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

No. 06-549

IN THE

Supreme Court of the Guited States

ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Vv.

DEFENDERS OF WILDLIFE, ET AL.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF KERN COUNTY WATER AGENCY,

LOST HILLS WATER DISTRICT, WHEELER RIDGE-

MARICOPA WATER STORAGE DISTRICT, ENTERPRISE

IRRIGATION DISTRICT, KLAMATH BASIN IMPROVEMENT

DISTRICT, KLAMATH DRAINAGE DISTRICT, KLAMATH

IRRIGATION DISTRICT, KLAMATH HILLS DISTRICT

IMPROVEMENT CO., MALIN IRRIGATION DISTRICT,

MIDLAND DISTRICT IMPROVEMENT CO., PINE GROVE

IRRIGATION DISTRICT, POE VALLEY IMPROVEMENT

DISTRICT, SHASTA VIEW IRRIGATION DISTRICT,

SUNNYSIDE IRRIGATION DISTRICT, TULELAKE

IRRIGATION DISTRICT, AND WESTSIDE IMPROVEMENT

DISTRICT NO. 4 IN SUPPORT OF PETITIONER

ROGER J. MARZULLA

Counsel of Record

NANCIE G. MARZULLA

ZACHARY N. SOMERS

MARZULLA & MARZULLA

1350 Connecticut Ave., N.W.

Suite 410 i

Washington, D.C. 20036—

(202) 822-6760

BEST AVAILABLE COPY

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TABLE OF CONTENTS

TABLE OF AUTHBORITEES.......c.cccsccccrrsrsecosesenssesesesonsnonses H

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I. The Endangered Species Act Has Already Clashed

with Amici’s State-Created Water Rights............... 6

II. The Growing Scarcity of Water Makes Future

Conflicts with the Endangered Species Act

STITT siichstieipicicitessidtiniebiiitabiidaiahadkihiiestiniptininedmuaiaddnd 9

III. In Interpreting the Endangered Species Act, This

Court Should Reaffirm the States’ Continued

Primacy Over Water Allocation ..............cccceeee 12

PY cccistnisiinissctictinsnvaiciapesicinpabeniiemitinnnnioneuente 19

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TABLE OF AUTHORITIES

CASES

Bennett v. Spear, 520 U.S. 154 (1997) .....cccccccccccceseseceesseeeees 6

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

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

ila 3, 4,5

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

RRP a SRE ele rirc=, eS OO DPT ee 3,4

Kansas v. Colorado, 206 U.S. 46 (1907) .o.....cccceeeees 13,17

Klamath Irrigation Dist. v. United States,

ee a Ics che cicinsclendiaceicnantaccaliineiveniiteneideisadined 2,8

Klamath Water Users Protective Ass'n v. Patterson,

I , icriciecictisaiicisaiceiomencinsiisinchiniantsiatsanieid 6

Orff v. United States, 545 U.S. 596 (2005) .......cccecceeeeeees 6,9

Pacific Coast Federation of Fishermen's Associations v.

Bureau of Reclamation, 426 F.3d 1082

Semana MUTI snisiipbesiscoeihhinliiasdeintaiieiaiascesiapihenihieitiinandeiootins 5,9

Peterson v. Department of the Interior, 899 F.2d 799

REFER NANCE AFAR AT Rat eta NA NOL ane ae mo 15

Rio Grande Silvery Minnow v. Keys, 355 F.3d 1215

aN ksi ise lth shielding 6

Tulare Lake Basin Water Storage Dist. v. United States,

NE eT cicisoninisneensdsiincestdiiensibsinmnoninisnedeiinedanien 8

Tulare Lake Basin Water Storage Dist. v. United States,

ee Se ee ete rtitinisanncnininecieennnnnsicinarnannnemeins 2,7

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

a Pe icicesncineseisninsinitnnninndioniinendnnsunaiennvenienmpmonnnns 17

Westlands Water Dist. v. Dept. of Interior,

ee es De iiisimensnneriasesesnevenvesenmmemmnesseneant 6

STATUTES

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is: Oe a disiannibitnidinnsinonicincnssiinneinniammeasinnnmn ae

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ee Ue PET diikcsindesisiiuienseniniinsnicisonseinieepuiesinmniveninnnationnintn 18

OTHER AUTHORITIES

A. Dan Tarlock & Sarah B. Van de Wetering, Western

Growth And Sustainable Water Use: If There Are No

"Natural Limits,” Should We Worry About Water Supplies?

27 PuB. LAND & RESOURCES L. REV. 33 (2006)............ 10, 11

C. Carter Ruml, The Coase Theorem and Western U.S.

Appropriative Water Rights, 45 Nat. Resources J.

__,_ ___ EERE rnc en ere nn eT eR EE 10

Department of the Interior, Water 2025: Preventing Crises

and Conflict in the West (2005)..........ccccccceeeeceeseteeeeeeeees 10, 12

iV

Julia Muedeking, Taking the Heart of the Klamath Basin:

Is It Free?, 8 Drake J. Agric. L. 217 (2003).......c.ccscssssseeeeee

Olen Paul Matthews et al., Marketing Western Water:

Can a Process Based Geographic Information System

Improve Reallocation Decisions?, 4) Nat. Resources J.

BAP COO ED .ccsscxssccersssncnssndonennsteitinesienapenieeiaiiamennaaan

Stephen C. McCaffrey, Peaceful Uses of International

Rivers, 97 Am. J. Int’) L. 469 (2003) .......... ce eeecsseseeeeseerees

BRIEF OF SEVENTEEN WATER DISTRICTS

AS AMICI CURIAE SUPPORTING PETITIONER

Amici curiae respectfully submit that the judgment

below should be reversed. |

INTERESTS OF AMICI CURIAE

Aynici curiae are seventeen water districts in Oregon

and California, each of which holds the state-granted nght to

receive water under state law. Each has already lost some of

the water granted to it by state law as a result of the

application of the federal Endangered Species Act (ESA). A

decision of this Court expanding federal authority under

Section 7 of the ESA would further reduce their already

impaired state-granted water rights.

Amici curnae, Tulare Lake Basin Water Storage

District, Wheeler-Ridge Maricopa Water Storage District,

Lost Hills Water District, and Kern County Water Agency,

are located in the Central Valley of California. Each of these

amici is the beneficiary of water mghts granted by the

California State Water Resources Control Board. Tulare

Lake Basin Water Storage District and Kern County Water

Agency have contracts directly with the State Water Project.

Lost Hills Water Distnct and Wheeler Ridge-Maricopa

Water Storage District, in turn, have subsidiary contracts

with the Kern County Water Agency. Amici supply water

for agricultural, municipal, and industrial uses. They

' Pursuant to this Court’s Rule 37.6, the amici state that no

counsel for a party authored this bref in whole or in part. No

one other than the counsel of the amici made a monetary

contribution to the preparation or submission of this brief.

This brief is filed with the consent of the parties.

2

successfully sued the federal government in the United States

Court of Federal Claims to recover just compensation under

the Fifth Amendment for the taking of their water to protect

two species of fish listed as endangered under the federal

ESA. See Tulare Lake Basin Water_Storage Dist. v. United

States, 49 Fed. Cl. 313 (2001).

Amici curiae, Enterprise Irrigation District, Klamath

Basin Improvement District, Klamath Drainage District,

Klamath Hills District Improvement Company, Klamath

Irrigation District, Malin Irrigation District, Midland District

Improvement Company, Pine Grove Irrigation District, Poe

Valley Improvement District, Shasta View Irrigation District,

Sunnyside Irrigation District, Tulelake Irrigation District, and

Westside Improvement Distnct No. 4, are located in the

Klamath Basin of southern Oregon and northern California.

Each of these amici is the beneficiary of water rights granted

by the Oregon Water Resources Department. These districts

supply water to several towns, as well as approximately

176,000 acres of farmland. These amici have sued the

federal government in the United States Court of Federal

Claims in order to recover just compensation under the Fifth

Amendment for the taking of their water to protect three

species of fish listed as endangered under the federal ESA.

See Klamath Irrigation Dist. v. United States, 67 Fed. Cl. 504

(2005). This case is pending.

STATEMENT OF THE CASE

The Clean Water Act (CWA) limits the Environmental

Protection Agency’s (EPA) authority to deny a State the

ability to take over the Clean Water Act pollution permitting

program within its borders from the federal EPA. The CWA

provides that the EPA “shall” transfer pollution permitting

authority, under the National Pollution Discharge

Elimination System, to a State, if the State’s proposal

3

requesting transfer meets nine statutory criteria. See 33

U.S.C. § 1342(b). None of the nine statutory criteria

involves endangered species or refers to the Endangered

Species Act. Nevertheless, the court of appeals held that the

ESA supersedes a State’s right under the CWA to administer

water pollution permitting within its borders regardless of

whether the State’s proposal meets the nine criteria.

Thus, the court of appeals remanded back to the EPA

the EPA's decision to transfer pollution permitting authority

to the State of Arizona, despite the fact that there is no

dispute that Anizona’s proposal met all nine statutory criteria.

Indeed, the Fish and Wildlife Service issued a biological

opinion determining that any impact transfer would have on

endangered species was the result of: (1) Congress’ decision

to make Section 7 of the ESA inapplicable to the States; and

(2) Congress’ decision to require transfer of the permitting

process to the States, provided the nine criteria were met

(none of which included consideration of endangered

species). Defenders of Wildlife v. EPA, 450 F.3d 394, 396

(9th Cir. 2006) (Kozinski, J., dissenting from denial of

rehearing en banc)

The court of appeals, however, incorrectly rejected

the agency’s interpretation of the ESA as it applies to the

transfer provision of the CWA. The court of appeals held

that “the EPA did have the authority to consider endangered

species in making the transfer decision, and erfed in

determining otherwise.” Defenders of Wildlife v. EPA, 420

F.3d 946, 950 (9th Cir. 2005). Accordingly, the court of

appeals determined that under the Administrative Procedures

Act, EPA’s decision was arbitrary and capricious.

The court of appeals decision was erroneous, and,

more importantly, has far-reaching effects on the scope of the

ESA. As Judge Kozinski stated in dissent from the denial of

4

rehearing en banc, the court of appeals’ “holding—that the

ESA imposes an affirmative duty on a federal agency to

protect endangered species, even in the face of a governing

statute that explicitly precludes the agency from doing so—

contradicts FWS’s statutory interpretation, ignores the very

reeent instructions of the Supreme Court, and creates a

conflict with two other circuits.” Defenders of Wildlife, 450

F.3d at 40) (Kozinski, J., dissenting from denial! of rehearing

en banc). 1

The effects of the court of appeals decision go well

beyond the CWA pollution permitting transfer decision at

issue in this case. If allowed to stand, the court of appeals

decision will have lasting effects on other programs

administered by the States. In particular, the decision will

permit, and in some instances could force, federal agencics to

interfere in a State’s water allocation decisions. This is

because the decision holds that “any action which comes

within a federal agency’s decisionmaking authority falls

within the scope of Section 7(a)(2) of the Endangered

Species Act.” 420 F.3d 946, 979 (9th Cir. 2005) (Thompson,

J., dissenting). Traditionally, however, it has been

understood that water allocation within a State comés within

that State’s authority—not the authority of the federal

government. The court of appeals’ decision thus threatens

that traditional understanding.

SUMMARY OF ARGUMENT

Interpreting the Endangered Species Act as a gencric

grant of additional legal power to every federal agency at the

expense of the States’ authority (as the court of appeals did in

this case) will upset the delicate process of allocating the

nation’s precious water resources, a power thus far reserved

to the States. Although Section 7 of the ESA certainly

requires that federal action agencies utilize their existing

5

statutory authority to protect endangered species, nothing in

the Janguage or history of that provision suggests that

Congress intended by that section to impliedly repeal all

limitations on federal agency authority where species

protection is concerned. Indeed, the Clean Water Act itself

demonstrates Congress’ intent that traditional state functions,

including water allocation, should not be disturbed. Clean

Water Act, 33 U.S.C. § 1251(g) (providing “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’).

In this time of growing scarcity in the nation’s

freshwater resources, States are struggling to conserve water

and to distribute it in the most efficient and fair manner

possible. The court of appeals’ cavalier disregard of state

primacy in water allocation (as well as pollution control)

ignores this Court’s repeated observation that through the

history of Western water allocation runs the consistent thread

of congressional deference to state water law. California v.

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

As Judge Kozinski noted in his dissent from the

denial of rehearing en banc, adoption of the rule announced

by the court of appeals would affect a vast array of

established programs, in addition to state delegation under

the Clean Water Act: “If the ESA were as powerful as the

majority contends, it weuld modify not only EPA’s

obligation under the CWA, but every categorical mandate

applicable to every federal agency.” Defenders of Wildlife,

450 F.3d at 399 n.4 Kozinski, J., dissenting from denial of

rehearing en banc). One such program is the allocation of

water supplies for municipal, industrial, and agricultural use

across the country, but especially in the and West; in fact, the

rights of water users have already come into conflict with the

Endangered Species Act, resulting in extensive litigation.

6

See, e.g., Orff v. United States, 545 U.S. 596 (2005); Bennett

v. Spear, 520 U.S. 154 (1997); Pacific Coast Federation of

Fishermen's Associations v. Bureau of Reclamation, 426

F.3d 1082 (9th Cir. 2005); Westlands Water Dist. v. Dept. of

Interior, 376 F.3d 853 (9th Cir. 2004); Rio Grande Silvery

Minnow v. Keys, 355 F.3d 1215 (10th Cir. 2004); Klamath

Water Users Protective Ass'n v. Patterson, 204 F.3d 1206

(9th Cir. 1999).

A decision by this Court in favor of respondent and

upholding the court of appeals’ ruling would unhinge the

intricate legal machinery that has so far governed the

allocation of limited supplies of fresh water, and possibly

implicate constitutional issues of federalism as well. These

amici, who have found themselves struggling to provide

supplies to their water users in the face of limitations

imposed under Section 7 of the ESA, urge this Court to reject

respondent’s argument that this provision of the ESA

impliedly repealed the statutory and jurisprudential

limitations on federal agency power to disrupt the States’

long-recognized statutory (and perhaps constitutional)

authority to allocate the water flowing within their borders.

ARGUMENT

I. The Endangered Species Act Has Already Clashed

with Amici’s State-Created Water Rights

This Court has already seen cases arising out of the

conflict between the water demands for endangered fish and

the state-created water rights of people. In Bennett v. Spear,

520 U.S. 154 (1997), this Court found that Klamath water

users had standing to challenge a biological opinion that

impaired their water rights, and in Orff v. United States, 545

U.S. $96 (2005), this Court held that the water district, rather

than the individual] water users, was the proper party to sue

7

for water loss resulting from the re-programming of 800,000

acre-feet of Sacramento Delta water from agriculture to fish

protection. These amici curiae, too, have already lost water

to endangered species—water to which they were entitled

under the state law of California and Oregon.

In Tulare Lake Basin Water Storage District v.

United States, 49 Fed. Cl. 313 (2001), four of these amici

(Tulare Lake Basin Water Storage District, Kern County

Water Agency, Lost Hills Water District, and Wheeler

Ridge-Maricopa Water Storage District) brought suit for a

taking of their state-granted water rights when biological

opinions issued by federal agencies under the ESA reduced

their ability to receive water to which they were entitled from

the California State Water Project. Upholding California’s

right to allocate its water, the court there held:

[T]he responsibility for water allocation is

vested in the State Water Resources Control

Board (“SWRCB”) [and the California

courts], see CAL. WATER CODE §§ 174, 179;

California v. United States, 438 U.S. 645, 693

(1978). Once an allocation has been made —

as was done in D-1485 [(the SWRCB’s

decision establishing a comprehensive water

rights scheme balancing the needs of and

allocating water nghts among competing

users)] — that determination defines the scope

of plaintiffs’ property rights . . .

Tulare Lake, 49 Fed. Cl. at 322.

Furthermore, the court noted that “plaintiffs’ contract

rights in the water’s use [are] superior to all competing

interests,” and the “contracts confer on plaintiffs a right to

the exclusive use of prescribed quantities of water, consistent

8

with the terms of the permits issued to the [Department of

Water Resources] by the State of California.” /d. at 318.

Holding that “(t]he federal government is certainly free to

preserve the fish; it must simply pay for the water it takes to

do so,” id. at 324, the court awarded these amici

approximately $25 million for the taking of 297,334 acre-feet

of water’ to which they were entitled under state law. Tulare

Lake Basin Water Storage Dist. v. United States, 59 Fed. Cl.

246, 266 (2003).

Still pending before the U.S. Court of Federal Claims

is Klamath Irrigation District v. United States, 67 Fed. Cl.

504 (2005), a suit by thirteen amici (Enterprise Irrigation

District, Klamath Basin Improvement District, Klamath

Drainage District, Klamath Irrigation District, Klamath Hills

District Improvement Co., Malin Irrigation District, Midland

District Improvement Co., Pine Grove Irngation District, Poe

Valley Improvement Distnct, Shasta View Irrigation District,

Sunnyside Irrigation District, Tulelake Irngation District, and

Westside Improvement District No. 4) that supply water to

1,400 farm families in the Klamath Basin of Oregon and

California. At issue in Klamath is the water that was to be

used to irrigate 176,000 privately owned acres of land in the

western portion of the Klamath Project in 2001. Under the

authority of the ESA, the Bureau of Reclamation refused to

deliver approximately 350,000 acre-feet of this water, which

it retained in Klamath Lake for the benefit of three species of

endangered fish. Meanwhile, commercial fishermen and

? An acre-foot of water is the volume of water, 43,560 cubic

feet, that will cover an area of one acre to a depth of one foot.

* Irrigators’ direct financial losses from Reclamation’s failure

to supply water in 2001 have been estimated to be at least

$28-35 million. Additionally, “more than two thousand jobs

have been lost, farms have lost $74 million in revenue from

9

others have also sued the United States, claiming that it has

failed to provide enough water for the fish. See, e.g., Pacific

Coast Federation of Fishermen's Associations v. Bureau of

Reclamation, 426 F.3d 1082 (9th Cir. 2005).

Should this Court endorse the court of appeals’

expansionist view of Section 7 without preserving existing

state-created water rights, all of the water in the Sacramento

Delta, Klamath Basin, and elsewhere would immediately

come under federal authority, robbing States of their

traditional power over water allocation and dumping the

water distribution function upon federal agencies that are ill-

equipped to administer it. The result is likely to be chaos in

Western water distribution, resulting in shortages, waste, and

misallocation by federal officials who have neither the

resources nor the experience to allocate and deliver this life-

giving resource to those who put it to beneficial use.

Il. The Growing Scarcity of Water Makes Future —

Conflicts with the Endangered Species Act

Inevitable

The increase in global populations and the increasing

scarcity of water resources world-wide has already

introduced conflicts into the mechanisms of water allocation.

In the western United States in particular, “[uJrban demands

and environmental needs are placing increased pressure on

scarce water resources. ... In addition, the potential for

global climate change to reduce water availability in parts of

the West is very real.” Olen Paul Matthews et al., Marketing

Western Water: Can a Process Based Geographic

the cutoff and drought, and the regional economy has

suffered losses of $134 million.” Julia Muedeking, Taking

the Heart of the Klamath Basin: Is It Free?, 8 Drake J. Agric.

L. 217, 221 (2003).

10

Information System Improve Reallocation Decisions?, 41

Nat. Resources J. 329, 330 (2001). As the Department of the

Interior has recognized, “the demands for water in many

basins of the West exceed the available supply even in

normal years.” Department of the Interior, Water 2025:

Preventing Crises an-Conflict in the West 3 (2005). Simply

put, less water means there will be greater conflicts between

water users and the government as it attempts to enforce the

ESA.

Water scarcity in the West combined with modem

pressures on water usage have strained traditional water

allocation systems. “The American West is a water-scarce

region, with rainfall in many areas west of the one hundredth

meridian averaging less than sixteen inches per year (as

contrasted to over 40 inches a year in most areas east of the

Mississippi River).” C. Carter Ruml, The Coase Theorem

and Western U.S. Appropriative Water Rights, 45 Nat.

Resources J. 169, 174 (2005). Moreover, “[t]he West’s

population is growing at the same time that water supplies

face continued and new stresses.” A. Dan Tarlock & Sarah

B. Van de Wetering, Western Growth And Sustainable Water

Use: If There Are No “Natural Limits,’’ Should We Worry

About Water Supplies? 27 PUB. LAND & RESOURCES L. REV.

33, 39 (2006). Between 2000 and 2003, seven of the ten

fastest growing States in the country were in the West. /d. at

40.* In order to provide sufficient water for these

* For example, between 1990 and 2000, the population of

Nevada increased by an incredible 66.3 percent. U.S. Census

Bureau, Demographic Changes: Population Has Grown Fast

in the West, Particularly in the “Public Land States,”

available at http://www.doi.gov/water2025/populate.html

(last visited Feb. 12, 2007). From 2000 to 2003, its growth

jumped another 12:2 percent in just three years. A. Dan

Tarlock & Sarah B. Van de Wetering, Western Growth And

1]

burgeoning populations, cities are looking farther and paying

more for water, acquiring water that would have otherwise

been used for agricultural purposes. /d.

Another major impact on water supplies is climate

change. For instance, in California even modest declines in

precipitation levels “would have a significant impact because

California ecosystems are conditioned to historical

precipitation levels and water resources are nearly fully

utilized.” California Climate Change Center, Our Changing

Climate: Assessing the Risks to California 3 (2003).

Moreover, climate change could lead to higher temperatures

in the Sierra Nevada Mountains, where normally water is

stored as snow and ice, which as they melt slowly feed rivers

and streams. Cal. Climate Change Ctr., Scenarios of Climate

Change in California: An Overview 14 (2006). “Declining

snowpack will aggravate the already overstretched water

resources in California. The snowpack in the Sierra Nevada

provides natural water storage, equal to about half the storage

capacity in California’s major human-made reservoirs... .”

Id. at 15. If the snowpack were to disappear, it “could mean

more water shortages in the future.” /d. Furthermore, the

“projected changes in water supply would be further

exacerbated by increased demand due to warmer

temperatures. By the end of century, warmer temperatures

are expected to increase the crop demand between 2% and

13%.” /d. at 16.

Given increasing demands on water resources and

probable decreasing supplies, it is inevitable that water “will

be more costly, and the trade-offs between growth and its

Sustainable Water Use: If There Are No “Natural Limits,”

Should We Worry About Water Supplies? 27 PUB. LAND &

RESOURCES L. REV. 33, 40 (2006).

12

alternatives will become more intense and obvious.” 27 Pub.

Land & Resources L. Rev at 35. Although water scarcity in

the American West is a major problem, water scarcity is also

a global problem. As one commentator has noted of what he

characterizes as the “world’s freshwater crisis”:

The United Nations estimates that if current

development trends continue, up to half of the

people in the world will suffer from water

shortages within the coming twenty-five

years. Since much of the world’s freshwater

is contained in drainage basins that are shared

by two or more states, the potential for

conflict over this vital resource is obvious.

Stephen C. McCaffrey, Peaceful Uses of International

Rivers, 97 Am. J. Int’! L. 469 (2003).

In sum, as the Department of the Interior has itself

noted, in the future “water supply-related crises will affect

economies and resources of national and international

importance.” Water 2025 at 3. Playing into this potential

future crisis is the conflict between the ESA and water users.

As water becomes more scarcer, conflicts between

endangered fish and water users will increase.

III. In Interpreting the Endangered Species Act, This

Court Should Reaffirm the States’ Continued

Primacy Over Water Allocation

As this Court has observed, through the history of

Western water allocation runs the consistent thread of

congressional deference to state water law: “The history of

the relationship between the Federal Government and the

States in the reclamation of the arid Jands of the Western

States is both long and involved, but through it runs the

13

consistent thread of purposeful and continued deference to

state water law by Congress.” California v. United States,

438 U.S. 645, 653 (1978). This Court has suggested that this

federal deference to state water law may have constitutional

roots:

One school of legal commentators held the

view that, under the equal-footing doctrine,

the Western States, upon their admission to

the Union, acquired exclusive sovereignty

over the unappropriated waters in their

streams. In 1903, for example, one leading

expert on reclamation and water law observed

that “[iJt has heretofore been assumed that the

authority of each State in the disposal of the

water-supply within its borders was

unquestioned and supreme. .. .” Such

commentators were not without some support

from language in contemporaneous decisions

of this Court. Thus, in Kansas v. Colorado,

206 U.S. 46 (1907), the Court noted:

While arid 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 less) than those within the

limits of the original thirteen.

x** *

[W]lhen the States of Kansas and

Colorado were admitted into the Union

they were admitted with the full

powers of local sovereignty which

belonged to other States, and Colorado

14

by its legislation has recognized the

right of appropriating the flowing

waters to the purposes of irrigation.

California, 438 U.S. at 654~-55 (citations omitted).

Whether rooted in constitutional principles or not,

from the earliest days of westward expansion Congress has

consistently deferred to state and ternitoria!l laws and customs

regarding water allocation:

In 1862, Congress opened the public domain

to homesteading. Homestead Act of 1862, 12

Stat. 392. And in 1866, Congress for the first

time expressly opened the mineral lands of the

public domain to exploration and occupation

by miners. Mining Act of 1866, ch. 262, 14

Stat. 251. Because of the fear that these Acts

might in some way interfere with the water

nghts and systems that had grown up under

state and local law, Congress explicitly

recognized and acknowledged the local law:

[W]henever, by priority of possession,

rights to the use of water for mining,

agricultural, manufacturing, or other

purposes, have vested and accrued,

and the same are recognized and

acknowledged by the local customs,

laws, and the decisions of courts, the

possessors and owners of such vested

rights shall be maintained and

protected in the same. § 9, 14 Stat.

253.

1S

In 1877, Congress took its first step toward

encouraging the reclamation and settlement of

the public desert lands in the West and made it

clear that such reclamation would generally

follow state water law.

California, 438 U.S. at 656-57.

In 1890 and 1891, Congress passed the Act of Aug.

30, 1890, 26 Stat. 391, and the Act of Mar. 3, 1891, 26 Stat.

1101. “The apparent purpose of the 1890 and 1891 Acts was

to reserve reservoir sites from settlement but to open them for

use in reclamation projects. As before, Congress expressly

indicated that the reclamation would be controlled by state

water law... .” California, 438 U.S. at 659-60.

In 1897, Congress passed the Act of Feb. 26, 1897,

ch. 335, 29 Stat. 599. The final provision of that Act was

proposed as a floor amendment by Representative Cannon

“to expressly preserve State’s control over reclamation

within their borders. It was clearly the opinion of a majority _

of the Congressmen who spoke on the bill, however, that

such an amendment was unnecessary except out of an excess

of caution.” California, 438 U.S. at 661.

Finally, in the Reclamation Act of 1902, Congress

“set forth on a massive program to construct and operate

dams, reservoirs, and canals for the reclamation of the arid

lands in 17 Western States.” /d. at 650. In establishing this

“blueprint for the orderly development of the West,”

Peterson v. Department of the Interior, 899 F.2d 799, 802-03

(9th Cir. 1990), Congress continued the consistent principle

of federal deference to state law: “The legislative history of

the Reclamation Act of 1902 makes it abundantly clear that

Congress intended to defer to the substance, as well as the

form, of state water law.” California, 438 U.S. at 675.

16

Rejecting the United States’ claim that subsequent

statutes had altered this congressional) deference to state

primacy in water allocation, this Court left no doubt as to the

continued vitality of that principle in approving California’s

right to place conditions upon a water permit granted to the

United States:

The United States suggests that, even if the

Congress of 1902 intended the Secretary of

the Interior to comply with state law, more

recent legislative enactments have subjected

reclamation projects “to a variety of federal

policies that leave no room for state controls

on the operation of a project or on the choice

of uses it will serve.” Brief for United States

89. While later Congresses have indeed

issued new directives to the Secretary, they

have consistently reaffirmed that the Secretary

should follow state law in all respects not

directly inconsistent with these directives. The

Flood Contre! Act of 1944, 58 Stat. 888, for

example, which first authorized the New

Melones Dam, provides that it is the “policy

of the Congress to recognize the interests and

rights of the States in determining the

development of watersheds within their

borders and likewise their interests and nghts

in water utilization and control.” Perhaps the

most eloquent expression of the need to

observe state water law is found in the Senate

Report on the McCarran Amendment, 43

U.S.C. § 666(a), which subjects the United

States to state-court jurisdiction for general

stream adjudications: ,

“In the arid Western States, for more

17

than 80 years, the law has been the

water above and beneath the surface of

the ground belongs to the public, and

the right to the use thereof is to be

acquired from the State in which it is

found, which State is vested with the

primary control thereof.

*“**

“Since it is clear that the States have

the control of water within their

boundaries, it is essential that each and

every owner along a given water

course, including the United States,

must be amenable to the law of the

State, if there is to be a proper

administration of the water law as it

has developed over the years.”

S.Rep.No. 755, 82d Cong., Ist Sess.,

3,6 (1951).

California, 438 U.S. at 677-79 (footnotes omitted).

Thus, today each State retains the power to determine

for itself the legal principles and process by which water

allocations will be made. See, e.g., United States v. Rio

Grande Dam & Irrig. Co, 174 U.S. 690, 703 (1899) (“[A]s to

every stream within its dominion a State may change [the]

common law rule and permit the appropriation of the flowing

waters for such purposes as it deems wise.”); Kansas v.

Colorado, 206 U.S. 46, 92 (1907) (federal legislation could

not “override state laws in respect to the general subject of

reclamation”). -

In adopting modern pollution legislation, Congress

has continued to adhere to this consistent principle of State

_

18 ~

primacy in water allocation. See Clean Water Act, 33 U.S.C.

§ 1251(g) (providing “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’’); 33 U.S.C. § 1370 (providing that nothing in the

Clean Water Act should “be construed as impairing or in any

manner affecting any right or jurisdiction of the States with

respect to the waters . . . of such States”); see also

Wilderness Act, 16 U.S.C. § 1133(d)(6) (“Nothing in this

chapter shall constitute an express or implied claim or denial

on the part of the Federal Government as to exemption from

State water laws.”’).

Nothing in the text or the legislative history of the

ESA suggests that Congress has deviated from its consistent

princaple of State primacy in the allocation of water. For

instance, Section 4 of the ESA provides for the purchase of

water to meet ESA requirements. 16 U.S.C. § 1534 (stating

that “to conserve fish . .. which are listed as endangered or

threatened species . . . the appropriate Secretary . . . is

authorized to acquire . . . waters, or interest therein”). Such a

provision would make little sense if the ESA overrode a

state’s allocation of water.

Moreover, Section 7 of the ESA only encompasses

acts of the federal government—there is nothing in that

provision that applies it to State governments. Nor should

this Court so read it.

os

19

CONCLUSION

For all of these reasons, the decision by the court of

appeals should be reversed.

Respectfully submitted,

Roger J. Marzulla

Counsel of Record

Nancie G. Marzulla

Zachary N. Somers

MARZULLA & MARZULLA

1350 Connecticut Ave., N.W.

Suite 410

Washington, D.C. 20036

(202) 822-6760

February 20, 2007 Counsel for Amici Curiae