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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1980

## Text

— 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2231%3A2. Public record. Not legal advice.