Cal. Sportfishing Prot. Alliance v. U.S. Bureau of Reclamation, 1:15-cv-00912 LJO BAM

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtLawrence J. O'Neill United States District Judge
Docket Number1:15-cv-00912 LJO BAM
Decision Date20 October 2015


1:15-cv-00912 LJO BAM


October 20, 2015



This case concerns Temporary Urgency Change Petitions ("TUCP") requesting temporary modification of water quality standards and objectives included in the California State Water Resources Control Board's ("State Board") Revised Decision 1641 ("D-1641"), associated approvals of those TUCPs by the State Board pursuant to California Governor Edmund G. Brown, Jr.'s ("Governor Brown") December 22, 2014 Executive Order B-28-14, and implementation of approved modifications to D-1641's requirements during the late winter and spring of 2015. Plaintiffs, a coalition of environmental organizations led by the California Sportfishing Protection Alliance (collectively, "Plaintiffs"), originally filed suit against the United States Bureau of Reclamation (the "Bureau" or "Reclamation") and related federal entities and officials ("Federal Defendants"); the State Board and various State Board officials ("State Board Defendants"); and the California Department of Water

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Resources ("DWR") and DWR's Director (collectively, "DWR Defendants"). See Doc. 43.

On August 19, 2015, Plaintiffs voluntarily dismissed all claims in the currently operative First Amended Complaint ("FAC"), Doc. 43, against the State Board Defendants and DWR Defendants. See Doc. 52. Remaining are two causes of action against Federal Defendants, generally alleging that Federal Defendants failed to comply with water quality standards set forth in the Central Valley Project Improvement Act ("CVPIA"), Pub. L. No. 102-575, 106 Stat. 4600 (1992), the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., and various other provisions of state and federal law, in part because neither the State Board nor Governor Brown has the authority to waive Federal Defendants' legal duties.

Federal Defendants move to dismiss the remaining claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 50. Federal Defendants argue that the actions challenged in this case do not constitute "agency action" as that term is defined by the Administrative Procedure Act ("APA"), 5 U.S.C. § 551(13); 5 U.S.C. §§ 701 et seq., and thus this Court lacks jurisdiction over Plaintiffs' claims. Doc. 50-1. In the alternative, Federal Defendants argue Plaintiffs fail to state a claim on which relief may be granted. Plaintiffs oppose dismissal. Doc. 55. Federal Defendants replied. Doc. 56. The Court took the matter under submission on the papers pursuant to Local Rule 230(g). Doc. 57.


The CVP is "a system of dams, reservoirs, levees, canals, pumping stations, hydropower plants, and other infrastructure that distributes water throughout California's vast Central Valley." San Luis Unit Food Producers v. United States, 709 F.3d 798, 801 (9th Cir. 2013) (internal citation and quotation omitted). "The Bureau is the agency within the Department of the Interior charged with administering the CVP." Id. The Bureau operates the CVP in coordination with DWR, the California agency in charge of operating the parallel State Water Project ("SWP"). Pac. Coast Fed'n of Fishermen's Ass'ns v. Gutierrez, 606 F. Supp. 2d 1195, 1225 (E.D. Cal. 2008) ("PCFFA").

The Sacramento-San Joaquin River Delta ("Delta"), which lies at the convergence of the

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Sacramento, San Joaquin, and other rivers, forms the centerpiece of a "massive and fragile ecosystem" and the heart of both the CVP and the SWP. See San Luis & Delta-Mendota Water Auth. v. United States, 672 F.3d 676, 682 (9th Cir. 2012).

The 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 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 municipalities. The excess flows out into the San Francisco Bay.

United States v. State Water Res. Control Bd., 182 Cal. App. 3d 82, 97 (1986).

Pursuant to permits granted by the State Board, the state agency charged with the task of issuing permits to appropriate water and exercising functions related to water pollution and quality control, see Cal. Water Code § 179, the Bureau "appropriates water from various [] sources, and delivers it for beneficial uses to central California areas." Cent. Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir. 2002). Among other conditions, Reclamation's operation of CVP facilities in the Delta must comply with the State Board's D-1641. See PCFFA, 606 F. Supp. 2d at 1133; see also CVPIA § 3406(b) ("The Secretary [of the Interior] ... shall operate the [CVP] to meet ... all decisions of the [] State [] Board establishing conditions on applicable licenses and permits for the project."). D-1641 implements the Bay Delta Water Quality Control Plan ("Bay Delta Plan")1 through modifications to the

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CVP, SWP, and other water rights permits, by, among other things, regulating salinity levels in the Delta, setting minimum Delta outflow requirements, and regulating export rates of the CVP and SWP.2 The U.S. Environmental Protection Agency ("EPA") also promulgated water quality standards applicable to the Delta. See 40 C.F.R. § 131.37.

In response to extreme drought conditions prevailing in California, Governor Brown issued a number of Proclamations and Executive Orders permitting, if not encouraging, the State Board to consider making changes to water permits in order to conserve water for future use. On January 17, 2014, Governor Brown issued a Proclamation stating:

The Water Board will consider modifying requirements for reservoir releases or diversion limitations, where existing requirements were established to implement a water quality control plan. These changes would enable water to be conserved upstream later in the year to protect cold water pools for salmon and steelhead, maintain water supply, and improve water quality.

Office of Governor Edmund G. Brown, Jr., Governor Brown Declares Drought State of Emergency, January 17, 2014, at ¶ 9, available at (last visited Oct. 18, 2015). This Proclamation suspended operation of California Water Code § 13247 (requiring state agencies to comply with water quality control plans approved by the State Board) and the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq., as to actions taken by DWR and the State Board to "make water immediately available." Id. at ¶ 9. On December 22, 2014, Governor Brown

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issued Executive Order B-28-14, which extended the suspension of California Water Code § 13247 and CEQA through May 31, 2016. Office of Governor Edmund G. Brown, Jr., Executive Order B-28-14, December 22, 2014, available at php?id=18815 (last visited Oct. 18, 2015).

On January 23, 2015, Reclamation and DWR jointly filed a TUCP with the State Board seeking temporary modifications to their water rights to, among other things, permit Reclamation and DWR to reduce instream flow requirements in the Delta to conserve water for future use. See FAC at ¶ 1. On February 3, 2015, the State Board issued an order approving in part and denying in part the TUCP ("February 3, 2015 Order"). Id. at ¶ 2. On March 24, 2105, the Bureau and DWR submitted another TUCP requesting an extension of the modifications granted in the February 3, 2015 Order. Id. at ¶ 4. On April 6, 2105, the State Board issued an order granting in part and denying in part the requested extension of the TUCP ("April 6, 2015 Order"). Id. at ¶ 5.


A. Claims in this Case.

Plaintiffs' main contention in this case is that neither the February 3, 2015 Order nor the April 6, 2015 Order (collectively, the "TUCP Orders") absolves the Bureau, a federal agency, from compliance with water quality standards found in, among other places, EPA regulations, 40 C.F.R. § 131.37, and the CVPIA's requirement that the Bureau operate the CVP in compliance with state and federal water quality requirements. Id. at ¶ 7. However, apart from this general contention, it is somewhat difficult to determine the exact nature of Plaintiffs' remaining claims. Plaintiffs' first cause of action is entitled: "Violation of CWA, CVPIA and APA - Failure to Comply with Central Valley Improvement Act." FAC at 28. Among other things, this claim alleges that "[n]otwithstanding the State Board's February 3, 2015 and April 6, 2015 Orders, the Bureau must operate the CVP in compliance with the Bay-Delta water quality standards, the [CVPIA] and the [CWA.]" Id. at ¶ 132. It appears that this claim is designed to arise under the CVPIA, which directs the Secretary of the Interior to operate the CVP "to...

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