# Petition — California v. Sierra Club > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2201%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 287 ## Text 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. [Sta [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2201%3A01. Public record. Not legal advice.