FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY; WESTLANDS
WATER DISTRICT,
Plaintiffs-Appellants,
and
PIXLEY IRRIGATION DISTRICT; LOWER
TULE RIVER IRRIGATION DISTRICT;
TRI-VALLEY WATER dISTRICT; HILLS
VALLEY IRRIGATION DISTRICT; KERN
TULARE WATER DISTRICT; RAG
GULCH WATER DISTRICT; STOCKTON
EAST WATER DISTRICT; FRESNO
COUNTY; TULARE COUNTY,
Plaintiffs-Intervenors,
and
BAY INSTITUTE OF SAN FRANCISCO;
SAVE SAN FRANCISCO BAY
ASSOCIATION; ENVIRONMENTAL
DEFENSE FUND; NATURAL
RESOURCES DEFENSE COUNCIL;
PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS;
INSTITUTE FOR FISHERIES RESOURCES;
UNITED ANGLERS oF CALIFORNIA,
Plaintiffs-Appellees,
v.
2269
2270 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
UNITED STATES OF AMERICA,
DEPARTMENT OF THE INTERIOR,
BUREAU OF RECLAMATION; KEN
SALAZAR, SECRETARY OF THE
INTERIOR; ROBYN THORSON, No. 09-17594
REGIONAL DIRECTOR OF THE UNITED
D.C. No.
STATES DEPARTMENT OF THE
INTERIOR FISH AND WILDLIFE CV 97-06140-
OWW
SERVICE, REGION 1; DONALD
GLASER, REGIONAL DIRECTOR, OPINION
UNITED STATES DEPARTMENT OF THE
INTERIOR BUREAU OF RECLAMATION,
MID-PACIFIC REGION,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, United States District Judge, Presiding
Argued and Submitted
March 15, 2011—Davis, California
Filed March 2, 2012
Before: William A. Fletcher and Milan D. Smith, Jr.,
Circuit Judges, and George H. Wu, District Judge.*
Opinion by Judge Wu;
Partial Concurrence and Partial Dissent by Judge M. Smith
*The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
2274 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
COUNSEL
Thomas W. Birmingham, Fresno, California; and Daniel J.
O’Hanlon and Andrew P. Tauriainen, Kronick, Moskovitz,
Tiedemann & Girard, Sacramento, California, for the
plaintiffs-appellants.
Cynthia L. Koehler, Environmental Defense Fund, San Fran-
cisco, California; and Paul A. Peters, Hines & Thomas, San
Francisco, California; and Katherine S. Poole and Jason
Malinsky, Natural Resources Defense Counsel, San Fran-
cisco, California, for the plaintiffs-appellees.
Kevin Tanaka, Department of the Interior, Office of Regional
Solicitor, Sacramento, California; and Ignacia S. Moreno,
Assistant Attorney General, Environmental & Natural
Resources Division, and Charles Shockley, Andrew C. Mer-
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2275
gen and David S. Shelton, Department of Justice, Washing-
ton, D.C., for the defendants-appellees.
OPINION
WU, District Judge:
“One of the most contentious issues in the western United
States is the management of water resources.” Westlands
Water Dist. v. U.S. Dep’t of Interior, 337 F.3d 1092, 1100
(9th Cir. 2003) (“Westlands Water Dist. I”).
This appeal arises from a long-running conflict which has
devolved to the present remaining dispute as to the classifica-
tion of approximately 9,000 acre feet (“AF”) of water released
between June 17 through 24 of 2004 from the Nimbus and
New Melones reservoirs (“latter June 2004 releases”) within
California’s Central Valley Project (the “CVP” or “Project”)
by Defendant-Appellee United States Department of the Inte-
rior (“Interior”), acting through the United States Bureau of
Reclamation (the “Bureau”) (collectively, “Federal Defen-
dants” or “Federal Appellees”). Plaintiff-Appellants San Luis
& Delta-Mendota Water Authority (“San Luis”) and West-
lands Water District (“Westlands”) (collectively, “Water
Agencies” or “Appellants”) contend that Interior abused its
discretion in failing to apply the latter June 2004 releases
against the 800,000 AF of CVP yield especially designated
for fish, wildlife, and habitat restoration under section
3406(b)(2) of the Central Valley Project Improvement Act
(“CVPIA”), Pub. L. No. 102-575, 106 Stat. 4600, 4715-16
(1992) (“section (b)(2)” or “(b)(2)”).
We have jurisdiction pursuant to 28 U.S.C. § 1291.
Because we find that the Water Agencies have standing and
the accounting which Interior conducted for the latter June
2004 releases did not constitute an abuse of discretion, we
2276 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
AFFIRM the district court’s orders granting summary judg-
ment in favor of the Federal Appellees and against Appellants.1
BACKGROUND
A. The Central Valley Project
The CVP is the nation’s largest federal water management
project. Central Delta Water Agency v. Bureau of Reclama-
tion, 452 F.3d 1021, 1023 (9th Cir. 2006) (“Central Delta
II”); Orff v. United States, 358 F.3d 1137, 1141 (9th Cir.
2004). The Central Valley of California extends 450 miles
south beginning at the Sacramento Valley, which contains the
Sacramento River and its tributaries, and is 100 miles wide on
average. Dugan v. Rank, 372 U.S. 609, 612 (1963). The Sac-
ramento River runs southward from the Valley’s northern
edge, through the City of Sacramento, and then onward to the
San Francisco Bay and into the Pacific Ocean. Id. The south-
ern portion of the Central Valley includes the San Joaquin
River, which runs from the Sierra Nevada northeast of Fresno,
west to Mendota, and then northwest to join the Sacramento
River at the Sacramento-San Joaquin Delta. Id. The San Fran-
cisco Bay/Sacramento-San Joaquin River Delta Estuary
(“Bay-Delta”) lies at the convergence of the Sacramento, San
Joaquin, and other rivers, and forms the centerpiece of a mas-
sive and fragile ecosystem.
One of the initial goals of the CVP was to provide for the
transportation of “surplus” waters within the Sacramento Val-
ley to the San Joaquin River and to permit “the waters of the
latter river to be diverted to new areas for irrigation and other
needs.”2 Id. “To accomplish the project’s purposes, CVP’s
1
See San Luis & Delta-Mendota Water Auth. v. U.S. Dep’t of Interior,
637 F. Supp. 2d 777 (E.D. Cal. 2008) (“SL&DM Water Auth. I”), and, on
motion for reconsideration, 624 F. Supp. 2d 1197 (E.D. Cal. 2009)
(“SL&DM Water Auth. II”).
2
“[W]hile over 70 percent of the [state’s] stream flow lies north of Sac-
ramento, nearly 80 percent of the demand for water supplies originates in
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2277
construction includes a series of many dams, reservoirs,
hydropower generating stations, canals, electrical transmis-
sion lines, and other infrastructure.” Westlands Water Dist. I,
337 F.3d at 1095-96 (citing United States v. Gerlach Live
Stock Co., 339 U.S. 725, 733 (1950)). The 22 reservoirs
within the CVP have a total capacity of approximately 11 mil-
lion AF, of which 7 million AF is released in an average year.
SeeCALIFORNIA DEPARTMENT OF WATER RESOURCES,
CALIFORNIA STATE WATER PROJECT AND THE CENTRAL VALLEY
PROJECT, http://www.water.ca.gov/swp/cvp.cfm (“CDWR
Website”) (last visited January 30, 2012). “The CVP supplies
two hundred water districts, providing water for about thirty
million people, irrigating California’s most productive agri-
cultural region and generating electricity at nine power-
plants.” Westlands Water Dist. v. U.S. Dep’t of Interior, 376
F.3d 853, 861 (9th Cir. 2004).
The CVP is operated by the Bureau. Westlands Water Dist.
I, 337 F.3d at 1096. The Bureau’s control of the CVP water
is subject to a plethora of federal statutes and regulations gov-
erning many areas including, but not limited to: (1) the release
of the CVP yield (see, e.g., section 3406 of the CVPIA), (2)
water quality (see, e.g., the Clean Water Act, 33 U.S.C.
§ 1321), and (3) the impact of the releases on the environment
and wildlife (see, e.g., San Luis & Delta-Mendota Water
Auth. v. Salazar, 638 F.3d 1163, 1171 (9th Cir. 2011) (“The
‘no-jeopardy’ provision in [the Endangered Species Act, 16
U.S.C. § 1536(a)(2)] requires an agency to ensure that any
action it takes ‘is not likely to jeopardize the continued exis-
tence of any endangered or threatened species.’ [footnote
omitted.]”). Additionally, the Bureau has entered into over
the southern regions of the state.” United States v. State Water Res. Con-
trol Bd., 182 Cal. App. 3d 82, 98 (1986). “Two-thirds of California house-
holds receive at least some of their domestic water from the Bay-Delta,
and over seven million acres of highly productive land are irrigated from
the same source.” See In re Bay-Delta Programmatic Envtl. Impact Report
Coordinated Proceedings, 43 Cal. 4th 1143, 1153 (2008).
2278 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
250 long-term contracts for the delivery of CVP water to vari-
ous agricultural, industrial, and commercial entities in addi-
tion to municipal water agencies. See State Water Res.
Control Bd. Cases, 136 Cal. App. 4th 674, 692 (2006).
Also within the Central Valley is the California State Water
Project (“SWP”), which includes storage facilities/reservoirs
(holding 5.8 million AF of water and annually delivering an
average of 3 million AF), hydroelectric power plants, and
about 700 miles of open canals and pipelines. See CDWR
Website. The SWP is the largest state-built water project in
the country and is managed by the California Department of
Water Resources (“CDWR”). Pac. Coast Fed’n of Fisher-
men’s Ass’ns v. Gutierrez, 606 F. Supp. 2d 1122, 1128 (E.D.
Cal. 2008). The CVP and SWP share certain facilities and, for
over thirty years, have operated in an increasingly coordinated
manner pursuant to various agreements between the Bureau
and the CDWR.3 Id.; see also Natural Res. Def. Council v.
Kempthorne, 506 F. Supp. 2d 322, 330 (E.D. Cal. 2007).
As described in State Water Res. Control Bd., 182 Cal.
App. 3d at 97:
The [Sacramento-San Joaquin] Delta serves as a
conduit for the transfer of water by the statewide
water projects. Both the CVP and the SWP divert
water from the rivers that flow into the Delta and
store the water in reservoirs. Quantities of this stored
water are periodically released into the Delta. Pumps
situated at the southern edge of the Delta eventually
lift the water into canals for transport south to the
3
“The California State Water Resources Control Board grants permits
for water appropriation from the CVP. The Bureau appropriates water
from various sources and delivers it to permit holders for beneficial uses.”
Westlands Water Dist. I, 337 F.3d at 1096. “Under section 8 of the Recla-
mation Act of 1902 (43 U.S.C. § 383), the Bureau is required to comply
with state law in acquiring water rights for the diversion and storage of
water by the CVP.” Id. at 1101.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2279
farmers of the Central Valley and the municipalities
of Southern California. Water which is neither stored
nor exported south passes through the Delta where it
is used by local farmers, industries and municipali-
ties. The excess flows out into the San Francisco
Bay.
The construction and operation of the CVP, along with
other stressors, has had a devastating effect upon California’s
native fish populations, including, in particular, its native
salmon. See In re Bay-Delta Programmatic Envtl. Impact
Report Coordinated Proceedings, 43 Cal. 4th at 1156. Anad-
romous fish, such as salmon, are particularly sensitive to
changes in flow patterns, salinity, temperature and other con-
ditions in and upstream of the Bay-Delta estuary. See gener-
ally Pac. Coast Fed’n of Fishermen’s Ass’ns, 606 F. Supp. 2d
at 1218-23. Most of California’s salmon face serious risk of
extinction.4 Id. at 1250-53.
B. The CVPIA
The CVPIA, enacted by Congress in 1992, amended the
CVP’s authorizing legislation and elevated “mitigation, pro-
tection, and restoration of fish and wildlife” to Project pur-
poses on par with irrigation. See CVPIA § 3406(a)(1)-(2), 106
Stat. at 4714; see also O’Neill v. United States, 50 F.3d 677,
686 (9th Cir. 1995) (“CVPIA marks a shift in reclamation law
modifying the priority of water uses.”). The overall purposes
of the CVPIA are:
(a) to protect, restore, and enhance fish, wildlife,
and associated habitats in the Central Valley and
Trinity River basins of California;
4
For example, the winter run chinook salmon “which was listed as
threatened in August, 1989, and is now endangered, is under the protective
jurisdiction of the National Marine Fisheries Service . . . .” Natural Res.
Def. Council v. Houston, 146 F.3d 1118, 1124 (9th Cir. 1998).
2280 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
(b) to address impacts of the Central Valley Proj-
ect on fish, wildlife and associated habitats;
(c) to improve the operational flexibility of the
Central Valley Project;
(d) to increase water-related benefits provided by
the Central Valley Project to the State of California
through expanded use of voluntary water transfers
and improved water conservation;
(e) to contribute to the State of California’s
interim and long-term efforts to protect the San Fran-
cisco Bay/Sacramento-San Joaquin Delta Estuary;
(f) to achieve a reasonable balance among com-
peting demands for use of Central Valley Project
water, including the requirements of fish and wild-
life, agricultural, municipal and industrial and power
contractors.
CVPIA § 3402, 106 Stat. at 4706; Central Delta II, 452 F.3d
at 1023-24.
Section 3406 of the CVPIA deals with “fish, wildlife and
habitat restoration.” 106 Stat. at 4714. Section 3406(b) states
that the Secretary of the Interior (“Secretary”) “shall operate
the Central Valley Project to meet all obligations under State
and Federal law, including but not limited to the Federal
Endangered Species Act, 16 U.S.C. § 1531, et seq., and all
decisions of the California State Water Resources Control
Board establishing conditions on applicable licenses and per-
mits for the project.” Id.
The Secretary is further charged in section 3406(b)(1) with
developing and implementing, within three years of the
CVPIA’s enactment, “a program which makes all reasonable
efforts to ensure that, by the year 2002, natural production of
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2281
anadromous fish in Central Valley rivers and streams will be
sustainable, on a long-term basis, at levels not less than twice
the average levels attained during the period of 1967-1991
. . . .”5 Id. Section 3403(a) defines “anadromous fish” as
“those stocks of salmon (including steelhead), striped bass,
sturgeon, and American shad that ascend the Sacramento and
San Joaquin rivers and their tributaries and the Sacramento-
San Joaquin Delta to reproduce after maturing in San Fran-
cisco Bay or the Pacific Ocean.”6 Id. at 4707.
Section 3406(b)(1)(B) of the CVPIA states that:
As needed to achieve the goals of this [anadromous
fish doubling] program, the Secretary is authorized
and directed to modify Central Valley Project opera-
tions to provide flows of suitable quality, quantity,
and timing to protect all life stages of anadromous
fish, except that such flows shall be provided [1]
from the quantity of water dedicated to fish, wildlife,
and habitat restoration purposes under paragraph (2)
of this subsection [§ 3406(b)(2)]; [2] from the water
supplies acquired pursuant to paragraph (3) of this
subsection [§ 3406(b)(3)]; and [3] from other
sources which do not conflict with fulfillment of the
Secretary’s remaining contractual obligations to pro-
vide Central Valley Project water for other autho-
rized purposes.
Id. at 4715. Section 3406(b)(2) provides in part that the Secre-
tary shall:
5
This “twice the average levels” provision is sometimes referenced as
the “anadromous fish doubling” program. See, e.g., Coal. for a Sustain-
able Delta v. McCamman, 725 F. Supp. 2d 1162, 1198 (E.D. Cal. 2010).
6
“The anadromous fish of principal concern to the management of the
Central Valley Project is the Chinook salmon . . . .” Central Delta Water
Agency v. United States, 306 F.3d 938, 945 n.4 (9th Cir. 2002) (“Central
Delta I”).
2282 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
upon enactment of this title[,] dedicate and manage
annually eight hundred thousand acre-feet of Central
Valley Project yield for [1] the primary purpose of
implementing the fish, wildlife, and habitat restora-
tion purposes and measures authorized by this title;
[2] to assist the State of California in its efforts to
protect the waters of the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary; and [3]
to help meet such obligations as may be legally
imposed upon the Central Valley Project under State
or Federal law following the date of enactment of
this title, including but not limited to additional obli-
gations under the Federal Endangered Species Act.
Id. at 4715-16;7 see also Central Delta I, 306 F.3d at 945;
Central Delta II, 452 F.3d at 1024. Section 3406(b)(3) directs
the Secretary to develop and implement a program “for the
acquisition of a water supply to supplement the quantity of
water dedicated to fish and wildlife purposes under
[§ 3406(b)(2)]” which utilizes “the following options:
improvements in or modifications of the operations of the
project; water banking; conservation; [water] transfers; con-
junctive use; and temporary and permanent land fallowing,
including purchase, lease, and option of water, water rights,
and associated agricultural land.” 106 Stat. at 4716.
C. Outflow Requirements and Objectives
To understand the present dispute, some familiarity is
required as to the “outflow” provisions for certain portions of
the CVP waterways enacted in part pursuant to the Clean
7
“Central Valley Project yield” is defined as “the [water] delivery capa-
bility of the Central Valley Project during the 1928-1934 drought period
after fishery, water quality, and other flow and operational requirements
imposed by terms and conditions existing in licenses, permits, and other
agreements pertaining to the Central Valley Project under applicable State
or Federal law existing at the time of enactment of this title have been
met.” CVPIA § 3406(b)(2), 106 Stat. at 4716.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2283
Water Act. As observed in PUD No. 1 of Jefferson Cnty. v.
Wash. Dep’t of Ecology, 511 U.S. 700, 704 (1994):
[T]he complex statutory and regulatory scheme that
governs our Nation’s waters [commonly known as
the Clean Water Act, 33 U.S.C. §§ 1251 et seq.] . . .
implicates both federal and state administrative
responsibilities. . . .
. . . Section 303 of the Act . . . requires each State,
subject to federal approval, to institute comprehen-
sive water quality standards establishing water qual-
ity goals for all intrastate waters. §§ 1311(b)(1)(C),
1313. . . .
A state water quality standard “shall consist of the
designated uses of the navigable waters involved and
the water quality criteria for such waters based upon
such uses.” 33 U.S.C. § 1313 (c)(2)(A).
In 1978, the California State Water Resources Control
Board (“SWRCB”) adopted the “Water Quality Control Plan
for the Sacramento-San Joaquin Delta and Suisun Marsh” (the
“1978 Plan”) that established new water quality standards for
salinity control and for fish and wildlife protection in the
Delta, which took into account the combined massive effects
of the CVP and SWP.8 See State Water Res. Control Bd., 182
8
As stated in State Water Res. Control Bd., 182 Cal. App. 3d at 107:
The major factor affecting water quality in the Delta is saltwater
intrusion. Delta lands, situated at or below sea level, are con-
stantly subject to ocean tidal action. Salt water entering from San
Francisco Bay extends well into the Delta, and intrusion of the
saline tidal waters is checked only by the natural barrier formed
by fresh water flowing out from the Delta.
But as fresh water was increasingly diverted from the Delta for
agricultural, industrial and municipal development, salinity intru-
sion intensified, particularly during the dry summer months and
in years of low precipitation and runoff into the river systems.
2284 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Cal. App. 3d at 97-98. As part of that plan, the SWRCB modi-
fied the appropriation permits held by the Bureau and the
CDWR to require the CVP and the SWP to release more
water into the Delta (via flows) and to curtail their exports of
water from the Delta (by means of pumping or diversions) as
necessary to maintain the water quality standards under the
plan. Id. at 119. In 1986, certain of those water quality stan-
dards were deemed invalid by a California Court of Appeal,
inter alia, because the SWRCB: (1) improperly considered
the protection of purportedly vested water rights in its formu-
lation of the standards, and (2) failed to include in its analysis
all sources of water quality degradation such as upstream
diverters and polluters. Id. at 117-18. In December 1994, “[i]n
order to provide ecosystem protection for the Bay-Delta Estu-
ary,” various representatives from California state and federal
agencies (including the Secretary of the Interior, the Adminis-
trator of the Environment Protection Agency, and the Secre-
tary of the California Resources Agency) plus certain
interested parties (such as Plaintiff-Appellee Bay Institute of
San Francisco, Appellant San Luis, and the Environmental
Defense Fund) entered into a compact entitled “Principles for
Agreement on Bay-Delta Standards between the State of Cali-
fornia and the Federal Government” (“Bay-Delta Accord”),
available at http://calwater.ca.gov/content/documents/library/
SFBayDeltaAgreement.pdf (last visited January 30, 2012).
Bay-Delta Accord at 1, 4-5. That agreement contained
detailed interim measures for environmental protection and
water quality standards for the Bay-Delta.9 See In Re Bay-
One of the major purposes of the projects was containment of
maximum salinity intrusion into the Delta. By storing waters dur-
ing periods of heavy flow and releasing water during times of
low flow, the freshwater barrier could be maintained at a constant
level.
The primary purpose underlying the 1978 Plan “was salinity control in
order to protect consumptive uses (agricultural, industrial and municipal)
of the Delta waters.” Id. at 115.
9
The interim measures were “intended to be in force for three years
. . . .” Bay-Delta Accord at 1.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2285
Delta Programmatic Envtl. Impact Report Coordinated Pro-
ceedings, 43 Cal. 4th at 1156. Included therein were water
outflow provisions, a new salinity standard, and a spring
“pulse flow” requirement on the San Joaquin River at Vernalis.10
See Central Valley Water Agency v. United States, 327 F.
Supp. 2d 1180, 1194 (E.D. Cal. 2004). The Bay-Delta Accord
also contained language that “[a]ll CVP water provided pursu-
ant to these Principles shall be credited toward the CVP obli-
gation under Section 3406(b)(2) of the Central Valley Project
Improvement Act to provide 800,000 acre feet of project yield
for specified purposes.” Bay-Delta Accord at 3.
In May 1995, the SWRCB adopted the “Water Quality
Control Plan for the San Francisco Bay/Sacramento-San Joa-
quin Delta Estuary, 95-1 WR” (“1995 WQCP”), available at
http://www.swrcb.ca.gov/waterrights/water_issues/programs/
bay_delta/ wq_control_plans/1995wqcp/docs/1995wqcpb.pdf
(last visited January 30, 2012). The 1995 WQCP covered cer-
tain measures included in the Bay-Delta Accord and provided
for the Delta outflow and Vernalis flow objectives that are
involved in this case. The 1995 WQCP also identified seven-
teen “beneficial uses” of CVP/SWP water.11 Those utilizations
10
As observed in PUD No. 1, 511 U.S. at 719:
In many cases, water quantity is closely related to water quality;
a sufficient lowering of the water quantity in a body of water
could destroy all of its designated uses, be it for drinking water,
recreation, navigation or, as here, as a fishery.
In reference to the southern portion of the Sacramento-San Joaquin Delta,
it has been noted that: “In this region water quality degradation is caused
not by oceanwater intrusion but mainly by upstream depletions of the San
Joaquin River and salt infusion from irrigation waste-water runoff carried
by the San Joaquin River.” State Water Res. Control Bd., 182 Cal. App.
3d at 121.
11
Those seventeen uses are: (1) “Municipal and Domestic Supply” —
“for community, military, or individual water supply systems including,
but not limited to, drinking water supply,” (2) “Industrial Service Supply”
— “for industrial activities . . . including, but not limited to, mining, cool-
2286 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
were, in turn, placed into three general categories: (1) “munic-
ipal and industrial beneficial uses,” (2) “agricultural beneficial
uses” and (3) “fish and wildlife beneficial uses” and water
quality objectives were then established for each category.
See 1995 WQCP at 14-15. Certain water quality
criteria/objectives overlap two or more of the designated cate-
gories. For example, prevention of salinity intrusion is an ele-
ment as to all three categories. 1995 WQCP at 14.
Water quality objectives for fish and wildlife beneficial
uses are set out in Table 3 of the 1995 WQCP. Those require-
ments cover: (1) “Delta outflow objectives . . . included for
the protection of estuarine habitat for anadromous fishes and
other estuarine-dependent species”; (2) “Sacramento and San
ing water supply, hydraulic conveyance, gravel washing, fire protection,
and oil well repressurization,” (3) “Industrial Process Supply” — “for
industrial activities that depend primarily on water quality,” (4) “Agricul-
tural Supply” — including “farming, horticulture, or ranching” purposes,
(5) “Ground Water Recharge,” (6) “Navigation,” (7) “Water Contact Rec-
reation” — such as “swimming, wading, water-skiing, skin and scuba div-
ing, surfing, white water activities, fishing, or use of natural hot springs,”
(8) “Non-Contact Water Recreation” — such as “hiking, beachcombing,
camping, boating, tidepool and marine life study, hunting, sightseeing,”
(9) “Shellfish Harvesting,” (10) “Commercial and Sport Fishing,” (11)
“Warm Freshwater Habitat,” (12) “Cold Freshwater Habitat,” (13) “Mi-
gration of Aquatic Organisms” — “[u]ses of water that support habitats
necessary for migration or other temporary activities by aquatic organ-
isms, such as anadromous fish,” (14) “Spawning, Reproduction, and/or
Early Development” — “[u]ses of water that support high quality aquatic
habitats suitable for reproduction and early development of fish,” (15)
“Estuarine Habitat” — “[u]ses of water that support estuarine ecosystems
including, but not limited to, preservation or enhancement of estuarine
habitats, vegetation, fish, shellfish, or wildlife (e.g., estuarine mammals,
waterfowl, shorebirds),” (16) “Wildlife Habitat” — estuarine habitats for
“mammals, birds, reptiles, amphibians, and invertebrates,” and (17) “Rare,
Threatened, or Endangered Species” — [u]ses of water that support habi-
tats necessary, at least in part, for the survival and successful maintenance
of plant or animal species established under State or federal law as being
rare, threatened, or endangered.” 1995 WQCP at 12-13.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2287
Joaquin river flow objectives . . . included to provide attrac-
tion and transport flows and suitable habitat for various life
stages of aquatic organisms, including Delta smelt and chi-
nook salmon”; and (3) “[o]bjectives for export limits . . .
included to protect the habitat of estuarine-dependent species
by reducing the entrainment of various life stages by the
major export pumps in the southern Delta.”12 1995 WQCP at
(Text continued on page 2289)
12
As delineated in State Water Res. Control Bd. Cases, 136 Cal. App.
4th at 701-03:
[The SWRCB] established various salinity objectives “for the
reasonable protection of [agriculture as a beneficial use] from the
effects of salinity intrusion and agricultural drainage in the west-
ern, interior, and southern Delta.” To protect fish and wildlife
uses, the [1995 WQCP] established objectives for six parameters:
dissolved oxygen, salinity, amounts of Delta outflow, river flows,
export limits, and Delta cross-channel gate operation. The plan
also included a narrative objective for salmon protection . . .
1. The Southern Delta Salinity Objectives
The [SWRCB] adopted various salinity objectives in the
plan (expressed as electrical conductivity or EC) to protect
agricultural uses in the western, interior, and southern Delta.
To protect agricultural uses in the southern Delta, the
[SWRCB] adopted salinity objectives to be met at four dif-
ferent locations [including the] San Joaquin River at Airport
Way Bridge, Vernalis (the Vernalis salinity objective) . . . .
The [1995 WQCP] specified the objectives as 0.7 EC [a
measure of electrical conductivity] from April through
August and 1.0 EC from September through March . . . .
2. The Delta Outflow Objective
Water flow can be regulated as a water quality objective
because, as the [SWRCB] explained in the [1995 WQCP],
“the rate and quantity of flow . . . are physical properties or
characteristics of the water” which “have an impact on the
beneficial uses of” water in the Bay-Delta . . . . Thus, a flow
objective sets the amount of water that must be flowing in a
watercourse at a given time “for the reasonable protection of
beneficial uses of [the] water.” . . . . Obviously, meeting such
an objective may be achieved, among other ways, by reduc-
ing the amount of water that upstream water right holders
divert from the watercourse or by increasing the amount of
water released into the watercourse.
2288 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
In the 1995 [WQCP], the [SWRCB] explained that “Delta
outflow objectives are included for the protection of estua-
rine habitat for anadromous fishes and other estuarine-
dependent species.” The parameter for those objectives was
the net Delta outflow index (outflow index). The outflow
index was a number representing the net amount of water
flowing out of the Delta, which was to be calculated by tak-
ing the amount of water flowing into the Delta and subtract-
ing from that figure the amount of water being consumed in
the Delta and the amount of water being exported from the
Delta. For example, every year in September, the [1995
WQCP] required a minimum monthly average outflow index
of 3,000 cubic feet per second (cfs) of water to be flowing
out of the Delta to protect estuarine habitat within the Delta.
([1995 WQCP], pp. 15, 19, 25.)
3. The Vernalis Flow Objectives
As part of the river flow objectives in the [1995 WQCP],
the [SWRCB] set minimum monthly average flow rates on
the San Joaquin River at Vernalis (the Vernalis flow objec-
tives). The [SWRCB] explained that “Sacramento and San
Joaquin river flow objectives are included to provide attrac-
tion and transport flows and suitable habitat for various life
stages of aquatic organisms, including Delta smelt and chi-
nook salmon.” One part of the Vernalis flow objectives was
a “pulse” flow during a 31-day period in April and May of
each year (the Vernalis pulse flow objective). The [1995
WQCP] called for an average flow rate during that period
ranging from 3,110 to 8,620 cfs, depending on the type of
water year and on certain salinity measurements. [Footnote
omitted.] The [1995 WQCP] also specified that while the
default period for the pulse flow was April 15 to May 15,
“[t]his time period may be varied based on real-time moni-
toring. One pulse, or two separate pulses of combined dura-
tion equal to the single pulse, should be scheduled to
coincide with fish migration in San Joaquin River tributaries
and the Delta. The time period for this 31-day flow require-
ment will be determined by the operations group established
under the Framework Agreement.” ([1995 WQCP], p. 21,
table 3, fn. [18].)
4. The Salmon Protection Objective
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2289
15. The water quality objectives delineated in Table 3 are
established “for the reasonable protection” of the enumerated
beneficial uses 11 through 17 which cover uses of water that
support: (1) warm or cold “water ecosystems including, but
not limited to, preservation or enhancement of aquatic habi-
tats, vegetation, fish or wildlife, including invertebrates”; (2)
habitats necessary for reproduction, early development,
migration and/or other temporary activities of aquatic organ-
isms including, but not limited to, anadromous fish; and (3)
estuarine ecosystems for fish, shellfish, invertebrates, amphib-
ians, reptiles, mammals, and waterfowl, including habitats for
rare, threatened or endangered plant or animal species. 1995
WQCP at 12-13, 15. Additionally, the water quality objec-
tives in Table 3 also provide protection for certain beneficial
uses that do not involve fish, wildlife, and habitat restoration
such as “[u]ses of water for shipping, travel, or other transpor-
tation by private, military, or commercial vessels.” Id.
As to Delta outflow and designated river flows, the 1995
WQCP observed that:
Unlike water quality objectives for parameters such
as dissolved oxygen, temperature, and toxic chemi-
cals, which have threshold levels beyond which
adverse impacts to the beneficial uses occur, there
are no defined threshold conditions that can be used
to set objectives for flows and project operations.
Instead, the available information indicates that a
continuum of protection exists. Higher flows and
The [1995 WQCP] also included a narrative objective for
the protection of salmon, which provided: “Water quality
conditions shall be maintained, together with [other] mea-
sures in the watershed, sufficient to achieve a doubling of
natural production of chinook salmon from the average pro-
duction of 1967-1991, consistent with the provisions of State
and federal law.” ([1995 WQCP], p. 18, table 3.)
2290 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
lower exports provide greater protection for the bulk
of estuarine resources up to the limit of unimpaired
conditions. Therefore, these objectives must be set
based on a subjective determination of the reason-
able needs of all of the consumptive and
nonconsumptive demands on the waters of the Estu-
ary.
1995 WQCP at 14-15. The 1995 WQCP also contained the
following concession regarding salmon protection and the
CVPIA’s anadromous fish doubling goal: “It is uncertain
whether implementation of the numeric objectives in this plan
alone will result in achieving the narrative objective for
salmon protection.” 1995 WQCP at 28.
In response to petitions from the CDWR and the Bureau “to
change points of diversion of the Central Valley Project
(CVP) and the State Water Project (SWP) in the southern
Delta” and “to change the use and purpose of use of the
CVP,” the SWRCB in March 2000 issued the “Revised Water
Right Decision 1641.” See In the Matter of: Implementation
of Water Quality Objectives for the San Francisco
Bay/Sacramento – San Joaquin Delta Estuary, available at
http://www.waterrights. ca.gov/Decisions/D1641rev.pdf (“D-
1641”). As explained therein:
Currently, the authorized places of use in the
[Bureau’s] water right permits do not all cover the
same area. Because the [Bureau] commingles its
water from several large reservoirs and diversion
works, and because separate permits for these facili-
ties have different requirements, the [Bureau] finds
it impractical and infeasible to ensure that water
appropriated under a specific permit is delivered
only to lands within the place of use specified in the
permit. Accordingly, the [Bureau’s] practice is to
deliver water from any source to any location within
its service area without ensuring that water appropri-
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2291
ated under a specific permit is delivered only to
places specified in the permit . . . . To the extent that
the [Bureau] delivers water to places outside a per-
mitted place of use, however, it is operating incon-
sistently with the terms and conditions of the permit.
D-1641 at 119. The SWRCB approved the consolidation of
CVP permit places of use to remedy the Bureau’s prior poten-
tially “inconsistent” practice. D-1641 at 119-21.
Additionally, the D-1641 approved, for a period of twelve
years, conducting the Vernalis Adaptive Management Plan
(“VAMP”), an experimental program to determine the relative
impact of changes in flow and export limitations in the San
Joaquin River on chinook salmon. See D-1641 at 2, 17. The
VAMP provides for certain target flows at the Vernalis gage
on the San Joaquin River during a 31-day period in April-May
and a concomitant potential reduction in SWP and CVP water
exports depending upon the amount of available water due to
hydrological conditions. Id. at 19-20.
A number of challenges were raised to the D-1641. In
2006, on appeal of consolidated cases challenging its adop-
tion, a California Court of Appeal held, inter alia, that in
adopting portions of the D-1641 the SWRCB erred because it
“was not entitled to implement alternate flow objectives
agreed to by various interested parties in lieu of the flow
objectives actually provided for in the [1995 WQCP] . . . .
[and it] failed to adequately implement certain salinity objec-
tives in the [1995 WQCP] and failed to implement the mini-
mum flows necessary to achieve the narrative objective for
salmon protection in the [1995 WQCP].” State Water Res.
Control Bd. Cases, 136 Cal. App. 4th at 690. One of the spe-
cific holdings was that “by failing to implement all of the
Vernalis flow objectives while the San Joaquin River Agree-
ment is in effect, the [SWRCB] ‘fail[ed] to establish the mini-
mum flows necessary to achieve the salmon-doubling
standard.’ ” Id. at 777.
2292 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
D. Previous Challenges in This Litigation to Interior’s
Implementation of CVPIA § 3406(b)(2)
Water allocations under the CVPIA have generated approx-
imately 13 years of protracted litigation in this case, address-
ing four sequential administrative decisions regarding the
implementation of section 3406(b)(2). The case began as a
challenge by San Luis to Interior’s “Administrative Proposal
on Management of Section 3406(b)(2) Water”
(“Administrative Proposal”), issued in November 1997, and
was later consolidated with a separate challenge brought by
various environmental interests, including Plaintiff-Appellees
the Bay Institute of San Francisco and others (“Environmental
Parties”). The district court issued an April 9, 1999 order
granting a partial judgment finding that the Administrative
Proposal was deficient. After remand to the agency, Interior
released its October 5, 1999 “Decision on Implementation of
Section 3406(b)(2) of the Central Valley Project Improvement
Act” (“1999 Decision”), setting forth the manner in which it
would calculate CVP yield in accordance with the CVPIA and
how it would account for (and manage) the use of the 800,000
AF of dedicated yield.
On November 16, 1999, San Luis filed a First Amended
Complaint challenging the 1999 Decision. A Second
Amended Complaint adding Plaintiff-Appellant Westlands
(and updating the challenge to the 1999 Decision) was filed
on April 5, 2001. Therein, the Appellants argued that the Fed-
eral Defendants were required to credit against the 800,000
AF allocation of CVP yield all water used to satisfy any
requirements under either the 1995 WQCP or the Endangered
Species Act (“ESA”), 16 U.S.C. §§ 1531 et seq. The district
court agreed, writing in its October 19, 2001 Memorandum
Decision that “if it were left to Interior’s ‘discretion’ whether
or not to count CVP yield used for such (b)(2) purposes, the
annual 800 TAF [thousand acre feet] cap would be illusory.”
See San Luis & Delta-Mendota Water Auth. v. U.S. Dep’t of
Interior, 236 F.R.D. 491, 494 (E.D. Cal. 2006). In particular,
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2293
the district court held that “[a]s a matter of law, [the statutory]
language is not ambiguous — water used to meet WQCP or
post-CVPIA ESA requirements is an additional (b)(2) purpose
and must be charged against the 800 TAF (b)(2) mandate if
so used.” Id. The district court’s March 20, 2002 partial judg-
ment certified the (b)(2) accounting issues for appeal pursuant
to Fed. R. Civ. P. 54(b). Both the Water Agencies and the
Environmental Parties appealed.
During the pendency of that appeal, Interior issued a “final
agency action” entitled “Decision on Implementation of Sec-
tion 3406(b)(2) of the Central Valley Project Improvement
Act — May 9, 2003” (“May 2003 Decision”) which set out
“the calculation of CVP yield . . . , the method of accounting
for use of (b)(2) water, and procedures for management and
accountability for the dedicated (b)(2) water.” The May 2003
Decision incorporated the parts of the district court’s ruling
regarding the mandatory treatment of water uses under the
1995 WQCP and/or post-CVPIA ESA requirements as
chargeable against the dedicated (b)(2) yield.13
13
The May 2003 Decision stated:
Interior will continue to fulfill the commitment to meet the 1995
Bay-Delta WQCP obligations (SWRCB D1641). These costs will
be accounted as the [sic] increase in releases and decrease in
exports, compared to releases and exports that would have
resulted from simulated CVP baseline operations during the same
period. The CVP will be operated in accordance with the WQCP
obligations and ESA obligations. Interior will account for the
total amount of CVP water costs associated with meeting the
WQCP obligations and ESA obligations imposed after enactment
of CVPIA against the annual (b)(2) allocation, up to the balance
of (b)(2) water remaining at the time the cost is incurred.
In addressing public comments to an earlier draft of the decision, the
Federal Defendants specifically observed that “only meeting the WQCP
and post-1992 ESA requirements may not be sufficient to meet the anad-
romous fish doubling goal and other restoration purposes and measures
included in the CVPIA.” See SL&DM Water Auth. I, 637 F. Supp. 2d at
781 n.1.
2294 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
On June 3, 2003, we issued a memorandum opinion in Bay
Institute of San Francisco v. United States, 66 Fed. Appx. 734
(9th Cir. 2003), affirming in part and reversing in part the dis-
trict court’s March 2002 partial judgment. In particular, we
overruled the district court’s decision regarding Interior’s lack
of discretion in accounting for water used for any (b)(2) pur-
pose (such as for 1995 WQCP or post-CVPIA ESA require-
ments) against the 800,000 AF of Project yield.14
On December 17, 2003, the Bureau’s Regional Director
and the United States Fish and Wildlife Service’s (“USFWS”)
California/Nevada Operations Manager issued a joint memo-
randum on “Guidance for Implementation of Section
3406(b)(2) of the CVPIA” (“2003 Guidance Memo”) which
was intended to “supplement[ ] the May 9, 2003 Decision, in
light of the June 3, 2003 Ninth Circuit Ruling.” The Guidance
Memo noted that:
The May 9, 2003 Decision specifically provides for
a target of up to 200,000 acre-feet of use in the Octo-
ber through January period, primarily for high prior-
ity fish and wildlife uses. Moreover, actions taken
pursuant to the 1995 Water Quality Control Plan and
State Water Resources Control Board Decision D-
1641 (“the 1995 WQCP”) involve the dedication and
management of Central Valley Project yield for
long-term fishery beneficial use and protection. Such
actions are not taken to help meet agricultural or
municipal and industrial water quality standards that
are set forth in the 1995 WQCP. Most of the fishery
beneficial uses and objectives under the 1995 WQCP
and in Reclamation’s water rights permits help fulfill
the fish, wildlife, and habitat restoration purposes
14
To the extent that Interior had incorporated into its May 2003 Deci-
sion the district court’s position which required counting all 1995 WQCP
and post-CVPIA ESA releases against the (b)(2) yield, it would have been
in error.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2295
and measures authorized by Section 3406(b). Con-
sistent with the June 3, 2003 Ninth Circuit decision,
much of the (b)(2) water that is dedicated and man-
aged annually to help meet fishery beneficial use and
protection objectives of the 1995 WQCP serves Sec-
tion 3406(b)(2)’s “primary purpose” of fish, wildlife,
and habitat restoration.
Also, under the 2003 Guidance Memo, the agencies agreed to
start each year “with targets of up to 300,000 acre feet of
(b)(2) water annually for high priority fish and wildlife
actions” and “up to 500,000 acre-feet of (b)(2) water annually
to help meet WQCP and ESA obligations.” However, the
agencies recognized that “[t]his guidance does not establish
caps but assures that priority actions are carefully weighed
against the standards in the WQCP designed for fish and wild-
life benefits.” Further, the 2003 Guidance Memo provided
that “if the projected and/or realized WQCP/ESA costs for the
accounting year exceed the 500,000 acre-feet of (b)(2) water,
the [USFWS] and [the Bureau] will confer to determine the
best course of action.”
On January 23, 2004, we issued an amended decision in
Bay Institute of San Francisco v. United States, 87 Fed. Appx.
637 (9th Cir. 2004) (“Bay Institute”).15 On the issue of Interi-
or’s discretion not to charge CVP yield used for secondary
(b)(2) purposes against the 800,000 AF account, we stated:
The district court erred in concluding that Interior
lacks discretion to refrain from crediting the amount
15
The amended decision made two specific changes to the memorandum
opinion. It modified the first sentence of paragraph 5 to emphasize that
Interior has the “discretion to refrain from crediting the amount of Project
yield actually used for any (b)(2) purpose against the designated 800,000
acre feet of Project yield”; and it replaced the final sentence of paragraph
5 to make clear that such discretion is necessary to implement Interior’s
mandate “to give effect to the hierarchy of purposes established in Section
3406(b)(2).” Bay Institute, 87 Fed. Appx. at 638-69.
2296 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
of Project yield actually used for any (b)(2) purpose
against the designated 800,000 acre feet of Project
yield. To hold otherwise would defeat the primary
purpose for which the 800,000 acre feet were desig-
nated — fish, wildlife, and habitat restoration. Sec-
tion 3406(b)(2) provides that the “primary purpose”
to which the 800,000 acre feet should be dedicated
is the implementation of “fish, wildlife, and habitat
restoration purposes authorized by this title . . . [sic]”
Section 3406(b)(2) also provides that the 800,000
acre feet may be used to “help” meet obligations
under the Endangered Species Act and to “assist” in
meeting water quality standards. If Interior were
required to deduct some or all the water it uses for
water quality and Endangered Species Act purposes
from the (b)(2) dedication, the water needed for
implementation of the Improvement Act’s restora-
tion mandate could be relegated to a secondary role,
or perhaps no role at all. Such a scenario would
directly conflict with the Interior’s mandate to give
effect to the hierarchy of purposes established in
Section 3406(b)(2).
Id. at 639-40. Interior reviewed and considered our amended
decision when undertaking subsequent (b)(2) actions, but
made no changes to its 2003 Guidance Memo or other policy
documents. See SL&DM Water Auth. I, 637 F. Supp. 2d at
783.
E. The 2004 (b)(2) Accounting
Interior set the CVP (b)(2) accounting year to run from
October 1 through September 30 because that time frame is
consistent with the life cycle of most salmon and steelhead
that spawn in the Central Valley rivers. See May 2003 Deci-
sion at 4. Typically, the fall and early winter are spawning
periods for those anadromous fish whose eggs hatch in
approximately two months. Id. After hatching, the salmonid
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2297
fry spend their early life stages in nearby rearing habitats.
During April through June, “fishery actions target the emigra-
tion habitat for juvenile salmon as they migrate downstream,
through the Delta and to the ocean.” Id.
As described in San Luis Unit Food Producers v. United
States, 772 F. Supp. 2d 1210, 1218 (E.D. Cal. 2011):
Each year [the Bureau] projects the amount of water
that will be available based upon reservoir storage,
precipitation, runoff forecasts, and other indices . . . .
Based on that projection and after taking into
account the amount of water required to satisfy statu-
tory and regulatory requirements, [the Bureau] deter-
mines the amount of water that can be delivered and
allocated to its various contractors, including irriga-
tion districts, municipal and industrial users, and
wildlife refuges . . . . [The Bureau’s] water service
contracts . . . contain shortage provisions that specif-
ically recite that [the Bureau] is not liable for short-
ages caused by compliance with legal obligations.
In October 2003, the Bureau proposed a series of prognosti-
cations of CVP operations for the upcoming 2004 year which
included inter alia two hydrology scenarios — one where
there was a 90% chance that the forecast would be exceeded
(“90% numbers”) and one where there was a 50% chance of
its being exceeded (“50% numbers”). The Bureau also devel-
oped projections of CVP operations under: (1) pre-1992 con-
ditions (“baseline forecast”), (2) under the provisions of the
SWRCB’s D-1641 (“water quality control plan forecast”), and
(3) under the requirements of the 1995 WQCP and other
(b)(2) mandated actions (“(b)(2) forecast”). Initial projected
monthly and annual CVP water costs were estimated by run-
ning and comparing the forecasts against the 90% and 50%
numbers. Each subsequent month, the Bureau updated the
actual hydrology and CVP operations data and, in turn, devel-
oped a new set of the 90% and 50% numbers. The actual
2298 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
(b)(2) accounting was based on a comparison of the daily
CVP operations, including the (b)(2) actions, to the daily
hypothetical CVP operations under the baseline (pre-1992)
conditions.
Interior initially summarized its use of CVP water for
(b)(2) purposes during 2004 in a document entitled “Prelimi-
nary b(2) Accounting, Oct ‘03 – Sep ‘04” (“Preliminary
Accounting”). The Preliminary Accounting shows that spring
of 2004 was a period of heavy use for (b)(2) water. In April,
the (b)(2) account incurred charges to implement the VAMP
and to meet Vernalis flow objectives. In addition, due to the
unexpected volume of storms in the middle of March 2004,
the water costs of meeting the 1995 WQCP requirements
relating to the location of “X2”16 during April were much
higher than Interior had anticipated.17 May 2004 was another
period of heavy use due to upstream releases, VAMP imple-
mentation, and releases from New Melones Reservoir.
Much of the administrative record in this case consists of
technical charts and compilations showing constantly updated
forecasts and estimates of CVP operations and (b)(2) account-
ing. As the Federal Appellees pointed out in their brief, there
is no single document that comprises a “record of decision”
for the 2004 Water Year. However, certain documents pre-
pared during and at the end of the 2004 Water Year — partic-
ularly a chart entitled “Water Year 2004 Fishery Action
Costs” (“2004 Year-End Accounting”) — illustrate the
16
The Delta outflow objective dictates the site of the Delta’s salinity
mixing zone, designated as “X2,” the location of which is measured in
kilometers from the Golden Gate Bridge. See D-1641 at 10 n.11. As with
the Vernalis Salinity Standard, salinity for purposes of X2 is currently
determined by a measurement of the electrical conductivity of the water.
See id.
17
The March 90% forecast showed a potential water quality control plan
cost of about 1,000 AF for CVP releases and about 76,000 AF for export
actions. In the April 90% forecast, the projected costs were 317,000 AF
for CVP releases and 115,000 for CVP export actions.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2299
actions that Interior implemented for that year. The 2004
Year-End Accounting reflects 799,700 AF used for (b)(2)
purposes and 158,900 AF used for other “Non-(b)(2) Fishery
Actions.”
As Interior realized that it would reach the 800,000 AF
limit on (b)(2) water dedications in late May or early June,
Interior (in consultation with the USFWS) considered various
accounting scenarios to deal with water released to meet 1995
WQCP and/or post-1992 requirements. In addition, Interior
began taking actions to reduce other (b)(2) uses and sought to
utilize Environmental Water Account (“EWA”) assets to
manage the annual (b)(2) operations and accounting.18 Ulti-
mately, Interior established three categories of use to account
for CVP releases of water under its various statutory responsi-
bilities: (1) “PRIMARY PURPOSE Fish Actions,” (2)
“WQCP Actions that contribute to PRIMARY PURPOSE,”
and (3) “WQCP/ESA Actions that contribute to SECOND-
ARY PURPOSE.” From June 17 to 30, 2004, Interior made
releases from the Nimbus Reservoir on the American River,
from the New Melones Reservoir on the Stanislaus River
(which flows into the San Joaquin River near Vernalis), and
in Clear Creek.
The 2004 Year-End Accounting reflects that, during the
relevant period, the Clear Creek releases were charged to the
(b)(2) account, and they are not directly involved in this
appeal. The Nimbus releases and a portion of the New Mel-
ones releases, however, were not charged against the (b)(2)
18
“The EWA provides water for the protection and recovery of fish
beyond that which would be available through the existing baseline of reg-
ulatory protection related to project operations. The EWA buys water from
willing sellers or diverts surplus water when safe for fish, then banks,
stores, transfers and releases it as needed to protect fish and compensate
water users for deferred diversions.” Kempthorne, 506 F. Supp. 2d at 340.
EWA water may be used either directly for the protection of fish “or to
compensate project water users for reduced exports at the project pumps.”
Id. at 358.
2300 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
account because they were ostensibly made to meet general
Delta outflow and Vernalis flow standards for June. A total of
5,500 AF was released from the Nimbus Reservoir in the lat-
ter portion of June 2004 in order to meet the 1995 WQCP
Delta outflow standard. Similarly, in that period, there was a
total of 17,600 AF released from the New Melones Reservoir
Complex at the Goodwin Dam in order to meet the San Joa-
quin River flow requirements at Vernalis. The Nimbus release
and 3,500 AF of the New Melones release were assigned in
Interior’s accounting to the third category of “WQCP/ESA
Actions that contribute to SECONDARY PURPOSE.”
Because they were categorized as “Secondary Purpose”
actions, Interior refrained from charging 5,500 AF of the
Nimbus release and 3,500 AF of the New Melones release
against the 800,000 AF (b)(2) account allocated for CVPIA’s
restoration mandate. The sum of the those figures is the con-
tested 9,000 AF at issue in this appeal.
F. Motions for Summary Judgment
Following the 2004 Water Year, the Water Agencies
sought and obtained leave to file a Supplemental Complaint.
See San Luis & Delta-Mendota Water Auth. v. U. S. Dep’t of
Interior, 236 F.R.D. 491 (E.D. Cal. 2006). The Supplemental
Complaint alleged that Interior’s 2004 (b)(2) accounting was
arbitrary, capricious, an abuse of discretion, and contrary to
law. In November 2007, following the Federal Appellees’
preparing and filing of the Administrative Record for the
2004 (b)(2) accounting year, the Water Agencies and Federal
Defendants each filed cross-motions for summary judgment.
The Water Agencies argued in their motion that Interior
unlawfully classified certain actions and water releases in late
June and in August/September 2004 as “Non-(b)(2) Fishery
Actions.” The August/September 2004 releases are not at
issue in this appeal.
On September 19, 2008, the district court issued its deci-
sion on the cross-motions, granting the Water Agencies’
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2301
motion for summary judgment as to the August/September
2004 actions19 and granting the Federal Defendants’ cross-
summary judgment motion as to the latter June 2004 releases.
SL&DM Water Auth. I, 637 F. Supp. 2d 806-07. Accurately
characterizing the Water Agencies’ challenge as concerning
“the scope of Interior’s discretion, rather than whether Interior
has any discretion at all,” id. at 795 n.8 (the latter question
having been resolved by the previous appeal), the district
court engaged in a detailed analysis of the 2004 allotments
and concluded that Interior had not abused its discretion as to
its treatment of the latter June 2004 releases. Id. at 803-04,
806-07.
In their summary judgment motion, the Water Agencies,
while acknowledging that Interior enjoys some discretion not
to charge WQCP/ESA actions against the (b)(2) yield, never-
theless argued that this discretion is extremely limited. Under
the Water Agencies’ interpretations of the CVPIA and of this
court’s June 2003 Bay Institute decision, any water used to
meet WQCP and/or ESA purposes must be counted against
the (b)(2) yield unless doing so would not serve any fish,
wildlife, and habitat restoration purposes, or if counting the
water toward the 800,000 AF limit would “significantly
impair” section (b)(2)’s primary restoration purposes. See id.
at 795. The Water Agencies further urged that any water used
pursuant to the WQCP or the ESA to further fish and wildlife
restoration necessarily “serves the primary purpose and effec-
tuates the hierarchy of purposes set in section 3406(b)(2),”
and so must be counted against the (b)(2) allotment.20 Id.
19
In regards to the August/September 2004 actions, the district court
held that Interior had failed to explain its reasoning for its accounting for
that period, and “[t]his is a failure of proof, which makes its decision arbi-
trary and capricious.” 637 F. Supp. 2d. at 806.
20
The district court responded to this contention in part by referencing
language from the 2003 Guidance Memo. As stated by the court:
2302 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
The Federal Appellees proffered a much broader interpreta-
tion of the scope of Interior’s discretion as to CVP water used
to satisfy the 1995 WQCP or post-1992 ESA requirements.
They argued that the ruling in Bay Institute “must be read as
a command to Interior to ensure that it exercises its discretion
in a manner that will not frustrate the primary purpose of fish,
wildlife, and habitat restoration.” Id. at 796. The Environmen-
tal Parties’ position approximately tracked that of the Federal
Appellees, except that they also expressly argued that the sole
primary purpose of the CVPIA is anadromous fish doubling.
Id.
The district court rejected the Environmental Parties’ sug-
gestion that the “fish doubling” requirement set forth in sec-
tion 3406(b)(2) was “the only restoration activity that should
be considered a component of the ‘primary purpose.’ ” Id. at
798. It also, however, rejected the Water Agencies’ argument
that the reference to the ESA and WQCP requirements in the
CVPIA reflects Congress’s understanding that these require-
ments must always be considered part of the “primary pur-
pose” of the CVPIA. See id. at 797. Ultimately, the district
court held that “a plain language reading of the primary pur-
pose language . . . suggests that Congress intended only
actions specifically authorized by the CVPIA to be considered
‘primary purpose’ measures.” Id. at 799. Further, it deter-
mined that “[t]he ‘primary purpose’ includes . . . . water dedi-
[T]he December 2003 Guidance’s statement that “most” of the
water dedicated to meet the fishery and beneficial use and protec-
tion objectives of the WQCP also serve the CVPIA’s “primary
purpose,” impliedly acknowledges that some portion of water
dedicated to meet WQCP goals does not serve the primary pur-
pose. Elsewhere in the administrative record, Interior specifically
stated that “only meeting the WQCP and post-1992 ESA require-
ments may not be sufficient to meet the anadromous fish dou-
bling goal and other restoration purposes and measures included
in CVPIA.”
SL&DM Water Auth. I, 637 F. Supp. 2d at 802 n.15.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2303
cated to accomplish the anadromous fish doubling goal set
forth in section 3406(b)(1), but also includes water needed to
accomplish any of the other specifically enumerated programs
listed in section 3406(b)” that could conceivably affect water
releases or flows (i.e., 3406(b)(4), (5), (8), (9), (12), (18) &
(19)).21 Id. at 799-800. Noting the “potential for overlap”
between primary purpose measures and actions taken pursu-
ant to the 1995 WQCP and/or the ESA, and applying our prior
ruling in Bay Institute, the district court articulated the follow-
ing precept:
[I]f an action taken under the WQCP and/or the ESA
predominantly contributes to one of the primary pur-
pose programs (e.g., fish doubling), it must be
counted toward the 800,000 AF limit. Interior retains
the discretion not to count other secondary actions,
so long as doing so is necessary to give effect to the
hierarchy of purposes.
21
Section 3406(b)(4) deals with the development of “a program to miti-
gate for fishery impacts associated with operations of the Tracy Pumping
Plant”; section 3406(b)(5) covers the development of “a program to miti-
gate for fishery impacts resulting from operations of the Contra Costa
Canal Plant No. 1”; section 3406(b)(8) provides for making “use of short
pulses of increased water flows to increase the survival of migrating anad-
romous fish moving into and through the Sacramento-San Joaquin Delta
and Central Valley rivers and streams”; section 3406(b)(9) calls for elimi-
nating, “to the extent possible, losses of anadromous fish due to flow fluc-
tuations caused by any Central Valley Project storage or re-regulating
facility”; section 3406(b)(12) provides for “flows to allow sufficient
spawning, incubation, rearing, and outmigration for salmon and steelhead
from Whiskeytown Dam”; section 3406(b)(18) directs the Secretary to, “if
requested by the State of California, assist in developing and implement-
ing management measures to restore the striped bass fishery of the Bay-
Delta estuary”; and section 3406(b)(19) calls for maintaining “minimum
carryover storage at Sacramento and Trinity River reservoirs to protect
and restore the anadromous fish” in those rivers). 106 Stat. at 4717-19.
The district court noted that the “remaining provisions in section
3406(b) do not direct Interior to undertake specific restoration activities
that could impact water releases and deliveries.” SL&DM Water Auth. I,
637 F. Supp. 2d at 798 n.11.
2304 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Id. at 801-02.
The district court found that its conclusion (that the CVPIA
does not require that all ESA and WQCP compliance actions
count towards a primary purpose) was “reinforced” by the
fact that section (b)(2) itself delineates “multiple priorities.”22
Id. at 797. As the court stated:
Primacy is given to those “fish, wildlife, and habitat
restoration purposes and measures authorized by [the
CVPIA].” Thereafter, Interior is directed by the stat-
ute “to assist” the State in its “efforts to protect the
22
Ultimately, while it rejected the view that only actions that predomi-
nantly contributed to the specific goal of “fish doubling” had to be consid-
ered primary purpose actions, the district court initially went on to take a
rather cryptic view of this court’s Bay Institute ruling, stating:
The Ninth Circuit gave predominant and exclusive effect to
(b)(2)’s primary purpose by interpreting Interior’s discretion as
unlimited, to not count toward the 800 TAF account, ESA,
WQCP, and related uses of CVP yield. This leaves Interior with
unlimited discretion to undermine other statutory non-
environmental CVP water purposes. This does not appear to be
a fair or reasonable interpretation of the CVPIA. The Environ-
mental Plaintiffs responsibly recognized this at oral arguments,
when they avowed that they do not seek to use all CVP annual
yield for environmental purposes.
SL&DM Water Auth. I, 637 F. Supp. 2d at 806. That view was not reiter-
ated in its opinion on the motion for reconsideration. SL&DM Water Auth.
II, 624 F. Supp. 2d 777.
It is not true, of course, that Interior’s discretion is unlimited. First, the
referenced discretion pertains to the allocation among competing uses for
the 800,000 AF in the (b)(2) account. Second, at the very least, it is con-
strained by the limiting language in the CVPIA itself that requires the
CVP “to meet all obligations under State and Federal law,” as this court
has acknowledged. See Central Delta II, 452 F.3d at 1024. Finally, section
3406(b)(1)(C) directs the Secretary to ensure that dual use (i.e., the same
dedication of water to meet CVPIA fish and wildlife purposes and to meet
WQCP/ESA requirements) is accomplished “to the greatest degree practi-
cable.” 106 Stat. at 4715.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2305
waters of the San Francisco Bay Sacramento-San
Joaquin Delta Estuary,” and “to help” meet obliga-
tions imposed upon the CVP under State and Federal
law, “including but not limited to additional obliga-
tions under the Federal Endangered Species Act
. . . .”
Id. at 797-98 (quoting § 3406(b)(2)).
Applying its stated rule, the district court then considered
whether Interior had abused its discretion in its accounting of
the latter June 2004 releases. In doing so, the district court
acknowledged that it was forced to look beyond the adminis-
trative record. It observed:
[N]one of the guidance documents presented in the
Administrative Record directly identify or explain
the procedures Interior must follow either in a “nor-
mal” (b)(2) year or an “exceptional” one in which
the 800,000 AF limit may need to be exceeded. The
May 9, 2008 [sic] Decision comes the closest, stat-
ing:
Interior will account for the total amount of
CVP water costs associated with meeting
the WQCP obligations and ESA obligations
imposed after enactment of CVPIA against
the annual (b)(2) allocation, up to the bal-
ance of (b)(2) water remaining at the time
the cost is incurred.
This Decision, however, predates the Ninth Circuit’s
ruling on the issue.
Id. at 803 (citation omitted). The district court further noted
that the Federal Defendants had themselves asserted that there
was “no formal administrative decision in this case to which
Chevron deference is owed” and that, accordingly, the parties
2306 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
had stipulated “to allow for the submission of expert declara-
tions to help explain the contents of this ‘rather unusual
administrative record to the court.’ ” Id. (citation omitted).
The supplemental materials included the declarations of
Roger Guinee (the Water Operations Division Chief for the
USFWS’s Water and Fishery Resources Program) and Paul E.
Fujitani (the Chief of the Water Operations Division in the
Bureau’s Central Valley Operations Office). Those declara-
tions stated that: (1) the latter June 2004 Nimbus and New
Melones releases were specifically implemented to respec-
tively meet the WQCP Delta outflow and the Vernalis flow
requirements, and (2) the USFWS had not recommended that
the Bureau increase flow releases in June 2004 on the Ameri-
can River for primary fish restoration purposes pursuant to
section (b)(2). Utilizing those submissions, the district court
concluded that Interior did not abuse its discretion by failing
to deduct the additional 9,000 AF of CVP yield released in the
latter portion of June of 2004 from the 800,000 AF (b)(2)
account. This conclusion, however, was based in part on the
district court’s finding (later withdrawn) that, because the
1995 WQCP numeric standards “do not specifically identify
an intent to support the fish doubling goal (or any other
specifically-enumerated 3406(b) program),” actions taken to
satisfy those standards do not “ ‘predominantly’ contribute to
primary purpose programs.” Id. at 804.
G. Motion for Reconsideration
The Water Agencies moved for reconsideration of the dis-
trict court’s decision regarding Interior’s June 2004 allocation
of the 9,000 AF to “Non-(b)(2) Fishery Actions.” On May 14,
2009, the district court granted that motion, but did not
change its overall conclusion that Interior had not abused its
discretion. See SL&DM Water Auth. II, 624 F. Supp. 2d at
1217. Although the district court reversed its finding that the
SWRCB did not intend “for the numeric flow standards in the
1995 WQCP to contribute toward the narrative fish doubling
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2307
goal in the WQCP,” it noted that its reversal on that point did
not “resolve whether water used for WQCP purposes also is
predominantly used for primary CVPIA 3406(b)(2) pur-
poses.” Id. at 1217. As to that question, the court conceded
that “[t]he summary judgment record contained very little
specific information pertaining to this issue.” Id. at 1214.
In the meantime, the parties had submitted new declara-
tions with the motion for reconsideration, including one from
Christina Swanson, Ph.D., a fisheries biologist with the Bay
Institute of San Francisco, whose earlier declaration also had
been considered in connection with the summary judgment
motions. Id. at 1215. Dr. Swanson stated that the Delta out-
flow objective primarily benefits non-salmonid fish species
such as white sturgeon, bay shrimp, Crangon franciscorum,
longfin smelt, and Sacramento splittail.23 Id. Dr. Swanson fur-
ther testified that the releases at issue could not have benefit-
ted salmon because, in late June 2004, most of the juvenile
salmon were gone from the San Joaquin River and the agen-
cies were not even sampling for salmon in the river at that
time. Id. at 1216. In addition, Guinee in his supplemental dec-
laration stated that the latter June 2004 Nimbus releases were
“specifically implemented to support CVP export pumping”
and “to meet Delta demands.” Absent evidence that they were
intended to predominantly benefit anadromous fish as
opposed to other fish species, “and in light of the fact” that
an Environmental Impact Report performed in connection
with the 1995 WQCP indicated that the Delta outflow stan-
dard was intended to benefit multiple fish species (as well as
other animals), the district court again found no abuse of dis-
cretion in connection with Interior’s accounting for the latter
June 2004 releases made to satisfy the Delta outflow objec-
tive. Id. at 1215-16.
23
As noted by the district court, however, sturgeon (unlike bay shrimp,
Crangon franciscorum, longfin smelt, and Sacramento splittail) is “argu-
ably” an anadromous fish under the CVPIA’s definition. See SL&DM
Water Auth. II, 624 F. Supp. 2d at 1215 n.4.
2308 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
As to the water released from the New Melones facility to
comply with the Vernalis flow standard, the court noted that
there was a dispute among the parties’ experts regarding the
possible reasons for the release and “predominant use of [the]
water.” See id. at 1216-17. Nevertheless, the court noted:
As to such a decision on a subject, water accounting,
inherently within the agency’s discretion and exper-
tise, the deferential standard favoring the agency’s
decision is not overcome. Based on the totality of the
information available to the Bureau at the time,
including the fact that the Vernalis flow standard is
designed to serve multiple purposes, not just anadro-
mous fish doubling, coupled with the fact that there
were no salmon present in the San Joaquin system in
late June 2004, the Bureau exercised discretion and
did not abuse it in not counting water released to
comply with the Vernalis flow standard toward the
(b)(2) account. Even though the Bureau’s rationale
was not clearly articulated in the record, a court
should “uphold a decision of less than ideal clarity
if the agency’s path may reasonably be discerned.”
[Nat’l Ass’n of ] Home Builders [v. Defenders of
Wildlife, 551 U.S. 644, 658 (2007)].
Id. at 1217.
STANDARD OF REVIEW
We review de novo a district court’s grant of summary
judgment. Nolan v. Heald College, 551 F.3d 1148, 1153 (9th
Cir. 2009). The district court’s interpretation and application
of federal statutes are also reviewed de novo, as is its determi-
nation on the issue of standing. Levine v. Vilsack, 587 F.3d
986, 991 (9th Cir. 2009).
Because the CVPIA contains no provision for judicial
review, the Administrative Procedure Act (“APA”) governs
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2309
the review of Interior’s challenged actions in this case. 5
U.S.C. §§ 701-06; see also United States v. Bean, 537 U.S.
71, 77 (2002) (“[I]n the absence of a statutorily defined stan-
dard of review for [an agency’s] action under [a federal stat-
ute], the APA supplies the applicable standard.”). Under the
APA, an administrative action may be set aside only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). “We will sus-
tain an agency action if the agency has articulated a rational
connection between the facts found and the conclusions
made.” Pac. Coast Fed’n of Fishermen’s Ass’ns v. U. S.
Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir. 2005)
(citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983)). Although a decision may
be upheld if the agency’s reasoning may be reasonably
inferred, it is impermissible to “infer an agency’s reasoning
from mere silence.” Id. at 1091 (quoting Beno v. Shalala, 30
F.3d 1057, 1073-74 (9th Cir. 1994)). Reversal of the agency
action is appropriate when “the agency has relied on factors
which Congress has not intended it to consider, entirely failed
to consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Id. at 1090 (quoting Motor Vehicle Mfrs. Ass’n,
463 U.S. at 43).
ANALYSIS
A. Standing
As delineated by Appellants in their Opening Brief, the
“issue presented for review” herein is:
Whether Interior’s method of accounting for Cen-
tral Valley Project (“CVP”) yield dedicated and
managed under section 3406(b)(2) of the CVPIA
during June, 2004, is arbitrary, capricious, an abuse
2310 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
of discretion, or otherwise not in accordance with
law because it excluded water dedicated and man-
aged to benefit fishery resources and habitat pursu-
ant to numerical Delta outflow and San Joaquin
River flow objectives set forth in the 1995 Water
Quality Control Plan (“1995 WQCP”) against the
800,000 acre-feet limit imposed by Congress.
Because the Federal Appellees have renewed their challenge
of the Water Agencies’ standing to raise this issue, we ini-
tially turn to that jurisdictional requirement.
Where, as here, a plaintiff seeks to challenge a federal
agency’s action under the APA, it must satisfy both the con-
stitutional elements for standing under Article III as well as
the statutory requirements for “standing under the APA.” See
Public Citizen v. Dep’t of Transp., 316 F.3d 1002, 1019-20
(9th Cir. 2003), rev’d on other grounds, 541 U.S. 752 (2004);
Fair v. EPA, 795 F.2d 851, 853-54 (9th Cir. 1986).
[1] To establish Article III standing: (1) a “plaintiff must
have suffered an injury in fact — an invasion of a legally pro-
tected interest which is (a) concrete and particularized, . . .
and (b) actual or imminent, not conjectural or hypothetical”;
(2) “there must be a causal connection between the injury and
the conduct complained of — the injury has to be fairly . . .
trace[able] to the challenged action of the defendant, and not
. . . the result [of] the independent action of some third party
not before the court”; and (3) “it must be likely, as opposed
to merely speculative, that the injury will be redressed by a
favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992) (internal citations and quotation marks
omitted); see also Salazar, 638 F.3d at 1169. The burden of
establishing the elements of standing falls upon the party
asserting federal jurisdiction. Lujan, 504 U.S. at 561. The
Water Agencies have Article III standing to challenge the
accounting methods employed by Interior with respect to the
allocation of (b)(2) water resources in 2004 because Interior’s
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2311
accounting decision arguably resulted in reduced water deliv-
eries to them.
To establish its injury in fact, Westland claims that it has
a beneficial interest in water stored and delivered by the CVP.24
As stated in Westlands Water Dist. I:
Westlands entered into a contract with the Bureau
for water from the San Luis Unit of the CVP, which
diverts water from the Sacramento-San Joaquin
River Delta via the Delta-Mendota Canal. Westlands
is the largest contractor for water from the San Luis
Unit, Firebaugh Canal Co. v. United States, 203
F.3d 568, 572 (9th Cir. 2000), with a contractual
entitlement to purchase 900,000 acre feet of water
annually, O’Neill v. United States, 50 F.3d 677, 680
(9th Cir. 1995).
337 F.3d at 1097. The contract between Westlands and the
Bureau recognizes that:
There may occur at times during any year a shortage
in the quantity of water available for furnishing to
the District through and by means of the Project . . . .
In any year in which there may occur a shortage
from any cause, the United States reserves the right
to apportion the available water supply among the
District and others entitled under the then existing
contracts to receive water from the San Luis Unit
....
24
As noted in O’Neill, 50 F.3d at 680:
In 1963, the United States entered into a long-term water service
contract with Westlands Water District pursuant to federal recla-
mation statutes. Under this contract, the United States agreed to
construct the San Luis Unit of the Federal Central Valley Project
(“CVP”) in part to furnish water to the Westlands Water District.
2312 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Id. at 1097-98. We have held that “an unavailability of water
resulting from the mandates of valid legislation constitutes a
shortage by reason of ‘any other causes.’ ” Id. at 1101 (citing
O’Neill, 50 F.3d at 684).
[2] Westlands presented undisputed evidence that, for most
of the 2004 water year, allocations of CVP yield to agricul-
tural service contractors south of the Delta (which would
include the Water Agencies here) were at 65% of contracted
amounts. In response to that shortfall, Westlands had to pur-
chase alternative supplies and its landowner customers had to
pump groundwater.25 This court has recognized that “the loss
of affordable irrigation water for . . . agricultural lands” is an
injury in fact, Laub v. U.S. Dep’t of Interior, 342 F.3d 1080,
1086 (9th Cir. 2003), and that the adverse consequences flow-
ing from a reduction in water delivery are “concrete and par-
ticularized” and “actual or imminent.” Salazar, 638 F.3d at
1169-70.
[3] The Water Agencies also contend that they face the
threat of future injury because Interior claims discretion to
refrain from counting prospective releases utilizing CVP yield
(that are required by the 1995 WQCP or the ESA) against the
(b)(2) account. “[T]he possibility of future injury may be suf-
ficient to confer standing on plaintiffs; threatened injury con-
stitutes ‘injury in fact.’ ” Central Delta I, 306 F.3d at 947
(citing Ecological Rights Found. v. Pac. Lumber Co., 230
F.3d 1141, 1151 (9th Cir. 2000)). The Water Agencies have
demonstrated that they face a “significant risk” that their
water allocations will be reduced in the future as a result of
the Federal Appellees’ (b)(2) accounting decisions regarding
releases pursuant to the 1995 WQCP and/or the ESA in oper-
ating the CVP. Id. at 948. Because the Water Agencies have
shown both an actual injury and a threat of future injury, we
25
Westlands indicates that, in 2004, ground-pumping and other alterna-
tive sources had to supply over 350,000 AF of water in lieu of CVP yield.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2313
conclude that the first element of Article III standing is satis-
fied.
The Federal Appellees do not specifically contest the Water
Agencies’ showing as to their injury in fact, but instead pri-
marily focus on the second factor (i.e., causation). They con-
tend that the Water Agencies have not proffered any evidence
that the CVP’s “less than demand” allocation to Westlands or
the other south-of-Delta agricultural contractors was in fact
caused by Interior’s actual accounting determinations that the
Water Agencies challenge in this lawsuit.
[4] The causation element requires that the injury be
“fairly traceable to the challenged action of the defendant”
and not “the result of the independent action of some third
party not before the court.” Tyler v. Cuomo, 236 F.3d 1124,
1132 (9th Cir. 2000). The district court, addressing the Fed-
eral Appellees’ causation argument, noted that, even though
the Water Agencies “do not specifically explain how Interi-
or’s 2004 Water Year accounting actions resulted in reduced
water deliveries,” the Federal Appellees themselves “ac-
counted for these actions as reductions from CVP yield . . . .”
SL&DM Water Auth. I, 637 F. Supp. 2d at 787-88. In chal-
lenging Appellants’ ability to demonstrate causation, Interior
attempts to characterize the district court’s observation, that
“[i]f this reduction of CVP annual yield did not cause losses
to CVP contractors, Federal Defendants have not explained
why,” id. at 788, as an improper attempt to shift the burden
on the issue of standing. As noted at oral argument, however,
the allocation of CVP water is a zero-sum game. Thus, if
Project yield is used for one purpose, it reduces the available
water for other purposes. The conclusion that an unexpected
and sizable reduction in available CVP yield resulted in
decreased water deliveries to CVP contractors is a natural and
plausible one. The CVPIA specifically provides that “[i]f the
quantity of water dedicated under this paragraph, or any por-
tion thereof, is not needed for the purposes of this section,
based on a finding by the Secretary, the Secretary is autho-
2314 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
rized to make such water available for other project pur-
poses.” CVPIA, § 3406(b)(2)(D), 106 Stat. at 4716. Had
Interior accounted for the 9,000 AF in question as water used
in service of section 3406(b)(2)’s primary purpose, more
water would have been available for allocation to CVP con-
tractors, including those represented in this lawsuit.
[5] Causation is also demonstrated by the methodology
that the Bureau uses in its delivery of water allocations and
its agreements with agricultural contractors such as the Water
Agencies herein. Under the contracts, when there is a shortage
of water “from any cause” to deliver the full specified
amounts of CVP yield, the Bureau is permitted to apportion
the available water among all of the parties that are entitled
to the water under the existing contracts. While hydrological
conditions such as rainfall, temperature, snow pack, reservoir
levels, conveyance losses, and other factors will affect the
amount of CVP yield, actions by government bodies can also
impact the quantity of water available for distribution. As rec-
ognized in Westlands Water Dist. I, 337 F.3d at 1101, the
mandates of valid legislation can cause a shortage which
would fall within the “from any cause” provision. Thus, the
set aside of 800,000 AF in the CVPIA reduces the quantity of
available water for delivery to the south-of-Delta agricultural
contractors.26 Additionally, the Federal Defendants’ failure to
account for particular releases as being within the (b)(2)
800,000 AF would potentially allow them to circumvent the
legislative directive in the CVPIA that, “to the greatest degree
practicable, the specific quantities of yield dedicated to and
managed for fish and wildlife purposes under this title are
credited against any additional obligations of the Central Val-
26
It is not only the amount of water that is of concern but also the timing
of when the water is available. For example, as noted in Central Delta I,
306 F.3d at 944: “Water that is used for fishery habitats is released into
the Stanislaus River primarily in April, May and October. Plaintiffs con-
tend that as more water is released for fish during this period, less water
is available for releases during the drier periods of the year . . . .”
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2315
ley Project which may be imposed by the State of California
following the enactment of this title . . . .” CVPIA
§ 3406(b)(1)(C), 106 Stat. at 4715. A failure to properly
account for the releases would cause additional shortfalls of
available yield, which in turn would cause the Bureau to pro-
portionally reduce the amounts of water for delivery to agri-
cultural contractors.27
[6] Finally, Appellees also do not dispute that the relief
sought in this case — i.e., (1) a declaration that Federal
Defendants do not have discretion to refrain from counting
fish-related actions taken pursuant to the 1995 WQCP or post-
27
Interior basically conceded this point in the D-1641 promulgation pro-
cess. The Bureau had petitioned the SWRCB to be allowed “to change and
consolidate places of use and purposes of use of water under certain per-
mits of the CVP.” See D-1641 at 115-30. Westlands objected to the
change arguing that it would cause injury to CVP contractors because the
Bureau would reduce the amount of water delivered under the contracts
and divert water for other purposes such as meeting the requirements of
the Federal Endangered Species Act and the CVPIA. Id. at 123. Interior
countered by asserting:
The CVP contractors, including [Westlands], are not entitled to
a fixed supply of water in every year under their contracts. [Inte-
rior] pointed out that the contracts and the provisions of the Bar-
cellos [and Wolfson, Inc. v. Westlands Water Dist., Civ. No. F-
79-106 EDP (E.D. Cal. 1993)] judgment expressly allow the
[Bureau] to reduce deliveries because of a shortage resulting
from any cause. [Interior] interprets the contract as allowing it to
reduce water deliveries to its contractors when it is required to do
so under federal laws.
....
[Interior] argues that SWRCB should approve the petitioned
changes so that in satisfying its obligations under federal law, the
[Bureau] operates consistently with its water right permits. In
effect, [Interior] is saying that it is required by federal law to
operate in a way that causes shortages of water deliveries to its
contractors, and that it will continued to do so whether or not the
SWRCB approves the petitioned changes in purpose of use.
Id. at 124-25 (footnote omitted).
2316 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
CVPIA ESA requirements toward the (b)(2) allocation, and
(2) an injunction prohibiting Federal Defendants from failing
to count such actions against the (b)(2) allocation in the future
— would redress the Water Agencies’ alleged injury. There
is, potentially, a concern about redressability and/or mootness,
because the Water Agencies are not seeking damages or any
remedy that would undo actions taken in the 2004 water year.
However, their claims fall within the “capable of repetition
yet evading review” exception to mootness. See, e.g., Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449,
462 (2007) (noting established exception to mootness where
“(1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there is
a reasonable expectation that the same complaining party will
be subject to the same action again.”) (quoting Spencer v.
Kemna, 523 U.S. 1, 17 (1998)). If, indeed, Interior has misin-
terpreted the scope of its discretion not to charge water it uses
for WQCP and/or ESA purposes against the (b)(2) account,
then, arguably, the Water Agencies would sustain a new
injury in every year such use exceeds the 800,000 AF allot-
ment or the agency incorrectly accounts for uses of the dedi-
cated (b)(2) yield and the Water Agencies receive less than
their contractual allotment. Thus, it is jurisdictionally appro-
priate to review the latter June 2004 accounting decisions.
[7] Because the Water Agencies have met the three
requirements under Lujan, they have Article III standing to
challenge the accounting methods employed by Interior for
the 2004 (b)(2) water year.
The Water Agencies also have statutory standing under the
APA. Section 10(a) of the APA provides: “A person suffering
legal wrong because of agency action, or adversely affected
or aggrieved by agency action within the meaning of a rele-
vant statute, is entitled to judicial review thereof.” 5 U.S.C.
§ 702. As to the first element, Interior’s decisions for the 2004
(b)(2) accounting year clearly are “agency actions.” As to the
second factor, in order to be “adversely affected or aggrieved”
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2317
within the meaning of a statute, “the plaintiff must establish
that the injury he complains of . . . falls within the ‘zone of
interests’ sought to be protected by the statutory provision
whose violation forms the legal basis for his complaint.”
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990). As
the district court noted, “one of the stated purposes of the
CVPIA is to ‘achieve a reasonable balance among competing
demands for the use of [CVP] water, including the require-
ments of fish and wildlife, agricultural, municipal and indus-
trial and power contractors.’ CVPIA § 3402(f).” SL&DM
Water Auth. I, 637 F. Supp. 2d at 792. Characterizing the
Water Agencies’ alleged injury as “reduced water deliveries
to agricultural, municipal, and industrial contractors,” the dis-
trict court correctly concluded that the injury fell “within the
zone of interest of the CVPIA.” Id.
B. Whether Interior Abused Its Discretion
In support of their contention that Interior’s decision not to
charge the latter June 2004 releases against the (b)(2) account
was an abuse of discretion, the Water Agencies argue that: (1)
“Section 3406(b)(2) provides Interior with limited discretion
regarding accounting of water used for WQCP purposes”; (2)
“The ‘primary purpose’ actions under section 3406(b)(2)
include all actions serving the purposes and measures autho-
rized by the CVPIA”; (3) “Allowing Interior discretion to
exclude water dedicated to WQCP or other uses from the
(b)(2) account would eviscerate the 800,000 acre-feet limit
and conflict with other CVPIA provisions”; and (4) “Until it
was faced with the 2004 accounting problem, Interior under-
stood that it was required to count the ‘non-B2 fishery
actions’ taken from June 17, 2004, through June 30, 2004,
against the 800,000 acre-feet limit of section 3406(b)(2).”
These arguments are unavailing.
First, no party or court currently contends that Interior pos-
sesses unlimited discretion regarding its accounting of the
800,000 AF of CVP yield which it manages under section
2318 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
3406(b)(2) of the CVPIA. Here, the dispute revolves around
the scope or limits of the discretion as set out in the enabling
legislation.
Initially, in 1999, the Water Agencies took the position that
the Federal Defendants had to charge all CVP yield used to
satisfy any requirements under the 1995 WQCP or ESA
against the 800,000 AF allocation. The district court agreed in
its 2001 decision. We reversed. We held that, while (b)(2)
water may be used to help meet obligations under the ESA or
water quality standards in the 1995 WQCP, “[i]f Interior were
required to deduct some or all of the water it uses for water
quality and Endangered Species Act purposes from the (b)(2)
dedication, the water needed for implementation of the
Improvement Act’s restoration mandate could be relegated to
a secondary role, or perhaps no role at all. Such a scenario
would directly conflict with Interior’s mandate to give effect
to the hierarchy of purposes established in Section
3406(b)(2).” Bay Institute, 87 Fed. Appx. at 640.
[8] Upon remand and further litigation, the district court
held that the “primary purpose” language in section
3406(b)(2) refers only to the programs specifically enumer-
ated in section 3406(b) of the CVPIA, beginning with anadro-
mous fish doubling measures. SL&DM Water Auth. I, 637 F.
Supp. 2d at 799-800. Recognizing the potential for overlaps
between actions taken pursuant to a section (b)(2) primary
purpose program and those under the 1995 WQCP and/or the
ESA, the district court concluded that CVP yield used to meet
WQCP and/or ESA requirements had to be counted against
the 800,000 AF limits only when they “predominantly” con-
tributed as well to one of the specified (b)(2) primary purpose
measures. Id. at 802. That interpretation by the district court
is consistent with the statutory language and the prior deci-
sions of this court.28 The district court drew an appropriate
28
In lieu of the rule articulated by the district court, the Water Agencies
offer the following alternative:
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2319
distinction between actions taken under the WQCP and/or
ESA generally (which, as the district court acknowledged,
could contribute to “primary purpose” objectives) and actions
under the WQCP and/or ESA that “predominantly contrib-
ute[ ] to one of the primary purpose programs.’ ”29 Id.
If CVP water dedicated and managed to comply with an action
required by a water quality central plan or imposed under the
ESA also serves the fish, wildlife, and habitat restoration pur-
poses and measures authorized by CVPIA, then such CVP water
must be credited toward the 800,000 acre-feet (b)(2) limit; how-
ever, if CVP water dedicated and managed to comply with an
action required by a water quality control plan or imposed under
the ESA does not serve such a fish, wildlife, or habitat restoration
purpose, then Interior has discretion not to credit towards the
800,000 acre-feet (b)(2) limit the use of such CVP water.
See Appellants’ Opening Brief at 36. There are at least three problems
with the Water Agencies’ proposed rule. First, it is not reasonable to con-
strue the CVPIA as requiring that all uses of CVP water that are generally
intended to benefit fish and wildlife must be deemed to be (b)(2) primary
purpose actions. Certainly with respect to “water quality control plan”
requirements, such a construction would have the practical effect of nulli-
fying Interior’s discretion to effectuate the CVPIA’s hierarchy of pur-
poses. Second, although the 1995 WQCP sets forth beneficial uses for
water including municipal and industrial, agricultural, and fish and wild-
life uses, Appellants have not offered any examples of releases of water
under the 1995 WQCP — and none come to mind — that would not pro-
vide at least some minimal benefit for fish or wildlife or habitat. It would
be absurd to suggest that Congress intended that any and all releases of
CVP water to improve water quality for municipal, industrial, agricultural
purposes must be charged against the (b)(2) account whenever it has an
incidental effect of benefitting some species of fish or wildlife. Third,
Appellants’ current position is essentially the same as the one which we
previously rejected in Bay Institute, 87 Fed. Appx. at 639-40.
29
The dissent disagrees with our approval of the “predominantly con-
tributes” standard, believing that the criterion “sets too high a bar and
leaves too much discretion in the hands of Interior in how to charge the
other water that does not meet this high bar.” It indicates that “[t]he part
of this test that I find troubling is that water allocation must count as sec-
tion (b)(2) water only if it ‘predominantly contributes to one of the pri-
mary purpose programs.’ Otherwise, Interior could choose to count it, or
not count it, at its whim.”
2320 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
[9] Second, the Water Agencies’ contention that “the ‘pri-
mary purpose’ actions under section 3406(b)(2) include all
The dissent misconceives the context of the standard’s application. The
CVPIA provides that Interior is to ensure that “to the greatest degree prac-
ticable, the specific quantities of yield dedicated to and managed for fish
and wildlife purposes under this title are credited against any additional
obligations of the Central Valley Project . . . .” See section 3406(b)(1)(C),
106 Stat. at 4715. Thus, normally, Interior can and will credit against the
(b)(2) account CVP yield expended for beneficial fish, wildlife or habitat
restoration purposes pursuant to the 1995 WQCP or the ESA. However,
where the situation arises that there is an insufficient remaining amount of
dedicated (b)(2) yield or other conflict between water usage for
WQCP/ESA purposes and for specified (b)(2) primary purpose programs,
“Interior retains discretion not to count other secondary actions, so long
as doing so is necessary to give effect to the hierarchy of purposes.”
SL&DM Water Auth. I, 637 F. Supp. 2d at 802 (emphasis added). Thus,
the dissent’s fear that Interior could choose to count, or not count, water
used for a (b)(2) primary purpose program “at its whim” is unfounded.
We recognize that the “predominantly contributes” standard allows
Interior a greater degree of discretion than the dissent’s alternative crite-
rion of “effectuat[ing] the primary purpose in a consequential and non-
incidental manner.” However, there is nothing in the language of the
CVPIA to suggest that Congress desired Interior’s discretion on this mat-
ter to be more limited. To the contrary, the CVPIA specifically leaves it
to the Secretary of the Interior to “dedicate and manage” the 800,000 AF
of (b)(2) water (see section 3406(b)(2), 106 Stat. at 4715), and, if the Sec-
retary finds that there is a portion of that yield which is not needed for pur-
poses of section 3406, the Secretary is “authorized” (not ordered) to make
such water available for other project purposes (see section 3406(b)(2)(D),
106 Stat. at 4716).
Moreover, in light of the fact that water releases often serve multiple
purposes (especially regarding salinity control), it is unclear how exactly
the dissent’s “consequential and non-incidental” criterion would be
applied consistent with our prior decision in Bay Institute and in such a
way that it removes the excess (or “too much”) discretion from the agency
while leaving just the right amount of discretion behind. We have already
held that it would be error to conclude “that Interior lacks discretion to
refrain from crediting the amount of Project yield actually used for any
(b)(2) purpose against the 800,000 acre feet of Project yield.” Bay Insti-
tute, 87 Fed. Appx. at 639.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2321
actions serving the purposes and measures authorized by the
CVPIA” is both vague and inconsistent with the statute and
our prior ruling. Section 3406(b)(2) states that the Secretary
of the Interior is to “dedicate and manage annually eight hun-
dred thousand acre-feet of Central Valley Project yield for the
primary purpose of implementing the fish, wildlife, and habi-
tat restoration purposes and measures authorized by this title
. . . .” The Water Agencies’ position omits the statutory lan-
guage that primary purpose actions (to which the 800,000 AF
are to be dedicated) are limited to those which “implement[ ]
the fish, wildlife, and habitat restoration purposes and mea-
sures” in the CVPIA. Thus, the Appellants’ effort to untether
the concept of the (b)(2) “primary purpose” from fish, wild-
life, and habitat restoration measures actually delineated in
the CVPIA is incorrect. Further, section 3406(b)(2) provides
that after implementing the primary purpose, the remainder of
the 800,000 AF can also be used “to assist the state of Califor-
nia in its efforts to protect the waters of the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary; and to help to
meet such obligations as may be legally imposed upon the
Central Valley Project under State or Federal law . . . includ-
ing but not limited to additional obligations under the federal
Endangered Species Act.” The distinction in the statute itself
between the primary restorative purpose (on the one hand)
and those of water protection and meeting other legal obliga-
tions such as the ESA (on the other) clearly demonstrates that
an action taken to meet water quality criteria and/or ESA
requirements does not, by itself, fall within the category of a
(b)(2) primary purpose. This is precisely the point we previ-
ously made in Bay Institute, 87 Fed. Appx. at 639-40.
[10] Third, we also again reject the Water Agencies’ argu-
ment that “allowing Interior discretion to exclude water dedi-
cated to WQCP or other uses from the (b)(2) account would
eviscerate the 800,000 acre-feet limit and conflict with other
CVPIA provisions.” We have already held that “[i]f Interior
were required to deduct some or all the water it uses for water
quality and Endangered Species Act purposes from the (b)(2)
2322 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
dedication, the water needed for implementation of the
Improvement Act’s restoration mandate could be relegated to
a secondary role, or perhaps no role at all.” Id. at 640. Appel-
lants cite to language in section 3406(b)(1)(C) of the CVPIA
which requires that:
The Secretary shall cooperate with the State of Cali-
fornia to ensure that, to the greatest degree practica-
ble, the specific quantities of yield dedicated to and
managed for fish and wildlife purposes under this
title are credited against any additional obligations of
the Central Valley Project which may be imposed by
the State of California following enactment of this
title, including but not limited to increased flow and
reduced export obligations which may be imposed
by the California State Water Resources Control
Board in implementing San Francisco
Bay/Sacramento-San Joaquin Delta Estuary stan-
dards pursuant to the review ordered by the Califor-
nia Court of Appeals in United States v. State Water
Resources Control Board, 182 Cal.App.3d 82
(1986), and that, to the greatest degree practicable,
the programs and plans required by this title are
developed and implemented in a way that avoids
inconsistent or duplicative obligations from being
imposed upon Central Valley Project water and
power contractors.
106 Stat. at 4715. Clearly, section 3406(b)(1)(C) does recog-
nize that portions of the 800,000 AF utilized for (b)(2) pur-
poses (including increased flows and reduced exports) could
overlap with post-1992 water quality control measures
imposed by California (such as the later-enacted 1995
WQCP). However, that provision does not particularly sup-
port the Water Agencies’ case here. In the face of such over-
lap, the statute does not require any automatic or compulsory
“one-for-one” deduction from the 800,000 AF (b)(2) account.
Rather, the Secretary of the Interior is to “cooperate” with the
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2323
State of California “to ensure that, to the greatest degree
practicable,” the specific quantities of CVP yield used for fish
and wildlife purposes designated in the CVPIA are “credited”
against the additional obligations; and that, “to the greatest
degree practicable,” programs that are developed and imple-
mented avoid imposing “inconsistent or duplicative obliga-
tions” on CVP contractors. The “to the greatest degree
practicable” language indicates that any crediting against the
dedicated 800,000 AF of CVP yield stemming from the over-
lap between actions taken for the primary (b)(2) purpose and
actions required by post-1992 water quality and ESA mea-
sures would be left to Interior’s expertise and discretion. Cf.
Central Delta II, 452 F.3d at 1027 (“It is equally clear that the
Bureau’s is an extremely difficult task: to operate the coun-
try’s largest federal water management project in a manner so
as to meet the Bureau’s many obligations. Recognizing this
difficulty, Congress granted the Bureau considerable discre-
tion in determining how to meet those obligations.”).
Fourth, Appellants’ argument (that “until it was faced with
the 2004 accounting problem, Interior understood that it was
required to count the ‘non-B2 fishery actions’ taken from
June 17, 2004, through June 30, 2004, against the 800,000
acre-feet limit of section 3406(b)(2)”) actually raises two
issues: (1) whether the Bureau’s prior guidelines and circu-
lated notices mandated that the latter June 2004 releases be
classified as primary purpose (b)(2) actions; and (2) whether,
even if those guidelines and/or notices were not controlling,
the record below fails to show any rational connection
between the facts before the Bureau and its decision not to
treat the latter June 2004 releases as predominantly
undertaken for a (b)(2) primary purpose.
Initially, the Appellants rely on the 2003 Guidance Memo.
They specifically point to the language therein which states:
[A]ctions taken pursuant to the 1995 Water Quality
Control Plan and State Water Resources Control
2324 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Board Decision D-1641 (“the 1995 WQCP”) involve
the dedication and management of Central Valley
Project yield for long-term fishery beneficial use and
protection. Such actions are not taken to help meet
agricultural or municipal and industrial water quality
standards that are set forth in the 1995 WQCP. Most
of the fishery beneficial uses and objectives under
the 1995 WQCP and in Reclamation’s water rights
permits help fulfill the fish, wildlife, and habitat res-
toration purposes and measures authorized by Sec-
tion 3406(b). Consistent with the June 3, 2003 Ninth
Circuit decision, much of the (b)(2) water that is
dedicated and managed annually to help meet fishery
beneficial use and protection objectives of the 1995
WQCP serves Section 3406(b)(2)’s “primary pur-
pose” of fish, wildlife, and habitat restoration.
The 2003 Guidance Memo’s characterization of the 1995
WQCP and its interpretation of the “primary purpose” lan-
guage in the CVPIA are not controlling on this court. See
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)
(“[I]nterpretations contained in policy statements, agency
manuals, and enforcement guidelines, all of which lack the
force of law — do not warrant Chevron-style deference. See,
e.g., Reno v. Koray, 515 U.S. 50, 61 (1995) (internal agency
guideline, which is not ‘subject to the rigors of the Adminis-
trative Procedure Act, including public notice and comment,’
entitled only to ‘some deference’ (internal quotation marks
omitted)) . . . . Instead, interpretations contained in formats
such as opinion letters are ‘entitled to respect’ under our deci-
sion in Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944),
but only to the extent that those interpretations have the
‘power to persuade,’ ibid.”); accord League of Wilderness
Defenders/Blue Mts. Biodiversity Project v. Forsgren, 309
F.3d 1181, 1189 (9th Cir. 2002).
The 2003 Guidance Memo errs when its asserts that “ac-
tions taken pursuant to the 1995 Water Quality Control Plan
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2325
and State Water Resources Control Board Decision D-1641
. . . . are not taken to help meet agricultural or municipal and
industrial water quality standards that are set forth in the 1995
WQCP.” For example, the prevention of excessive salinity
intrusion is a water quality objective for all three categories
of “municipal and industrial,” “agricultural,” and “fish and
wildlife” beneficial uses. See 1995 WQCP at 14. The 1995
WQCP specifically recognized that “[t]he water supply-
related objectives include those for Delta outflow, river flows,
export limits, the Delta Cross Channel gates, and salinity con-
trol for the protection of municipal and industrial supply, agri-
cultural supply (excluding salinity objectives for protection of
southern Delta agriculture . . .), and fish and wildlife. Id. at
27. It further noted regarding Southern Delta agricultural
salinity that:
Elevated salinity in the southern Delta is caused
by low flows, salts imported in irrigation water by
the State and federal water projects, and discharges
of land-derived salts, primarily from agricultural
drainage. Implementation of the objectives will be
accomplished through the release of adequate flows
to the San Joaquin River and control of saline agri-
cultural drainage to the San Joaquin River and its
tributaries . . . .
This plan’s objectives for flows in the San Joaquin
River at Vernalis are expected to contribute to
achieving the salinity objectives in the southern
Delta. Presently, the [Bureau] is responsible for
meeting Vernalis salinity objectives through the
release of water from the New Melones Reservoir, as
required under Water Right Decision 1422. Addi-
tional releases from other reservoirs for fish and
wildlife protection in the San Joaquin River tribu-
taries may be required through ongoing [Federal
Energy Regulatory Commission] proceedings.
2326 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Id. at 29. Likewise, the water quality objectives incorporated
in Table 3 of the 1995 WQCP for the reasonable protection
of fish and wildlife also provide protection for some non-
restorative beneficial uses such as navigation (i.e., “uses of
water for shipping, travel, or other transportation by private,
military or commercial vessels”) and commercial and sport
fishing. Id. at 12, 15.
Further, as we have explained, the fact that certain water
releases were not taken to help meet agricultural or municipal
and industrial standards under the 1995 WQCP does not mean
that they must necessarily be treated as (b)(2) primary pur-
pose actions. Though it was not entirely evident at the time
the 2003 Guidance Memo was issued, it became clear in the
course of the 2004 (b)(2) accounting year from our revised
decision in Bay Institute that the (b)(2) “primary purpose” is
narrower than the 2003 Guidance Memo suggests. It consists
not of fish, wildlife, and habitat restoration generally, but
rather, only of those restoration measures which are specifi-
cally enumerated in section 3406(b)(2) of the CVPIA. See 87
Fed. Appx. at 639 (“Section 3406(b)(2) provides that the ‘pri-
mary purpose’ to which the 800,000 acre feet should be dedi-
cated is the implementation of ‘fish, wildlife, and habitat
restoration purposes authorized by this title.’ ”).
Also, the USFWS recognized that the 2003 Guidance
Memo was inconsistent with our view of the amount of dis-
cretion Interior enjoys under the CVPIA regarding the alloca-
tion of (b)(2) water. A USFWS document labeled “CVPIA
§ 3406(b)(2) Background,” dated April 21, 2004, and bearing
the notation “For DOI (b)(2) Discussion Purposes Only,”
included the following observation:
April 2004 [the Bureau] and USFWS met to resolve
inconsistencies between January 2004 Appellate
Court ruling and Interior’s December 2003 Guidance
Memo. Inconsistencies identified by Service staff
and DOI Solicitor’s staff include:
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2327
....
3. The Guidance Memo does not give effect to hier-
archy of purposes as mandated by the Ninth Circuit
Court and established in CVPIA.
[11] Finally, as the 2003 Guidance Memo indicates, “most
of” (but not all of) “the fishery beneficial uses and objectives
under the 1995 WQCP” also “help fulfill the fish, wildlife,
and habitat restoration purposes and measures authorized by
Section 3406(b).” It also states that “much of” (but not all of)
“the (b)(2) water that is . . . [used] to help meet fishery benefi-
cial uses and protection objectives of the 1995 WQCP serves
section 3406(b)(2)’s ‘primary purposes’. . . .” Thus, even
under the 2003 Guidance Memo, there can be releases made
for fishery beneficial objectives under the 1995 WQCP which
will not serve section 3406(b)(2)’s primary purpose or be
authorized by section 3406(b). Hence, the 2003 Guidance
Memo, by itself, does not necessarily require any particular
accounting treatment of the latter June 2004 releases.
The Appellants also refer to a November 22, 2004 joint let-
ter (“2004 Joint Letter”) from the Bureau’s Regional Director
and the Manager of the California- Nevada Office of the
USFWS to the California Departments of Water Resources
and Fish and Game. In particular, they cite to the following
language in the 2004 Joint Letter:
There exists some confusion concerning whether
1995 WQCP actions must be credited against Interi-
or’s (b)(2) obligation. Some interested groups have
observed that Interior has the discretion to count, or
not to count, CVP water used for water quality con-
trol actions against the 800,000 acre-feet. The 1995
WQCP prescribes numerous actions that were devel-
oped in 1994 by Interior, working in consultation
with the state, to help restore Delta fisheries, includ-
ing anadromous fish. In fact, these fishery actions
2328 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
were included in the 1995 WQCP at the request of
Interior and other signatories to the Bay-Delta
Accord. Counting CVP water used for the 1995
WQCP fishery actions, which further the CVPIA’s
primary restoration purposes, toward Interior’s (b)(2)
obligation is consistent with the priority of uses pre-
scribed by the Act.
However, that language fails to support Appellants’ argu-
ments. The 2004 Joint Letter does not reach any conclusion
whether any or all 1995 WQCP actions must be credited
against the 800,000 AF (b)(2) account.30 There is an ambigu-
ity in the last sentence of the quote. It arises from whether the
qualifying clause “which further the CVPIA’s primary resto-
ration purposes” is meant to: (1) denote that all “CVP water
used for 1995 WQCP fishery actions” furthers the CVPIA’s
primary restoration purposes, or (2) denote that “counting
CVP water used for 1995 WQCP fishery actions” (when the
water used actually furthers the CVPIA’s primary restoration
purposes) against Interior’s (b)(2) obligation is consistent
with the priority of uses. The latter reading is the correct one.
As noted in its 2003 Guidance Memo, Interior had already
indicated that not all CVP water used for 1995 WQCP actions
serves section 3406(b)(2)’s primary purpose.
Turning to the issue of whether the evidence and record
below establishes a rational connection between the facts
found and the agency’s action, we initially note that the cir-
cumstances surrounding the latter June releases are largely
30
The 2004 Joint Letter also indicates that “Interior implements its obli-
gations under (b)(2) as described in the [May 2003 Decision]. Under that
decision, . . . CVP water used for fish restoration actions, post-1992
Endangered Species Act actions, and 1995 Water Quality Control Plan . . .
actions are fully credited against Interior’s (b)(2) obligation.” However, as
noted above, fully crediting on an automatic basis all 1995 WQCP and
post-1992 ESA actions against the 800,000 AF (b)(2) account would be
in error and inconsistent with our decision in Bay Institute, 87 Fed. Appx.
at 639-40.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2329
undisputed. The WQCP objective of maintaining the appro-
priate salinity level at the X2 location near Port Chicago in
the Delta reacts quickly to unregulated high storm runoff. If
that objective is triggered, the Bureau may be obligated to sig-
nificantly increase releases from CVP reservoirs and reduce
water exports. In April 2004, due to high storm activity, the
Bureau modified CVP operations to meet the X2 salinity
objective by greatly augmenting releases from CVP reservoirs
and reducing pumping from the Delta.31 The Bureau
accounted for those WQCP actions as (b)(2) fishery costs.
In April 2004, the Bureau realized that its current opera-
tions would cause the 800,000 AF limit on (b)(2) yield to be
exceeded in late May or early June. Thus, at that time, the
Bureau took steps to reduce (b)(2) actions and used available
EWA assets to the extent possible. May 2004 was another
month of heavy use of (b)(2) yield due to a combination of
upstream releases, VAMP implementation, and releases from
the New Melones reservoir.
The Bureau’s subsequent actions taken in response to the
problem are disputed. Appellants asserted before the district
court, and again on this appeal, that the Bureau took a “no
action alternative” wherein it continued to implement WQCP
objectives and other measures it had theretofore categorized
as (b)(2) fishery actions (and counted against the (b)(2) dedi-
cated yield). According to Appellants, the Bureau then merely
“re-categorized and rationalized” the latter June 2004 releases
as being “non-B2 fishery actions” for purposes of the year end
31
As recognized in Appellants’ Opening Brief at page 20:
[T]he water costs of meeting the 1995 WQCP requirements relat-
ing to location of X2 during April [2004] were higher than Inte-
rior had anticipated . . . . The (b)(2) account incurred charges up
to 35,000 acre-feet in a single day, mostly for releases at CVP
facilities Nimbus and Keswick.
2330 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
accounting. The district court properly rejected that character-
ization.32
Additionally, the record demonstrates that the agency’s
decisions did not amount to an abuse of its discretion. As indi-
cated in the 2003 Guidance Memo, “if the projected and/or
realized WQCP/ESA costs for the accounting year exceed the
[initially targeted] 500,000 acre-feet of (b)(2) water, the
[USFWS] and [the Bureau] will confer to determine the best
course of action. That conference will address the most bene-
ficial use of the remaining (b)(2) water for fish and wildlife
management actions that year, whether they are for fish, wild-
life and habitat restoration purposes or to help meet WQCP
standards and ESA obligations.” Here, the USFWS and the
32
As noted in the district court’s initial decision:
Plaintiffs suggest that after Interior realized that it was going to
overshoot the 800,000 AF limit, they [sic] considered a variety of
scenarios, . . . . , but chose a “no action alternative.” In support
of this assertion, Plaintiffs reference a table describing various
alternatives at AR 1216. In that table, the “no action” alternative
is described as an approach that would “[i]mplement WQCP and
other primary purpose actions, let accounting go as accumulated,
now projected at 978 TAF.” Id. . . . It describes the benefits of
this approach as being “[e]asy to implement” and “implements all
primary purpose actions.” Id. The risks are described as: “B2
costs estimated at 978 TAF, most likely to be challenged by
stakeholders.” Id. Other alternatives are listed on this chart, but
the record does not reveal which of these, if any, Interior eventu-
ally selected for implementation. Plaintiffs suggest that, despite
not expressly choosing an alternative, Interior actually chose the
“no action alternative.” This makes some sense, given that, of the
listed options, the no action alternative’s estimate of 978 TAF of
(b)(2) costs is closest to the actual amount expended on (b)(2)
and “Non-B2 Fishery Actions.” However, both Mr. Fujitani and
Mr. Guinee take issue with the assertion that Interior decided to
do nothing in response to the situation. Both state that Interior
took steps to minimize (b)(2) actions in the face of mounting
water costs. (First Guinee Decl. at ¶ 10; First Fujitani Decl. at
¶ 15.) Plaintiffs provide no evidence to the contrary.
SL&DM Water Auth. I, 637 F. Supp. 2d at 785 n.5.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2331
Bureau did meet and estimated that approximately 775,000
AF of (b)(2) water had been used by the end of May 2004.
They then prioritized the remaining 25,000 AF to particular
primary purpose (b)(2) actions such as salmon restoration and
doubling on Clear Creek.
Prior to the present dispute, the Federal Defendants had
recognized that “only meeting the WQCP and post-1992 ESA
requirements may not be sufficient to meet the anadromous
fish doubling goal and other restoration purposes and mea-
sures included in the CVPIA.” See SL&DM Water Auth. I,
637 F. Supp. 2d at 781 n.1. In May 2004, Interior was faced
with the prospect that its then-present use of the dedicated
(b)(2) yield for general WQCP and post-1992 ESA purposes
would deplete the account by June 2004. Approximately
25,000 AF was left to satisfy specific (b)(2) purposes for the
remaining four months of the 2004 accounting year. In such
circumstances, Interior did not abuse its discretion in deciding
not to charge the latter June 2004 releases (which were taken
simply to meet the Delta outflow and Vernalis flow objec-
tives) against the (b)(2) account, especially given our instruc-
tion that it was not required to deduct some or all of the water
utilized for water quality and/or ESA purposes from the
800,000 AF yield when the water is needed for the implemen-
tation of specific CVPIA restoration mandates.
[12] The Appellants counter that the Delta outflow and
Vernalis flow standards were placed in the 1995 WQCP spe-
cifically to protect fish and wildlife beneficial uses. However,
as noted previously: (1) not every measure taken to protect
some species of fish or wildlife automatically becomes a pri-
mary purpose under (b)(2); (2) Interior is not required to
deduct some or all of the water it uses for water quality or
ESA purposes from the (b)(2) 800,000 AF account; and (3)
Interior has discretion to refrain from crediting Project yield
actually used for some (b)(2) purpose when doing so will help
effectuate the hierarchy of purposes established in Section
3406(b)(2). Here, the evidence did not demonstrate that the
2332 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
latter June 2004 releases were actually made to implement
any specifically designated primary purpose measure (i.e. one
that fell within CVPIA § 3406(b)(1), (4), (5), (8), (9), (12),
(18) or (19)).33 That was especially the case where: (1) the
USFWS stated that it did not recommend that the latter June
releases be made to effectuate primary fish restoration pur-
poses, and (2) there apparently were no appreciable amount
of juvenile salmon in the impacted waterways which could
have benefitted from such increased releases.34 Thus, where
33
The fact that the latter June 2004 releases were not made for a specific
(b)(2) primary purpose was established in an exchange at the August 18,
2008 hearing before the district court. When asked by the court to identify
the specific justifications for those water actions, Charles R. Shockey
(counsel for the Federal Defendants) stated that:
[T]he Nimbus releases into the American River [were made] . . . .
to meet the Delta outflow requirements under the water control
— Water Quality Control Plan . . . . [I]t was not action taken for
any specific fishery restoration purpose[.] . . .
[The other] release was made to assist in meeting the Vernalis
flow requirements, again, under the Water Quality Control Plan,
to ensure that there would be sufficient flow through that stretch
of the San Joaquin River. And this was to meet, again, the Water
Quality Control Plan requirements. . .
The purpose of this release was not to assist out migrating fish,
which apparently had already moved through the system by then.
Rather, it was to assist in meeting the salinity requirements in the
Delta. . . .
Well, earlier in the season, there had been a significant problem
with the X2 point . . . . [T]he basic purpose, is to keep the salinity
— the X2 point further downstream in the Delta.
When asked by the district court if either the Water Agencies or the Envi-
ronmental Parties had “any different interpretation or view of the purposes
of those uses,” Daniel J. O’Hanlon (counsel for the Water Agencies)
responded: “I think Mr. Shockey accurately described the quantity and
location of the releases and that they were intended to meet water quality
standards.” O’Hanlon also added that those standards were “designed to
protect fish and wildlife beneficial uses.”
34
As explained in the initial Guinee Declaration at paragraphs 12 and
13:
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2333
the 800,000 AF limit was nearly exceeded with four months
remaining in the accounting year and the Bureau and USFWS
had agreed that specific anadromous fish doubling measures
still needed to be accomplished (such as salmon restoration
and doubling on Clear Creek), Interior’s exercise of its discre-
tion to treat the latter June 2004 releases as “non-(b)(2) fish-
ery actions” was proper and entirely consistent with our prior
ruling in Bay Institute.
Appellants further cite to language from one of Interior’s
summaries that purportedly describe the latter June 2004
releases as falling within the anadromous fish doubling pur-
pose:
June 2004 — UA — Interior maintained instream
flow conditions with releases from CVP reservoirs to
provide suitable habitat for system migration, egg
incubation, rearing and automigration for anadro-
mous fish, including listed runs of Chinook salmon
and steelhead trout, and improve conditions for estu-
arine species by helping to meet WQCP objectives[.]
But, as correctly pointed out by Appellees, that language only
refers to the initial June 2004 actions. The summary goes on
to describe the latter June 2004 releases as follows:
— American River flows (Nimbus releases) ranged
from approximately 1,800-2,300 cfs consistent with
the base case flows. In the latter part of the month
The [USFWS] did not recommend this flow increase [i.e. the lat-
ter June 2004 increased Nimbus and New Melones releases] to
meet the primary fish, wildlife and habitat restoration purposes of
CVPIA . . . . Said another way, were it not for the WQCP, the
Service would not have recommended that [the Bureau] increase
flow releases [on June 17, 2004 in the American River or on June
26, 2004 above the baseline flows on the Stanislaus River] for
primary fish restoration purposes pursuant to CVPIA . . . .
2334 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
releases were increased to approximately 2,500 cfs
to meet Delta demands.
— Stanislaus River flows . . . were augmented with
(b)(2) assets to increase flows in the latter half of
June to approximately 1,200 cfs compared to the
base case flows of 450 cfs in order to help meet
WQCP Vernalis flow requirements.
[13] Finally, even though there is no substantial basis for
concluding that Interior’s accounting treatment of the latter
June 2004 releases was simply an after-the-fact rationaliza-
tion, we note that the district court was forced to rely to a
large extent on after-the-fact declaration testimony and other
evidence to explain that treatment. As the district court
observed:
Although normally judicial review is confined to the
administrative record, there may be circumstances to
justify expanding the record or permitting discovery.
The broadest exception . . . is the one which permits
expansion of the record when necessary to explain
agency action. When there is “such a failure to
explain administrative action as to frustrate judicial
review,” a court may receive from the agency, either
through affidavits or testimony, “such additional
explanations of the reasons for the agency decision
as may prove necessary.” Public Power Council v.
Johnson, 674 F.2d 791, 793-94 (9th Cir. 1982)
(quoting Camp v. Pitts, 411 U.S. 138, 143 [(1973)]
(per curiam)).
SL&DM Water Auth. I, 637 F. Supp. 2d at 806 n.19. Appel-
lants do not challenge the district court’s decision to supple-
ment the administrative record, nor do they challenge any of
the declarations relied upon by the district court.35 Based on
35
Appellants do, however, correctly assert that Appellees’ briefs
improperly rely in part on declaration testimony that was stricken from
evidence by the district court. Our conclusion that Interior did not abuse
its discretion does not depend upon any of the stricken testimony.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2335
that evidence (e.g. Dr. Swanson’s testimony that the releases
could not have benefitted salmon because in late June 2004
most of the juvenile salmon were gone from the San Joaquin
River), the district court properly concluded that the disputed
Nimbus and New Melones releases did not predominantly
have the effect of benefitting anadromous fish populations.36
[14] Much work, and, possibly, this entire appeal, could
have been avoided had Interior either (1) implemented a more
coherent set of accounting procedures after it became aware
of our January 2004 amended decision, or (2) given a com-
plete explanation of its accounting for the 2004 Water Year
at some time prior to its being challenged in court. Because
we find that the explanations Interior has offered are not mere
post hoc rationalizations,37 however, its failure to give full
36
With regard to the Vernalis flow requirements, it is noted that Attach-
ment B to the Bay-Delta Accord — along with requiring the Bureau to
maintain water quality conditions sufficient to achieve the narrative fish
doubling goal — refers to the provision of flows “in accordance with the
biological opinion for Delta Smelt,” a non-anadromous fish. Thus, it is
clear that Interior reasonably concluded that the June 2004 releases were
made to benefit a variety of species of fish and other wildlife, as well as
for certain other non-(b)(2) purposes, and did not have to be charged
against the (b)(2) account in the situation presented at that time.
37
The dissent argues that Interior’s “re-categorization of the late June
2004 releases from the Nimbus and New Melones reservoirs was a purely
post-hoc rationalization by Interior” because “Interior realized too late that
it was using too much water that it believed had to be charged as section
(b)(2) water, and back-peddled in order to make its year end numbers
match.” That characterization mis-perceives the undisputed facts and the
manner in which the agency’s operations are carried out. Interior does not
set an inflexible schedule of water releases at the beginning of the
accounting year, such that one can argue that the agency realized too late
that it was using too much CVP yield that had to be charged as (b)(2)
water. Rather, the agency begins with certain forecasts and then updates
the actual hydrology and CVP operations data each month, which it then
utilizes to determine the appropriate future steps to be taken. Moreover,
the water quality control plan objectives contained in the 1995 WQCP and
the D-1641 (such as salinity levels) are sensitive to actual hydrological
conditions that cannot be fully anticipated or forecasted.
2336 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
contemporaneous explanations does not amount to an abuse
of discretion or otherwise invalidate its actions.
CONCLUSION
[15] The district court properly found that the Appellants
had standing to challenge Interior’s decisions regarding its
treatment of the latter June 2004 releases and that Interior’s
accounting with respect to those releases was not “arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.” 5 U.S.C. § 706(2)(A). The judgment of the
district court is therefore AFFIRMED.
M. SMITH, Circuit Judge, concurring in part and dissenting
in part:
While I join in the majority’s conclusion on standing as
outlined in Part A of the Analysis section, I respectfully, but
strongly, dissent from the other parts of the majority opinion.
In March and April of 2004, storms and high runoffs required unantici-
pated increases in the use of (b)(2) water to meet the X2 water quality
objectives. Thereafter, Interior’s decision (not to count the 9,000 AF
released from the Nimbus and New Melones reservoirs in late June 2004
to meet the WQCP Delta outflow and Vernalis flow requirements when
there were negligible salmon in their associated rivers, but instead to save
and dedicate that CVP yield for particular primary (b)(2) purposes such as
salmon restoration and doubling in Clear Creek) was not a post hoc ratio-
nalization. Rather it was an exercise of the precise discretion which we
recognized the agency had under the CVPIA “to refrain from crediting the
amount of Project yield actually used for any (b)(2) purposes against the
designated 800,000 acre feet . . . .” Bay Institute, 87 Fed. Appx. at 639.
Indeed, the dissent virtually concedes this point in its observation that “if
the water release were to occur at the end of the salmon run, and the salin-
ity adjustment was not crucial to survival of the few salmon still there, but
would still have marginally beneficial effect, Interior should have discre-
tion to not count this release as section (b)(2) water.”
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2337
The truth is that the Department of the Interior’s (Interior) re-
categorization of the late June 2004 releases from the Nimbus
and New Melones reservoirs was a purely post-hoc rational-
ization by Interior, when it realized that it would run out of
section 3406(b)(2) water to use for the year. Such a post-hoc
rationalization flies in the face of what the Central Valley
Project Improvement Act (CVPIA or Act), Pub. L. No. 102-
575, 106 Stat. 4600 (1992), mandates, as well as the require-
ments of controlling case law. Moreover, affirming the district
court’s “predominantly contributes to a primary purpose”
standard, as the majority does, will inevitably lead to an evis-
ceration of the politically delicate, negotiated limits on certain
water uses clearly envisioned by the Congress when it enacted
the CVPIA. I would reverse and remand to the district court.
“A man from the West will fight over three things: water,
women and gold, usually in that order.” This quote from the
late Senator Barry Goldwater illustrates a conflict that has
been present in California since its early days. In California,
water is life, and its absence is death, at least economically.
Central Valley Project (CVP) water in particular is a precious
resource for many competing interests. No one denies that
protecting the fish, wildlife, and environment of the Central
Valley, including Chinook salmon, Delta smelt, and other
anadromous fish, is extremely important, and Congress has so
found. But those are not the only interests at stake, which is
what set up the Congressional fight that led to the limits
included in the CVPIA. On the other side of the political
divide stands another interest of enormous importance—
protecting the livelihood of the farmers and workers who have
harvested crops in the Central Valley for decades, and the
legions of communities that depend on them.
The state of California produces more than half of the
fruits, nuts, and vegetables grown in the United States, includ-
ing many crops that are exclusively grown in California.1 The
1
California Department of Food and Agriculture, California Agricultural
Resources Directory 2010–11 at 17, http://www.cdfa.ca.gov/
Statistics/PDFs/ResourceDirectory_2010-2011.pdf.
2338 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
San Joaquin Valley, known as “America’s fruit basket,” is
home to a 20 billion dollar crop industry and produces more
in farm sales than any other individual state in the country.2
Nine of the ten top agricultural production counties in the
United States are in California.3 Six of those counties, includ-
ing Fresno, Tulare, Kern, Merced, Stanislaus, and San Joa-
quin counties, depend on CVP water for their crops.4
The de facto motto of this agriculture-dependant region of
the nation is “No water, no work.” The economic devastation
to the Central Valley that has resulted from the type of water
conflict represented by this lawsuit is pervasive. One need
only take a drive down Highway 99, or Interstate 5, from Sac-
ramento down to Bakersfield to witness the profound effect
that a lack of water has had on this region. Approximately
250,000 acres of once-productive farmland lies fallow and
unproductive.5 The unemployment rates in the affected com-
munities range from 20 percent up to 40 percent. Id. Mendota,
one hard hit town, had a 38% unemployment rate in 2009, and
nearly all of those who lost their jobs were farm workers.6
The reality is that water used to satisfy one interest neces-
sarily takes water away from other interests. Thus, as has
always been true in California, allocation of water requires a
delicate balance, with potentially devastating implications.
For that reason, the Congressional negotiations that ultimately
2
Katie Paul, Dying on the Vine, Newsweek, Aug. 23, 2009, at 1, avail-
able at http://www.newsweek.com/2009/08/23/dying-on-the-vine.html.
3
California Agricultural Resources Directory at 18-19.
4
See Bureau of Reclamation, Map of Central Valley Project,
http://www.usbr.gov/projects//ImageServer?imgName=Doc_123810
4613478.pdf.
5
Valerie Richardson, It’s the Farmers vs. Fish for California Water,
The Washington Times, Aug. 20, 2009, available at
http://www.washingtontimes.com/news/2009/aug/20/its-farmers-vs-fish-
for-california-water/.
6
Dying on the Vine at 1.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2339
led to the passage of the CVPIA were lengthy, bitter, and
highly charged. However, when the negotiations concluded,
the parties had reached a compromise regarding the allocation
of certain water supplies. In my view, the guts of that hard
won political compromise are about to be rendered meaning-
less by well-intentioned colleagues, who neither represent an
affected constituency, nor have the technical expertise nor
institutional capacity, to weigh the almost-certain impact of
their ruling on those whose lives and fortunes will be devas-
tated by them. For that reason, I believe we should faithfully
adhere to the specifics of the political compromise contained
in the Act, and not undermine that compromise through legal
sophistry.
A. The History of the CVPIA
The CVPIA was passed as part of the Reclamation Projects
Authorization and Adjustment Act of 1992. Pub L. 102-575,
106 Stat. 4600. On June 20, 1991, the House passed the origi-
nal bill that would become the Act, H.R. 429. 137 Cong. Rec.
D797-01. This early version of the Act did not contain any
title pertaining to wildlife, fish, and habitat rehabilitation in
the Central Valley, including the 800,000 acre foot (AF) limi-
tation. See generally 137 Cong. Rec. H4799-01.
On April 10, 1992, the Senate, after its subcommittee meet-
ings in October of 1991, passed an amended bill, which
included among other provisions “Title XXXIV—CENTRAL
VALLEY PROJECT FISH AND WILDLIFE ACT.” 138
Cong. Rec. S5564-02. While this new addition set forth many
of the same goals as the eventual CVPIA does—namely, to
“protect, restore, and enhance fish and wildlife habitat in the
Central Valley of California”—then-section 3406 still did not
contain the explicit 800,000 AF requirement. Id. at S5596-
5601. Rather, this section called for the establishment of a
Central Valley Project Fish and Wildlife Advisory Committee
and Task Force to carry out the purposes of the title. Id. at
S5599-5600.
2340 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
On June 18, 1992, the House considered and passed a sepa-
rate bill, H.R. 5099, entitled the Central Valley Project
Improvement Act. 138 Cong. Rec. H4918-06. This bill origi-
nally aimed to designate 1.5 million AF of water to be taken
off the top of CVP water for the purposes of fish and wildlife
enhancement and mitigation. Id. at H4921. However, the ver-
sion of the bill that was being considered at this time did not
specify an amount of water that must be allocated for such
purposes. Id. at H4921. Instead, this bill stated that the Secre-
tary of the Interior will:
Develop and implement a program for the acquisi-
tion of a water supply adequate to meet the purposes
and requirements of this section. Such a program
should identify how the Secretary will secure this
water supply, utilizing the following options in order
of priority: improvements in or modifications of the
operations of the project; conservation; transfers;
conjunctive use; purchase of water; purchase and
idling of agricultural land; reductions in deliveries to
Central Valley Project contractors.
Id. at H4926.
The bill was then incorporated into H.R. 429 on June 30,
1992. Title XXXIV of the bill became titled the Central Val-
ley Reform Act and Section 3406 was titled “Fish, Wildlife
and Habitat Reformation.” 138 Cong. Rec. H5589-02, H5615.
Section 3406(b)(1) dealt with fish doubling and section
3406(b)(2) specified that the Secretary of the Interior will:
upon enactment of this Act, and after implementing
the operational changes authorized in subsection
(b)(1)(B), make available project water for the pri-
mary purpose of implementing the fish, wildlife, and
habitat restoration purposes and measures autho-
rized by this section, except that such water shall be
in addition to that required to implement subsections
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2341
(b)(6) and (b)(15)(A). This water may be assigned
immediately to supplement instream flows. The
United States Fish and Wildlife Service shall con-
duct studies and monitoring activities as may be nec-
essary to determine the effectiveness of such flows
in meeting the goal established in subsection (b)(1).
At the end of the initial five year period, the Secre-
tary shall adjust the quantity of water assigned as
necessary to meet the goal;
Id. at H5617-18 (emphasis added).
At that point, the House and Senate did not agree on the
proposed amendments. Though the 800,000 AF figure was
not part of either bill, the joint House-Senate conference com-
promise finally introduced the 800,000 AF provision. 138
Cong. Rec. H11493-01. The newly compromised bill mir-
rored the relevant language of the current Act:
upon enactment of this title dedicate and manage
annually 800,000 acre-feet of Central Valley Project
yield for the primary purpose of implementing the
fish, wildlife, and habitat restoration purposes and
measures authorized by this title; to assist the State
of California in its efforts to protect the waters of the
San Francisco Bay/Sacramento-San Joaquin Delta
Estuary; and to help to meet such obligations as may
be legally imposed upon the Central Valley Project
under state or federal law following the date of
enactment of this title, including but not limited to
additional obligations under the federal Endangered
Species Act.
138 Cong. Rec. H11572-01, H11605 (emphasis added). The
hearings revealed that this figure had been negotiated down
from the 1 million plus AF down to 800,000 AF. 138 Cong.
Rec. S17289-01, S17303.
2342 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
The legislative history noted was proceeded by years of
discussion, and illustrates that the terms of the final Act
passed in Congress—including the 800,000 AF limitation on
water to be used for “fish, wildlife, and habitat restoration
purposes” in section (b)(2)—were the carefully negotiated
results of a long political process. To give effect to Congres-
sional intent, and the plain meaning of the Act, we must tread
very carefully, so as not to allow the 800,000 AF limitation
to become meaningless. Unfortunately, the majority opinion
will, in my view, lead to that very result.
B. The District Court Standard
Section 3406(b)(2) of the CVPIA states that the Secretary
of the Interior shall:
upon enactment of this title dedicate and manage
annually eight hundred thousand acre-feet of Cen-
tral Valley Project yield for the primary purpose of
implementing the fish, wildlife, and habitat restora-
tion purposes and measures authorized by this title;
to assist the State of California in its efforts to pro-
tect the waters of the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary; and to
help to meet such obligations as may be legally
imposed upon the Central Valley Project under State
or Federal law following the date of enactment of
this title, including but not limited to additional obli-
gations under the Federal Endangered Species Act.
On its face, section (b)(2) allows 800,000 AF of CVP water
to be used “for the primary purpose of implementing the fish,
wildlife, and habitat restoration purposes and measures autho-
rized by this title.” Next, section (b)(2) allows the Interior to
“assist” the State of California in its protection efforts of the
Delta Estuary. Finally, section (b)(2) allows the Interior to
“help” to meet any other obligations under Federal or State
law, such as the Endangered Species Act.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2343
In the first ruling by the district court in this litigation, on
October 19, 2001, the court held that “Interior had ‘discretion
to annually determine how much CVP yield to devote to
WQCP or post-CVPIA ESA requirements’ but had no discre-
tion ‘whether or not to count CVP yield used for such (b)(2)
purposes’ (i.e., all such uses must be counted).” San Luis &
Delta-Mendota Water Auth. v. Interior, 236 F.R.D. 491, 494
(E.D. Cal. 2006). The court explained:
Section 3406(b)(2) unambiguously directs Interior to
“dedicate and manage annually eight hundred thou-
sand acre-feet of Central Valley Project yield for the
primary purpose of implementing the fish, wildlife,
and habitat restoration purposes and measures autho-
rized by this title.” Interior has no discretion whether
to annually provide more or less than 800 TAF of
CVP yield [ ] for (b)(2) purposes, unless it makes
certain findings under CVPIA § 3406(b)(2)(C) . . . .
Interior is also directed to annually dedicate and
manage the mandatory 800 TAF of CVP yield “to
assist the State of California in its efforts to protect
the waters of the San Francisco Bay/Sacramento-San
Joaquin Delta Estuary [ i.e., the WQCP]; and to help
to meet such obligations as may be legally imposed
upon the [CVP] under State or Federal law following
the date of enactment of this title, including but not
limited to additional obligations under the Federal
Endangered Species Act.” As a matter of law, this
language is not ambiguous—water used to meet
WQCP or post-CVPIA ESA requirements is an addi-
tional (b)(2) purpose and must be charged against
the 800 TAF (b)(2) mandate if so used.
The CVPIA is not silent on what amount of water
used for these so-called “secondary” purposes is to
be credited against the 800 TAF (b)(2) mandate.
(E.g., could all 800 TAF of (b)(2) water be used to
meet post-CVPIA-enactment ESA requirements?).
2344 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Congress mandates that exactly 800 TAF of CVP
yield [ ] be dedicated for (b)(2) purposes, whether
“primary” or “secondary.” To hold otherwise would
render the 800 TAF figure superfluous. This leaves
to Interior, the discretion to annually determine how
much CVP yield to devote to WQCP or post-CVPIA
ESA requirements. However, if it were left to Interi-
or’s “discretion” whether or not to count CVP yield
used for such (b)(2) purposes, the annual 800 TAF
cap would be illusory. The 800,000 TAF is intended
by Congress as an immutable floor and ceiling on
annual reallocation of water from CVP yield for
(b)(2) purposes. If Interior uses more than 800 TAF
for (b)(2) purposes in any year, but does not count
all CVP yield used for such purposes, it violates
CVPIA § 3406(b)(2).
Id. (internal citations omitted) (emphasis added). Thus, the
district court ruled that Interior has discretion on how to allo-
cate water within section (b)(2) purposes. For example, it
could decide to use 500,000 AF for primary purposes,
200,000 AF to assist the State of California (via WQCP), and
100,000 AF for ESA. However, Interior does not have discre-
tion to not charge, for example, the water used for WQCP as
section (b)(2) water.
On appeal, we issued a non-precedential decision on June
3, 2003 and an amended decision on January 23, 2004, Bay
Inst. of San Francisco v. United States, 66 F. App’x 734, 735
(9th Cir. 2003); Bay Inst. of San Francisco v. United States,
87 F. App’x 637 (9th Cir. 2004), reversing the district court
on this holding:
The district court erred in concluding that Interior
lacks discretion to refrain from crediting the amount
of Project yield actually used for any (b)(2) purpose
against the designated 800,000 acre feet of Project
yield. To hold otherwise would defeat the primary
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2345
purpose for which the 800,000 acre feet were
designated-fish, wildlife, and habitat restoration.
Section 3406(b)(2) provides that the “primary pur-
pose” to which the 800,000 acre feet should be dedi-
cated is the implementation of “fish, wildlife, and
habitat restoration purposes authorized by this title
. . . .” Section 3406(b)(2) also provides that the
800,000 acre feet may be used to “help” meet obliga-
tions under the Endangered Species Act and to “as-
sist” in meeting water quality standards. If Interior
were required to deduct some or all the water it uses
for water quality and Endangered Species Act pur-
poses from the (b)(2) dedication, the water needed
for implementation of the Improvement Act’s resto-
ration mandate could be relegated to a secondary
role, or perhaps no role at all. Such a scenario
would directly conflict with the Interior’s mandate to
give effect to the hierarchy of purposes established
in Section 3406(b)(2).
Bay Inst., 87 F. App’x at 637 (emphasis added). In my view,
our previous merit panel attempted to deal with a situation
such as the following: Assume, for example, a scenario where
1 million AF was needed for the water quality/outflow
requirements under WQCP every year. Thus, if Interior had
to charge this water against section (b)(2) water—regardless
of whether that water furthers a primary purpose or not—then
Interior would have none of the 800,000 AF allocation left for
the “primary purposes,” thus relegating the “primary pur-
poses” related to anadromous fish to “no role at all.” Under
our non-precedential ruling, if a water allocation is made pur-
suant to the WQCP and serves the purpose of achieving a
salinity level for agricultural purposes, but marginally, and as
a side effect also helps salmon who might find the new salin-
ity level more favorable, the water does not necessarily count
as section (b)(2) water. We placed the focus on whether water
used is “for the primary purpose of implementing the fish,
wildlife, and habitat restoration purposes and measures autho-
2346 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
rized” by section (b)(2), and rejected the concept that water
used for other non-section (b)(2) purposes—such as for
WQCP or ESA purposes—categorically must count as section
(b)(2) water.
Our prior cases do not detract from the fact that the politi-
cally negotiated 800,000 AF number was meant to be a hard
limit. In other words, Interior cannot go above it and it is not
within the Interior’s discretion to do so. However, the focus
of the inquiry on when water allocated serves a primary pur-
pose leaves open the question of how to determine if an allo-
cation of water is “for the primary purpose of implementing
the fish, wildlife, and habitat restoration purposes and mea-
sures authorized by this title.”
In answering this question, the district court applied the fol-
lowing test:
In practice, many actions taken to fulfill the fishery
beneficial uses and objectives of the WQCP and/or
actions taken to comply with the ESA may serve the
primary purpose of the CVPIA. In keeping with the
general structure of the CVPIA’s language, if the
“primary” purpose of any action taken under the
WQCP and/or the ESA is to support or effectuate a
“primary purpose” program, such action must be
counted toward the (b)(2) account. Environmental
Plaintiffs advance a helpful definition of the term
“primary,” the ordinary meaning of which is “pre-
dominant,” of “first importance,” or “principal.” See
Malat v. Riddell, 383 U.S. 569, 572 (1966). Applying
this definition, if an action taken under the WQCP
and/or the ESA predominantly contributes to one of
the primary purpose programs (e.g., fish doubling),
it must be counted toward the 800,000 AF limit. Inte-
rior retains the discretion not to count other second-
ary actions, so long as doing so is necessary to give
effect to the hierarchy of purposes.
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2347
San Luis & Delta-Mendota Water Auth. v. Interior, 637 F.
Supp. 2d 777, 802 (E.D. Cal. 2008) (emphasis added). The
part of this test that I find troubling is that water allocation
must count as section (b)(2) water only if it “predominantly
contributes to one of the primary purpose programs.” Other-
wise, Interior could choose to count it, or not count it, at its
whim. No test we approve should permit the 800,000 AF
negotiated, hard limit to be rendered meaningless, but I fear
that the district court’s “predominantly contributes” test,
which the majority blesses in its opinion, will eventually yield
exactly such a result.
First, the district court’s test seems to confuse the use of the
word “primary” in the CVPIA. As we previously have recog-
nized, section 3406(b)(2) presents a hierarchy of purposes.
Bay Inst., 87 F. App’x at 637.
Section 3406(b)(2) provides that the “primary pur-
pose” to which the 800,000 acre feet should be dedi-
cated is the implementation of “fish, wildlife, and
habitat restoration purposes authorized by this title
. . . .” Section 3406(b)(2) also provides that the
800,000 acre feet may be used to “help” meet obliga-
tions under the Endangered Species Act and to “as-
sist” in meeting water quality standards.
Id. Thus, “primary” as used in the statute most logically
applies to the hierarchy of purposes. In other words, the pri-
mary purpose—of first and of first importance—is that the
water should be used for fish, wildlife, and habitat restoration.
Next, the water may be used to meet other obligations and
water quality standards. The district court erroneously con-
fuses this hierarchy of purposes with when an action is “for
a primary purpose.” Stating that the word “primary” also has
an ordinary meaning of “predominant,” the district court
opines that an action therefore only serves a “primary pur-
pose” if it “predominantly” serves it. Bay Inst., 87 F. App’x
at 637. However, there is nothing in the Act that indicates that
2348 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
its single use of the word “primary” means that water alloca-
tion has to “primarily” be for a “primary” purpose in order for
it to count under section (b)(2). Thus, I do not find that the
district court’s test is mandated by, or consistent with, the
plain language of the Act.
Second, the district court test that a water allocation must
“predominantly contribute” to a primary purpose will likely
work to eviscerate the 800,000 AF limit. Consider the follow-
ing hypothetical: (1) Interior allocates 500,000 AF of water to
achieve a beneficial salinity under WQCP, that furthers agri-
cultural purposes and helps both anadromous and non-
anadromous fish that live in the river where the release is
made; (2) Interior allocates 500,000 AF of water under the
ESA to help a variety of animals, including both anadromous
and non-anadromous fish. There is clearly an overlap of pur-
poses with each release, and these releases go toward both
primary and non-primary section (b)(2) purposes. However,
under the “predominantly contributes” test, Interior would be
able to charge 0 AF of this water as section (b)(2) water, even
though a primary purpose is served by the releases, because
the water release contributes to several other non-section
(b)(2) purposes as well and thus, does not “predominantly”
serve a primary purpose. This would leave the Interior with
its entire 800,000 AF section (b)(2) water allocation—on top
of this 1 million AF already spent—to further aid the primary
purposes. While the water allocation at issue in this case is
9000 AF, under the majority’s standard, Interior could easily
explain away a much larger allocation of water.
This scenario may lead some on one side of the issue to
ask, “so what?” This is simply more water to help more anad-
romous fish, which can only better the environmental outlook
of the Central Valley. However, such a perspective obscures
the fact that water used in this way will necessarily subtract
from water that is allocated to the various cities and residents
of those cities that depend on the same water for their liveli-
hood and existence. In this sense, the size of the pie in a given
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2349
year is fixed. A bigger slice for one person means a smaller
slice for another. Most importantly (as already noted), adopt-
ing the standard set by the district court, and blessed by the
majority, will inevitably eviscerate the meaning of the 800,00
AF number, and change it from a hard limit to a wish list.
Certainly, Interior has some discretion on how to charge
section (b)(2) water. I do not accept the Water Agencies’
position that CVP water dedicated and managed to comply
with an action required by the WQCP that also serves the fish,
wildlife, and habitat restoration purposes in any way must be
credited toward the 800,000 AF section (b)(2) limit. This rule
draws too sharp a line, and like we found in Bay Institute,
would be too limiting on the hierarchy of purposes in section
(b)(2). Under the Act, Interior could consider how much ben-
efit there is to section (b)(2) primary purposes compared to
other benefits. For example, if a water release coincided with
a high population of salmon in the river, along with a few
other species of non-anadromous fish, and the salinity level
was crucial to ensure the survival of the salmon, then such
water must count. However, if the water release were to occur
at the end of the salmon run, and the salinity adjustment was
not crucial to survival of the few salmon still there, but would
still have a marginally beneficial effect, Interior should have
discretion to not count this release as section (b)(2) water. I
would not go so far as to say that a water allocation must
“predominantly contribute” to a primary purpose. This stan-
dard sets too high a bar, and leaves too much discretion in the
hands of Interior in how to charge the other water that does
not meet this high bar. In my view, it is sufficient if a water
release serves or effectuates the primary purpose in a conse-
quential and non-incidental manner.
C. The Late June 2004 Releases
Irrespective of the erroneous standard that the district court
set and that the majority affirms, the majority additionally
ignores the overwhelming evidence that shows that what Inte-
2350 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
rior did in accounting for the June 2004 Nimbus release (to
meet Delta outflow objectives) and New Melones release (to
meet Vernalis flow objectives) was nothing short of post-hoc
rationalization that we must find to be an abuse of discretion.
Interior itself released two telling documents on what its
policies and practices were in how to charge water released
pursuant to the 1995 WQCP. First, in a December 2003 Guid-
ance Memo, Interior stated:
[A]ctions taken pursuant to the 1995 Water Quality
Control Plan and State Water Resources Control
Board Decision D-1641 . . . involve the dedication
and management of Central Valley Project yield for
long-term fishery beneficial use and protection. Such
actions are not taken to help meet agricultural or
municipal and industrial water quality standards
that are set forth in the 1995 WQCP. Most of the
1995 WQCP . . . help fulfill the fish, wildlife, and
habitat restoration purposes and measures authorizes
by Section 3406(b). Consistent with the June 3, 2003
Ninth Circuit decision, much of the (b)(2) water that
is dedicated and managed annually to help meet
fishery beneficial use and protection objections of
the 1995 WQCP serves Section 3406(b)(2)’s “pri-
mary purpose” of fish, wildlife, and habitat restora-
tion.
Furthermore, in a November 22, 2004 joint letter from the
Regional Director and the Manager of California-Nevada
Office of the Fish and Wildlife Service stated that:
There exists some confusion concerning whether
1995 WQCP actions must be credited against Interi-
or’s (b)(2) obligation. Some interested groups have
observed that Interior has the discretion to count, or
not to count, CVP water used for water quality con-
trol actions against the 800,000 acre-feet. The 1995
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2351
WQCP prescribes numerous actions that were devel-
oped in 1994 by Interior, working in consultation
with the state, to help restore Delta fisheries, includ-
ing anadromous fish. In fact, these fishery actions
were included in the 1995 WQCP at the request of
the Interior and other signatories to the Bay-Delta
Accord. Counting CVP water used for the 1995
WQCP fishery actions, which further the CVPIA’s
primary restoration purposes, towards Interior’s
(b)(2) obligation is consistent with the priority of
uses prescribed by the Act.
In addition to these Interior documents, the WQCP itself
sheds light on why some of its objectives were instituted in
the first place. “The objectives for the protection of fish and
wildlife beneficial uses are established for the following
parameters: dissolved oxygen, salinity (expressed as electrical
conductivity), Delta outflow, river flows, export limits, and
Delta Cross Channel gate operation.” WQCP at 14. The Delta
outflow objectives have been included “for the protection of
estuarine habitat for anadromous fishes and other estuarine-
dependent species.” Id. at 15. The purpose of the Vernalis
flow requirement is “to provide attraction and transport flows
and suitable habitat for various life stages of aquatic organ-
isms, including Delta smelt and chinook salmon.” Id.
These two documents, along with the 1995 WQCP objec-
tives, unequivocally show the reasoning behind why Interior
in April 2004 charged water designed to implement the
VAMP, to meet Delta outflow objectives, and to meet Ver-
nalis flow objectives to the section (b)(2) account. They show
the reasoning behind why Interior also charged water to meet
the WQCP requirement as to the location of X2 as section
(b)(2) water. Similarly, in May 2004, they explain why Inte-
rior charged to the section (b)(2) account water that was used
for upstream releases, VAMP implementation, and releases
from the New Melones Reservoir. The charge of these water
2352 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
allocations are wholly consistent to the Interior’s own docu-
ments and the WQCP objectives.
However, subsequent to these releases, the daily accounting
showed that by June 1, 2004, with still four months remaining
in the 2004 section (b)(2) accounting year, Interior had used
up all but 25,000 AF of its section (b)(2) water. It was not
until Interior realized that it was running out of section (b)(2)
water allocation that it changed its mind about how to charge
similarly allocated water in the late June 2004 releases. The
Nimbus release, which aimed to maintain Delta outflow
objectives, was not charged to the section (b)(2) account even
though water that was released to meet this objective in April
2004 was so charged. Likewise, the New Melones release,
which aimed to maintain the Vernalis flow release, was not
charged to the section (b)(2) account even though water that
was released to meet this objective in April and May of 2004
was so charged.
This situation does not present a case where Interior care-
fully considered and exercised its discretion in a meaningful
way to categorize water releases that it truly believed did not
further a primary purpose under section 3406(b)(2). Such is
the discretion that is afforded to Interior under section (b)(2)
and in Bay Institute. Rather, this situation is one where Inte-
rior realized too late that it was using too much water that it
believed had to be charged as section (b)(2) water, and back-
peddled in order to make its year end numbers match. Con-
gress could not have intended to give Interior the discretion
to erode the 800,000 AF number in this manner, nor does the
plain meaning of the Act permit such a construction.
The majority appears to find solace in the post-hoc declara-
tions that Interior submitted only after the litigation had
started, arguing that the 2003 Guidance Memo and the 2004
Joint Letter do not necessarily foreclose the possibility that
some water may not be charged under section (b)(2). In par-
ticular, the majority points to the use of the phrase “much of
SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2353
the (b)(2) water” in the 2003 Guidance Memo and what it
calls ambiguous wording in the 2004 Joint Letter. Even if this
were true, it does not detract from Interior’s own general prin-
ciple that “much of” water used pursuant to the WQCP serves
section (b)(2)’s primary purposes. If Interior wanted to show
that late June 2004 releases fall into a narrow exception, it
must, at a minimum, provide a basis for why the water does
not further a primary purpose. In attempting to show this,
Interior can only turn to its post-hoc declarations.
“The Supreme Court has forbidden district courts from
relying upon litigation affidavits and ‘post hoc’ rationaliza-
tions for agency action.” Presidio Golf Club v. Nat’l Park
Serv., 155 F.3d 1153, 1164-65 (9th Cir. 1998) (citing Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419
(1971)). Though an exception is carved out for situations
where formal findings could be prepared to explain an agen-
cy’s actions, the declarations submitted by Interior do not
meet this exception. See id. What was submitted were decla-
rations that attempted to explain why the water allocation cat-
egorization may have been appropriate in hindsight. The
declarations do not show that—at the crucial time that Interior
made those releases back in June of 2004—Interior had care-
fully considered whether the releases would serve a primary
purpose or not, and properly counted the water on that basis.
I cannot agree with the majority’s conclusion that Interior’s
actions in accounting for the late June 2004 releases was not
an abuse of discretion.
I respectfully dissent from all but the standing analysis of
the majority opinion.