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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 549 U.S. 1105

## Text

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
OUT ERS OP AGI CURIA cccccccsccsccccsssscccncssenssess aie
STA TERGEINE GP Fie CABS wn cccccccccoscvccscssossoneesencssonssnsees 2
AFAR. GE ATRTIIIIIIII SE cccccesesoncescrescossntceseoesssenosenees 4
IT ITT scsiccriinsssnasiieisiapucsiumbiiclaccdanesteieniunniestmibasindbinuiuien 6

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

il

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

te EIT, stiieiisieiihnnssilesnitiiesnscnissnisammmnennnmineseinnauninini 5, 18
a te EOE sitiieisiienreiisinpiiciniinindntscainitiaiieniinneenenienntoe 3
is: Oe a disiannibitnidinnsinonicincnssiinneinniammeasinnnmn ae
ike Oe I iiibincicisincinsinocsinentinnnsoveiienumnnmianieniteet 18
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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0500%3A29. Public record. Not legal advice.