Appendix — California v. Sierra Club

FEB 13 1980

vate, CLER

IN THE

Supreme Court of the Gnited States

Ocroser TERM, 1979

State or Cauirorni, et al.,

Petitioners,

VS.

Smrra Civs, et al.,

Respondents.

Supplemental Appendix to Petition

for Writ of Certiorari

GEORGE DEUKMEJIAN

Attorney General of the

State of California

R. H. Connettr

Assistant Attorney General

RoperRIcK 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 84105

Supplemental Appendix

400 Federal Supplement 610

SIERRA CLUB, a non-profit California

Corporation, et al., Plaintiffs,

Vv.

Rogers C. B. MORTON, as Secretary of

the Interior of the United States,

et al., Defendants.

No. C-71-500-CBR.

United States District Court,

N. D. California.

July 28, 1975.

John B. Clark, Pettit, Evers & Martin, San Francisco,

Cal., for plaintiffs Sierra Club, Friends of the Earth and

Hank Schramm.

Michael R. Sherwood, San Francisco, Cal., Sierra Club

Legal Defense Fund, for plaintiff Sierra Club.

Gary J. Near, San Francisco, Cal., for plaintiffs Friends

of the Earth and William Dixon.

James L. Browning, Jr., U. S. Atty., Francis Boone,

Richard J. Dauber, Asst. U. S. Attys., San Francisco, Cal.,

for federal defendants. |

Evelle J. Younger, Atty. Gen., Carl Boronkay, R. H. Con-

nett, Bertram G. Buzzini, Deputy Attys. Gen., Sacramento,

Cal., for state defendants. .

Victor E. Gleason, Los Angeles, Cal., for intervening

defendant Metropolitan Water District of Southern Cali-

fornia.

James G. MeCain, Corcoran, Cal., for intervening defend.

ant Tulare Lake Basin Storage District.

2 Appendix

Albert Thomas Henley, San Jose, Cal., and Daniel F.

Gellery, Sacramento, Cal., for intervening defendant Santa

Clara Water District.

MEMORANDUM OF OPINION

RENFREW, District Judge.

In 1971 two environmental groups and two individuals

brought this action to contest the allegedly unlawful con-

struction and operation of three mejor facilities of the

California Water Project. The parties agreed to bifurcate

the trial of the action into a liability phase and a relief

phase. The liability phase was tried to the Court between

June 10, 1974, and June 21, 1974. Subsequently, on July 26,

1974, the Court heard oral argument and at the conclusion

of that argument informed the parties of its views as are

more fully set forth herein.

The California Water Project has been constructed in

part as a response to California’s water problem. The

essence of that problem is the need to redistribute the

state’s plentiful water supply from water-abundant areas

to water-deficient areas. The water-rich areas lie in the

North and West Central portion of the state. Water from

these areas flows through a system of rivers and channels

to the Sacramento-San Joaquin Delta (“Delta”) and finally

through the San Francisco Bay to the Pacific Ocean. One

proposed solution to the state’s water problem is transport-

ing the excess water, which would normally flow into the

ocean, to the arid or semi-arid areas of the state. A second

and interrelated problem arises because the excess water

is present in and flows out of the water-rich areas only

during certain times of the year. Because the demand for

water consumption for human use is relatively constant

throughout the year and the agricultural demand varies

Appendiz 3

during Jifferent times of the year, water which accumulates

in the water-rich areas during the excess water seasons

must be stored for use during the year if these demands

are to be met.

A brief description of the geographical area underlying

the subject matter of this suit will aid in understanding

the facts of this case. The Delta is a roughly triangular-

shaped region which runs southwest from Sacramento west

of the Sacramento River to Antioch, which forms one cor-

ner of the triangle. It then runs southeast from Antioch

to a point approximately 1014 miles southeast of Tracy,

which forms a second corner. Finally, it runs north from

that point through Stockton to Sacramento, completing the

triangle. Clifton Court Forebay, Delta Pumping Plant, and

Tracy Pumping Plant are located on the edge of the Delta

approximately half-way between Antioch and Tracy. The

proposed route of the Peripheral Canal runs from the

intake structure in the north Delta, south through the east

Delta, and finally turns to the southwest, stopping between

the Tracy Pumping Plant and the Clifton Court Forebay.

In the southern Delta the San Joaquin River and its tribu-

taries flow basically in a northwesterly direction while in

the northern Delta the Sacramento River and its tribu-

taries flow in a southwestern direction.’

The California Water Project consists of both state and

federal facilities. The federal component of the project

is administered by the United States Bureau of Reclama-

tion and is designated as the Central Valley Project. The

state component of the project is administered by the De-

partment of Water Resources, a department within the

Resources Agency of the State of California, and is desig-

nated as the State Water Project.

1. See the map of the Delta attached hereto as Exhibit A.

4 Appendix

The Central Valley Project, the federal project, con-

sists of a series of reservoirs, pumping plants, canals, and

other facilities designed to control the flow of water in

the Sacramento River, San Joaquin Rive~, and certain of

their tributaries, generate hydroelectric power, provide

flood control, and provide water for irrigation and other

uses in the Central Valley of California. One of the prin-

cipal facilities of the Central Valley Project is the Tracy

Pumping Plant, located on an inlet channel of Old River

in the Delta. The Tracy Pumping Plant diverts water from

the Delta by pumping it into the Delta-Mendota Canal, a

115-mile canal which leads to the Mendota Pool in the

Central Valley.

The State Water Project, created by the Burns-Porter

Act of 1959, was to consist of a system of dams, canals,

pumping plants, and other facilities designed to transfer

water across the Delta, provide for water conservation and

flood and salinity control in the Delta, provide for the

generation of power, and provide transfer water from

points at or near the Delta to the San Francisco Bay Area,

the San Joaquin Valley, the Central Coast, and Southern

California. The Burns-Porter Act was submitted to and

approved by California voters on November 8, 1960.

Substantially all of the water required annually by the

State Water Project is to be obtained initially from the

Sacramento and San Joaquir Rivers and their tributaries.

Among the facilities constructed for this purpose are the

Delta Pumping Plant and the Clifton Court Forebay which

are located on the edge of the Delta. A majority of the

water that is transported from Northern California to

Southern and Central California travels through the Delta

Pumping Plant and the California Aqueduct.

The State of California through its Department of Water

Resources has entered into contracts providing that at

Appendix 5

some point in the future it deliver 4.23 million acre-feet of

water annually by means of the State Water Project. The

primary purchasers of water are the Kern County Water

Agency, which has agreed to purchase 1,153,400 acre-feet

annually, and the Metropolitan Water District of Southern

California, which has agreed to purchase 2,011,500 acre-

feet annually. It is expected that over 95% of the water

which the State is contractually obligated to deliver to

Central and Southern California will be transmitted

through the Delta Pumping Plant.

Many controversies have been associated with the con-

tinuing development of this massive water project. This

case, however, concerns the extent to which the decisions

and actions of state and federal defendants must take into

account navigational, environmental, fish, and wildlife con-

siderations. The Delta, consisting of approximately 700

miles of meandering waterways, some of which are navi-

gable, is used for both commercial shipping and recrea-

tional boating. Water skiing and houseboating are common

activities in this region and there are many marinas within

its confines. A significant amount of California warm water

fishing, anadromous sport fishing, and approximately 80%

of the commercial salmon fishing is dependent upon the

environment in the Delta. Moreover, this region and its

adjoining marshlands and wetlands are on the Pacific

Flyway, an important wintering area and major and cus-

tomary natural habitat for migratory waterfowl.

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 ex-

cess of 130,000 members of whom more than 40000 live

in the San Francisco Rav and the Sacramento-San Joaquin

Delta areas, Included in the membership of the Sierra

6 Appendix

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 include the preservation and

conservation of the natural resources, fish, and wildlife of

the United States, including its rivers, bays, wetlands,

deltas, and estauarine areas.

Friends of the Earth is a nonprofit New York corpora-

tion which has its principal place of business in San Fran-

cisco. Its stated purposes include the preservation, restora-

tion, 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 party boats in the San Fran-

cisco Bay and the Pacific Ocean. Schramm has a economic

interest in this controversy since he depends for his live-

lihood on the maintenance, preservation, and conservation

of sports and commercial fisheries in the San Francisco

Bay and the adjoining 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 Tsland, and consequently has an eco-

nomic interest in the maintenance, preservation, and con-

servation of adequate non-polluted supplies of water in

the Delta and San Francisco Bay regions.

Defendants are state and federal officials who administer

the various agencies responsible for overseeing the opera-

tion, construction, and regulation of the ‘acilities in ques-

tion. The federal defendants are Rogers C. B. Morton,

Secretary of the Interior; Gilbert Stamm, Commissioner

of the Bureau of Reclamation; Howard H. Calloway, Sec-

retary of the Army: William C. Gribble, Jr., Chief of

Engineers of the United States Army; George B. Fink,

Appendix 7

Division Engineer of the South Pacific Division of the

United States Army Corps of Engineers; Colonel Frederick

J. Rockwell, District Engineer of the Sacramento, Cali-

fornia District of the United States Army Corps of Engi-

neers; and Colonel James L. Lammie, District Engineer for

the San Francisco, California District of the United States

Army Corps of Engineers. The state defendants are Nor-

man B. Livermore, Jr., Secretary for Resources, and John

R. Teerink, Director of the Department of Water Re-

sources.’

[1] Plaintiffs’ amended complaint alleged six claims

for relief, namely, failure of defendants to comply w'th

Sections 9 and 10 of the Rivers and Harbors Act of 1899,

33 U.S.C. §§ 401, 403 (first claim) ; Section 13 of the Rivers

and Harbors Act of 1899, 33 U.S.C. § 407 (second claim) ;

Sections 2 and 3 of the Fish and Wildlife Coordination Act,

16 U.S.C. §§ 662, 663 (third claim); Sections 101 and 102

of the National Environmental Policy Act of 1969, 42 U.S.C.

§§ 4331, 4332 (fourth claim); the Estuarine Areas Act and

the Federal Water Pollution Control Act, 16 U.S.C. § 1221

et seq. and 33 U.S.C. § 1151 et seq. (fifth claim) ; and the

California Environmental Quality Act, California Public

Resources Code § 21000 et seq. (sixth claim). In the pretrial

order plaintiffs abandoned their second claim. Since the

parties have at best cursorily asserted and argued with

respect to the fifth claim, and since plaintiffs have offered

neither findings nor conclusions with respect to that claim

9. For the purposes of this Memorandum of Opinion, defendants

are named as they appeared in the Agreed Pre-Trial Order. The

Court notes that all of the named defendants were sued in their

official capacities and thus, even though some of those originally

named no longer occupy those positions, by virtue of Rule 25 (d) (1)

of the Federal Rules of Civil Procedure their successors are deemed

automatically substituted.

8 Appendix

and none of the irial testimony or exhibits were directed

toward that claim, the Court considers the fifth claim to

have been abandoned at trial and does not discuss it in this

Memorandum of Opinion.

The heart of this phase of the controversy is the legality

and operation of the Tracy and Delta Pumping Plants and

the proposed construction and operation of the Peripheral

Canal. ,

I. FACTUAL BACKGROUND

A. The Tracy Pumping Plant

Construction began on the Tracy Pumping Plant (“Tracy

Plant”) in 1947 and was sufficiently completed by June 11,

1951, so that the facility could commence initial operation.

The Tracy Plant was built by the Bureau of Reclamation

at a point approximately two miles from the Old River

and one mile south of the Clifton Court Tract. While the

Tracy Plant was being constructed an intake channel was

simultaneously constructed from the pumping plant north-

east to Old River. The Tracy Plant consists of six pumps

with a maximum pumping capacity of 4602 eubie feet per

second (“cfs”) which lift the water supplied through the

intake channel into the Delta-Mendota Canal. The Delta-

Mendota Canal is the conduit through which federal water

is transported to the Central Valley.

B. The Delta Pumping Plant

Construction commenced on the Delta Pumping Plant

(“Delta Plant”) in July of 1963 and was sufficiently com-

pleted by late 1967 so that the Delta Plant could begin

diverting Delta water at that time. It was not until Feb-

ruary of 1969, however, that all construction was finished.

Appendix 9

The Delta Plant is approximately two miles southwest of

the end of Italian Slough, an inlet off Old River. Originally

water exported by the Delta Plant was transported through

an intake channel connecting the Delta Plant with Italian

Slough. The construction of this intake channel required

the State to cut through the levee of the slough. The Delta

Plant presently has seven pumping units with a combined

capacity of 6300 cfs* which lift Delta water into the Cali-

fornia Aqueduct. However, there is room for the installa-

tion of four additional pumping units which would increase

capacity to 10,300 efs,* and it is contemplated that at least

the first of these pumps will be operational by 1980.

In order to obtain the ability to confine pumping to off-

peak electrical hours, the State acquired the Clifton Court

Tract and in December of 1967 commenced construction of

the facility which is an artificial body of water known as

Clifton Court Forebay. Construction of this Forebay in-

volved the excavation of land and the building of dikes or

levees inside the existing levees which shielded Clifton

Court Tract from Italian Slough, West Canal, and Old

River. When the Forebay became operational in November

of 1969, the end of the Italian Slough intake channel was

closed, and the remainder of the channel was connected

to the Forebay, thus creating the intake channel for the

Delta Plant. The Forebay diverts water from the Delta

through an intake structure consisting of five radial gates

which connects the Forebay to West Canal. West Canal in

turn is connected to Old River.

2 Stated in other terms, the Delta Plant currently has the

capacity to pump 12,600 acre-feet of water per day.

4. If a pumping plant pumps at the rate of 1 efs for 24 hours,

it will pump 1.98 acre-feet per day.

10 Appendix

C. The Peripheral Canal

The State of California proposes to finance, construct,

and operate a 42-mile canal, known as the Peripheral Canal,

from a point near Hood, California, on the Sacramento

River to a point near the headworks of Clifton Court Fore-

bay and the intake channel for the Tracy Plant. The Pe-

ripheral Canal is designed to permit the State to transport

high quality fresh water to the Delta and Tracy Plants by

diverting water from a point on the Sacramento River

upstream from both the point of salt water intrusion and

the point where poorer quality water from the San Joaquin

River joins the Sacramento River in order to insure that

saline or poorer quality water from the Delta does not

enter the pumps of the Delta or Tracy Plants. The Periph-

eral Canal is designed to provide sufficient quantities of

water to the Delta and Tracy Plants so as to satisfy the

present and future requirements of the California Water

Project, to provide water quality control, and to improve

fish and wildlife and recreation potentials in the Delta.

As presently proposed, the Peripheral Canal will be 30

feet deep, have a base width of approximately 200 feet,

~ have a top width of between 400 and 500 feet, and have an

anticipated capacity of approximately 23,000 cfs. This max-

imum capacity would be allocated in the following manner:

10,300 efs would be allocated to the State Water Project

facilities served by the Delta Plant, 6,500 efs would be

available to the Federal Central Valley Project,® and 6,000

efs would be available for release into the Delta along the

path of the Peripheral Canal. Although one witness esti-

mated that the entire Peripheral Canal project would cost

$240 million, inflationary forces could easily result in a

much higher cost.

5 It is not clear from the testimony how much of this figure

would be available for pumping through the Tracy Plant.

*>

Appendiz — 11

Il. RIVERS AND HARBORS

ACT OF 1899

A. Private Right of Action

[2-5] In determining whether a private right of action is

implicit in a statute not expressly providing one, four fac-

tors are relevant: (1) Is the plaintiff one of the class for

whose especial benefit the statute was enacted; (2) Is there

any indication of legislative intent, explicit or implicit,

either to create such a remedy or to deny one; (3) Is it con-

sistent with the underlying purposes of the legislative

scheme to imply such a remedy for the plaintiff; and (4) 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, 95 S.Ct. 2080,

45 L.Ed.2d 26 (1975). See Securities Investor Protection

Corp. v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d

263 (1975) ; National Railroad Passenger Corp. v. National

Ass’n of Railroad Passengers, 414 U.S. 453, 457-458, 94 S.Ct.

690, 38 L.Ed.2d 646 (1974) (hereafter Amtrak). But cf.

Stewart v. Travelers Corp., 503 F.2d 108, 110-111 n. 7 (9th

Cir. 1974). Private rights of action are based on a public

policy of allowing injured parties to obtain civil redress for

injuries resulting from the violation of statutorily imposed

duties where the maintenance of such actions would effec-

tuate the purposes intended to be served by the Act and

would not interfere with the operation of the statutory

scheme. While the courts that have considered the issue

have expressed diverse views,® the Court of Appeals in

this Circuit has held sub silentio that a private right of

action exists under Sections 9 and 10. Alameda Conser-

es

6. The Court of Appeals for the Third Circuit has held that

governmental enforcement is exclusive and that Congress did not

12 Appendix

vation Association v. California, 437 F.2d 1087, 1094-1095

(9th Cir. 1971) ; Sierra Club v. Leslie Salt Co., 354 F.Supp.

1099, 1104-1105 (N.D.Cal. 1972). In Alameda Conservation

plaintiffs sought injunctive relief against defendant cor-

poration alleging injury arising out of defendant’s violation

of Sections 9 and 10. The court, after concluding that all of

the individual plaintiffs (but not the association) had stand-

ing to sue, reversed the district cour(’s dismissal. Although

the court did not explicitly discuss the question of whether

a private right of action existed, it would not have reversed

the district court’s dismissal of the action unless it had so

ruled sub silentio.? Moreover, in Cort v. Ash, supra, 95 8.Ct.

ereate any civil cause of action in favor of private parties injured

by any violation of the Act. Red Star Towing and Transportation

Co. v. Department of Transportation, 423 F.2d 104, 106 (3d Cir.

1970). See Hooper v. United States, 331 F.Supp. 1056, 1058 (D.

Conn. 1971). Guthrie v. Alabama By-Products Co., 328 F.Supp.

1140, 1148 (N.D.Ala. 1971), aff’d., 456 F.2d 1294 (5th Cir. 1972),

merely holds that although Section 13 of the Rivers and Harbors

Act may create a federally proteced right against deposit of refuse

which injures navigation or anchorage, the injury of other private

rights, even from deposits in violation of Section 13, does not give

rise to a federal right of action nor does it supply a basis of federal

jurisdiction. The erux of that decision was the court’s belief that

Section 13 was not enacted for the purpose or with the effect of

creating a federal cause of action to protect riparian landowners

from the kinds of water pollution that have traditionally been

dealt with under the law of nuisance. [bid., at 1145. There the court

simply did not find the plaintiffs within the class of persons for

whose benefit the statute was enacted. Bass Anglers Sportsman’s

Society v. Scholze Tannery, Inc., 329 F.Supp. 339, 348-349 (E.D.

Tenn. 1971), and Bass Angler Sportsman Society v. United States

Steel Corp., 324 F.Supp. 412, 416 (N.D.M.D. and S.D.Ala.), aff’d.,

sub nom. Bass Anglers Sportsman Society v. Koppers Co., 447 F.2d

1304 (5th Cir. 1971), at best hold that no private right of action

exists under Section 13 to redress public injuries. In fact, the Fifth

Circuit has held that there exists a private right of action to redress

specific injuries. Neches Canal Co. v. Miller & Vidor Lumber Co.,

24 F.2d 763, 765 (5th Cir. 1928).

7. Standing concerns whether a particular plaintiff is sufficiently

connected with a cause of action to assert rights thereunder in a

legal proceding. Clearly, before a court can rule on the question

of standing, there must be a determination that a private right of

action exists. See Amtrak, supra, 414 U.S. at 456, 94 S.Ct. 690.

Appendix 13

2080, the Supreme Court apparently construed Wyandotte

Transportation Co. v. United States, 389 U.S. 191, 201-202,

88 S.Ct. 379, 19 L.Ed.2d 407 (1967), as recognizing the exist-

ence of a private right of action under the Rivers and Har-

bors Act of 1899, albeit under a different section of the Act.

Finally, analysis of the Rivers and Harbors Act of 189 in

light of Cort v. Ash also leads the Court to conclude that a

private right of action exists under Sections 9 and 10.

[6,7] First, the Court concludes that plaintiffs are mem-

bers of the class for whose especial benefit the statute was

enacted. Sections 9 and 10 were enacted both to prevent

injuries to private parties as a result of obstructions to

navigable capacity which were not authorized by the United

States and to allow the United States to regulate obstruc-

tions to the navigable capacity of its navigable waterways.*

[8,9] Second, the Court concludes that there is no indi-

eation that it was the intent of Congress to preclude a pri-

vate right of action.® In reaching this conclusion, the primary

consideration is the significance of the provisions empower-

ing the Attorney General to enforce the Act in appropriate

8. Prior to its enactment the Supreme Court in Willamette

Iron Bridge Co. v. Hatch, 125 US. 1, 8, 8 S.Ct. 811, 31 L.Ed. 629

(1888), held that there was no common law of the United States

which prohibited obstructions and nuisances in navigable rivers. In

that case a private party had obtained an injunction against the

construction of a bridge over the Willamette River. Because the

Court found that there was no federal common law prohibiting such

a bridge and that the act admitting Oregon into the Union also did

not prohibit such a bridge, it reversed the decision of the trial court

and ordered the suit dismissed. It was in response to this case that

Congress enacted the Rivers and Harbors Act. This Court believes

this is clear evidence that the Rivers and Harbors Act was enacted

to benefit those persons who are specifically injured by an unlawful

obstruction to navigable capacity.

9. The Court notes that it has not found and the parties have not

cited any authorities which indicate a congressional intent to create

a private right of action, with the exception of the above analysis

of Willamette Iron Bridge Co. v. Hatch.

14 Appendix

proceedings. Preliminarily, the Court notes that the doc-

trine of expressio unius est exclusio alterws, recently given

vitality in two United States Supreme Court decisions,

has been held to be inapplicable to the Rivers and Harbors

Act of 1899. Wyandotte Transportation Co. v. United States,

supra, 389 U.S. at 200-204, 88 S.Ct. 379. That being so,

the only question is whether there is anything in the Act

or the statutory scheme which indicates that Congress

intended to vest exclusively in the Attorney General the

enforcement of the Act. Section 12, 33 U.S.C. § 406, makes

violation of Sections 9 and 10 a misdemeanor punishable

by fine or imprisonment and further provides that:

«“* * * the removal of any structures or parts of struc-

tures erected in violation of the provisions of the sai4

sections may be enforced by the injunction of any dis-

trict court exercising jurisdiction in any district *»

which such structures may exist, and proper proceed-

ings to this end may be instituted under the direction

of the Attorney General of the United States.”

This section grants jurisdiction to the district court to en-

force by injunction removal of structures erected in violation

10. In Barbour and Amtrak the court adopted the proposition

that express statutory provision for one form of proceeding ordi-

narily implies that no other means of enforcement was intended by

the legislature. Securities Investor Protection Corp. v. Barbour,

supra, 95 S.Ct. 1733; Amtrak, supra, 411 US. at 458, 94 S.Ct. 690.

The court further stated that that implication would yield, however,

to clear contrary evidence of legislative intent as found in the legis-

lative history and in the overall structure of the Act. This principle

is no barrier in the instant case in view of the holding of the

Supreme Court that the remedies specified in the Rivers and Har-

bors Act of 1899 are not exclusive. See Wynadotte Transportation

Co. v. United States, supra, 389 U.S. at 200-201, 88 S.Ct. 379. In

that ease the court recognized that to limit the government to reme-

dies explicitly authorized under the Act would withhold remedies

that would ensure the effectiveness of the Act. The court was not

prepared to impute to Congress a futility inconsistent with the

great design of the legislation.

Appendix 15

of Sections 9 and 10. It further grants power to the Attorney

General to institute such injunctive proceedings. Neither of

these grants rise to the level of an express prohibition

against private suits. Moreover, the first jurisdictional grant

would seem to encompass all injunctive suits, both private

and governmental. In a case involving a somewhat analogous

statutory scheme, the United States Supreme Court held

that a provision for enforcement by the Attorney General

did not preclude a private right of action. See Allen v.

State Board of Elections, 393 U.S. 544, 554-557, 89 S.Ct.

817, 22 L.Ed.2d 1 (1969). In view of that case and because

the Court believes that a private right of action is neces-

sary to effectuate the purposes intended to be served by

the Act, the Court cannot find, either expressly or implied-

ly, in Section 12 of the Rivers and Harbors Act any ex-

clusive vestment of enforcement powers in the Attorney

General. The Court does note that Section 17 provides,

inter alia, that the Department of Justice “shall conduct

the legal proceedings necessary to enforce” Sections 9 and

11. In Allen v. State Board of Elections, a similar statute was

before the court. There 42 U.S.C. § 1973j(f) provided that the

district courts would have jurisdiction over proceedings brought

pursuant to that section of the Voting Rights Act of 1965. Another

subsection of that same section of the statute provided that the

Attorney General may bring actions for preventive relief whenever

any person engaged in acts prohibited by certain sections of the

Voting Rights Act. 42 U.S.C. § 1973j(d). Notwithstanding this ex-

plicit grant of power to the Attorney General, the court found that

enforcement of the Voting Rights Act was not vested exclusively in

him and held that a private right of action existed under Section 5

of the Voting Rights Act. In the instant case these two grants of

power (i. e., jurisdiction in the district court and power to enforce

on the part of the Attorney General) are found in two separate

clauses in one sentence rather than in two separate subsections of a

statutory provision as in Allen.

16 Appendix

10.2 In light of the language of that entire section, how-

ever, the Court believes that Section 17 merely creates

a duty of enforcement in the Justice Department and vests

exclusive enforcement of the criminal provisions in that

department. Accordingly, the Court concludes that nothing

in the Act precludes private suits to redress injury to pri-

vate persons due to violations of the Act.*

12. Section 17 provides:

“The Department of Justice shall conduct the legal proceed-

ings necessary to enforce the provisions of seetions 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

official 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

such 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 bringing to

punshment of such offenders, the officers and agents of the

United States in charge of river and harbor improvements, 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 with-

out process for any offense not committed 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

ease of crimes against the United States.”’ 33 U.S.C. § 413.

13. The Court agrees that Congress intended to vest exclusive

enforcement in the Attorney General of suits to redress public

injuries due to violations of the Act. In the case of publie injuries,

Congress may have felt that no citizen should substitute his judg-

ment for that of the government as to when the public interest

required civil relief.

Appendix 17

[10] Third, the Court concludes that allowance of a

private right of action where a plaintiff alleges he has

been specifically injured by a violation of Sections 9 and

10 is necessary to effectuate the purposes intended to be

served by the Rivers and Harbors Act of 1899 and hence

is consistent with the underlying purposes of the legislative

scheme. Although the Attorney General can bring civil

suits to redress such injuries, he has neither the time, staff,

nor incentive to see that all injuries caused by violations

of the Act are redressed. As in Allen v. State Board of

Elections, swpra, 393 U.S. 544, 89 S.Ct. 817, implication

of a private right of action is necessary or the Rivers and

Harbors Act of 1899 will become practically unenforceable

against specific injuries to private parties. Accordingly,

the Court concludes that implication of a private right of

action under Sections 9 and 10 would be consistent with

the broad purposes of the Act.”

[11, 12] Finally, although it might be remotely pos-

sible’ for the plaintiffs to bring a common law nuisance

14. The instant case is unlike Barbour where Congress created

a corporate entity to solve a public problem and then provided for

substantial supervision of its operations by an agency charged with

the protection of the public interest (i. e., the S.E.C.). It is also

unlike Amtrak where the legislative intent and the statute itself

clearly indicated that Congress was conferring private right of

action only on a limited class of private parties (1. e., employees who

were the beneficiaries of certain labor agreements). Additionally, by

allowing a private action in Wisconsin v. Illinois, 278 U.S. 367, 49

S.Ct. 163, 73 L.Ed. 426 (1929), albeit by a state, the Supreme Court

has at least sub silentio recognized the existence of a private right of

action under Section 10.

15. It is not at all clear to the Court that a common law nuisance

suit to redress the type of injuries alleged by plaintiffs in the

instant case would be cognizable in state court. Traditionally suits

of this nature could only be brought to redress injuries to property

interests and hence the availability of a common law nuisance suit

may be severely restricted in many cases. W. Prosser, The Law of

Torts, § 89 (4th Ed. 1971). Although California appears to have

adopted a more liberal rule, e. g., 36 Cal.Jur.2d, Nuisances § 30

18 Appendix

suit in state court against the defendants, the Court con-

eludes the instant case is not the type of action which is

traditionally relegated to state law in an area basically

the concern of the states. There is a federal interest in

protecting persons from injuries resulting from unauthor-

ized obstructions to the navigable capacity of navigable

waters of the United States and possible federal intrusion

into the area of state nuisance law is necessary so that

the federal interest asserted here will not be compromised

by contrary state law. Cort v. Ash is distinguishable as

in that case the interest which plaintiff sought to vindicate

(i. e., breach of fiduciary duty by corporate directors aris-

ing out of an uta vires expenditure of corporate funds)

was not the federal interest (7. e., dulling the impact of

corporations on federal elections) which Congress had in-

tended to protect when it enacted the Federal Election

Campaign Act. Cort v. Ash, supra, 95 S.Ct. 2080. Accord-

ingly, the Court concludes that the test established in Cort

v. Ash requires the finding of a private right of action

under Sections 9 and 10 of the Rivers and Harbors Act of

1899.*¢

(1957), which might eonceivedly cover the instant factual situation,

the Court need not determine the scope of California nuisance law,

as the key factor here is that any possible federal intrusion in to the

area of state nuisance law is necessary and proper to vindicate

plaintiffs’ federal rights.

16. Federal defendants’ reliance on Amtrak, supra, 414 U.S. 453,

94 §.Ct. 690, is inapposite. In that case the legislative history ex-

pressed a clear intent to exclude private suits, except as to certain

eases, involving labor agreements where private suits were expressly

authorized. 414 U.S. at 457-465, 94 S.Ct. 690. Nor does Connecticut

Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81 (2d Cir. 1972),

support federal defendants’ position. In that case the court held

an individual may not sue on behalf of the public for general

injuries caused by violations of the Rivers and Harbors Act of 1899.

The court expressly reserved the question decided here, whether a

private claimant specifically injured by a violation may sue for an

injunction or damages. 457 F.2d at 89, 90 n. 16 See James River &

Appendix 19

B. The Merits of the Claim

Plaintiffs’ first claim is that the construction and present

operation of the Tracy and Deltta Plants and the proposed

construction of the Peripheral Canal, in the absence of the

proper authorization, are in violation of Sections 9 and 10

of the Rivers and Harbors Act of 1899. 33 U.S.C. §§ 401,

403. The Court must determine whether the construction

and operation of any of the three strvctures requires

authorization pursuant to Sections 9 and 10, and if such

authorization is or was required as to any of the structures,

whether statutorily sufficient autliorization was obtained.

1. Section 9

Section 9 provides that it shall be unlawful to construct

or commence the construction of any bridge, dam, dike, or

causeway over or in any navigable water until (1) the con-

sent of Congress to such construction has been obtained,

and (2) the plans for such construction have been approved

by the Chief of Engineers and the Secretary of the Army.

That section contains a proviso to the effect that state

authorization may replace Congressional consent in the

ease of waterways whose navigable portions lie wholly

within the boundaries of a single state. However, even in

that case, approvals by the Chief of Engineers and by the

Secretary of the Army are still required.”

Kanawha Canal Parks, Inc. v. Richmond Metropolitan Authority,

359 F.Supp. 611, 638-640 (E.D.Va.), aff’d., 481 F.2d 1280 (4th Cir.

1973), for a well-reasoned decision in support of the result reached

here. Because this action is one brought not on behalf of the public

but rather by private plaintiffs who allege specifie injuries to them-

selves, the Court concludes that a private right of action exists in

the present case.

17. 33 U.S.C. § 401 provides:

“Tt shall not be lawful to construct or commence the con-

struction of any bridge, dam, dike, or causeway over or in any

20 Appendix

[13] With respect to the Peripheral Canal, it is clear

that Section 9 authorization will be required before any

party commences building the Canal as it is presently pro-

posed. At the point where the Canal crosses the Middle

River, the Canal will result in the complete damming of

the river. Furthermore, there is presently no provision for

the passage of boats past the Canal at this location. Such

a closure of the Middle River will constitute the building

of a “dike” within the meaning of Section 9. In Citizens

Committee for the Hudson Valley v. Volpe, 302 F.Supp.

1083, 1089 (S.D.N.Y. 1969), aff’d., 425 F.2d 97 (2d Cir.

1970), the court held that the word “dike” should be defined

in accordance with its ordinary meaning. The court found

that dike meant, inter alia, “[a]n embankment for control-

ling or holding back the waters of the sea or a river”. 302

F.S pp. at 1089. The Court notes that “dam” is defined

as “a barrier preventing the flow of water”. Webster’s

Third New International Dictionary, p. 571 (1971). Hence,

even though the closure of Middle River will be caused by

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 Secretary 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 portions of

which lie wholly within the limits of a single State, provided

the location and plans thereof are submitted 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 ap-

proved 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 modifica-

tion of said plans has previously been submitted to and re-

eeived the approval of the Chief of Engineers and of the

Secretary of the Army.”

Appendix 21

a structure denoted as a “canal”, because that structure

will have the effect of a “dam” or “dike”, the Court finds

that the Peripheral Canal is the type of structure regulated

by Section 9. Because the Peripheral Canal will clearly be

“in” the Middle River, the only issue remaining is whether

Section 9 prohibits any dikes or only those dikes which

obstruct navigation. Although the legislative intent under-

lying the enactment of Section 9 may well have been to

prohibit unreasonable obstructions to navigable waters, it

seems likely that Congress used the word “any” in Section

9 in order to reserve the right to determine whether a given

structure created an unreasonable obstruction. Because the

Peripheral Canal will obstruct nagivation on the Middle

River, however, either construction of Section 9 will include

the Canal within the section’s regulatory prohibitions. Citi-

zens Committee for the Hudson Valley v. Volpe, supra, 302

F.Supp. at 1089. But cf. Petterson v. Resor, 331 F.Supp.

1302, 1306 (D.Ore. 1971).

With regard to the type of authorization required, since

the navigable waters which the Peripheral Canal will ob-

struct are all wholly within California, Congressional con-

sent is not necessary as long as the Canal is authorized by

the California State Legislature. It is not clear to the Court

whether the passage of the Burns-Porter Act constitutes

such authorization, as that Act did not specifically envision

the Peripheral Canal. Because no evidence was adduced at

trial as to whether the legislature has subsequently author-

ized the construction of the Canal, the Court merely holds

that such authorization must be obtained prior to the com-

mencement of construction. Moreover, defendants must ob-

tain a Section 9 permit from the Corps of Engineers and

the Department of the Army prior to construction.

[14,15] With respect to the Delta and Tracy Plants,

plaintiffs argue that various components of these facilities

22 Appendix

constitute the type of structures regulated by Section 9.

Most of these components, however, are clearly not “over

or in” any of the navigable waters in question, and those

few components which arguably are “over or in” navigable

waters are not the type of structure regulated by Section 9.

Both of the main pumping plants of the Tracy and Delta

Plants are at least two miles distant from any navigable

waters and are connected thereto only through the con-

struction of certain man-made inlet channels. The only

components which would be said to be “over or in” navi-

gable waters are the headworks and fish protective facilities

of the Tracy Plant.’® However, these components are not

a “bridge, dam, dike, or causeway”.® Accordingly, neither

the construction of the Tracy or Delta Plants nor of any

of their component structures was unlawful with respect

to Section 9.

18. The headworks and fish protective facilities of the Delta

Plant are not “over or in” navigable water because they are set

back on a small inlet constructed by the state defendants off West

Canal.

19. The Court need not decide whether the Tracy Plant head-

works or fish protective facility is “over or in” navigable waters, as

neither structure fits within the definitions of any of the structures

enumerated in Section 9. Clearly neither is either a “dam” or a

“dike” as defined, supra, since neither is “an embankment for con-

trolling or holding back the waters of the sea or a river”’ or is “a

barrier preventing the flow of water”. They also are not causeways,

as neither is “a raised road across water or marshy land with water

or marshy land on both sides of the road”. Citizens Committee for

the Hudson Valley v. Volpe, supra, 302 F.Supp. at 1089. Finally,

neither structure is a bridge as neither is “a structure erected over

a depression or obstacle to travel (as a river, chasm, roadway, or

railroad) carrying a continuous pathway or roadway (as for

pedestrians, automobiles, or trains).’’ Webster’s Third New Inter-

national Dictionary, p. 276 (1971). The scope of Section 10 of the

Rivers and Harbors Act of 1899 is substantially broader than the

proseriptions of Section 9 as the latter section regulates only several

specific types of structures while the former section utilizes very

general language so as to include within its proseriptions both

certain specific structures and any structure which has the effect of

obstructing navigable capacity.

Appendix 23

2. Section 10 |

Section 10 contains three proscriptive clauses. The first

clause prohibits the creation of any obstruction to navigable

capakity not affirmatively authorized by Congress. The sec-

ond clause makes it unlawful to build or commence the

building of certain structures except on plans recommended

Na the Chief of Kngineers and authorized by the Secretary

of the Army. Finally, the third clause makes it unlawful

to alter or modify in any manner the condition or capacity

of the channel of any navigable water unless such altera-

tions or modifications are recommended by the Chief of

Engineers and authorized by the Secretary of the Army

prior to beginning the same.”

a. Scope of Section 10

[16-19] In determining whether Section 10 requires

authorization of the three structures involved in this case,

the Court confronts two threshold questions concerning

the coverage of that section. First, defendants contend that

because certain of these structures are not located over or

20. 33 U.S.C. § 403 provides:

“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, 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 maner 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 or any navigable

water of the United States, unless the work has been recom-

mended by the Chief of Engineers and authorized by the Seere-

tary of the Army prior to beginning the same.”

“"

24 Appendix

in any navigable water, they are not within the ambit of

Section 10. This contention is without merit. It is clearly

established that Section 10 does not require the existence

of an obstruction over or in navigable waters. United States

v. Republic Steel Corp., 362 U.S. 482, 486, 80 S.Ct. 884, 4

L.Ed.2d 903 (1960); United States v. Rio Grande Dam &

Irrigation Co., 174 U.S. 690, 708, 19 S.Ct, 770, 43 L.Ed. 1136

(1899). See Wisconsin v. Illinois, supra, 278 U.S. 367, 49

S.Ct. 163; Sanitary District of Chicago v. United States,

266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925). In Republic

Steel the obstruction to navigable capacity was caused by

defendant’s dumping of industrial solids into a river. In

Wisconsin v. Illinois and in Sanitary District of Chicago,

the obstruction consisted of a lowering of the water level

of Lake Michigan as the result of the diversion of lake

water through the Chicago River Drainage Canal. Finally,

in Rio Grande the obstruction was caused by a dam in a

portion of a nonnavigable waterway which fed into the

navigable waters in question. Defendants’ contention that

Section 10 is inapplicable to the instant case because both

the Delta and Tracy Plants are approximately two miles

from navigable waters is untenable if these structures in

fact create obstructions to navigable capacity. The test of

whether a Section 10 permit is required for a particular

project is not wholly dependent upon the location of specific

structures but looks also to the operational effect of the

project. It is not only the physical structure of the Delta

Plant, the Tracy Plant, or the Peripheral Canal which is

significant but also the operation of these structures.”’ If

91. As far as the Peripheral Canal is eoneerned, it is not clear

whether the necessity to obtain authorization under Section 9 pre-

empts the need for Section 10 approval. See pp. 626-627, supra. It

is the opinion of the Court that no such preemption automatically

occurs. The two sections deal with different although possibly related

Appendix 25

the functional effect of these structures is to obstruct navi-

gable capacity in the Delta, then Section 10 approval will

be required.

(20, 21] Second, defendants contend that in order to

establish a violation of Section 10, plaintiffs have to prove

that the actions in question actually affect navigation. Yet

the plain wording of the statute is directly at odds with

such a construction. Moreover, Section 9 demonstrates that

Congress must have been aware of the difference between

obstructions to navigation and obstructions to navigable

capacity. Although research has not revealed any case

which is dispositive of this question,” the Court concludes

problems and therefore satisfactory resolution of one would not

necessarily imply adequate resolution of the other. More specifically,

the consequences of the damming of Middle River may be different

and are more or less independent from those which arise due to the

diversion of water from the Sacramento River. Clearly, however,

defendants are not precluded from seeking and obtaining Section 9

and 10 authorization from the Secretary of the Army in one pro-

ceeding or one permit application.

92. The principal Section 10 cases are not dispositive of this

question. Because the findings of fact of the lower court are not

reported in Sanitary District of Chicago, it is not clear whether

the plaintiff in that case introduced any evidence of effects on navi-

gation caused by the diversion of water from Lake Michigan. There

were apparently no witnesses at trial who testified that they actually

observed the lowering of the Lake Michigan water level. 266 U.S.

at 412, 45 S.Ct. 176. Plaintiff apparently relied on the analyses of

expert witnesses. Ibid. The court also found that in 1913 the Secre-

tary of War reviewed the Chicago Drainage Canal diversions, in-

eluding “the obvious fact that so large a withdrawal would lower

the levels of the Lakes and the overwhelming evidence that it would

affect navigation”. However, there is no indication that any of this

evidence was adduced at trial. Zbid. at 430, 45 S.Ct. at 180. There

is language in the opinion which strongly indicates that plaintiffs

here need not prove a present effect on navigation. The court stated :

“Byidence 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

26 Appendix

that once there is a finding that the obstruction in question

has a substantial effect on navigable capacity, it is not

necessary to prove that on specific occasions the obstruction

precluded or limited navigation on the waterway in ques-

tion by specific vessels. Obstructions to navigation differ

from obstructions to navigable capacity. The former de-

notes the actuai, present obstruction of navigation while

the latter denotes the potential or capacity to obstruct

navigation currently or in the future. Proof of the former

requires a showing that navigation by specific vessels is

presently obstructed while proof of the latter only requires

a showing that a condition exists which would obstruct

navigation over the waterway if it existed. In the latter

case all that is required is proof of the condition which

ereates the obstruction which has a substantial effect on

the United States, even were there no international covenant in

the ease.” Ibid. at 426, 45 S.Ct. at 179.

Additionally, it is relevant to contrast the extent of the diversions

in that ease with those in the instant case. In Sanitary District of

Chicago, the United States sought to enjoin any diversion of water

from Lake Michigan in excess of 4,166 efs (250,000 eubie feet per

minute) while in the instant ease the present combined water diver-

sion of the Delta and Tracy Plants is 10,900 efs. Also, Lake Michi-

gan which has a surface area in excess of 20,000 square miles is a

substantially larger body of water than those navigable waters in

the Delta out of which the Tracy and Delta Plants will divert water.

While the court in Wisconsin v. Illinois, supra, 278 U.S. at 407-409,

49 §.Ct. 163, expressly found that the Chicago Drainage Canal had

an adverse effect on navigation resulting in the loss of 3,346,000 ton

miles of water haul on the Great Lakes, it also found that the opera-

tion of that canal lowered the water level in four of the Great Lakes

by between approximately five and six inches. Finally, in United

States v. Republic Steel Corp., supra, 362 U.S. at 489, 80 S.Ct. 884,

the court reasoned that if the lowering of the water level could

constitute an obstruction to navigable capacity, as in Sanitary Dis-

trict of Chicago, then the deposit of industrial solids in a navigable

river resulting in a decrease in the water depth in that river also

constituted an obstruction to navigable capacity. However, the court

in Republic Steel Corp. did note the shallower water would affect

navigation.

Appendix 27

navigable capacity. Once plaintiffs prove this fact, it is

immaterial that they do not prove that navigation by spe-

cifie vessels on the waterway in question is presently ob-

structed.

[22, 23] Under Section 10 therefore, the question be-

fore the Court with respect to each of the three structures

involved in this case is whether the structure itself or its

operational effect is an obstruction to the navigable capac-

ity of any navigable water. The Supreme Court has de-

fined “obstruction to the navigable capacity” to mean to

interfere with or diminish the navigable capacity of the

waterway in question.” United States v. Rio Grande Dam

é Irrigation Co., supra, 174 U.S. at 709, 19 S.Ct. 770. Fur-

thermore, whether construction and operation of a par-

ticular facility creates an obstruction to navigable capacity

is a question of fact. United States v. Rio Grande Dam &

Irrigation Co., supra, 174 U.S. at 709, 19 S.Ct. 770."

Turning first to the Tracy Plant, the evidence adduced

at trial establishes that the operation of the facility has

two major effects on water in the Delta: (1) It tends to

lower the water levels in the Delta, and (2) It causes net

flow reversals2® Between 1945 and 1949 the Bureau of

23. Navigable capacity means the capacity for navigation over

any part of the waters in question when in their normal condition.

Hubbard v. Fort, 188 F. 987, 996 (C.C.D. N.J.1911).

94. In that ease the court stated that not every appropriation of

the upper waters of a navigable stream would constitute an obstrue-

tion to navigable capacity, but rather that the test was whether any

such appropriation substantially interfered with navigable capacity

within the limits where navigation was a recognized fact.

25. Because the Delta is directly affected by the Golden Gate

tidal eyele, water in the Delta channels and rivers tends to flow both

up channel and down channel during the tidal eyele. However, for

any given tidal cycle there is a greater volume of flow in one direc-

tion and the amount of this excess is the net flow. A net flow reversal

oceurs when the net flow for a given tidal cycle is in a different

direction than the normal direction.

28 Appendix

Reclamation conducted a study of the effect on Delta water

levels of export pumping by the Tracy Plant. The study

concluded that with a low flow* in the San Joaquin River

and with the Tracy Plant pumping at the rate of 4600 cfs,

the Delta water level in the vicinity of Clifton Court Ferry

would be lowered approximately four inches, while there

would be no measurable change in the Delta water level

near the Stockton ship channel. This study utilized a hy-

draulic and mathematical model and was not based on

actual data since the Tracy Plant was not in operation

at that time. In 1968 further studies of the effect of the

Tracy Plant pumping on Delta water levels were con-

ducted by varying the pumping rates and measuring the

actual effect on water levels at various points in the Delta.

One study concluded that Delta water levels near the june-

tion between the inlet channel and Old River would be

lowered by 1/10 of a foot per 1,000 efs pumped, and that

Delta water levels would be lowered by decreasing amounts

per 1,000 cfs in proportion to the distance from the Tracy

Plant. Export pumping effects were measurable as far

away as the San Joaquin and Sacramento Rivers. Further-

more, a preliminary draft, subject to review, of the State’s

Environmental Impact Report (Plaintiffs’ Exhibit 17),

predicted that at a future export rate of 15,000 efs, water

levels near the San Joaquin River®? could be lowered as

much as 114 feet at low tide.”

96. Low flow was defined in the study as the worst condition

that could occur.

97. However, at trial, Gerald Cox, a civil engineer with the

Department of Water Resourees testified that the preliminary draft

was inaccurate in that the point referred to was actually at Clifton

Court Ferry which he felt was some distance from the San Joaquin

River.

28. The data from part of the 1968 studies reflects the effect on

Delta water levels from the combined export pumping of both the

Tracey and Delta Plants. However, part of the study isolated the

effects attributable to the Tracy Plant and reached almost the

exact same results as the 1945-1949 study.

Appendix 29

The evidence also established that the operation of the

Tracy Plant has caused a greater flow of San Joaquin

River water into Old River toward the Tracy Plant than

occurred under pre-Tracy Plant conditions, and during

summer periods of low flow in the San Joaquin, there can

be a net reversal in the flow of the San Joaquin River

between San Andreas Landing and Old River. Addition-

ally, operation of the Tracy Plant in conjunction with the

Delta Cross Channel also draws water from the Sacra-

mento River on the edge of the Delta to the interior Delta

and to the export pumps.

Similarly, the operation of the Delta Plant tends to

lower water levels in the Delta region and to cause net

flow reversals. Prior to the construction of Clifton Court

Forebay, the Delta Plant operations resulted in lowered

water levels in Italian Slough and caused bank erosion

problems due to the increased speed of flow. A test con-

ducted by the State in August and September of 1968

indicated that an increase in pumping by 6100 efs by both

the Delta and Tracy Plants resulted in a lowering of the

water level in Italian Slough by 6/10 of a foot. Subsequent

tests indicated that diversions of water into Clifton Court

Forebay would have an even greater effect on water levels

in the Delta. Combined diversions by the Forebay intake

facility and the Tracy Plant between 9600 and 12,000 cfs

during both high high and low high tides resulted in a low-

ering of the water level at Clifton Court Ferry by 1 to

11% feet and a lowering at Rindge Pump (located on the San

Joaquin River) of just under 1/10 of a foot.2° While there

29. Throughout this most recent test in May of 1974, the Tracy

Plant operated at close to its maximum pumping capacity. Hence,

the test results would seem to reflect only those changes in the water

level due to the Delta Plant diversions.

30 Appendix

may be some question as to the accuracy of these figures,

they are found to be the minimum effect on Delta water

levels of water diversions by the Forebay and the Tracy

Plant® since they were offered by the state defendants.

It is quite conceivable that the effects could be greater

and it is highly probable if not certain that an expanded

pumping capacity would result in even greater effects.

The operation of the Delta Plant has caused net flow

reversals in the San Joaquin River during some summer

months, and during most of the year in the Old and Middle

Rivers. The state defendants marked for identification a

chart which cpparently illustrated some specific effects

on flow reversals as a result of export pumping by the

Delta and Tracy Plants. This exhibit was not introduced

into evidence, and hence there is no detailed evidence of

the magnitude of net flow reversals caused by export pump-

ing. There was, however, testimony from which it can be

inferred that operation of the Clifton Court Forebay intake

facility has the potential to affect water velocities signifi-

cantly in nearby channels.” Finally, a preliminary draft

subject to revision, of the State’s Environmental Impact

Report on the Peripheral Canal contained statements from

which the Court could infer that Delta export pumping

30. During the trial Dr. James A. Harder, an expert witness

for the state defendants, stated unequivocally that if the Clifton

Court Forebay radial gates were operated wide at low low tides,

and the water level of the Forebay was lower than that at Clifton

Court Ferry, then the water level outside the Forebay would be

lowered.

31. There was testimony that the operation of the Clifton Court

Forebay radial gates was limited by the state defendants so that

the water velocity in the nearby channels would not exceed 3 feet

per second. The reason for this operational limitation was to prevent

bedload movement in the adjacent channels. Bedload movement is

the movement of the bottom sands of the channel due to high water

velocity.

Appendix 31

through the Tracy and Delta Plants caused the Old and

Middle Rivers to flow upstream occasionally at Bacon Is-

land and caused the San Joaquin River to flow upstream

occasionally below the head of Old River.

With respect to the proposed operation of the Peripheral

Canal, the evidence established that there would be sig-

nificant effects on the velocity and water level of the Sac-

ramento River. If constructed, the Peripheral Canal will

divert waters from the Sacramento River near Hood, Cali-

fornia. The rate of flow of water in the Sacramento River

at that location varies between 10,000 cfs and 100,000 cfs.

Donn J. Stafford, a civil engineer with the Department of

Water Resources, testified that at various times during the

year the Canal would divert significantly more than 50%

of the Sacramento River flow and at times could divert as

much as 80% of that flow. It also appeared that diversion

would decrease the velocity and lower the water level of

the Sacramento River downstream from the Peripheral

Canal intake. Finally, the Canal would result in the closure

or modification of a number of rivers and sloughs in the

Delta including the complete damming of the Middle River.

With respect to the Middle River closure, no provision has

been made for the passage of boats past this point on the

River.

[24] Insum, with respect to the Delta and Tracy Plants

the evidence adduced at trial was clear and convincing 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 minimis exception

established by Rio Grande. Because there was evidence that

the water level would be lowered at least one to 11% feet

32 Appendix

in.the vicinity of Clifton Court Ferry, the Court will not

decide whether the smaller effects (i. e., several inches) at

locations considerably more distant from the pumping

plants, standing alone, would constitute a sufficient obstruc-

tion to navigable capacity so as to require Section 10

approval.

[25] With respect to the Peripheral Canal, the evidence

regarding the anticipated effects on navigable capacity was

even less precise with respect to magnitude but equally

convincing that the effect would be substantial. It was clear

that at various times throughout the year the Peripheral

Canal would divert substantial amounts of water from the

Sacramento River in the vicinity of Hood, California, and

that these diversions would both lower the water levels

and decrease water velocities downstream from the intake

facility.

Accordingly, the Court concludes that the operation of

the Tracy and Delta Plants presently obstructs the navi-

gable capacity of various navigable waters in the Delta.”

The Court further concludes that as presently proposed,

the Peripheral Canal will also result in an obstruction to

navigable capacity of the Sacramento River. More specifi-

cally, the Court finds that, in the case of each of the three

facilities, the obstruction is the result of the modification

or alteration of the condition or capacity of the channel

of navigable water of the United States and hence is gov-

erned by the third clause of Section 10.

39. The operation of the Delta and Tracy Plants results in the

obstruction of the navigable capacity of Old River, which is a

navigable water of the United States. Since obstruction of the

navigable capacity of this river suffices to bring the Tracy and Delta

Plants within the seope of Section 10, the Court need not decide to

what extent diversions by the Tracy and Delta Plants obstruct the

navigable capacities of sloughs, canals, and other rivers in the Delta.

Appendix 33

b. Authorization under Section 10

[26] Since Section 10 requires that authorization be

obtained for the construction and operation of the Tracy

and Delta Plants and the proposed construction and oper-

ation of the Peripheral Canal, the Court now turns to the

question whether any of these facilities has been properly

authorized. Although the statute itself is somewhat unclear

as to what constitutes proper authorization, in a case such

as the instant one governed by the third clause, the United

States Supreme Court definitely resolved this ambiguity

in the landmark case of Wisconsin v. Illinois, supra, 278

U.S. 367, 49 S.Ct. 163. The Court held in that case that

congressional authorization was not necessary for obstruc-

tions within the purview of the second and third clauses

of Section 10 and that those obstructions need only be

recommended by the Chief of Engineers and authorized

by the Secretary of the Army.* 278 U.S. at 412-413, 49 S.Ct.

163. While congressional consent is an alternative, it is

not necessary for obstructions falling within the second

and third clauses of Section 10 if the approval of the Sec-

retary of the Army is obtained.

Accordingly, the Court addresses the question whether

any of the three facilities has been authorized by Congress

or by the Secretary of the Army upon recommendation

by the Chief of Engineers. With respect to the Peripheral

—

33. The main problem is interpreting the interrelationship of

the three clauses in Section 10. These could be read as three inde-

pendent prohibitions prescribing three different and mutually ex-

elusive types of obstructions. However, in one early ease, a lower

court held that congressional consent was mandatory as to each type

of obstruction and that clauses two and three were merely delega-

tions to the Secretary of the Army of a supervisory power over the

character and performance of the proposed construction where the

work in question was of the specific type described in those clauses.

Hubbard v. Fort, supra, 188 F. at 997. That position was expressly

overruled in Wisconsin v. Illinois, swpra, 278 U.S. at 412-413, 49

S.Ct. 163.

34 Appendix

Canal, defendants make no contention that such authoriza-

tion has been obtained.* With respect to the authorization

of the Delta and Tracy Plants, defendants have made three

basic contentions regarding authorization: (1) that various

Section 10 permits which have been issued over the years

authorize the facilities, (2) that approval of the navigation

aspects of the subject matter of FPC license application

No. 2426 by the Secretary of the Army and the Chief of

Engineers eliminates the need for Section 10 approval,

and (3) that any number of congressional acts (mostly

appropriation acts) constitute congressional consent pur-

suant to clause one of Section 10. For the reasons set forth

below, the Court disagrees with all three contentions and,

accordingly, finds the construction and operation of the

Tracy and Delta Plants without the required authorization

to be unlawfu!.

i. Section 10 Permits

[27,28] The federal defendants contend that the Sec-

retary of War approved the Tracy Plant in a letter to the

Secretary of Interior dated February 195, 1946. At the trial

that letter was never offered as an exhibit and although the

federal defendants never abandoned this contention, they

did not provide the Court with a copy. The Court, taking

judicial notice of the letter which is contained in 8.Doe.

No. 113, 81st Cong., Ist Sess. 275 (1949), obtained a copy

of the letter from the Public Library. An examination of

this letter revealed that its subject matter basically con-

cerned a jurisdictional dispute between the Department

of Interior and the Department of War over the construc-

tion and operation of reservoir projects in the Sacramento-

34. With respect to the Peripheral Canal, it is conceded that its

construction will require authorization under Sections 9 and 10 of

the Rivers and Harbors Act of 1899. For the reasons set forth

herein, a permit under Section 10 will likewise be required for its

operation.

.

Appendix 35

San Joaquin Basin. Nowhere in the letter was the Tracy

Plant specifically mentioned. The only tenuous connection

between the Tracy Plant and the letter is that the Tracy

Plant was part of the broad plan for the Central Valley

Basin referred to in the letter. The letter on its face char-

acterizes itself as the views and recommendations of the

War Department on the Bureau of Reclamation’s report

on the Central Valley Basin pursuant to Section 1 of the

Flood Control Act approved December 22, 1944. Addition-

ally, this letter does not rise to the level of formality of

the other Section 10 permits introduced into evidence. Not

only does this ietter not constitute a Section 10 permit, it

is clear that it does not even constitute approval of the

Tracy Plant.

[29] The federal defendants next contend that in any

event in 1955 the Bureau of Reclamation applied for and

received a permit to construct fish collecting facilities and

headworks at the junction of the Old River and the Tracy

Plant intake channel, and that this permit constitutes Sec-

tion 10 authorization. However, the narrow scope of that

permit simply does not support such a contention. It pro-

vided specifically that “[t]he structures and work shown on

the drawings hereto attached and presented in your letter

dated 25 August 1955, for construction of headworks and

fish collecting facilities at the junction of Old River and

the Delta-Mendota Canal, Contra Costa County, California,

have been recommended by the Chief of Engineers and are

authorized by the Secretary of the Army.” See Plaintiffs’

Exhibit 22. In this permit no mention is made of the other

structures (i. e., the pumping plant) or of the operation

of those facilities. The limited scope of the permit is also

reflected in the Bureau of Reclamation’s application. That

application describes the proposed construction of the head-

works and fish collecting facilities. It specifically states that

36 Appendix

“Tr]equest is hereby made for a permit for the Bureau of

Reclamation to construct the headworks and fish collecting

facilities in accordance with the above data and drawings.”

See Plaintiffs’ Exhibit 22. Additionally, in the application,

the Bureau of Reclamation states that it is not sure whether

“a permit from you will be necessary to perform this par-

ticular work” (emphasis supplied), but is submitting one

anyway so that the Corps can make the determination. See

Plaintiffs’ Exhibit 22.

The state defendants contend that various Section 10

permits issued with respect to certain components of the

Delta Plant constitute authorization under Section 10 of the

construction and operation of the entire Delta Plant and

not merely the specific components. The Department of

Water Resources at no time applied for a permit from the

Chief of Engineers or the Secretary of the Army pursuant

to Sections 9 and 10 of the Rivers and Harbors Act of 1899

with respect to the construction of the Delta Plant or its

original intake channel. It did, however, apply for several

Section 10 permits in conjunction with the construction of

Clifton Court Forebay. On June 28, 1966, the Department

of Water Resources applied for a Section 10 permit author-

izing it to build a permanent dike across Italian Slough

approximately one mile southwest of Old River. Although

the Corps issued such a permit (#4014) on February 10,

1967, the Department of Water Resources abandoned its

plan and instead built a closure dike at the junction between

the original intake channel and Italian Slough.*® On Feb-

ruary 24, 1967, the Corps issued a permit (#4006) author-

35. It should be noted that the Department of Water Resources

never received a permit to construct this dike. However, in its

application for a permit to construct the Clifton Court Forebay inlet

control structure, see infra, the Department did state that “|w]hen

the forebay becomes operational, we will close our present inlet

structure by replacing a section of the Italian Slough levee.” See

Plaintiffs’ Exhibit 25.

Appendix 37

izing the construction and maintenance of a water quality

monitoring recorder station in Old River at Clifton Court

Forebay. On May 3, 1967, the Department of Water

Resources applied for a Section 10 permit to cut the westerly

levee of West Canal and Old River in order to build an

inlet control structure for Clifton Court Forebay. Sub-

sequently, permit #4101 was issued on June 15, 1967,

authorizing the cutting of the westerly levee of West Canal.

Finally, on June 17, 1969, the Corps of Engineers issued

permit #4410 authorizing the Department of Water

Resources to install velocity meters and bury armored

cables five feet deep in West Canal. That permit contained

a condition requiring the Department of Water Resources

to comply promptly with regulations of the Federal Water

Pollution Control Administration and/or the state water

pollution control agency having jurisdiction.

(30, 31] The Court finds that these permits do not con-

stitute Section 10 authorization. These permits authorized

only the specific construction work described in the applica-

tions and not the construction of the entire pumping plant

facilities. It is insufficient to assert that because the Corps

of Engineers was a member of the Interagency Delta Com-

mittee and a participant in other studies of Delta water

problems, it must have had constructive knowledge of the

entire facility, and consequently that approval of the com-

ponents must be deemed approval of the whole facility.

There is no direct evidence from the particular permit files

that the Corps was approving the entire facility when it

approved the various components.” Even assuming strong

circumstantial evidence of constructive knowledge, this evi-

dence would not constitute approval of the construction of

the facilities. The fact that the Corps had knowledge of the

36. See Plaintiffs’ Exhibits 22, 22A, 23, 24, 924A, 25, 25A; State

Defendants’ Exhibit 11.

38 Appendix

Delta Plant does not imfily that it approved the Delta Plant.

Additionally, it is clear that all of these permits were

obtained after construction had commenced, Even if the

Court believed that these permits authorized the construc-

tion of the Delta Plant, it is clear that they do not authorize

the operation of that facility. Because of the clear adverse

effects on navigable capacity and the possihie adverse

environmetal effect of export pumping under certain factual

situations, it is inconceivable that the Corps of Engineers

would have granted any permits without incorporating

certain conditions of operation therein, and without append-

ing in its files a sufficient factual record to show the type of

consideration required by the Rivers and Harbors Act of

1899 and the various environmental statutes then in effect.**

The Department of Water Resources recognizes certain

adverse effects of the Delta Plant diversions, and it has an

operational policy of never opening the Forebay radial gates

during the three-hour period before and after low low

tide. Additionally, it operates those radial gates so as never

to allow the water velocity in the nearby channels to exceed

three feet per second. In the absence of a clear showing

that the Corps was in fact approving the operations of

these facilities, the Court is compelled to find no authoriza-

tion through the Section 10 permit procedure. It seems

most likely that the Corps misconstrued the scope of Sec-

tion 10’s coverage.**

37. For instance, the permits might have limited export pump-

ing to certain levels during the dry parts of the year and during

certain parts of the tidal cycle.

38 In considering an application for a Section 10 permit, the

Secretary of the Army and the Chief of Engineers must weigh the

conservation effects of the subject matter of the application. Zabel v.

Tabb, 430 F.2d 199, 213 (5th Cir. 1970), cert. denied, 401 U.S. 910,

91 S.Ct. 873, 27 L.Ed.2d 808 (1971). Moreover, the Secretary of the

Army can refuse to issue a Section 10 permit on conservation

grounds. 430 F.2d at 214.

Appendix 39

ii. The FPC License

The state defendants next contend that approval by the

Corps of Engineers of the navigational aspects of the sub-

ject matter underlying FPC license application No. 2426

constituted Section 10 approval or eliminated the need to

obtain Section 10 approval. In December of 1965 the state

applied for a Federal Power Commission licetse for the

California Aqueduct and certain other structures, some of

which were power related. Among the structures included

in the application were the Delta Plant and its appurtenant

structures and the Clifton Court Forebay. FPC procedures

required the administrative law judge to submit the applica-

tion to the Corps of Engineers for approval of all naviga-

tional aspects of the Project. See 16 U.S.C. § 797(e).

Although the Corps sent approval in the form of a letter

dated May 18, 1966, there is no evidence that the Corps

gave consideration either to environmental factors or to the

effect on navigation of water diversions (7. @., by causing

changes in water levels and net flow reversals). Although

the administrative law judge eventually authorized the

license, the FPC reviewed his decision and confined the

jurisdiction of the license to those portions of the project

involving power facilities, all of which are in Southern

California. Department of Water Resources, FPC Opinion

No. 688 (February 6, 1974).*

[32] The Court finds the state defendants’ contentions

with respect to FPC license application No. 2426 unfounded.

It is not entirely clear to what extent FPC jurisdiction and

regulation preempts regulations by Sections 9 and 10 of

39. The Court notes that the FPC also remanded the license

proceeding to the administrative law judge in order to comply with

the NEPA procedures outlined in Greene County Planning Board

v. Federal Power Commission, 455 F.2d 412 (2d Cir. 1972).

40 Appendix

the Rivers and Harbors Act of 1899. One court has held

that no Section 10 permit is required for the construction

of a hydroelectric plant licensed by the FPC. Scenic Hudson

Preservation Conference v. Callaway, 370 F.Supp. 162, 167

(S.D.N.Y. 1973) aff’d., 499 F.2d 127 (2d Cir. 1974). The

Court does not believe that the decision was intended to

allow back-door approval of any structure however remotely

related to the basic power project. In Scenic Hudson the

court limited its holding to the hydroelectric plant. In the

instant case the FPC restricted its jurisdiction to those

portions of the project involving power facilities and hence

Scenic Hudson is unhelpful to the state defendants. The

rationale underlying Scenic Hudson is that there should

be one centralized procedure to obtain federal approval of

power projects. Its purpose was not to grant an applicant

blanket approval for any and all facilities which he

described in his license application. Additionally, it is no

assistance to state defendants that the Corps sent its letter

of approval prior to the FPC’s jurisdictional decision. It

is quite possible that the Corps felt it was granting approval

only to those structures over which the FPC eventually

asserted jurisdiction. Also, because the Corps’ letter was

dated May 18, 1966, and because the state’s FPC license

application was not amended to include the Clifton Court

Forebay until July 10, 1967, it is clear that the May 18th

letter did not take into account the Clifton Court Forebay.*

Nowithstanding Scenic Hudson, because the Delta Plant

will not be within the jurisdiction of any subsequently issued

FPC license No. 2426, the Court must independently assess

40. In the Agreed Pre-Trial Order the state defendants con-

tended that there was a second letter from the Corps to the FPC

dated January 25, 1968. See Agreed Pre-Trial Order, § 4.5.2. Al-

though that letter was introduced into evidence, it did not in any

way indicate approval of the navigational aspects of the project.

Appendix 41

the May 18th letter and determine whether that constituted

Section 10 authorization of the operation of the Delta Plant.

The Court concludes that the Corps never seriously took

under consideration the effect of water diversions by the

Delta Plant when it sent its letter of approval. The letter

itself states that “[t]he plans of the structures affecting

navigation are satisfactory”. This language tends to indicate

that if the Corps gave consideration to anything, it was

the structures themselves and not the operation of those

structures. In the absence of a clear showing that the Corps

intended their letter to serve as a Section 10 approval for

the Delta Plant, the Court refuses to so construe it.

iii. Congressional Authorization

[33] The Court also concludes that Congress did not

affirmatively authorize any of the facilities in question.

Defendants coneede that they have obtained no congres-

sional approval of the Peripheral Canal. The federal defend-

ants contend, however, that certain acts of Congress

(including, inter alia, appropriation acts) constituted con-

sent to the Tracy Plant. Without specifically discussing

each individual act, the Court makes the following observa-

tions. The initial authorization to create an obstruction

must rest on express and not implied congressional author-

ity. Cf. Hubbard v. Fort, supra, 188 F. at 996. The approval

or funding of a facility does not compromise Congress’s

right to control its operation. Sanitary District of Chicago

v. United States, supra, 266 U.S. at 428, 45 S.Ct 176.

[34, 35] In the instant case none of the acts in question

either contain sufficiently explicit language or are accom-

panied by a legislative history clearly manifesting approval

of the facilities for the purpose of Section 10. For the most

part these acts do not even refer specifically to the pump-

ing plant but rather are very general approvals of the Cen-

42 Appendix

tral Valley Project or the San Luis Unit.“ All Congress

did was authorize the construction of those projects and

appropriate funds for them. Congress did not, however,

agree to relinquish its Section 10 responsibilities or exercise

this power in any respect. Even if Congress had gone so

41. In the Act authorizing the construction of the San Luis Unit

of the Central Valley Project, Congress imposed certain restrictions

on the operation of that unit. Public Law 86-488, 74 Stat. 156.

Specifically Section 4 of that Act purportedly limited the daily

diversion from the Delta via the Tracy Plant under certain condi-

tions. Even if this section were effective, it does not constitute

congressional consent. The Act authorized the San Luis Unit (con-

sisting of, inter alia, the San Luis Dam, the San Luis Reservoir,

the San Luis Forebay (O’Neil Forebay), and the San Luis Canal

(California Aqueduct) ) and not the Tracy Plant which was already

in operation. The fact that Congress places certain limitations on

the operation of an already existing facility does not, standing alone,

constitute Section 10 authorization, for the already existing facility.

Section 4 would be just as consistent with an intent to require the

diversion of high quality water as it would with an intent to solve

navigational and environmental problems in the Delta. Moreover,

that section may not be effective, since it appears to be conditioned

upon the operation of the San Luis works solely as a federal project.

The San Luis works are joint use facilities of the state and federal

governments. See Agreed Pre-Trial Order, § 3.22. Further, this Act

was enacted several years after the commencement of the operation

of the Tracy Plant, and hence even if it were intended as Con-

gressional consent, the original construction and operation of the

Tracy Plant were unlawful.

42. In Sanitary District the Secretary of War had turned down

the defendants’ Section 10 permit application. Defendants had

argued that a prior congressional act granting land to the State of

Tllinois for a canal to unite the waters of the Illinois River with

those of Lake Michigan constituted authorization. The Court re-

jected their contention stating that:

“The act granted land to Illinois in aid of a canal to be opened

by the State for the purpose of uniting the waters of the

lilinois River with those of Lake Michigan, but if it has any

bearing on the present case it certainly vested no irrevocable

discretion in the State with regard to the amount of water to

be withdrawn from the Lake. It said nothing on that subject.

We repeat that we assume that the United States desires to see

the canal maintained and therefore pass by as immaterial ail

evidence of its having fostered the work. Even if it had

approved the very size and shape of the ehannel by act of

Appendix 43

far as specifically to .und the construction of the Tracy

Plant precisely as it stands today, this fact would not con-

stitute authorization to operate it, as before operation

occurred, either Congress or the Corps of Engineers would

have to consider within what Section 10 parameters the

Tracy Plant could operate and issue an appropriate

authorization.

Accordingly, the Court concludes that the operation of

the Tracy and Delta Plants obstructs the navigable capacity

of various waters in the Delta, and because these obstruc-

tions 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. Addi-

tionally, because the Court concludes that appropriate

authorization has not been obtained, the operation of the

Tracy and Delta Plants is and will be unlawful until the

proper authorization is obtained. The Court also concludes

that, as presently proposed, the operation of the Peripheral

Canal will obstruct the navigable capacity of navigable

water of the United States, and this obstruction will be

governed by the third clause of Section 10. Because the

parties concede that no authorization has been obtained

Congress it would not have compromised its right to control

the amount of water to be drawn from Lake Michigan. It seems

that a less amount than now passes through the canal would

suffice for the connection which the United States has wished

to establish and maintain.” 266 U.S. at 427-428, 45 S.Ct. at 179.

State defendants’ reliance upon Friends of the Earth v. Arm-

strong, 485 F.2d 1 (10th Cir. 1973) (en banc), cert. denied,

414 US. 1171, 94 8.Ct. 933, 39 L.Ed.2d 120 (1974), is mis-

placed. There, congressional intent was quite explicit both on

the face of the acts in question and in the accompanying legis-

lative history. Similarly, in United States v. Dickerson, 310

U.S. 554, 555, 60 S.Ct. 1034, 84 L.Ed. 1356 (1940), the Court

held that Congress could suspend certain provisions of a prior

act (military re-enlistment allowances) through an amend-

ment to an appropriation bill. However, in that case congres-

sional intent was manifestly clear from both the language of

the Act and the legislative history.

+4 Appendix

for the Canal, operation of the Canal in the absence of

proper authorization would be unlawful.

Ill. FISH AND WILDLIFE COORDINATION ACT

In their third claim for relief, plaintiffs allege that the

construction and operation of the Delta and Tracy Plants,

and the proposed construction and operation of the Periph-

eral Canal, are in violation of Sections 2 and 3 of the Fish

and Wildlife Coordination Act (FWCA), 16 U.S.C. $§ 662

and 663.

Section 1 of FWCA is a general policy statement setting

forth a declaration of the congressional purpose underlying

the Act, namely, that wildlife conservation receive equal

consideration with other features of water-resource devel-

opment. Whenever the waters of any body of water are

43. Section 1 provides:

“For the purpose of recognizing the vital contribution of

our wildlife resources to the Nation, the increasing publie

interest and significance thereof due to expansion of our na-

tional economy and other factors, and to provide that wildlife

conservation shall receive equal consideration and be coordi-

nated with other features of water-resource development pro-

grams through the effectual and harmonious planning, develop-

ment, maintenance and coordination of wildlife conservation

and rehabilitation for the purposes of sections 661 to 666¢ of

this title in the United States, its Territories and possessions,

the Secretary of the Interior is authorized (1) to provide as-

sistance to, and cooperate with, Federal, State, and public or

private agencies and organizations in the development, protec-

tion, rearing, and stocking of all species of wildlife, resources

thereof, and their habitat, in controlling losses of the same

from disease or other causes, in minimizing damages from

overabundant species, in providing public shooting and fishing

areas, including easements across public lands for access

thereto, and in carrying out other measures necessary to

effectuate the purposes of said sections; (2) to make surveys

and investigations of the wildlife of the public domain, includ-

ing lands and waters or interests therein acquired or controlled

by any agency of the United States; and (3) to aecept dona-

tions of land and contributions of funds in furtherance of the

purposes of said sections.” 16 U.S.C. § 661.

Appendix 45

proposed or authorized to be impounded or diverted by

any federal agency or by any public or private agency

acting under Federal permit or license, Section 2(a) of

FWCA requires that agency first to consult with the

United States Fish and Wildlife Service and with the state

agency having jurisdiction over fish and wildlife with a

view to the conservation of wildlife resources.“* Section

9(b) requires, inter alia, that Section 2(a) reports be made

an integral part of any report prepared or submitted by a

federal agency responsible for engi» ering surveys to Con-

gress or to any agency having the authority to authorize

the construction of the water resource development proj-

ect4® Finally, Section 3(a) states that where a federal

agency diverts or impounds water, adequate provision con-

44, Section 2(a) provides:

“Except as hereafter stated in subsection (h) of this section,

whenever the waters of any stream or other body of water are

proposed or authorized to be impounded, diverted, the channel

deepened, or the stream or other body of water otherwise con-

trolled or modified for any purpose whatever, ineluding navi-

gation and drainage, by any department or agency of the

United States, or by any public or private agency under

Federal permit or license, such department or agency first shall

consult with the United States Fish and Wildlife Service,

Department of the Interior, and with the head of the agency

exercising administration over the wildlife resources of the

particular State wherein the impoundment, diversion, or other

control facility is to be constructed, with a view to the con-

servation of wildlife resources by preventing loss of and

damage to such resources as well as providing for the develop-

ment and improvement thereof in connection with such water-

resource development.’’ 16 U.S.C. § 662(a).

45. Section 2(b) provides:

“In furtherance of such purposes, the reports and recom-

mendations of the Secretary of the Interior on the wildlife

aspects of such projects, and any report of the head of the

State agency exercising administration over the wildlife re-

sourees of the State, based on surveys and investigations con-

ducted by the United States Fish and Wildlife Service and

such State agency for the purpose of determining the possible

damage to wildlife resources and for the purpose of determin-

ing means and measures that should be adopted to prevent

46 Appendix

sistent with the primary purposes of the diversion shall be

made for the conservation, maintenance and management

of wildlife resources, including the development and im-

provement of wildlife resources, pursuant to the provisions

of Section 2.4¢ Although FWCA was amended in 1958, the

the loss of or damage to such wildlife resources, as well as to

provide concurrently for the development and improvement of

such resources, shall be made an integral part of any report

prepared or submitted by any agency of the Federal Govern-

ment responsible for engineering surveys and construction of

such projects when such reports are presented to the Congress

or to any agency or person having the authority or the power,

by administrative action or otherwise, (1) to authorize the con-

- struction of water-resource development projects or (2) to

approve a report on the modification or supplementation of

plans for previously authorized projects, to which sections 661

to 666 of this title apply. Recommendations of the Secretary

of the Interior shall be as specific as is practicable with respect

to features recommended for wildlife conservation and devel-

opment, lands to be utilized or acquired for such purposes, the

results expected, and shall describe the damage to wildlife

attributable to the project and the measures proposed for

mitigating or compensating for these damages. The reporting

officers in project reports of the Federal agencies shall give

full consideration to the report and recommendations of the

Secretary of the Interior and to any report of the State agency

on the wildlife aspects of such projects, and the project plan

shall include such justifiable means and measures for wildlife

purposes as the reporting agency finds should be adopted to

obtain maximum overall project benefits.” 16 U.S.C. § 662(b).

46. Section 3(a) provides:

“Subject to the exception prescribed in section 662 (h) of

this title, whenever the waters of any stream or other body of

water are impounded, diverted, the channel deepened, or the

stream or other body of water otherwise controlled or modified

for any purpose whatever, including navigation and drainage,

by any department or agency of the United States, adequate

provision, consistent with the primary purposes of such im-

poundment, diversion, or other control, shall be made for the

use thereof, together with any areas of land, water, or interest

therein, acquired or administered by a Federal agency in

connection therewith, for the conservation, maintenance, and

management of wildlife resources thereof, and its habitat

thereon, including the development and improvement of such

wildlife resources pursuant to the provisions of section 662

of this title.” 16 U.S.C. § 663(a).

Appendix 47

predecessor provisions had substantially the same language

and created equally extensive duties.

[36,37] The Court first addresses the question whether

any private right of action arises under FWCA. The only

authority on this question of which the Court is aware has

answered in the negative. Environmental Defense Fund,

Inc. v. Corps of Engineers, 325 F.Supp. 749, 754 (E.D.Ark.

1971). See Environmental Defense Fund, Inc, v. Corps of

Engineers, 325 F.Supp. 728, 739 (E.D.Ark 1971). Further,

plaintiffs simply have not established that inference of such

a private right of action would be consistent with the legis-

lative intent of FWCA and with the effectuation of the

purposes intended to be served by the Act, as required by

Cort v. Ash, supra, 95 S.Ct. 2080; Securities Investor Pro-

tection Corp. v. Barbour, supra, 95 §.Ct. 1733; and Amtrak,

supra, 414 U.S. at 457-458, 94 S.Ct. 690. It seems likely

that congressional enactment of the National Environ-

mental Policy Act acts as an implicit proscription of such

a private right of action.4? Additionally, H.R. 14527 intro-

duced in the House of Representatives in 1974 would amend

FWCA so as explicitly to establish a private right of action.

TLR. 14527, 93d Cong., 2d Sess. § 10 (1974). Although not

conclusive evidence with respect to the instant issue, H.R.

14527 does indicate that at least certain members of Con-

gress believe that further legislation is necessary to create

47. The courts have held that compliance with the National En-

vironmental Policy Act will automatically satisfy the requirements

of FWCA and that there will be no need separately to eomply with

FWCA. Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d

346, 356 (Sth Cir. 1972). See Environmental Defense Fund, Inc. v.

Corps of Engineers, supra, 325 F.Supp. at 754. Cf. Cape Henry

Bird Club v. Laird, 359 F.Supp. 404, 417 (W.D.Va.1973), aff’d.,

484 F.2d 453 (4th Cir. 1973). Any failure to comply with FWCA

should be challenged in a suit attacking the adequacy of compliance

with NEPA. See Environmental Defense Fund, Inc. v. Corps of

Engineers, supra, 325 F.Supp. at 754. Cf. Cape Henry Bird Club

v. Laird, supra, 359 F.Supp. at 418.

48 Appendix

a private right of action under FWCA. The Court con-

eludes that no private right of action arises under FWCA

and, accordingly, the Court dismisses plaintiffs’ third claim

with prejudice.

IV. NATIONAL ENVIRONMENTAL

POLICY ACT OF 1969

Plaintiffs’ fourth claim for relief alleges that the con-

struction of the proposed Peripheral Canal and the pro-

posed increases in the volume of water to be pumped at the

Tracy and Delta Plants, together with any modifications

thereto necessary to accommodate such increases will

violate the National Environmental Policy Act (NEPA),

42 U.S.C. § 4321 et seq., unless adequate Environmental Im-

pact Statements (EIS) are first prepared by the responsible

federal agencies.

Section 2 of NEPA sets forth the congressional purposes

of NEPA.*8 Section 101 of NEPA contains a congressional

declaration of national environmental policy*® Section 102

48. Section 2 states:

“The purposes of this chapter are: To declare a national

policy which will encourage productive and enjoyable harmony

between man and his environment; to promote efforts which

will prevent or eliminate damage to the environment and

biosphere and stimulate the health and welfare of man; to

enrich the understanding of the ecological systems and natural

resources important to the Nation; and to establish a Council

on Environmental Quality.’’ 42 U.S.C. § 4321.

49. Section 101 states:

“(a) The Congress, recognizing the profound impact of

man’s activity on the interrelations of all components of the

natural environment, particularly the profound influences of

population growth, high-density urbanization, industrial ex-

pansion, resource exploitation, and new and expanding tech-

nological advances and recognizing further the critical im-

portance of restoring and maintaining environmental quality

to the overall welfare and development of man, declares that

it is the continuing policy of the Federal Government, in co-

Appendix 49

of NEPA establishes a mandatory procedure to compel

consideration and adherence to the newly enacted environ-

mental policy by requiring the completion of an KIS before

major federal actions significantly affecting the quality of

human environment can be taken.” The EIS is significant

operation with State and local governments, and other con-

| cerned public and private organizations, to use all practicable

means and measures, including financial and technical assist-

ance, in a manner calculated to foster and promote the general

welfare, to create and maintain conditions under which man

and nature ean exist in productive harmony, and fulfill the

social, economic, and other requirements of present and future

generations of Americans.

“(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the Federal Gov-

ernment to use all practicable means, consistent with other

essential considerations of national policy, to improve and

eoordinate Federal plans, functions, programs, and resources

to the end that the Nation may—

“(1) fulfill the responsibilities of each generation as trustee

of the environment for succeeding generations ;

“(2) assure for all Americans safe, healthful, productive,

and esthetieally and culturally pleasing surroundings;

“(3) attain the widest range of beneficial uses of the en-

vironment without degradation, risk to health or safety, or

other undesirable and unintended consequences;

“(4) preserve important historic cultural, and natural

aspects of our national heritage, and maintain wherever pos-

sible, an environment which supports diversity and variety of

individual choice;

“(5) achieve a balance between population and resource use

which will permit high standards of living and a wide sharing

of life’s amenities; and

“(6) enhance the quality of renewable resources and ap-

proach the maximum attainable recycling of depletable re-

sources.

“(e) The Congress recognizes that each person should enjoy

a healthful environment and that each person has a re-

sponsibility to contribute to the preservation and enhancement

of the environment.” 42 U.S.C. § 4331.

50. Section 102 states:

“The Congress authorizes and directs that, to the fullest ex-

tent possible: (1) the policies, regulations, and public laws of

the United States shall be interpreted and administered in ac-

50

Appendix

eordance with the policies set forth in this chapter, and (2) all

agencies of the Federal Government shall—

“(A) utilize a systematic, interdisciplinary approach which

will insure the integrated use of the natural and social sciences

and the environmental design arts in planning and in decision-

making which may have an impact on man’s environment ;

“(B) identify and develop methods and procedures, in con-

sultation with the Council on Environmental Quality estab-

lished by subchapter 11 of this chapter, which will insure that

presently unqualified environmental amenities and values may

be given appropriate consideration in decisionmaking along

with economic and technical considerations ;

“(C) inelude in every recommendation or report on pro-

posals for legislation and other major Federal actions signifi-

cantly affecting the quality of the human environment, a de-

tailed statement by the responsible official on—

“(i) the environmental impact of the proposed action,

“(ij) any adverse environmental effects which cannot be

avoided should the proposal be implemented,

“(iii) alternatives to the proposed action,

“(iv) the relationship between local short-term uses of man’s

environment and the maintenance and enhancement of long-

term productivity, and

“(y) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented.

Prior to making any detailed statement, the responsible Fed-

eral official shall consult with and obtain the comments of any

Federal agency which has jurisdiction by law or special ex-

pertise with respect to any environmental impact involved.

Copies of such statement and the comments and views of the

appropriate Federal, State, and local agencies, which are au-

thorized to develop and enforce environmental standards, shall

be made available to the President, the Council on Environ-

mental Quality and to the public as provided by section 552

of Title 5, and shall accompany the proposal through the exist-

ing agency review processes ;

“(D) study, develop, and describe appropriate alternatives

to recommended courses of action in any proposal which in-

volves unresolved conflicts concerning alternative uses of avail-

able resources ;

“(E) recognize the worldwide and long-range character of

environmental problems and, where consistent with the foreign

policy of the United States, lend appropriate support to initia-

tives, resolutions, and programs designed to maximize inter-

national cooperation in anticipating and preventing a decline

in the quality of mankind’s world environment;

“(F) make available to States, counties, municipalities, in-

stitutions, and individuals, advice and information useful in

Appendix 51

in two major respects. Firstly, it requires federal agencies

to review and assess the environmental effects of major

actions they propose to undertake. Secondly, it provides

a ready source of information and evidence so that the

public, Congress, and the courts can review those major

federal actions significantly affecting the environment.

Whether NEPA also creates substantive rights and whether

courts will perform a substantive, as opposed to merely a

procedural, review of an EIS is an unresolved question.”

However, since there is not a final EIS on any aspect of

the Peripheral Canal project before the Court, judgment is

reserved on this question until a later day.

The Court must first determine whether the requirements

of Section 102 apply to any of the three facilities which

restoring, maintaining, and enhancing the quality of the en-

vironment ;

“(@) initiate and utilize ecological information in the plan-

ning and development of resource-oriented projects; and

“(H) assist the Council on Environmental Quality estab-

lished by subehapter II of this chapter.” 42 U.S.C. § 4332.

51. See CEQ Guidelines § 1500.1(a).

52. See Environmental Defense Fund, Inc. v. Corps of Engt-

neers, 492 F.2d 1123, 1138-1140 (5th Cir. 1974); Sierra Club v.

Froehlke, 486 F.2d 946, 953 (7th Cir. 1973) ; Conservation. Council

v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973) ; Environmental De-

fense Fund, Inc. v. Corps of Engineers, 470 F.2d 2839, 300-301 (8th

Cir. 1972), cert. denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d

160 (1973) ; National Helium Corp. v. Morton, 455 F.2d 650, 656

(10th Cir. 1971) ; Calvert Cliff’s Coordinating Comm. v. AEC, 146

U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971); Environmental De-

fense Fund v. TVA, 371 F.Supp. 1004, 1013 (E.D.Tenn.1973), aff’d.,

492 F.2d 466 (6th Cir. 1974) ; Conservation Society v. Secretary of

Transportation, 362 F.Supp. 627, 632 (D.Vt.1973) (Oakes, J.),

aff’d., 508 F.2d 927 (2d Cir. 1974). Cf. Daly v. Volpe, 514 F.2d

1106, 1108-1109 (9th Cir. 1975) ; Lathaa v. Brinegar, 506 F.2d 677,

692-693 (9th Cir. 1974) (en banc). See also Note, The Least Adverse

Alternative Approach to Substantive Review Under NEPA, 88

Harv.L.Rev. 735 (1975) ; Note, Substantive Review Under the Na-

tional Environmental Policy Act: EDF v. Corps of Engineers, 3

Eeol.L.Q. 173 (1973).

Fe

52 Appendix

are the subject matter of this controversy.® There is no

question that the operational effects of each of the three

facilities will have significant effects on the environment.

All of the parties to this suit are in agreement on this

point. The main issue is whether there is major federal

action present, thus requiring an EIS.

A. The Peripheral Canal

With respect to the Peripheral Canal, major federal

action can be derived from one or both of two bases. The

first of these bases is participation by the Bureau of Rec-

lamation in the construction, operation, or even planning

of the Canal, and the second is the issuance of Section 9

and 10 permits authorizing the construction and operation

of the Canal.

1. Bureau of Reclamation Participation

If there is federal participation in the construction or

operation of the Peripheral Canal, it is clear that either

act will constitute major federal action necessitating com-

pliance with NEPA. It is not clear, however, whether there

is presently, or in the future will be, such federal partici-

pation. At the trial, evidence was adduced with respect to

the extent of federal participation in the Peripheral Canal

project.

In the early 1960s the Bureau of Reclamation was active

in formulating development plans for the Peripheral Canal

and in fact performed the bulk of this development work

53. The Court notes that NEPA does not define the term

“major federal actions significantly affecting the environment’’. The

Council on Environmental Quality has, however, promulgated cer-

tain guidelines and regulations defining the term “actions”. CEQ

Guidelines § 1500.5, and identfying major actions significantly

affecting the environment. CEQ Guidelines § 1500.6.

54. In the Agreed Pre-Trial Order, the parties stipulated that

the Peripheral Canal was a “ ‘project’ having a ‘significant effect on

the environment’ ” within the meaning of the California Environ-

mental Quality Act. See Agreed Pre-Trial Order, § 3.44.

Appendix 53

until 1968 when the Peripheral Canal Feasibility Report

was completed. That report was accompanied by a recom-

mendation from the Commissioner of the Bureau of Rec-

lamation that the Secretary of the Interior adopt the re-

port. Subsequently, on July 3, 1969, an Assistant Secretary

of the Interior adopted and approved the report. That

report proposed construction of the Peripheral Canal as

a joint-use project of the federal and state governments

to transfer water across the Delta. It discussed the need

for such a facility, the basic engineering requirements, the

benefits to be derived from its use, and set out a financial

analysis of its cost. Additionally, the Feasibility Report

proposed that the cost of the Canal be allocated on a 50-50

basis between the state and federal governments. Although

the Feasibility Report has never been submitted to Con-

gress, the Bureau of Reclamation has never given the

Department of Water Resources any indication that the

federal government would not participate in the financing

of the construction of the Peripheral Canal nor has the

Bureau of Reclamation withdrawn its recommendation

which accompanied the Feasibility Report. Nothwithstand-

ing the nonexistence of a formal agreement between the

state and federal governments vis a vis the construction

and use of a Peripheral Canal, there existed a common

understanding that the Canal would be a mutual under-

taking of both the Department of Water Resources and the

Bureau of Reclamation.®* The personnel of those agencies

meet periodically to discuss each other’s needs with respect

to the Peripheral Canal so that the Department of Water

Resources can accommodate federal needs. In the absence

of direct federal authorization or funding of the construc-

55. The Director of the Department of Water Resources testified

that he was proceeding on the assumption that the Peripheral Canal

would be a joint use facility of the state and federal governments.

54 Appendix

tion of the Peripheral Canal, it is quite possible that the

state will enter into a wheeling contract® with the federal

government, and such a contract could be tantamount to

joint funding.” On the record before the Court, then, it

is not possible to determine whether the federal govern-

ment will participate in either the construction or the oper-

ation of the Peripheral Canal.

[38] Even if the Bureau of Reclamation does not par-

ticipate in the construction and operation of the Canal, its

participation in the planning phase may constitute sufficient

participation in the project to activate the NEPA require-

56. A wheeling contract is merely an arrangement whereby the

federal government would pay the state charges for the use of part

of the Clanal’s capacity to transport federal water.

57. If there is a wheeling contract, the federal payments there-

under will flow into the State Water Project Funding Account. It

is a plausible inference that any federal payments credited to the

Funding Account would be used both to service the debt respon-

sible for providing funds to construct the Peripheral Canal and to

pay operation and construction expenses of the Canal. A wheeling

contract could provide for short-term use of the Peripheral Canal by

the Bureau of Reclamation while the federal government developed

its own facility or made some alternative arrangements to meet its

obligations with respect to supplying federal water to the Central

Valley. Such an arrangement would not be equivalent to a joint

funding of the Canal. However, if the contract provided for federal

use of the Canal which approached the physicial life of the Canal,

and if the amount of the annual wheeling charge approached an

amount representing the sum of those annual operation expenses

allocable to federal use of the Canal and that amount necessary to

repay the imputed federal share of the Canal’s cost assuming an

appropriate interest rate and amortization of that share of the cost

over a given period of time (i. e., either the physical tite of the

Canal or the life span of any securities used by the state to finance

the Canal, then such a wheeling contract might be equivalent

to a joint funding of the Canal. As it has been recognized that lease

arrangements are forms of financing, in the instant case a wheeling

contract containing certain terms could be a form of financing.

Accordingly, if the Bureau of Reclamation withdraws from the

project and decides to utilize the Peripheral Canal by means of a

wheeling contract, this Court will have to decide whether the terms

of that arrangement make it equivalent to a joint funding of the

Canal or represent mere short-term use.

™

Appendix 55

ments of an EIS. It is clear from the trial record that the

Bureau of Reclamation is more than a mere neutral observ-

er in the Peripheral Canal project. It was the moving force

pushing forward the initial development plans, its recom-

mendation of joint participation in the project was ap-

proved by the Secretary of the Interior,®® and it has

expended over $750,000 on the planning of the project.

Although this expenditure of money alone may not consti-

tute major federal action in light of the large cost of the

entire project, it must be seen in connection with two other

factors. As recommendations of this nature move up

through the federal bureaucracy, they develop an irreversi-

ble momentum and result in the irretrievable commitment

of resources, particularly in the form of planning and

development funds. Bureaucrats develop vested interests in

positions adopted at early stages, and it becomes more

likely that an EIS prepared at the end of the bureaucratic

chain will be nothing more than a posthoc rationalization

of prior development. See Jones v. District of Columbia

Redevelopment Land Agency, 162 U.S.App. D.C. 366, 499

F.2d 502, 511 (1974). To allow a federal agency to provide

all the impetus for planning and development of a project,

to fund a portion of this development process although

significantly smaller than the funds expended by the state,

and to lobby actively in support of that project, and not

to require that agency to file an EIS could result in a

subversion of the policies underlying NEPA. In view of

the independent ground for an EIS in this case, however,

discussed below, and because the Bureau of Reclamation’s

staff is presently preparing an EIS, the Court need not

reach this issue.

58. See Plaintiffs’ Exhibit 14. On July 3, 1960, Assistant Secre-

tary of the Interior James R. Smith approved and adopted the

Bureau’s feasibility expert on the Peripheral Canal.

56 Appendix

2. The Issuance of Section 9 and 10 Permits

[39,40] The Court’s holding that the construction and

operation of the Peripheral Canal will require the defend-

ants to comply with Sections 9 and 10 of the Rivers and

Harbors Act of 1899 provides the second basis of major

federal action with respect to the Peripheral Canal. The

issuance of either a Section 9 or 10 permit pursuant to the

Rivers and Harbors Act of 1899 always constitutes major

federal action and unless the Corps of Engineers or the

Department of the Army makes the negative determination

that the issuance has no significant effect on the environ-

ment, an EIS is required. See Davis v. Morton, 469 F.2d

593, 597-598 (10th Cir. 1972) ; Citizens for Clear Air, Inc.

v. Corps of Engineers, 349 F.Supp. 696, 707-708 (S.D.N.Y.

1972); Kalur v. Resor, 335 F.Supp. 1 (D.D.C.1971). Cf.

Scientists’ Inst. for Public Information, Inc. v. AEC, 156

U.S.App.D.C. 395, 481 F.2d 1079 (1973) ; CEQ Guidelines

§ 1500.5. It is irrevelant that the project may be neither

federally financed nor constructed under the auspices of a

federal agency. The key factor is that without federal

approval (i. e., in this case a federal permit) the project

could not commence, and thus the federal action (1%. ¢.,

issuing the permit) has as much effect on the environment as

federal funding would have. In Scientists’ Inst. for Public

Information, Inc. v. AEC, supra, 481 F.2d at 1091, the court

went so far as to hold that development of a new tech-

nology by a federal agency which would permit private

companies to construct facilities having a significant effect

on the environment was by itself major federal action

requiring compliance with NEPA’s EIS requirement. Thus,

before the Corps can issue Section 9 and 10 permits for

the Peripheral Canal, an EIS must be filed.

59. See p. 632, supra.

Appendix 57

[41] Since the Corps of Engineers is taking major fed-

eral action by issuing the permits, normally it would be

required to prepare an EIS. However, here where the

Bureau of Reclamation has already begun preparation of

an EIS, the Court will not require the Corps to duplicate

the efforts of the Bureau of Reclamation as long as the

Bureau completes preparation of the EIS prior to the

issuance of Section 9 or 10 permits by the Corps.” Should

the Bureau of Reclamation cease preparation of the EIS,

then that obligation would devolve upon the Corps.

B. The Delta and Tracy Pumping Plants

[42] With respect to the Delta and Tracy Pumping

Plants, it is convenient to distinguish the operation of these

facilities up to their present maximum capacities from any

future expansion of the two facilities. In regard to the

former, plaintiffs vigorously assert that because total an-

nual pumping at both structures will increase in future

years to reach their present maximum capacities, these

60. In Jones v. District of Columbia Redevelopment Land

Agency, supra, 499 F.2d at 511, the court held that where an urban

renewal plan would be passed upon by three different federal

agencies. NEPA required all three agencies to prepare an EIS. An

EIS is expensive to prepare and to require both the Corps of

Engineers and the Bureau of Reclamation to prepare an EIS on

the same project would result in a duplication of effort and unneces-

sary duplicative expenditures of money. Although it could be argued

that two EISes would paint a more balanced and objective picture

of the environmental impact of the project, it seems unlikely that

the incremental increase in objectivity due to the second EIS out-

weighs the cost of preparation of a second statement. The essence

of Jones is not that every agency prepare an EIS, but rather that

an EIS be prepared at that first point in the decision-making

process where there is major imput by a federal agency. If the

Bureau of Reclamation continued to participate in the Peripheral

Canal project, then it would clearly be the more appropriate agency

to prepare the EIS since it will be the first agency to shape the

plans for the Peripheral Canal. In this fashion environmental con-

siderations would enter into and affect the decision-making process

at an earlier stage than if the EIS were prepared by the Corps.

58 Appendix

increases alone will be sufficient to require the filing of an

EIS. The Court finds this assertion untenable. It is neither

supported in logic nor by the case law. Although NEPA is

applicable to further incremental major federal actions oc-

curring subsequent to its effective date even though a

project was initiated prior to that date, once a project is

complete, there can be no further major action because at

the time of completion, the project was capable of operating

at maximum capacity and the agencies intended to operate

it at full capacity. See generally Morris v. TV A, 345 F.Supp.

321, 324 (N.D.Ala.1972). See CEQ Guidelines § 1500.13. If

NEPA were construed to require application to ongoing

projects which were fully completed prior to January 1],

1970, most federal agencies would become trapped in an

endless web of EIS paperwork. Such an interpretation was

not intended by Congress and is not supported by the case

law.*

[43, 44] Nonetheless, an EIS will be required in this

case, because both the Tracy and Delta Plants were con-

structed and are now operated in violation of Section 10

of the Rivers and Harbors Act of 1899 and Section 10

permits must be obtained in order to continue their opera-

tions. In considering these applications, the Corps of Fn-

gineers and the Department of the Army should consider

the advisability of setting operational limitations on export

61. The logic of plaintiffs’ position would require all on-going

projects to be assessed even though there may be no future major

action otherwise to subject those projects to the EIS requirement.

Such a result could be agreed to be consistent with the objectives

of NEPA in that, given the fixed cost of a totally completed project,

where the benefits of shutting down the project outweighed all of

the costs of the project, the project should be curtailed. However,

plaintiffs’ position is without support either in NEPA or in the

eases construing it.

Appendix 59

pumping by the two plants.” An agency which violates the

law by failing to obtain the necessary permits in accordance

with the Rivers and Harbors Act of 1899 proceeds at its

own peril and must suffer the consequences of later having

to obtain those permits when the standards for their is-

suance are more stringent. Because these permits will he

issued after the effective date of NEPA, the issuing agen-

cies will have to file an EIS prior to issuance, as the

issuance of the permits will constitute major federal action

significantly affecting the environment. When they comply

with NEPA, the federal agencies may take into account

the present existence of the Delta and Tracy Plants. In

considering operation of those facilities, however, future

operational decisions must be shaped so as to minimize

adverse environmental consequences, and to the extent

practicable they must comply with the EIS procedure.

These Section 10 permits must be obtained not to validate

the past unlawful construction and operation of these two

facilities, but rather to insure that future operation is in

accordance with the law.

[45-47 | With respect to any future expansion of the

Delta® or Tracy plants, an EIS may be required. In the

62. It may well be that after consideration of all environmental

and other factors, the Corps will want to establish certain periods

of the tidal cycle or year when pumping should be curtailed or

should be continued at a lower rate. Another possible limitation

might be the establishment of an objective test, based upon such

factors as the amount of salinity in the Delta waters at various

locations, which could be applied on a regular basis and which

would set the operational limits.

63. The Department of Water Resources estimates future water

transmission by the State Water Project through the Delta Plant

will inerease to 1,723,000 acre-feet by 1980, 3,579,000 acre-feet by

1990, and 4,353,000 acre-feet by 2020. The testimony was undis-

puted that the present maximum pumping capacity of the Delta

Plant (6300 cfs) would have to be increased in order for the State

to meet contractual obligations. Mr. Teerink, Director of the

60 Appendix

case of the Delta Plant, the state facility, if the Department

of Water Resources installs the four additional pumps at

the Delta Plant, as is presently planned, that agency will

need to obtain a Section 10 permit prior to the comn»:<e-

ment of installation and, consequently, the Corps of Fn-

gineers will be required to file an EIS if it determines that

the expansion in capacity will have a significant effect on

the environment. It will be no defense that the original

project was initiated and completed prior to January 1,

1970, as any future expansion of pumping facilities and

issuance of a Section 10 permit with respect thereto will

constitute either future incremental major action of an

ongoing project or new major federal action and may

require an EIS before the agencies can proceed. See

Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d

1275, 1282-1283 (9th Cir. 1973) ; Arlington Coalition on

Transportation v. Volpe, 458 F.2d 1323, 1331 (4th Cir.

(1972); Keith v. Volpe, 352 F.Supp. 1324, 1332 (C.D.Cal.

1972), aff'd. sub nom, Keith v. California Highway Com-

mission, 506 F.2d 696 (9th Cir. 1974) ; Morningside-Lenox

Park Ass’n v. Volpe, 334 F.Supp. 132, 144 (N.1).Ga.1971).

No exemption from NEPA’s requirements arises even if

Department of Water Resources, testified that the present maxi-

mum eapacity was approximately % of the future contractual

obligation. The present annual maximum pumping capacity of the

Delta Plant is 4,599,000 acre-feet. This capacity is inconsistent

with Mr. Teerink’s testimony and would also seem to be incon-

sistent with any need to add four additional pumps to the Delta

Plant in view of the Department’s estimates of future water trans-

missions by the State Water Project.

64. The rate of export pumping of Delta waters by the Tracy

and Delta Plants will increase from 3,388,000 acre-feet to approxi-

mately 7,000,000 acre-feet in 1990, and approximately 7,750,000

acre-feet by 2020. The figure for 1990 assumes the completion of

all related federal and state projects, including the Peripheral

Canal. It is expected that by 2020, the federal government will be

exporting 4,087,000 acre-feet per annum through the Tracy Plant.

In order to double approximately the federal export rate, either

the Tracy Plant would have to be enlarged or a supplemental

pumping facility would have to be constructed, as the present

maximum capacity of the Tracy Plant is only 3,400,000 acre-feet

per annum if all six units are available 365 days a year.

Appendix 61

it were impractical to reassess the basic course of action of

the original project. See Jicarilla Apache Tribe of Indians

v. Morton, supra, 471 F.2d at 1282-1283. The agency re-

quired to file the EIS must still act so as to minimize any

adverse environmental consequences of remaining portions

of the project “to the maximum extent practicable”. Where

part of a project subject to the NEPA requirements has

been constructed prior to the effective date of NEPA, then

the cost of activity completed prior to the NEPA effective

date is merely one additional factor to be weighed in applvy-

ing cost-benefit analysis to determine the course of future

incremental major actions subject to NEPA. Thus, in the

case of a project where all major federal action is post-

NEPA, an EIS is required to the fullest extent possible,

while where some major federal action occurred pre-NEPA,

an EIS is required to the maximum extent practicable as

to major federal actions taken after January 1, 1970. See

Jicarilla Apache Tribe of Indians v. Morton, supra, 471

F.2d at 1282-1283; Environmental Law Fund v. Volpe, 340

F.Supp. 1328, 1332 (N.D.Cal.1972).

In the case of the Tracy Plant, the federal facility, if the

Bureau of Reclamation attempts to expand its pymping

capacity, both the expansion itself and the issuance of a

Section 10 permit authorizing that expansion will require

an KIS.®

65. Here the expansion of the capacity at the Tracy Plant would

constitute major federal action and the responsible federal official

would be associated with the Bureau of Reclamation. The action of

the Secretary of the Army (or the Corps) with respect to the

issuance of the Section 10 permit would not require him to prepare

an EIS since its scope would be identical to that prepared by the

Bureau of Reclamation. See p. 645, supra. In contrast the major

federal action involved with the expansion of the capacity of the

Delta Plant would be the issuance of the Section 10 permit and the

responsible federal official, the Secretary of the Army (or the

Corps), would have to prepare an EIS.

62 Appendix

C. Timing of the EIS

[48, 49] Finally, the timing of any required EIS for

the three structures considered here merits some mention.

Any EIS which is required because of the issuance of

Section 9 and 10 permits should be drafted and completed

well in advance of the commencement of the Corps’ decision-

making process. See Greene County Planning Board v.

FPC, supra, 455 F.2d at 421-422. Although we do not set

forth explicit requirements with respect to the timing of

the EIS by the instant agencies, they should be guided by

the statement of the court in Jones v. District of Columbia

Redevelopment Land Agency, supra, that EISes

“were not to be merely post hoc environmental ration-

alizations of decisions already fully and finally made.

Rather their purpose is to ensure ‘meaningful con-

sideration of environmental factors at all stages of

agency decision making,’ and to inform both the public

and agencies implicated at subsequent stages of de-

cision-making of environmental costs of the proposal.”

499 F.2d at 511.

This statement also applies to the timing of any EIS that

must be filed on the part of the Bureau of Reclamation due

to its participation in the Peripheral Canal project. It is

clear beyond cavil that an EIS would be required con-

siderably prior to the first day of construction activity.”

Cf. Environmental Law Fund v. Volpe, supra, 340 F.Supp.

at 1332-1333; Morningside-Lenox Park Ass’n v. Volpe,

supra, 334 F.Supp. at 142-144.

66. At the outset of the trial, and the initial briefs and memo-

randa filed with this Court, defendants asserted that the law im-

posed no duties presently as to the Peripheral Canal because its

construction was not imminent. It was even contended that the

likelihood of its being constructed at all was highly speculative.

During trial, however, the parties abandoned that position, as the

evidence proved that not only was the construction of the Canal

imminent but that many activities certainly preparatory to the

construction (if not construction itself) had been going on for some

Appendix 63

V. CALIFORNIA ENVIRONMENTAL QUALITY ACT

[50] Plaintiffs’ sixth claim for relief alleges that the

construction of the proposed Peripheral Canal, the pro-

posed future increases in the volume of water to be pumped

time. The Director of Water Resources, Mr. Teerink, stated that

the state would build the Canal and was planning to commence con-

struction late in 1975. He estimated completion by 1980. In order

to meet that schedule, preconstruction activity (e. 9., right of way

work, engineering studies) was presently underway.

The Department of Water Resources has officially adopted the

Peripheral Canal as the Delta water facility of the State Water

Project. Development and planning of the Peripheral Canal began

at some point prior to 1965 and proceeded up to the date of the

trial. This development work included the acquisition of land as a

portion of the right of way, the initial design work, and commence-

ment of the final design work including the preparation of contract

drawings and construction specifications. In this connection, the

state had expended through 1973 in excess of $6,627,000 on planning

and development and in excess of $2,275,000 in connection with

right-of-way acquistions and the purchase of land. Furthermore,

the federal government had spent over $750,000 through March 31,

1974, on activities associated with the planning of the Canal. At

present the Department of Water Resources has approximately

45-50 people involved with the design group working on the plans

for the Canal. Finally, on January 18, 1968, the California Depart-

ment of Public Works Division of Highways and the Department

of Water Resources executed an agreement whereby the Depart-

ment of Public Works would advance $2,000,000 to the Department

of Water Resources so that it could acquire right of way for four

segments of the Peripheral Canal sufficient to provide up to 7,000,000

eubie yards of borrow material from the eanal prism. Pursuant to

this agreement, contractors’ bidding on the construction of Inter-

state 5 (1-5) would then be required to use those portions of the

Peripheral Canal right of way as a mandatory borrow site for high-

way fill. The purpose of this agreement was to coordinate the con-

struction of I-5 and the Peripheral Canal. Although I-5 bids were

received in December of 1973, none had been accepted as of the

date of the trial.

In Friends of Earth v. Coleman, 513 F.2d 295, 300 (9th Cir.

1975), the court held that the proposed I-5 excavations out of the

proposed Peripheral Canal right of way would not constitute a

commencement of the Canal project sufficiently significant to war-

rant formal NEPA evaluation of the Canal’s environmental impact.

The court did state that “an EIS will be required before any work

on the canal beyond highway fill excavations can be done.” Ibid.

at 300.

64 Appendix

through the Delta and Tracy Plants, and the proposed

modifications to the Delta Plant necessary to accommodate

such increases will violate the California Environmental

Quality Act (CEQA), unless adequate environmental im-

pact reports (EIR) are first prepared by the responsible

state agency.®

Sections 21000 and 21001 of CEQA contain a declaration

of California’s general environmental policy. Section 21100

requires that state agencies prepare an environmental im-

pact report on any project they propose to carry out or

approve which may have a significant effect on the environ-

ment. “Project” is defined in Section 21065. Section

67. California Public Resources Code, § 21000 ef seq.

68. State defendants’ assertion that the CEQA claim is barred by

Section 21167(a) is without merit. That section provides :

“Any action or proceeding to attack, review, set aside, void, or

annul the following acts or decisions of a public agency on the

grounds of noncompliance with this division shall be commenced

as follows:

“(a) An action or proceeding alleging that a public agency is

carrying out or has approved a project which may have a significant

effect on the environment without having determined whether the

project may have a significant effect on the environment shall be

commenced within 180 days of the public agency’s decision to carry

out or approve the project, or, if a project is undertaken without a

formal decision by the public agency, within 180 days after com-

mencement of the project.” The amendment adding the CEQA

claim related back to the filing of the complaint as the CEQA claim

arose out of the same transaction and involves the same defendants.

Fed.R.Civ.P. 15(c).

69. Section 21100 provides:

“All state agencies, boards, and commissions shall prepare,

or cause to be prepared by contract, and certify the comple-

tion of an environmental impact report on any project they

propose to carry out or approve which may have a significant

effect on the enivironment. Such a report shall include a de-

tailed statement setting forth the following:

“(a) The environmental impact of the proposed action.

“(b) Any adverse environmental effects which cannot be

avoided if the proposal is implemented.

Appendix 65

15081 of the CEQA regulations sets forth the factors to be

weighted by an agency to determine whether a particular

project is such that it “may have a significant effect on the

environment”.™

“(e) Mitigation measures proposed to minimize the impact

including, but not limited to, measures to reduce wasteful, in-

efficient, and unnecessary consumption of energy.

“(d) Alternatives to the proposed action.

“(e) The relationship between local short-term uses of

man’s enviroment and the maintenance and enhancement of

long-term productivity.

“(f) Any irreversible environmental changes which would

be involved in the proposed action should it be implemented

“(¢) The growth-inducing impact of the proposed action.”

70. Section 21065 provides:

“ “Project” means the following :

“(a) Activities directly undertaken by any publie agency.

“(b) Activities undertaken by a person which are supported

in whole or in part through contracts, grants, subsidies, loans,

or other forms of assistance from one or more public agencies.

“(e) Activities involving the issuance to a person of a lease,

permit, license, certificate, or other entitlement for use by one

or more public agencies.”’

71. Section 15081 provides in pertinent part:

“(a) The determination of whether a project may have a

significant effect on the environment ealls for careful judg-

ment on the part of the public agency involved, based to the

extent possible on scientific and factual data. An iron clad

definition of significant effect is not possible because the sig-

nificance of an activity may vary with the setting. For exam-

ple, an activity which may not be significant in an urban area

may be significant in a rural area. There may be a difference

of opinion on whether a particular effect should be considered

adverse or beneficial, but where there is, or anticipated to be,

a substantial body of opinion that considers or will consider

the effect to be adverse, the lead agency should prepare an

EIR to explore the environmental effects involved.

“(b) In evaluating the significance of the environmental

effect of a project, the lead agency shall consider both primary

or direct and secondary or indirect consequences. Primary

consequences are immediately related to the project (the con-

struction of a new treatment plant may facilitate population

growth in a particular area), while secondary consequences

are related more to primary consequences than to the project

itself (an impact upon the resource base, ineluding land, air,

water and energy use of the area in question may result from

the population growth).

66 Appendix

The California Supreme Court has noted the similarity

of CEQA and NEPA and stated that interpretations of

NEPA are relevant in construing similar terms in CEQA.

Friends of Mammoth v. Board of Supervisors of Mono

County, 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049, 1058

(1972). One federal court has held that CEQA was delib-

erately modeled after NEPA and that therefore the same

considerations govern the applicability of the two acts to

the same projects. Keith v. Volpe, supra, 352 F.Supp. at

1337. Accordingly, most of the principles discussed supra

with regard to NEPA are applicable to our consideration

of the duties imposed upon defendants with respect to

CEQA.

In the Agreed Pre-Trial Order the defendants stipulated

that the Peripheral Canal was a project which may have a

significant effect on the environment.” In fact, the state

“(¢) Some examples of consequences which may have a sig-

nificant effect on the environment in connection with most

projects where they occur, include a change that:

“(1) Is in conflict with environmental plans and goals

that have been adopted by the community where the project

is to be located;

“(2) Has a substantial and demonstrable negative aes-

thetic effect;

“(3) Substantially affects a rare or endangered species

of animal or plant, or habitat of such a species;

“(4) Causes substantial interference with the movement

of any resident or migratory fish or wildlife species;

“(5) Breaches any published national, state, or local

standards relating to solid waste or litter control;

“(6) Results in a substantial detrimental effect on air or

water quality, or on ambient noise levels for adjoining

areas ;

“(7) Involves the possibility of contaminating a public

water supply system or adversely affecting ground water;

“(8) Could cause substantial flooding, erosion or silta-

tion;

“(9) Could expose people or structure to major geologic

hazards.”’ 14 Cal.Admin.Code, § 15081.

72. See Agreed Pre-Trial Order, § 3.44.

Appendix 67

defendants issued a draft Environmental Impact Report

on the Peripheral Canal project in August of 1974. That

draft is being circulated for comments and criticism, and

then a final Environmental Impact Report will be prepared.

In view of the imminence of this report the Court will offer

only a few observations.

[51,52] At present no Environmental Impact Report is

required with respect to the Delta Plant as that facility was

completed prior to the effective date of CEQA. Before

expanding that facility by installing additional pumps,

however, the state defendants will have to comply with

CEQA.” There is no merit to plaintiffs’ contention that

increased pumping by the presently existing facility

requires compliance with CEQA. Plaintiffs’ reliance on

County of Inyo v. Yorty, 32 Cal.App.3d 795, 108 Cal.Rptr.

377 (1973), is misplaced as in that case there was construc-

tion of additional pumping and extraction facilities in ad-

73. See 14 Cal.Admin.Code, § 15070, which provides in per-

tinent part:

“(a) A project as defined in Section 15037(a) (1) of these

Guidelines, approved prior to November 23, 1970, shall require

an Environmental Impact Report or a Negative Declaration

if the project may have a significant effect on the environment,

and either of the following conditions exists:

“(1) A substantial portion of public funds allocated for

the project have not been spent and it is still feasible to

modify the project to mitigate potentially adverse environ-

mental effects, or to choose feasible alternatives to the proj-

ect, including the alternative of ‘no project’ or halting the

project; provided that this Section (1) shall not apply to

projects which come under the jurisdiction of the National

Environmental Policy Act (NEPA) and which, through

regulations promulgated under NEPA, were held to be too

far advanced at the time of NEPA’s effective date to re-

quire an EIS in compliance with those regulations.

“(2) A publie agency proposes to modify the project in

such a way that the project might have a new significant

effect on the environment.”

68 Appendix

dition to expanded pumping at presently existing facilities.

Finally, no Environmental Impact Report will be required

for the Tracy Plant since that is a federal facility and thus

not subject to CEQA.

The foregoing constitutes the Court’s Findings of Fact

and Conclusions of Law as required by Rule 52(a) Federal

Rules of Civil Procedure.

It is hereby ordered that the state defendants shall obtain

authorization to operate the Delta Pumping Plant in the

manner prescribed in Section 10 of the Rivers and Harbors

Act of 1899, 33 U.S.C. § 403, by the date established by this

Court at the hearing to be held on September 4, 19795, as

more fully set forth below.

It is hereby further ordered that the federal defendants

shall obtain authorization to operate the Tracy Pumping

Plant in the manner prescribed in Section 10 of the Rivers

and Harbors Act of 1899, 33 U.S.C. § 403, by the date estab-

lished by this Court at the hearing to be held on September

4, 1975, as more fully set forth below.

It is hereby further ordered that the Secretary of the

Army or his delegate shall prepare and file an Environ-

mental Impact Statement pursuant to 42 U.S.C. § 4832 with

respect to issuance of any Section 10 permits authorizing

the operation of the Tracy Pumping Plant and the Delta

Pumping Plant prior to the issuance of any such permits.™

It is hereby further ordered that all parties shall appear

before this Court at 1:30 P.M. on September 4, 1975, in

74, Nothing in this order shall be construed to prohibit the fed-

eral defendants from preparing and filing one document to serve

as an Environment Impact Statement for the Tracy Pumping

Piant, the Delta Pumping Plant, and the Peripheral Canal as long

as any such document meets the requirements of 42 U.S.C. § 4332,

and as long as legally imposed deadlines are met.

Appendix 69

order to determine a date by which the state and federal

defendants must obtain authorization of the operation of

the Tracy and Delta Pumping Plants under Section 10 of

the Rivers and Harbors Act of 1899, 33 U.S.C. § 403.

It is hereby further ordered that with respect to the

Peripheral Canal, as presently proposed, no construction

work shall begin prior to the receipt of authorization under

Sections 9 and 10 of the Rivers and Harbors Act of 1899,

33 U.S.C. $$ 401, 403, and that no Section 9 or 10 permits

may be issued with respect to the Peripheral Canal, as

presently proposed, without the prior preparation and

filing of an Environmental Impact Statement by the Secre-

tary of the Army or his delegate pursuant to 42 U.S.C.

§ 4332. If the Bureau of Reclamation completes preparation

of an Enviromental Impact Statement with respect to the

Peripheral Canal, then that report may be filed in lieu of

the Environmental Impact Statement required by this or-

der. with respect to the Canal and that filing will obviate

the need for such a filing by the Secretary of the Army.

It is hereby further ordered that with respect to the

Peripheral Canal, as presently proposed, no construction

work shall commence until the Department of Water Re-

sources prepares and files an Environmental Impact Report

pursuant to California Public Resources Code § 21100."

It is hereby further ordered that plaintiffs’ second, third

and fifth claims are dismissed with prejudice.

75. Nothing in the Memorandum of Opinion shall be construed

to prohibit the defendants from preparing one document to serve

as both the Environmental Impact Statement and Environmental

Impact Report as long as that one document meets the requirements

of both 42 U.S.C. § 4332 and California Public Resources Code

§ 21100. Nor should anything in this Memorandum of Opinion be

eonstrued to preclude any consolidation of the work effort on the

part of defendants in the preparation of the necessary Environ-

mental Impact Statement and Environmental Impact Report to the

extent that such a consolidation would result in avoidance of repeti-

tious work by defendants.