Catskill Mountains Chapter of Trout Unlimited, Inc. v. United States Environmental Protection Agency, 011817 FED2, 14-1823

Docket Nº:14-1823, 14-1909, 14-1991, 14-1997, 14-2003
Opinion Judge:Sack, Circuit Judge
Party Name:Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen's Clubs of Ulster County, Inc., Riverkeeper, Inc., Waterkeeper Alliance, Inc., Trout Unlimited, Inc., National Wildlife Federation, Environment America, Environment New Hampshire, Environment...
Attorney:BARBARA D. UNDERWOOD, Solicitor General (Steven C. Wu, Deputy Solicitor General; Judith N. Vale, Assistant Solicitor General; Lemuel Srolovic, Bureau Chief; Philip Bein, Watershed Inspector General; Meredith Lee-Clark, Assistant Attorney General, Environmental Protection Bureau, on the brief), fo...
Judge Panel:Before: Sack, Chin, and Carney, Circuit Judges. Chin, Circuit Judge, dissenting:
Case Date:January 18, 2017
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen's Clubs of Ulster County, Inc., Riverkeeper, Inc., Waterkeeper Alliance, Inc., Trout Unlimited, Inc., National Wildlife Federation, Environment America, Environment New Hampshire, Environment Rhode Island, Environment Florida, State of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, Washington, Plaintiffs-Appellees,

Government of the Province of Manitoba, Canada, Consolidated Plaintiff-Appellee,

Miccosukee Tribe of Indians of Florida, Friends of the Everglades, Florida Wildlife Federation, Sierra Club, Intervenor Plaintiffs-Appellees,

v.

United States Environmental Protection Agency, Gina McCarthy, in her official capacity as Administrator of the United States Environmental Protection Agency, Defendants-Appellants-Cross Appellees, State of Colorado, State of New Mexico, State of Alaska, Arizona Department of Water Resources, State of Idaho, State of Nebraska, State of North Dakota, State of Nevada, State of Texas, State of Utah, State of Wyoming, Central Arizona Water Conservation District, Central Utah Water Conservancy District, City and County of Denver, by and through its Board of Water Commissioners, City and County of San Francisco Public Utilities Commission, City of Boulder [Colorado], City of Aurora [Colorado], El Dorado Irrigation District, Idaho Water Users Association, Imperial Irrigation District, Kane County [Utah] Water Conservancy District, Las Vegas Valley Water District, Lower Arkansas Valley Water Conservancy District, Metropolitan Water District of Southern California, National Water Resources Association, Salt Lake & Sandy [Utah] Metropolitan Water District, Salt River Project, San Diego County Water Authority, Southeastern Colorado Water Conservancy District, The City of Colorado Springs, acting by and through its enterprise Colorado Springs Utilities, Washington County [Utah] Water District, Western Urban Water Coalition, [California] State Water Contractors, City of New York, Intervenor Defendants-Appellants-Cross Appellees,

Northern Colorado Water Conservancy District, Intervenor Defendant,

v.

South Florida Water Management District, Intervenor Defendant-Appellant-Cross Appellant.

Nos. 14-1823, 14-1909, 14-1991, 14-1997, 14-2003

United States Court of Appeals, Second Circuit

January 18, 2017

Argued: December 1, 2015

In 2008, the United States Environmental Protection Agency promulgated the "Water Transfers Rule, " which formalized the Agency's longstanding position that water transfers are not subject to regulation under the National Pollutant Discharge Elimination System permitting program established decades ago by the Clean Water Act. Shortly thereafter, the plaintiffs, a consortium of environmental conservation and sporting organizations and several state, provincial, and tribal governments, challenged the Water Transfers Rule by bringing suit in the United States District Court for the Southern District of New York against the Agency and its Administrator. After a variety of persons and entities on both sides of the issue intervened, the district court (Kenneth M. Karas, Judge) granted summary judgment for the plaintiffs on the ground that the Water Transfers Rule, although entitled to deferential review under the two-step framework established by Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), could not survive judicial scrutiny because it was based on an unreasonable interpretation of the Clean Water Act. The district court accordingly vacated the Water Transfers Rule and remanded it to the Agency for further assessment. We conclude that the Water Transfers Rule is based on a reasonable interpretation of the Clean Water Act and therefore entitled to Chevron deference. Accordingly, the judgment of the district court is REVERSED.

BARBARA D. UNDERWOOD, Solicitor General (Steven C. Wu, Deputy Solicitor General; Judith N. Vale, Assistant Solicitor General; Lemuel Srolovic, Bureau Chief; Philip Bein, Watershed Inspector General; Meredith Lee-Clark, Assistant Attorney General, Environmental Protection Bureau, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, New York, for Plaintiffs-Appellees the States of New York, Connecticut, Delaware, Illinois, Maine, Michigan, Minnesota, Missouri, and Washington, and the Province of Manitoba.

Daniel E. Estrin, Karl S. Coplan, Pace Environmental Litigation Clinic, Inc., White Plains, New York, (on the brief), for Plaintiffs- Appellees Catskill Mountains Chapter of Trout Unlimited, Inc., Theodore Gordon Flyfishers, Inc., Catskill-Delaware Natural Water Alliance, Inc., Federated Sportsmen's Clubs of Ulster County, Inc., Riverkeeper, Inc., Waterkeeper Alliance, Inc., Trout Unlimited, Inc., National Wildlife Federation, Environment America, Environment New Hampshire, Environment Rhode Island, and Environment Florida.

Yinet Pino, Miccosukee Tribe of Indians of Florida, Miami, Florida; David G. Guest, Earthjustice, Tallahassee, Florida, (on the brief), for Intervenor Plaintiffs-Appellees Miccosukee Tribe of Indians of Florida, Friends of the Everglades, Florida Wildlife Federation, and Sierra Club.

ROBERT WILLIAM YALEN (Benjamin H. Torrance, on the briefs), for Preet Bharara, United States Attorney for the Southern District of New York, for Defendants- Appellants United States Environmental Protection Agency and Gina McCarthy.

PETER D. NICHOLS, Berg Hill Greenleaf & Ruscitti LLP, Boulder, Colorado (Don Baur & Paul Smyth, Perkins Coie LLP, Washington, District of Columbia, on the brief), for Intervenor Defendants-Appellants- Cross Appellees Central Arizona Water Conservation District, Central Utah Water Conservancy District, City and County of Denver, by and through its Board of Water Commissioners, City and County of San Francisco Public Utilities Commission, City of Boulder [Colorado], City of Aurora [Colorado], El Dorado Irrigation District, Idaho Water Users Association, Imperial Irrigation District, Kane County [Utah] Water Conservancy District, Las Vegas Valley Water District, Lower Arkansas Valley Water Conservancy District, The Metropolitan Water District of Southern California, National Water Resources Association, Salt Lake & Sandy [Utah] Metropolitan Water District, Salt River Project, San Diego County Water Authority, Southeastern Colorado Water Conservancy District, The City of Colorado Springs, Acting by and through its Enterprise Colorado Springs Utilities, Washington County [Utah] Water District, Western Urban Water Coalition, and [California] State Water Contractors. 1

JULIE STEINER (Larry Sonnenshein & Hilary Meltzer, on the briefs), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York, for Intervenor Defendant-Appellant-Cross Appellee City of New York.

JAMES EDWARD NUTT, South Florida Water Management District, West Palm Beach, Florida, for Intervenor Defendant- Appellant-Cross-Appellant South Florida Water Management District.

Annette M. Quill, Senior Assistant Attorney General, State of Colorado, Denver, Colorado, (on the briefs), for Intervenor-Defendants-Appellants-Cross Appellees States of Colorado, New Mexico, Alaska, Arizona (Department of Water Resources), Idaho, Nebraska, Nevada, North Dakota, Texas, Utah, and Wyoming.

Ellen B. Steen, Danielle Hallcom Quist, American Farm Bureau Federation, Washington, District of Columbia; Staci Braswell, Florida Farm Bureau Federation, Gainesville, Florida; Timothy S. Bishop, Michael B. Kimberly, Mayer Brown LLP, Washington, District of Columbia, (on the brief), for Amici Curiae-American Farm Bureau Federation and Florida Farm Bureau Federation.

Laura Murphy & Patrick Parenteau, Environmental & Natural Resources Law Clinic, Vermont Law School, South Royalton, Vermont, (on the brief), for Amici Curiae-Leon G. Billings, Tom Jorling, Jeffrey G. Miller, Robert W. Adler, William Andreen, Harrison C. Dunning, Mark Squillace, and Sandra B. Zellmer.

Kamala D. Harris, Attorney General; Robert W. Byrne, Senior Assistant Attorney General; Gavin G. McCabe, Supervising Deputy Attorney General; William Jenkins, Deputy Attorney General; State of California Department of Justice, Office of the Attorney General, San Francisco, California, (on the brief), for Amicus Curiae- State of California by and through the California Department of Water Resources.

Michael A. Swiger, Charles R. Sensiba, Sharon L. White, Van Ness Feldman, LLP, Washington, District of Columbia, (on the brief), for Amici Curiae-National Hydropower Association, Northwest Hydroelectric Association, American Public Power Association, Sabine River Authority of Texas, Sabine River Authority State of Louisiana, and Oglethorpe Power Corporation.

Before: Sack, Chin, and Carney, Circuit Judges.

Sack, Circuit Judge

"Water, water, everywhere / Nor any drop to drink."2

Because New York City cannot...

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