companies, international

affiliates, and industry associates. The National Rural Elec-

tric Cooperative Association is the association of nonprofit

energy cooperatives supplying central station service through

generation, transmission, and distribution of electricity to

rural areas of the United States. The American Public Power

Association is the national trade association that represents

publicly owned (municipal and State) energy utilities in 49

States representing 16 percent of the market.

UWAG'’s purpose is to participate on behalf of its mem-

bers in agency rulemakings under the CWA and in litigation

arising from those rulemakings. On occasion, these activities

have involved both of the agencies and statutes at issue here.

For example. UWAG has filed comments on the Memo-

randum of Agreement between the EPA and the Fish and

Wildlife Service (“F WS”) and the National Marine Fisheries

Service (“NMFS”) regarding implementation of the ESA in

6

CWA-related matters. See Draft Memorandum of Agreement

Between the Environmental Protection Agency, Fish and

‘Wildlife Service, and National Marine Fisheries Service

Regarding Enhanced Coordination Under the Clean Water

Act and the Endangered Species Act, 64 Fed. Reg. 2742

(proposed Jan. 15, 1999). UWAG members are directly

affected by NPDES permit decisions made by EPA and

delegated States under the CWA. UWAG, in turn, is inter-

ested in consistent, timely, and objective permit decisions for

its members, as well as a clear delineation of authority

between EPA and FWS on implementation of their respective

statutory obligations. In addition, UWAG members are sub-

ject to many other environmental statutes, most of which also

impose non-discretionary standards on the federal agencies

charged with their administration. The potential application

of the Ninth Circuit decision to those statutes is of concern to

UWAG members.

Amici jointly have broad and united interests in urging this

Court to reverse the Ninth Circuit’s erroneous decision. ESA

Section 7(a)(2) does not override a federal agency’s organic

law or its contracts with non-federal parties. A proper resolu-

tion of this issue is essential.

SUMMARY OF ARGUMENT

Amici file this brief on writ of certiorari to the United

States Court of Appeals for the Ninth Circuit in Defenders of

Wildlife v. United States Envtl. Prot. Agency, 420 F.3d 946

(9h Cir. 2005) in support of Petitioners, the EPA and the

National Association of Home Builders. Southern Arizona

Home Builders Association, Home Builders Association of

Central Arizona, Arizona Chamber of Commerce. Arizona

Mining Association, Arizona Association of Industries,

(Greater Phoenix Chamber of Commerce, and American For-

est & Paper Association.

5

The Ninth Circuit's decision invalidated EPA’s transfer of

the NPDES permit program to Arizona. Under the CWA, the

NPDES permit program is administered by EPA unless the

program is transferred to a State. If the State meets nine

exclusive criteria laid out in CWA Section 402(b), the CWA

provides that EPA “shall approve each such submitted

program unless [it] determines that adequate authority does

not exist” to ensure that the nine specified criteria are

satisfied. 33 U.S.C. § 1342(b). The criteria set by Congress

do not permit EPA to impose additional conditions.

Section 7(a)(2) of the ESA requires each federal agency to

insure that its actions do not jeopardize the continued

existence of a listed species or modify its critical habitat.

ESA Section 7(a)(2) consultation is required for actions “in

which there is discretionary Federal involvement or control.”

50 C.F.R. § 402.03 (emphasis added); see Marbled Murrelet

v. Babbitt, 83 F.3d 1068, 1073 (9th Cir. 1996). Thus, Section

7(a)(2)’s consultation requirement is properly construed to

apply only to the exercise of EPA’s existing discretionary

authority it does not override the Congressional mandates

explicitiy set out in CWA Section 402(b). Because EPA

lacked the discretion to deny transfer of the NPDES permit

program to Arizona if Arizona met the nine enumerated

conditions of CWA Section 402(b), EPA’s decision was not

“agency action” within the meaning of ESA Section 7.

If the Ninth Circuit decision stands. the ESA would

become a federal “super law.” modifying not only EPA’s

obligation under the CWA, but arguably overriding every

statutory mandate applicable to federal agencies. The

decision is contrary to agency regulations, settled law of other

circuits, and prior decisions of the Ninth Circuit and sets an

important precedent on the relative powers and constraints of

the ESA and the CWA (and. by extension, other federal

laws). This Court should reverse the Ninth Circuit's decision.

8

ARGUMENT

I. THE NINTH CIRCUIT’S HOLDING APPLYING

ESA SECTION 7(A)(2) TO CWA SECTION

402(B) CONTRADICTS CONGRESS’S CLEAR

INTENT IN THE CWA.

Section 402(b) of the CWA provides that the EPA “shall

approve” the permitting program submitted by a State unless

EPA “deiermines that adequate authority does not exist” to

enable the State to administer the program in accordance

with nine specific criteria. Accordingly, a State seeking to

administer its own NPDES permit program must submit

(1) “a full and complete description of the program it pro-

poses to establish under and administer under State law”

and (2) “a statement from the attorney general” that the laws

of the State “provide adequate authority to carry out the

‘described program.” 33 U.S.C. § 1342(b).

CWA Section 402(b) thus prescribes “a system for the

mandatory approval of a conforming State program.” Shell

Oil Co. v. Train, 585 F.2d 408, 410 (9th Cir. 1978). Ifa

State’s program satisfies the enumerated criteria, EPA must

approve the State’s application. EPA found that Arizona

had met all the requirements of CWA Section 402(b) and

approved the State of Arizona’s application to administer the

NPDES permit program. Yet the Ninth Circuit invalidated

the transfer because. according to the Ninth Circuit, EPA

should have considered a tenth criterion the effect of the

transfer on threatened and endangered species.

The Ninth Cireuit held that EPA violated ESA Section

7(ay2) because EPA did not analyze the effects of the loss of

Section 7 consultation when EPA transferred the permit

program to Arizona. The court of appeais invalidated FPA’s

approval of the transfer on the grounds that ESA Section .

9

7(a)(2) overrides the requirements of CWA Section 402(b).°

The court of appeals concluded that EPA’s approval of

Arizona’s Section 402(b) program was the legally relevant

cause of impacts to endangered species that would result from

the State’s issuance of NPDES permits for State-permitted

land use activities.

The criteria established by Congress in CWA Section

402(b) for delegation of permitting authority to States do not

include impacts to listed species or to habitat designated as

critical in accordance with ESA Section 4(a)(3). Congress

mandated that EPA transfer permitting authority to the States

once the nine criteria are met. After NPDES permitting

authority is transferred to the State. EPA may only object to a

State-issued permit if the permit is “outside the guidelines

and requirements” of the CWA.* 33 USC. § 1342(d)(2).

* This Court directed the parties to address the additional question of

whether the court of appeals-correctly held that EPA’s decision to transfer

permitting authority to Arizona was arbitrary and capricious and, if so,

whether the court of appeals should have remanded to EPA without ruling

on the interpretation of ESA Section 7(a)(2). The Court need not remand

because an agency has broad discretion to change its position so long as it

articulates a rational basis for its view. The relevant federal agencies have

concluded that, because CWA Section 402(b) requires that the State’s

application be granted if the nine criteria are satisfied, the decision

whether to approve the transfer is not subject to the ESA Section 7(a)(2)

consultation requirements. See Petition for a Writ of Certiorari of United

States Environmental Protection Agency App. at 93a-102a, U.S. EPA vy.

Defenders of Wildlife. (U.S. Oct. 23, 2006) (No. 06-549) (hereinafter

“App.”). FWS and NMFS have turther confirmed that agency conduct

mandated by another Act of Congress. here, the CWA, is not subject to

“discretionary Federal involvement or control” within the meaning of 50

C.F.R. § 402.03. See App. 103a-1 16a. Because the agencies have articu-

lated “*a satisfactory explanation tor [their] action[{s]’ including a ‘rational

connection between the facts found and the choice made,” Motor Vehicle

Mirs. Ass'n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(internal citations omitted), a remand is not appropriate.

* The court of appeals’ decision creates procedural and substantive un-

certainty tor permitices holding State-issued permits. Permittees must

10

This reflects Congress’s careful consideration of the issue and

its final decision to grant States the right to administer

NPDES permit programs under State law so long as the

program meets the requirements of CWA Section 402(b).°

The court of appeals’ decision, however, overrides the

CWA’s directive that EPA “shall approve” a State transfer

application that satisfies the nine criteria and effectively

imposes a tenth criterion. The Ninth Circuit's holding is

erroneous and should be overturned by this Court.

A. The Clean Water Act Splits Federal and State

Authority to Promote Water Quality Objectives.

The Federal Water Pollution Control Act Amendments of

1972, known as the CWA, 33 U.S.C. §§ 1251-1387, are

predicated on “a partnership between the States and the

Federal Government.” Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992). After emphasizing “the primary responsibilities

and rights of States to prevent, reduce. and eliminate pol-

comply with State-specific procedural rules governing permit applica-

tions and drafting, public notice requirements, issuance and appeals.

Permittees must also comply with technology-based and water quality-

based limits and conditions of State-issued permits, and meet applicable

State resource agencies’ statutory and regulatory requirements. The State

delegation program under CWA Section 402(b) not only implements the

cooperative federalism of the CWA—it also relieves EPA from a sub-

stantial administrative burden.

*“After the Administrator [of EPA] has promulgated the guidelines

and requirements for a State permit program, the Governors of the indi-

vidual States desiring to administer their own permit program may submit

to the Administrator a fuil and complete description of the planned inte-

grated State permit program. If the Administrator determines that a State

has the authority to issue permits consistent with the act, he shall approve

the submitted program. In that event, the States, under State law. could

issue State discharge permits.” Hotwst CONSIDERATION OF THE REPOR |

OF THE CONFERENCE COMM, (Oct. 4, 1972). reprinted in. 1 LEGISLATIVE

HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS Of

1972, at 261-62 (1973) (Statement of Rep. Wright).

1]

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

water resources .. .,” the Act specifies that “Federal agencies

shall co-operate with State and local agencies to develop

comprehensive solutions to prevent, reduce, and eliminate

pollution in concert with programs for managing water

resources.” 33 U.S.C. § 1251(b), (g). Congress balanced

many concerns in the CWA to achieve “cooperative fed-

eralism,” by conveying some authority to EPA, delegating

some to the States, and creating mechanisms to shift authority

between the two.

For example, States are primarily responsible for adopting

and periodically revising water quality standards. 33 U.S.C.

§ 1313(a), (ch 2)(A). Those standards must “be established

taking into consideration their use and value for public water

supplies, propagation of fish and wildlife. recreational

purposes, and . . . also taking into consideration their use and

value for navigation.” /d States must then submit their

standards to EPA for approval. If EPA determines that a

State’s standards are not consistent with the CWA, the

Agency must so inform the State within 90 days following the

State’s submission. If the State does not adopt changes

necessary to meet the applicable statutory requirements

within 90 days following FEPA’s notice, then EPA has a

mandatory duty to establish replacement federal standards.

33 U.S.C. § 1313(¢)(3), (4).

* “{T}t is [the legislators’] intent that the act be administered in such

a manner that the abilities of the States to control thew own permit

programs will be developed and strengthened. They look for and expect

State and local interest, initiative. and personnel to provide a much more

effective program than that which would result from control in the

regional offices of the [EPA] Hotst CONSIDERATION OF Tit RE POR!

OF THE CONFERENCE COMM. (Oct. 4, 1972). reprinted in L LEGtsi AtIVI

HISTORY OF THE WATER Portbution Con tRot ACT AMENDMENES OF

1972. at 262 (1973) (Statement of Rep. Wright).

12

States bear primary responsibility for assessing the quality

of their waters and developing water quality standards (from

which water-quality based permit limits are derived). States

also develop total maximum daily loads (“TMDLs”) for any

waters identified as not meeting applicable water quality

standards and then implement TMDLs through NPDES

permits. 33 U.S.C. § 1313(d)(1)(A)-(D). As with the under-

lying water quality standards, EPA is responsible for review-

ing and approving State water quality assessments and

TMDLs. 33 U.S.C. § 1313(d)2).

Congress devised the NPDES permitting program as a

mechanism for implementing the water quality-based tools

that are adopted by States, as well as other technology-based

tools adopted by EPA. Recognizing that the content of these

permits is dictated, in large part, by State-specific needs and

requirements (e.g., water quality standards, assessments, and

TMDLs), Congress prescribed, in the CWA, the procedure

for EPA to transfer its administration of the NPDES permit

program to a qualifying State that meets the nine statutory

criteria. The transfer of the program by EPA to a qualifying

State is mandatory.

Since 1972, EPA has delegated NPDES permitting author-

ity to 45 States. These States serve a vital role in administer-

ing the NPDES permit program and furthering our Nation's

water quality objectives. Further. there is no basis to assume

that NPDES permits issued in by delegated States, including

Arizona, will cause harm to listed species. The ESA prohibits

the “take” of endangered and threatened species and that

“take” prohibition applies to both federal and non-federal

acts. See 16 U.S.C. § 1538. Activities that require NPDES

permits may also involve some form of federal action that

will trigger consultation. for example. if the activities occur

on federal land or require a CWA Section 404 permit issued

by the U.S. Army Corps of Engineers. Therefore. it is wrong

to assume that the absence of federal administration of the

13

NPDES program will lead to harm for listed species. Endan-

gered or threatened species or their designated critical habitat

may still be subject to the consultation requirements of ESA

Section 7(a)(2) due to other federal statutory or permitting

requirements.

The Ninth Circuit reads ESA Section 7(a)(2) to super-

impose consultation requirements that may otherwise prohibit

mandatory federal action under the CWA. Applying the ESA

consultation process to EPA’s delegation of NPDES pro-

grams to the States will “sabotage the delicate machinery that

Congress designed” to delegate these programs.’ Merrell v.

Thomas, 807 F.2d 776, 779 (9th Cir. 1986). This frustrates

Congress’s legislative intent. Congress could have included a

consultation requirement among the statutory criteria for

NPDES program delegation: it did not.” If the Ninth Circuit

decision stands, it will carry with it uncertainty, disruption,

“In Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986), the Ninth Circuit

upheld a grant of summary judgment to EPA in a challenge to enjoin

EPA from continuing to register certain herbicides under the Federal

Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). The court found

that the differences between FIFRA’s registration procedure and the

National Environmental Policy Act's (NEPA™) requirements indicated

that Congress did not intend NEPA to apply. /d. at 778-80. The court

determined that “|[t]o apply NEPA to FIFRA’s registration process would

sabotage the delicate machinery that Congress designed to register new

pesticides.” and would increase a regulatory burden that Congress had

intentionally lightened. /d. at 779.

* Several environmental statutes explicitly command the federal agency

administering the statute to approve State regulatory programs that satisfy

certain statutory requirements, including the Resource Conservation and

Recovery Act (“RCRA”), see 42 USC. § 6926(b) (allowing for authori-

zation of State hazardous waste program): the Solid Waste Disposal Act

(“SWDA?), see 42 U.S.C. § 6991 ¢(a) (regulation of underground storage

tank release, detection, prevention, and correction programs), and FIFRA,

we TUS.C. § 136042) (regulation of applicators of pesticides).

14

and delay, impeding the cooperative federalism that is at the

core of the CWA.”

B. ESA Section 7(a)(2) Applies Only to- Discre-

tionary Acts and Therefore Does Not Apply to

CWA Section 402(b).

Section 7(a)(2) of the ESA requires that “[e]ach Federal

agency shall, in consultation with and with the assistance of

the Secretary, insure that any action authorized, funded, or

carried out by such agency (hereinafter in this section referred

to as an ‘agency action’) is not likely to jeopardize the

continued existence of any endangered species or threatened

species.” 16 U.S.C. § 1536(a)(2). A federal agency's duty

under ESA Section 7(a)(2) is to ensure that endangered or

threatened species are not jeopardized by actions attributable

to the agency itself. Regulations jointly promulgated by the

Secretaries of Commerce and the Interior interpret ESA

Section 7(a)(2) to require consultation on actions “in which

there is discretionary Federal involvement or control.”'” 50

” Other statutes outside the environmental context contain cooperative

federal-state provisions. For example, under the Medicaid statute, in

order to receive federal funding, a State must first obtain from the Depart-

ment of Health and Human Services (“HHS”) approval of a State plan to

provide healthy services to indigents in that State; to obtain federal

approval from HHS, the State plan must satisfy a lengthy list of statutory

requirements. See 42 U.S.C. § 1396a. The federal welfare laws also

provide examples of such cooperative federal-state arrangements. includ-

ing programs under Temporary Assistance to Needy Families, 42 U.S.C.

§ 602: Child Welfare Services, 42 U.S.C. § 622; Promoting Safe and

Stable Families, 42 U.S.C. § 629(b): Child Support and Establishment

of Paternity, 42 U.S.C. § 654: and Foster Care and Adoption, 42 U.S.C.

$ 671. Each of these state-run programs, like Medicaid, must be approved

by HHS before a State can receive federal funding. Arguably, if the Ninth

Circuit's decision stands, those programs could be deemed subject to the

ESA.

The construction of Section 7(a\2) of the FSA reflected in 50 C.F_R.

$§ 402.02 and 402.03 is reasonable and entitled to deference. See. eg.

15

C.F.R. § 402.03 (emphasis added); see Marbled Murrelet, 83

F.3d at 1073. ESA Section 7(a)(2) does not confer independ-

ent authority on federal agencies to act for the benefit of

listed species; rather, it directs the agencies to consult on

actions where the agencies have discretionary authority.

The court of appeals wrongly held that ESA Section

7(aX(2) applies even if the law governing the conduct of the

agency gives the agency no discretion to modify its action.

Where the agency has no discretion to act because the

conduct is mandated by an Act of Congress, the act itself

cannot constitute “agency action” within the meaning of

Section 7 of the ESA. The Service’s regulation, 50 C.F.R.

§ 402.03, effectuates this Congressional intent. The court

of appeals’ decision thwarts that intent and nullifies the

regulation.

Hl. THE NINTH CIRCUIT’S OPINION IS’ AN

ANOMALY THAT MUST BE REVERSED.

Only the Ninth Circuit has held that the ESA overrides

statutory limitations on an agency’s authority. The decision

conflicts with the decisions of virtually every other court

that has considered the issue, including decisions within the

Ninth Circuit.

A. The Court of Appeals Misapplied the Causa-

tion Analysis of Public Citizen.

Under the regulations, an agency is required to take into

account only those effects that are “caused” by its actions,

including indirect effects. See 50 C.F.R. § 402.02 (defining

“indirect effects” as “those that are caused by the proposed

action and are later in time, but still are reasonably certain to

duer v Robbins, 819 US. 452. 461-62 (1997) (agency interpretation of its

own regulations is “controlling unless “plainly erroneous or meonsistent

with the regulation’): ( mited States vo Mead, 833 U.S. 218 (2001)

16

occur”). Where, as here, the effects flow from a statutory

mandate, those effects are caused by Congress, not by the

agency's action. The court of appeals, however, found EPA’s

transfer of CWA permitting authority to be the “cause” of all

effects that may flow from land uses that require State-issued

NPDES permits. That holding is erroneous; EPA’s act of

transferring the NPDES permit program to the State does not

proximately cause impacts to listed species.

In Department of Transportation v. Public Citizen, 541

U.S. 752 (2004), the Court considered whether, under NEPA

and the Clean Air Act (“CAA”). the Federal Motor Carrier

Safety Administration (“F MCSA”) is required to evaluate the

effects of cross-border operations of Mexican-domiciled

motor carriers, where FMCSA’s promulgation of certain

regulations would allow such cross-border operations to

occur. Jd. at 756. Public Citizen is relevant here because of

the Court’s analysis of causation: “[W]here an agency has no

ability to prevent a certain effect due to its limited statutory

authority over the relevant actions. the agency cannot be

considered a legally relevant ‘cause’ of the effect.” /d. at

770. The Public Citizen standard, therefore, should be

applied to determine whether EPA’s action is the “legally

relevant ‘cause’ of.” id, effects on listed species and any

designated critical habitat.

The Ninth Circuit cited Public Citizen but misunderstood

its import. The court of appeals erroneously held that all

impacts resulting from private development under NPDES

permits Arizona might issue would be caused by EPA’s

transfer decision. They are not. CWA Section 402(b) man-

dates that EPA “shall approve each such submitted program”

unless FPA “determines that adequate authority does not

exist” to administer the program in accordance with the nine

criteria. Thus. EPA is not the cause of any harm that may

result from activities that are authorized by NPDES permits

issued legally by Arizona after the transfer of the NPDES

: 17

permitting program occurs. Rather, as FWS concluded in the

Biological Opinion, the cause of any potential impacts is

Congress’s decision, in the CWA, to limit EPA’s discretion

by requiring transfer of the program where the criteria in

CWA Section 402(b) are met.'' This conclusion is consistent

with the meaning of Public Citizen.

B. Other Circuits Have Properly Construed ESA

Section 7(a)(2) to Apply Only to Discretionary

Actions.

The court of appeals’ decision directly conflicts with the

Fifth Circuit’s decision in American Forest and Paper Ass'n

-v. U.S. EPA, 137 F.3d 291 (Sth Cir. 1998) (“AF PA”) and the

D.C. Circuit's decision in Platte River Whooping Crane

Critical Habitat Maint. Trust v. Federal Energy Regulatory

Comm'n, 962 F.2d 27 (D.C. Cir. 1992) (“Platte River”). Both

courts properly construed ESA Section 7(a)(2) and held that

the ESA does not supersede constraints or override statutory

mandates applicable to federal agencies. '

'' The Fish and Wildlife Service correctly concluded that the act of

transferring the program to the State could not be a “cause” of any im-

pacts to species:

[The] loss of any conservation benefit is not caused by EPA's deci-

sion to approve the State of Arizona’s program. Rather, the ab-

sence of the section 7 process that exists with respect to Federal

{Clean Water Act] permits reflects Congress's decision to grant

States the right to administer these programs under state law pro-

vided the State’s program meets the requirements of 402(b) of the

Clean Water Act.

Defenders of Wildlife, 420 F.3d at 953 (quoting the Biological Opinion).

o =, , es . es . . = .

The Ninth Circuit decision also conflicts with a decision from the

Eighth Circuit where the court observed that “[c]ase law supports the

contention that environmental- and wildlife-protection statutes do not

apply where they would render an agency unable to fulfill a non-discre-

tionary statutory purpose or require it to exceed its statutory authority” /n

re Operation of Mo. River Svs. Litig., AZ) F.3d 618, 630 (8th Cir, 2005)

18

AFPA involved EPA’s approval of Louisiana’s NPDES

permitting program under CWA Section 402(b), the precise

agency action at issue in the case at bar. As part of its

approval of the Louisiana program, EPA added a condition

that Louisiana consult with FWS and NMFS before issuing

permits. After reviewing Section 402(b), the Fifth Circuit

held that the CWA prescribed the factors to be considered by

EPA, and the ESA, therefore, could not trump the mandatory

character of the CWA transfer provision or supplant the

criteria considered for approving transfers under the CWA.

“The language of [CWA Seciion] 402(b) is firm: It provides

that EPA ‘shall’ approve submitted programs unless they fail

to meet one of the nine listed requirements.” /d. at 297. The

court thus concluded that “the ESA serves not as a font of

new authority, but as something far more modest: a directive

to agencies to channel their exis/ing authority in a particular

direction.” /d. at 299.

The D.C. Circuit has similarly reasoned that ESA Section 7

consultation is effectively limited by an agency’s statutory

authority. In Platte River, environmental groups brought a

challenge to annual licenses issued to two hydroelectric

projects on the Platte River by the Federal Energy Regulatory

Commission (“FERC”). Under the Federal Power Act, 16

U.S.C. §§ 791a, ef seg.. FERC was precluded from amending

the annual licenses given to a hydroelectric plant. For that

reason, FERC could not insert conditions to protect wildlife

into the licenses when they were renewed. Platte River, 962

F.2d at 32.

The groups argued that, notwithstanding the statutory

limits of the Federal Power Act, FERC had an affirmative

obligation to impose conditions to protect listed species under

ESA Section 7(ay2). /d at 33. The D.C. Circuit rejected that

argument: “[T]he statute directs agencies to ‘utilize their

authorities’ to carry out the ESA’s objectives: it does not

19

expand the powers conferred on an agency by its enabling

act.” /d. at 34 (emphasis in original).'

The panel below acknowledged that there was “an existing

intercircuit conflict on the question before us,” compar-

ing Defenders of Wildlife v. Administrator, EPA, 882 F.2d

1294 (8th Cir. 1989) and Conservation Law Found. of New

England, Inc. v. Andrus, 623 F.2d 712 (1st Cir. 1979) with

AFPA and Platte River. The court of appeals did not find the

D.C. Circuit and Fifth Circuit decisions persuasive, but

instead said it was relying on decisions from the First and

'’ The Ninth Circuit’s decision is also counter to several prior Ninth

Circuit decisions holding that non-discretionary actions do not trigger

Section 7 consultation obligations. See, e.g., Western Watersheds Project

v. Matejko, 456 F.3d 922 (9th Cir. 2006) (duty to consult is only triggered

where there is discretionary action; BLM’s decision not to exercise

discretionary authority and regulate private diversions of water is not an

“action” within the meaning of ESA Section 7(a)(2), and BLM did not

retain discretion to regulate diversions for benefit of listed species);

Ground Zero Cir. for Non-Violent Action v. U.S. Dep't of the Navy, 383

F.3d 1082, 1092 (9th Cir. 2004) (Navy need not consult on the operation

of a new missile program where there is no agency discretion to act

because consultation “would be an exercise in futility”); Environmental

Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1083 (9th Cir.

2001) (FWS was not required to reinitiate consultation under ESA Section

7(aX(2) because it had not retained discretionary control over an earlier-

issued incidental take permit sufficient to require the recipient of that

permit to take steps that would inure to the benefit of the listed species):

Natural Res. Def; Council v. Houston, 146 F.3d 1118, 1125-26 (9th Cir.

1998) (“Where there is no agency discretion to act, the ESA does not

apply.”); Marbled Murrelet v. Babbitt, 83 F.3d 1068, 1074 (9th Cir. 1996)

(F WS advisory letter did not constitute a “federal action” triggering a duty

to consult under ESA Section 7 because “there was no discretionary

federal involvement or control over the Lumber Companies’ proposed

salvage operations”); Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir.

1995) (Bureau of Land Management approval of road construction was

not a “discretionary” action triggering consultation responsibilities where

the federal ageney lacks “the ability to implement measures that inure to

the benefit of the protected species”).

20

Eighth Circuits. Defenders of Wildlife, 420 F.3d at 970. As

Judge Kozinski explained in his dissent from the court of

appeals’ denial of en banc review, those cases are inapposite:

The First and Eighth Circuit cases, however, do not

support the majority’s position. Both cases addressed

situations where the governing statute and the ESA

were complementary, not where the governing statute

precluded consideration of endangered species as the

CWA does.

Defenders of Wildlife v. U.S. EPA, 450 F.3d 394, 401 n.5 (9th

Cir. 2006) (emphasis in original).

Conservation Law Foundation involved the sale of off-

shore leases for oil and gas exploration under the Outer

Continental Shelf Lands Act (“OCSLA”). 623 F.2d at 714.

Conservation organizations argued that, once the leases were

sold, the Secretary would lose the ability to protect natural

resources under the strict standards of the ESA because the

Secretary would be forced to comply with the less stringent

standards of the OCSLA. /d. at 715. The Secretary coun-

tered that the ESA and the OCSLA are complementary, and

that the ESA would continue to apply “of its own force”

because the Secretary would have discretionary authority

over the leases. /d. The First Circuit agreed. /d. Similarly,

in Defenders of Wildlife v. Administrator, EPA, the bighth

Circuit held that EPA was not exempt from compliance with

the FSA under FIFRA, 7 U.S.C. §§ 136-136y. 882 F.2d

at 1294. Neither decision addressed whether ESA Section

7(a)(2) overrides statutory constraints placed on an agency by

another Act of Congress because in both cases the LSA was

complementary to the statute authorizing the agency action.

Therefore. the court of appeals’ reliance on Conservation

Law Foundation and Defenders of Wildlife v. Administrator.

LPA is misplaced.

The Ninth Circuit goes even further and reads the FSA to

create an independent, affirmative obligation in- contra-

21

vention of the requirements of the CWA. “The EPA may

have complied with its obligations under the Clean Water

Act, but compliance with a ‘complementary’ statute cannot

relieve the EPA of its independent obligations under section

7(a(2).” Defenders of Wildlife, 420 F.3d at 971 (emphasis

added). If the decision is not reversed, an agency may be

obliged to act even though its organic statute says it may not.

This cannot be the law.

C. The Decision Creates Uncertainty About the

Application of ESA Section 7(a)(2) to Federal

Agencies’ Non-Discretionary Acts.

The court of appeals’ decision may heve far-reaching

implications for many agency actions. Litigation has been

brought over the scope of the Bureau of Reclamation’s dis-

cretion to act under its water contracts and its responsibilities

under ESA Section 7(a)(2). In each of these cases, the courts

have found that, where Reclamation has no discretion to alter

water deliveries because of applicable law or contract, it is

not subject to ESA Section 7(a)(2). By finding that “the ESA

applies to anything ‘authorized, funded, or carried out, by a

federal agency, . .. whether discretionary or not,” 450 F.3d at

398 (Kozinski, J.), the court of appeals’ holding calls into

question existing contracts that Amici hold with Reclamation

and other federal agencies. creating uncertainty about the

relationship of ESA Section 7(a)(2) to these long-standing

arrangements.

This issue was considered in Defenders of Wildlife v.

Norton, 257 F. Supp. 2d 53 (D.D.C. 2003),'* where the plain-

tiffs challenged Reclamation’s management of the lower

Colorado River, arguing that Reclamation should send more

Amici APA and CAWCD filed an amicus-brief in Defenders of

Wildlife v Norton on the proper scope of Reclamation’s discretion and

how it should be viewed in light of the ESA.

22

water to Mexico for the benefit of listed species found there.

Reclamation initiated informal consultation under ESA

Section 7(a)(2). but concluded that no formal consultation

was required because it lacked discretion over water deliv-

eries to or within Mexico under applicable treaties and this

Court's decision in Arizona vy. California, 376 U.S. 340

(1964). 257 F. Supp. 2d at 66. The district court agreed,

finding that Reclamation had no authority to deliver water for

the benefit of species in Mexico:

The record contains no suggestion of a way, with or

without consultation [under Section 7(a)(2) of the ESA],

for Reclamation to ensure that more water reaches the

listed species in [Mexico]. The formulas established by

the Law of the River strictly limit Reclamation’s

authority to release additional waters to Mexico, and

Section 7(a)(2) of the ESA does not loosen those

limitations or expand Reclamation’s authority.

Id. at 67-68 (citing Arizona v. California, 376 U.S. 340

(1964)). Thus, due to the limited scope of Reclamation’s

discretion under the Law of the River,'* the court held that

consultation under ESA Section 7(a)(2) was not required

because no delivery of water to benefit species in Mexico was

allowed:

[I]t seems unlikely that any case will present facts that

more clearly make any agency's actions nondiscre-

tionary than this one: a Supreme Court injunction. an

international treaty. federal statutes, and contracts be-

tween the government and water users that account for

every acre foot of lower Colorado River water.

ld. at 69.

ih : , , . °

Ihe Law of the River collectively reters to the treaties, compacts,

laws, court decrees and contracts that govern the allocation and use of

Colorado River water.

The Rio Grande River has also been the subject of liti-

gation considering the application of the ESA to Reclamation

contracts. In Rio GrandesSitvery-Minnow v. U.S. Bureau of

Reclamation, Case No. 95-2399 (and consolidated cases)

(10th Cir. filed Dec. 29, 2005) (“Silvery Minnow”), the U.S.

Court of Appeals for the Tenth Circuit is faced with a similar

issue arising from a district court decision misconstruing the

ESA to override Reclamation’s obligations under existing

contracts on the Rio Grande.'® In Silvery Minnow, plaintiffs -

sought to require Reclamation to release water or to restrict

diversions of water, in contravention of its existing contracts,

for the benefit of the silvery minnow. Reclamation argued

that water on the Rio Grande was fully allocated and it had no

discretion under its existing contracts to release water for the

silvery minnow.

The district court rejected that argument and ordered

Reclamation to make releases or restrict diversions. Rio

Grande Silvery Minnow vy. Keys, 356 F. Supp, 2d 1222

(D.N.M. 2002). In doing so, the district court eionsois

transmuted the ESA’s requirement that Reclamation consult

on its discretionary actions into a substantive command that

Reclamation unilaterally divert contractually-allocated water

away from long-standing Reclamation co tractors for the

benefit of the silvery minnow.'’ The 10th Circuit must now

determine what federal actions are properly subject to ESA

Section 7(a)(2) consultation.

‘© 4mici APA and CAWCD filed an amicus brief in support of the

United States in Rio Grande Silvery Minnow v. U.S. Bureau of Recla

mation, No. 0S-2399 (10th Cir. filed June 26, 2006).

17 . ° . ‘ -™,

Of course. there is always room for Reclamation or local authorities

to take voluntary action to acquire water supplies or resources trom

willing sellers to benefit protected species.

24

CONCLUSION

For all of the foregoing reasons, the decision of the United

States Court of Appeals for the Ninth Circuit should be

reversed.

Respectfully submitted,

VIRGINIA S. ALBRECHT

Counsel of Record

KARMA B. BROWN

HUNTON & WILLIAMS LLP

1900 K Street, N.W.

Washington, D.C. 20006

(202) 955-1500

KATHY ROBB

HUNTON & WILLIAMS LLP

200 Park Avenue

New York, NY 10166

February 20, 2007 (212) 309-1128