Central Delta Water Agency v. Bureau of Reclamat., 04-16632.

• Decision Date: 22 May 2006
• Docket Number: No. 04-16632.,04-16632.
• Citation: 452 F.3d 1021
• Parties: CENTRAL DELTA WATER AGENCY; South Delta Water Agency; Alexander Hildebrand; R.C. Farms, Inc., Plaintiffs-Appellants, and Save San Francisco Bay Association; Natural Resources Defense Council; Environmental Defense Fund; Bay Institute of San Francisco; Pacific Coast Federation of Fishermen's Associations; United Anglers of California, Intervenors, v. BUREAU OF RECLAMATION, United States Department of Interior; Gale A. Norton, Secretary of the Interior; Michael J. Spears, Regional Director, U.S. Dept. of Interior, Fish and Wildlife Service, Region 1; Kirk Rodgers, Acting Regional Director, Dept. of Interior, Bureau of Reclamation, Mid-Pacific Region; Department of Fish and Game, State of California; Robert C. Hight, Defendants-Appellees, San Joaquin River Group Authority; Oakdale Irrigation District; South San Joaquin Irrigation District; Merced Irrigation District; Modesto Irrigation District (MID); Turlock Irrigation District; San Joaquin River Exchange Contractors Water Authority, Defendants-Intervenors-Appellees, v. Stockton East Water District, Plaintiff-Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1021

452 F.3d 1021

CENTRAL DELTA WATER AGENCY; South Delta Water Agency; Alexander Hildebrand; R.C. Farms, Inc., Plaintiffs-Appellants, and Save San Francisco Bay Association; Natural Resources Defense Council; Environmental Defense Fund; Bay Institute of San Francisco; Pacific Coast Federation of Fishermen's Associations; United Anglers of California, Intervenors, v. BUREAU OF RECLAMATION, United States Department of Interior; Gale A. Norton, Secretary of the Interior; Michael J. Spears, Regional Director, U.S. Dept. of Interior, Fish and Wildlife Service, Region 1; Kirk Rodgers, Acting Regional Director, Dept. of Interior, Bureau of Reclamation, Mid-Pacific Region; Department of Fish and Game, State of California; Robert C. Hight, Defendants-Appellees, San Joaquin River Group Authority; Oakdale Irrigation District; South San Joaquin Irrigation District; Merced Irrigation District; Modesto Irrigation District (MID); Turlock Irrigation District; San Joaquin River Exchange Contractors Water Authority, Defendants-Intervenors-Appellees, v. Stockton East Water District, Plaintiff-Intervenor.

No. 04-16632.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 3, 2006.

Filed May 22, 2006.

Amended June 23, 2006.

Daniel A. McDaniel, Nomellini, Grilli & McDaniel Professional Law Corporations, Stockton, CA, for the plaintiffs-appellants.

David C. Shilton, Assistant United States Attorney, Washington, D.C., for the defendants-appellees.

Tim O'Laughlin and William C. Paris, III, O'Laughlin & Paris LLP, Chico, CA, for the defendants-intervenors-appellees.

Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, District Judge, Presiding. D.C. No. CV-99-05650-OWW.

Before WARREN J. FERGUSON, STEPHEN S. TROTT, and ANDREW J. KLEINFELD, Circuit Judges.

ORDER AND AMENDED OPINION

TROTT, Circuit Judge.

ORDER

The Opinion filed May 22, 2006 is amended as follows:

1. At page *2 of the Opinion, found at 449 F.3d 965 (9th Cir.2006), in the third full paragraph in the left-hand column, the sentence "The gauging station at Vernalis is located close to the ocean, below the confluence of the two major rivers." is replaced with:

"The gauging station at Vernalis is located below the confluence of the Stanislaus River and the San Joaquin River."

2. At page *2 of 449 F.3d 965, 2006 WL 1377447, in the fourth full paragraph that spans both the left-hand and right-hand columns, the sentence "While nothing in the Act requires that the Bureau use New Melones water for its § 3406(b)(2) releases, the State Board exercised its discretion to use that water." is replaced with:

"While nothing in the Act requires that the Bureau use New Melones water for its § 3406(b)(2) releases, the Bureau exercised its discretion to use that water."

3. In the listing of counsel for Plaintiffs-Appellants, before page *1 of 449 F.3d 965, 2006 WL 1377447 (9th Cir.2006), in the left hand column, counsel's listing as "Daniel A. McDaniel, Nomellini, Grilli & McDaniel Professional Law Corporation, Stockton, California, for the plaintiffs-appellants." is replaced with:

"Daniel A. McDaniel, Nomellini, Grilli & McDaniel Professional Law Corporations, Stockton, California, for the plaintiffs-appellants."

OPINION

Plaintiffs Central Delta Water Agency, South Delta Water Agency, Alexander Hildebrand, and R.C. Farms, Inc. ("Delta parties") appeal the district court's denial of their motion for summary judgment and grant of defendant the United States Bureau of Reclamation's ("Bureau") motion for summary judgment. The Delta parties sued the Bureau and several administrative officials, claiming that the Bureau was violating the Central Valley Improvement Act because it was operating the Central Valley Project ("CVP or Project") in a manner that would at some point in the future violate the Vernalis Salinity Standard, a state standard with which the Bureau must comply in its operation of the CVP.¹ The district court cited several grounds for its decision, but we find dispositive the absence of a genuine issue of material fact as to whether the Bureau will comply with the Vernalis Salinity Standard in the foreseeable future. Therefore, we affirm the district court's denial of the Delta parties' motion and grant of the Bureau's motion for summary judgment.

I

The CVP is the largest federal water management project in the country. It includes two of California's major rivers, the Sacramento and the San Joaquin, which meet at the Sacramento-San Joaquin Delta. The rivers mix at the delta and then flow into San Francisco Bay and ultimately out to the Pacific Ocean. The Bureau, a division of the Department of the Interior, operates the Project and holds permits from the California State Water Resources Control Board ("State Board") to appropriate water and distribute it for various beneficial uses. One of the reservoirs operated by the Bureau is the New Melones Unit, located on the San Joaquin River system.

In 1992, Congress passed the Central Valley Project Improvement Act ("CVPIA" or "Act"). The purposes of the Act are

(a) to protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley and Trinity River basins of California (b) to address impacts of the Central Valley Project 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 Francisco Bay/Sacramento-San Joaquin Delta Estuary;

(f) to achieve a reasonable balance among competing demands for use of Central Valley Project water, including the requirements of fish and wildlife, agricultural, municipal and industrial and power contractors.

CVPIA § 3402, Title XXXIV of the Reclamation Projects Authorization and Adjustment Act of 1992, Pub. L. 102-575, 106 Stat. 4600, 4706 (1992).

The Act requires that the Secretary

dedicate and manage annually eight hundred thousand 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 . . . .

CVPIA § 3406(b)(2). In addition, the CVPIA requires the Secretary of the Interior 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). CVPIA § 3406(b)(3).

The Act states that the Secretary of the Interior "immediately upon the enactment of this title, shall operate the Central Valley Project to meet all obligations under State and Federal law," including the decisions of the State Board. CVPIA § 3406(b). "In short, the Act demands that the Project implement a significant fish habitat protection program, but that it do so in accordance with the applicable state water use permits." Cent. Delta Water Agency v. United States (Central Delta I), 306 F.3d 938, 945 (9th Cir.2002).

One such state permit standard is known as the Vernalis Salinity Standard. The gauging station at Vernalis is located below the confluence of the Stanislaus River and the San Joaquin River. The Vernalis Salinity Standard, initially set by the State Board at 500 parts per million total dissolved solids, is now set at an electrical conductivity measurement of 1.0 mmhos/cm during the period of September through March and 0.7 mmhos/cm during the irrigation months of April through August. The Bureau is required, both by the terms of its water permits and by the CVPIA, to operate the CVP so as not to exceed the 0.7-1.0 mmhos/cm salinity standard. All parties agree that the Bureau has not violated the Vernalis Salinity Standard since 1994.

The Bureau periodically releases water from the New Melones Unit, pursuant to § 3406(b)(2) of the Act, to create flows sufficient to maintain wildlife habitats. While nothing in the Act requires that the Bureau use New Melones water for its § 3406(b)(2) releases, the Bureau exercised its discretion to use that water. Central Delta I, 306 F.3d at 945. In 1997, the Bureau adopted the New Melones Interim Operations Plan ("Plan"). The Plan provides for (b)(2) water releases from New Melones, as well as the purchase of water, under § 3406(b)(3), from other water users. The Plan was initially intended to be temporary, but, for lack of a better program, the Bureau has continued to operate the CVP under the Plan since its adoption.

The Plan includes a model showing a possibility that the Vernalis Salinity Standard might be violated in the future. The model consists of a 71-year projected study of the operation of the CVP under the Plan. That model showed that in 37 of the 71 years there would be at least one violation of the standard, and that violations would occur in 88 of the 852 months covered by the study (approximately 10%). Although the Bureau operates the Project pursuant to this Plan, the Bureau does not blindly adhere to it: the Bureau deviates from the Plan when necessary in order to meet its various obligations, including compliance with the Vernalis Salinity Standard.

The Delta parties sued the Bureau for injunctive relief, claiming that the Bureau may not release any water from New Melones under § 3406(b)(2) or purchase water under § 3406(b)(3) unless it first dedicates a sufficient amount of water to ensure that the Vernalis Salinity Standard is satisfied. The Delta parties asserted that the (b)(2)...