Appendix — KERN COUNTY WATER AGENCY v. SIERRA CLUB (Nos. 79-1502, 79-1252)

— te ee Otay

IN THE

Supreme Court of the United States

October Term 1979

89-1502

KERN COUNTY WATER AGENCY, THE METROPOLITAN

WATER DISTRICT OF SOUTHERN CALIFORNIA, SANTA

CLARA VALLEY WATER DISTRICT AND TULARE LAKE

BASIN WATER STORAGE DISTRICT,

Petitioners,

vs.

SIERRA CLUB, et al.,

Respondents.

Appendix to Petition for Writ of Certiorari.

KRONICK, MOSKOVITZ, VICTOR E. GLEASON,

TIEDEMANN & GIRARD, Deputy General Counsel,

A Professional Corporation 1111 Sunset Boulevard,

STANELY W. KRONICK, Los Angeles, Calif. 90054,

ADOLPH MOSKOVITZ Telephone (213) 626-4282,

EDWARD J. TIEDEMANN, Attorneys for The Metropolitan Water

CLIFFORD W. SCHULZ, District of Southern California.

555 Capitol Mall, Suite 855,

Sacramento, Calif. 95814, _ ALBERT T. HENLEY, ESQ.,

Telephone (916) 444-8920, 5750 Almaden Expressway,

Attorneys for Kern County San Jose, California 95118,

Water Agency. Telephone (408) 265-2600,

JAMES G. McCAIN, ESQ., DANIEL F. GALLERY, ESQ.,

P.O. Box 475, 926 J Street,

Corcoran, California 93212, Sacramento, California 95814,

Telephone (209) 992-2414, Attorneys for Santa Clara Valley

Attorney for Tulare Lake Basin Water District.

Water Storage District.

ROBERT P. WILL,

General Counsel,

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

INDEX TO APPENDICES

Page

Appendix 1. Pertinent Sections of Rivers and Har-

en POE OE TI cco adda Kos Came App. p. 1

Appendix 2. [610 F2d 581] Opinion of the United

States Court of Appeals for the Ninth Circuit .. 5

Tang, Circuit Judge, Ee en 55

Appendix 3. [400 F.Supp. 610] Memorandum of

Opinion of United States District Court, N.D.

ee ay aS sy. Sa eee 63

Exhibit A. Map of Sacramento-San Joaquin Delta

re IE Po rn 130

Appendix 4. Provisions of Federal Statutes Recog-

nizing State Law as Governing Water Rights... 131

REM.

APPENDIX 1.

Section 9, Rivers and Harbors Act of 1899:

‘“Construction of bridges, causeways, dams or dikes

generally.

**It shall not be lawful to construct or commence the

construction of any bridge, dam, dike, or causeway

Over or in any port, roadstead, haven, harbor, canal,

navigable river, or other navigable water of the United

States until the consent of Congress to the building of

such structures shall have been obtained and until the

plans for the same shall have been submitted to and

approved by the Chief of Engineers and by the Sec-

retary of the Army. Provided, That such structures may

be built under authority of the legislature of a State

across rivers and other waterways the navigable por-

tions of which lie wholly within the limits of a single

State, provided the location and plans thereof are sub-

mitted to and approved by the Chief of Engineers and

by the Secretary of the Army before construction is

commenced: And provided further, that when plans

for any bridge or other structure have been approved

by the Chief of Engineers and by the Secretary of the

Army, it shall not be lawful to deviate from such plans

either before or after completion of the structure unless

the modification of said plans has previously been sub-

mitted to and received the approval of the Chief of

Engineers and of the Secretary of the Army.”’ 33

U.S.C. § 401.

Section 10, Rivers and Harbors Act of 1899:

‘‘Obstruction of navigable waters generally; wharves;

piers, etc.; excavations and filling in.

‘*The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited;

ee

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 es-

tablished, except on plans recommended by the Chief

of Engineers and authorized by the Secretary of the

Army; and it shall not be lawful to excavate or fill, or

in any manner to alter or modify the course, location,

condition, or capacity of, any port, roadstead, haven,

harbor, canal, lake, harbor or refuge, or inclosure

within the limits of any breakwater, or of the channel

of any navigable water of the United States, unless the

work has been recommended by the Chief of Engineers

and authorized by the Secretary of the Army prior to

Section 12, Rivers and Harbors Act of 1899:

Penalty for wrongful construction of bridges, piers,

etc.; removal of structures.

Every person and every corporation that shall violate

any of the provisions of sections 401, 403, and 404

of this title or any rule or regulation made by the Sec-

retary of the Army in pursuance of the provisions of

section 404 of this title shall be deemed guilty of mis-

demeanor, and on conviction thereof shall be punished

by a fine not exceeding $2,500 nor less than $500, or

by imprisonment (in the case of a natural person) not

exceeding one year, or by both such punishments, in

the discretion of the court. And further, the removal

of any structures or parts of structures erected in vio-

lation of the provisions of the said sections may be

enforced by the injunction of any district court exer-

cising jurisdiction in any district in which such struc-

tures may exist, and proper porceedings to this end

bre, ae

may be instituted under the direction of the Attorney

General of the United States. 33 U.S.C. § 406.

Section 17, Rivers and Harbors Act of 1899:

Duty of United States attorneys and other Federal

officers in enforcement of provisions; arrest of of-

fenders.

The Department of Justice shall conduct the legal

proceedings necessary to enforce the provisions of sec-

tions 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 vigorously prosecute all of-

fenders against the same whenever requested to do so

by the Secretary of the Army or by any of the officials

hereinafter designated, and it shall furthermore be the

duty of said United States attorneys to report to the

Attorney General of the United States the action taken

by him against offenders so reported, and a transcript

of such reports shall be transmitted to the Secretary of

the Army by the Attorney General; and for the better

enforcement of the said provisions and to facilitate the

detection and bringing to punishment of such of-

fenders, 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 rev-

enue officers shall have power and authority to swear

out process, and to arrest and take into custody, with

or without process, any person or persons who may

commit any of the acts or offenses prohibited by the

said sections, or who may violate any of the provisions

of the same: Provided, That no person shall be arrested

without process for any offense not committed in the

presence of some one of the aforesaid officials: And

wissen

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 of-

fenses alleged against him; and such commissioner,

judge, or court shall proceed in respect thereto so au-

thorized by law in case of crimes against the United

States. 33 U.S.C. § 413.

BN So

APPENDIX 2.

[610 F2d 581]

SIERRA CLUB, a non-profit California Corporation, et

al., Plaintiffs-Appellees, v. Cecil D. ANDRUS,” as Sec-

retary of the Interior of the United States, et al. , Defendants-

Appellants, Kern County Water Agency, a public agency,

et al., Intervenors-Appellants.

Nos. 76-1464, 76-1494, 76-1534, 76-1651, 76-1663 and

76-1981.

United States Court of Appeals, Ninth Circuit. Oct. 31,

1979. Rehearing Denied Jan. 17, 1980.

Walter E. Wunderlich, Deputy Atty. Gen., Dept. of Jus-

tice, Sacramento, Cal., for defendants-appellants.

Robert Thum, San Francisco, Cal., on brief; John Clark,

San Francisco, Cal., for plaintiffs-appellees.

Appeal from the United States District Court for the

Northern District of California.

Before ELY, TRASK, and TANG, Circuit Judges.

ELY, Circuit Judge:

These appeals stem from the efforts of two environment

associations and two private citizens’ to control the pumping

of water from the Sacramento-San Joaquin Delta (the Delta)

into the canals and aqueducts of the California Water Proj-

ect. The facts are reported fully in the excellent opinion of

"Mr. Andrus is the present Secretary of the Interior. He has been

substituted as an appellant for one of his predecessors who was orig-

inally named as a party in his official capacity. Rule 43(c) Fed.R.App.P.

‘The appellees, plaintiffs below, are the Sierra Club, a nonprofit

California corporation having in excess of 130,000 members, of whom

more than 40,000 are in the San Francisco Bay and Sacramento-San

Joaquin Delta areas; Friends of the Earth, a nonprofit New York cor-

poration that has its principal place of business in San Francisco; Hank

Schramm, a commercial fisherman active in the San Francisco Bay and

the Pacific Ocean; and William Dixon, a Sacramento-San Joaquin Delta

landowner.

Ree "es

District Judge Renfrew. Sierra Club v. Morton, 400 F.Supp.

610 (N.D.Cal. 1975). After the first phase of a bifurcated

trial the District Court ordered the federal’ and state’ de-

fendants to obtain authorization for the operation of their

pumping plants from the United States Army Corps of En-

gineers (the Corps), pursuant to section 10 of the Rivers

and Harbors Act of 1899, 33 U.S.C. § 403 (1970). The

court also ordered the Secretary of the Army to prepare an

environmental impact statement prior to the issuance of such

authorization. Jd. at 651. In addition, the court enjoined

construction on the proposed Peripheral Canal until an en-

vironmental impact statement was prepared and authoriza-

tion from the Corps was obtained. The Peripheral Canal

would transfer water directly from the Sacramento River to

a point close to the pumping plants. Since the trial court

*The named federal appellants, the defendants below, were federal

officers who administer the various agencies responsible for overseeing

the operation, construction, and regulation of the facilities in question.

They were Rogers C.B. Morton, Secretary of the Interior; Gilbert

Stamm, Commissioner of the Bureau of Reclamation; Howard H. Cal-

laway, Secretary of the Army; William C. Gribble, Jr., Chief of En-

gineers of the South Pacific Division of the United States Army Corps

of Engineers; Col. Frederick J. Rockwell, District Engineer of the Army

Corps of Engineers for the Sacramento, California District: and Col.

James L. Lammie, District Engineer of the Army Corps of Engineers

for the San Francisco, California district. Because all of these individ-

uals were sued in their official capacity, their successors are automat-

ically substituted as some of the appealing parties. Fed.R.App.P. 43(c).

named state defendants in the District Court were Norman B.

Livermore, Jr., Secretary for Resources; and John R. Teerink, Director

of the Department of Water Resources. Like the federal parties, the

named state appellants were sued in their official capacity, and their

successors are automatically substituted as parties to the appeal in this

court. Fed.R.App.P. 43(c).

The District Court also allowed the Kern County Water Agency, the

Metropolitan Water District of Southern California, the Tulare Lake

Basin Water Storage District, and the Santa Clara Valley Water District

to intervene in these actions. The intervenors are public agencies of the

State of California that have contracted for water from the California

Water Project and have undertaken extensive financial obligations in

reliance thereon.

RoE, Sees

has not yet conducted the relief phase of the bifurcated trial,

it has not yet determined whether the appellees are entitled

to further relief; accordingly, it has allowed the continuing

operation of the pumping plants.

Here, the federal and state parties present five principal

arguments. First, they contend that the Rivers and Harbors

Act of 1899, 33 U.S.C. §§ 401-418 (1970) (the Act), does

not create a private right of action, and that, therefore, only

the United States can enforce the permit requirements of

section 10.* Second, they contend that even if a private right

of action exists, the appellees lacked standing to institute

their suit. Third, it is asserted that section 10 does not apply

to the pumping of water from the Sacramento-San Joaquin

Delta; and fourth, if compliance with section 10 is required,

such compliance already exists. Finally, the federal parties

argue that since their plant, the Tracy Pumping Plant, was

fully operational before the enactment of the National En-

vironmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347

(1970 & Supp. V 1975), no environmental impact statement

“Section 10 of the Rivers and Harbors Act of 1899 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 recom-

mended by the Chief of Engineers and authorized by the Secretary

of the Army; and it shall not be lawful to excavate or fill, or in

any manner to alter or modify the course, location, condition, or

capacity of, any port, roadstead, haven, harbor, canal, lake, har-

bor or refuge, or inclosure within the limits of any breakwater,

or of the vhannel of any navigable water of the United States,

unless the work has been recommended by the Chief of Engineers

and authorized by the Secretary of the Army prior to beginning

the same.

33 U.S.C. § 403 (1970).

a ee

1S necessary if a section 10 permit is required. Neither the

federal nor the state parties challenge the District Court’s

ruling concerning the Peripheral Canal.

We have concluded that a private right of action should

be implied on behalf of parties who seek to enforce com-

pliance with the permit requirements of section 10 of the

Act and that three of the four piaintiffs, having alleged

particularized injuries, possess the requisite standing to avail

themselves of that right. We agree with the District Court

that the pumping of Delta water falls within the broad reach

of section 10 and that the state parties have been exporting

Delta water in violation of that provision. Unlike the District

Court, however, we believe that Congress authorized the

present operational level of the federal pumping plant,

thereby excusing its operators from the section 10 permit

requirement. Because of this second conclusion, we do not

reach the final issue, i.e., whether the federal parties would

be legally required to prepare an environmental impact state-

ment before granting a section 10 permit for the federal

pumping plant. We therefore affirm in part and reverse in

part.

I. FACTS

The federal and state pumping plants are integral elements

of the Central Valley and State Water Projects, which, to-

gether, constitute the California Water Project. The Central

Valley Project, administered by the United States Bureau

of Reclamation, consists of dams, reservoirs, pumping

plants, canals, and other facilities designed to generate hy-

droelectric power, provide flood control, and supply water

for irrigation and other uses in the Central Valley of Cali-

fornia. To this end, water from the winter runoff is stored

behind dams in the Sacramento River and then released, as

needed, to flow down river and into the Sacramento-San

Se et

Joaquin Delta, where it merges with other Delta waters. The

Tracy Pumping Plant, a principal component of the Central

Valley Project, pumps water from the Delta into the Delta-

Mendota Canal, a 115-mile canal leading to the Mendota

pool in the Central Valley. The pumping capacity of the

Tracy Pumping Plant is 4,602 cubic feet per second. In

1973 this plant pumped 2,127,341 acre-feet of water from

the Delta. |

The State Water Project, created by the Burns-Porter Act

of 1959 and now codified in Cal. Water Code §§ 12930-

12942 (West 1971), is the state analogue to the Central

Valley Project. It also consists of dams, canals, pumping

plants, and other facilities designed to generate power, pro-

vide flood control, and transfer water from the Delta to the

more arid regions of central, coastal, and southern Califor-

nia. The state pumping plant, known as the Delta Pumping

Plant, is central to the operation of this water project. Like

the Tracy Pumping Plant, it withdraws water from the Delta,

pumping it into a canal, where the water ultimately is per-

mitted to flow to its place of use. The pumping capacity of

the Delta Pumping Plant is now approximately 6,300 cubic

feet per second. This capacity can be increased to approx-

imately 10,300 cubic feet per second by the installation of

additional pumping units, and it is contemplated that the

first of these pumps will in fact be operational by 1980. In

1973 the Delta Pumping Plant withdrew 1,261,120 acre-

feet of water from the Delta. The State of California, through

its Department of Water Resources, has already entered into

contracts providing that at some future time the State Water

Project will annually deliver 4,230,000 acre-feet of water,

of which 95 percent will be pumped by the Delta Pumping

Plant. With the addition of the Peripheral Canal the potential

withdrawal of Delta water by both the Tracy and Delta

Pumping Plants will increase to approximately 7,000,000

oa ere,

acre-feet in 1990 and approximately 7,750,000 acre-feet by

2020.

The pumping, past and present, has had a significant

impact upon the Delta. The District Court found

that export pumping by these facilities both lowered

Delta water levels and at certain times caused net flow

reversals in Delta waterways. Although it is true that

the exact magnitude of these effects was not precisely

established, it is clear that they are far from any sort

of de minimus exception. . . .

400 F.Supp. at 632.° Before we address whether this impact

falls within the Corps’ regulatory jurisdiction under section

10, it is obvious that we must first determine whether plain-

“Because the Delta water flows in San Francisco Bay and is directly

affected by the tidal cycle, water in the Delta channels and rivers tends

to flow both up channel and down channel during the tidal cycle. For

any given tidal cycle, however, there is a greater volume of flow in

one direction. The amount of this excess is the net flow. A net flow

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

direction from that of the normal direction.

The District Court considered several studies of the effect of the

pumping on Delta water levels. A 1968 study, conducted by varying

the pumping rates of the Tracy Plant and measuring the actual effect

on water levels at various points, concluded that Delta water levels near

the inlet channel of the plant were lowered .1 foot per 1000 cubic feet

per second pumped. Effects of the pumping were detected as far away

as the San Joaquin and Sacramento Rivers. Another study measuring

the combined effect of the Tracy and Delta Plants concluded that di-

version of between 9,600 cubic feet per second and 12,000 cubic feet

per second during both high high and low high tides resulting in a

lowered water level of 1.0 to 1.5 feet at one location near the pumping

plants and almost .1 foot at a location on the San Joaquin River.

The District Court found that the above figures represented the min-

imum effect of the pumping plants on Delta water levels and that it

was “‘highly probable if not certain’’ that an increase in the amount of

pumping would result in greater effects. 400 F.Supp. at 631.

peg was

tiffs, as private individuals, can enforce the permit require-

ments of that section.°

II. PRIVATE RIGHT OF ACTION

To determine whether a statute contains an implied private

remedy, a court should consider four separate questions.

First, is the plaintiff a member of the ‘‘class for whose

especial benefit the statute was enacted?’’ Texas & Pacific

Railway Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482,

*Prior case law has not definitively resolved the issue. Recently, our

Circuit recognized an implied private right of action for damages caused

by the negligent operation and maintenance of a bridge over navigable

waters, alleged to constitute violations of both section 10 and a provision

of the Bridge Act of 1906, 33 U.S.C. § 512 (1970). Riggle v. Cali-

fornia, 577 F.2d 579 (9th Cir. 1978). Although Riggle did not involve

either the permit requirement of section 10 or injunctive relief, that

decision strongly supports our reading of the Act. See 577 F.2d at 582-

83.

On the other hand, in general terms the Third Circuit has stated that

Congress, in exercising its regulatory authority over navigation, did not

‘“create any civil cause of action in favor of private parties injured by

any violation of the Act.’ Red Star Towing & Transp. Co. v. De-

partment of Transportation of New Jersey 423 F.2d 104, 105 (3d Cir.

1970). That case, however, presented a different issue, whether the

1899 Rivers and Harbors Act abrogated the eleventh amendment im-

munity of a state from suit in admiralty. According to the Third Circuit,

Congress did not intend such a result. Id. at 106: cf. Williamson Towing

Co. v. Illinois, 534 F.2d 758 (7th Cir. 1976) (regulation under Bridge

Act of 1906, 33 U.S.C. §§ 491-498 (1970), does not abrogate state

immunity from suit in admiralty); /ntracoastal Transp., Inc. v. Decatur

County, 482 F.2d 361 (Sth Cir. 1973) (same). But cf. Chesapeake Bay

Bridge & Tunnel Dist. v. Lauritzen, 404 F.2d 1001, 1003 (4th Cir.

1968) (state immunity abrogated by reason of regulation under the

Rivers and Harbors Act of 1899).

Here, an eleventh amendment issue is not present because appellees

sought only injunctive relief requiring the State to conform its conduct

to the requirements of a federal statute. See Edelman v. Jordan, 415

U.S. 651, 664, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). To the extent

that Red Star Towing may be construed as holding that no private right

of action exists under section 10, we disagree. Cf. Libby Rod and Gun

Club v. Poteat, 594 F.2d 742 (9th Cir. 1979) (sub silentio recognition

of private cause of action under section 9 of the Act) see discussion

of Libby Rod and Gun Club at note 36, infra).

pate: Fon

484, 60 L.Ed. 874 (1916). Second, is there any indication

of legislative intent, explicit or implicit, either to create or

to deny a private right of action? Third, do the underlying

purposes of the legislative scheme conflict with private en-

forcement of the act? Fourth, and last, ‘‘is the cause of

action one traditionally relegated to state law, in an area

basically the, concern of the States, so that it would be

inappropriate to infer a cause of action based solely on

federal law?’’ Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080,

2088, 45 L.Ed.2d 26 (1975); see Piper v. Chris-Craft In-

dustries, 430 U.S. 1, 37-41, 97 S.Ct. 926, 51 L.Ed.2d 124

(1977); 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 Association

of Railroad Passengers, 414 U.S. 453, 457-458, 94

S.Ct. 690, 38 L.Ed.2d 646 (1974); Starbuck v. City &

County of San Francisco, 556 F.2d 450, 454 (9th Cir.

1977).

Although we have found no hard and precise indication

of a congressional intent to create or deny a private remedy

under section 10, we believe, without significant doubt, that

such a remedy does exist. The plaintiffs below are members

of a class for whose benefit Congress enacted the statute,

and implication of a private remedy is both consistent with

the purposes of the Act and complementary to its enforce-

ment.

A. Beneficiaries of the Rivers and Harbors Act

The plaintiffs in this case who use the Delta and the San

Francisco Bay also belong to the class for whose especial

benefit the statute was enacted. Long ago, in 1888, the

Supreme Court decided that federal common law did not

prohibit obstructions and nuisances in navigable waters of

the United States. Willamette Iron Bridge Co. v. Hatch,

ion

125 U.S. 1, 8 S.Ct. 811, 31 L.Ed. 629 (1888). Therefore,

the Court held that a private party could not obtain an in-

junction against the construction of a bridge over a navigable

water. Congress promptly responded by enacting section 10

of the Rivers and Harbors Act of 1890, 26 Stat. 426, 454,

which forbids obstructions not affirmatively authorized by

law. This section, with minor changes, became section 10

of the 1899 Act. Since that time, courts have granted relief

to private parties who suffer special injury because of un-

authorized obstructions. For example, in Neches Canal Co.

v. Miller & Vidor Lumber Co., 24 F.2d 763 (Sth Cir. 1928),

a lumber company sued to recover losses caused by the

construction of an unauthorized sand dam in the Neches

River. The company recovered the expense it had incurred

in raising its logs, which had sunk in the river because of

the obstruction. In Tatum v. Blackstock, 319 F.2d 397 (Sth

Cir. 1963), a landowner with property adjacent to navigable

waters sought to enjoin unauthorized dredging and filling,

which would have altered the flow of the navigable waters

to the detriment of his property. The court upheld a prelim-

inary injunction against further activity until the Corps of

Engineers issued a permit. Recently, our own court re-

manded for trial one of the consolidated appeals in Leslie

Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978), in

which a private association contended that diked evaporation

ponds in and around Bair Island in San Francisco Bay were

built in violation of the Act because Corps permits had not

been obtained.’

The intervening state water agencies contend that the Act is meant

to benefit only those who are involved in navigational pursuits. The

cases cited above amply refute the contention that the Act is so limited.

All users of navigable waters are beneficiaries of the Act.

F%

aan ees

The federal parties argue that only the federal government

is a beneficiary of the Act, relying upon an isolated state-

ment of the Supreme Court in Wyandotte Transportation Co.

v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 386,

19 L.Ed.2d 407 (1967), that ‘‘a principal beneficiary of the

Act, if not the principal beneficiary, is the Government

itself.’ Wyandotte, however, does not preclude private par-

ties from also being recognized as beneficiaries of the Act.®

Indeed, the Court’s pronouncement, which expressly leaves

open the class for whose benefit the Act was passed, was

made in the context of expanding, not contracting, the rem-

edies under the Act. As the District Court succinctly stated,

‘“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 obstructions to

the navigable capacity of its navigable waterways.’ 400

F.Supp. at 623 (footnote omitted).

B. Legislative Intent

The legislative history of the Rivers and Harbors Act of

"The Supreme Court, itself, at least sub silentio, has recognized

others as beneficiaries of the Act. In Wisconsin y. Illinois, 278 U.S.

367, 49 S.Ct. 163, 73 L.Ed. 426 (1929), the plaintiffs, alleging in their

complaint a violation of the Act, sought to enjoin the withdrawal of

8,500 cubic feet of water per second from Lake Michigan. The de-

fendants, having received a permit from the Secretary of War author-

izing the withdrawal, raised the Act as a defense. Significantly, the

Court, not pausing to question whether plaintiffs had the right to invoke

the protection of the Act, only stated that the facts pleaded by plaintiffs

constituted a cause of action. Jd. at 409, 49 S.Ct. 163. The Court then

proceeded directly to a review of the defendants’ activity. Finding that

the defendants’ permit had authorized only a temporary withdrawal of

water and that absent continuing authorization the withdrawal was un-

lawful, the Court held that the withdrawal should be enjoined. /d. at

417-21, 49 S.Ct. 163. This case, standing alone, might constitute ad-

equate authority for allowing others beside the federal government to

enforce the requirements of the Rivers and Harbors Act. The decision

openly recognizes that others are beneficiaries of the Act’s provisions.

ie

1899 does not reflect a congressional intent either to afford

a private remedy or to deny one.” Nor is the statutory lan-

guage itself determinative. Section 12 of the Act provides

for the enforcement of section 10, making a violation of

section 10 a misdemeanor punishable by either a fine or

imprisonment and authorizing a district court to enjoin the

violation."” Section 17 of the Act, in conjunction with sec-

"The intervening state water agencies contend that the legislative

history does suggest an intent to foreclose private enforcement of the

Act. By amendment to a bill considered prior to the 1890 statute, which

later became part of 1899 Act, the Senate eliminated language allowing

suit by private persons and substituted language restricting enforcement

to United States Attorneys. $.27, 50th Cong., Ist Sess., 19 Cong.Rec.

2338 (1887). A close reading of the amendment, however, discloses

that the Senate was addressing the question whether a private party

could enforce the penal provisions of the legislation. It is generally

agreed that such qui tam actions are not permitted. See, e.g., Jacklovich

v. Interlake, Inc., 458 F.2d 923 (7th Cir. 1972): Connecticut Action

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

amendment does not indicate a legislative intent to preclude other pri-

vate actions under the 1899 Act.

“Section 12 provides:

Every person and every corporation that shall violate any of

the provisions of sections 401, 403, and 404 of this title or any

rule or regulation made by the Secretary of the Army in pursuance

of the provisions of section 404 of this title shall be deemed guilty

of a misdemeanor, and on conviction thereof shall be punished

by a fine not exceeding $2,500 nor less than $500, or by im-

prisonment (in the case of a natural person) not exceeding one

year, or by both such punishments, in the discretion of the court.

And further, the removal of any structures or parts of structures

erected in violation of the provisions of the said sections may be

enforced by the injunction of any district court exercising juris-

diction in any district in which such structures may exist, and

proper proceedings to this end may be instituted under the direc-

tion of the Attorney General of the United States.

33 U.S.C. § 406 (1970). Although this section expressly mentions

enjoining only the erection of ‘‘structures”’ in violation of section 10,

it is now settled that a District Court may enjoin any obstruction that

violates section 10. United States v. Republic Steel Corp., 362 U.S.

482, 491-92, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960).

pret Se

tion 12, places the duty of enforcement upon the Attorney

General and the Department of Justice."'

Normally, these express statutory provisions would imply

that no other means of enforcement are intended, with only

clear contrary evidence of a legislative intent to rebut this

presumption. See Securities Investor Corp. v. Barbour, su-

pra, 421 U.S. at 419, 95 S.Ct. 1733, Naticnal Railroad

Passenger Corp. v. National Association of Railroad Pas-

sengers, supra, 414 U.S. at 458, 94 S.Ct. 690. This prin-

ciple, however, does not apply to the Rivers and Harbors

Act of 1899. The Supreme Court has consistently construed

"Section 17 provides:

The Department of Justice shall conduct the legal proceedings

necessary to enlorce the provisions of sections 401, 403, 404,

406, 407, 408, 409, 411, 549, 686, and 687 of this title: and it

shall be the duty of United States attorneys to vigorously prosecute

all offenders against the same whenever requested to do so by

the Secretary of the Army or by any of the officials hereinafter

designated, and it shall furthermore be the duty of said United

States attorneys to report to the Attorney General of the United

States the action taken by him against offenders so reported, and

a transcript of such reports shall be transmitted to the Secretary

of the Army by the Attorney General; and for the better enforce-

ment of the said provisions and to facilitate the detection and

bringing to punishment 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 without process for any offense

not committed in the presence of some one of the aforesaid of-

ficials: And provided further, That whenever any arrest is made

under such sections, the person so arrested shall be brought forth-

with before a commissioner, judge, or court of the United States

for examination of the offenses alleged against him; and such

commissioner, judge, or court shall proceed in respect thereto as

authorized by law in case of crimes against the United States.

33 U.S.C. § 413 (1970).

ey, We

the Act’s language in a manner apparently aimed toward

effectuating the underlying statutory policies. See, e.g.,

Wyandotte Transp. Co. v. United States, supra, 389 U.S.

at 201, 88 S.Ct. 379; United States v. Republic.Steel Corp.,

362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960). The

Court has already determined that the penal provisions of

the Act do not preclude implication of a civil action. Cort

v. Ash, supra, 422 U.S. at 79, 95 S.Ct. 2080. Wyandotte

Transp. Co. v. United States, supra, 389 U.S. at 201-202,

88 S.Ct. 379. Accordingly, we believe that the Attorney

General’s enforcement responsibilities were not meant to

foreclose the implication that private actions are authorized

to promote the purposes of section 10.'* Rather,

[w]e read the 1899 Act charitably in light of the purpose

to be served. The philosophy of the statement of Mr.

Justice Holmes ... that ‘‘A river is more than an

amenity, it is a treasure,”’ forbids a narrow cramped

reading either of § 13 or of § 10.

Republic Steel Corp., supra, 362 U.S. at 491, 80 S.Ct. at

890.

“Examining a similar statutory scheme, the Supreme Court held that

a provision expressly providing for enforcement by the Attorney Gen-

eral did not preclude implication of a private remedy. In Allen v. State

Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969),

the Court identified a private right of action to enforce the Voting Rights

Act of 1965, 42 U.S.C. §§ 1973-1973p (1970), notwithstanding an

express provision that ‘‘the Attorney General may institute ... an

action for preventive relief,’’ id. § 1973(j). 393 U.S. at 554-57, 89

S.Ct. 817.

Like the Voting Rights Act of 1965, the Rivers and Harbors Act of

1899 provides that ‘‘proper proceedings . . . may be instituted under

the direction of the Attorney General of the United States.’’ 33 U.S.C.

§ 406 (1970). As in Allen, the express reference does not necessarily

preclude a private right of action. Rather, we must further determine

whether it would be consistent with the broad purposes of the Act to

imply such a remedy.

ae te

C. Consistency with Legislative Scheme

Our third inquiry concerns the consistency of implying

a private right of action under section 10 with the underlying

purposes of the legislative scheme. We perceive a private

right of action as both consistent with the purposes of the

Rivers and Harbors Act and complementary to its enforce-

ment.

Section 10 prohibits unreasonable obstructions to navi-

gable capacity, and in those instances specifically enum-

erated in its second and third clauses, the statute directs the

Secretary of the Army, acting upon the recommendation of

the Chief of Engineers, to determine what constitutes an

unreasonable obstruction. Wisconsin v. Illinois, 278 U.S.

367, 413, 49 S.Ct. 163, 73 L.Ed. 426 (1929). The under-

lying purpose of section 10 is clear. That purpose is to keep

the navigable waters of the United States free from unrea-

sonable obstructions. Private suits such as the present one

promote this policy by assuring Corps review of those ac-

tivities that could obstruct the navigable capacity of the

Nation’s waters by altering or modifying their course, con-

dition, or capacity."’

The District Court reasoned that exclusive enforcement

of the criminal provisions should be vested in the Attorney

General but that the Attorney General had neither the time

nor the resources to seek redress for all violations of the

Act. 400 F.Supp. at 624-25. The court concluded that a

“We do not mean to imply that the Corps should consider only

navigational interests when issuing a permit. Since the passage of the

1899 Act. Congress has enacted additional legislation directing federal

officials to consider ecological and environmental effects in addition

to navigation when discharging their duty. See, e.g.. Fish and Wildlife

Coordination Act. 16 U.S.C. §§ 661-666c (1976): National Environ-

mental Policy Act of 1969. 42 U.S.C. §§ 4321-4347 (1970 & Supp.

V 1975). See generally Zabel v. Tabb, 430 F.2d 199 (Sth Cir. 1970),

cert. denied, 401 U.S. 910. 91 S.Ct. 873, 27 L.Ed.2d 808 (1971).

Bes Oe

private right of action was necessary to protect private par-

ties who suffer special injuries because of these violations.

Id. at 625. We agree,'* but we do not rest this conclusion

solely upon recognition of the Attorney General’s lack of

resources. An additional problem, exemplified by this case,

is that the federal government, which is specifically directed

to enforce the Act, may itself be charged with violating its

provisions.'* Unless private rights of action are permitted,

federal violations could operate so as to wholly frustrate the

purposes of the Act. See Illinois ex rel. Scott v. Hoffman,

425 F.Supp. 71, 75-76 (S.D.II. 1977); cf. Miller v. Mallery,

410 F.Supp. 1283, 1289 (D.Or. 1976).

Unlike the possible result faced by the Supreme Court

in Securities Investor Protection Corp. v. Barbour, supra,

421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263, and National

Railroad Passenger Corp. v. National Association of Rail-

road Passengers, supra, 414 U.S. 453, 94 S.Ct. 690, 38

L.Ed.2d 646, implication of a private remedy under section

10 does not raise the spectre of judicial encroachment upon

executive policymaking. It is not here argued that the Corps

cannot issue permits for the continued operation of the Tracy

and Delta Pumping Plants. The Corps can grant to the ap-

“See generally River v. Richmond Metropolitan Auth., 359 F Supp.

611 (E.D.Va.), aff'd, 481 F.2d 1280 (4th Cir. 1973),

“In this respect, the federal appellants base one of their arguments

against upholding a private right of action on the contention that to

allow such an action would amount to finding an implied waiver of

sovereign immunity. We, however, have the obligation to ensure federal

compliance with those measures enacted by Congress to protect the

environment. To the extent that the involved federal officials have

exceeded their statutory authority or have exercised that authority in

an illegal manner, this suit falls within one of the well recognized

exceptions to sovereign immunity. City of Santa Clara v. Andrus, 572

F.2d 660, 679 (9th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 177,

58 L.Ed.2d 167 (1978); Association of Northwest Steelheaders v.

United States Army Corps of Eng’rs, 485 F.2d 67, 69 (9th Cir. 1973);

Washington v. Udall, 417 F.2d 1310, 1314 (9th Cir. 1969).

vy

7%

ix

propriate federal and state officers permission to continue

their pumping operations. If permits are properly obtained,

the right of the appellees to enforce section 10 will not then

extend so as to entitle them to obtain redress for their injury.

It remains true that the Congress and the Corps ultimately

decide which activities affecting navigable waters are per-

missible. '°

D. State Law

Finally, we hold that this case is not the type of action

traditionally relegated to state law. The appellants focus on

allegations of the possible adverse effects upon fish and

wildlife, contending that these are basically state concerns

to be remedied under the law of nuisance. This approach

is much too narrow. Activities affecting the navigable ca-

This result distinguishes Securities Investor Protection Corp. v.

Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975) and

National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers.

414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646 (1974), two Supreme

Court cases in which no private rights of action were found to exist.

In both of those cases, the plaintiffs sought to challenge decisions made

by corporate entities created by Congress to solve public problems.

Had the Court recognized a private right of action. the subsequent

litigation would have undercut the decisions of the corporations. thus

upsetting the legislative scheme devised by Congress. Securities Inves-

tor Protection Corp. v. Barbour, supra, 421 U.S. at 422-23. 95 S.Ct.

1733; National R.R. Passenger Corp. v. National Ass'n of R.R. Pas-

sengers, supra 414 U.S. at 463, 94 S.Ct. 690. Additionally. in both

instances, the legislation and its relevant history indicated an attempt

to preclude private rights of action. Securities Investor Protection Corp.

v. Barbour, supra 421 U.S. at 420 n. 3, 421, 95 S.Ct. 1733: National

R.R. Passengers Corp. v. National Ass'n of R.R. Passengers, supra.

414 US. at 457-61. 94 S.Ct. 690. Thus, no private right of action was

found to exist.

Here, the private right of action asserted by the appellees is not aimed

at the decisions of the agency enforcing the Act. They are not chal-

lenging the issuance of permits, nor are they attempting to require the

United States to prosecute a party for violation of the Act. Rather than

attempting to disrupt the legislative scheme. the appellees are seeking

to enforce that scheme.

me, eee

pacity of navigable waters of the United States are matters

of federal, not state, law. Wyandotte Transportation Co.

v. United States, supra, 389 U.S. at 201, 88 S.Ct. 379. We

agree with the District Court that

[t]here is a federal interest in protecting persons from

injuries resulting from unauthorized obstructions to the

navigable capacity of navigable waters of the United

States and possible federal intrusion into the area of

State nuisance law is necessary so that the federal in-

terest asserted here will not be compromised by con-

trary state law.

400 F.Supp. at 625.

We emphasize, even though such emphasis should be

unnecessary, that our decision does not permit private par-

ties to enforce the criminal provisions of the Rivers and

Harbors Act. The Act does not authorize qui tam actions"

to enforce its criminal penalties. Section 17 of the Act, 33

U.S.C. § 413 (1970), vests exclusive enforcement of its

penal provisions in the Department of Justice. Jacklovich

v. Interlake, Inc., 458 F.2d 923 (7th Cir. 1972); Connecticut

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

Cir. 1972); Durning v. ITT Rayonier, Inc., 325 F.Supp.

446 (W.D. Wash. 1970). Nor do we intend to hold that

private parties may sue on behalf of the general public or

seek to enjoin violations of section 13 of the Act, 33 U.S.C.

§ 407 (1970). These questions are not before us, but there

is good and sufficient reason to express our thought that this

responsibility is also committed exclusively to the Depart-

ment of Justice. See Connecticut Action Now, supra at 88-

"A qui tam action is a civil proceeding in which an informer sues

for the Government, as well as for himself, to recover a penalty under

a particular statute. Statutory authority for the action must be specifi-

cally provided. Connecticut Action Now, Inc. v. Roberts Plating Co.,

457 F.2d 81, 84 (2d Cir. 1972).

aa,

89; Guthrie v. Alabama By-Products Co., 328 F.Supp.

1140, 1144-48 (N.D.Ala. 1971), aff'd, 456 F.2d 1294 (Sth

Cir. 1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1352. 35

L.Ed.2d 613 (1973); Bass Angler Sportsman Society v.

United States Steel Corp., 324 F.Supp. 412, 416 (N.D.,

M.D.,S.D.Ala. 1971), aff d, 447 F.2d 1304 (5th Cir. 1971)

(per curiam).

Accordingly, we hold that private parties who suffer spe-

cial injuries because of unauthorized activities affecting the

navigable capacity of our Nation’s waters may sue to enforce

the permit requirements of section 10. There are no indicia

of legislative intent to exclude a private right of action, and

without this remedy, users of the Delta and the San Fran-

cisco Bay would be unable to obtain Corps review of the

activities that are causing them injury.

Ill. STANDING

The intervening state water agencies contend that the

appellees lacked standing to bring their action. Under the

Supreme Court cases of Simon v. Eastern K entucky Welfare

Rights Organization, 426 U.S. 26, 96 S.Ct. 1917, 48

L.Ed.2d 450 (1976), and Warth v. Seldin, 422 U.S. 490,

95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), as succinctly sum-

marized by us in Bowker v. Morton, 541 F.2d 1347 (9th

Cir. 1976), a plaintiff must allege ‘‘(a) a particularized

injury (b) concretely and demonstrably resulting from de-

fendant’s action (c) which injury will be redressed by the

remedy sought.’’ Jd. at 1349.

anal.

The individual appellees meet the standard. '* Both have

alleged a particularized injury caused by the pumping, and,

although the injury may continue if the Corps eventually

allows continued pumping, it may be redressed if the Corps

restricts or regulates the pumping operation. Unlike the

plaintiffs in Simon v. Eastern Kentucky Welfare Rights Or-

ganization, supra, 426 U.S. 26, 96 S.Ct. 1917, who sued

the Secretary of the Treasury to contest a revenue ruling

favorable to nonprofit hospitals offering only emergency

room services to indigents, the individual plaintiffs’ injury

‘‘can be traced to the challenged action of the defendant,

'*The District Court found:

Plaintiffs in this case are The Sierra Club, Friends of the Earth,

Hank Schramm, and William Dixon. The Sierra Club is a non-

profit California corporation having in excess of 130,000 mem-

bers of whom more than 40,000 live in San Francisco Bay and

the Sacramento-San Joaquin Delta areas. Included in the mem-

bership of the Sierra Club are many persons who use the waters

referred to in the complaint for recreational purposes, including,

but not limited to, boating, fishing and swimming. The stated

purposes of the Sierra Club included the preservation and con-

servation of the natural resources, fish, and wildlife of the United

States, including its rivers, bays, wetlands, deltas, and estuarine

areas.

Friends of the Earth is a nonprofit New York corporation which

has its principal place of business in San Francisco. Its stated

purposes include the preservation, restoration, and rational use

: of the environment.

Hank Schramm is and has been engaged for the past 20 years

in the business of commercial fishing and the operation of sports

fishing and party boats in the San Francisco Bay and the Pacific

Ocean. Schramm has an economic interest in this controversy

since he depends for his livelihood on the maintenance, preser-

vation, 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, includ-

ing a partnership interest in the St. Germain Duck Club on Sim-

mons Island, and consequently has an economic interest in the

maintenance, preservation, and conservation of adequate non-pol-

luted supplies of water in the Delta and San Francisco Bay regions.

400 F.Supp. at 619.

ce,” aes

and [is] not injury that results from the independent action

of some third party not before the Court.’’ Simon, supra

at 41-42, 96 S.Ct. at 1926."

The intervenors further contend that the appellees did not

meet the second standing requirement, a nonconstitutional

requirement, that ‘‘the interest sought to be protected by the

complainant [is] arguably within the zone of interest to be

protected or regulated by the statute in question.’’ Associ-

ation of Data Processing Service Organizations, Inc. v.

Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 830, 25 L.Ed.2d

184 (1970); Simon v. Eastern Kentucky Welfare Rights

Organization, supra, 426 U.S. at 39, n.19, 96 S.Ct. 1917.

The intervenors’ argument is founded upon their belief that

the zone of interest to be protected encompasses only nav-

igational pursuits, a tenet that is incorrect. Under section

10 the Corps must consider not only the effect of an activity

upon navigation, but also its impact upon the environment.

United States v. Joseph G. Moretti, Inc., 526 F.2d 1306,

1310 (Sth Cir. 1976), Zabel v. Tabb, 430 F.2d 199, 213-

14 (Sth Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct.

873, 27 L.Ed.2d 808 (1971). We therefore hold that the

appellees’ interest in the environmental quality of the Delta

and San Francisco Bay is within the zone of interests pro-

tected under the Rivers and Harbors Act. See Alameda Con-

“The intervenors argue that no evidence of injury to these plaintiffs

was adduced at trial, and, thus, that the appellees were without standing.

Under the pretrial order, however, the District Court has deferred taking

evidence relating to the environmental effect of the pumping upon the

Delta and the San Francisco Bay until the second phase of the trial,

which has not yet occurred. Certainly, the intervenors do not dispute

that there is evidence that the pumping has caused net flow reversals

and lowered water levels in the Delta. The appellees have sufficiently

alleged a demonstrable, particularized injury that may result from the

pumping activities, and they will have the opportunity to prove their

injury in the second portion of the bifurcated trial.

aa, SE

servation Association v. California, 437 F.2d 1087, 1091

(9th Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28

L.Ed.2d 649 (1971) (standing for private party alleging

injury to fish).

Because the individual appellees possess the requisite

standing to maintain this suit, it would ordinarily be needless

for us to consider whether the environmental associations

also have standing. Arlington Heights v. Metropolitan Hous-

ing Development Corp., 429 U.S. 252, 263-64 & n.9, 97

S.Ct. 555, 50 L.Ed2d 450 (1977). Since the second portion

of the bifurcated trial has not yet occurred, however, we

think it desirable to offer some procedural guidelines to the

District Court. We shall address the issue briefly. An or-

ganization’s abstract concern with a subject is insufficient

to confer the requisite standing, Sierra Club v. Morton, 405

U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), but when

the organization fails to allege an injury to itself as an

organization, it can establish standing by showing that it

represents individual members who have themselves suf-

fered injury and who thus could have properly sued in their

own right. Simon v. Eastern Kentucky Welfare Rights Or-

ganization, supra, 426 U.S. at 40, 96 S.Ct. 1917; Warth

v. Seldin, supra, 422 U.S. at 511, 95 S.Ct. 2197. The Sierra

Club has satisfied the test by alleging injuries to members

who use the San Francisco Bay for boating and recreational

purposes. Friends of the Earth, on the other hand, has not

met the requirement. It has alleged nothing more than a

general organizational interest in preservation of the envi-

ronment.” Thus, it has no standing to invoke judicial res-

olution of the controversy. The judgment of the District

Court is vacated as to Friends of the Earth, and upon remand

See note 18, supra.

coe ea

the District Court will dismiss the complaint as to Friends

of the Earth.

IV. SECTION 10 OF THE RIVERS

AND HARBORS ACT OF 1899

We now turn to the merits. First, the appellants attack

the trial court’s decision on the scope of section 10 of the

Rivers and Harbors Act of 1899.7!

The statute contains three distinct proscriptive clauses.

The first clause flatly prohibits the creation of any obstruc-

tion to ‘‘the navigable capacity of any of the waters of the

United States’’ unless affirmatively authorized by Congress.

The second and third clauses, on the other hand, permit

certain activities in navigable waters provided that they pro-

ceed on plans ‘‘recommended by the Chief of Engineers

and authorized by the Secretary of the Army.”’ These ac-

tivities include the building of structures in navigable waters

and the alteration or modification ‘‘in any manner’’ of the

condition, capacity, or channel of any navigable water.

The District Court held that

the operation of the Tracy and Delta Plants obstructs

the navigable capacity of various waters in the Delta,

and because these obstructions are the result of mod-

ification or alteration of the condition or capacity of

the channel of navigable water, they are governed by

the third clause of Section 10.

400 F.Supp. at. 638. In so ruling, the court accepted the

convincing factual evidence that export pumping by the

Tracy and Delta facilities had lowered the level of navigable

waters in the Delta by as much as 1.5 feet in at least one

*'See note 4, supra.

a, , Se

place and had caused net flow reversals in certain channels.

The District Court apparently believed that the controlling

issue was whether a given diversion constituted an obstruc-

tion to navigable capacity.’

We decline to adopt the District Court’s approach, be-

lieving that it would necessarily present the courts with

difficult definitional problems in a variety of factual con-

texts. Instead, we interpret clauses 2 and 3 of section 10

as constituting a legislative enumeration of specific obstruc-

tions to navigable Capacity that require Corps authorization.

“In their opening brief the State appellants assert that the trial court

entertained *‘the mistaken belief’’ that water levels on the San Joaquin

River would be lowered by 1.5 feet at low tide, a fact which was

disputed by the testimony of a civil engineer with the California State

Department of Water Resources. Brief for Appellants Norman Liver-

more and John Teerink [hereinafter cited as State Opening Brief] at 13.

The District Court opinion, however, explicitly notes the difference of

opinion as to the amount of diversionary impact on San Joaquin River

levels. 400 F.Supp. at 630 n.27. The court clearly rested its finding

of obstruction to navigable Capacity on separate evidence that the water

level would recede at least | to 1.5 feet in the vicinity of Clifton Court

Ferry and that operation of the pumping plants was causing net flow

reversals on the San Joaquin River and the Old and Middle Rivers. /d.

at 631-32.

“The court defined “navigable capacity’’ as ‘‘the Capacity for nav-

igation over any part of the waters in question when in their normal

condition,’’ and defined ‘‘obstruction to navigable capacity’’ as ‘‘to

interfere with or diminish the navigable capacity of the waterway in

question.’’ 400 F.Supp. at 630 n.23 (citing United States v. Rio Grande

Dam & Irrigation Co, 174 U.S. 690, 709, 19 S.Ct. 770, 43 L.Ed.

1136 (1899), and Hubbard v. Fort, 188 F. 987, 996 (C.C.D.N.J.1911) ).

The court observed that in Rio Grande the Supreme Court had stated

that not every appropriation of the upper waters of a navigable stream

waters.

i

In other words, the building activities mentioned in clauses

2 and 3 are presumed to be obstructions to navigable ca-

pacity. Under the statute the Secretary of the Army deter-

mines whether these obstructions are reasonable. Thus, the

facts in this case should be analyzed from the standpoint

of whether there has been any modification or alteration of

the condition or capacity of a navigable stream, rather than

first determining whether there has been an obstruction to

navigable capacity. “When one undertakes any of the ac-

tivities described in clause 2 or by his activities brings about

any of the results specified in clause 3, he violates section

10 if he has not first sought and obtained a permit from the

Corps of Engineers.

“The intervening appellants insist on the narrowest possible defi-

nition of navigable capacity. They argue that, in order to show the

existence of an obstruction to navigable capacity, plaintiffs must prove,

‘among other things,’’ the types o! vessels that utilize a particular

channel, the natural capacity of that channel to accommodate such

navigation, the ‘‘navigational pursuits’ of these types of vessels, and

the degree to which changes in the condition or capacity of the channel

may interfere with such pursuits. Brief for Intervenors and Appellants

Kern County Water Agency, et al. [hereinafter cited as Intervenors’

Brief] at 37-38. We fail to see any meaningful distinction between this

definition of obstruction to ‘‘navigable capacity’’ and a showing of

some effect on ‘‘actual navigation.’’ Moreover, this argument of the

intervenors is based on a fundamentally fallacious interpretation of

section 10 and its three clauses, the premise of which is that under

section 10 of the Rivers and Harbors Act of 1899,

{nJot all construction or work of the type described in Clauses

2 and 3 require approval of the Secretary of the Army. Section

10 approval is not required unless the structure or work would

create some kind of obstruction, and then the Secretary is called

on to determine the obstruction’s reasonableness.

Id. at 35. This interpretation, which introduces the requirement of a

procedural determination of substantial obstruction to navigable capac-

ity prior to submission to the Corps for approval, leaves unaddressed

the obvious problem of who is responsible for actually making the

interpretation. As we see it, our acceptance of this construction of

section 10 would stand the statute on its head.

re, | ae

In Sanitary District v. United States, 266 U.S. 405, 45

S.Ct. 176, 69 L.Ed. 352 (1925), the Supreme Court, con-

struing the Rivers and Harbors Act of 1899, held that the

diversion of water from Lake Michigan by the Sanitary

District of Chicago fell within the scope of section 10 and

was therefore beyond the power of a state in the absence

of specific authorization by the Corps of Engineers. The

Court referred to the fact that the Secretary of War had

reviewed the Chicago Drainage Channel diversions in 1913,

‘“including the obvious fact that so large a withdrawal would

lower the levels of the Lakes and the overwhelming evidence

that it would affect navigation.’’ Jd. at 430, 45 S.Ct. at

180. Nevertheless, Mr. Justice Holmes, for the Court, made

no specific findings or determinations as to the effect on the

actual navigable capacity of the lakes and rivers affected.

The Court wrote:

Evidence is sufficient, if evidence is necessary, to

show that a withdrawal of water on the scale directed

by the statute of Illinois threatens and will affect the

level of the Lakes, and that is a matter which cannot

be done without the consent of the United States, even

were there no international covenant in the case.

* * *

It is a broad expression of policy in unmistakable terms,

advancing upon an earlier Act of September 19, 1890,

. which forbade obstruction to navigable capacity

‘“not affirmatively authorized by law’’. . . . There is

neither reason nor opportunity for a construction that

would not cover the present case. As now applied it

concerns a change in the condition of the Lakes and

the Chicago River, admitted to be navigable, and, if

that be necessary, an obstruction to their navigable

capacity, . . . without regard to remote questions of

ocean

policy. It is applied prospectively to the water hence-

forth to be withdrawn. This withdrawal is prohibited

by Congress, except so far as it may be authorized by

the Secretary of War.

266 U.S. at 426, 429, 45 S.Ct. at 179-180.

Four years later, in Wisconsin v. Illinois, supra, 278 U.S.

367, 49 S.Ct. 163, 73 L.Ed. 426, the Supreme Court again

dealt with massive diversions by the Sanitary District of

Chicago, which had lowered, by ‘‘not less than six inches,”’

the levels of Lakes Michigan, Huron, Erie, and Ontario,

their connecting waterways, and the St. Lawrence River

above tidewater. Id. at 400, 49 S.Ct. 163. Chief Justice

Taft wrote:

[T]he broad words of the first clause of . . . [section

10] were not intended to limit the second and third

Clauses and . . . Congress’ purpose was a direct pro-

hibition of what was forbidden by them except when

affirmatively approved by the Chief of Engineers and

the Secretary of War... .

The true intent of the Act of Congress was that

unreasonable obstructions to navigation and navigable

Capacity were to be prohibited, and in the cases de-

scribed in the second and third clauses of Section 10,

the Secretary of War, acting on the recommendation

of the Chief of Engineers, was authorized to determine

what in the particular cases constituted an unreason-

able obstruction.

278 U.S. at 413, 49 S.Ct. at 170 (emphasis added). In short,

the Corps must av‘horize any of the structures or activities

enumerated in clauses 2 and 3, which are presumed to con-

stitute obstructions. The need for applying to the Corps for

a permit does not depend on some prior determination that

there has been an obstruction to navigable capacity.

ae, ee

Even more explicit is the opinion of the Supreme Court

in United States v. Republic Steel Corp., supra, 362 U.S.

482, 80 S.Ct. 884. There, the Court held that the unau-

thorized deposit of industrial solids in the Calumet River,

which reduced its depth by four to nine feet in some places,

constituted an obstruction to navigable Capacity and thus a

violation of section 10. The Court carefully distinguished

between the three clauses of the section:

The reach of § 10 seems plain. Certain types of

structures, enumerated in the second clause, may not

be erected ‘‘in’’ any navigable river without approval

by the Secretary of the Army. Nor may excavations

or fills, described in the third clause, that alter or mod-

ify ‘‘the course, location, condition, or Capacity of”’

a navigable river be made unless ‘‘the work’’ has been

approved by the Secretary of the Army. There is, apart

from these particularized invasions of navigable rivers,

which the Secretary of the Army may approve, the

generalized first clause which prohibits ‘‘the creation

of any obstruction not affirmatively authorized by Con-

gress, to the navigable capacity’’ of such rivers. We

can only conclude that Congress planned to ban any

type of ‘‘obstruction,’’ not mereiy those specifically

made subject to approval by the Secretary of the Army.

It seems, moreover, that the first clause being specif-

ically aimed at ‘‘navigable capacity’’ serves an end

that may at times be broader than those served by the

other clauses. Some structures mentioned in the second

clause may only deter movements in commerce, falling

short of adversely affecting navigable capacity. And

navigable capacity of a waterway may conceivably be

affected by means other than the excavations and fills

mentioned in the third clause. We would need to strain

hard to conclude that the only obstructions banned by

ee, eee

§10 are those enumerated in the second and third

clauses. In short, the first clause is aimed at protecting

‘‘navigable capacity,’’ though it is adversely affected

in ways other than those specified in the other clauses.

362 U.S. at 486-87, 80 S.Ct. at 887-888 (emphasis added).

Clearly, the structures and activities set forth in the second

and third clauses need not be shown to obstruct navigable

capacity before federal authorization is required by the terms

of the statute.

Finally, recent Fifth Circuit authority has established be-

yond cavil that an alteration or modification of navigable

waters is sufficient to trigger the permit requirement of

section 10 of the Rivers and Harbors Act. In United States

v. Joseph G. Moretti, Inc. (Moretti I), 478 F.2d 418, 429

n.37 (5th Cir. 1973), the Fifth Circuit held that ‘‘any filling

of navigable waters creates an obstruction to navigation.”’

When the same party came before the Fifth Circuit again,

the court held that to trigger the permit requirements of the

third clause of section 10, a party need only prove

factual circumstances showing some effect upon nav-

igable waters, some alteration or modification of either

course, location, condition or capacity of those waters.

These statutory terms are broad and undefined. So long

as activities fall within this generous scope, those ac-

tivities are subject to the jurisdiction of the Corps.

United States’v. Joseph G. Moretti, Inc. (Moretti I], 526

F.2d 1306, 1309 (Sth Cir. 1976); accord, Weiszmann v.

District Engineer, United States Army Corps of Engineers,

Apparently, under Moretti II a persuasive showing of ‘‘damagin

ecological effects upon navigable waters’’ suffices to establish an al-

teration or modification in the condition and capacity of waters violating

section 10, clause 3. /d. at 1310. Because of our conclusion and the

specific issues that are before us, we express no opinion as to the extent

to which ecological considerations may trigger the need for a permit

under section 10.

On

526 F.2d 1302, 1305 (Sth Cir. 1976); United States v. Sexton

Cove Estates, Inc., 526 F.2d 1293, 1296-99 (Sth Cir. 1976).

The state appellants and intervenors, however, present

another argument in support of their interpretation of section

10. They argue that Congress has left to the states the reg-

ulation of water rights including direct water supply diver-

sions, and that

[t]o a large extent Congress has chosen to subordinate

navigation uses to those diversions. Consequently ap-

plication of Section 10 of the 1899 Act to State au-

thorized water supply diversions requires a substan-

tially greater demonstration of tangible interference

with navigable capacity, than does application of Sec-

tion 10 to structures, fills, or sewage dilution diversion

activities that do not relate to public water supply.

Intervenors’ Brief, supra note 24, at 46. See also State

Opening Brief, supra note 22, at 14-20. To support their

argument, those parties cite various congressional enact-

ments, primarily in the area of reclamation, which contain

generalized statements announcing a congressional policy

of federal noninterference in state water laws and rights.”°

**In the appendix to their brief, the intervenors set our excerpts from

37 statutes containing references to congressional recognition of state

water rights, particularly in the area of state-authorized water diversions

for irrigation or consumption purposes. Typical of these statements is

one found in section 8 of the Reclamation Act of June 17, 1902, 43

U.S.C. § 383 (1970), which provides that nothing in that Act

shall be construed as affecting or intended to affect or to in any

way interfere with the laws of any State or Territory relating to

the control, appropriation, use, or distribution of water used in

irrigation, or any vested right acquired thereunder, and the Sec-

retary of the Interior, in carrying out the provisions of such sec-

tions, shall proceed in conformity with such laws, and nothing

in such sections shall in any way affect any right of any State or

of the Federal Government or of any landowner, appropriator,

or user of water in, to, or from any interstate stream or the waters

thereof.

Other representative statutes cited by the intervenors include the Flood

Control Act of 1944, 33 U.S.C. § 701-1(b) (1970); the Water Supply

Act of 1958, 43 U.S.C. § 390b(a) (1970); and the Federal Water Pol-

lution Control Act Amendments of 1972, 33 U.S.C. §§ 1251(b), 1370

(Supp. V 1975).

pre, See

The case authority interpreting the reclamation statutes

makes it clear to us that a principal purpose of such reference

to state law ‘‘is to leave to- state law the definition of the

property interests, if any, for which compensation must be

made’’ when these state or private rights and interests are

acquired by eminent domain. City of Fresno v. California,

372 U.S. 627, 629-30, 83 S.Ct. 996, 998, 10 L.Ed.2d 28

(1963) (emphasis added). The Supreme Court, analyzing

the effect on the California Central Valley Project of broad

language recognizing state water rights in section 8 of the

Reclamation Act of 1902,” explained:

[I]t merely requires the United States to comply with

State law when, in the construction and operation of

a reclamation project, it becomes necessary for it to

acquire water rights or vested interests therein. But the

acquisition of water rights must not be confused with

the operation of federal projects. As the Court said in

[State of] Nebraska v. |State of] Wyoming, supra {325

U.S. 589, 615, 65 S.Ct. 1332, 89 L.Ed. 1815 (1945)]:

‘“We do not suggest that where Congress has provided

a system of regulation for federal projects it must give

way before an inconsistent state system.”’

Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 291,

78 S.Ct. 1174, 1183-1184, 2 L.Ed.2d 1313 (1958). Simi-

larly, in United States v. Gerlach Live Stock Co., 339 U.S.

725, 70 S.Ct. 955, 94 L.Ed. 1231 (1959), the Supreme

Court specifically held that section 8 of the 1902 Act re-

flected a congressional intent, for the purposes of the Act,

not to take water rights without compensation under the

navigational servitude. Jd. at 737-39, 70 S.Ct. 955.

"43 U.S.C. §383 (1970), quoted at note 26 supra.

Se,” ae

As the Court has recently indicated, just last Term, the

general restriction on federal action embodied in section 10

is that-the Secretary of the Interior must “appropriate, pur-

chase, or condemn necessary water rights in strict conform-

ity with state law.’’ California v. United States, 438 U.S.

645, 665, 98 S.Ct. 2985, 2996, 57 L.Ed.2d 1018 (1978).

In that case, the Court, correcting some confusion con-

cerning the scope of section 8 engendered by its prior opin-

ions, ruled that the recognition of state law mandated by

section 8 is not limited to situations in which the United

States acquires water rights:

Section 8 cannot be read to require the Secretary to

comply with state law only when it becomes necessary

to purchaser or condemn vested water rights. That sec-

tion does, of course, provide for the protection of

vested water rights, but it also requires the Secretary

to comply with state law in the ‘‘control, appropriation,

use, or aistribution of water.”’

438 U.S. at 674-75, 98 S.Ct. at 3001. Therefore, the State

of California was permitted to impose any conditions on the

United States Bureau of Reciamation’s appropriation of

water from the Centrai Valley Project that did not conflict

with clear congressional directives authorizing the project.

Mr. Justice Rehnquist, writing for the majority, emphasized

that state water law governs federal operation of reclamation

projects only to the extent that Congress has chosen not to

legislate otherwise. The Court reaffirmed the validity of the

basic holdings of Ivanhoe, supra, 357 U.S. 275, 78 S.Ct.

1174, 2 L.Ed.2d 1313, and Fresno, Supra, 372 U.S. 627,

83 S.Ct. 996, 10 L.Ed.2d 28, i.e., that specific congres-

sional directives concerning reclamation override state law

to the extent that there is a conflict between the two bodies

of authority. 438 U.S. at 670-72, 98 S.Ct. at 2999: see id.

at 670 n.23, 671 n.24, 98 S.Ct. 2985.

ae

Section 8 of the 1902 Reclamation Act and the other

Statutory provisions for federal deference to state water

rights do not lend support to the novel suggestion made by

the appellants despite the new vitality, given those provi-

sions by California v. United States. The congressional

policy of compliance with state law for the appropriation,

purchase, condemnation, and distribution of water rights,

in the absence of express congressional provision to the

contrary, cannot be lifted from the context of reclamation

So as to enroach upon the express provisions of the Rivers

and Harbors Act, a statute directly concerned with obstruc-

tions to and modifications of navigable waters, enacted un-

der the congressional power over commerce and navigation

Cf. Gerlach, supra, 339 U.S. at 731-42, 70 S.Ct. 955.

_ The Rivers and Harbors Act, of course, does not itself

mention noninterference with state-authorized water supply

diversion operations. The appellants point to no authority

supporting their interpretation of section 10, under which

the Act assertedly is to be applied differently in situations

in which a state has authorized water diversions. In United

States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690,

19 S.Ct. 770, 43 L.Ed. 1136 (1899), a case upon which

the appellants attach some reliance, the Supreme Court

clearly recognized that the federal authority over navigable

waters delegated by Congress to the Corps under the Rivers

and Harbors Act of 1890, the predecessor of the 1899 Act,

overrides any state power to authorize a water diversion

project that would adversely affect navigation. The power

of states over waters within their dominions, the Court held

is limited by the superior power of the General Gov-

ernment to secure the uninterrupted navigability of all

navigable streams within the limits of the United States.

In other words, the jurisdiction of the General Gov-

ernment over interstate commerce and its natural high-

eee, SOR

ways vests in that Government the right to take all

needed measures to preserve the navigability of the

navigable water courses of the country even against

any state action.

174 U.S. at 703, 19 S.Ct. at 775. The Court observed that

prior to 1890 Congress, through legislation, **recognized

and assented to the appropriation of water’’ by states and

private entities organized under state law, but ruled that the

Rivers and Harbors Act controlled the issue insofar as any

conflict existed. Referring to the 1890 Act, the Court wrote:

[I]t is obvious that Congress meant that thereafter no

State should interfere with the navigability of a stream

without the condition of national assent. It did not, of

course, disturb any of the provisions of prior statutes

in respect to the mere appropriation of water of non-

navigable streams in disregard of the old common-law

rule of continuous flow, and its only purpose, as is

obvious, was to affirm that as to navigable waters

nothing should be done to obstruct their navigability

without the assent of the National Government. It was

an exercise by Congress of the power,. oftentimes de-

clared by this court to belong to it, of national control

over navigable streams. . . . The language is general,

and must be given full scope. It is not a prohibition of

any obstruction to the navigation, but any obstruction

to the navigable capacity, and anything, wherever done

or however done, within the limits of the jurisdiction

of the United States which tends to destroy the navig-

able capacity of one of the navigable waters of the

United States, is within the terms of the prohibition.

174 U.S. at 708, 19 S.Ct. at 777 (emphasis added).

In Sanitary District v. United States, supra, 266 U.S.

405, 45 S.Ct. 176, 69 L.Ed. 352, the Supreme Court spe-

cifically dealt with state diversions of water for public health

wih, ee

purposes, describing as plenary the power of Congress to

remove what it identifies as obstructions to interstate and

foreign commerce.

This is not a controversy between equals. The United

States is asserting its sovereign power to regulate com-

merce and to control the navigable waters within its

jurisdiction.

* * *

The main ground is the authority of the United States

to remove obstructions to interstate and foreign com-

merce. There is no question that this power is superior

to that of the States to provide for the Welfare or

necessities of their inhabitants. In matters where the

States may act the action of Congress overrides what

they have done. . . . But in matters where the national

importance is imminent and direct even where Con-

gress has been silent the States may not act at all.

266 U.S. at 425-26. 45 S.Ct. at 178-179 (emphasis added).

While states undeniably possess broad power to regulate

their own navigable waters for the general welfare, the

power clearly is, and should be subordinate to the federal

navigational power unless Congress expressly defers to the

State authority in the context of a specific statute. Since

Congress did not so defer to state authority in the case of

the Rivers and Harbors Act of 1899, the State of California’s

powers over navigable waters cannot narrow the authority

eS ee

of the Corps over navigable waters as applied to state water

diversions”

In sum, we hold that the lowering of water levels, as

established in this case, amounts to an alteration or modi-

fication of the condition or capacity of Delta waters under

clause 3 of section 10, and thus requires authorization by

the Corps. This result follows without regard to the effect

of the pumping plants on actual navigable Capacity because

a prior finding of obstruction to navigable Capacity is not

necessary in order to trigger the effect of clauses 2 and 3

of sectivn 10. The federal authority set forth in the Rivers

and Harbors Act of 1899 reigns paramount. Congressional

deference to traditional state regulation of water rights, a

consideration of significance in other contexts, does not

operate to restrict the express policy of section 10.

V. AUTHORIZATION

Having determined that the construction and operation

of the Tracy and Delta Plants require the approval of the

Corps under section 10, the District Court then ruled that

“The Court, in United States v. Rio Grande Dam & Irrigation Co..,

174 U.S. 690, 19 S.Ct. 770, 43 L.Ed. 1136 (1899), illustrated this

proposition of overriding federal supremacy in the area of navigation

with an example:

The Hudson River runs within the limits of the State of New

York. It is a navigable stream, and a part of the navigable waters

of the United States, so far at least as from Albany southward.

One of the streams which flows into it and contributes to the

volume of its waters is the Croton River, a nonnavigable stream.

Its waters are taken by the State of New York for domestic uses

in the city of New York. Unquestionably the State of New York

has a right to appropriate it waters, and the United States may

not question such appropriation, unless thereby the navigability

of the Hudson be disturbed. On the other hand, if the State of

New York should, even at a place above the limits of navigability,

by appropriation for any domestic purposes, diminish the volume

of waters, which, flowing into the Hudson, make it a navigable

stream, to such an extent as to destroy its navigability, undoubt-

edly the jurisdiction of the National Government would arise and

its power to restrain such a iation be unquestioned. . . .

174 U.S. at 709, 19 S.Ct. at 7 7

weer Van

both facilities lacked the required authorization. The re-

spective appellants offer different arguments in respect to

the Tracy Pumping Plant, a federal facility, and the Cali-

fornia’s Delta Pumping Plant. The federal appellants con-

tend that various congressional acts affirmatively authorized

the Tracy Plant under section 10, clause 1. The state ap-

pellants maintain that various section 10 permits issued over

the years for certain components of the Delta Plant constitute

authorization for the entire Delta Plant. In addition, the state

appellants urge that a Federal Power Commission license

for portions of the California Water Project eliminated any

need to obtain section 10 approval. Other contentions made

by the appellants in the District Court are not pressed on

this appeal. We first consider the question of congressional

authorization of the Tracy Pumping Plant.

A. Congressional Authorization of the Tracy

Pumping Plant.

The trial court found no congressional authorization of

the Tracy Pumping Plant. It based its decision on the legal

conclusion that ‘‘[t}he initial authorization to create an ob-

struction must rest on express and not implied Congressional

authority. . . . The approval or funding of a facility does

not compromise Congress’s right to control its operation.”’

400 F.Supp. at 637 (citing Sanitary District v. United States

supra, 266 U.S. at 428, 45 S.Ct. 176, and Hubbard v. Fort,

188 F. 987, 996 (C.C.D.N.J.1911)”

“The District Court principally relied upon the following statement

from Sanitary District:

The act [of March 2, 1827, ch. 51, 4 Stat. 234] granted land to

Illinois in aid of a canal to be opened by the Siate for the purpose

of uniting the waters of the Illinois River with those of Lake

Michigan, but if it has any bearing on the present 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 im-

material all evidence of its having fostered the work. Even if it

had approved the very size and shape of the channel by act of

Congress it would not have compromised its right to control the

oe

ea Rh

The rationale of the District Court sweeps too broadly.

In our view, congressional approval or authorization may

be found in virtually any type of statute, including appro-

priations statutes, so long as it is demonstrated that Congress

had knowledge of the precise action or project at issue and

was explicitly and specifically addressing that project.

United States v. Arizona, 295 U.S. 174, 55 S.Ct. 666, 79

L.Ed. 1371 (1935), casts light upon the principle. There,

the Supreme Court held that the Parker Dam, which the

United States planned to build in the Colorado River be-

tween Arizona and California, was not authorized by any

congressional act, as required by the Rivers and Harbors

Act of 1899. The Government, contending that Congress

had approved the dam, cited a 1904 Act authorizing the

diversion of Colorado River waters for the purpose of ir-

rigating adjoining lands on Indian reservations. Jd. at 185,

55 S.Ct. 666. In support of its construction, the Government

asserted that under the 1904 Act another structure, the La-

guna Dam, had previously been built across the Colorado.

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 427-28, 45 S.Ct. at 179 (emphasis added). Applying what

it perceived to be the Supreme Court rule, the District Court held:

In the instant case none of the acts in question either contain

sufficiently explicit language or are accompanied by a legislative

history clearly manifesting approval of the facilities for the pur-

pose of Section 10. For the most part these acts do not even refer

specifically to the pumping plant but rather are very general ap-

provals of the Central Valley Project or the San Luis unit. A//

Congress did was authorize the construction of those projects and

appropriate funds for them. Congress did not, however, agree

to relinquish its Section 10 responsibilities or exercise this power

in any respect. Even if Congress had gone so far as specifically

to fund the construction of the Tracy Plant precisely as it stands

today, this fact would not constitute authorization to operate it,

as before operation occurred, either Congress or the Corps of

Engineers would have to consider within what Section 10 param-

eters the Tracy Plant could operate and issue an appropriate

authorization.

(footnote continued on following page)

Ae, BOR

Rejecting the Government’s argument, the Supreme

Court pointed out that ‘‘Congress has made appropriations

for the benefit of the project of which it [the Laguna Dam]

is a part and so recognized and approved the building of

the dam,”’ citing Acts of 1916, 1917, and 1918 making

appropriations for the Yuma Project, Arizona-California,

which includes the Laguna Dam. /d. at 186 n.5, 55 S.Ct.

666. As to the Parker Dam, however, the Court refused to

hold that Congress had authorized the project under the 1904

Act “‘by making appropriations for irrigation of lands in

Indian reservations.’’ Jd. Unlike the situation in our case,

the 1904 Act did not specifically address the project at issue.

Compare Rivers and Harbors Act of 1937, ch. 832, 50 Stat.

844, 850 quoted at n.31 infra with Act of Apr. 21, 1904,

§ 25, 33 Stat.224.

400 F.Supp. at 637-38 (emphasis added).

In the quoted passage from Sanitary District the Supreme Court

strictly construed the actions of the United States as to the diversion

of Lake Michigan waters. In that case the federal government had

brought suit to enjoin the Sanitary District of Chicago from diverting

water from the lake in excess of a specified amount. ‘The District had

defended on the basis of estoppel, arguing that ‘‘the United States has

given its assent to all that has been done and . . . it is estopped to take

the position’ that the diversions constituted obstructions to navigable

capacity. 266 U.S. at 427, 45 S.Ct at 179. It was, therefore, in the

context of considering an argument of estoppel against the Government

that Mr. Justice Holmes stated that the ‘‘strict construction of the Gov-

ernment’s act’’ avoided the defendant’s contention. Id. Accordingly,

the import of Sanitary District is not that Congress must affirmatively

authorize both construction and operation of a diversion project for it

to be legal under section 10, as the District Court supposed. Instead,

the Supreme Court simply stated that Congress is nor precluded from

setting limits on the amount of a water diversion even if it has previously

authorized the specific project. An analogue in the instant case would

arise if the federal government itself were actively seeking to restrict

the amount of water diverted by the Tracy Plant. None contends that

it could not do that, if it so chose. The right of the Congress to control

the operation of a facility that it has previously approved, however, is

not at issue here. In short, we cannot accept the proposition that Sanitary

District su the finding that section 10 requires separate approval

by either Congress or the Corps for both the construction gnd the

operation of a water diversion project.

sigan

United States v. Arizona, supra, teaches that Congress,

while it may authorize a project by means of general ap-

propriations legislation, must have known and intended that

the specific facility in question was a part of the project for

which it was making appropriations. This interpretation is

supported by other cases holding that Congress may au-

thorize activities by means of appropriations legislation that

specifically and directly relates to the projects in question.°°

We also note that the Corps’ administrative regulations gov-

erning issuance of permits are consistent with this principle:

The general legislation by which Federal agencies are

empowered to act generally is not considered to be

sufficient authorization by Congress to satisfy the pur-

poses of Section 10. If an agency asserts that it has

Congressional authorization meeting the test of Section

10 or would otherwise be exempt from the provisions

of Section 10, the legislative history and/or provisions

of the Act should clearly demonstrate that C ongress

“See United States v. Dickerson, 310 U.S. 554, 60 S.Ct. 1034, 84

L.Ed. 1356 (1940) (Congress could suspend certain military re-enlist-

ment allowances, provided for by prior legislation, by means of an

amendment to an appropriations bill); Wisconsin v. Duluth, 96 U.S.

379, 382-88, 24 L.Ed. 668 (1878) (by means of an appropriation,

Congress had ‘‘adopted, recognized, and taken charge of”’ a project

previously initiated privately without congressional authorization);

Fricnds of the Earth v. Armstrong, 485 F.2d 1,9-10 (10th Cir. 1973)

(en banc) (Congress can, by an appropriations act, suspend or modify

a prior act concerning the spreading of waters impounded in Lake

Powell into Rainbow Bridge National Monument), cert. denied, 414

U.S. 1171, 94 S.Ct. 933, 39 L.Ed.2d 120 (1974); United States v.

Kennedy, 278 F.2d 121, 122-23, 126 (9th Cir. 1960) (General Appro-

priation Act of 1951, Act of Sept. 6, 1950, 64 Stat. 595, appropriating

funds for the National Park Service, provided necessary statutory au-

thorization for taking of land within boundaries of Mount McKinley

National Park); cf. City of Santa Clara v. Andrus, 572 F.2d 660, 672

(9th Cir.) cert. denied, 439 U.S. 859, 99 S.Ct. 177, 58 L.Ed.2d 167

(1978) (to show congressional ratification of an electrical power allo-

cation scheme by appropriation of money, ‘‘the government must sus-

tain the heavy burden of demonstrating Congressional knowledge of

the precise course of action alleged to have been acquiesced in’’).

4%

way Wine

was approving the exact location and plans from which

Congress could have considered the effect on navigable

waters of the United States or that Congress intended

to exempt that agency from the requirements of Section

10.

33 C.F.R. § 322.3(c)(1) (1978) (emphasis added). Gener-

ally, a court should accord great weight to the construction

of a statute by the agency responsible for its administration.

E.g., California v. United States, supra, 438 U.S. at 676

n.30, 98 S.Ct. 2985; Zemel v. Rusk, 381 U.S. 1, 11, 85

S.Ct. 1271, 14 L.Ed.2d 179 (1965); Udall v. Tallman, 380

U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

The question thus narrows itself to whether the various

congressional statutes and legislative history concerning the

Central Valley Project are so sufficiently specific as to the

Tracy Pumping Plant as to constitute congressional author-

ization under section 10. In our view, the basic enactments

authorizing the Central Valley Project in 1937 and the annual

appropriations acts for operation and maintenance of the

Central Valley Project, when read in light of the legislative

history of the broad oversight exercised by the Congress

over the project, constitute affirmative authorization of the

Tracy Plant.

The Rivers and Harbors Act of 1937, ch. 832, § 2, 50

Stat. 844, 850, reauthorized the entire Central Valley Proj-

ect, theretofore authorized and established under the Emer-

gency Relief Appropriation Act of 1935, 49 Stat. 115.°' As

of 1937, then, Congress had clearly authorized the Central

eit Rivers and Harbors Act of 1937 declared the Central Valley

ject

i %

nen” Te

Valley Project, the general plans of which contemplated a

large-scale diversion of water from the Delta to the San

Joaquin Valley. Subsequently, Congress enacted the Rec-

lamation Project Act of 1939, ch. 418, 53 Stat. 1187 (cod-

ified at 43 U.S.C. §§ 375a, 387-389, 485-485h, 485i-485k

(1970)). Section 9(a) of the Act, 43 U.S.C. § 485h(a)

(1970), provides that federal reclamation projects were to

become automatically authorized when the Secretary of the

Interior found them to be feasible and submitted a favorable

report to the President and to the Congress. On February

to be for the purposes of improving navigation, regulating the

flow of the San Joaquin River and the Sacramento River, con-

trolling floods, providing for storage and for the delivery of the

stored waters thereof, for the reclamation of arid and semiarid

lands and lands of Indian reservations, and other beneficial uses,

and for the generation and sale of electric energy as a means of

eee ay aiding and assisting such undertakings and in order

to permit the full utilization of the works constructed to accom-

plish the aforesaid purposes: Provided further, That, except as

herein otherwise specifically provided the provisions of the re-

clamation law, as amended, shall govern the repayment of ex-

penditures and the construction, operation, and maintenance of

the dams, canals, power plants pumping plants, transmission

lines, and identical works deemed necessary to said entire project,

and the Secretary of the Interior may enter into repayment con-

tracts, and other neccessary contracts, with State agencies, au-

thorities, associations, persons, and corporations, either public

or private, including all agencies with which contracts are au-

thorized under the reclamation law. . . .

Rivers and Harbors Act of 1937, ch. 832, § 2, 50 Stat. 844, 850.

“Section 485h(a) reads, in pertinent part, as follows:

the proposed construction is found by the Secretary to have

engineering feasibility and if the repayable and returnable allo-

cations to irrigation, power, and municipal water supply .. .,

together with any allocation to flood control or navigation . . .,

equal the total estimated cost of construction as determined by

the Secretary, then the new project, new division of a project, or

supplemental works on a project, covered by his findings, shall

be deemed authorized and may be undertaken by the Secretary

If all such allocations do not equal said total estimated cost, the

said new project, new division, or new supplemental works may

be undertaken by the Secretary only after provision therefor has

been made by Act of Congress . . ..

43 U.S.C. § 485h(a) (1970) (emphasis added.)

ae" ie

24, 1947, the Secretary of the Interior forwarded to Congress

a Finding of Feasibility pursuant to the 1939 Reclamation

Act. H.R. Doc. No. 146, 80th Cong., Ist Sess. (1947),

reprinted in Engle, Central Valley Project Documents, H.R.

Doc. No. 416, 84th Cong., 2d Sess., pt. 1, at 574 (1956).

The feasibility report contained a detailed discussion of the

Delta-Mendota Canal, the 115-mile canal connecting the

Mendota Pool in the San Joaquin Valley with the Tracy

Pumping Plant. The initial contract for construction of the

Delta-Mendota Canal was dated June 14, 1946, and the

canal’s construction was completed prior to July 1, 1952.

The initial construction contract for the Tracy Pumping Plant

was made on June 23, 1947, with construction of the Plant

completed prior to February 1, 1953.

Ovcr the years Congress has repeatedly appropriated

funds for the Tracy facilities. These appropriations acts have

generally lumped together funds for the Central Valley Proj-

ect as a whole. As such, the situation appears to come within

the dictum of United States v. Arizona that **Congress has

made appropriations for the benefit of the project of which

it is a part and so recognized and approved the building’’

of the project under the Rivers and Harbors Act of 1899.

United States v. Arizona, supra, 295 U.S. at 186, 55 S.Ct.

666, at 670 (emphasis added).* It is manifest from the

legislative history that Congress was well aware of the Tracy

Pumping Plant as part of the Central Valley Project, fully

Moreover, the First Deficiency Appropriation Act of 1946, ch. 589,

59 Stat. 632, 647-48 (1945), contained an appropriation ‘‘for construc-

tion of the . . . Delta division, Delta-Mendota canal, $7,500,000,’ and

the Interior Department Appropriation Act of 1949, ch. 754, 62 Stat.

1112, 1129 (1948), contained a specific appropriation for the Tracy

Pumping Plant Switchyard.

Sian. Be

approved of it, and consistently encouraged its construction

and operation.™

“The Legislative history of congressional authorization of and ap-

propriations for the Central Valley Project is fully covered in Engle,

Central Valley Project Documents, H.R. Doc. No. 416, 84th Cong.,

Ist Sess., pt. 1 (1956), and H.R.Doc.No.246, 85th Cong., Ist Sess.

(1957).

A 1946 House report stated that funds were to be provided for trans-

mission lines to bring “‘power to the Delta area where it will be required

for the pumping of water for irrigation and water supply purposes. The

sum recommended would provide funds to begin construction of this

line, extending from Oroville to Tracy.’’ H.R.Rep.No.1288 on

H.R.4805, 79th Cong., Ist Sess. (1946), reprinted in Engle, supra,

pt. 2, at 21 (emphasis added). Again, in 1947, an appropriation was

made for completion of the power transmission line, ‘‘which will ul-

timately be extended to Tracy to provide power for pumping water in

the Delta area. . . .’’ /d., reprinted in Engle, Supra, pt. 2, at 22-23.

In 1949 the following statement appears in H.R.Rep.No.2038, 80th

Cong., 2d Sess. (1948), reprinted in Engle, supra, pt. 2, at 27-28:

The drought which large areas in California have experienced this

past winter reemphasizes the necessity for expediting the con-

struction of the irrigation facilities of the Central Valley project.

To this end the committee has made liberal appropriations for

Storage and irrigation facilities. It has also provided all funds

necessary to continue construction of the powerplants and switch-

yards at Shasta and Keswick Dams, the Oroville-Tracy trans-

mission line and the switchyard at the Tracy pumps on the Delta-

Mendota canal. . . . None of the funds in the bill and no funds

heretofore provided for switchyards are to be used for the con-

struction . . . of any switchyard facilities at Tracy not required

for the operation of the project pumps. . .

See Act of June 29, 1948, ch. 754, 62 Stat. 1112, 1128-29. The Senate

report discussing the same bill stated:

The committee recognizes that the Central Valley project has

since its inception contemplated the construction of transmission

lines done [sic] the West side of the Sacramento River as well

as down the East side from Shasta Dam to the Tracy pumping

plant, which lines are an integral part of this multiple-purpose

project.

S.Rep.No. 1609, 80th Cong., 2d Sess. (1948), reprinted in Engle, su-

pra, pt. 2, at 28. In 1952 Commissioner of Reclamation Michael W.

Straus testifed at Senate hearings on the Central Valley Project appro-

priations bill for that year:

I want to report particularly on the Central Valley project of

California that this committee has protected and financed since

Reclamation was given the job of making California’s half-cen-

tury dream come true... .

(footnote continued on following page)

ictal

In 1960 Congress authorized the construction of the San

Luis Unit of the Central Valley Project. Act of June 3, 1960,

Pub.L. No.86-488, 74 Stat. 156. In section 4 of the Act

Congress expressly noted the precise location and plans of

the Tracy Pumping Plant as a critical and integral part of

the San Luis Unit Project.** There is no evidence whatsoever

that Congress intended to authorize the San Luis Unit if,

The California Legislature has declared August | to August 10

a Central Valley Project Festival. ‘The reason for these dates is

that our multiple-Year, multiple-purpose job of completing the

original authorized project is virtually complete. On August |

water will be released from Shasta Dam, carried down the Sac-

ramento River through Shasta and Keswick generators, through

the cross-channel-canal cut, lifted up 200 feet by the great Tracy

pumps, sloshed down the long Delta-Mendota Canal to the Men-

dota pool, where it will be exchanged for water trapped by Friant

Dam in the San Joaquin River, and carried 158 miles down the

Friant-Kern Canal to Bakersfield.

That is an overall total movement of water 500 miles-the far-

thest that man has moved water anywhere at any time. That is

a culmination of the work this committee has supported over the

years.

It will be a period of rejoicing the whole length of the California

Valley. It is my hope that the members of this committee who

protected and nursed the project into being can accept some of

the multiple invitations I know they are going to receive to see

the attainment of the committee’ s objective.

Engle, supra, pt. 2, at 37 (emphasis added). Further references to the

Tracy Pumping Plant and specific appropriations therefor as an integral

part of the Central Valley Project abound in the legislative history. E.

G., id. at 21-28, 32-38, 40-44, 49, 50-51, 60, 65, 305.

Section 4 of this Act provides, in pertinent part:

If the Secretary proceeds to construct, operate, and maintain the

San Luis Works under the terms of section | of this Act solely

as a Federal project, the operation shall be subject to the following

restriction: Whenever the chlorides in the water at the head of

the Delta~-Mendota Canal exceed one hundred and fifty parts per

million during the months of July, August, or September, the

mean daily diversion from the Sacramento-San Joaquin Delta to

San Luis unit via Tracy pumping plant and Delta-Mendota Canal

as measured at the San Luis pumping plant shall not exceed the

mean daily import to the Sacramento Valley from the Trinity

project.

Act of June 3, 1960, Pub.L.No.86-488, § 4, 74 Stat. 156, 159 (em-

phasis added).

pa

and only if, the Corps of Engineers subsequently issued a

section 10 permit on its own for either the construction or

operation of the Tracy Plant. The District Court distin-

guished the 1960 Act on the ground that it was enacted after

the commencement of the operation of the Tracy Plant,

‘and hence even if it were intended as Congressional con-

sent, the original construction and operation of the Tracy

Plant were uniav:ful.’’ 400 F.Supp. at 637 n.41. We dis-

agree. In Wisconsin v. Duluth, 96 U.S. 379, 24 L.Ed. 668

(1878), the Supreme Court upheld congressional authori-

zation of a previously inaugurated private project on the

basis of an appropriations act. The Court reasoned that it

would unreasonably restrict Congress’ power to hold that

Congress could not retroactively approve previously un-

authorized projects.

We are therefore constrained to hold that the statutes and

legislative history sufficiently demonstrate congressional

approval of the Tracy Pumping Plant and its operation, both

at the initiation of the Central Valley Project and, retroac-

tively, after the completion of the plant.%

**After the first draft of a proposed Opinion in the present appeal was

circulated for the consideration of Judges Trask and Tang, our court

issued its decision in Libby Rod and Gun Club v. Poteat, 594 F.2d 742

(9th Cir. 1979). Initially, Libby was the cause of concern on the part

of the author of this Opinion, especially in respect to our conclusion

that Congress had impliedly authorized the Tracy Pumping Plant. Cer-

tain broad language in Libby appeared to declare that, henceforth, the

affirmative congressional authorization specifically required by the

Rivers and Harbors Act for obstructions to navigable capacity of waters

could not be conferred by appropriations bills alone, however, specific

such an appropriation act may have been toward a particular project it

was funding. See 594 F.2d at 746, especially notes 5 and 6, and Judge

Kennedy’s dissenting opinion at 748-753. This concern, however, has

been laid to rest by the concurring opinion of Judge Tang, who was

one of the two judges constituting the majority in Libby. See pages 607

to 609, infra.

7%

Po a

B. Corps Authorization of the Delta

Pumping Plant

In the District Court the state appellants contended that

various section 10 permits issued with respect to components

of the Delta Pumping Plant constituted Corps authorization

of the plant itself. Here, they limit their argument to Permit

No. 4101, issued in June 1967, which authorized the con-

struction of the Clifton Court Forebay. This forebay, a res-

ervoir between the Delta and the pumping plant, was de-

signed to allow the pumping to be confined to off-peak

electrical hours. Its only function is to serve as an intake

facility for the Delta Pumping Plant.

Plainly, the permit does not authorize the entire Delta

Pumping Plant. No direct evidence in the permit file refers

to the pumping plant, and the permit itself only authorized

the State ‘‘to cut the westerly levee, of West Canal, at

Clifton Court Tract for Clifton Court Forebay in Contra

Costa County, California.’’ Nor can we construe the permit

as implicit authorization for the Delta Plant. The Corps

regulations required that a permit application be complete

and without reference to any unattached correspondence.

33 C.F.R. § 209.-130(b)(6) (1967). Maps and plans show-

ing the location, extent, and character of the project were

considered essential, and the proposed work was to be in-

dicated in red ink. 33 C.F.R. §§ 209.130(c)(1), (c)(11)

(1967). Given the completeness required of the application

and the absence of any mention of the Delta Plant therein,

we cannot appropriately say that the permit implicitly au-

7’?

rc

thorized more than the approved application upon which it

was based.”

The state appellants also contend that a Federal Power

Commission (FPC) license for portions of the California

Water Project eliminated the need for a section 10 permit.

Had the FPC granted a license covering the Delta Pumping

Plant, their position would have some support. See Scenic

Hudson Preservation Conference v. Callaway, 370 F.Supp.

162, 164-68 (S.D.N.Y.1973), aff'd, 499 F.2d 127 (2d Cir.

1974). But the FPC did not license the Delta Pumping Plant.

Instead, it expressly and specifically declined to ‘‘extend

our jurisdiction beyond those facilities actually constructed

“Even if it could be said that Permit No. 4101 initially authorized

the operation of the Delta Pumping Plant, the Corps yet retains the

power to impose conditions upon the continuing pumping operation.

As the state appellants concede, paragraph (f) of Permit No. 4101

provides, in respect to the authorized activity, that ‘‘if, in the opinion

of the Secretary of the Army, it shall cause unreasonable obstruction

to the free navigation of said water, the owner will be required . . . to

remove or alter the structural work or obstructions caused thereby.

.. »'’ Moreover, under the Corps’ present regulations,

[t]he District Engineer may reevaluate the circumstance and con-

ditions of a permit either on his own motion or as a result of

periodic progress inspection, and initiate action to modify, sus-

pend or revoke a permit as may be made necessary by consid-

eration of the general public interest. . . . Significant increases

in scope of a permitted activity will be processed as new appli-

cations for permits in accordance with section 325.2, and not as

modifications under this paragraph.

33 C.F.R. 325.7(a) (1978) (emphasis added). Thus, even if no further

authorization is required to justify the continued existence of the Delta

Pumping Plant because of the Corps’ prior acquiescence in the plant’s

operations, the State is not relieved from section 10 permit require-

ments. Although the prior acquiescence by the Corps may establish a

basis for estoppel against a Corps request to abolish the Delta Pumping

Plant altogether, the operations of the plant remain subject to present

regulations of the Corps. See Sanitary Dist. v. United States, 266 U.S.

405, 427-28, 45 S.Ct. 176, 69 L.Ed. 352 (1925); cf. United States v.

Sunset Coves, Inc., 514 F.2d 1089, 1090 (9th Cir.), cert. denied, 423

U.S. 865, 96 S.Ct. 125, 46 L.Ed.2d 94 (1975). Additionally, as we

understand the above quoted Corps regulations, any significant increase

in the pumping must have received Corps authorization.

mae, Se

for power purposes so as to include hundreds of miles of

canals, pumping stations and other associated facilities un-

related to the production of power.’’ Department of Water

Resources of the State of California, 51 F.P.C. 529, 533

(1974).

The Corps of Engineers has promulgated regulations to

gover situations in which its jurisdiction overlaps with that

of the FPC. When a project is subject to FPC regulation,

the Corps fulfills its duty of protecting navigable waters by

recommending to the FPC the inclusion of appropriate pro-

visions rather than by directly issuing a Corps permit; how-

ever, “‘as to any other activities in navigable waters not

constituting construction, operation and maintenance of

physical structures licensed by the FPC . . . the provisions

of 33 U.S.C. § 401 et seq. remain fully applicable.” 33

C.F.R. § 320.-3(f) (1978).

The FPC agrees that its license does not necessarily extend

to all facilities of a project. In its opinion concerning the

California Water Project, the FPC cautioned that **It}he

mere fact that various facilities are proposed for licensing

by an applicant is not sufficient reason to assume that all

such facilities are properly the subject of a license.’’ The

FPC also said, ‘‘[W]hen a particular facility is no longer

part of the power project itself, it is not subject to our

licensing jurisdiction.’’ Department of Water Resources of

the State of California, 51 F.P.C. 529, 533 (1974).

Thus, both the Corps and the FPC have said that the State

should apply to the Corps for a permit for construction of

a water transportation facility unrelated to power produc-

tion. Their construction of the interrelationship between the

Federal Power Act and the Rivers and Harbors Act is entitled

to much deference, and we will follow it here. See Che-

mehuevi Tribe of Indians v. FPC, 420 U.S. 395, 409-10,

95 S.Ct. 1066, 43 L.Ed 2d 279 (1975).

a es

Although we reject the contentions of the state appellants

as to the effect of Permit No. 4101 and the FPC license,

it is conceivable that the State may still be excused from

obtaining a permit for the operation of the Delta Pumping

Plant. Present regulations of the Corps of Engineers contain

a grandfather clause that dispenses with the need to obtain

individual section 10 authorization for certain structures.

The regulation provides, in pertinent part:

The following structures or work are hereby permitted

for purposes of Section 10 and do not require separate

Department of the Army permits:

* * * * * *

(g) Structures or work completed before 18 Decem-

ber 1968 or in water-bodies over which the District

Engineer has not asserted jurisdiction provided there

is no interference with navigation.

33 C.F.R. § 332.4(g) (1978) (emphasis added).** The Dis-

trict Court found that

[c]onstruction commenced on the Delta Pumping Plant

. in July of 1963 and was sufficiently completed

by late 1967 so that the Delta Plant could begin di-

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

ruary of 1969, however, that all construction was fin-

ished.

400 F.Supp. at 620-21.

Because the record on appeal does not reflect whether the

pumping plant itself was completed prior to December 18,

1968, and the parties have not yet addressed the question,

this question should first be considered by the District Court.

At this time we express no opinion as to the validity of the

Corps regulation. All such arguments should be presented

in the first instance to the District Court. If the District

“The superseded regulation, 33 C.F.R. 209.-120(g)(12)(vii) (1977),

was similar.

oe,» We

Court finds that the Delta Pumping Plant was completed

prior to December 18, 1968, the above regulation will ex-

empt the State from obtaining an individual section 10 per-

mit, provided that the facility does not interfere with nav-

igation and so long as the regulation may be held to be a

valid excercise of the Corps’ authority.

VI. CONCLUSION

In summary, we hold that parties who suffer special injury

have a private right of action to enforce compliance with

the permit requirements of section 10. Sierra Club and the

two individual appellees have standing to avail themselves

this private right of action. We have already explained why,

as to Friends of the Earth, the judgment was to be vacated

and its complaint dismissed.

On the merits, the Tracy and Delta Pumping Plants fall

within the ambit of section 10, since their operation has

altered navigable waters of the United States. Because Con-

gress affirmatively authorized the Tracy Pumping Plant, a

Corps permit is not required for its present operational level.

Therefore, we do not reach the question of whether an

environmental impact statement is required for the Tracy

Plant. The Delta Pumping Plant, which has not been au-

thorized by Congress, must obtain a Corps permit for its

operation, unless exempted by the Corps regulation, 33

C.F.R. § 322.4(g) (1978).°° To the District Court, we ac-

We vacate the District Court order that the Secretary of the Army,

or his delegate, prepare an environmental impact statement prior to

issuing a section 10 permit for either pumping plant. See 400 F.Supp.

at 651. An environmental impact statement is not required at the present

time.

It is true that, under our decisions, an environmental impact statement

may be required before the Corps can lawfully issue a permit for the

Delta Pumping Plant, since federal approval — be it in the form of a

permit, license, or otherwise — that allows a project to proceed con-

stitutes ‘‘a major federal action’’ within the meaning of section 102 of

the National Environmental Policy Act, 42 U.S.C. § 4332 (1970). Cady

v. Morton, 527 F.2d 786, 793 (9th Cir. 1975): Scientists’ Inst. for

aes es

cord the discretion to allow the pumping to continue at its

present level pending the filing and processing of the permit

application. Traditional equitable principles apply. Cf.

Kleppe v. Sierra Club, 427 U.S. 390, 407-08, 96 S.Ct.

2718, 49 L.Ed.2d 576 (1976): Cady v. Morton, 527 F.2d

786, 798 n.12 (9th Cir. 1975).

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion.

TANG, Circuit Judge, concurring:

One important aspect of this case concerns congressional

authorization of the Tracy Pumping Plant. Specifically, we

have concluded that Congress intended to authorize the

Tracy Plant, and that the district court was in error when

it concluded that the consent of Congress had not been

obtained for the Plant’s construction.

Our conclusion that the Tracy Pumping Plant was au-

thorized by Congress rests in part upon our review of rel-

€vant appropriations measures which, when viewed in light

of the entire record, evidence clear congressional consent

to the Plant’s construction and operation as mandated by

Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C.

§ 403.

Public Information, Inc. v. Atomic Energy Comm'n, 156 U.S.App.

D.C. 395, 404-405, 481 F.2d 1079, 1088-89 (D.C.Cir. 1973); Davis

v. Morton, 469 F.2d 593, 597 (10th Cir. 1972). At this time, however,

to order the preparation of an environmental impact statement for the

Delta Pumping Plant would be premature. See Abbott Laboratories vy.

Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

Under Corps regulations, the District Engineer makes the initial deter-

mination of whether an alteration or modification of navigable waters

will require an environmental impact statement. 33 C.F.R. § 325.4(b)

(1978). We can see no justifiable reason, in this case, to depart from

what we perceive to be an orderly procedure. Not until the Corps has

made its decision should a party in a case such as this seek relief in

the courts.

oe a

There may be some question that our holding in this case

might conflict with this court’s recent decision in Libby Rod

and Gun Club v. Poteat, 594 F.2d 742 (9th Cir. 1979). As

a member of the majority in Libby, it is important to point

out distinguishing differences between this case and Libby.

,

Authorizing Legislation

A review of the relevant authorizing legislation address-

ing the Tracy Pumping Plant and the Libby Dam Project

highlights the distinction between the two cases.

On appeal from the district court’s ruling that a reregu-

lating dam had not been authorized as required under 33

U.S.C. § 401, the Army Corps of Engineers (Corps) argued

in Libby that the Flood Control Act of 1950 authorized both

the main Libby Dam and a reregulating dam. Upon ex-

amination of the Flood Control Act, the court concluded

that the sole reference to reregulation was contained in

{165 of H.R. Doc.No. 521, 81st Cong., 2d Sess. (1950)

which had been incorporated in the Act. That paragraph,

the court held, did not explicitly authorize a reregulating

dam — to the contrary, it noted that reregulation would be

considered ‘when the need arises.’’ Libby Rod and Gun

Club v. Poteat, 594 F.2d at 744. The court further concluded

that this lone reference to reregulation could not be construed

to authorize implicitly a reregulating dam, because: (1) it

was not clear when the Flood Control Act was passed that

a reregulating dam was necessary for the effective func-

tioning of the main Libby Dam, and the Corps had cited

no authority to support the proposition that a dam could be

deemed authorized by necessity under 33 U.S.C. § 401;

and (2) to imply authorization would frustrate the intent of

Congress, evidenced in 4 165, to examine reregulation

‘“when the need arises.’’ Therefore, the court was not con-

ghee, , Meal

vinced that Congress intended to authorize a reregulating

dam in the Flood Control Act.

The authorizing legislation in the instant appeal paints a

different picture of congressional intent.

Firsi, the Rivers and Harbors Act of 1937, ch. 832 § 2,

50 Stat. 844, reauthorized the entire Central Valley Project.

(Opinion at 602.) In that authorization, Congress explicitly

authorized, inter alia, pumping stations necessary to the

effective functioning of that project. Rivers and Harbors

Act of 1937, 50 Stat. at 850; (Opinion at 602 n.31.) Unlike

Libby therefore the original authorizing legislation recog-

nized the possible need for pumping stations and seemingly

authorized their construction if they became necessary to

the functioning of the entire project.

Second, the Reclamation Project Act of 1939, 43 U.S.C.

§ 485h(a), deemed as authorized any reclamation project

that the Secretary of Interior found to be feasible, and that

the Secretary had submitted a favorable report upon to the

President and Congress. (Opinion at 603.) In 1947 the Sec-

retary forwarded to the President and Congress a favorable

feasibility report of the Central Valley Project, which con-

tained a detailed analysis of the Delta-Mendota Canal, one

aspect of which is the Tracy Pumping Plant. (Opinion at

603.)

Unlike the Flood Control Act in Libby, the Reclamation

Project Act was general legislation that allowed the Sec-

retary of Interior to approve a project and the elements

thereof, and such approval by the Secretary was deemed to

represent authorization of the project.

Third, the Act of June 3, 1960, Publ.L.No. 86-488, 74

Stat. 156, authorized the construction of the San Luis Unit

of the Central Valley Project. (Opinion at 29.) In that leg-

islation, Congress explicitly ‘noted the precise location and

pein,

plans of the Tracy Pumping Plant as a critical and integral

part of the San Luis Unit project.”’ (Opinion at 604-605.)

The importance of these three facts cannot be underes-

timated. First, Congress recognized the necessity of pump-

ing plants in the Rivers and Harbors Act; second, it granted

the Secretary of the Interior broad authority to authorize

reclamation projects; and third, other authorization legis-

lation specifically referred to the Tracy Pumping Plant.

When these facts are examined in light of subsequent ap-

propriations, a result different from Libby is mandated.

I]

Appropriations

In Libby, this court was confronted by conflicting legal

arguments. The Corps contended that appropriations mea-

sures should be equated auomatically with project author-

ization. The Rod and Gun Club conversely argued under

T.V.A. v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d

117 (1978) that appropriations could never be equated with

authorization.

This court adopted a middle view, concluding that ap-

propriations should not be regarded as measures that either

automatically authorized, or failed to authorize, a given

project. This view was based in part on 7.V.A. v. Hill,

where the Court held that appropriation bills and substantive

enactments of Congress were distinguishable:

We recognize that both substantive enactments and

appropriations measures are ‘‘Acts of Congress,’’ but

the latter have the limited and specific purpose of pro-

viding funds for authorized programs.

Id. at 190, 98 S.Ct. at 2299-2300.

Importantly, the panel in Libby did not hold that T. V.A.

v. Hill mandated that appropriations could never be regarded

as representing authorization. Rather, Libby merely rec-

7

—

ognized that an analysis of legislative history was required

before a conclusion could be made as to the effect of a given

appropriations measure.' Although 7.V.A. v. Hill was cer-

tainly a distinguishable case on numerous grounds, its direct

recognition of the difference between appropriations mea-

sures and substantive enactments transcends the facts of that

case. This point alone was relied upon in Libby.

The Libby court then proceeded to examine the facts of

the case, and held that the appropriations for the reregulating

dam could not be regarded as authorization. This conclusion

was based on a combination of two factors: (1) the author-

izing legislation not only failed to indicate that a reregulating

dam was contemplated as part of the Libby Dam project,

but suggested as well that an analysis of the need for a

second dam would be undertaken if the need for such a dam

arose; and (2) there was strong evidence in the record that

the Corps had misled appropriations committees by asserting

to committee members that the reregulating dam had been

specifically authorized by the Flood Control Act. Libby,

594 F.2d at 746. Confronted with such a legislative back-

ground, the court was reluctant to hold that the appropria-

tions represented the will of Congress and could thus be

equated with the consent required under § 401.

The facts here in Sierra Club are decidedly different.

First, the Rivers and Harbors Act of 1937 recognized that

pumping stations might be necessary to the effective func-

tioning of the Central Valley Project, and thus implicitly

'l. Libby did recdgnize, however, that appropriations measures and

the committee reports accompanying such measures are to be scrutinized

closely when it is argued that such measures represent substantive

authorization. This view arises from both T.V.A. v. Hill and SEC vy.

Sloan, 436 U.S. 103, 98 S.Ct. 1702, 56 L.Ed.2d 148 (1978), where

the Court has suggested that isolated remarks in committee reports and

hearings are not to be regarded as necessarily representing the will of

Congress as a whole.

ssigsllcces

authorized such stations. See Pigeon River Co. v. Cox, 291

U.S. 138, 159-60, 54 S.Ct. 361, 78 L.Ed. 695 (1934). The

funding of what Congress recognized as possible necessary

aspects of a project creates a situation different than that

existing in Libby, and the appropriations, when viewed in

light of this original authorizing legislation, can be reason-

ably regarded as authorizing the Tracy Pumping Plant by

implication.

Second, the Secretary of the Interior was given general

authority to authorize specific projects under the Recla-

mation Project Act of 1939. When the Secretary found the

Central Valley Project feasible and submitted a favorable

report to Congress, specific appropriations for the pumping

Station take on a significance not found in Libby. Indeed,

these facts place Sierra Club directly under this court’s

rulings in United States v. Kennedy, 278 F.2d 121, 122

(9th Cir. 1960) and Polson Logging Co. v. United States,

160 F.2d 712, 714 (9th Cir. 1947). In these cases, the court

determined that when a government official had been given

general authority to condemn land for public uses, appro-

priations for specific parcels could be regarded as congres-

sional authorization to acquire that land. The facts of Sierra

Club seem highly analogous, because the Secretary was

given general authority to authorize reclamation projects.

Thus, appropriations for the Tracy plant can be regarded

under Kennedy as authorization.

Third, the recognition of the Tracy Pumping Plant in the

authorizing legislation for the San Luis Unit creates a strong

inference that Congress believed it had authorized the Tracy

Pumping Plant, and again appropriations, when viewed in

light of this fact, can reasonably be regarded as supporting

the conclusion that the pumping plant had been authorized.

In Libby, the Corps argued similarly that the Water Re-

sources Development Act implicitly recognized the exist-

|

pas | ae

ence of the reregulating dam, because the Act authorized

generators for the reregulating dam. This claim was rejected,

because the Water Resources Development Act authorized

design studies only. However, the Libby court did note that

had generators been authorized for the reregulating dam,

a trong inference would have arisen that Congress intended

to authorize the necessary structure in which the generators

were to be placed, i.e., the reregulating dam.

The recognition in the San Luis Unit authorization of the

Tracy Pumping Plant as a critical and integral part of the

San Luis Unit project creates the ‘‘strong inference’’ of

intent to authorize that which was lacking in Libby. This

inference, combined with specific appropriations for the

Tracy Pumping Plant, satisfies me that Congress has con-

sented to the construction and operation of the Tracy Pump-

ing Plant.

A final point should be made. Both the majority in this

case and Judge Kennedy in his dissent in Libby rely heavily

upon United States v. Arizona, 295 U.S. 174, 55 S.Ct. 666,

79 L.Ed. 1371 (1935) and Wisconsin v. Duluth, 96 U.S.

379, 24 L.Ed. 668 (1877) for the proposition that appro-

priations should be equated with authorization.

I do not read either United States v. Arizona or Wisconsin

v. Duluth as necessarily controlling. Both cases predate

T.V.A. v. Hill, and to read either case as representing a

decision by the Court that appropriations measures auto-

matically represent authorization for purposes of the Rivers

and Harbors Act of 1899 is suspect in light of that decision.

However, the dictum in United States v. Arizona did suggest

that Congress had appropriated money for a certain Laguna

Dam Project ‘‘and so recognized and approved the building

of the dam.’’ United States v. Arizona, 295 U.S. at 186,

55 S.Ct. at 676. .

anvil cen

It would appear unwise to me to read this dictum overly

broadly. The facts in Arizona do not make clear the exact

specifics of the Laguna Dam Project, and the Court might

have been persuaded by any number of factors to conclude

that the appropriations represented authorization. Because

none of these factors are directly addressed in the Court’s

decision, the Libby majority thought it reasonable to distin-

guish the dictum and rely instead on an independent analysis

of the facts of the Libby case.

In review, the facts of Libby and Sierra Club are distin-

guishable. Libby held that appropriations were to be ana-

lyzed closely in light of the facts of a given case. When the

facts of Sierra Club are so analyzed, we have concluded

that appropriations, when combined with the original leg-

islation relating to the Tracy Pumping Plant, represent the

consent of Congress mandated by 33 U.S.C. § 403.

AD

splltibieen

APPENDIX 3.

[400 F.Supp. 610].

SIERRA CLUB, a non-profit California Corporation, et

al., Plaintiffs, v. 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. Cal-

ifornia. 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.

Connett, Bertram G. Buzzini, Deputy Attys. Gen., Sacra-

mento, Cal., for state defendants.

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

defendant Metropolitan Water District of Southern Califor-

nia.

James G. McCain, Corcoran, Cal., for intervening de-

fendant Tulare Lake Basin Storage District.

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

Gallery, 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-

wie

struction and operation of three major facilities of the Cal-

ifornia 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 Joa-

quin Delta (‘‘Delta’’) and finally through the San Francisco

Bay to the Pacific Ocean. One proposed solution to the

state’s water problem is transporting 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 during different 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 corner of

the triangle. It then runs southeast from Antioch to a point

pee | Se

approximately 10% 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 ap-

proximately half-way between Antioch ar.* Tracy. The pro-

posed 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 tributaries flow

basically in a northwesterly direction while in the northern

Delta the Sacramento River and its tributaries flow in a

southwesterly 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 Reclamation

and is designated as the Central Valley Project. The state

component of the project is administered by the Department

of Water Resources, a department within the Resources

Agency of the State of California, and is designated as the

State Water Project.

The Central Valley Project, the federal project, consists

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

facilities designed to control the flow of water in the Sac-

ramento River, San Joaquin River, and certain of their tribu-

taries, generate hydroelectric power, provide flood control,

and provide water for irrigation and other uses in the Central

Valley of California. One of the principal facilities of the

Central Valley Project is the Tracy Pumping Plant, located

on an inlet channel of Old River in the Delta. The Tracy

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

ae ee

Pumping Plant diverts water from the Delta by pumping it

into the Delta-Mendota Canal, a 1 15-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, pump-

ing 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 Cali-

fornia voters on November 8, 1960.

S stantially all of the water required annually by the

State Water Project is to be obtained initially from the Sac-

ramento and San Joaquin 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 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.

BER Sel

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 approxiniately 700

miles of meandering waterways, some of which are navi-

gable, is used for both commercial shipping and recreational

boating. Water skiing and houseboating are common activ-

ities 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 Fly-

way, an important wintering area and major and customary

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 excess of

130,000 members of whom more than 40,000 live in the

San Francisco Bay and the Sacramento-San Joaquin Delta

areas. Included in the membership of the Sierra Club are

many persons who use the waters referred to in the complaint

for recreational purposes, including, but not limited to, boat-

ing, 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 estuarine areas.

Friends of the Earth is a nonprofit New York corporation

which has its principal place of business in San Francisco.

Its stated purposes include the preservation, restoration, and

rational use of the environment.

a OR

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 Francisco Bay and

the Pacific Ocean. Schramm has a economic interest in this

controversy since he depends for his livelihood on the main-

tenance, preservation, and conservation of sports and com-

mercial 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 Island, and consequently has an economic

interest in the maintenance, preservation, and conservation

of adequate non-polluted supplies of water in the Delta and

San Francisco Bay regions.

Defendants are state and federal officials who administer

the various agencies responsible for overseeing the opera-

tion, construction, and regulation of the facilities in ques-

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

retary of the Interior; Gilbert Stamm, Commissioner of the

Bureau of Reclamation; Howard H. Calloway, Secretary of

the Army; William C. Gribble, Jr., Chief of Engineers of

the United States Army; George B. Fink, Division Engineer

of the South Pacific Division of the United States Army

Corps of Engineers; Colonel Frederick J. Rockwell, District

Engineer of the Sacramento, California District of the

United States Army Corps of Engineers: and Colonel James

L. Lammie, District Engineer for the San Francisco, Cal-

ifornia District of the United States Army Corps of Engi-

neers. The state defendants are Norman B. Livermore, Jr.,

Secretary for Resources, and John R. Teerink, Director of

the Department of Water Resources.’

*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.

4

ae A

Plaintiffs’ amended complaint alleged six claims for re-

lief, namely, failure of defendants to comply with 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 Har-

bors 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 seg. (sixth claim). In the pretrial

order plaintiffs abandoned their second claim. Since the

parties have at best cursorily asserted and argued with re-

spect to the fifth claim, and since plaintiffs have offered

neither findings nor conclusions with respect to that claim

and none of the trial 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

pulledes

Plant was being constructed, an intake channel was simul-

taneously constructed from the pumping plant northeast to

Old River. The Tracy Plant consists of six pumps with a

maximum pumping capacity of 4602 cubic 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 trans-

ported 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 February

of 1969, however, that all construction was finished. 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 California Aq-

ueduct. However, there is room for the installation of four

additional pumping units which would increase Capacity to

10,300 cfs,* 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

‘Stated in other terms, the Delta Plant currently has the capacity to

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

“If a pumping plant pumps at the rate of | cfs for 24 hours. it will

pump 1.98 aere-feet per day.

So,

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 con-

nects the Forebay to West Canal. West Canal in turn is

connected to Old River.

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 Forebay and

the intake channel for the Tracy Plant. The Peripheral 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 Sacra-

mento 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 Peripheral 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.

«we

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

maximum capacity would be allocated in the following

manner: 10,300 cfs would be allocated to the State Water

Project facilities served by the Delta Plant, 6,500 cfs would

be available :o the Federal Central Valley Project,’ and

6,000 cfs would be available for release into the Delta along

the path of the Peripheral Canal. Although one witness

estimated that the entire Peripheral Canal project would cost

$240 million, inflationary forces could easily result in a

much higher cost.

II. RIVERS AND HARBORS

ACT OF 1899

A. Private Right of Action

In determining whether a private right of action is implicit

in a statute not expressly providing one, four factors 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 consistent

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 in-

appropriate 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. Bar-

bour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975):

National Railroad Passenger Corp. v. National Ass’n of

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

be available for pumping through the Tracy Plant.

Be, ae

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 effectuate 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 Sec-

tions 9 and 10. Alameda Conservation Association v. Cal-

ifornia, 437 F.2d 1087, 1094-1095 (9th Cir. 1971) Sierra

‘The Court of Appeals for the Third Circuit has held that govern-

mental enforcement is exclusive and that Congress did not create 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 (Sth Cir. 1972), merely holds that although

Section 13 of the Rivers and Harbors Act may create a federally pro-

tected right against deposit of refuse which injures navigation or an-

chorage, the injury of other private rights, even from deposits in vio-

lation of Section 13, does not give rise to a federal right of action nor

does it supply a basis of federal jurisdiction. The crux 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 So-

ciety 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 (Sth 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 (Sth Cir. 1928).

pie." i

Club v. Leslie Salt Co., 354 F.Supp. 1099, 1104-1105

(N.D.Cal. 1972). In Alameda Conservation plaintiffs sought

injunctive relief against defendant corporation alleging in-

jury 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 standing to sue, re-

versed the district court’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 §.Ct. 2080,

the Supreme Court apparently construed Wyandotte Trans-

portation Co. v. United States, 389 U.S. 191, 201-202. 88

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

istence of a private right of action under the Rivers and

Harbors Act of 1899, albeit under a different section of the

Act. Finally, analysis of the Rivers and Harbors Act of 1899

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

a private right of action exists under Sections 9 and 10.

First, the Court concludes that plaintiffs are members 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 ca-

pacity which were not authorized by the United States and

to allow the United States to regulate obstructions to the

navigable capacity of its navigable waterways.*®

Keep concerns whether a particular plaintiff is sufficiently con-

nected with a cause of action to assert rights thereunder in a legal

proceeding. 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.

‘Prior to its enactment the Supreme Court in Willamette Iron Bridge

Co. v. Hatch, 125 U.S. 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

Ms,

Second, the Court concludes that there is no indication

that it was the intent of Congress to preclude a private right

of action.” In reaching this conclusion, the primary consid-

eration is the signficance of the provisions empowering the

the Attorney General to enforce the Act in appropriate pro-

ceedings. Preliminarily, the Court notes that the doctrine

of expressio unius est exclusio alterius, recently given vi-

tality 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, 888 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 in-

tended to vest exclusively in the Attorney General the en-

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.

"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.

In Barbour and Amtrak the court adopted the proposition that ex-

press statutory provision for one form of proceeding ordinarily implies

that no other means of enforcement was intended by the legislature.

Securities Investor Protection Corp. v. Barbour, supra, 95 §.Ct. 1733:

Amtrak, supra, 414 U.S. 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 legislative 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 Harbors Act of 1899 are not exclusive. See Wyandotte

Transportation Co. v. United States, supra, 389 U.S. at 200-201, 88

S.Ct. 379. In that case the court recognized that to limit the government

to remedies explicitly authorized under the Act would withhold rem-

edies 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.

po,

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

violations 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 said

sections may be enforced by the injunction of any dis-

trict court exercising jurisdiction in any district in

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 enforce

by injunction removal of structures erected in violation 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

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

the court. There 42 U.S.C. § 1973)(f) provided that the district courts

would have jurisdiction over proceedings brought pursuant to that sec-

tion 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 pro-

hibited by certain sections of the Voting Rights Act. 42 U.S.C.

§ 1973j(d). Nothwithstanding this explicit grant of power to the At-

torney 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.

ating

Court believes that a private right of action is necessary to

effectuate the purposes intented to be served by the Act, the

Court cannot find, either expressly or impliedly, in Section

12 of the Rivers and Harbors Act any exclusive vestment

of enforcement powers in the Attorney General. The Court

does note that Section 17 provides, inter alia, that the De-

partment of Justice ‘‘shall conduct the legal proceedings

necessary to enforce’’ Sections 9 and 10.’ In light of the

language of that entire section, however, 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

"Section 17 provides:

‘“The Department of Justice shall conduct the legal proceedings

necessary to enforce the provisions of sections 401, 403, 404,

406, 407, 408, 409, 411, 549, 686, and 687 of this title; and it

shall be the duty of United States attorneys to vigorously prosecute

all offenders against the same whenever requested to do so by

the Secretary of the Army or by any of the officials hereinafter

designated, and it shall furthermore be the duty of said United

States Attorneys to report to the Attorney General of the United

States the action taken by him against 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 enforce-

ment of the said provisions and to facilitate the detection and

bringing to punishment of such offenders, the officers and agents

of the United States

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