Petition — California v. Sierra Club
Supreme Court brief1981
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Fe
“eupreme u Ue im”
FILED
FEB 13 1980
MICHAEL RODAK, JR., CLERR
In THE
Supreme Court of the United States
Ocroser Term, 1979
No. 29-1259
State oF Caurrorni, ef al.,
Petitioners,
vs.
Smerra Cuvs, e¢ al.,
Respondents.
Petition for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
GrorGE DEUKMEJIAN
Attorney General of the
State of California
R. H. Connett
Assistar’ Attorney General
Roprrick WALSTON
Deputy Attorney General
Grecory K. WILKINSON
Deputy Attorney General
6000 State Building
San Francisco, CA 94102
Tel: (415) 557-3920
Attorneys for Petitioners
SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105
TABLE OF CONTENTS
Page
Opinions Below 1
SPURT ONIN och ciceineieies 1
Questions Presented ..................--.----- 2
Federal Laws Involved . 2
pentement of the Case =... ee 3
1. Facts of the Case saiiigiatiods 2
2. Nature of the Comtroveray ....~-ncssiceccsecsesoesmennts 6
3. The Case Below .............. sisticedincippiaidgsedcsaiicatia tila 7
Reasons for Granting the Writ .....................sss--sssssesssesseeeee 8
I. This Case Presents Important Federal Issues
That Deserve the Attention of This Court ........ 8
II. The Court of Appeals, by Holding That the
Army Corps of Engineers has Control of Water
Diversions That Are Part of a State Water
Allocation Scheme, Has Improperly Resolved
the Conflict Between Federal Laws Involved
Here 11
A. The Corps’ Powers Under the Rivers and
Harbors Act of 1899 11
B. State Control of Water Allocations ............ 14
C. Federal Navigation Power ...... 19
III. The Rivers and Harbors Act of 1899 Does Not
Apply to Water Diversions From Projects
Owned and Operated by the States 22
li TABLE OF CONTENTS
Page
IV. The Rivers and Harbors Act of 1899 Is Not
Applicable to Water Diversions From Federal
Reclamation Projects Built and Operated Under
Reclamation Act of 1902 fe
V. The Issues in This Case Have Never Been De-
cided by This Court : 25
Conclusion noe 27
TABLE OF AUTHORITIES
CasEs Pages
Broder v. Water Co., 101 U.S. 274 (1879) ........002.0......... 14
California v. United States, 438 U.S. 645 (1978) ........ passim
California Oregon Power Co. v. Beaver Portland Ce-
ment Co., 295 U.S. 143 (1935) 14, 19-20
Cantor v. Detroit Edison Co., 426 U.S. 579 (1976) ........ 28-29
City of Fresno v. California, 372 U.S. 627 (1963) ........ 25
Dean Milk Co. v. Madison, 340 U.S. 349 (1951) ............ 1
Florida Lime & Avocado Growers, Inc. v. Paul, 373
U.S. 182 (1963) Secnsccaicihchspaciioeaecsieiananansunsmnnnits 25
Ickes v. Fox, 300 U.S. 82 (1937) 14
Ivanhoe Irrig. District v. McCracken, 357 U.S. O75
CRIED wcakcarihsalnacahincniccecsnsghaataaiok .. 4, 25
Jennison v. Kirk, 98 U.S. 453 (1879) ; 14
Kansas v. Colorado, 206 U.S. 46 (1907) 00002. 2... 16
National League of Cities v. Usery, 426 U.S. 833 (1976) 19
Parker v. Brown, 317 U.S. 341 (1943) ........ ; 23
Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212
(1845) ... es 14
Sanitary District v. United States, 266 U.S. 405
(1925) = 20, 25, 26
United States v. Gerlach Live Stock Co., 339 U.S. 725
(TIE icici Sesthra easarbilcibbesahtapeacantabaialtitanae 3-4, 9
United States v. New Mexico, 438 U.S. 696 (1978) ....9, 16, 19
United States v. Republic Steel Corp., 362 U.S. 482
(1960) 18, 20, 26
=.
iv TABLE OF AUTHORITIES
Pages
United States v. Rio Grande Dam & Irrig. Co., 174
U.S. 690 (1899) ..20, 21, 26
Williamette Iron Bridge Co. v. Hatch, 125 U.S. 1
(1888) 21
Wisconsin v. Illinois, 278 U.S. 367 (1929) ..................-+- 25, 26
CONGRESSIONAL MATERIALS
Unitep States Copr
3g FORE Bo ce URC LANEPANDN SOE Oh a raeee nee Ramee 1
STATUTES AT LARGE
Clean Water Act
SS cay ES ERR ROT ee. AOE ae 15
al ak ensatcnaniaien 16
CROUOD ockie uns ah A cae os an
§ 1251(g) ...... . ACE RY SF eee Teh we 16
|: EASES aa! bree er eee bes 16
Desert Land Act of 1877, 19 Stat. 377 ....... : 14
Federal Water Supply Act of 1958, 43 U.S.C. § 390(b).. 15
Flood Control Act of 1944, 58 Stat. 887_.......22...
Mining Acts of 1866 and 1870, 43 U.S.C. § 661 ............ 14
National Environmental Policy Act, 42 U.S.C. §§ 4321-
GD csisiisins A SORT OR Ie ER ANT Sey OR 6
Reclamation Act of 1902, 48 U.S.C, §§ 371 et seq. ........ passim
Rivers and Harbors Act of 1890, 26 Stat. 426 _............ passim
Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401,
403 sisieselpeoneobiansidea usinsednslcelaabidliatelatepalust passim
TABLE OF AUTHORITIES Vv
Pages
CoNGRESSIONAL REcorpD
21 Cong. Record, 8603-8606, 8690, 8990, 51st Cong., 1st
Sess. (1890) ..... 18, 23
CALIFORNIA CONSTITUTION AND CODES
California Const., Art. X, § 2 17
California Water Code
§ 275 4,17
§ 1201 4,17
§ 1225 ... ; 5, 17
$1240 17
§§ 1250-1258 5, 17
§§ 1875-1415 ; 5, 17
STATE LEGISLATIVE MATERIALS
Senate Bill 200, California Legislature Sen, Ayala...... 7
ADMINISTRATIVE MATERIALS
Decision 1485, State Water Resources Control Board .. 5,6
MISCELLANEOUS
Note, “Delta Water Rights Decision,” 2 Ecol. L. Quar.
733 (1973) 4
1 Hutchins, Water Rights Laws in the Nineteen West-
ern States (1974) .................. a 9
In THE
Supreme Court of the Cuited States
Ocroser TERM, 1979
Be
STATE OF CaLirorNi, ef al.,
Petitioners,
Vs.
Srerra Civ, et al.,
Respondents.
Petition for Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
OPINIONS BELOW
The decision of the U.S. Court of Appeals, which is not
yet officially reported, is set forth in the Appendix. App.
2-65. The decision of the district court, which is officially
reported at 400 F.Supp. 610 (N.D. Cal. 1975), is set forth in
the Supplemental Appendix.
JURISDICTION
The decision of the U.S. Court of Appeals was rendered
on October 31, 1979. A petition for rehearing was filed by
the plaintiffs on November 21, 1979, and was denied on
January 17, 1980. A petition for writ of certiorari is due on
or before April 16, 1980. This Court has jurisdiction under
28 U.S.C. § 1254(1).
2
QUESTIONS PRESENTED
(1) Does the Rivers and Harbors Act of 1899 authorize
the Army Corps of Engineers to control water diversions
from a state reclamation project where the state has
authorized the diversions under its water rights laws, where
the diversions are part of a state water allocation scheme,
and where the diversions may have no effect on navigation?
(2) Does the Rivers and Harbors Act of 1899, which is
applicable to physical works built by a “person” or “cor-
poration,” apply to reclamation projects owned and op-
erated by a state?
(3) Does the Rivers and Harbors Act of 1899 authorize
the Army Corps of Engineers to control water diversions
from a federal reclamation project built and operated under
the Reclamation Act of 1902?
FEDERAL LAWS INVOLVED
This case involves an interpretation of sections 9 and
10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401,
403, which are set forth in the Appendix. App. 1.
STATEMENT OF THE CASE
1. Facts of the Case
In response to an initiative approved by the California
electorate in 1960, California built a massive reclamation
project that transports water from rural mountainous areas
in the northern part of the State to metropolitan and agri-
cultural areas in the central and southern parts of the
State. The project, known as the State Water Project
(SWP), is owned by the State and operated by a State
agency, the State Department of Water Resources
(SDWR). The SDWR has entered into 31 water supply con-
tracts with irrigation and municipal water districts in cen-
tral and southern California. The contracts provide for
3
ultimate delivery of approximately 4.2 million acre-feet of
water annually from the SWP. The contracting water dis-
tricts have entered into other contracts with local agri-
cultural, industrial, and domestic users on the assumption
that SWP water will be available for local needs. The
SWP presently provides a water supply for approximately
15 million people and 500,000 acres of prime agricultural
land. App. 8-9.
The main component of the SWP is a large dam near
Oroville on the Feather River, a tributary of the Sacra-
mento River. The dam releases water that eventually
reaches the Sacramento-San Joaquin Delta, a maze of inter-
locking channels which form the confluence of the Sacra-
mento and San Joaquin Rivers. The Delta drains into San
Francisco Bay and the Pacific Ocean. The SWP water is
exported from the Delta by a State pumping facility loeated
at the south end of the Delta. The exported waier flows
through a State aqueduct to the contracting water districts
in central and southern California. App. 8-9.
Pursuant to the Reclamation Act of 1902, the federal
government built its own reclamation project, the Central
Valley Project (CVP), in California. The CVP, the largest
reclamation project in the nation, includes several dams on
the upper Sacramento and San Joacuin Rivers. The dams
release waters that flow downstream to the Delta, where the
CVP water is commingled with SWP water. CVP waters
are exported from the Delta by a federal pumping facility
located at the south end of the Delta, and flow through a
federal aqueduct to contracting water districts in central
California. The CVP is operated by the U.S. Bureau of
Reclamation (USBR).? See generally United States v.
1. The USBR was recently renamed the U.S. Water and Power
Resources Service. For purposes of this petition, we will continue
to refer to the agency as the USBR.
’>
4
Gerlach Live Stock Co., 339 U.S. 725, 727-735 (1950) ;
Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 280-284
(1958).
A major problem of California’s water supply system is
that the Delta’s waters are perennially threatened by intru-
sion of ocean salt waters. The intruding salt waters pose a
threat to valuable economic and environmental interests in
the Delta; the Delta sustains a rich agricultural economy,
and is the source of unusual species of fish and waterfowl.
The intruding salt waters also threaten to degrade the
quality of SWP and CVP waters exported from the Delta
to contracting water districts in central and southern Cali-
fornia. The most effective way to prevent such salinity
intrusion is to flush out the salt waters by release of vast
quantities of fresh waters from the upstream dams and
reservoirs of the SWP and CVP. The more water that is
used for flushing purposes, however, the less water is avail-
able for export to the contracting water districts. A conflict
thus exists between Delta water needs and the water needs
of users in central and southern California. The allocation
of water between these needs requires a careful balancing
of economic, domestic and environmental interests in north-
ern, central, and southern California. The allocation of such
water will have a major impact upon California’s economic
growth and environmental quality. See Note, “Delta Water
Rights Decision,” 2 Ecol. L. Quar. 733 (1973).
Under California law, the authority to allocate water
among competing needs rests with the State Water
Resourees Control Board (SWRCB). The SWRCB has
authority to grant appropriative water rights, and to im-
pose conditions on the rights to the extent necessary to
insure the “reasonable and beneficial use” of water and to
protect the “public interest.” Cal. Water Code §§ 275, 1201,
vy
5
1225, 1250-1258, 1375-1415. The SDWR and USBR have
applied to the SWRCB for permits to appropriate water
from the Delta water supply for use in the SWP and CVP,
respectively. After lengthy hearings, the SWRCB granted
appropriative permits subject to conditions that the proj-
ects release water from upstream storage or discontinue
water exports from the Delta to the extent necessary to
meet Delta water quality standards set by the SWRCB. The
SWRCB has periodically modified its Delta water quality
standards on the basis of economic, domestic and environ-
mental needs of both Delta and non-Delta interests. The
SWRCB recently issued a landmark decision, Decision
1485, which generally provides that, as a condition to SWP
and CVP water exports from the Delta, (1) Delta consump-
tive uses must receive at least the same water quality which
they would have received if the SWP and CVP had not
been built, and (2) Delta environmental needs must receive
historical levels of protection. This administrative decision
thus results in a major allocation of water among northern,
central, and southern California interests. Decision 1485,
State Wat. Res. Cont. Bd. (Aug. 1978).?
To improve the quality of project waters exported from
the Delta, the State of California has proposed to build a
42-mile canal around the eastern margin of the Delta that
will carry fresh water from the Sacramento River to the
SWP and CVP pumping plants in the south Delta. This
2>~ Several lawsuits have been filed, and are now pending, against
the SWRCB by Delta and non-Delta interests, each claiming that
Decision 1485 allocates insufficient water to each’s own needs. The
plaintiff in the instant case, the Sierra Club, participated in the
hearings before the SWRCB, but did not file a lawsuit challenging
the allocation system in Decision 1485. Thus, to the extent that the
plaintiffs seek to protect the Delta’s environment, they have a rem-
edy under State law which they have failed to utilize.
A copy of Decision 1485 has been lodged with the Clerk of this
Court.
6
proposed canal, known as the Peripheral Canal, would also
release fresh water into the Delta at selected intervals for
the protection of Delta water quality. Although the State
has not formally authorized construction of the canal, it has
expended approximately $10 million towards its construc-
tion. The federal government has participated in the plan-
ning for the canal, but Congress has not yet authorized
federal participation in its construction. App. 9.
2. Nature of the Controversy
Prior to the issuance of Decision 1485, the plaintiffs ini-
tiated this action against the federal officials who operate
the CVP, the State officials who operate the SWP, and the
State of California. The plaintiffs alleged that (1) sections
9 and 10 of the Rivers and Harbors Act of 1899 require that
the Army Corps of Engineers (“Corps”) issue a permit as a
prerequisite to SWP and CVP water exports from the Delta
to the contracting water districts, and as a prerequisite to
construction of the Peripheral Canal, and (2) the Corps
cannot issue such a permit until it has prepared and issued
an environmental impact statement pursuant to the Na-
tional Environmental Policy Act, 42 U.S.C. §§ 4821-4347.
App. 4-7.
The defendants alleged that (1) the Rivers and Harbors
Act of 1899 does not authorize a private right of action, (2)
the plaintiffs lack standing to maintain their action, (3)
sections 9 and 10 of the 1899 Act are not applicable to SWP
and CVP water exports from the Delta, and (4) the require-
ments of the sections have been met if they are applicable
here. In addition, the federal defendants alleged that section
10 is not applicable to CVP water diversions because the
diversion works have been expressly authorized by Con-
gress. App. 5-6.
3. The Case Below
Both the district court and the Court of Appeals rejected
the defendants’ main arguments, ruling that (1) the Rivers
and Harbors Act of 1899 provides for a private right of
action, (2) the plaintiffs have standing to maintain their
action, (3) sections 9 and 10 of the 1899 Act are applicable
to SWP and CVP water exports from the Delta, and (4) the
requirements of the sections have not been met here.* How-
ever, the Court of Appeals, reversing the district court,
upheld the federal defendants’ argument that section 10 is
not applicable to CVP water diversions because the diver-
sion works have been specifically authorized by Congress.
App. 41-53.
The Court of Appeals, affirming the district court, en-
joined the State defendants from exporting water from the
3. The Court of Appeals remanded the case to the district
court for determination of whether the State pumping plant is
exempt from the permit requirements of the 1899 Act because of
a “grandfather clause” provision in the Corps’ regulations. App.
56-57. Even though the lower judgment is not yet final, the
urgency of the jurisdictional issue warrants this Court’s immediate
review of the issues herein. Even if it is held im the remanded
proceeding that the State’s existing pumping plant is exempt from
Corps approval because of the “grandfather clause’’ provision, the
exemption would : parently not extend to plant additions that
enlarge plant capacity and thus result in increased water diver-
sions; the State plans to increase the plant capacity, and hence
inerease the rate of diversions, by 60% in 1980. App. 8.
Further, the “grandfather clause” provision is not applicable
to the State’s proposed construction of the Peripheral Canal, and
thus will have no effect on the court’s determination that the State
must obtain Corps approval prior to commencing construction of
the canal. A bill is now pending in the California Legislature that
would authorize construction of the canal, and that makes no pro-
vision for Corps approval. S.B. 200, Cal. Legislature (Ayala).
Further, the State has already expended approximately $10 million
for preliminary work on the canal, and should know whether the
canal is subject to Corps approval prior to expending additional
sums. For these reasons, it is “nportant that the meaning of sec-
tions 9 and 10 be finally resolved as soon as possible.
8
Delta or commencing construction of the Peripheral Canal
prior to obtaining a permit from the Corps. App. 58-59. The
court stayed the injunction with respect to water exports
until the Corps issues a permit, but did not stay the injune-
tion with respect to construction of the Peripheral Canal.
App. 58-59. The State of California and the State defend-
ants now file their petition for writ of certiorari.
REASONS FOR GRANTING THE WRIT
|. This Case Presents Important Federal Issues That Deserve the
Attention of This Court.
This case raises fundamental issues of federalism that
have never been addressed by this Court, or by any federal
appellate court prior to this case. The primary issue is
whether the Corps has authority to regulate water diver-
sions from a state reclamation project where the state has
authorized the diversions under its water rights laws as
part of a state water allocation scheme, and where the diver-
sions may have no effect on navigation.
This issue involves a conflict between congressional laws
that, on their surface, might be construed as vesting the
Corps and the western states with control over the same
subject matter. On the one hand, Congress, by enacting
the Rivers and Harbors Act of 1899, provided the Corps
with broad control over structures that affect navigable
waters. The Court of Appeals construed this Act as author-
izing the Corps to control water diversions from a state
reclamation project that are authorized by the state under
its water rights laws, and that are part of a state scheme to
allocate water among different water users and interests.
The court held that the Corps has such control even though
the diversions may not actually affect navigation. App.
98-99. On the other hand, Congress has granted broad
9
power to the western states, by a series of enactments
dating back to the last century, to control allocation of water
among local interests; this power includes the power to
provide for water diversions to the local interests. Thus,
this case presents an apparent conflict between con-
gressional grants of authority to the Corps and the western
states over the control and allocation of water resources.
This issue has a major impact on the growth and de-
velopment of the western states. Because of the arid nature
of most western lands, water is necessary to make the lands
habitable and productive; water is thus the key to the
West’s economic growth. To develop and conserve their
sparse water supply, all western states have developed
administrative water rights systems which provide for
allocation of water among local agricultural and urban
interests. See, e.g., United States v. Gerlach Live Stock Co.,
339 U.S. 725, 742-750 (1950) ; 1 Hutchins, Water Rights Law
in the Nineteen Western States, 302 (1974). Under these
state systems, the water allocations are based on the need to
provide for the most “reasonable and beneficial use” of
water as determined by each state. Jd. The Court of Ap-
peals’ decision, however, allows the Corps to override the
state water allocations, even where navigation is not af-
fected by the allocations. The court’s decision thus di-
minishes the states’ authority, and enlarges the Corps’
authority, over the water resources that are vital to western
growth and development. The decision runs against the
grain of this Court’s recent decisions that recognize the
western states as having broad control of their unappro-
priated waters even where competing federal interests are
involved. See California v. United States, 438 U.S. 645
(1978) ; United States v. New Mexico, 438 U.S. 696 (1978).
he Court of Appeals’ decision will have a singularly
large impact in California. As noted above, the State and
10
the federal government have built large reclamation
projects that deliver millions of acre-feet of water annually
from northern California to central and southern Cali-
fornia. The State, through the SWRCB, has authorized
the delivery of the water subject to conditions for protec-
tion of the Delta in northern California. Water districts in
central and southern California have signed contracts for
the delivery of the water, and have m¢‘e plans for its use.
The lower decision, however, allows the Corps to prevent
the delivery of the water if, in the Corps’ judgment, the
Delta is not adequately protected. The decision thus allows
the Corps to override a comprehensive state scheme to allo-
cate water among northern, central, and southern Cali-
fornia interests.
As will be explained more fully in this petition, we assert
only that the western states, in allocating water under their
water rights laws, are not subject to the Corps’ authority
under the Rivers and Harbors Act of 1899. We do not
assert, however, that the western states are free of the fed-
eral navigation power. In our view, the federal government
has inherent power, independently of the Corps’ authority
under the 1899 Act, to restrain state water allocations that
may substantially impair navigation and commerce. As we
explain below, this federal power requires that the naviga-
tional impact of the state allocations be measured against
(1) the state’s interest in making the allocations and (2) the
availability of alternative means by which the state interest
ean be served. Since the federal government has an inde-
pendent remedy to restrain state allocations that threaten
navigation and commerce, there is no federal interest that
compels the conclusion that the Corps has such a remedy
under the Rivers and Harbors Act of 1899. In short, the
federal navigation interest is neutral in this case.
11
Because the federal navigation interest is neutral, this
case presents no contest between the State of California
and the United States. In the proceeding below, the United
States fully agreed with our views, stating that it was
“beyond both Congress’ intent in enacting section 10 and
the Corps’ present capabilities” for the Corps “to take
over traditional state administration of appropriative
water rights.” U.S. Reply Br., 7. The Corps’ authority in
this case is asserted by a private party, not by the United
States. The State and the United States are thus in appar-
ent accord with respect to the relationship of their powers,
which strengthens our view that the lower decision—which
alters that relationship—should be reviewed by this Court.
ll. The Court of Appeals, by Holding That the Army Corps of
Eraineers Has Control of Water Diversions That Are Part
of a State Water Allocation Scheme, Has Improperly
Resolved the Conflict Between Federal Laws Involved Here.
A. THE CORPS' POWERS UNDER THE RIVERS AND HARBORS ACT OF 1899.
Section 10 of the Rivers and Harbors Act of 1899 con-
tains three clauses.‘ The first clause prohibits “any obstruc-
4. Section 10 provides:
“The ereation of any obstruction not affirmatively author-
ized by Congress, to the navigable capacity of any of the
waters of the United States is prohibited; and it shall not be
lawful to build or commence the building of any wharf,
pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or
other structure in any port, roadstead, haven, harbor, canal,
navigable river, or other water of the United States, outside
established harbor lines, or where no harbor lines have been
established, except on plans recommended by the Chief of
Engineers and authorized by the Secretary of the Army; and
it shall not be lawful to excavate or fill, or in any manner to
alter or modify the course, location, condition, or capacity of,
any port, roadstead, haven, harbor, canal, lake, harbor of
refuge, or inclosure within the limits of any breakwater, or
of the channel of any navigable water of the United States,
unless the work has been recommended by the Chief of
Engineers and authorized by the Secretary of the Army prior
to beginning the same.’’ 33 U.S.C. § 403.
12
tion not affirmatively authorized by Congress, to the
navigable capacity of any of the waters of the United
States . >.” 33 U.S.C. § 403. The second clause prohibits
the erection of any structure in navigable waters except on
plans recommended by the Corps and approved by the Sec-
retary of the Army. Jd. The third clause, which is the most
far-reaching, makes it unlawful to “alter or modify” the
“eourse, location, condition, or capacity” of any navigable
channel except pursuant to the Corps’ recommendation and
approval by the Secretary of the Army. Id. (Emphasis
added.)
The Court of Appeals broadly interpreted the Corps’
powers under section 10. In the major part of its decision,
the court ruled that the section authorizes the Corps to
control water diversions even where the diversions are
authorized by a state under its water rights laws, and are
part of a general water allocation scheme established by
the state. App. 26-41. Moreover, the court, overruling the
district court, ruled that the Corps can control water diver-
sions even where navigation is not affected. According to
the Court of Appeals, the third clause of section 10—which
requires Corps approval of any attempt to “alter or modify”
the “condition or capacity” of navigable waters—is applic-
able even if the first clause—which prohibits any “obstruc-
tion” to navigation—is not strictly applicable; any
modification or alteration of the condition or capacity of
navigable waters is presumed to obstruct navigable capacity,
even if actual navigable capacity is not affected. App. 28-29,
31, 41-42.°
5. The district court held that Corps approval is required only
if the water diversions result in an “obstruction” to navigation
within the meaning of the first clause, and that the water diver-
sions in this ease resulted in such an obstruction. App. 27-28. The
13
The Court of Appeals thus held that the Corps can control
any water diversion authorized by a state under its water
rights laws, even if the diversion affects the condition rather
than the navigability of the waters. State water rights laws
commonly result in water diversions that affect the condition
of the water from which the diversions are made. The lower
decision thus allows the Corps to control most water appro-
priations authorized under state water rights laws. More-
over, since the Corps can exercise such control even if the
navigability of the water is unaffected, the Corps can con-
trol state water appropriations even where federal naviga-
tion interests are not involved.
The court, construing the Corps’ powers even more
broadly, ruled that the Corps must consider the environ-
ment consequences of the diversions, and must prepare an
environmental impact statement prior to authorizing any
diversion that may have a substantially adverse effect on
the environment. App. 18 n. 13, 25. Indeed, the court ruled
that the Corps can prevent water diversions on strictly
environmental rather than navigational grounds. / d. It thus
allowed the Corps’ environmental judgment to override that
of the state regardless of the navigational impacts of the
diversions.
We do not deny that the Corps has broad power, even to
the point of considering non-navigation factors, in deter-
mining whether to approve water diversions that are not
authorized pursuant to state water rights laws. Indeed, we
encourage the broadest possible interpretation of the Corps’
authority in areas that are not otherwise subject to federal
Court of Appeals ruled, however, that the water diversions resulted
in a modification or alteration of the “eondition or capacity” of
navigable waters within the meaning of the third clause, and thus
that it was unnecessary to determine whether the diversions resulted
‘n an “obstruction” within the meaning of the first clause. App.
28-29.
; 14
or state governmental regulation. We contend only that the
Corps’ authority under the Rivers and Harbors Act of 1899
does not extend to water diversions that are authorized as
part of a state water allocation scheme. Congress has pro-
vided for state control of water diversions in this context, as
we shall now see.
B. STATE CONTROL OF WATER ALLOCATIONS.
Because of the importance of water to the West’s economic
growth and development, Congress has long established a
policy of allowing the western states to allocate water among
local economic interests. This policy, for example, finds
expression in the “equal footing” doctrine. Under this
doctrine, the western states acquired control of their navi-
gable waters at the time of their admission to statehood
subject to paramount federal powers over navigation.
See, e.g., California v. United States, 438 U.S. 645, 654-655
(1978); Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212,
223-224 (1845).
This congressional policy was furthered in the Mining
Acts of 1866 and 1870, 43 U.S.C. § 661, and the Desert Land
Act of 1877, 19 Stat. 377. These acts generally authorize
the western states to control the appropriation of their sur-
plus waters subject to federal power over federal lands and
over navigation. See California v. United States, supra at
656-658; Ickes v. Fox, 300 U.S. 82, 95 (1937); Broder v.
Water Co., 101 U.S. 274 (1879); Jennison v. Kirk, 98 U.S.
453, 459-461 (1879) ; California Oregon Power Co. v. Beaver
Portland Cement Co., 295 U.S. 142, 153-157 (1935).
Congress instituted its own reclamation program for the
West by enacting the Reclamation Act of 1902, 43 U.S.C.
§§ 371 et seq. Section 8 of the Act, id. at §§ 372, 383, reaffirms
the states’ “control” of “appropriation, use, or distribution”
15
of water, and provides that the federal government “shall
proceed in conformity with” such laws in carrying out the
federal reclamation program. This Court recently reaf-
firmed the states’ broad authority under the Act, overrul-
ing several of its own prior decisions that had narrowly
interpreted the states’ authority. Califorma v. United
States, supra. It is both ironic and anomalous that, although
this Court now recognizes the states as having broad con-
trol of water developed by federal reclamation projects,
the Court of Appeals’ decision provides the federal gov-
ernment—through the Corps—with broad control of water
developed by state reclamation projects.
Congress has continued to recognize state water laws by
legislation enacted in the modern era. For instance, the
Federal Water Supply Act of 1958, 43 U.S.C. § 390(b),
which authorizes federal construction of navigation and
flood control works, provides:
“Tt is declared to be the policy of the Congress to
recognize the primary responsibilities of the States
and local interests in developing water supplies for
domestic, municipal, industrial, and other purposes
and that the Federal Government should participate
and cooperate with States and local interests in devel-
oping such water supplies in connection with the con-
struction, maintenance, and operation of Federal
navigation, flood control, irrigation, or multiple pur-
pose projects.”
A clear example of how Congress has deferred to state
laws even where the Corps’ navigation powers are con-
cerned, is found in the Clean Water Act, 33 U.S.C. §§ 1251-
1376. Section 13 of the Rivers and Harbors Act of 1899
authorized the Corps to control waste discharges into
16
navigable waters. 33 U.S.C. § 407; United States v. Republic
Steel Corp., 362 U.S. 482 (1960). In the 1972 amendments
to the Clean Water Act, the Corps’ authority under section
13 was transferred to the Administrator of the Environ-
mental Protection Agency. 33 U.S.C. § 1342(a) (5). Sections
101(g) and 510(2) of the Clean Water Act, however, make
clear that the Administrator’s authority to control waste
discharges does not extend to state water allocations. Id. at
§§ 1251(g), 1870(2).° In short, Congress transferred part of
the Corps’ authority under the Rivers and Harbors Act of
1899 to the Administrator, but made clear that the Admin-
istrator’s authority is subordinate to state water alloca-
tions. The clear implication is that the authority retained
by the Corps under the 1899 Act is also subordinate to state
water allocations.
This Court has repeatedly upheld and reaffirmed the
congressional policy to defer to water allocation schemes
established under state water rights laws. It has noted that
federal laws cannot “override state laws in respect to the
general subject of reclamation.” Kansas v. Colorado, 206
U.S. 46, 92 (1907). It recently commented that, “except
where the reserved rights or navigation servitude of the
United States are involved, the State has total authority
over its internal waters.” California v. United States, 438
U.S. 645, 662 (1978). It recently observed that, “because of
historic congressional deference to state water rights laws,
Congress presumptively means to defer unless it specifi-
cally provides otherwise.” United States v. New Mezco,
438 U.S. 696, 702 (1978). These decisions make clear that,
6. Section 101(g) provides:
“It is the policy of Congress that the authority of each
State to allocate quantities of water within its jurisdiction
shall not be superseded, abrogated or otherwise impaired by
this Act.” Id. at § 1251(g).
17
except where Congress expressly provides otherwise, state
law controls the allocation of water in the West.
Pursuant to this historic congressional policy, the west-
ern states have developed administrative water rights sys-
tems that provide the basis for allocating water among
competing local interests. Under California law, for
example, any person who seeks to appropriate water must
apply to the SWRCB for an appropriative permit. Cal.
Water Code §§1201, 1225, 1250-1258, 1375-1415. The
SWRCB, after conducting a public hearing, either grants or
denies the application. Jd. If it grants the application, it can
attach conditions to the permit to the extent necessary to
protect the “reasonable and beneficial use” of water and
the “public interest.” Cal. Const., Art. X, § 2; Cal. Water
Code §§ 1201, 1240, 1375. Under this authority, as noted
earlier, the SWRCB has authorized water diversions from
the Delta for the purpose of providing a water supply to
agricultural and urban interests in central and southern
California, subject to conditions to protect Delta water
quality. The SWRCB decision results in an allocation of
water among northern, central, and southern California
interests. The Ccurt of Appeals’ decision, by authorizing
the Corps to control the diversions, allows the Corps to
override a comprehensive water allocation scheme estab-
lished under state law. It conflicts with this Court’s deci-
sions that recognize the western states as having primary
control of their unappropriated waters.
Viewed from another perspective, the lower decision
allows the Corps to invade an area that is within traditional
state concern. The western states have traditionally con-
trolled water allocations, and have acquired ample expertise
in this area. Conversely, the Corps has not traditionally
controlled water allocations, and has no particular expertise
18
in this area. In light of the historic congressional deference
to state water laws, it is not likely that Congress meant for
the Corps to assume a role that has historically been
assumed by the states.
Indeed, the very breadth of the Corps’ authority under
the 1899 Act militates against the conclusion that the Corps
ean control state water allocations. As noted earlier, the
lower decision allows the Corps to control water diversions
even where navigation is not affected. The Corps thus has
authority, under the lower decision, to override state water
allocations that do not affect navigation in any way. It is
not likely that Congress meant to vest the Corps with broad
authority over water allocations that are subject to tradi-
tional state control, even in instances where federal naviga-
tion concerns are not involved.
Nothing in the legislative history of the Rivers and Har-
bors Act of 1899 suggests that Congress meant for the
Corps to have such broad authority. The only example of
the kind of conduct regulated by the Act, as frequently
cited during the congressional debates, was the construction
of a “bridge” by a “railroad company” or other “corpora-
tion” over navigable waters. 21 Cong. Ree. 8603-8604, 8690
(Sen. Vest), 8604 (Sen. Gray), 8605 (Sen. Dolph), 8606
(Sen. Hoar), 8606 (Sen. Gray), 8606 (Sen. Edmunds), 8990
(Sen. Carlisle.)? It is thus clear that Congress did not have
a state water allocation scheme, such as that involved here,
+n mind when it enacted the 1899 Act. The Court of Appeals
made no reference to this revealing legislative history.
7. The cited references are to the legislative history of the
Rivers and Harbors Act of 1890, 96 Stat. 426, 454. The Rivers
and Harbors Act of 1899, which amended the 1890 Act, made “no
essential changes” in the earlier Act. United States v. Republic
Steel Corp., 362 U.S. 482, 486 (1960).
19
In summary, there is an apparent conflict between the
congressionally-delegated powers of the western states and
the Corps over water allocations that are intended to serve
local uses. The Court of Appeals concluded simply that,
because the Rivers and Harbors Act of 1899 is literally
applicable to water diversions that are otherwise subject
to state control, the 1899 Act overrides the states’ authority
to control the diversions. App. 37-38. This simplistic analy-
sis fails to take into account the broad authority which
Congress has granted the western states over their unap-
propriated waters. It fails to provide a balanced accommo-
dation of federal and state interests that is the hallmark of
this Court’s recent decisions in matters involving the inter-
relationship of federal and state power over water re-
sources. See California v. United States, 488 U.S. 645
(1978) ; United States v. New Mexico, 438 U.S. 696 (1978) ;
cf. National League of Cities v. Usery, 426 U.S. 833 (1976).
C. FEDERAL NAVIGATION POWER.
The Court of Appeals’ decision largely rests on the
conclusion that:
“While states undeniably possess broad power to
regulate their own navigable waters for the general
welfare, the power clearly is, and should be, subordi-
nate to the federal navigational power unless Congress
expressly defers to the state authority in the context of
a specific statute.” App. 40.
The court has misconceived the nature of the issue pre-
sented here. This case does not raise any question concern-
ing the supremacy of the federal navigation power over
state law. This Court has repeatedly noted that the western
states’ control of their waters is subject to the paramount
federal power to control navigation. See California Oregon
20
Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 159
(1935); California uv, United States, 438 U.S. 645, 662
(1978). Congress thus has constitutional power to override
state laws that may impair navigation and commerce. We
do not contend otherwise. This case thus presents no clash
between the federal navigation power and state law. It
presents the more limited question whether the Corps,
under the Rivers and Harbors Act of 1899, has power to
control state water allocations that may or may not affect
federal navigation interests.
Our view, that the Corps lacks power to control state
water allocations, is supported by the fact that such control
is not necessary to protect federal navigation interests. In
our view, the federal government has inherent power to
protect navigation, and thus to restrain state water alloca-
tions that may impair navigation. This Court has fre-
quently suggested that the federal government has inherent
power to protect navigation. See Sanitary District v. United
States, 266 U.S. 405, 426 (1925); United States v. Rio
Grande Dam & Irrig. Co., 174 U.S. 699, 703-704, 706-707
(1899); United States v. Republic Steel Corp., 362 US.
482, 492 (1960); id. at 493 (Frankfurter, J., dissenting).®
8. In the Sanitary District case, this Court, describing the scope
of the federal navigation power, stated :
“Where the national importance is imminent and direct even
where Congress has been silent the States may not act at all.’’
266 U.S. at 426.
In the Rio Grande case, this Court stated :
“Mo hold that Congress, by these acts [principally the Mining
Acts of 1866 and 1870 and the Desert Land Act of 1877],
meant to confer upon any State the right to appropriate all
the waters of the tributary streams which unite into a navi-
gable watercourse, and so destroy the navigability of that
watercourse in derogation of the interests of all the people
of the United States, is a construction which cannot be
tolerated.” 174 U.S. at 706.
21
This inherent federal power exists independently of the
Corps’ authority under the Rivers and Harbors Act of
1899. Accordingly, the federal government can restrain state
water allocations that substantially impair navigation even
if the allocations are beyond the purview of the 1899 Act.®
The federal navigation power flows from the federal
power to control interstate commerce. See, e.g., United
States v. Rio Grande Dam 4 Irrig. Co., 174 U.S. 690 (1899).
This Court, in its decisions construing the federal commerce
power, has pointed the way to a proper resolution of the
issuez here. The Court has long departed from the view
that state action is unlawful simply because it burdens
interstate commerce in some way. Rather, it adopts a bal-
ancing approach which considers the impact of the state
action upon interstate commerce, the nature of the state
interest, and the availability of alternative means by which
the state interest can be served. See, e.g., Dean Milk Co. v.
Madison, supra. The same approach should follow when
the federal government seeks to restrain state water allo-
cations that may affect navigation and commerce. That is,
the Court should adopt a balancing test which considers
the impact of the allocations on navigation, the nature of
the state interest, and the availability of alternative meth-
ods by which the state interest can be served. This sug-
gested approach protects both federal and state interests
in our federal system, for it balances the state’s interest
in allocating water against the navigational impact of the
9. In Williamette Iron Bridge Co. v Hatch, 125 U.S. 1 (1888),
this Court held that a private party cannot bring an action to
prevent an obstruction to navigation, on grounds that there is no
federal common law which authorizes such an action. Since that
action was brought by a private party, the Court’s decision is not
inconsistent with our argument that the federal government has
the inherent right to bring such an action. The case is thus dis-
tinguishable here.
22
allocations. This approach is more harmonious with our
federal scheme than the simplistic approach adopted by
the Court of Appeals, which would allow the Corps to pre-
vent any diversions that affect the “condition” of navigable
waters, even if the diversions are vital to a state water
allocation plan and have no effect on navigation.
It is thus clear that a state water allocation scheme,
even if beyond the scope of the Rivers and Harbors Act
of 1899, is not beyond the scope of the federal navigation
power. Since the federal government has inherent power
to restrain state water allocations that unduly affect navi-
gation and commerce, there is no danger that state alloca-
tions will impair important federal interests. If we are
wrong, and the federal government somehow lacks author-
ity to restrain such state allocations, Congress can easily
remedy the situation by enacting the necessary legislation ;
as noted above, there is no question that Congress can
constitutionally override state law by enacting legislation
to protect navigation and commerce. In any event, the
federal interest in protecting navigation can be achieved
without subjecting state water allocations to the constraints
of the Rivers and Harbors Act of 1899. The federal naviga-
tion interest is neutral here, as we noted earlier.
Ill. The Rivers and Harbors Act of 1899 Does Not Apply to Water
Diversions from Projects Owned and Operated by the States.
We have seen that the Rivers and Harbors Act of 1899
does not authorize the Corps to control water diversions
that are authorized by a state under its water rights laws,
and that are part of a state water allocation scheme. Inde-
pendently of that grounds, we assert that the Act does not
apply to water diversions from reclamation projects owned
and operated by the states.
oY,
23
Under section 12 of the Rivers and Harbors Act of 1899,
any “person” or “corporation” who violates the Act is
subject to injunctive relief or penal sanctions. 33 U.S.C.
§ 406. The Act thus apparently applies only to water diver-
sions of a “person” or “corporation.” This Court has held
that a state is not a “person” or “corporation” within the
meaning of a federal law unless Congress clearly indicates
otherwise or unless federal interests can only be otherwise
served. See Parker v. Brown, 317 U.S. 341 (1943). This
conclusion rests on the principle that, because of the states’
vital role in our federal system, Congress does not normally
subject the states to the same constraints which it applies
to others. In Parker v. Brown, supra, for example, this
Court held that the federal antitrust laws, which are appli-
cable to “persons” and “corporations,” are not applicable
to the states; it noted that nothing in the federal antitrust
laws or their legislative history suggests that Congress
meant to inhibit state activity. 7d. at 351.
Similarly, nothing in the Rivers and Harbors Act of 1899
or its legislative history suggests that Congress meant to
inhibit state activity. As noted earlier, the legislative his-
tory indicates that Congress was concerned only with
private activity—such as that of a “railroad company” or
other “corporation”—in building a “bridge” or other struc-
ture that obstructs navigation.” Moreover, federal interests
are fully served even if the states are not subject to the
Rivers and Harbors Act of 1899; as noted earlier, the
12. The legislative history indicates that Congress meant to
regulate private activity that is otherwise subject to state regula-
tion, in instances where the state is acting pursuant to its power
to build a transportation system that includes roads and bridges.
21 Cong. Ree. 8990 (1890) ( Sen. Carlisle). This legislative history
does not bear on our contention that Congress did not mean to
regulate private activity that results in water allocations that are
authorized and controlled under state water rights laws.
24
federal government has inherent power to restrain state
actions that impair navigation and commerce. Accordingly,
the Rivers and Harbors Act of 1899 is not applicable to
reclamation projects owned and operated by the state.
IV. The Rivers and Harbors Act of 1899 Is Not Applicable to
Water Diversions from Federal Reclamation Projects Built and
Operated Under the Reclamation Act of 1902.
Both the State and the United States argued below that
section 10 of the Rivers and Harbors Act of 1899 is not
applicable to water diversions from federal reclamation
projects built and operated under the Reclamation Act of
1902, 43 U.S.C. §§ 371 et seq. The Court of Appeal ruled,
however, that such diversions are subject to the 1899 Act
unless Congress has specifically authorized the project.®
Congress, in enacting the Reclamation Act of 1902, estab-
lished a program to develop a water supply for agricul-
tural and other interests in the western states. Sections 2
and 10 of the Act provide that the projects are to be oper-
ated by the USBR. 43 U.S.C. §§ 411, 373. Section 8 of the
Act provides that the appropriation and distribution of
water under the Act are subject to state laws not incon-
sistent with “clear congressional directives.” Id. at §§ 372,
383: California v. United States, 438 U.S. 645 (1978). The
Court of Appeals’ decision, however, authorizes the Corps
to override water allocations for federal projects estab-
lished by the USBR under section 2 and 10, or by states
under section 8. Mereover, the decision allows the Corps to
override these allocations on grounds wholly unrelated to
18. California has an interest in whether the Corps is author-
‘zed to control water diversions from federal reclamation projects
because (1) the projects provide economic and other benefits to the
state in which the projects are located, and (2), as noted earlier,
federal law authorizes the states to control water allocations from
the projects.
25
navigation. Nothing in the language or legislative history
of the Reclamation Act of 1902 even suggests the possi-
bility that Congress meant for water allocations from the
federal projects to be subject to the Corps’ authority under
the Rivers and Harbors Act of 1899.
The Court of Appeals stated that the Reclamation Act
of 1902 is inapplicable here because that Act applies in “the
context of reclamation.” App. 37. Inexplicably, the court
overlooked the fact that the water diversions in this case
are part of a reclamation scheme for federal and state
reclamation projects.
The Court of Appeals, relying on this Court’s decisions
in City of Fresno v. California, 372 U.S. 627 (1963), and
Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275 (1958),
stated that section 8 of the Reclamation Act of 1902 is pri-
marily intended to allow state law to define the value of
water rights for which compensation must be made when
the water rights are taken for reclamation purposes. App.
35. The court misread the impact of this Court’s recent
decision in California v. United States, swpra, where this
Court, reversing parts of its earlier decisions in the Fresno
and Ivanhoe cases, ruled that section 8 provides thé states
with broad control of both the appropriation and distribu-
tion of water developed by the federal projects. 438 U.S.
at 670-674.
V. The Issues in This Case Have Never Been Decided by This
Court.
This Court has never addressed the issues presented
here. The Court has considered the Corps’ authority under
the Rivers and Harbors Act of 1899 in several cases, spe-
cifically Sanitary District v. United States, 266 U.S. 405
(1925), Wisconsin v. Illinois, 278 U.S, 367 (1929), United
26
States v. Republic Steel Corp., 362 U.S. 482 (1960), and
United States v. Rio Grande Dam & Irrig. Co., 174 U.S.
690 (1899). The Sanitary District and Wisconsin cases in-
volved water diversions from Lake Michigan which had
the effect of substantially lowering the lake level and thus
impairing commerce among the several states adjacent to
the lake; the purpose of the diversions was to create a
sewage disposal system in an interstate river flowing
through Mlinois. The Republic Steel case involved waste
discharges into the same interstate river in Illinois. The
Rio Grande case involved a dam on a tributary of the Rio
Grande River which would have diverted almost the entire
flow of that river, and which was not authorized pursuant
to a state water allocation plan or pursuant to state water
rights laws; the Court held that the federal government
has inherent power to prevent construction of a dam which
will thus impair navigation and commerce. Interestingly,
all these cases involved interstate waters which had a direct
effect on interstate commerce. None involved waters that,
as here, arise and flow in a single state.
More importantly, none of these cases involved the Corps’
authority to control water diversions that are part of a
state water allocation scheme established under the water
14. In the Rio Grande case, this Court stated that the Rivers
and Harbors Act of 1890, 26 Stat. 454, which is the antecedent of
the Rivers and Harbors Act of 1899, prohibits water diversions
that obstruct navigation. 174 U.S. at 707-708. The main holding,
however, was that the United States has inherent power to restrain
such diversions. Jd. at 701-707. Further, there is no indication in
the case that the dam was authorized pursuant to state authority,
much less pursuant to the kind of water allocation scheme that is
the common product of modern state water rights laws. Finally,
the Rio Grande River flows through several states, and the pro-
posed dam, by diverting virtually the entire river flow, would have
had a direct impact on interstate commerce; this Court has always
emphasized that the western states’ control of their waters is less
where interstate waters are involved. See, ¢.g., California v. United
States, 438 U.S. 645, 662 (1978) .
27
rights laws of the western states. None involved water
diversions from a facility that was owned and operated by
the state itself. None involved water diversions from a
federal reclamation project built and operated under the
Reclamation Act of 1902. This case is thus one of first
impression.
CONCLUSION
This case raises important federal questions concerning
the interrelationship of federal and state power over the
allocation of water resources. The questions have never
been decided by this Court. The Court of Appeal’s decision
provides a simplistic analysis that fails to balance and har-
monize federal and state interests in this critical area.
Accordingly, this Court should grant our petition for writ
of certiorari.
Respectfully submitted,
GrorcE DEUKMEJIAN
Attorney General of the
State of California
R. H. ConnettT
Assistant Attorney General
RopericK E. WALSTON
Grecory K. WILKINSON
Deputy Attorney General
Attorneys for Petitioners
State of California et al.
(Appendices follow)
Appendix 1
Section 9, Rivers and Harbors Act of 1899:
“Construction of bridges, causeways, dams or dikes
generally.
“Tt shall not be lawful to construct or commence the
construction of any bridge, dam, dike, or causeway
over or in any port, roadstead, haven, harbor, canal,
navigable river, or other navigable water of the United
States until the consent of Congress to the building of
such structures shall have been obtained and until the
plans for the same shall have been submitted to and
approved by the Chief of Engineers and by the Secre-
tary of the Army: Provided, That such structures may
be built under authority of the legislature of a State
across rivers and other waterways the navigable por-
tions of which lie wholly within the limits of a single
State, provided the location and plans thereof are sub-
mitted to and approved by the Chief of Engineers and
by the Secretary of the Army before construction is
commenced: And provided further, That when plans
for any bridge or other structure have been approved
by the Chief of Engineers and by the Secretary of
the Army, it shall not be lawful to deviate from such
plans either before or after completion of the structure
unless the modification of said plans has previously
been submitted to and received the approval of the
Chief of Engineers and of the Secretary of the Army.”
33 U.S.C. § 401.
Section 10, Rivers and Harbors Act of 1899:
“Obstruction of navigable waters generally; wharves ;
piers, ete.; excavations and filling in.
“The creation of any obstruction not affirmatively
authorized by Congress, to the navigable capacity of
any of the waters of the United States is prohibited ;
and it shall.not be lawful to build or commence the
building of any wharf, pier, dolphin, boom, weir, break-
water, bulkhead, jetty, or other structures in any port,
roadstead, haven, harbor, canal, navigable river, or
Appendix
other water of the United States, outside established
harbor lines, or where no harbor lines have been estab-
lished, except on plans recommended by the Chief of
Engineers and authorized by the Secretary of the
Army; and it shall not be lawful to excavate or fill, or
in any manner to alter or modify the course, location,
condition, or capacity of, any port, roadstead, haven,
harbor, canal, lake, harbor or refuge, or inclosure
within the limits of any breakwater, or of the channel
of any navigable water of the United States, unless
the work has been recommended by the Chief of Engi-
neers and authorized by the Secretary of the Army
prior to beginning the same.” 33 U.S.C. § 403.
Appendiz 3
Appendix 2
Sierra Club, a non-profit California Corporation, et al.,
Plaintiffs-Appellees,
Vv.
Cecil D. Andrus,* as Secretary of the Interior
of the United States, et al.,
Defendants-Appellants,
Kern County Water Agency, a public agency, et al.,
Intervenors-Appellants.
Nos. 76-1464, 76-1494, 76-1534, 76-1651,
76-1663 and 76-1981.
United States Court of Appeals, Ninth Circuit.
Oct. 31, 1979.
Appeal from the United States District Court for the
Northern District of California.
Before ELY, TRASK, and TANG, Circuit Judges.
ELY, Circuit Judge:
These appeals stem from the efforts of two environment
associations and two private citizens’ to control the pump-
*Mr. Andrus is the present Secretary of the Interior. He has
been substituted as an appellant for one of his predecessors who
was originally named as a party in his official capacity. Rule 43(c¢)
Fed.R.App.P.
1. The appellees, plaintiffs below, are the Sierra Club, a non-
profit California corporation having in excess of 130,000 members,
of whom more than 40,000 are in the San Francisco Bay and Sac-
ramento-San Joaquin Delta areas; Friends of the Earth, a non-
profit New York corporation that has its principal place of business
in San Francisco; Hank Schramm, a commercial fisherman active
in the San Francisco Bay and the Pacific Ocean; and William
Dixon, a Sacramento-San Joaquin Delta landowner.
4 Appendix
ing of water from the Sacramento-San Joaquin Delta (the
Delta) into the canals and aqueducts of the California
Water Project. The facts are reported fully in the excellent
opinion of District Judge Renfrew. Sierra Club v. Morton,
400 F.Supp. 610 (N.D.Cal.1975). After the first phase of a
bifureated trial the District Court ordered the federal? and
state? defendants to obtain authorization for the operation
of their pumping plants from the United States Army
Corps of Engineers (the Corps), pursuant to section 10 of
the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 (1970).
The court also ordered the Secretary of the Army to pre-
pare an environmental impact statement prior to the issu-
ance of such authorization. 7d. at 651. In addition, the
29 The named federal appellants, the defendants below, were
federal officers who administer the various agencies responsible
for overseeing the operation, construction, and regulation of the
facilities in question. They were Rogers C.B. Morton, Secretary
of the Interior; Gilbert Stamm, Commissioner of the Bureau of
Reclamation; Howard H. Callaway, Secretary of the Army; Wil-
liam C. Gribble, Jr., Chief of Engineers of the South Pacific
Division of the United States Army Corps of Engineers; Col.
Frederick J. Rockwell, District Engineer of the Army Corps of
Engineers for the Sacramento, California District ; and Col. James
L. Lammie, District Engineer of the Army Corps of Engineers
for the San Francisco, California district. Because all of these
individuals were sued in their official capacity, their successors
are automatically substituted as some of the appealing parties.
Fed.R.App.P. 43(c).
8 The named state defendants in the District Court were
Norman B. Livermore, Jr., Secretary for Resources; and John
R. Teerink, Director of the Department of Water Resources. Like
the federal parties, the named state appellants were sued in their
official capacity, and their successors are automatically substituted
as parties to the appeal in this court. Fed.R.App.P. 438(¢).
The District Court also allowed the Kern County Water Agency,
the Metropolitan Water District of Southern California, the Tulare
Lake Basin Water Storage District, and the Santa Clara Valley
Water District to intervene in these actions. The intervenors are
public agencies of the State of California that have contracted
for water from the California Water Project and have undertaken
extensive financial obligations in reliance thereon.
Appendix 5
court enjoined construction on the proposed Peripheral
Canal until an environmental impact statement was pre-
pared and authorization from the Corps was obtained. The
Peripheral Canal would transfer water directly from the
Sacramento River to a point close to the pumping plants.
Since the trial court has not yet conducted the relief phase
of the bifurcated trial, it has not yet determined whether
the appellees are entitled to further relief; accordingly, it
has allowed the continuing operation of the pumping plants.
Here, the federal and state parties present five principal
arguments. First, they contend that the Rivers and Har-
bors Act of 1899, 33 U.S.C. §§ 401-418 (1970) (the Act),
does not create a private right of action, and that, there-
fore, only the United States can enforce the permit require-
ments of section 10.4 Second, they contend that even if a
4. Section 10 of the Rivers and Harbors Act of 1899 provides:
The creation of any obstruction not affirmatively author-
ized by Congress, to the navigable capacity of any of the
waters of the United States is prohibited; and it shall not
be lawful to build or commence the building of any wharf,
pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or
other structures in any port, roadstead, haven, harbor, canal,
navigable river, or other water of the United States, outside
established harbor lines, or where no harbor lines have been
established except on plans recommended by the Chief of
Engineers and authorized by the Secretary of the Army;
and it shall not be lawful to excavate or fill, or in any man-
ner to alter or modify the course, location, condition, or
capacity of, any port, roadstead, haven, harbor, canal, lake,
harbor or refuge, or inclosure within the limits of any break-
water, or of the channel of any navigable water of the United
States, unless the work has been recommended by the Chief
of Engineers and authorized by the Secretary of the Army
prior to beginning the same.
33 U.S.C. § 408 (1970).
private right of action exists, the appellees lacked standing
to institute their suit. Third, it is asserted that section 10
does not apply to the pumping of water from the Sacra-
6 Appendix
mento-San Joaquin Delta; and fourth, if compliance with
section 10 is required, such compliance already exists.
Finally, the federal parties argue that since their plant, the
Tracy Pumping Plant, was fully operational before the
enactment of the National Environmental Policy Act of
1969, 42 U.S.C. §§ 4321-4347 (1970 & Supp. V 1975), no
environmental impact statement is necessary if a section
10 permit is required. Neither the federal nor the state
parties challenge the District Court’s ruling concerning the
Peripheral Canal.
We have concluded that a private right of action should
be implied on behalf of parties who seek to enforce compli-
ance with the permit requirements of section 10 of the Act
and that three of the four plaintiffs, having alleged partic-
ularized injuries, possess the requisite standing to avail
theinselves of that right. We agree with the District Court
that the pumping of Delta water falls within the broad
reach of section 10 and that the state parties have been
exporting Delta water in violation of that provision. Unlike
the District Court, however, we believe that Congress au-
thorized the present operational level of the federal pump-
ing plant, thereby excusing its operators from the section
10 permit requirement. Because of this second conclusion,
we do not reach the final issue, i. e., whether the federal
parties would be legally required to prepare an environ-
mental impact statement before granting a section 10 per-
mit for the federal pumping plant. We therefore affirm in
part and reverse in part.
TI. FACTS
The federal and state pumping plants are integral ele-
ments of the Central Valley and State Water Projects,
which, together, constitute the California Water Project.
Appendix 7
The Central Valley Project, administered by the United
States Bureau of Reclamation, consists of dams, reservoirs,
pumping plants, canals, and other facilities designed to
generate hydroelectric power, provide flood control, and
supply water for irrigation and other uses in the Central
Valley of California. To this end, water from the winter
runoff is stored behind dams in the Sacramento River and
then released, as needed, to flow down river and into the
Sacramento-San Joaquin Delta, where it merges with other
Delta waters. The Tracy Pumping Plant, a principal com-
ponent of the Central Valley Project, pumps water from
the Delta into the Delta-Mendota Canal, a 115-mile canal
leading to the Mendota pool in the Central Valley. The
pumping capacity of the Tracy Pumping Plant is 4,602
cubic feet per second. In 1973 this plant pumped 2,127,341
acre-feet of water from the Delta.
The State Water Project, created by the Burns-Porter
Act of 1959 and now codified in Cal. Water Code §§ 12930-
12942 (West 1971), is the state analogue to the Central
Valley Project. It also consists of dams, canals, pumping
plants, and other facilities designed to generate power, .
provide flood control, and transfer water from the Delta
to the more arid regions of central, coastal, and southern
California, The state pumping plant, known as the Delta
Pumping Plant, is central to the operation of this water
project. Like the Tracy Pumping Plant, it withdraws water
from the Delta, pumping it into a canal, where the water
ultimately is permitted to flow to its place of use. The
pumping capacity of the Delta Pumping Plant is now ap-
proximately 6,300 eubic feet per second. This capacity can
be increased to approximately 10,300 cubic feet per second
by the installation of additional pumping units, and it is
contemplated that the first of these pumps will in fact be
8 Appendiz
operational by 1980. In 1973 the Delta Pumping Plant with-
drew 1,261,120 acre-feet of water from the Delta. The State
of California, through its Department of Water Resources,
has already entered into contracts providing that at some
future time the State Water Project will annually deliver
4,230,000 acre-feet of water, of which 95 percent will be
pumped by the Delta Pumping Plant. With the addition of
the Peripheral Canal the potential withdrawal of Delta
water by both the Tracy and Delta Pumping Plants will
increase to approximately 7,000,000 acre-feet in 1990 and
approximately 7,750,000 acre-feet by 2020.
The pumping, past and present, has had a significant
impact upon the Delta. The District Court found
that export pumping by these facilities both lowered
Delta water levels and at certain times caused net flow
reversals in Delta waterways. Although it is true that
the exact magnitude of these effects was not precisely
established, it is clear that they are far from any sort
of de minimus exception .. .
400 F.Supp. at 632.5 Before we address whether this im-
pact falls within the Corps’ regulatory jurisdiction under
5. Because the Delta water flows in San Francisco Bay and
is directly affected by the tidal cycle, water in the Delta channels
and rivers tends to flow both up channel] and down channel during
the tidal cyele. For any given tidal cycle, however, there is a
greater volume of flow in one direction. The amount of this excess
is the net flow. A net flow reversal occurs when the net flow for
a given tidal cycle is in a different direction from that of the normal
direction.
The District Court considered several studies of the effect of the
pumping on Delta water levels. A 1968 study, conducted by vary-
ing the pumping rates of the Tracy Plant and measuring the
actual effect on water levels at various points, concluded that
Delta water levels near the inlet channel of the plant were lowered
.1 foot per 1000 eubie feet per second pumped. Effects of the
pumping were detected as far away as the San Joaquin and Sae-
ramento Rivers. Another study measuring the combined effect of
the Tracy and Delta Plants concluded that diversion of between
9,600 cubic feet per second and 12,000 cubic feet per second during
Appendix 9
section 10, it is obvious that we must first determine
whether plaintiffs, as private individuals, can enforce the
permit requirements of that section.®
both high high and low high tides resulted in a lowered water level
of 1.0 to 1.5 feet at one location near the pumping plants and
almost .1 foot at a location on the San Joaquin River.
The District Court found that the above figures represented the
minimum effect of the pumping plants on Delta water levels and
that it was “highly probable if not certain” that an increase in the
amount of pumping would result in greater effects. 400 F.Supp. at
631.
6. Prior case law has not definitively resolved the issue. Re-
eently, our Cireuit recognized an implied private right of action
for damages caused by the negligent operation and maintenance
of a bridge over navigable waters, alleged to constitute violations
of both section 10 and a provision of the Bridge Act of 1906, 33
U.S.C. §512 (1970). Raggle v. California, 577 F.2d 579 (9th Cir.
1978). Although Riggle did not involve either the permit require-
ment of section 10 or injunctive relief, that decision strongly sup-
ports our reading of the Act. See 577 F.2d at 582-83.
On the other hand, in general terms the Third Cireuit has stated
that Congress, in exercising its regulatory authority over naviga-
tion, did not “ereate any civil cause of action in favor of private
parties injured by any violation of the Act.” Red Star Towing &
Transp. Co. v. Department of Transportation of New Jersey, 423
F.2d 104, 105 (3d Cir. 1970). That case, however, presented a
different issue, whether the 1899 Rivers and Harbors Act abrogated
the eleventh amendment immunity of a state from suit in admiralty.
According to the Third Circuit, Congress did not intend such a
result. Id. at 106; cf. Williamson Towing Co. v. Illinois, 534 F.2d
758 (7th Cir. 1976) (regulation under Bridge Act of 1906, 33
U.S.C. §§ 491-498 (1970), does not abrogate state immunity from
suit in admiralty) ; Intracoastal Transp., Inc. v. Decatur County,
482 F.2d 361 (5th Cir. 1973) (same). But cf. Chesapeake Bay
Bridge & Tunnel Dist. v. Lauritzen, 404 F.2d 1001, 1003 (4th Cir.
1968) (state immunity abrogated by reason of regulation under the
Rivers and Harbors Act of 1899).
Here, an eleventh amendment issue is not present because ap-
pellees sought only injunctive relief requiring the State to con-
form its conduct to the requirements of a federal statute. See
Edelman v. Jordan, 415 U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d
662 (1974). To the extent that Red Star Towing may be construed
as holding that no private right of action exists under section 10,
we disagree. Cf. Libby Rod and Gun Club v. Poteat, 594 F.2d 742
(9th Cir. 1979) (sub silentio recognition of private casue of action
under section 9 of the Act) (see discussion of Libby Rod and Gun
Club at note 36, infra).
10 Appendix
Il. PRIVATE RIGHT OF ACTION
To determine whether a statute contains an implied pri-
vate remedy, a court should consider four separate ques-
tions. First, is the plaintiff a member of the “class for whose
especial benefit the statute was enacted?” Texas & Pacific
Railway Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484,
60 L.Ed. 874 (1916). Second, is there any indication of leg-
islative intent, explicit or implicit, either to create or to
deny a private right of action? Third, do the underlying
purposes of the legislative scheme conflict with private en-
forcement of the act? Fourth, and last, “is the cause of
action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be
inappropriate to infer a cause of action based solely on
federal law?” Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080,
9088, 45 L.Ed.2d 26 (1975) ; see Piper v. Chris-Craft Indus-
tries, 430 U.S. 1, 37-41, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977) ;
Securities Investor Protection Corp. v. Barbour, 421 US.
412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975) ; National Railroad
Passenger Corp. v. National Association of Railroad Pass-
engers, 414 U.S. 453, 457-458, 94 S.Ct. 690, 38 L.Ed.2d 646
(1974) ; Starbuck v. City & County of San Francisco, 556
F.2d 450, 454 (9th Cir. 1977).
Although we have found no hard and precise indication
of a congressional intent to create or deny a private remedy
under section 10, we believe, without significant doubt, that
such a remedy does exist. The plaintiffs below are members
of a class for whose benefit Congress enacted the statute,
and implication of a private remedy is both consistent with
the purposes of the Act and complementary to its enforce-
ment.
Appendix 11
A. Beneficiaries of the Rivers and Harbors Act
[1] The plaintiffs in this case who use the Delta and the
San Francisco Bay also belong to the class for whose espe-
cial benefit the statute was enacted. Long ago, in 1888, the
Supreme Court decided that federal common law did not
prohibit obstructions and nuisances in navigable waters of
the United States. Willamette Iron Bridge Co. v. Hatch, 125
U.S. 1,8 S.Ct. 811, 31 L.Ed. 629 (1888). Therefore, the Court
held that a private party could not obtain an injunction
against the construction of a bridge over a navigable water.
Congress promptly responded by enacting section 10 of the
Rivers and Harbors Act of 1890, 26 Stat. 426, 454, which
forbids obstructions not affirmatively authorized by law.
This section, with minor changes, became section 10 of the
1899 Act. Since that time, courts have granted relief to
private parties who suffer special injury because of un-
authorized obstructions. For example, in Neches Canal Co.
v. Miller & Vidor Lumber Co., 24 F.2d 763 (5th Cir. 1928),
a lumber company sued to recover losses caused by the
construction of an unauthorized sand dam in the Neches
River. The company recovered the expense it had incurred
in raising its logs, which had sunk in the river because of
the obstruction. In Tatum v. Blackstock, 319 F.2d 397 (5th
Cir, 1963), a landowner with property adjacent to navigable
waters sought to enjoin unauthorized dredging and filling,
which would have altered the flow of the navigable waters
to the detriment of his property. The court upheld a pre-
liminary injunction against further activity until the Corps
of Engineers issued a permit. Recently, our own court re-
manded for trial one of the consolidated appeals in Leslie
Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978), in which
a private association contended that diked evaporation
ponds in and around Bair Island in San Francisco Bay were
12 Appendix
built in violation of the Act because Corps permits had not
been obtained.’
[2] The federal parties argue that only the federal gov-
ernment is a beneficiary of the Act, relying upon an isolated
statement of the Supreme Court in Wyandotte Transporta-
tion Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379,
386, 19 L.Ed.2d 407 (1967), that “a principal beneficiary
of the Act, if not the principal beneficiary, is the Govern-
ment itself.” Wyandotte, however, does not preclude pri-
vate parties from also being recognized as beneficiaries of
the Act.’ Indeed, the Court’s pronouncement, which express-
ly leaves open the class for whose benefit the Act was
passed, was made in the context of expanding, not con-
tracting, the remedies under the Act. As the District Court
succinctly stated, “Sections 9 and 10 were enacted both to
7. The intervening state water agencies contend that the Act
is meant to benefit only those who are involved in navigational
pursuits. The cases cited above amply refute the contention that
the Act is so limited. All users of navigable waters are beneficiaries
of the Act.
8. The Supreme Court, itself, at least sub silentio, has recog-
nized others as beneficiaries of the Act. In Wisconsin v. Illinois,
978 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426 (1929), the plaintiffs,
alleging in their complaint a violation of the Act, sought to enjoin
the withdrawal of 8,500 cubic feet of water per second from Lake
Michigan. The defendants, having received a permit from the Sec-
retary of War authorizing the withdrawal, raised the Act as a
defense. Significantly, the Court, not pausing to question whether
plaintiffs had the right to invoke the protection of the Act, only
stated that the facts pleaded by plaintiffs constituted a cause of
action. Id. at 409, 49 S.Ct. 163. The Court then proceeded directly
to a review of the defendants’ activity. Finding that the defend-
ants’ permit had authorized only a temporary withdrawal of water
and that absent continuing authorization the withdrawal was un-
lawful, the Court held that the withdrawal should be enjoined.
Id. at 417-21, 49 S.Ct. 163. This case, standing alone, might consti-
tute adequate authority for allowing others beside the federal gov-
ernment to enforce the requirements of the Rivers and Harbors
Aet. The decision openly recognizes that others are beneficiaries
of the Act’s provisions.
Appendix 13
prevent injuries to private parties as a result of obstruc-
tions to navigable capacity which were not authorized by
the United States and to allow the United States to regulate
obstructions to the navigable capacity of its navigable
waterways.” 400 F.Supp. at 623 (footnote omitted).
B. Legislative Intent
[3] The legislative history of the Rivers and Harbors
Act of 1899 does not reflect a congressional intent either to
afford a private remedy or to deny one.® Nor is the statutory
language itself determinative. Section 12 of the Act pro-
vides for the enforcement of section 10, making a violation
of section 10 a misdemeanor punishable by either a fine or
imprisonment and authorizing a district court to enjoin the
violation.” Section 17 of the Act, in conjunction with section
9. The intervening state water agencies contend that the legis-
lative history does suggest an intent to foreclose private enforce-
ment of the Act. By amendment to a bill considered prior to the
1890 statute, which later became part of 1899 Act, the Senate
eliminated language allowing suit by private persons and substi-
tuted language restricting enforcement to United States Attorneys.
§.27, 50th Cong., Ist Sess., 19 Cong.Ree. 2388 (1887). A close
reading of the amendment, however, discloses that the Senate was
addressing the question whether a private party could enforce
the penal provisions of the legislation. It is generally agreed that
such qui tam actions are not permitted. See, e. 9., Jacklovich v.
Interlake, Inc., 458 F.2d 923 (7th Cir. 1972) ; Connecticut Action
Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972).
The amendment does not indicate a legislative intent to preclude
other private actions under the 1899 Act.
10. Section 12 provides:
Every person and every corporation that shall violate any
of the provisions of sections 401, 403, and 404 of this title
or any rule or regulation made by the Secretary of the Army
in pursuance of the provisions of section 404 of this title
shall be deemed guilty of a misdemeanor, and on conviction
thereof shall be punished by a fine not exceeding $2,500 nor
less than $500, or by imprisonment (in the case of a natural
person) not exceeding one year, or by both such punishments,
in the discretion of the court. And further, the removal of any
structures or parts of structures erected in violation of the
14 Appendix
12, places the duty of enforcement upon the Attorney Gen-
eral and the Department of Justice.”
provisions of the said sections may be enforced by the injunc-
tion of any district court exercising jurisdiction in any dis-
trict in which such structures may exist, and proper pro-
ceedings to this end may be instituted under the direction
_of the Attorney General of the United States.
33 U.S.C. § 406 (1970). Although this section expressly mentions
enjoining only the erection of “structures” in violation of section
10, it is now settled that a District Court may enjoin any obstruc-
tion that violates section 10. United States v. Republic Steel Corp.,
362 U.S. 482, 491-92, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960).
11. Section 17 provides:
The Department of Justice shall conduct the legal proceed-
ings necessary to enforce the provisions of sections 401, 403,
404, 406, 407, 408, 409, 411, 549, 686, and 687 of this title;
and it shall be the duty of United States attorneys to vigor-
ously prosecute all offenders against the same whenever re-
quested to do so by the Secretary of the Army or by any of
the officials hereinafter designated, and it shall furthermore
be the duty of said United States attorneys to report to the
Attorney General of the United States the action taken by
him against offenders so reported, and a transcript of such
reports shall be transmitted to the Secretary of the Army
by the Attorney General; and for the better enforcement of
the said provisions and to facilitate the detection and bring-
ing to punishment of such offenders, the officers and agents
of the United States in charge of river and harbor improve-
ments, and the assistant engineers and inspectors employed
under them by authority of the Secretary of the Army, and
the United States collectors of customs and other revenue
officers shall have power and authority to swear out process,
and to arrest and take into custody, with or without process,
any person or persons who may commit any of the acts or
offenses prohibited by the said sections, or who may violate
any of the provisions of the same: Provided, That no person
shall be arrested without process for any offense not com-
mitted in the presence of some one of the aforesaid officials:
And provided further, That whenever any arrest is made
under such sections, the person so arrested shall be brought
forthwith before a commissioner, judge, or court of the
United States for examination of the offenses alleged against
him; and such commissioner, judge, or court shall proceed
in respect thereto as authorized by law in case of crimes
against the United States.
33 U.S.C. § 418 (1970).
Appendiz * 15
[4] Normally, these express statutory provisions would
imply that no other means of enforcement are intended,
with only clear contrary evidence of a legislative intent to
rebut this presumption. See Securities Investor Corp. v.
Barbour, supra, 421 U.S. at 419, 95 S.Ct. 1733; National
Railroad Passenger Corp. v. National Association of Rail-
road Passengers, supra, 414 U.S. at 458, 94 S.Ct. 690. This
principle, however, does not apply to the Rivers and Har-
bors Act of 1899. The Supreme Court has consistently con-
strued the Act’s language in a manner apparently aimed
toward effectuating the underlying statutory policies. See,
e.g., Wyandotte Transp. Co. v. United States, supra, 389
U.S. at 201, 88 S.Ct. 379; United States v. Republic Steel
Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). The
Court has already determined that the penal provisions of
the Act do not preclude implication of a civil action. Cort
v. Ash, supra, 422 U.S. at 79, 95 S.Ct. 2080. Wyandotte
Transp. Co. v. United States, supra, 389 U.S. at 201-202, 88
S.Ct. 379. Accordingly, we believe that the Attorney Gen-
eral’s enforcement responsibilities were not meant to fore-
close the implication that private actions are authorized to
promote the purposes of section 10.1? Rather,
12. Examining a similar statutory scheme, the Supreme Court
held that a provision expressly providing for enforcement by the
Attorney General did not preclude implication of a private rem-
edy. In Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct.
817, 22 L.Ed.2d 1 (1969), the Court identified a private right of
action to enforce the Voting Rights Act of 1965, 42 U.S.C. §§ 1973-
1973p (1970), notwithstanding an express provision that “the
Attorney General may institute... an action for preventive re-
lief,” id. § 1973 (j). 393 U.S. at 554-57, 89 S.Ct. 817.
Like the Voting Rights Act of 1965, the Rivers and Harbors
Act of 1899 provides that “proper proceedings . . . may be insti-
tuted under the direction of the Attorney General of the United
States.” 33 U.S.C. § 406 (1970). As in Allen, the express reference
does not necessarily preclude a private right of action. Rather, we
must further determine whether it would be consistent with the
broad purposes of the Act to imply such a remedy.
16 Appendix
[w]e read the 1899 Act charitably in light of the pur-
pose to be served. The philosophy of the statement of
Mr. Justice Holmes ... that “A river is more than an
amenity, it is a treasure,” forbids a narrow cramped
reading either of § 13 or of § 10.
Republic Steel Corp., supra, 362 U.S. at 491, 80 S.Ct. at 890.
C. Consistency with Legislative Scheme
Our third inquiry concerns the consistency of implying
a private right of action under section 10 with the underly-
ing purposes of the legislative scheme. We perceive a pri-
vate right of action as both consistent with the purposes of
the Rivers and Harbors Act and complementary to its
enforcement.
[5] Section 10 prohibits unreasonable obstructions to
navigable capacity, and in those instances specifically enu-
merated in its second and third clauses, the statute directs
the Secretary of the Army, acting upon the recommendation
of the Chief of Engineers, to determine what constitutes an
unreasonable obstruction. Wisconsin v. Illinois, 278 U.S.
367, 413, 49 S.Ct. 163, 73 L.Ed. 426 (1929). The underlying
purpose of section 10 is clear, That purpose is to keep the
navigable waters of the United States free from unreason-
able obstructions. Private suits such as the present one
promote this policy by assuring Corps review of those ac-
tivities that could obstruct the navigable capacity of the
Nation’s waters by altering or modifying their course, con-
dition, or capacity.”®
13. We do not mean to imply that the Corps should consider
only navigational interests when issuing a permit. Since the pass-
age of the 1899 Act, Congress has enacted additional legislation
directing federal officials to consider ecological and environmental
effects in addition to navigation when discharging their duty.
See, e. g., Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-
666¢ (1976) ; National Environmental Policy Act of 1969, 42 U.S.C.
Appendix 17
[6] The District Court reasoned that exclusive enforce-
ment of the criminal provisions should be vested in the
Attorney General but that the Attorney General had neither
the time nor the resources to seek redress for all violations
of the Act. 400 F.Supp. at 624-25. The court concluded that
a private right of action was necessary to protect private
parties who suffer special injuries because of these viola-
tions. Id. at 625. We agree,'* but we do not rest this conclu-
sion solely upon recognition of the Attorney General’s lack
of resources. An additional problem, exemplified by this
ease, is that the federal government, which is specifically
directed to enforce the Act, may itself be charged with vio-
lating its provisions.® Unless private rights of action are
permitted, federal violations could operate so as to wholly
frustrate the purposes of the Act. See Illinois ex rel. Scott
v. Hoffman, 425 F.Supp. 71, 75-76 (S.D.111.1977) ; cf. Miller
v. Mallery, 410 F.Supp. 1283, 1289 (D.Or.1976).
Unlike the possible result faced by the Supreme Court in
Securities Investor Protection Corp. v. Barbour, supra, 421
§§ 4321-4347 (1970 & Supp. V 1975). See generally Zabel v. Tabb,
430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct.
873, 27 L.Ed.2d 808 (1971).
14. See generally River v. Richmond Metropolitan Auth., 359
F.Supp. 611 (E.D.Va.), aff’d, 481 F.2d 1280 (4th Cir. 1973).
15. In this respect, the federal appellants base one of their
arguments against upholding a private right of action on the con-
tention that to allow such an action would amount to finding an
implied waiver of sovereign immunity. We, however, have the
obligation to ensure federal compliance with those measures enacted
by Congress to protect the environment. To the extent that the
involved federal officials have exceeded their statutory authority
or have exercised that authority in an illegal manner, this suit
falls within one of the well recognized exceptions to sovereign
immunity. City of Santa Clara v. Andrus, 572 F.2d 660, 679 (9th
Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167
(1978) ; Association of Northwest Steelheaders v. United States
Army Corps of Eng’rs, 485 F.2d 67, 69 (9th Cir. 1973) ; Washing-
ton v, Udall, 417 F.2d 1310, 1314 (9th Cir. 1969).
18 Appendia
U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263, and National Rail-
road Passenger Corp. v. National Association of Railroad
Passengers, supra, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d
646, implication of a private remedy under section 10 does
not raise the spectre of judicial encroachment upon execu-
tive policymaking. It is not here argued that the Corps
cannot issue permits for the continued operation of the
Tracy and Delta Pumping Plants. The Corps can grant to
the appropriate federal and state officers permission to
continue their pumping operations. If permits are properly
obtained, the right of the appellees to enforce section 10
will not then extend so as to entitle them to obtain redress
for their injury. It remains true that the Congress and the
Corps ultimately decide which activities affecting navigable
waters are permissible.”®
16. This result distinguishes Securities Investor Protection
Corp. v. Barbour, 421 U.S. 412, 95 §.Ct. 1733, 44 L.Ed.2d 263
(1975) and National R.R. Passenger Corp. v. National Ass’n of
R.R. Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974),
two Supreme Court cases in which no private rights of action
were found to exist. In both of those cases, the plaintiffs sought
to challenge decisions made by corporate entities created by Con-
gress to solve public problems. Had the Court recognized a private
right of action, the subsequent litigation would have undercut
the decisions of the corporations, thus upsetting the legislative
scheme devised by Congress. Securities Investor Protection Corp.
v. Barbour, supra, 421 U.S. at 422-23, 95 S.Ct. 1733; National
R.R. Passenger Corp. v. National Ass’n of R.R. Passengers, supra,
414 U.S. at 463, 94 S.Ct. 690. Additionally, in both instances, the
legislation and its relevant history indicated an attempt to pre-
elude private rights of action. Securities Investor Protectéou Corp.
v. Barbour, supra, 421 U.S. at 420 n. 3, 421, 95 S.Ct. 1733; Na-
tional R.R. Passengers Corp. v. National Ass’n of R.R. Passengers,
supra, 414 U.S, at 457-61, 94 S.Ct. 690. Thus, no private right of
action was found to exist.
Here, the private right of action asserted by the appellees is
not aimed at the decisions of the agency enforcing the Act. They
are not challenging the issuance of permits, nor are they attempting
to require the United States to prosecute a party for violation of
the Act. Rather than attempting to disrupt the legislative scheme,
the appellees are seeking to enforce that scheme.
Appendix 19
D. State Law
[7,8] Finally, we hold that this case is not the type of
action traditionally relegated to state law. The appellants
foeus on allegations of the possible adverse effects upon
fish and wildlife, contending that these are basically state
concerns to be remedied under the law of nusiance. This
approach is much too narrow. Activities affecting the navi-
gable capacity of navigable waters of the United States are
matters of federal, not state, law. Wyandotte Transporta-
tion Co. v. United States, supra, 389 U.S. at 201, 88 S.Ct.
379. We agree with the District Court that
[t]here is a federal interest in protecting persons from
injuries resulting from unauthorized obstructions to
the navigable capacity of navigable waters of the
United States and possible federal instrusion into the
area of state nuisance law is necessary so that the fed-
eral interest asserted here will not be compromised by
contrary state law.
400 F.Supp. at 625.
[9-11] We emphasize, even though such emphasis
should be unnecessary, that our decision does not permit
private parties to enforce the criminal provisions of the
Rivers and Harbors Act. The Act does not authorize qui
tam actions’? to enforce its criminal penalties. Section 17
of the Act, 33 U.S.C. § 413 (1970), vests exclusive enforce-
ment of its penal provisions in the Department of Justice.
Jacklovich v. Interlake, Inc., 458 F.2d 923 (7th Cir. 1972) ;
Connecticut Action Now, Inc. v. Roberts Plating Co., 457
F.2d 81 (2d Cir. 1972); Durning v. ITT Rayomer, Inc., 325
17. A qui tam action is a civil proceding in which an informer
sues for the Government, as well as for himself, to recover a penalty
under a particular statute. Statutory authority for the action
must be specifically provided. Connecticut Action Now, Inc. v.
Roberts Plating Co., 457 F.2d 81, 84 (2d Cir. 1972).
20 Appendiz
F.Supp. 446 (W.D.Wash.1970). Nor do we intend to hold
that private parties may sue on behalf of the general public
or seek to enjoin violations of section 13 of the Act, 33
U.S.C. § 407 (1970). These questions are not before us, but
there is good and sufficient reason to express our thought
that this responsibility is also committed exclusively to the
Department of Justice. See Connecticut Action Now, supra
at 88-89; Guthrie v. Alabama By-Products Co., 328 F.Supp.
1140, 1144-48 (N.D.Ala.1971), aff'd, 456 F.2d 1294 (5th Cir.
1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1352, 35 L.Ed.2d
613 (1973); Bass Angler Sportsman Society v. United
States Steel Corp., 324 F.Supp. 412, 416 (N.D., M.D.,
S.D.Ala.1971), aff'd, 447 F.2d 1304 (5th Cir. 1971) (per
curiam).
[12] Accordingly, we hold that private parties who
suffer special injuries because of unauthorized activities
affecting the navigable capacity of our Nation’s waters may
sue to enforce the permit requirements of section 10, There
are no indicia of legislative intent to exclude a private right
of action, and without this remedy, users of the Delta and
the San Francisco Bay would be unable to obtain Corps
review of the activities that are causing them injury.
Ill. STANDING
The intervening state water agencies contend that the
appellees lacked standing to bring their action. Under the
Supreme Court cases of Simon v. Eastern Kentucky Wal-
fare Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48
L.Eid.2d 450 (1976), and Warth v. Seldin, 422 U.S. 490 95
S.Ct. 2197, 45 L.Ed.2d 343 (1975), as succinctly summarized
by us in Bowker v. Morton, 541 F.2d 1347 (9th Cir. 1976), a
plaintiff must allege “(a) a particularized injury (b) con-
cretely and demonstrably resulting from defendants’ action
Appendix 21
(c) which injury will be redressed by the remedy sought.”
Id. at 1349.
The individual appellees meet the standard.’* Both have
alleged a particularized injury caused by the pumping, and,
although the injury may continue if the Corps eventually
allows continued pumping, it may be redressed if the Corps
restricts or regulates the pumping operations. Unlike the
plaintiffs in Simon v. Eastern Kentucky Welfare Rights
Organization, supra, 426 U.S. 26, 96 S.Ct. 1917, who sued
the Secretary of the Treasury to contest a revenue ruling
18. The District Court found:
Plaintiffs in this case are The Sierra Club, Friends of the
Earth, Hank Schramm, and William Dixon. The Sierra Club
is a nonprofit California corporation having in excess of
130,000 members of whom more than 40,000 live in San
Francisco Bay and the Sacramento-San Joaquin Delta areas.
Included in the membership of the Sierra Club are many
persons who use the waters referred to in the complaint for
recreational purposes, including, but not limited to, boating,
fishing and swimming. The stated purposes of the Sierra
Club included the preservation and conservation of the nat-
ural resources, fish, and wildlife of the United States, includ-
ing its rivers, bays, wetlands, deltas, and estuarine areas.
Friends of the Earth is a nonprofit New York corporation
which has its principal place of business in San Francisco.
Its stated purposes include the preservation, restoration, and
rational use of the environment.
Hank Schramm is and has been engaged for the past 20
years in the business of commercial fishing and the operation
of sports fishing and party boats in the San Francisco Bay
-and the Pacifie Ocean. Schramm has an economic interest
in this controversy since he depends for his livelihood on the
maintenance, preservation, and conservation of sports and
commercial fisheries in the San Francisco Bay and the ad-
joining waters of the Pacific Ocean.
William Dixon owns substantial property in the Delta,
including a partnership interest in the St. Germain Duck
Club on Simmons Island, and consequently has an economic
interest in the maintenance, preservation, and conservation
of adequate non-polluted supplies of water in the Delta and
San Francisco Bay regions.
400 F.Supp. at 619.
22 Appendix
favorable to nonprofit hospitals offering only emergency
room services to indigents, the individual plaintiffs’ injury
“ean be traced to the challenged action of the defendant,
and [is] not injury that results from the independent action
of some third party not before the Court.” Simon, supra at
41-42, 96 S.Ct. at 1926.%°
[13,14] ‘The intervenors further contend that the ap-
pellees did not meet the second standing requirement, a
nonconstitutional requirement, that “the interest sought to
be protected by the complainant [is] arguably within the
zone of interest to be protected or regulated by the statute
in question.” Association of Data Processing Service Or-
ganizations, Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827,
830, 25 L.Ed.2d 184 (1970); Simon v. Eastern Kentucky
Welfare Organization, supra, 426 U.S. at 39, n.19, 96 S.Ct.
1917. The intervenors’ argument is founded upon their be-
lief that the zone of interest to be protected encompasses
only navigational pursuits, a tenet that is incorrect. Under
section 10 the Corps must consider not only the effect of an
activity upon navigation, but also its impact upon the envi-
ronment. United States v. Joseph G. Moretti, Inc., 526 F.2d
1306, 1310 (5th Cir. 1976); Zabel v. Tabb, 430 F.2d 199,
913-14 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct.
873, 27 L.Ed.2d 808 (1971). We therefore hold that the
19. The intervenors argue that no evidence of injury to these
plaintiffs was adduced at trial, and, thus, that the appellees were
without standing. Under the pretrial order, however, the District
Court kas deferred taking evidence relating to the environmental
effect of the pumping upon the Delta and the San Franciseo Bay
until the second phase of the trial, which has not yet occurred.
Certainly, the intervenors do not dispute that there is evidence
that the pumping has caused net flow reversals and lowered water
levels in the Delta. The appellees have sufficiently alleged a dem-
onstrable, particularized injury that may result from the pumping
activities, and they will have the opportunity to prove their injury
in the second portion of the bifurcated trial.
Appendix 23
appellees’ interest in the environmental quality of the Delta
and San Francisco Bay is within the zone of interests pro-
tected under the Rivers and Harbors Act. See Alameda
Conservation Association v. California, 437 F.2d 1087, 1091
(9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28
L.Ed.2d 649 (1971) (standing for private party alleging
injury to fish).
[15, 16] Because the individual appellees possess the
requisite standing to maintain this suit, it would ordinarily
be needless for us to consider whether the environmental
association also have standing. Arlington Heights v. Metro-
politan Housing Development Corp. 429 U.S. 252, 263-64 &
n.9, 97 S.Ct. 555, 50 L.Kd.2d 400 (1977). Since the second
portion of the bifurcated trial has not yet occurred, how-
ever, we think it desirable to offer some procedural guide-
lines to the District Court. We shall address the issue
briefly. An organization’s abstract concern with a subject
is insufficient to confer the requisite standing, Sierra Club
v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Hd.2d 636
(1972), but when the organization fails to allege an injury
to itself as an organization, it can establish standing by
showing that it represents individual members who have
themselves suffered injury and who thus could have prop-
erly sued in their own right. Simon v. Eastern Kentucky
Welfare Rights Organization, supra, 426 U.S. at 40, 96 S.Ct.
1917; Warth v. Seldin, supra, 422 U.S. at 511, 95 S.Ct. 2197.
The Sierra Club has satisfied the test by alleging injuries
to members who use the San Francisco Bay for boating and
recreational purposes. Friends of the Earth, on the other
hand, has not met the requirement. It has alleged nothing
more than a general organizational interest in preservation
of the environment.2® Thus, it has no standing to invoke
90. See note 18, supra.
24 Appendix
judicial resolution of the controversy. The judgment of the
District Court is vacated as to Friends of the Earth, and
upon remand the District Court will dismiss the compla. °
as to Friends of the Earth.
IV. SECTION 10 OF THE RIVERS AND HARBORS
ACT OF 1899
We now turn to the merits. First, the appellants attack
the trial court’s decision on the scope of section 10 of the
Rivers and Harbors Act of 1899.”*
The statute contains three distinct proscriptive clauses.
The first clause flatly prohibits the creation of any obstruc-
tion to “the navigable capacity of any of the waters of the
United States” unless affirmatively authorized by Congress.
The second and third clauses, on the other hand, permit
certain activities in navigable waters provided that they
proceed on plans “recommended by the Chief of Engineers
and authorized by the Secretary of the Army.” These activ-
ities include the building of structures in navigable waters
and the alteration or modification “in any manner” of the
condition, capacity, or channel of any navigable water.
The District Court held that
the operation of the Tracy and Delta Plants obstructs
the navigable capacity of various waters in the Delta,
and because these obstructions are the result of the
modification or alteration of the condition or capacity
of the channel of navigable water, they are governed
by the third clause of Section 10.
400 F.Supp. at 638. In so ruling, the court accepted the
convincing factual evidence that export pumping by the
Tracy and Delta facilities had lowered the level of navi-
gable waters in the Delta by as much as 1.5 feet in at least
21. See note 4, supra.
Appendix 25
one place and had caused net flow reversals in certain chan-
nels.22 The District Court apparently believed that the con-
trolling issue was whether a given diversion constituted an
obstruction to navigable capacity.”
[17] We decline to adopt the District Court’s approach,
believing that it would necessarily present the courts with
difficult definitional problems in a variety of factual con-
texts. Instead, we interpret clauses 2 and 3 of section 10
292. In their opening brief the state appellants assert that the
trial court entertained “the mistaken belief” that water levels on
the San Joaquin River would be lowered by 1.5 feet at low tide, a
fact which was disputed by the testimony of a civil engineer with
the California State Department of Water Resources. Brief for
Appellants Norman Livermore and John Teerink [hereinafter cited
as State Opening Brief] at 13. The District Court opinion, however,
explicitly notes the difference of opinion as to the amount of diver-
sionary impact on San Joaquin River levels. 400 F.Supp. at 630
n.27. The court clearly rested its finding of obstruction to navigable
capacity on separate evidence that the water level would recede at
least 1 to 1.5 feet in the vicinity of Clifton Court Ferry and that
operation of the pumping plants was causing net flow reversals on
the San Joaquin River and the Old and Middle Rivers. Id. at 631-32.
93. The court defined “navigable capacity” as “the capacity for
navigation over any part of the waters in question when in their
normal condition,” and defined “obstruction to navigable capacity”
as “to interfere with or diminish the navigable capacity of the
waterway in question.” 400 F.Supp. at 630 n.23 (citing United
States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 709, 19
S.Ct. 770, 48 L.Ed. 1136 (1899), and Hubbard v. Fort, 188 F. 987,
996 (C.C.D.N.J.1911) ). The court observed that in Rio Grande the
Supreme Court had stated that not every appropriation of the
upper waters of a navigable stream would constitute an “obstruc-
tion” to navigable capacity: “The question always is one of fact,
whether such appropriation substantially interferes with the
navigable capacity within the limits where navigation is a recog-
nized fact.” Rio Grande, supra, 174 U.S. at 709, 19 S.Ct. at 777,
cited at 400 F.Supp. at 630 n.24 (emphasis added). The question
thus becomes whether in a given case a proved effect on navigable
waters is substantial enough to constitute an obstruction to navigable
eapacity. The difficulty with this approach is that it emphasizes too
strongly the question whether an “obstruction to navigable capacity”
has occurred at the expense of the different question whether there
has been any alteration or modification of the condition or capacity
of navigable waters.
26 / Appendia
as constituting a legislative enumeration of specific obstruc-
tions to/nayigable. eapacity that require Corps authoriza-
tion. In other w ds, the building activities mentioned in
clauses 3 and 3 are presumed to be obstructions to navigable
capacity Under the statute the Secretary of the Army
determines whether these obstructions are reasonable.
Thus, the facts in this case should be anaiyzed from the
standpoint of whether there has been any modification or
alteration of the condition or capacity of a navigable
stream, rather than first determining whether there has
been an obstruction to navigable capacity.* When one
undertakes any of the activities described in clause 2 or
by his activities brings about any of the results specified in
94. The intervening appellants insist on the narrowest possible
definition of navigable capacity. They argue that, in order to show
the existence of an obstruction to navigable capacity, plaintiffs
must prove, “among other things,” the types of vessels that utilize
a particular channel, the natural capacity of that channel to accom-
modate such navigation, the “navigational pursuits’’ of these types
of vessels, and the degree to which changes in the condition or
capacity of the channel may interfere with such pursuits. Brief for
Intervenors and Appellants Kern County Water Agency, et al.
[hereinafter cited as Intervenors’ Brief] at 37-38. We fail to see
any meaningful distinction between this definition of obstruction
to “navigable capacity” and a showing of some effect on “actual
navigation.” Moreover, this argument of the intervenors is based
on a fundamentally fallacious interpretation of section 10 and its
three clauses, the premise of which is that under section 10 of the
Rivers and Harbors Act of 1899,
[n]ot all construction or work of the type described in Clauses
9 and 3 require approval of the Secretary of the Army. Sec-
tion 10 approval is not required unless the structure or work
would create some kind of obstruction, and then the Secretary
is called on to determine the obstruction’s reasonableness.
Id, at 35. This interpretation, which introduces the requirement of
a procedural determination of substantial obstruction to navigable
eapacity prior to submission to the Corps for approval, leaves
unaddressed the obvious problem of who is responsible for actually
making the interpretation. As we see it, our acceptance of this
eonstructicn of section 10 would stand the statute on its head.
Appendix 27
clause 3, he violates section 10 if he has not first sought
and obtained a permit from the Corps of Engineers.
In Sanitary District v. United States, 266 U.S. 405, 45
S.Ct. 176, 69 L.Ed. 352 (1925), the Supreme Court, con-
struing the Rivers and Harbors Act of 1899, held that the
diversion of water from Lake Michigan by the Sanitary
District of Chicago fell within the scope of section 10 and
was therefore beyond the power of a state in the absence
of specific authorization by the Corps of Engineers. The
Court referred to the fact that the Secretary of War had
reviewed the Chicago Drainage Channel diversions in 1913,
“including the obvious fact that so large a withdrawal
would lower the levels of the Lakes and the overwhelming
evidence that it would affect navigation.” Id. at 430, 45 S.Ct.
at 180. Nevertheless, Mr. Justice Holmes, for the Court,
made no specific findings or determinations as to the effect
on the actual navigable capacity of the lakes and rivers
affected. The Court wrote:
Evidence is sufficient, if evidence is necessary, to show
that a withdrawal of water on the scale directed by
the statute of Illinois threatens and will affect the level
of the Lakes, and that is a matter which cannot be
done without the consent of the United States, even
were there no international covenant in the case.
It is a broad expression of policy in unmistakable
terms, advancing upon an earlier Act of September 19,
1890, . . . which forbade obstruction to navigable
capacity “not affirmatively authorized by law”... .
There is neither reason nor opportunity for a con-
struction that would not cover the present case. As
now applied it concerns a change in the condition of
the Lakes and the Chicago River, admitted to be navi-
gable, and, if that be necessary, an obstruction to their
28 Appendix
navigable capacity, .. . without regard to remote ques-
tions of policy. It is applied prospectively to the water
henceforth to be withdrawn. This withdrawal is pro-
hibited by Congress, except so far as it may be author-
ized by the Secretary of War.
266 U.S. at 426, 429, 45 S.Ct. at 179-180.
[18] Four years later, in Wisconsin v, Illinois, supra, 278
U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426, the Supreme Court
again dealt with massive diversions by the Sanitary Dis-
trict of Chicago, which had lowered, by “not less than six
inches,” the levels of Lakes Michigan, Huron, Erie, and
Ontario, their connecting waterways, and the St. Lawrence
River above tidewater. Jd. at 400, 49 S.Ct. 163. Chief Justice
Taft wrote:
[T]he broad words of the first clause of ... [section
10] were not intended to limit the second and third
clauses and... Congress’ purpose was a direct proht-
bition of what was forbidden by them except when
affirmatively approved by the Chief of Engineers and
the Secretary of War....
The true intent of the Act of Congress was that
unreasonable obstructions to navigation and navigable
capacity were to be prohibited, and im the cases de-
scribed in the second and third clauses of Section 10,
the Secretary of War, acting on the recommendation
of the Chief of Engineers, was authorized to determine
what in the particular cases constituted an unreason-
able obstruction.
278 U.S. at 413, 49 S.Ct. at 170 (emphasis added). In short,
the Corps must authorize any of the structures or activities
enumerated in clauses 2 and 3, which are preswmed to con-
stitute obstructions. The need for applying to the Corps
for a permit does not depend on some prior determination
that there has been an obstruction to navigable capacity.
Appendix 29
[19] Even more explicit is the opinion of the Supreme
Court in United States v. Republic Steel Corp., supra, 362
U.S. 482, 80 S.Ct. 884. There, the Court held that the un-
authorized deposit of industrial solids in the Calumet River,
which reduced its depth by four to nine feet in some places,
constituted an obstruction to navigable capacity and thus
a violation of section 10. The Court carefully distinguished
between the three clauses of the 6a¢tion:
The reach of $10 seems plain. Certain types of
: structures, enumerated in the second clause, may not
be erected “in” any navigable river without approval
by the Secretary of the Army. Nor may excavations
or fills. described in the third clause, that alter or mod-
ify “the course, location, condition, or capacity of” a
navigable river be made unless “the work” has been
approved by the Secretary of the Army. There is,
apart from these particularized invasions of navigable
rivers, which the Secretary of the Army may approve,
the generalized first clause which prohibits “the crea-
tion of any obstruction not affirmatively authorized by
Congress, to the navigable capacity” of such rivers.
We can only conclude that Congress planned to ban
any type of “obstruction,” not merely those specifi-
cally made subject to approval by the Secretary of the
Army. It seems, moreover, that the first clause being
specifically aimed at “navigable capacity” serves an
end that may at times be broader than those served by
the other clauses. Some structures mentioned in the
second clause may only deter movements in commerce,
falling short of adversely affecting navigable capacity.
And navigable capacity of a waterway may conceiv-
ably be affected by means other than the excavations
and. fills mentioned in the third clause. We would need
to strain hard to conclude that the only obstructions
banned by § 10 are those enumerated in the second and
third clauses. In short, the first clause is aimed at pro-
tecting “navigable capacity,” though it is adversely
30 Appendix
affected in ways other than those specified in the other
clauses.
362 U.S. at 486-87, 80 S.Ct. at 887-888 (emphasis added).
Clearly, the structures and activities set forth in the second
and third clauses need not be shown to obstruct navigable
capacity before federal authorization is required by the
terms of the statute.
[20] Finally, recent Fifth Circuit authority has estab-
lished beyond cavil that an alteration or modification of
navigable waters is sufficient to trigger the permit require-
ment of section 10 of the Rivers and Harbors Act. In United
States v. Joseph G. Moretti, Inc. (Moretti I), 478 F.2d 418,
429 n.37 (5th Cir. 1973), the Fifth Cireuit held that “any
filling of navigable waters creates an obstruction to naviga-
tion.” When the same party came before the Fifth Circuit
again, the court held that to trigger the permit require-
ments of the third clause of section 10, a party need only
prove
factual circumstances showing some effect upon navi-
gable waters, some alteration or modification of either
course, location, condition or capacity of those waters.
These statutory terms are broad and undefined. So
long as activities fall within this generous scope, those
activities are subject to the jurisdiction of the Corps.
United States v. Joseph G. Moretti, Inc. (Moretti IT), 526
F.2d 1306, 1309 (5th Cir. 1976) ;* accord, Weiszmann v.
District Engineer, United States Army Corps of Engineers,
25. Apparently, under Moretti II a persuasive showing of “dam-
aging ecological effects upon navigable waters” suffices to establish
an alteration or modification in the condition and capacity of waters
violating section 10, clause 3. Id. at 1310. Because of our conclusion
and the specific issues that are before us, we express no opinion as
to the extent to which ecological considerations may trigger the
need for a permit under section 10.
Appendix 31
526 F.2d 1302, 1305 (5th Cir. 1976) ; United States v. Sexton
Cove Estates, Inc., 526 F.2d 1293, 1296-99 (5th Cir. 1976).
The state appellants and intervenors, however, present
another argument in support of their interpretation of sec-
tion 10. They argue that Congress has left to the states the
regulation of water rights, including direct water supply
diversions, and that
[t]o a large extent Congress has chosen to subordinate
navigation uses to those diversions, Consequently ap-
plication of Section 10 of the 1899 Act to State author-
ized water supply diversions requires a substantially
greater demonstration of tangible interference with
navigable capacity, than does application of Section
10 to structures, fills, or sewage dilution diversion
activities that do not relate to public water supply.
Intervenors’ Brief, supra note 24, at 46. See also State
Opening Brief, swpra note 22, at 14-20. To support their
argument, those parties cite various congressional enact-
ments, primarily in the area of reclamation, which contain
generalized statements announcing a congressional policy
of federal noninterference in state water laws and rights.”
26. In the appendix to their brief, the intervenors set out ex-
cerpts from 37 statutes containing references to congressional recog-
nition of state water rights, particularly in the area of state-
authorized water diversions for irrigation or consumption purposes.
Typical of these statements is one found in section 8 of the Reclama-
tion Act of June 17, 1902, 43 U.S.C. § 383 (1970), which provides
that nothing in that Act
shall be construed as affecting or intended to affect or to in
any way interfere with the laws of any State or Territory
relating to the control, appropriation, use, or distribution of
water used in irrigation, or any vested right acquired there-
under, and the Secretary of the Interior, in carrying out the
provisions of such sections, shall proceed in conformity with
such laws, and nothing in such sections shall in any way affect
any right of any State or of the Federal Government or of
82 Appendix
The case authority interpreting the reclamation statutes
makes it clear to us that a principal purpose of such refer-
ence to state law “is to leave to state law the definition of
the property interests, if any, for which compensation must
be made” when these state or private rights and interests
are acquired by eminent domain. City of Fresno v. Cali-
fornia, 372 U.S. 627, 629-30, 83 S.Ct. 996, 998, 10 L.Ed.2d 28
(1963) (emphasis added). The Supreme Court, analyzing
the effect on the California Central Valley Project of broad
language recognizing state water rights in section 8 of the
Reclamation Act of 1902,” explained.
[I]t merely requires the United States to comply with
state law when, in the construction and operation of a
reclamation project, it becomes necessary for it to
acquire water rights or vested interests therein. But
the acquisition of water rights must not be confused
with the operation of federal projects. As the Court
said in [State of] Nebraska v. [State of] Wyoming,
supra [325 U.S. 589, 615, 65 S.Ct. 1332, 89 L.Ed. 1815
(1945)]: “We do not suggest that where Congress has
provided a system of regulation for federal projects it
must give way before an inconsistent state system.”
Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 291, 78
S.Ct. 1174, 1183-1184, 2 L.Ed.2d 1313 (1958). Similarly, in
United States v. Gerlach Live Stock Co., 339 U.S, 725, 70
S.Ct. 955, 94 L.Ed, 1231 (1960), the Supreme Court speci-
fically held that section 8 of the 1902 Act reflected a congres-
any landowner, appropriator, or user of water in, to, or from
any interstate stream or the waters thereof.
Other representative statutes cited by the intervenors include the
Flood Control Act of 1944, 33 U.S.C. § 701-1(b) (1970) ; the Water
Supply Act of 1958, 43 U.S.C. § 390(b) (a) (1970) ; and the Fed-
eral Water Pollution Control Act Amendments of 1972, 33 U.S.C.
§§ 1251(b), 1370 (Supp. V 1975).
27. 43 U.S.C. § 383 (1970), quoted at note 26 supra,
Appendix 33
sional intent, for the purposes of the Act, not to take water
rights without compensation under the navigational servi-
tude. Id. at 737-39, 70 S.Ct. 955.
As the Court has’ recently indicated, just last Term, the
general restriction on federal action embodied in section 10
is that the Secretary of the Interior must “appropriate,
purchase, or condemn necessary water rights in strict con-
formity with state law.” California v. United States, 438
U.S. 645, 665, 98 S.Ct. 2985, 2996, 57 L.Ed.2d 1018 (1978).
Tn that case, the Court, correcting some confusion concern-
ing the scope of section 8 engendered by its prior opinions,
ruled that the recognition of state law mandated by section
8 is not limited to situations in which the United States
acquires water rights:
Section 8 cannot be read to require the Secretary to
comply with state law only when it becomes necessary
to purchase or condemn vested water rights. That sec-
tion does, of course, provide for the protection of
vested water rights, but it also requires the Secretary
to comply with state law in the “control, appropriation,
use, or distribution of water.”
438 U.S. at 674-75, 98 S.Ct. at 3001. Therefore, the State of
California was permitted to impose any conditions on the
United States Bureau of Reclamation’s appropriation of
water from the Central Valley Project that did not conflict
with clear congressional directives authorizing the project.
Mr. Justice Rehnquist, writing for the majority, empha-
sized that state water law governs federal operation of
reclamation projects only to the extent that Congress has
chosen not to legislate otherwise. The Court reaffirmed the
validity of the basic holdings of Ivanhoe, supra, 357 U.S.
975, 78 S.Ct. 1174, 2 L.Fid.2d 1313, and Fresno, supra, 372
U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28, i.e., that specific
congressional directives concerning reclamation override
34 Appendix
state law to the extent that there is a conflict between the
two bodies of authority. 438 U.S. at 670-72, 98 S.Ct. at 2999;
see id, at 670 n.23, 671 n.24, 98 S.Ct. 2985,
Section 8 of the 1902 Reclamation Act and the other
statutory provisions for federal deference to state water
rights do not lend support to the novel suggestion made
by the appellants despite the new vitality given those pro-
visions by California v. United States. The congressional
policy of compliance with state law for the appropriation,
purchase, condemnation, and distribution of water rights,
in the absence of express congressional provision to the
contrary, cannot be lifted from the context of reclamation
so as to encroach upon the express provisions of the Rivers
and Harbors Act, a statute directly concerned with obstruc-
tions to and modifications of navigable waters, enacted
under the congressional power over commerce and naviga-
tion. Cf. Gerlach, supra, 339 U.S. at 731-42, 70 S.Ct. 955.
The Rivers and Harbors Act, of course, does not itself
mention noninterference with state-authorized water sup-
ply diversion operations. The appellants point to no au-
thority supporting their interpretation of section 10, under
which the Act assertedly is to be applied differently in
situations in which a state has authorized water diversions.
In United States v. Rio Grande Dam & Irrigation Co.,
174 U.S. 690, 19 S.Ct. 770, 48 L.Ed. 1186 (1899), a case
upon which the appellants attach some reliance, the Su-
preme Court clearly recognized that the federal authority
over navigable waters delegated by Congress to the Corps
under the Rivers and Harbors Act of 1890, the predecessor
of the 1899 Act, overrides any state power to authorize
a water diversion project that would adversely affect navi-
gation. The power of states over waters within their
dominions, the Court held
Appendix 39
is limited by the superior power of the General Gov-
ernment to secure the uninterrupted navigability of
all navigable streams within the limits of the United
States. In other words, the jurisdiction of the General
Goverriment over interstate commerce and its natural
highways vests in that Government the right to take
all needed measures to preserve the navigability of
the navigable water courses of the country even against
any state action.
174 U.S. at 703, 19 S.Ct. at 775. The Court observed that
prior to 1890 Congress, through legislation, “recognized
and assented to the appropriation of water” by states
and private entities organized under state law, but ruled
that the Rivers and Harbors Act controlled the issue inso-
far as any conflict existed. Referring to the 1890 Act, the
Court wrote:
[I]t is obvious that Congress meant that thereafter no
State should interfere with the navigability of a stream
without the condition of national assent. It did not, of
course, disturb any of the provisions of prior statutes
in respect to the mere appropriation of water of non-
navigable streams in disregard of the old common-law
rule of continuous flow, and its only purpose, as is
obvious, was to affirm that as to navigable waters
nothing should be done to obstruct their navigability
without the assent of the National Government. It was
an exercise by Congress of the power, oftentimes de-
clared by this court to belong to it, of national control
over navigable streams .. . . The language is general,
and must be given full scope, It is not a prohibition
of any obstruction to the navigation, but any obstruc-
tion to the navigable capacity, and anything, wherever
done or however done, within the limits of the juris-
diction of the United States which tends to destroy
the navigable capacity of one of the navigable waters
of the United States, is within the terms of the pro-
hibition.
36 Appendix
174 U.S. at 708, 19 S.Ct. at 777 (emphasis added).
In Sanitary District v. United States, supra, 266 U.S. 405,
45 S.Ct. 176, 69 L.Ed. 352, the Supreme Court specifically
dealt with state diversions of water for public health pur-
poses, describing as plenary the power of Congress to
remove what it identifies as obstructions to interstate and
foreign commerce.
This is not a controversy between equals. The United
States is asserting its sovereign power to regulate
commerce and to control the navigable waters within its
jurisdiction.
* . * * * * s
The main ground is the authority of the United
States to remove obstructions to interstate and foreign
commerce. There is no question that this power ts
superior to that of the States to provide for the welfare
or necessities of their inhabitants. In matters where the
States may act the action of Congress overrides what
they have done. .. . But in matters where the national
importance is imminent and direct even where Con-
gress has been silent the States may not act at all.
.
266 U.S. at 425-26, 45 S.Ct. at 178-179 (emphasis added).
* [21,22] While states undeniably possess broad power to
regulate their own navigable waters for the general welfare,
the power clearly is, and should be subordinate to the federal
navigational power unless Congress expressly defers to
the state authority in the context of a specific statute. Since
Congress did not so defer to state authority in the case of
the Rivers knd Harbors Act of 1899, the State of California’s
powers over navigable waters cannot narrow the authority
of the Corps over navigable waters as applied to state water
diversions.”*
28. The Court, in United States v. Rio Grande Dam & I rrigation
Co., 174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136 (1899), illustrated
Appendix 37
[23] In sum, we hold that the lowering of water levels,
as established in this case, amounts to an alteration or modi-
fication of the condition or capacity of Delta waters under
clause 3 of section 10, and thus requires authorization by
the Corps. This result follows without regard to the effect
of the pumping plants on actual navigable capacity because
a prior finding of obstruction to navigable capacity is not
necessary in order to trigger the effect of clauses 2 and 3
of section 10. The federal authority set forth in the Rivers
and Harbors Act of 1899 reigns paramount. Congressional
deference to traditional state regulation of water rights, a
consideration of significance in other contexts, does not
operate to restrict the express policy of section 10.
Vv. AUTHORIZATION
Having determined that the construction and operation
of the Tracy and Delta Plants require the approval of the
this proposition of overriding federal supremacy in the area of
navigation with an example:
The Hudson River runs within the limits of the State of New
York. It is a navigable stream, and a part of the navigable
waters of the United States, so far at least as from Albany
southward. One of the streams which flows into it and con-
tributes to the volume of its waters is the Croton River, a
nonnavigable stream. Its waters are taken by the State of
New York for domestic uses in the city of New York. Un-
questionably the State of New York has a right to appropriate
its waters, and the United States may not question such
appropriation, unless thereby the navigability of the Hudson
be disturbed. On the other hand, if the State of New York
should, even at a place above the limits of navigability, by
appropriation for any domestic purposes, diminish the volume
of waters, which, tlowing into the Hudson, make it a navigable
stream, to such an extent as to destroy its navigability, un-
doubtedly the jurisdiction of the National Government would
arise and its power to restrain such appropriation be
unquestioned ....
174 U.S. at 709, 19 S.Ct. at 777.
38: Appendix
Corps under section 10, the District Court then ruled that
both facilities lacked the required authorization. The respec-
tive appellants offer different arguments in respect to the
Tracy Pumping Plant, a federal facility, and the California’s
Delta Pumping Plant. The federal appellants content that
various congressional acts affirmatively authorized the
Tracy Plant under section 10, clause 1. The state appellants
maintain that various section 10 permits issued over the
years for certain components of the Delta Plant constitute
authorization for the entire Delta Plant. In addition, the
state appellants urge that a Federal Power Commission
license for portions of the California Water Project elimi-
nated any need to obtain section 10 approval. Other conten-
tions made by the appellants in the District Court are not
pressed on this appeal. We first consider the question of
congressional authorization of the Tracy Pumping Plant.
A. Congressional Authorization of the Tracy Pumping
Plant.
The trial court found no congressional authorization of
the Tracy Pumping Plant. It based its decision on the legal
conclusion that “[t]he initial authorization to create an
obstruction must rest on express and not implied Congres-
sional authority. ... The approval or funding of a facility
does not compromise Congress’s right to control its opera-
tion.” 400 F.Supp. at 637 (citing Sanitary District v. United
States, swpra, 266 U.S. at 428, 45 S.Ct. 176, and Hubbard v.
Fort, 188 F. 987, 996 (C.C.D.N.J.1911).”
99. The District Court principally relied upon the following
statement from Sanitary District :
The act [of March 2, 1827, ch. 51, 4 Stat. 234] granted land
to Illinois in aid of a canal to be opened by the State for the
purpose of uniting the waters of the Illinois River with those
of Lake Michigan, but if it has any bearing on the present
Appendix 39
[24] The rationale of the District Court sweeps too
broadly. In our view, congressional approval or authoriza-
tion may be found in virtually any type of statute, inelud-
ease it certainly vested no irrevocable discretion in the State
with regard to the amount of water to be withdrawn from the
Lake, It said nothing on that subject. We repeat that we
assume that the United States desires to see the canal main-
tained and therefore pass by as immaterial all evidence of its
having fostered the work. Even if it had approved the very
size and shape of the channel by act of Congress tt would not
have compromised its right to control the amount of water to
be drawn from Lake Michigan, It seems that a less amount
than now passes through the canal would suffice for the con-
nection which the United States has wished to establish and
maintain.
266 U.S. at 427-28, 45 S.Ct. at 179 (emphasis added). Applying
what it perceived to be the Supreme Court rule, the District Court
held:
In the instant case none of the acts in question either contain
sufficiently explicit language or are accompanied by a legisla-
tive history clearly manifesting approval of the facilities for
the purpose of Section 10. For the most part these acts do not
even refer specifically to the pumping plant but rather are
very general approvals of the Central Valley Project or the
San Luis unit. All Congress did was authorize the construction
of those projects and appropriate funds for them. Congress did
not, however, agree to relinquish its Section 10 responsibilities
or exercise this power in any respect. Even if Congress had
gone so far as specifically to fund the construction of the
Tracy Plant precisely as it stands today, this fact would not
constitute authorization to operate it, as before operation
occurred, either Congress or the Corps of Engineers would have
to consider within what Section 10 parameters the Tracy
Plant could operate and issue an appropriate authorization.
400 F.Supp. at 637-38 (emphasis added).
In the quoted passage from Sanitary District, the Supreme Court
strictly construed the actions of the United States as to the diversion
of Lake Michigan waters. In that case the federal government had
brought suit to enjoin the Sanitary District of Chicago from divert-
ing water from the lake in excess of a specified amount. The District
had defended on the basis of estoppel, arguing that “the United
States has given its assent to all that has been done and... it is
estopped to take the position” that the diversions constituted ob-
structions to navigable capacity. 266 U.S. at 427, 45 S.Ct. at 179.
It was, therefore, in the context of considering an argument of
40 Appendix
ing appropriations statutes, so long as it is demonstrated
that Congress had knowledge of the precise action or
project at issue and was explicitly and specifically address-
ing that project. United States v. Arizona, 295 U.S. 174,
55 §.Ct. 666, 79 L.Ed. 1371 (1935), casts light upon the
principle. There, the Supreme Court held that the Parker
Dam, which the United States planned to build in the
Colorado River between Arizona and California, was not
authorized by any congressional act, as required by the
Rivers and Harbors Act of 1899. The Government, con-
tending that Congress had approved the dam, cited a 1904
Act authorizing the diversion of Colorado River waters
for the purpose of irrigating adjoining lands on Indian
reservations. Id. at 185, 55 S.Ct. 666. In support of its con-
struction, the Government asserted that under the 1904
Act another structure, the Laguna Dam, had previously
been built across the Colorado.
Rejecting the Government’s argument, the Supreme Court
pointed out that “Congress has nade appropriations for
the benefit of the project of which it [the Laguna Dam]
estoppel against the Government that Mr. Justice Holmes stated
that the “strict construction of the Government’s act” avoided the
defendant’s contention. Id. Accordingly, the import of Sanitary
District is not that Congress must affirmatively authorize both
construction and operation of a diversion project for it to be legal
under section 10, as the District Court supposed. Instead, the Su-
preme Court simply stated that Congress is not precluded from
setting limits on the amount of a water diversion even if it has
previously authorized the specific project. An analogue in the
instant case would arise if the federal government itself were
actively seeking to restrict the amount of water diverted by the
Tracy Plant. None contends that it could not do that, if it so chose.
The right of the Congress to control the operation of a facility that
it has previously approved, however, is not at issue here. In short,
we cannot accept the proposition that Sanitary District supports
the finding that section 10 requires separate approval by either
Congress or the Corps for both the construction and the operation
of a water diversion project.
Appendix 41
is a part and so recognized and approved the building of
the dam,” citing Acts of 1916, 1917, and 1918 making appro-
priations for the Yuma Project, Arizona-California, which
includes the Laguna Dam. Id. at 186 n.5, 55 S.Ct. 666. As
to the Parker Dam, however, the Court refused to hold
that Congress had authorized the project,sunder the 1904
Act “by making appropriations for irrigation of lands in
Indian reservations.” Jd. Unlike the situation in our case,
the 1904 Act did not specifically address the project at
issue. Compare Rivers and Harbors Act of 1937, ch. 832,
50 Stat. 844, 850, quoted at n.31 infra, with Act of Apr. 21,
1904, § 25, 33 Stat. 224.
[25] United States v. Arizona, supra, teaches that Con-
gress, while it may authorize a project by means of general
appropriations legislation, must have known and intended
that the specific facility in question was a part of the
project for which it was making appropriations. This inter-
pretation is supported by other cases holding that Congress
may authorize activities by means of appropriations legis-
lation that specifically and directly relates to the projects
in question.*° We also note that the Corps’ administrative
30. See United States v. Dickerson, 310 U.S. 554, 60 S.Ct. 1034,
84 L.Ed. 1356 (1940) (Congress could suspend certain military
re-enlistment allowances, provided for by prior legislation, by means
of an amendment to an appropriations bill) ; Wisconsin v. Duluth,
96 U.S. 379, 382-88, 24 L.Ed. 668 (1878) (by means of an appropria-
tion, Congress had “adopted, recognized, and taken charge of” a
project previously initiated privately without congressional authori-
zation) ; Friends of the Earth v. Armstrong, 485 F.2d 1, 9-10 (10th
Cir. 1973) (en bane) (Congress ean, by an appropriations act,
suspend or modify a prior act concerning the spreading of waters
impounded in Lake Powell into Rainbow Bridge National Monu-
ment), cert. denied, 414 U.S. 1171, 94 S.Ct. 933, 39 L.Ed.2d 120
(1974) ; United States v. Kennedy, 278 F.2d 121, 122-23, 126 (9th
Cir. 1960) (General Appropriation Act of 1951, Act of Sept. 6,
1950, 64 Stat. 595, appropriating funds for the National Park
Service, provided necessary statutory authorization for taking of
42 Appendix
regulations governing issuance of permits are consistent
with this principle:
The general legislation by which Federal agencies are
empowered to act generally is not considered to be
sufficient authorization by Congress to satisfy the pur-
poses of Section 10. If an agency asserts that it has
Congressional authorization meeting the test of Sec-
tion 10 or would otherwise be exempt from the provi-
sions of Section 10, the legislative history and/or
provisions of the Act should clearly demonstrate that
Congress was approving the exact location and plans
from which Congress could have considered the effect
on navigable waters of the United States or that Con-
gress intended to exempt that agency from the require-
ments of Section 10.
33 C.F.R. § 322.3(c) (1) (1978) (emphasis added). Generally,
a court should accord great weight to the construction of
a statute by the agency responsible for its administration.
E. g., California v. United States, supra, 438 U.S. at 676
n.30, 98 S.Ct. 2985; Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct.
1271, 14 L.Ed.2d 179 (1965) ; Udall v. Tallman, 380 US. 1,
16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).
The question thus narrows itself to whether the various
congressional statutes and legislative history concerning
the Central Valley Project are so sufficiently specific as to
the Tracy Pumping Plant as to constitute congressional
authorization under Section 10. In our view, the basic enact-
ments authorizing the Central Valley Project in 1937 and
the annual appropriations acts for operation and mainte-
land within boundaries of Mount McKinley National Park) ; cf.
City of Santa Clara v. Andrus, 572 F.2d 660, 672 (9th Cir.), cert.
denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167 (1978) (to show
congressional ratification of an electrical power allocation scheme
by appropriation of money, “the government must sustain the
heavy burden of demonstrating Congressional knowledge of the
precise course of action alleged to have been acquiesced in’).
Appendix 43
nance of the Central Valley Project, when read in light
of the legislative history of the broad oversight exercised
by the Congress over the project, constitute affirmative au-
thorization of the Tracy Plant.
The Rivers and Harbors Act of 1937, ch. 832, § 2, 50 Stat.
844, 850, reauthorized the entire Central Valley Project,
theretofore authorized and established under the Emergency
Relief Appropriation Act of 1935, 49 Stat. 115. As of 1937,
then, Congress had clearly authorized the Central Valley
Project, the general plans of which contemplated a large-
seale diversion of water from the Delta to the San Joaquin
Valley. Subsequently, Congress enacted the Reclamation
Project Act of 1939, ch. 418, 53 Stat. 1187 (codified at 43
U.S.C. $$ 375a, 387-389, 485-485h, 485i-485k (1970)). See-
tion 9(a) of the Act, 43 U.S.C. § 485h(a) (1970), provides
that federal reclamation projects were to become auto-
31. The Rivers and Harbors Act of 1937 declared the Central
Valley Project
to be for the purposes of improving navigation, regulating the
flow of the San Joaquin River and the Sacramento River,
controlling floods, providing for storage and for the delivery
of the stored waters thereof, for the reclamation of arid and
semiarid lands and lands of Indian reservations, and other
beneficial uses, and for the generation and sale of electric
energy as a means of financially aiding and assisting such
undertakings and in order to permit the full utilization of the
works constructed to accomplish the aforesaid purposes: Pro-
vided further, That, except as herein otherwise specifically
provided the provisions of the reclamation law, as amended,
shall govern the repayment of expenditures and the construc-
tion, operation, and maintenance of the dams, canals, power
plants, pumping plants, transmission lines, and identical works
deemed necessary to said entire project, and the Secretary of
the Interior may enter into repayment contracts, and other
necessary contracts, with State agencies, authorities, associa-
tions, persons, and corporations, either public or private,
including all agencies with which contracts are authorized
under the reclamation law. ...
Rivers and Harbors Act of 1937, ch. 832, § 2, 50 Stat. 844, 850.
44 Appendix
matically authorized when the Secretary of the Interior
found them to be feasible and submitted a favorable report
to the President and to the Congress.” On February 24,
1947, the Secretary of the Interior forwarded to Congress
a Finding of Feasibility pursuant to the 1939 Reclamation
Act. H.R. Doe. No. 146, 80th Cong., 1st Sess. (1947), re-
printed in Engle, Central Valley Project Documents, H.R.
Doe. No. 416, 84th Cong., 2d Sess., pt. 1, at 574 (1956). The
feasibility report contained a detailed discussion of the
Delta-Mendota Canal, the 115-mile canal connecting the
Mendota Pool in the San Joaquin Valley with the Tracy
Pumping Plant. The initial contract for construction of
the Delta-Mendota Canal was dated June 14, 1946, and the
canal’s construction was completed prior to July 1, 1952.
The initial construction contract for the Tracy Pumping
Plant was made on June 23, 1947, with construction of the
Plant completed prior to February 1, 1953.
Over the years Congress has repeatedly appropriated
funds for the Tracy facilities. These appropriations acts
have generally lumped together fv .ds for the Central Valley
Project as a whole. As such, the situation appears to come
within the dictum of United States v. Arizona that “Con-
39. Section 485h(a) reads, in pertinent part, as follows:
If the proposed construction is found by the Secretary to have
engineering feasibility and if the repayable and returnable
allocations to irrigation, power, and municipal water sup-
ply ..., together with any allocation to flood control or naviga-
tion . . ., equal the total estimated cost of construction as
determined by the Secretary, then the new project, new divt-
sion of a project, or supplemental works on a project, covered
by his findings, shall be deemed. authorized and may be under-
taken by the Secretary. If all such allocations do not equal
said total estimated cost, the said new project, new division, or
new supplemental works may be undertaken by the Secretary
only after provision therefor has been made by Act of
Congress ....
43 U.S.C. § 485h(a) (1970) (emphasis added).
Appendix 45
gress has made appropriations for the benefit of the project
of which it is a part and so recognized and approved the
building” of the project under the Rivers and Harbors Act
of 1899. United States v. Arizona, supra, 295 U.S. at 186,
55 §.Ct. 666, at 670 (emphasis added). It is manifest
from the legislative history that Congress was well aware
of the Tracy Pumping Plant as part of the Central Valley
Project, fully approved of it, and consistently encouraged
its construction and operation.
33. Moreover, the First Deficiency Appropriation Act of 1946,
ch. 589, 59 Stat. 632, 647-48 (1945), contained an appropriation
“for construction of the . .. Delta division, Delta-Mendota canal,
$7,500,000,” and the Interior Department Appropriation Act of
1949, ch. 754, 62 Stat. 1112, 1129 (1948), contained a specific
appropriation for the Tracy Pumping Plant Switchyard.
34. The legislative history of congressional authorization of and
appropriations for the Central Valley Project is fully covered
in Engle, Central Valley Project Documents, H.R. Doe. No.416,
84th Cong., 2nd Sess., pt. 1 (1956), and H.R.Doc.No.246, 85th
Cong., 1st Sess. (1957).
A 1946 House report stated that funds were to be provided for
transmission lines to bring “power to the Delta area where it will
be required for the pumping of water for irrigation and water sup-
ply purposes. The sum recommended would provide funds to begin
construction of this line, extending from Oroville to Tracy.” H.R.
Rep.No.1288 on H.R.4805, 79th Cong., Ist Sess. (1946), reprinted
in Engle, supra, pt. 2, at 21 (emphasis added). Again, in 1947, an
appropriation was made for completion of the power transmission
line, “which will ultimately be extended to Tracy to provide power
for pumping water in the Delta area... .” Id., reprinted in Engle,
supra, pt. 2, at 22-23. In 1949 the following statement appears in
H.R.Rep.No.2038, 80th Cong., 2d Sess. (1948), reprinted in Engle,
supra, pt. 2, at 27-28:
The drought which large areas in California have experienced
this past winter reemphasizes the necessity for expediting the
construction of the irrigation facilities of the Central Valley
project. To this end the committee has made liberal appropria-
tions for storage and irrigation facilities. It has also provided
all funds necessary to continue construction of the power-
plants and switchyards at Shasta and Keswick Dams, the
Oroville-Tracy transmission line and the switchyard at the
Tracy pumps on the Delta-Mendota canal .... None of the
funds in the bill and no funds heretofore provided for switch-
Te
46 Appendix
In 1960 Congress authorized the construction of the
San Luis Unit of the Central Valley Project. Act of June 3,
yards are to be used for the construction . . . of any switchyard
facilities at Tracy not required for the operation of the project
pumps....
See Act of June 29, 1948, ch. 754, 62 Stat. 1112, 1128-29. The Senate
report discussing the same bill stated :
The committee recognizes that the Central Valley project has
since its inception contemplated the construction of transmis-
sion lines done [sic] the West side of the Sacramento River
as well as down the East side from Shasta Dam to the Tracy
pumping plant, which lines are an integral part of this
multiple-purpose project.
S.Rep.No.1609, 80th Cong., 2d Sess. (1948), reprinted in Engle,
supra, pt. 2, at 28. In 1952 Commissioner of Reclamation Michael
W. Straus testified at Senate hearings on the Central Valley Project
appropriations bill for that year :
I want to report particularly on the Central Valley project
of California that this committee has protected and financed
since Reclamation was given the job of making California’s
half-century dream come true....
The California Legislature has declared August 1 to August
10 « Central Valley Project Festival. The reason for these
dates is that our multiple-year, multiple-purpose job of com-
pleting the original authorized project is virtually complete.
On August 1 water will be released from Shasta Dam, carried
down the Sacramento River through Shasta and Keswick
generators, through the eross-channel-canal cut, lifted up
200 feet by the great Tracy pumps, sloshed down the long
Delta-Mendota Canal to the Mendota pool, where it will be
exchanged for water trapped by Friant Dam in the San
Joaquin River, and carried 158 miles down the Friant-Kern
Canal to Bakersfield.
That is an overall total movement of water 500 miles—the
farthest that man has moved water anywhere at any time.
That is a culmination of the work this committee has supported
over the years.
It will be a period of rejoicing the whole length of the Cali-
fornia Valley. It is my hope that the members of this committee
who protected and nursed the project into being can accept
some of the/ multiple invitations I know they are going to
receive to see the attainment of the committee’s objective.
Engle, supra, pt. 2, at 37 (emphasis added). Further references to
the Tracy Pumping Plant and specifie appropriations therefor as
an integral part of the Central Valley Project abound in the legisla-
tive history. E. g., id. at 21-28, 32-38, 40-44, 49, 50-51, 60, 65, 305.
Appendix 47
1960, Pub.L. No.86-488, 74 Stat. 156. In section 4 of the
Act Congress expressly noted the precise location and
plans of the Tracy Pumping Plant as a critical and integral
part of the San Luis Unit project.** There is no evidence
whatsoever that Congress intended to authorize the San
Luis Unit if, and only if, the Corps of Engineers subse-
quently issued a section 10 permit on its own for either
the construction or operation of the Tracy Plant. The Dis-
trict Court distinguished the 1960 Act on the ground that
it was enacted after the commencement of the operation
of the Tracy Plant, “and hence even if it were intended as
Congressional consent, the original construction and opera-
tion of the Tracy Plant were unlawful.” 400 F.Supp. at
637 n.41. We disagree. In Wisconsin v. Duluth, 96 U.S. 379,
94 L.Ed. 668 (1878), the Supreme Court upheld congres-
sional authorization of a previously inaugurated private
project on the basis of an appropriations act. The Court
reasoned that it would unreasonably restrict Congress’
power to hold that Congress could not retroactively approve
previously unauthorized projects.
[26] We are therefore constrained to hold that the
statutes and legislative history sufficiently demonstrate
35. Section 4 of this Act provides, in pertinent part:
If the Secretary proceeds to construct, operate, and maintain
the San Luis Works under the terms of section 1 of this Act
solely as a Federal project, the operation shall be subject to
the following restriction: Whenever the chlorides in the water
at the head of the Delta-Mendota Canal exceed one hundred
and fifty parts per million during the months of July, August,
or September, the mean daily diversion from the Sacramento-
San Joaquin Delta to San Luis unit via Tracy pumping plant
and Delta-Mendota Canal as measured at the San Luis pump-
ing plant shall not exceed the mean daily import to the Sacra-
mento Valley from the Trinity project.
Act of June 3, 1960, Pub.L.No.86-488, §4, 74 Stat. 156, 159
(emphasis added).
48 Appendix
congressional approval of the Tracy Pumping Plant and
its operation, both at the initiation of the Central Valley
Project and, retroactively, after the completion of the
plant.*
B. Corps Authorization of the Delta Pumping Plant
In the District Court the state appellants contended that
‘various section 10 permits issued with respect to components
of the Delta Pumping Plant constituted Corps authorization
of the plant itself. Here, they limit their argument to Permit
No. 4101, issued in June 1967, which authorized the construc-
tion of the Clifton Court /orebay. This forebay, a reservoir
between the Delta and the pumping plant, was designed to
allow the pumping to be confined to off-peak electrical hours.
Its only function is to serve as an intake facility for the
Delta Pumping Plant.
Plainly, the permit does not authorize the entire Delta
Pumping Plant. No direct evidence in the permit file refers
to the pumping plant, and the permit itself only authorized
the State “to cut the westerly levee, of West Canal, at
Clifton Court Tract for Clifton Court Forebay in Contra
Costa County, California.” Nor can we construe the permit
36. After the first draft of a proposed Opinion in the present
appeal was circulated for the consideration of Judges Trask and
Tang, our court issued its decision in Libby Rod and Gun Club v.
Poteat, 594 F.2d 742 (9th Cir. 1979). Initially, Libby was the cause
of concern on the part of the author of this Opinion, especially in
respect to our conclusion that Congress had impliedly authorized the
Tracy Pumping Plant. Certain broad language in Libby appeared
to declare that, henceforth, the affirmative congressional authoriza-
tion specifically required by the Rivers and Harbors Act for obstruc-
tions to navigable capacity of waters could not be conferred by
appropriations bills alone, however, specific such an appropriation
act may have been toward a particular project it was funding. See
594 F.2d at 746, esecially notes 5 and 6, and Judge Kennedy’s dis-
senting opinion at 748-753. This concern, however, has been laid to
rest by the concurring opinion of Judge Tang, who was one of the
two judges constituting the majority in Libby. See pages .... to ....,
slip op. 508 to 505, infra.
Appendix 49
as implicit authorization for the Delta Plant. The Corps reg-
ulations required that a permit application be complete and
without reference to any unattached correspondence. 33
C.F.R. § 209.130(b) (6) (1967). Maps and plans showing the
location, extent, and character of the project were con-
sidered essential, and the proposed work was to be indicated
in red ink. 33 C.F.R. §§ 209.130(c)(1), (¢)(11) (1967).
Given the completeness required of the application and the
absence of any mention of the Delta Plant therein, we can-
not appropriately say that the permit implicitly authorized
more than the approved application upon which it was
based.*?
37, Even if it could be said that Permit No. 4101 initially
authorized the operation of the Delta Pumping Plant, the Corps
yet retains the power to impose conditions upon the continuing
pumping operation. As the state appellants concede, paragraph (f)
of Permit No. 4101 provides, in respect to the authorized activity,
that “if, in the oinion of the Secretary of the Army, it shall cause
unreasonable obstruction to the free navigation of said water, the
owner will be required . . . to remove or alter the structural work
or obstructions caused thereby. . . .”” Moreover, under the Corps’
present regulations,
[t]he District Engineer may reevaluate the circumstance and
conditions of a permit either on his own motion or as a result
of periodie progress inspection, and initiate action to modify,
suspend or revoke a permit as may be made necessary by con-
sideration of the general public interest. . . . Significant in-
ereases in scope of a permitted activity will be processed as
new applications for permits in accordance with section 325.2
and not as modifications under this paragraph.
33 O.F.R. 325.7(a) (1978) (emphasis added). Thus, even if no
further authorization is required to justify the continued existence
of the Delt
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