# Petition — Sierra Club v. Watt > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2267%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 965 ## Text 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 3 3 Statutes Involved 4 Statement of the Case 4 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, $72 F.2d 660 (9th Cir. 1978) Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783 (D.C. Cig. 197i) D.C. Federation of Civic Associations, 2n@. VW. APAS, 29k Fi ae 876 teeGx Ciz. i968) Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346 (8th Cir. 1972) Ex Parte Endo, 323 U.S. 283 (1944) Greene v. McElroy, 360 U.S. 474 (1959) Hubbard v. Fort, 188 Fed. 987 (D.N.J. 1911) Libby Rod and Gun Club v. Poteat, 5994 F.2d 742 (9th Cir. 1979) National Audubon Society v. Andrus, 442 F.Supp 42 (D.D.C. 1977) Pages 32 29,30-31, 32 32 32 32,35-36 29,30-31, 32 32 Republic Steel Co. v. 482 (1960) Rothensies v. Electric Storage Battery 329 U.S. 296 Sanitary District of Chicago v. United 266 U.S. 405 (1924) Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) United States v. Arizona, (1935) 16 33 74 CO., 174 362 U.S. States, Watules DemeGe a oe U.$.C. Stat. Stat. 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 se 295 U.S. Pages 32,33-35 18,19,25, 26,27=-28, 32 aa 8,26 4,6,7-8, 10,11,16, 22,24,26, 30 12 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 oO up to 80 per cent in the flow of one of the major ry 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 1 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 t- ~ 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. i) OO 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 ra 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 nN in 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 a 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 2) 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 ce 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. ki 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 ge oO Kt a) O @) ry fu ct ce 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- 36 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 a. 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. co 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. a 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. oo 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. a 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 a 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. a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2267%3A1. Public record. Not legal advice.