Dissenting:
I conclude from this lengthy record that Judge Hug is correct when he says that, “any water project which brings fresh water to an agricultural area [with a layer of clay under the soil] must take the salty water remaining after the crops have been irrigated away from the service area.” A failure to take this obvious step leads inexorably to the spoliation of the agricultural capacity of the land intended to be benefited by the irrigation project. What is happening to the land here is akin to putting clothes from a washing machine without a rinse cycle directly into a dryer. Not only will the clothes emerge still dirty, but they will eventually be destroyed. Unfortunately, I’m afraid the majority opinion does similar damage to our legislative process that requires first the authorization of Executive Branch activity, and then the appropriation of money to pay for it.
Congress and various agencies of our government have failed for many years to come to grips with the difficult issues in this case, issues arising primarily from legitimate environmental concerns such as what the effluent from the project would do to the San Francisco Bay. The Kester-son Reservoir experience and its incompatibility with the Migratory Bird Treaty Act and other valid health and safety concerns proves once again that for every benefit, there is a cost somewhere that must be borne by someone.
As far as I can tell, when some of the downstream costs of the San Luis Unit became apparent, Congress hit half the brakes, allowing needed irrigation to continue, but blocking the removal of the waste water by an interceptor drain until a plan could be developed that would meet environmental and water quality require*579ments. As I read the law, Congress’ studied and specific instructions on this thorny issue are dispositive and extinguish or excuse any obligation of the Secretary of the Interior to go ahead — at any level — with the interceptor drain. In the first place, nothing in the plain language of the Act requires the construction of a master, or a central, drain. The Act merely authorizes the Secretary to include necessary drains and to make provisions for the construction of a master drain. An authorization is not a mandate. The best one can say for the construction of the Act offered by the Appellees is that the statute is ambiguous, which means that we must defer to the Secretary’s construction of it. With all respect to the majority, the “mandatory” language they seize upon to support a different result relates only to “principal engineering features,” not to any order that the master drain must be built.
In any event, Congress’ explicit actions on this subject over a thirty-year period are very revealing. When push comes to shove, it is the appropriations bills that count, and here, Congress has blocked construction in nearly every appropriations bill for the Bureau of Reclamation for thirty years. The relevant appropriations bills prohibit the Secretary from selecting “the final point of the discharge for the interceptor drain for the San Luis Unit until development by the Secretary of the Interior and the State of California of a plan, which shall conform to the water quality standards of the State of California as approved by the Administrator of the EPA, to minimize any detrimental effect of the San Luis drainage waters.” Pub.L. No. 105-62, at § 510(a), 111 Stat. 1320, 1340 (1997); Pub.L. No. 104-206, Stat. 2984, 3002 (1996). Under the circumstances, we exceed our authority to order the expenditure of public funds in the face of Congress’ orders that such funds not be spent for this purpose. Article 1, Section 9 of our Constitution, which provides that “[n]o money shall be drawn from the Treasury, but in Consequence of Appropriations made by law,” would appear to block the result reached first by the district court, and now by us.
With all respect, the majority opinion is not correct in its claim that Tennessee Valley Authority v. Hill, 437 U.S. 153, 189, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), commands a different result. In TVA, the appropriations bill in question had the effect of causing a project to go forward. When conflict with a statute not mentioned in the appropriations bill became apparent, the Court held that the appropriations bill could not impliedly repeal the former statute. Id. In the instant case, however, the appropriations bill has a negative effect, that of causing a project to halt unless the specific requirement of the appropriation is met.
Two features of the instant case distinguish it from TVA. First, the 1960 Act is specifically mentioned in the appropriations bill, while in TVA the appropriations bill made no mention of conflicting Endangered Species Act. See TVA, 437 U.S. at 189 & n. 35, 98 S.Ct. 2279. Second, in the instant case the Act being repealed depends for its vitality on the appropriations bill itself, while in TVA the ESA would continue to have effect whether or not the appropriation had passed. Because of this second distinction, the government’s citation of Friends of the Earth v. Armstrong, 485 F.2d 1, 7-8 (10th Cir.1973), is apposite. In that case, the Tenth Circuit held that the appropriations’ act denial of funds to implement the requirements of the prior act represented a congressional choice. Id. at 8. (“This indicates that Congress reached the decision not to modify the planned operation of the Glen Canyon Dam nor to authorize protective works to be built.”).
The government is correct that the Secretary must have appropriated monies to go ahead with the 1960 Act’s mandates. Appropriated monies are not available to build the interceptor drain until the Secretary of the Interior and the State of Cali*580fornia develop a plan, as required by the riders to the appropriations bills.
After spending months with this record, I’m not at all sure we can find the right answer to the puzzle. The pieces • aré strewn over half a century, and they appear to have been cut by Congress from competing pieces -of wood with no reference to 'a coherent design. We have been left with pieces that cannot be assembled to produce any picture at all, much less the one on the box. The Feasibility Report for this project was prepared by the Secretary of the Interior in 1956 — when Dwight D. Eisenhower was the President of the United States. In 1965, Congress used an appropriations rider to slow it down. In 1975, twenty-five years ago, the construction of the interceptor drain project went into a stall because of “questions” and “concerns” raised in the public arena; and in 1985, it was stopped dead because of the Kesterson disaster.
The thorny problem of what to do with the noxious effluent is not readily susceptible of a solution that .the parties with competing interests will find acceptable. In fact, the question in search of an answer has become a political question beyond our ability, competence, and authority to resolve. It is tempting to turn to the courts when Congress falters or refuses to act, but not appropriate under our Constitution’s allocation of powers.
One can only have sympathy for the plight of the farmers and families this irrigation project was intended to benefit, for it seems now that the well-intentioned project threatens to destroy their lands. Equally valid are the fears of those who may be burdened by the effluent from this initiative. Nevertheless, the answer to their plight lies outside our power to act. It is to Congress and the State of California to which those concerned must turn and then hope that the difficult policy choices we- in the judiciary are not equipped to make can be made in those fora.
Accordingly, I respectfully dissent.