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<br />Page 12 <br /> <br />Norton. Defenders of Wildlife has filed its opening brief asking the court to require the <br />Secretary to complete a new Section 7 consultation process that includes an analysis of the . <br />effects of Reclamation's actions on all listed species tliat occur in Mexico. The United States <br />responded with strong arguments that we've sUPP9rted, including the argument that <br />consultation is not required or useful for the Bur~au's nondiscretionary actions, and <br />the argument that once water crosses the Mexicah border the Bureau has no control <br />over whether it reaches the species of concern. The brief also argued that plaintiffs <br />lacked standing to challenge the U.S. actions. The U.S. avoids tackling the <br />extraterritoriality question head on, saying that It's a red herring because the Bureau <br />considered -the extraterritorial effects of its discr~tionary actions, whether it was <br />required to or not. The Board may want to consider in executive session whether to file <br />an amicus brief on the Issue and how to coordlnat~ our efforts with those in the other <br />basin states. Amicus briefs are due June 18, 2001.: <br />, <br />i <br />18. Headwaters, Inc. v. Talent IrrlRatlon District; No. 99-35373, Ninth Circuit Court of <br />Appeals. <br /> <br />Issue: Whether the irrigation district violated the federal Clean Water Act by <br />applying aquatic herbicide to its canals, without ilbtalning a NPDES permit. <br /> <br />, <br />, <br />Decision: Irrigation canals are "waters of thel United States," because they are <br />trihutaries to the natural streams with which the)' exchange water, and therefore they <br />are subject to the CW A and Its permit requlrem\\nts. <br /> <br />. <br /> <br />Discussion: The Irrigation canals at issue excha,nged water with a number of streams <br />and one lake. At least some of the water exchan~ed was wastewater and leakage from <br />the gates and canals. The Ninth Circuit did not ~nd the United States Supreme Court <br />decision in Solid Waste Agency ofN. Cook Coun~ v. United States "Army Corps of <br />Ena'rs, 121 S.Ct. 675 (2001) to apply. In the Collk County case, the Supreme Court <br />found that isolated ponds located within Illinois ~Id not fall within the definition of <br />navigable waters for purposes of the CW A. Thli Ninth Circuit noted that Irrigation <br />canals are not "Isolated waters" and, In this casel the canals received water from <br />natural streams and lakes, and diverted water tQ streams and creeks. Therefore, they <br />are tributaries to other "waters of the United St~tes." Talent Irrigation District argued <br />that It could seal off the system during applicatlQn of the herbicide and the canals <br />would no longer be tributary. The Ninth Clrcul~ did not accept the argument stating <br />, <br />that even tributaries that flow intermittently are: "waters of the United States." <br />. , <br /> <br />, <br />19. Tulare Lake Basin Water Storage District v. !united States, No. 98-101L, United <br />States Court of Federal Claims. . <br />i <br />, <br />. . I . . <br />Issue: Whether water users' contractuallY'iconferred rights were unconstitutIOnally <br />taken for public use without just compensation w~en..the federal government imposed <br />water use restrictions under the Endangered SpecIes Act. . <br />! <br />