Petition — Sierra Club v. Watt

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

NO. 79.- 1625

SIERRA CLUB, et al.,

Petitioners,

vs.

CECIL D. ANDRUS, as Secretary of the

Interior of the United States, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

PETTIT & MARTIN

JOHN B. CLARK

JAMES E. HARRINGTON

ROBERT B. THUM

600 Montgomery Street

San Francisco, CA 94l1ll

Telephone: (415) 434-4000

SIERRA CLUB LEGAL DEFENSE FUND

MICHAEL R. SHERWOOD

31l California Street

San Francisco, CA 94104

Telephone: (415) 398-1411

Attorneys for Petitioners

TABLE OF CONTENTS

Opinions Below 3

Jurisdiction

Question Presented

Statutes Involved 4

Statement of the Case 4

Zé Nature of the Case

and the Proceedings Below

II. Summary of the Evidence 7

Relied upon by the Court of

Appeals to Support Its

Judgment That Any Obstruc-

tion to Navigation Arising

From Operation of the

Tracy Pumping Plant Has

Been "Affirmatively |

Authorized by Congress"

and Is Therefore Exempt

from the Provisions of

Section 10

Reasons for Granting the Writ 16

Le The Court of Appeals' 16

Decision Represents a

Clearly Erroneous Applica-

tion of the Plain Terms of

the Statute and, Unless

Reversed by This Court,

Will Permit Wholesale

Evasion by Federal Agencies

of the Mandatory Permit

Procedures of the Rivers

and Harbors Act of 1899.

}

IIt.

The Decision of the 21

Court of Appeals Is in

Direct Conflict with the

Decisions of This Court

and the Other Decisions

of the Lower Federal Courts

Interpreting the Relevant

Provisions of the Statute,

and, in Addition, Is in

Conflict with the Numerous

Decisions of This Court

and the Lower Federal

Courts Establishing the

General Rule That Exemption

from the Mandatory

Provisions of Pre-

Existing Federal Statutes

Are Not Normally to Be

Implied from Subsequent

General Enabling Legis-

lation or Appropriations

Acts.

Decisions Under the Rivers 21

and Harbors Act of 1899

Decisions Applying the 31

General Rule That Exemption

from the Requirements of

Pre-Existing Law May

Not Normally Be Implied

from Subsequent General

Enabling Legislation

and Appropriations Acts

Conclusion 37

iz.

TABLE OF AUTHORITIES

Cases

Arizona Power Pooling Assn. v. Morton,

S27 F.24 fal (Sth Cit. 1975)

Atchison, Topeka & Santa Fe R.R. Co. v.

Callaway, 382 F.Supp. 610 (D.D.C.

1974)

City of Santa Clara v. Andrus,

$72 F.2d 660 (9th Cir. 1978)

Committee for Nuclear Responsibility

v. Seaborg, 463 F.2d 783 (D.C.

Cig. 197i)

D.C. Federation of Civic Associations,

2n@. VW. APAS, 29k Fi ae 876 teeGx

Ciz. i968)

Environmental Defense Fund, Inc. v.

Froehlke, 473 F.2d 346 (8th Cir.

1972)

Ex Parte Endo, 323 U.S. 283 (1944)

Greene v. McElroy, 360 U.S. 474 (1959)

Hubbard v. Fort, 188 Fed. 987 (D.N.J.

1911)

Libby Rod and Gun Club v. Poteat,

5994 F.2d 742 (9th Cir. 1979)

National Audubon Society v. Andrus,

442 F.Supp 42 (D.D.C. 1977)

Pages

29,30-31,

32,35-36

29,30-31,

Republic Steel Co. v.

482 (1960)

Rothensies v. Electric Storage Battery

329 U.S. 296

Sanitary District of Chicago v. United

266 U.S. 405 (1924)

Tennessee Valley Authority v. Hill,

437 U.S. 153 (1978)

United States v. Arizona,

(1935)

CO.,

174

362 U.S.

States,

Watules

DemeGe

a oe

U.$.C.

Stat.

seat.

United States,

(1946)

Statutes

§1531

§401

§403

§ 485 (h)

aaa (4935)

844 (1937)

lil2 (1948)

156 (1960)

7 D.C. Code §§108-15

295 U.S.

Pages

32,33-35

18,19,25,

26,27=-28,

8,26

4,6,7-8,

10,11,16,

22,24,26,

Pages

Administrative Regulations

33 CFR §322.3(c) (1) 9-10,19

Legislative Materials

H. R. Doc. No. 146, 80th Cong.,

lst Sess. (1947) 1S

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

SIERRA CLUB, et al.,

Petitioners,

vs.

CECIL D. ANDRUS, as Secretary of the

Interior of the United States, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Petitioners respectfully pray that a

writ of certiorari issue to review the

judgment of the United States Court of

Appeals for the Ninth Circuit entered

in this proceeding on October 31, 1979,

insofar as it held (1) that operation of

the Tracy Pumping Plant of the Central Valley

Project of the United States Bureau of

Reclamation had been "affirmatively

authorized by Congress" within the meaning

of Section 10 of the Rivers and Harbors

Act of 1899 (33 U.S.C. §403), and (2) that

this facility was therefore exempt from the

requirement of that section that any

alteration or modification of a navigable

waterway be approved by the Secretary of

the Army and the Chief of Engineers of

the Army Corps of Engineers.

Petitioners are the Sierra Club, a

nationwide conservation organization, and

Hank Schramm and William Dixon, two

individuals whose substantial interest in

this controversy is described in the opinions

of the courts below (Appendix, pages 5-6,

notes 1-3, pages 67-68). Respondents are the

federal officials responsible for the opera-

tion and oversight of the Tracy Pumping

Plant, namely, the Secretary of the Interior,

the Commissioner of the Bureau of Reclama-

tion, the Secretary of the Army, the Chief

of Engineers of the Army Corps of Engineers

and the Division and District Engineers of

the Corps of Engineers.

Two additional petitions for writs of

certiorari to review other aspects of the

same judgment of the court of appeals have

previously been filed by other parties to

the proceedings below. These are presently

pending in this Court as Docket Nos.

79-1252 and 79-1502.

Opinions Below

The decision of the court of appeals

is officially reported at 610 §.2d 581 and

is reproduced in the Appendix (Appendix

pages 5-62). The decision of the District

Court is officially reported at 400 F.Supp.

610 and is also reproduced in the Appendix

(Appendix pages 63-129).

Jurisdiction

The judgment of the court of appeals

was entered on October 31, 1979. A timely

petition for rehearing en banc was denied

On January 17, 1980. This petition is

being filed within 90 days of that date.

This court's jurisdiction is invoked under

a8 U.S.C. §i1254(1).

Question Presented

Whether the legislative history relied

upon by the court below in fact establishes

that Congress has "affirmatively authorized"

an “obstruction... to [the] navigable

Capacity" of the Sacramento-san Joaquin

River Delta arising from the operation

of the Tracy Pumping Plant and has thus

exempted that facility from compliance with

the requirements of Section 10 of the

Rivers and Harbors Act of 1899 (33 U.S.C.

§403).

Statutes Involved

The principal statute involved is

section 10 of the Rivers and Harbors Act

of 1899 (33 U.S.C. §403). It is reprinted,

together with certain related sections of

the Act, in the Apvendix.

Statement of the Case

I. The Nature of the Case and the

Proceedings Below

This case involves an attempt by the

Bureau of Reclamation and the California

Department of Water Resources to implement

what are probably the most extensive

diversions of water in this nation's history

without effecting even colorable compliance

with the 80-year old Congressional mandate

that all modifications of the condition or

Capacity ¢f any navigable waterway be

reviewed and approved by the United States

Army Corps of Engineers. According to the

trial court's unchallenged findings, the

diversion projects at issue in this case

woulda ultimately accomplish a reduction of

up to 80 per cent in the flow of one of the

major

ivers of the West and have already

effected a subsidence, by at least 18 inches,

of the water level in numerous portions of

the vast delta region By which several such

major rivers empty into the San Francisco

Bay and the Pacific Ocean (Appendix, pages

89-92). The entire system, nevertheless,

has been constructed and is being operated

in total disregard of the specific and express

procedures for administrative review and over-

Sight of such projects long since established

by Congress for the purpose of preventing

disruption and obstruction of the nation's

system of navigable waterways (Appendix,

pages 50-53, 93-104).

Public disclosure of this massive

bureaucratic lapse is what prompted the

present litigation. By their complaint,

petitioners sought an adjudication that three

principal components of the defendants'

diversion projects - namely, the state-

Operated Delta Pumping Plant, the Tracy

Pumping Plant of the Bureau of Reclamation

and the more recently commenced project

for construction of the Peripheral Canal -

are in violation of the applicable law,

and requested appropriate relief against

continuation of the defendants' unauthorized

activities. Following the first phase

of a bifurcated trial, the district court

entered an interlocutory judgment to the

effect that these elements of defendants’

projects were indeed unlawful and enjoined

the defendants from continuing to ignore

their legal duty to apply for approval

by the Corps of Engineers of the con-

struction and operation of these facilities

(Appendix, pages 104, 127-29).

Although the defendants acquiesced

in the trial court's judgment regarding

the Peripheral Canal (Appendix, page 8),

they sought review by the court of appeals

of the finding of illegality with respect

to both the Delta Pumping Plant and the

Tracy Pumping Plant. That court affirmed

the judgment of the district court regarding

the state's Delta Pumping Plant but reversed

the trial court with respect to the federal

Tracy Pumping Plant. Rejecting the express

finding of the trial court on this issue

(Appendix pages 101-3), the court of appeals

held that any obstruction to navigation

resulting from operation of the latter

facility had been “affirmatively authorized

by Congress," within the meaning of the Act,

in the course of Congress's consideration

and funding of various phases of th

federal role in the overall diversion

project (Appendix, pages 40-49). This

latter ruling of the court of appeals is

the subject of this petition.

II. Summary of the Evidence Relied upon

by the Court of Appeals to Support

Its Judgment That Any Obstruction

to Navigation Arising from Operation

of the Tracy Pumping Plant Has Been

"Affirmatively Authorized By Congress”

and Is Therefore Exempt from the

Provisions of Section 10

The statutory provision applied By the

courts below in determining whether the

Tracy Pumping Plant had been exempted

By Congress from the permit procedures of

the Corps of Engineers was the first clause

of section 10 of the Rivers and Harbors

Act of 1899 (33 U.S.C. §403). That section

provides in its entirety as follows:

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 ocrt,

roadstead, naven, harbor, canal,

navigable river, or other water of

the United States, outside established

harbor lines, or where no harbor

lines have been established, except

On plans recommended by the Chief of

Engineers and authorized by the Secretary

of the Army; and it shall not be lawful

to excavate or fill, or in anv 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

beginning the same.

The principal purpose and effect of

this statute, according to the construction

originally adopted by this Court in

Wisconsin v. Illinois, 278 U.S. 367 (1928),

and accepted by both of the courts below, is

to delegate to the Army Corps of Engineers

the primary power to regulate and to approve

or prohibit, by appropriate administrative

procedures, any activity affecting the course,

condition or capacity of a navigable water-

way. Wisconsin v. Illinois, supra at 413.

See also Republic Steel Co. v. United

States, 362 U.S. 482, 486-87 (1960).

Unlike section 9 of the same Act, which

is solely applicable to the construction

of dams and dikes, section 10 does not

require that Congress itself approve each

activity or project, but instead generally

confers this authority on the Secretary

and the Corps wherever they are able to

make a finding that the work in question

will not create an unreasonable obstruction

n. Id. (see, generally,

Appendix, paces 25-33, 84-88). The first

clause of the statute, however, creates a

special exception to this general delegation

of authority by confining the application

of the entire section to activities "not

affirmatively authorized by Congress."

The effect of this exception is to reserve

to Congress the power to exempt a particular

work from the ordinary administrative

permit procedures by "affirmatively

authoriz[ing]" any obstructive impact which

it might otherwise be found to have upon

the navigable waterways. See Wisconsin

v. Illinois, supra at 412-13, 416-18.

Sanitary District of Chicago v. United States,

266 U.S. 405, 427-28 (1924); Hubbard v. Fort,

188 Fed. 987, 986 (D.N.J. 1911) (see also

Appendix, pages 40-49, 101-3).

Rightly discerning that a lax construc-

tion of this exemption could result in a

Blanket immunity from the statutory require-

ments for all federal agencies and projects,

the Corps of Engineers has traditionally

given a strict interpretation to the

exemption for works "affirmatively autho-

rized by Congress." Its current regulations

provide (33 CFR §322.3(c) {(l)):

The general legislation by which

Federal agencies are empowered to

act generally is not considered to

be sufficient authorization by

Congress to satisfy the purpose

of Section 10. If an agency asserts

that it has Congressional authorization

meeting the test of Section 19 or would

otherwise be exempt from the provisions

of Section 10, the legislative history

and/or provisions of the Act should

clearly demonstrate that Congress was

approving the exact location and plans

from which Congress could have con-

Sidered the effect on navigable waters

of the United States or that Congress

intended to exempt that agercy from

the requirements of Section 10.

The court of appeals expressly approved

and adopted this administrative inter-

pretation of the statute (Appendix, pages

43-44). The court thus agreed with the

district court and with petitioners that

the exemption provided by the first clause

of section 10 should be held inapplicable

to the Tracy Pumping Plant unless it could

be shown that "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 congressicnal authoriza-

tion under section 10" (Appendix, page 44).

The court nevertheless went on to hold,

on the basis of its review of this legis-

lative history, that any obstruction t

the navigable capacity of the channels

of the Delta resulting from the diversions

effected by the Tracy Pumping plant had

indeed been "affirmatively authorized

by Congress" (Id., pages 44-49).

The evidence purportedly establishing

Congress's consideration and approval of the

navigational effect of the Tracy Pumping

Plant which was relied upon by the court of

appeals is described at length in the court's

opinion and need not be repeated here in

all its detail (See Appendix, pages 44-49).

It will be useful, however, to undertake

a general summary of the different types

of evidence of congressional consideration

cited by the court, with specific atten-

tion to .ne presence or absence of any

reference to the Tracy Pumping Plant

occurring in any of the cited materials.

In brief, the major categories of legis-

lative materials invoked by the court to

Support its finding on this issue were th

following:

L. Legislation authorizing the

Central Vallev Project as a whole or reclama-

tion projects in general. This first cate-

gory of legislative materials cited by

the court of appeals includes three basic

items. The first of these is the initial

congressional authorization of the commence-

ment of the Central Valley Project, in

which a general reference to "the delivery

of the stored waters" of the Sacramento

pM ee

and San Joaquin Rivers is the closest thing

to be found to a specific congressional

approval of any navigational obstruction,

and which neither contains nor refers

to any of the particular features of that

massive project, let alone the Tracy

Pumping Plant and its possible effects on

navigation in the Delta. 50 Stat. 844, 850

(1937); 49 Stat. 115 (1935) (Appendix,

pages 44-45). The second item in this

category is the Reclamation Project Act

of 1939, which merely confers general

authority on the Secretary of Interior to

undertake reclamation projects which he finds

to be financially feasible, and which contains

no reference whatsoever even to the Central

Valley Project, much less to the potential

effects of the contemplated pumping opera-

tions in the Delta. 53 Stat. 1187 (1939),

now codified as 43 U.S.C. §485(h) (Appendix,

page 45). Finally, the court of appeals

relied upon the enactment, seven years after

the completion and initial operation of

the Tracy Pumping Plant, of legislation

authorizing construction of a wholly separate

phase of the Central Valley Project, in

which the Tracy Pumping Plant receives its

Only mention in any of these acts of

Congress. The reference to the olant in

that statute, which the court of appeals

hyperbolically described as evidencing

congressional approval of “the precise loca=-

tion and plans of the Tracy Pumping Plant"

(Appendix, page 48), consists in its

entirety of the following single sentence

in the four-page-long enactment (74 Stat.

156, 159 (1960); emphasis added):

If the Secretary proceeds to construct,

Operate, and maintain the San Luis

Works under the terms of section l 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 the

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.

ee Appropriation Acts. In addition

to these general authorization acts, the

court cites numerous enactments appropriating

funds for reclamation which were apparently

used by the Secretary of the Interior

to construct the Tracy Pumping Plant and

to implement the massive diversion of

Delta water made possible by use of that

facility (Appendix, page 43-47). As the

court concedes in its opinion, however,

only one of these statutes, enacted a

year after the commencement of construc-

tion of the Tracy Pumping Plant, contains

any reference to that particular facility

or to any aspect of its construction or

operation (Appendix, page 46). MThat

reference consists of the inclusion of a

Single item, denominated "switch yards,

Shasta, Keswick and Tracy Pumping Plants,

$3,250,000," in a long list of appropriations.

"(flor continuation of construction" of

various reclamation projects, which list is

itself contained in a statute some 38 pages

in length. 62 Stat. 1112, 1129 (1948).

Needless to sav, none of these appropriation

acts reflects any sign that Congress ever

considered or approved the navigational

effects of the use of these appropriated

funds to effect diversions of water through

the Tracy Pumping Plant.

3. Committee Reports and Testimony.

The court of appeals also relied upon a

handful of committee reports containing

various parenthetical references, none

more than a few words in length, to the

existence of a pumping plant at Tracy

(Appendix, page 47, note 34). The most

extensive of these references appears in

a statement of the Commissioner of Recla-

14.

mation inviting the members of a Senate

committee to attend the opening of Shasta

Dam, wherein he states that, when the dam

is opened, "water will be released from

Shasta Dam, carried down the Sacramento River

through Shasta and Keswick generators, through

the cross-channel-canal cut, lifted up 200

feet by the great Tracy Pumps, and sloshed

down the long Delta-Mendota Canal to the

Mendota pool. .. ." (Appendix, pages 47-48,

note 34). The remainder of the references

to the Tracy Pumping Plant in these

materials are even less descriptive. In

addition to these reports mentioning the

pumping plant, the court also referred to a

Finding of Feasibility for the Central

Valley Project which was submitted to the

House of Representatives by the Secretary

of the Interior, pursuant to the requirements

of the 1939 Reclamation Act, on February

24, 1947, a few days after commencement

of construction of the Tracy Pumping Plant.

HEH. R. Doc. No. 146, 80th Cong., lst Sess.

(1947). The most remarkable feature, for

present purposes, cf this detailed 48-page

study of nearly all phases of the Central

Valley Project is that it does not contain a

Single mention of the Tracy Pumping Plant

or cf its enormous potential impact, later

realized, on water levels and other con-

15.

ditions of navigability in the Delta.

This, then, is the entire record on

the basis of which the court of appeals

concluded that Congress had "affirmatively

authorized," within the meaning of the

Statute, any "obstruction .. . to navigable

capacity" that might arise from diversion

of water through the Tracy Pumping Plant,

and that it had additionally "approved the

exact location and plans" of that plant

within the meaning of the regulations of

the Corps of Engineers implementing the

statute.

Reasons for Granting the Writ

I. The Court of Appeals' Decision

Represents a Clearly Erroneous

Application of the Plain Terms of

the Statute and, Unless Reversed by

This Court, Will Permit Wholesale

Evasion Ey Federal Agencies of the

Mandatory Permit Procedures of the

Rivers and Harbors Act of 1899

Even if the matter is considered without

reference to the prior conflicting decisions

of this Court and the other lower federal

courts which are discussed in Part II below,

it 1s apparent that the ccnclusion drawn

by the court of appeals from the foregoing

meager record of congressional consideration

of the Tracy Pumping Plant represents an

16.

erroneous application of the statute.

The most that is shown By this record is that

Congress was made generally aware, at one

time or another, that an edifice known

as the Tracy Pumping Plant was being utilized

to transport some undetermined quantity of

water from some undetermined location in

the Sacramento-San Joaquin River Delta.

There is not a single item in this entire

legislative history indicating that Congress

was ever informed that the operation of

the plant would have any effect at all on

the navigable capacity of the Delta channels,

let alone that it would substantially lower

water levels in that area and might later

play a significant role in the diversion of

up to 80 per cent of the water of a major

river (see Appendix, pages 89-92). Similarly,

there are no indications in the record that

Congress was ever apprised that construction

and operation of this facility would be

carried out by the Bureau of Reclamation

without any attempt at compliance with the

permit requirements which are imposed on

federal agencies, as on all other public

and private entities, by the provisions of

the Rivers and Harbors Act of 1899.* Nor,

finally, is» there any suggestion in this

history that Congress ever intended to

create, or was asked to create, any special

exemption of the Tracy Pumping Plant from

the mandatory terms of those statutory

provisions. When this legislative history

is matched against the actual language

of the statute, it is clear that Congress

Cannot be said, by any stretch of the

imagination, to have "affirmatively

authorized" the Bureau of Reclamation to

excuse itself from the requirements of

the Act, or to create any "obstruction...

to the navigable capacity" of the Delta

without first securing the necessary vermit

from the Army Corps of Engineers. Any

other conclusion would require either a dis-

regard of the plain words of the statute or

e Tt is perhaps noteworthy in this regard

that this Court's decision in United States

v. Arizona, 295 U.S. 174 (1935), which

unambiguously reaffirmed the applicability

of the Rivers and Harbors Act of 1899 to the

activities of federal agencies in general

and of the Bureau of Reclamation in particular

was handed down at approximately the same

time that Congress was considering the

Original authorization of the Central Valley

Project.

an acceptance of the notion that a mere

passive awareness by Congress of a proposed

pumping facility somehow implies congressional

knowledge and approval of both its potential

adverse effects on navigation and the

unexpressed intention of the responsible

agency personnel to construct and operate the

facility in disregard of pertinent legal

requirements. Since neither of these premises

is tenable, it follows that there is no

rational basis in the record for the court

of appeals' decision on this issue.

Failure by this Court to correct this

mistaken ruling of the court below would not

merely perpetuate a legal error, but might

well have the practical effect of entirely

frustrating the application of the statute

to any of the agencies of the federal govern-

ment. As noted above, it has heretofore been

regarded as well settled, and is apparently

conceded by all parties to this proceeding,

that the permit requirements of section 10

of the Act were intended by Congress to

apply with their full force to activities of

the federal government. United States v.

Arizona, supra at 184. See 33 C.F.B.

§322.3(c) (1). If, however, the kind of

minimal evidence relied upon by the court

below to establish a special exemption for

19.

the Tracy Pumping Plant were deemed generally

sufficient to exempt any federal project

from these statutory requirements, little

scope would remain for their application.

For it would undoubtedly be a rare case in

which any of the federal agencies - all

of which must, after all, obtain their

general authority and operating funds through

acts of Congress - would be unable to piece

together from the legislative history of

their enabling acts the sort of cryptic and

isolated references to a challenged project

which the court of appeals has held sufficient

to confer a statutory immunity on the project

at issue in this case. The decision of the

court of appeals thus represents, not simply

a solitary misjudgment in the application

—£ the statute to the facts of a particular

case, but a general invitation to wholesale

disregard of the statutory command by all of

the agencies of the federal government. The

gravity of this consideration alone, quite

independently of the conflict with other

relevant decisions which is discussed in the

succeeding section, demands that this Court

take action to reverse that decision. See

Rothensies v. Electric Storage Battery Co.,

329 U.S. 296, 299 (1946).

20.

The Decision of the Court of Appeals

Is in Direct Conflict with the Decisions

of this Court and the Other Decisions

of the Lower Federal Courts Inter-

preting the Relevant Provisions of

the Statute, and, in Addition, Is in

Conflict with the Numerous Decisions

of This Court and the Lower Federal

Courts Establishing the General Rule

That Exemptions from the Mandatory

Provisions of Pre-Existing Federal

Statutes Are Not Normally to Be

Implied from Subsequent General

Enabling Legislation or Appropriations

Acts

A. Decisions Under the Rivers and

Harbors Act of 1899

The only prior decisions of this Court

construing the exemption conferred by th

first clause of Section 10 of the Rivers

and Harbors Act of 1899 are the two decisions

in the so-called Chicago Drainage Canal

Cases, Sanitary District of Chicago v.

United States, 266 U.S. 405 (1924), and

Wisconsin v. Illinois, 278 U.S. 367 (1928).

Those cases involved the construction and

Operation by the State of Illinois and the

Chicago Sanitary District, without proper

authorization from the Army Corns of

Engineers, of a drainage Canal through whi

the waters of Lake Michigan were being

diverted for the purpose of disposing of

Chicago's sewage. In the first of the

a”

~~ +e

cases, the defendants contended, by way of

4efense to the injunctive action brought

by the federal government under the Rivers

and Harbors Act, that Congress had "given

its assent to all that has been done,"

and cited as the principal support for that

contention an earlier congressional

enactment granting land to the state for the

specific purpose of contructing the drainage

canal. In its opinion affirming the lower

court's grant of injunctive relief, this

Court disposed of this particular defense

in the following passage (266 U.S. at 428):

[The act of Congress] certainly vested

no irrevocable discretion in the

state with regard to the amount of

water to be withdrawn from the lake. It

said nothing on that subject. We

repeat that we assume that the United

States desires to see the canal main-

tained and therefore pass by, as

immaterial, all evidence of its having

fostered the work. Even if it had

approved the very size and shape of the

channel by act of Congress, it would

not have compromised its right to

control the amount of water to be drawn

from Lake Michigan.

The court went on to hold that the diver-

sions in question were unlawful in the

absence of a permit from the Corps of

ued pursuant to section 10.

22.

In the second of these cases, which arose

from a subsequent action Brought By the State

of Wisconsin to enjoin another phase of the

same diversion, the Sanitary District raised

the same defense, this time relying, not

only upon the congressional grant of land

to the state, But also on a subsequent

congressional appropriation of funds for

the specific purpose of dredging the Chicago

River at its confluence with the drainage

canal. Again, the Court rejected the pro-

ferred defense, expressly adopting and

incerporating in its opinion the conclusion

of the special master that "Congress has

not . . . authorize[d] the diversion in

question.” 278 U.S. at 417.

Tf anything, the specific congressional

enactments respecting the diversion project

at issue in these two cases represent far

stronger evidence of a congressional inten-

tion to exempt these facilities from the

permit requirements of the Act than any of

the sorts of general agency authorizations

and one-line references in lengthy appro-

priation acts which the court of appeals

relied upon to sustain the claim of exemption

in this case. It follows that the court

of appeais' holding in this regard is in

direct conflict with the only extant

decisions of this Court construing this

provision of the statute.

Cognizant of this apparent direct con-

flict, the court below sought to explain

it away on two grounds. First, the court

ventured its view that the Chicago Drainage

Canal Cases merely involved "(t]he right

of the Congress to control the operation

of a facility that it has previously

approved," and that these decisions therefore

simply stood for the proposition that Con-

gress may constitutionally revoke its own

prior authorization of a challenged project

(Appendix, pages 40-42, note 29). This,

however, is simply a misapprehension of

the facts of these cases. Congress had taken

no action in either case to revoke anything

it had previously done with regard to the

Chicago Drainage Canal or to assert any

control whatsoever over the canal's opera-

tion. Rather, the sole basis of both

actions, as it is of this action, was the

Straightforward claim that the defendants

had failed to comply with the pre-existing

requirements of section 10 of the Rivers

and Harbors Act of 1899. 278 U.S. at 400,

420; 266 U.S. at 423-24. As in this case,

the issue of congressional authorization

was raised solely as a defense to that

24,

claim, and this Court's resolution of that

issue against the defendants in those cases

occurred solely in that context. These

cases are thus identical to this one in

this respect, and the purported distinction

essaved by the court of appeals is

accordingly without substance.

The second ground for the refusal of

the court below to follow these dispositive

decisions was its apparent belief that

a dictum in this Court's subsequent

opinion in United States v. Arizona, supra,

had modified the principle enunciated in

these earlier cases (Appendix, pages 41-43).

That dictum consisted of the following single

sentence, uttered in reference to a certain

dam on the Colorado River, the legality

of which, incidentally, was not at issue

in that case (295 U.S. at i166);

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 dam.

The court of appeals interpreted this state-

ment as tne announcement of a new rule to

the effect that any congressional app

priation for an entire reclamation op

may be deemed to constitute lecislative

authorization and consequent exemption

from the permit vorovisions of section 10

of the Rivers and Harbors Act for each and

every element of that project (Appendix,

pages 43, 46).

Such an interpretation of this dictum

is untenable. In the first place, neither

the dictum itself nor any.other portion

of the opinion in United States v. Arizona,

Supra, actually involved an application

of the terms of section 10. The opinion

in that case was instead concerned solelv

with the question of whether the defendants

had obtained the "consent of Congress" to

the construction of a dam which is required

by section 3 of the Act. 295 U.S. at 194,

186. Since the term "consent" used in

section 9 implies far less deliberate

and extensive congressional consideration

of a proposed project than the term

“affirmatively authorized" which is utilized

in section 10, any permissive interpretation

of the former term which the Court might

have given in that case would be of doubt-

ful relevance to the application of the latter

section in any event. t the very least,

the Court's pronouncements on that very

ifferent subject could hardly be viewed

as having overruled the authoritative

construction of section 10 which had

previously been enunciated in the Chicago

os ~~

Drainage Canal Cases.

Moreover, even apart from this factor,

it is quite clear from the context of the

Court's dictum in United States v. Arizona,

supra, that the Court's statement was

in no way intended to be viewed as a delibera-

te proclamation of the scope of either of

these sections of the Rivers and Harbors Act.

The dictum occurs in the course of the

Court's rejection of .an argument by the

government that the "consent of Congress"

to the construction of the Parker Dam had

been conferred by an act granting the

Secretary of the Interior general authorit:

"to divert the waters of the Colarado

River." The government pointed out, in

Support of its interpretation of this

authorizing legislation, that the Secretary

had already constructed a similar.dam, the

Laguna Dam, under the authority allegedly

conferred by that same statute. The

government's contention on this point was

refuted by tne Court in the following

passage, which contains the dictum in

question (295 U.S. at 185-86):

In support of the construction for

which it contends, plaintiff asserts

that it was under this Act that the

Secretary of the Interior built the

Laguna Dam across cae Colorado. But

it does not appear that either riparian

State objected or that the validity

of his authority has ever een drawn

in question. 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 dam. Wisconsin v. Duluth,

96 U.S. 379, 386, 24 L. ed. 668, 671.

There has been cited no other instance

of the construction, without the consent

of the Congress, of a dam across a

navigable interstate river. Indeed,

it is not certain that that part of the

Colorado was then deemed to be navigable.

We find no merit in the contention that

§25 of the Act of April 21, 1304, is

the “consent of Congress" required

by §9 of the Act of March 3, 1899.

The dictum to which the court below attached

such great weight thus appears, when quoted

in context, to have been nothing more

than one of several speculative observations

offered by the Court to explain Now a

different dam project, not then before the

Court, might have received legal authoriza-

tion. It is virtually inconceivable that,

in these circumstances, the Court would have

intended its remarks to abrogate its prior

considered holdings on the effect to be

given to general appropriation acts under

the provisions of either section 9 or

section 10 of the Rivers and Harbers Act

The court of appeals was clearly wrong in

attaching such momentous significance

to the Court's statement.

29.

The reliance of the court below on the

dictum in United States v. Arizona, supra,

is thus clearly inappropriate on two inde=-

pendent grounds. First, the Court's remarks

in that case were concerned with the

different and more permissive provisions of

a separate section of the Rivers and

Harbors Act which is not involved in this

case. Second, in any event, the Court's

remarks, when viewed in context, cannot fairly

Be construed as a considered pronouncement

of the governing law under either section

of the Act. t follows that the Court's

earlier decisions in the Chicago Drainage

Canal Cases, with which the holding

of the court below directly conflicts,

have fully retained their authoritative

status.

The decision below is also in conflict

with the only two other decisions of the

lower federal courts which are directly

pertinent to the issue presented here.

Those decisions, one of which, ironically,

was rendered by another panel of the court

below, are Libby Rod and Gun Club v. Poteat,

394 F.2d 742 (9th Cir. 1979), and Atchison,

Topeka & Santa Fe R.R. Co. v. Callaway, 382

F.Supo. 610 (D.D.C. 1974), vacated as moot

431 F.Supp. 722 (D.D.C. 1977).* While both

of these cases actually arose under section 9

rather than section 10, they present, by

their logical implications, an even more

forceful conflict with the decision below

than would be presented by contrary hold-

ings under section 10 itsel=. Each of

these decisions held that not even the

"consent of Congress" required by section 9,

let alone the more restrictive "“affirma-

tive... authoriz{(ation]" prescribed by

section 10, could be implied from a legis-

lative history far more indicative of

conscious congressional approval of the

challenged agency action than anything

that appears in the record in this case.

A recitation of the details of congressional

action depicted in the opinions in both

* The author of tne Opinion below admits

to having learned of the decision in Libby

only “after the first draft of a proposed

Opinion in the present appeal was circulated"

to the other members of the panel (Appen-

dix, page 49 n.36). The task of attempting

to reconcile the two conflicting decisions

was delegated to Judge Tang, who was a member

of both panels (Id.). Petitioners will

not burden the court with a recitation of

all of the reasons why the efforts of

Judge Tang to accomplish this conside

task in his concurring opinion (Append.:

pages 55-62) ultimately proved unsucce

of these cases would unduly lengthen this

petition. Suffice it to say that each case

involved, among other things, a con-

gressional enactment which narrowly, speci-

fically and expressly appropriated funds

for the full cost of the precise structure

that the court ultimately found to be in

violation of section 9 of the Act. 594

F.2d at 745; 382 F.Supp. at 619-20.

Since this is far more than the court of

appeals was able to adduce in this case by

way of purported satisfaction of the even

Stricter standards of section 10, these

decisions are plainly inconsistent with the

decision below. This fact of course

reinforces the need for this Court to review

that decision on the merits.

B. Decisions Applying the General

Rule That Exemptions from the

Requirements of Pre-Existing

Law May Not Normally Be Implied

from Subsequent General Enabling

Legislation and Appropriation

Acts

In holding that the congressional en-

actments authorizing and appropriating funds

for various phases of the Central Valley

Project had effectively exempted the Tracy

Pumping Plant from the mandatory permit

procedures of section 10, the court below

also departed from the settled general rule

that exemptions from pre-existing statutory

requirements may not be implied from sub-

‘sequent general enabling or appropriation

acts in the absence of a clear expression

of congressional intent to abrogate those

requirements. Little purpose would be

served by a detailed exposition of the

literally dozens of decisions to this general

effect rendered by this Court and the lower

federal courts. E.g., Tennessee Valley

Authority v. Hill, 437 U.S. 153 (1978) ;

Greene v. McElroy, 360 U.S. 474 (1959);

=x Parte Endo, 323 U.S. 283 (1944); United

States v. Arizona, supra; Libby Rod & Gun

Club v. Poteat, supra; City of Santa

Clara v. Andrus, 572 F.2d 660 (9th Cir.

1978); Arizona Power Pooling Assn.'v. Morton,

527 P.2a 721 (9th Cir. 1975); Environmental

Defense Pund, Inc. v. Froehlke, 473 F.2a

346 (8th Cir. 1972); Committee for Nuclear

Responsibility v. Seaborg, 463 F.2d 733

(D.C. Cir. 1971); D.C. Federation of

Civic Associations, Inc. v. Aris, 391

F.2d 478 (D.C. Cir. 1968); Mational Audubon

ee |

Society v. Andrus, 442 F.Supp. 42 (D.D.Cc.

1977); Atchison, Topeka & Santa Fe R.R. Co.

v. Callaway, “supra. Only two representative

examples will therefore be discussed.

The first of these examples is this

Court's recent decision in Tennessee Valley

Authority v. Hill, supra. In that case, the

government argued that agency actions other-

wise violative of the pre-existing provisions

of the Endangered Species Act (16 U.S.C.

§1531 et seq.) had been effectively exempted

from the application of the Act by subsequent

appropriations of funds to support the

contested actions. The government was able

to buttress its argument by citation of an

extensive legislative history demonstrating

Congress's full awareness of the agency's

contemplated departure from the provisions

of the earlier Act, including no less than

three formal committee reports expressin

the opinion that the agency action should

not be deemed violative of the Act and

Specifically "recommend[ing]" and "direct [ing] "

that it be carried out. 437 0.8. at 167,

170-71. This Court nevertheless held th

agency's activities to be unlawful, rejectin

the government's argument on this issue

in the following passage (437 U.S. at 189-91):

Notwithstanding Congress' e

of intent in 1973, we are u

find that the continuing ap 10

for Tellico Dam constitute an implied

repeal of the 1973 Act, at least

insofar as it applies to the Tellico

Project. In support of this view,

TVA points to the statements fo

various House and Senate Appropri

Committees' Reports; ...

xpression

oO Kt

There is nothing in the appropriations

measures, as ~assed, which states that

the Tellico P.oject was to be completed

irrespective of the requirements of the

Endangered Species Act. .. . To find

a repeal of the Endangered Species

Act under these circumstances would

surely do violence to the "cardinal

rule .. . that repeals by implication

are not favored." Morton v. Mancari,

417 U.S. 535, 549 (1974), quoting

Posadas v. National City Bank, 296 U.S.

497, 503 (1936). In Posadas this Court

held, in no uncertain terms, that "the

intention of the legislature to repeal

must be clear and manifest." Ibid.

The doctrine disfavoring repeals by

implication "applies with full vigor

when .. . the subsequent legislation

1s an appropriations measure." Committee

for Nuclear Responsibility v. Seaborg,

149 U.S. App. D.C. 380, 382, 463 F.2d

783, 785 (1971) (emphasis added);

Environmental Defense Fund v. Froehlke,

473 F.2d 346, 355 (CA8 1972). This is

perhaps an understatement since it would

be more accurate to say that the policy

applies with even greater force when

the claimed repeal rests solely on an

Appropriations Act. We recognize that

both substantive enactments and appro-

priations measures are "Acts of Congress,"

but the latter have the Limited and

specific purpose of providing funds for

authorized programs. When voting on

appropriations measures, legislators

are entitled to operate under the assump-

tion that the funds will be devoted to

purposes which are lawful and not for

any purpose forbidden. Without such an

assurance, every appropriations measure

would be pregnant with prospects of

altering substantive legislation, re-

34.

pealing by implication any prior statute

which might prohibit

Not only would this lead to

result of requiring Members

exhaustively the background

authorization before voting

the expenditure.

+he absurd

to review

of every

on an

appropriation, but it would flout the

very rules the Congress carefully

adopted to avoid this need.

As for the Lower federal courts, an

example of their holdings on this sane issue

in the types of cases most closely analogous

the

to this one is the Aecision of Court

of Appeals for the District of Columbia

Circuit in D.C. Federation of Civic

Arls,

Associations, inc. V. supra, where

the defendant highway officials argued that a

freeway project nad been exempted from com=

pliance with the public hearing procedures

of 7 D.C. Code §§108-15 by Congress

oriation of funds ‘for the project. in cae

course of rejecting this argument, ss court

said (391 F.2d at 481-82):

[I]t cannot be said that th

appropriation acts ratified th

administrative action contrary =

Title 7. Obviously, Congress cannct

intend to ratify illegal action of

which it is unaware. Therefore, wher?

the ratification by aporopriation

rgument has been accepted, courts

have been careful to demonstrate

factors attesting to Congress’

specific knowledge of the disputed

administrative action fcitine cases

In this case there is no evidence to

suggest that the appropriations commit-

tee or Congress as a whole were aware

of the intention of District Officials to

plan and construct the freeway projects

in disregard of basic Title 7 procedures.

General knowledge that the freeway proj-

ects were being planned or that there

was a general intention to advance the

freeway system as a whole is insuffi-

cient to support the ratification By ap-

propriation argument.

No elaboration is necessary upon these

eloquent statements of the scope and rationale’

of the settled rule that implied exemptions

from existing laws may not be inferred from

subsequent enactments unless Congress's

intention to confer such an exemption is

“clear and manifest." TVA v. Hill, supra

at 189. Nor is any extended discussion

necessary in order to demonstrate that the

holding of the court below on the record

adduced in this case violates this settled

vule. As described above, this record

shows that, while Congress may have been

marginally aware of the existence of the

Tracy Pumping plant, it gave no consideration

at all to its potential effects on navigation,

received no intimation whatsoever that the

existing statute on that subject would not

be complied with by the Bureau of Reclama-

tion, and never entertained even the possi-

bility, let alone the "clear and manifest"

intention, of authorizing an exemption

from that statute. It follows that, in

holding otherwise, the court of appeals

brought itself into clear conflict with ail

of the decisions cited above enunciating

the general doctrine on this issue.

III. Conclusion

It has been demonstrated that the

decision of the court below is a plainly

erroneous application of the relevant pro-

visions of the governing statute and is

in direct conflict with the prior decisions

under that statute of this Court and the

lower federal courts, as well as the numerous

decisions establishing the general standards

for resolving claims of implied exemptions

from federal statutes. Far from being an

unimportant aberration, moreover, the court

of appeals' decision, by finding such an

implied exemption in the absence of any

significant evidence of a conscious Con-

gressional purpose to abrogate its prier

enactments, raises the specter of wholesale

evasion by federal agencies of the provisions

of the Rivers and Harbors Act, if not of the

entire scheme of statutes regulating the

activities of these agencies. For all of

these reasons, the decision should Be

reviewed and corrected by this Court.

Dated: April 15, 1980.

Respectfully submitted,

PETTIT & MARTIN

JOHN B. CLARK

JAMES E. HARRINGTON

ROBERT B. THUM

SIERRA CLUB LEGAL DEFENSE FUND

MICHAEL R. SHERWOOD

Attorneys for Petitioners

38.

INDEX TO APPENDICES

Page

Appendix |. Pertinent Sections of Rivers and Har-

bors Act of [RR sees as App. p. |

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

States Court of Appeals for the Ninth Circuit... 5

Tang, Circuit Judge, Concurring: ............. 55

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

Opinion of United States District Court, N.D.

California, JURY pee ee sess... 63

Exhibit A. Map of Sacramento-San Joaquin Delta

(Delta Pugepee pees ........... 130

—

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

authonzed by Congress, to the navigable capacity of

any of the waters of the United States is prohibited:

aces

and it shall not be lawful to build or commence the

building of any whart. pier, dolphin, boom. werr.

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 inciosure

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 pnor 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 shail 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 jumsdiction in any distmct in which such struc-

tures may exist, and proper porceedings to this end

apne th

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 nver 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

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.

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 ong-

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

The appeliees, plaintiffs below. are the Sierra Club, a nonprofit

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

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

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

poration that has its principal place of bus:ness in San Francisco: Hank

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

the Pacitic Ocean: and William Dixon, a Sacramento-San Joaquin Delta

landowner.

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. /d. 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 tral 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 Intenor: 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, Distnct Engineer of the Army

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

James L. Lammie. Distnct Engineer of the Army Corps of Engineers

for the San Francisco, California distnct. Because ail 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. +3(c).

‘The named state defendants in the District Court were Norman B.

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

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

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

successors are automatically substituted as parties to the appeal in this

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

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

Metropolitan Water Distnect of Souther California. the Tulare Lake

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

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

State of California that have contracted for water from the California

Water Project and have undertaken extensive financial obligations in

reliance thereon.

mies,

has not yet conducted the relief phase of the bifurcated tnal.

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 nght 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 night

of action exists. the appellees lacked standing to institute

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

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. §$§ 43214347

(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 authonzed

bv Congress, to the navigable capacity of any of the waters of

the United States is prohibited: and it shail 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 nver, 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 authonzed 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 channel of any navigable water of the United States.

unless the work has been recommended by the Chief of Engineers

and authonzed by the Secretary of the Army prior to beginning

the same.

33 U.S.C. 3 403 (1970).

enliven

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

federal nor the state parties challenge the Distnct Court's

ruling concerning the Peripheral Canal.

We have concluded that a private nght 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 plaintiffs, having alleged

particularized injuries, possess the requisite standing to avail

themselves of that mght. 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 suppiy 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 niver and into the Sacramento-San

willin

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-muile 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 transter 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 tume 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 Penpheral Canal the potential

withdrawal of Delta water by both the Tracy and Delta

Pumping Plants will increase to approximately 7,000,000

soansllicces

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 aduress whether this impact

falls within the Corps’ regulatory jurisdiction under section

1Q, it is obvious that we must first determine whether plain-

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

affected bv 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 etfect

on water levels at vanous points. concluded that Deita water levels near

the inlet channel of the plant were lowered .| 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 Deita Plants concluded that d:-

version of between 9,600 cubic feet per second and |2.000 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 .| 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 probabie if not certain’’ that an increase in the amount of

pumping would result in greater eifects. +00 F Supp. at 631.

put hon

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

ments of that section.’

Il. 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,

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

Circuit recognized an implied private mght of action for damages caused

bv the negligent operation and maintenanee of a bmdge over navigable

waters, alleged to constitute violations of both section !0 and a provision

of the Bndge Act of 1906. 33 U.S.C. 3 312 (1970). Riggle v. Cali-

forma, 3577 F.2d 579 (9th Cir. 1978). Although Riggie 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-

925.

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

Congress, in exercising its regulatory authonty over navigation. did not

‘“create any civil cause of action in favor of pmvate 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; ct. Williamson Towing

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

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

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

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

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 hoiding that no pnvate nght

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

Clue v. Poteat, 394 F.2d 742 (9th Cir. 1979) (sub silentio recognition

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

ot Libbv Rod and Gun Club at note 36. :nyra).

Pe, Oa

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 nght 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,

42) U.S. 412, 95 S.Ct. 1733, 44 L.bd.26 263 (1975);

National Railroad Passenger Corp. v. Nationa! Association

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

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

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,

|, oon

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 (5th Cir. 1928),

a lumber company sued to recover losses caused by the

construction of an unauvhorized sand dam in the Neches

River. The company recovered the expense it had incurred

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

the obstruction. In Tatum v. Blackstock, 319 F.2d 397 (5th

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

waters sought to enjoin unauthorized dredging and filling,

which would have altered the flow of the navigable waters

to the detriment of his property. The court upheld a 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. Froehike, 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 beneficianes of the Act.

Lecatiliiente

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 injunes

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 v. Illinois, 278 U.S.

367, 49 S.Ct. 163, 73 L.Ed. 426 (1929), the piainturfs. 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 nght to invoke

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

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

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

the defendants’ permit had authonzed only a temporary withdrawal of

water and that absent continuing authonzation 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 beneficiames of the Act's provisions.

antie

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 pror to the 1890 statute. which

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

suit by pnvate persons and substituted language restncting enforcement

to United States Attorneys. S.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 pnvate party

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

agreed that such qui tam actions are not permitted. See. ¢.2.. Jacklovicn

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

Now, Inc. v. Roberts Plating Co., 457 F.2d $1 (2d Cir. 1972). The

amendment does not indicate a legislative intent to preciude other pn-

vate actions under the 1899 Act.

Section |2 provides:

Every person and every corporation that shall violate any of

the provisions of sections 401, 403, and 404 of this ttle 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 shail 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 juns-

diction in any distmct 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. 3 406 (1970). Although this section expressiv 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).

a on

tion 12, places the duty of enforcement upon the Attomey

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 shail conduct the legal proceedings

necessary to enforce the provisions of sections 401, 403, +04,

406, 407, 408, 409, 411, 549, 686, and 687 of this utle; and it

shall be the duty of United States attorneys to vigorousiy 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 Attomey 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 nver and harbor improvements.

and the assistant engineers and inspectors employed under :hem

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 shail 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 shail proceed in respect thereto as

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

33 U.S.C. $ 413 (1970).

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 authonzed

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 mver is more than an

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

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 Atomey 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 | (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 insutute ... 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 insututed 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 necessamly

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

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

imply such a remedy.

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 y. Iilinois, 278 U.S.

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

lying purpose of section |0 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 cnminal 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 legisiation 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. 38 661-666c¢ (i976): National Environ-

mental Policy Act of 1969. 42 U.S.C. $$ 432!-+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).

wn tO icin

private right of action was necessarv 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 Attomey 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 /Ilinois ex rel. Scott v. Hoffman,

425 F.Supp. 71, 75-76 (S.D.Ill.1977): cf. Miller v. Mallerv.

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,

21 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, +14 U.S. 453, 94 §.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 appeilants base one of their arguments

against upholding a private mght 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 authonty or have exercised that authonty in

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

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

F.2d 660, 679 (9th Cir.), cert. denied, 439 U.S. 859, 99 $.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. Udail, 417 F.2d 1310, 1314 (9th Cir. 1969).

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. y.

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 nghts 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 mght of action. the subsequent

litigation would have undercut the decisions of the corporations. thus

upsetting the legislative scheme devised by Congress. Securines /nves-

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 nghts 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. \. National Ass'n of R.R. Passengers. supra,

414 U.S. at 457-61. 94 S.Ct. 690. Thus. no private mght of action was

found to exist.

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

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

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.

pacity of navigable waters of the United States are matters

of federal, not state, law. Wvandorte 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. 3 413 (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.

3 407 (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 eeding in which an informer sues

for the Government, as weil as for himself. to recover a penalty under

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

cally provided. Connecncur Action Now, Inc. v. Roberts Planng Co..,

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

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

L140. 1144-48 (N.D.Ala. 1971). aff'd, 456 F.2d 1294 (5th

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

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

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

M.D.,S.D.Ala. 1971), aff d, 447 F.2d 1304 (Sth 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.

Il. STANDING

The intervening state water agencies contend that the

appellees lacked standing to bring their action. Under the

Supreme Court cases of Simon v. Eastern Kentucky 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.’* /d. at 1349.

a, aan

The individual appellees meet the standard.'* Both have

alleged a particularnized 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, Fnends or 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, inc!uding

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 nvers, bays, wetlands. deltas. and estuarine

areas.

Friends of the Earth is a nonprofit New York corporation which

has its principal piace 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 coniroversv

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

vation, and conservation of sports and commercial fishenes in

= San Francisco Bay and the adjoining waters of the Pacific

ean.

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--poi-

luted suppiies of water in the Deita and San Francisco Bay regions.

400 F.Supp. at 619.

a ae

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.”’ Assoct-

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, +26 U.S. at 39. 1.19, 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.. 326 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 Distmct 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 tnal.

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

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

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

alleged a demonstrable. particulanzed injury that may resuit from the

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

injury in the second portion of the bifurcated «nal.

conn

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

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

L.Ed.2d 649 (1971) (standing for pmvate 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

Distnct 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 nght. Simon v. Eastern Kentucky Welfare Rights Or-

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

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

Club has satisfied the test by alleging injures 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 Distnct

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

"See note 18. supra.

a. a

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.”

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, , ee

place and had caused net flow reversals in certain channels.~

The District Court apparently believed that the controlling

issue was whether a given diversion consttuted an obstruc-

tion to navigable capacity.”

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

lieving that it would necessanly present the courts with

difficult definitional problems in a vanety 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 trai court

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

River would be lowered by |.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. Bnef for Appellants Norman Liver-

more and John Teerink (hereinafter cited as State Opening Bret] at ! 3.

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 0.27. 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 ane of the pumping plants was causing net flow

oe the San Joaquin River and the Old and Middle Rivers. /d.

at 1-32.

~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, \88 F. 987, 996 (C.C.D.N.J.1911) ).

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

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

would constitute an ‘‘obstruction’’ to navigable capacity: ‘*The question

always is one of fact, whether such appropnation substantially interteres

with the navigable capacity within the limits where navigation is a

recognized fact." Rio Grande, supra, |74 U.S. at 709, 19 S.Ct. at 777

cited at 400 F.Supp. at 630 n.24 (emphasis added). The question thus

becomes whether in a given case a proved effect on navigable waters

is substantial enough to constitute an obstruction to navigable capacity.

The difficulty with this approach is that it emphasizes too strongly the

question whether an ‘‘obstruction to navigable capacity’’ has occurred

at the expense of the different question whether there has been any

alteration or modification of the condition or capacity of navigable

waters.

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 2 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 deti-

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 of vessels that unlize 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 channe!

may interfere with such pursuits. Bnef 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 descnbed 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.

/d. 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.

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 authonzation 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.’’ /d. 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 nvers 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 authonzed 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

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. lilinois, 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 authorize 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.

aa 3 |

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 !0. 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 nver 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 mver 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 authonzed by Con-

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

can only conclude that Congress planned to ban any

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

made subject to approval by the Secretary of the Army.

[t 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 bv the

other ciauses. 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

ae a

§10 are those enumerated in the second and third

Clauses. /n 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 tmgger the permit requirement of

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

v. Joseph G. Moretti, Inc. (Moretti [), 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 tngger 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 (5th Cir. 1976); accord, Weiszmann v.

District Engineer, United States Army Corps of Engineers,

“Apparently, under Morerri // a persuasive showing of *‘damaging

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 opiion as to the extent

to which ecological considerations may tigger the need for a permit

under section 10.

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

Cove Estates, Inc., 526 F.2d 1293, 1296-99 (5th Cir. 1976).

The state appellants and intervenors, however, present

another argument in support of their interpretation of section

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

ulation of water nghts 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 nghts.~

**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-authonzed water diversions

for irmgation or consumption purposes. Typical of these statements 1s

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 Terntory 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 mght of any State or

of the Federal Government or of any landowner, appropnator.

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 Suppiv

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

lution Control Act Amendments of 1972. 33 U.S.C. $$ 125i(b). 1370

(Supp. V 1975).

pa oe

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. Ciry of Fresno v. California,

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

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

the effect. oa tne 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 (1950), 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. /d. at 737-39, 70 S.Ct. 955.

743 U.S.C. $383 (1970). quoted at note 26 supra.

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 Intenor must ‘appropriate. pur-

chase, or condemn necessary water nghts in strict contorm-

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 nghts:

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 nghts. 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, appropnation.

use, or distribution of water.”’

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

of California was permitted to impose any conditions on the

United States Bureau of Reclamation’s appropriation of

water from the Central Valley Project that did not conflict

with clear congressional directives authonzing 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

legisiate otherwise. The Court reaffirmed the validity of the

basic holdings of /vanhoe, 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 overnde state law

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

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

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

—

Section 8 of the 1902 Reclamation Act and the other

Statutory provisions for federal deference to state water

rights do not lend support to the novel suggestion made by

the appellants despite the new vitality, given those provi-

sions by California v. United States. The congressional

policy of compliance with state law for the appropriation.

purchase, condemnation, and distribution of water nghts,

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-authonzed 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-

emment to secure the uninterrupted navigability of all

navigable streams within the limits of the United States.

In other words, the jursdiction of the General Gov-

emment over interstate commerce and its natural high-

= om

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 jumsdiction

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

— |}:

purposes. describing as plenary the power of Congress to

remove what it identifies as obstructions to interstate and

foreign commerce.

This is not acontroversy between equals. The United

States is asserting its sovereign power to regulate com-

merce and to control the navigable waters within its

junsdiction.

«x * «x

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 supertor

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 authonty

ame 39am

of the Corps over navigable waters as applied to state water

diversions”

In sum. we hoid 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 resuit follows without regard to the effect

of the pumping plants on actual navigable capacity because

a prior finding of obstruction to navigable capacity is not

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

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

and Harbors Act of 1899 reigns paramount. Congressional

dererence to traditional state regulation of water nghts. a

consideration of sigmificance 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 overnding federal supremacy in the area of navigation

with an exampie:

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 contnbutes to the

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

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

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

has a mght to apprownate it waters, and the United States may

not question such appropnation. unless thereby the navigability

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

New York should. even at a piace above the limits of navigability.

Oy appropnation for any domestic purposes. diminish the volume

of waters. which, flowing into the Hudson. make it a navigabie

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

edly the junsdiction of the Natuionai Government would anse and

\tS power to restrain such appropnation be unquestioned. .

I74 US. at 709. 19 S.Ct. at 777

poe “ER

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 |. The state ap-

peilants maintain that various section |0 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 authonzation 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 nght 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 principaily relied upon the following statement

from Sanitary District:

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

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

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

Michigan, but if it has any bearing on the present 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 ail 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 cortrol the

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 veservations. /d. 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. \t 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 Distnct 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 facilines 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 uppropriate

authorization.

(foomote contnued on following page)

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, Anzona-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 appropnations for irmgation of lands in

Indian reservations.’ /d. Unlike the situation in our case.

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

Cumpare 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 Distnct 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 anaiogue in the instant case would

arise if the federal government itself were actively seeking to restnct

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

it could not do that, if it so chose. The nght 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

Distric: supports the finding that section |0 requires separate approval

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

operation of a water diversion project.

catia

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

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

propniations 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 appropnations 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. [f 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 Congress

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 pror legislation. by means of an

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

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

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

previously initiated privately without congressional authonzation);

Friends 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 pmor act concerning the spreadiug of waters impounded in Lake

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

U.S. L171, 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, appropnating

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 ranficauon of an electrical power allo-

cauion scheme by appropnation 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’’)

—44....

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 bioad oversight exercised by the Congress

over the project, constitute affirmative authonzation 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

"The Rivers and Harbors Act of 1937 declared the Central Valley

Project

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, 485-48Sh, 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

tlow of the San Joaquin River and the Sacramento River. con-

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

stored waters thereof, for the reclamation of and and semiand

lands and lands of [ndian reservations, and other beneficial uses,

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

financially aiding and assisting such undertakings and in order

to permit the full utilization of the works constructed to 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 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:

[f the proposed construction is found by the Secretary to have

engineering feasibility and if the repayable and returnable ailo-

cations to imgation, 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, all

be deemed authorized and may be undertaken by the Secretary

[f all such allocations do not equal said total estumated 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. )

—_ a

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 |, 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 |, 1953.

Over 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 weil 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 appropnation *‘for construc-

uon 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.

aod] axe

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 appropnation was

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

tumately 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 expenenced 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 appropnmations for

storage and irmgation facilities. It has also provided all funds

necessary to continue construction of the powerpiants 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 Vailey 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 Centrai Valley Project appro-

priations bill for that year:

I want to report particularily on the Central Valley project of

California that this committee has protected and financed since

Reclamation was given the job of making California's hailf-cen-

tury dream come true... .

(foomote continued on following page)

—_ ae

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, /ifted 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 Frant

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. Thar is

a culmination of the work this committee has supported over the

years.

[t 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 | know they are going to receive to see

the comes of the committee's objective.

Engle, supra, pt. 2, at 37 (emphasis added). Further references to the

Tracy Pumping Plant and specific appropniations therefor as an integral

part of the Central Valley Project abound in the legislative history. £.

G., id, at 21-28, 32-38, 40-44, 49, 50-51, 60, 65, 305.

Section 4 of this Act provides, in pertinent part:

Lf 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 shail 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 pliant and Delta-Mendota Canal

as measured at the San Luis pumping plant shail 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).

anand, Quocee

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 unlawful.’’ 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 authon-

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). Ininally, 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 authonzed 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 navigabie 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 majonty in Libby. See pages 607

to 609, infra.

a”; am

B. Corps Authorization of the Delta

Pumping Plant

In the Distnct 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-

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 authonzed

the operation of the Delta Pumping Plant. the Corps vet 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 unreasonabie 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 bv 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 jusufy the continued existence of the Delta

Pumping Plant because of the Corps’ prior acquiescence in the plant's

operations, the State is not relieved fromm section 10 permit require-

ments. Although the prnor acquiescence by the Corps may establish a

basis for estoppe! against a Corps request to abolish the Deita 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): of. 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 authonzation.

—_

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

govern situations in which its jumsdiction overjaps with that

of the FPC. When a project is subject to FPC regulation,

the Corps fulfills its duty of protecting navigable waters bv

recommending to the FPC the inclusion of appropriate pro-

visions rather than by directly issuinz 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 er seq. remain fully applicable.’ 33

C.F.R. § 320.-3(f) (1978).

The FPC agrees that its license does not necessanly extend

to all facilities of a project. In its opinion concerning the

California Water Project, the FPC cautioned that “‘{

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