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
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  CV 97-06140- INTERIOR FISH AND WILDLIFE 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. 

2270 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 Francisco, California; and Paul A. Peters, Hines & Thomas, San

Francisco, California; and Katherine S. Poole and Jason

Malinsky, Natural Resources Defense Counsel, San Francisco, 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. Mer2274 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
gen and David S. Shelton, Department of Justice, Washington, 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 classification 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 Interior (“Interior”), acting through the United States Bureau of

Reclamation (the “Bureau”) (collectively, “Federal Defendants” or “Federal Appellees”). Plaintiff-Appellants San Luis

& Delta-Mendota Water Authority (“San Luis”) and Westlands 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

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2275
AFFIRM the district court’s orders granting summary judgment 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 Reclamation, 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 Sacramento 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 southern 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 Francisco 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 massive and fragile ecosystem. 

One of the initial goals of the CVP was to provide for the

transportation of “surplus” waters within the Sacramento Valley 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 Sacramento, nearly 80 percent of the demand for water supplies originates in

2276 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
construction includes a series of many dams, reservoirs,

hydropower generating stations, canals, electrical transmission 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 million 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 agricultural region and generating electricity at nine powerplants.” 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 governing 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 existence 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. Control Bd., 182 Cal. App. 3d 82, 98 (1986). “Two-thirds of California households 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). 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2277
250 long-term contracts for the delivery of CVP water to various agricultural, industrial, and commercial entities in addition 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 Fishermen’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.3Id.; 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 Reclamation 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. 

2278 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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. 

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. Anadromous fish, such as salmon, are particularly sensitive to

changes in flow patterns, salinity, temperature and other conditions in and upstream of the Bay-Delta estuary. See generally 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.4Id. at 1250-53.

B. The CVPIA

The CVPIA, enacted by Congress in 1992, amended the

CVP’s authorizing legislation and elevated “mitigation, protection, and restoration of fish and wildlife” to Project purposes 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;

4For 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). 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2279
(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, 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 permits 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

2280 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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

. . . .”5Id. 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 SacramentoSan Joaquin Delta to reproduce after maturing in San Francisco 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 operations 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 provide Central Valley Project water for other authorized purposes.

Id. at 4715. Section 3406(b)(2) provides in part that the Secretary shall:

5This “twice the average levels” provision is sometimes referenced as

the “anadromous fish doubling” program. See, e.g., Coal. for a Sustainable 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”). 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2281
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 restoration 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 obligations under the Federal Endangered Species Act.

Id. at 4715-16;7see 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; conjunctive 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 capability 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. 

2282 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 comprehensive water quality standards establishing water quality 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.8See State Water Res. Control Bd., 182

8As 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 constantly 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 intrusion intensified, particularly during the dry summer months and

in years of low precipitation and runoff into the river systems.

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2283
Cal. App. 3d at 97-98. As part of that plan, the SWRCB modified 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 standards 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 formulation 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 Estuary,” various representatives from California state and federal

agencies (including the Secretary of the Interior, the Administrator of the Environment Protection Agency, and the Secretary 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 California 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.9See In Re BayOne of the major purposes of the projects was containment of

maximum salinity intrusion into the Delta. By storing waters during 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. 

9The interim measures were “intended to be in force for three years

. . . .” Bay-Delta Accord at 1. 

2284 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Delta Programmatic Envtl. Impact Report Coordinated Proceedings, 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 pursuant to these Principles shall be credited toward the CVP obligation 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 Joaquin 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 certain 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 seventeen “beneficial uses” of CVP/SWP water.11 Those utilizations

10As 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. 

11Those 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, coolSAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2285
were, in turn, placed into three general categories: (1) “municipal 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 categories. For example, prevention of salinity intrusion is an element 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 requirements 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) “Agricultural Supply” — including “farming, horticulture, or ranching” purposes,

(5) “Ground Water Recharge,” (6) “Navigation,” (7) “Water Contact Recreation” — such as “swimming, wading, water-skiing, skin and scuba diving, 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) “Migration of Aquatic Organisms” — “[u]ses of water that support habitats

necessary for migration or other temporary activities by aquatic organisms, 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 habitats 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. 

2286 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
Joaquin river flow objectives . . . included to provide attraction and transport flows and suitable habitat for various life

stages of aquatic organisms, including Delta smelt and chinook 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)

12As 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 western, 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 different 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 reducing the amount of water that upstream water right holders

divert from the watercourse or by increasing the amount of

water released into the watercourse. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2287
In the 1995 [WQCP], the [SWRCB] explained that “Delta

outflow objectives are included for the protection of estuarine habitat for anadromous fishes and other estuarinedependent 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 taking the amount of water flowing into the Delta and subtracting 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 objectives). The [SWRCB] explained that “Sacramento and San

Joaquin river flow objectives are included to provide attraction and transport flows and suitable habitat for various life

stages of aquatic organisms, including Delta smelt and chinook 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 monitoring. One pulse, or two separate pulses of combined duration 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 requirement 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

2288 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 habitats, vegetation, fish or wildlife, including invertebrates”; (2)

habitats necessary for reproduction, early development,

migration and/or other temporary activities of aquatic organisms including, but not limited to, anadromous fish; and (3)

estuarine ecosystems for fish, shellfish, invertebrates, amphibians, 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 objectives 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 transportation 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 chemicals, 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] measures in the watershed, sufficient to achieve a doubling of

natural production of chinook salmon from the average production of 1967-1991, consistent with the provisions of State

and federal law.” ([1995 WQCP], p. 18, table 3.) 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2289
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 reasonable needs of all of the consumptive and

nonconsumptive demands on the waters of the Estuary.

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 (“D1641”). 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 facilities 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 appropri2290 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 permitted place of use, however, it is operating inconsistently 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 potentially “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 adoption, 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 objectives in the [1995 WQCP] and failed to implement the minimum 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 specific holdings was that “by failing to implement all of the

Vernalis flow objectives while the San Joaquin River Agreement is in effect, the [SWRCB] ‘fail[ed] to establish the minimum flows necessary to achieve the salmon-doubling

standard.’ ” Id. at 777. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2291
D. Previous Challenges in This Litigation to Interior’s

Implementation of CVPIA § 3406(b)(2)

Water allocations under the CVPIA have generated approximately 13 years of protracted litigation in this case, addressing 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 Federal 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,

2292 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 judgment 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 Section 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

13The 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 anadromous 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2293
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 district 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) purpose (such as for 1995 WQCP or post-CVPIA ESA requirements) 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 memorandum 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 October through January period, primarily for high priority fish and wildlife uses. Moreover, actions taken

pursuant to the 1995 Water Quality Control Plan and

State Water Resources Control Board Decision D1641 (“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

14To the extent that Interior had incorporated into its May 2003 Decision 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. 

2294 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
and measures authorized 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 objectives of the 1995 WQCP serves Section 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 wildlife 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 Interior’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

15The 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2295
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 designated — fish, wildlife, and habitat restoration. Section 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 restoration 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 Decision 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

2296 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
fry spend their early life stages in nearby rearing habitats.

During April through June, “fishery actions target the emigration 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 statutory and regulatory requirements, [the Bureau] determines the amount of water that can be delivered and

allocated to its various contractors, including irrigation districts, municipal and industrial users, and

wildlife refuges . . . . [The Bureau’s] water service

contracts . . . contain shortage provisions that specifically recite that [the Bureau] is not liable for shortages caused by compliance with legal obligations. 

In October 2003, the Bureau proposed a series of prognostications 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 developed projections of CVP operations under: (1) pre-1992 conditions (“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 running 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, developed a new set of the 90% and 50% numbers. The actual

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2297
(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 “Preliminary 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 implementation, 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) accounting. 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 prepared during and at the end of the 2004 Water Year — particularly a chart entitled “Water Year 2004 Fishery Action

Costs” (“2004 Year-End Accounting”) — illustrate the

16The 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.

17The 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. 

2298 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 Ultimately, Interior established three categories of use to account

for CVP releases of water under its various statutory responsibilities: (1) “PRIMARY PURPOSE Fish Actions,” (2)

“WQCP Actions that contribute to PRIMARY PURPOSE,”

and (3) “WQCP/ESA Actions that contribute to SECONDARY 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 Melones 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 regulatory 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2299
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 latter 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 Joaquin 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 contested 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 decision on the cross-motions, granting the Water Agencies’

2300 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
motion for summary judgment as to the August/September

2004 actions19 and granting the Federal Defendants’ crosssummary 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, nevertheless 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 effectuates the hierarchy of purposes set in section 3406(b)(2),”

and so must be counted against the (b)(2) allotment.20 Id.

19In 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 arbitrary and capricious.” 637 F. Supp. 2d. at 806. 

20The district court responded to this contention in part by referencing

language from the 2003 Guidance Memo. As stated by the court: 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2301
The Federal Appellees proffered a much broader interpretation 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 Environmental 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’ suggestion that the “fish doubling” requirement set forth in section 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 requirements must always be considered part of the “primary purpose” of the CVPIA. See id. at 797. Ultimately, the district

court held that “a plain language reading of the primary purpose language . . . suggests that Congress intended only

actions specifically authorized by the CVPIA to be considered

‘primary purpose’ measures.” Id. at 799. Further, it determined 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 protection 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 purpose. Elsewhere in the administrative record, Interior specifically

stated 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 measures included

in CVPIA.” 

SL&DM Water Auth. I, 637 F. Supp. 2d at 802 n.15. 

2302 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 pursuant to the 1995 WQCP and/or the ESA, and applying our prior

ruling in Bay Institute, the district court articulated the following precept:

[I]f 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. 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.

21Section 3406(b)(4) deals with the development of “a program to mitigate for fishery impacts associated with operations of the Tracy Pumping

Plant”; section 3406(b)(5) covers the development of “a program to mitigate 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 anadromous fish moving into and through the Sacramento-San Joaquin Delta

and Central Valley rivers and streams”; section 3406(b)(9) calls for eliminating, “to the extent possible, losses of anadromous fish due to flow fluctuations 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 implementing management measures to restore the striped bass fishery of the BayDelta 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2303
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 statute “to assist” the State in its “efforts to protect the

22Ultimately, while it rejected the view that only actions that predominantly contributed to the specific goal of “fish doubling” had to be considered 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 nonenvironmental CVP water purposes. This does not appear to be

a fair or reasonable interpretation of the CVPIA. The Environmental 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 reiterated 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 constrained 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 practicable.” 106 Stat. at 4715. 

2304 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
waters of the San Francisco Bay Sacramento-San

Joaquin Delta Estuary,” and “to help” meet obligations imposed upon the CVP under State and Federal

law, “including but not limited to additional obligations 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 administrative 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 “normal” (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, stating:

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.

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

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2305
had stipulated “to allow for the submission of expert declarations 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 declarations stated that: (1) the latter June 2004 Nimbus and New

Melones releases were specifically implemented to respectively 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 American 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 district 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

2306 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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) purposes.” 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 declarations 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 outflow objective primarily benefits non-salmonid fish species

such as white sturgeon, bay shrimp, Crangon franciscorum,

longfin smelt, and Sacramento splittail.23 Id. Dr. Swanson further testified that the releases at issue could not have benefitted salmon because, in late June 2004, most of the juvenile

salmon were gone from the San Joaquin River and the agencies were not even sampling for salmon in the river at that

time. Id. at 1216. In addition, Guinee in his supplemental declaration 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 standard was intended to benefit multiple fish species (as well as

other animals), the district court again found no abuse of discretion in connection with Interior’s accounting for the latter

June 2004 releases made to satisfy the Delta outflow objective. Id. at 1215-16.

23As noted by the district court, however, sturgeon (unlike bay shrimp,

Crangon franciscorum, longfin smelt, and Sacramento splittail) is “arguably” an anadromous fish under the CVPIA’s definition. See SL&DM

Water Auth. II, 624 F. Supp. 2d at 1215 n.4. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2307
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 expertise, 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 anadromous 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 determination 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

2308 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 standard of review for [an agency’s] action under [a federal statute], 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 sustain 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 Central Valley Project (“CVP”) yield dedicated and

managed under section 3406(b)(2) of the CVPIA

during June, 2004, is arbitrary, capricious, an abuse

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2309
of discretion, or otherwise not in accordance with

law because it excluded water dedicated and managed to benefit fishery resources and habitat pursuant 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 initially 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 constitutional 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 protected 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

2310 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
accounting decision arguably resulted in reduced water deliveries 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

. . . .

24As 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 reclamation 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.

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2311
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 agricultural 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 purchase 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 flowing from a reduction in water delivery are “concrete and particularized” 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 sufficient to confer standing on plaintiffs; threatened injury constitutes ‘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 operating the CVP. Id. at 948. Because the Water Agencies have

shown both an actual injury and a threat of future injury, we

25Westlands indicates that, in 2004, ground-pumping and other alternative sources had to supply over 350,000 AF of water in lieu of CVP yield.

2312 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
conclude that the first element of Article III standing is satisfied.

The Federal Appellees do not specifically contest the Water

Agencies’ showing as to their injury in fact, but instead primarily focus on the second factor (i.e., causation). They contend 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 Federal Appellees’ causation argument, noted that, even though

the Water Agencies “do not specifically explain how Interior’s 2004 Water Year accounting actions resulted in reduced

water deliveries,” the Federal Appellees themselves “accounted for these actions as reductions from CVP yield . . . .”

SL&DM Water Auth. I, 637 F. Supp. 2d at 787-88. In challenging 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 portion thereof, is not needed for the purposes of this section,

based on a finding by the Secretary, the Secretary is authoSAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2313
rized to make such water available for other project purposes.” 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 contractors, 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 recognized 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 Val26It 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 contend that as more water is released for fish during this period, less water

is available for releases during the drier periods of the year . . . .” 

2314 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 proportionally reduce the amounts of water for delivery to agricultural 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 post27Interior basically conceded this point in the D-1641 promulgation process. The Bureau had petitioned the SWRCB to be allowed “to change and

consolidate places of use and purposes of use of water under certain permits 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. [Interior] pointed out that the contracts and the provisions of the Barcellos [and Wolfson, Inc. v. Westlands Water Dist., Civ. No. F79-106 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). 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2315
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 misinterpreted 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 allotment or the agency incorrectly accounts for uses of the dedicated (b)(2) yield and the Water Agencies receive less than

their contractual allotment. Thus, it is jurisdictionally appropriate 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 relevant 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”

2316 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 requirements of fish and wildlife, agricultural, municipal and industrial 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 district 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 authorized 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 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).”

These arguments are unavailing.

First, no party or court currently contends that Interior possesses unlimited discretion regarding its accounting of the

800,000 AF of CVP yield which it manages under section

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2317
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 enumerated in section 3406(b) of the CVPIA, beginning with anadromous 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” contributed 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 decisions of this court.28 The district court drew an appropriate

28In lieu of the rule articulated by the district court, the Water Agencies

offer the following alternative: 

2318 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 contribute[ ] 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 purposes and measures authorized by CVPIA, then such CVP water

must be credited toward the 800,000 acre-feet (b)(2) limit; however, 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 construe 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 nullifying Interior’s discretion to effectuate the CVPIA’s hierarchy of purposes. Second, although the 1995 WQCP sets forth beneficial uses for

water including municipal and industrial, agricultural, and fish and wildlife uses, Appellants have not offered any examples of releases of water

under the 1995 WQCP — and none come to mind — that would not provide 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. 

29The dissent disagrees with our approval of the “predominantly contributes” 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 section (b)(2) water only if it ‘predominantly contributes to one of the primary purpose programs.’ Otherwise, Interior could choose to count it, or

not count it, at its whim.” 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2319
[9] Second, the Water Agencies’ contention that “the ‘primary 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 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 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 criterion of “effectuat[ing] the primary purpose in a consequential and nonincidental manner.” However, there is nothing in the language of the

CVPIA to suggest that Congress desired Interior’s discretion on this matter 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 Secretary finds that there is a portion of that yield which is not needed for purposes 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 Institute, 87 Fed. Appx. at 639. 

2320 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 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

. . . .” The Water Agencies’ position omits the statutory language 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 measures” in the CVPIA. Thus, the Appellants’ effort to untether

the concept of the (b)(2) “primary purpose” from fish, wildlife, 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 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 . . . including 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 obligations 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 previously made in Bay Institute, 87 Fed. Appx. at 639-40. 

[10] Third, we also again reject the Water Agencies’ argument that “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.” 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)

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2321
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. Appellants cite to language in section 3406(b)(1)(C) of the CVPIA

which requires that:

The Secretary shall cooperate with the State of California to ensure 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 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 standards pursuant to the review ordered by the California 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 recognize that portions of the 800,000 AF utilized for (b)(2) purposes (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 support the Water Agencies’ case here. In the face of such overlap, 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

2322 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 implemented avoid imposing “inconsistent or duplicative obligations” 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 overlap between actions taken for the primary (b)(2) purpose and

actions required by post-1992 water quality and ESA measures 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 country’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 discretion 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 circulated 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

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2323
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 and measures authorized 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 objectives of the 1995

WQCP serves Section 3406(b)(2)’s “primary purpose” of fish, wildlife, and habitat restoration.

The 2003 Guidance Memo’s characterization of the 1995

WQCP and its interpretation of the “primary purpose” language 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 Administrative 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 decision 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 “actions taken pursuant to the 1995 Water Quality Control Plan

2324 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 supplyrelated objectives include those for Delta outflow, river flows,

export limits, the Delta Cross Channel gates, and salinity control for the protection of municipal and industrial supply, agricultural 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 agricultural 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. Additional releases from other reservoirs for fish and

wildlife protection in the San Joaquin River tributaries may be required through ongoing [Federal

Energy Regulatory Commission] proceedings.

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2325
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 nonrestorative 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 purpose 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 specifically enumerated in section 3406(b)(2) of the CVPIA. See 87

Fed. Appx. at 639 (“Section 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.’ ”).

Also, the USFWS recognized that the 2003 Guidance

Memo was inconsistent with our view of the amount of discretion Interior enjoys under the CVPIA regarding the allocation 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:

2326 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
. . . .

3. The Guidance Memo does not give effect to hierarchy 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 beneficial 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 letter (“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 Interior’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 control actions against the 800,000 acre-feet. The 1995

WQCP prescribes numerous actions that were developed in 1994 by Interior, working in consultation

with the state, to help restore Delta fisheries, including anadromous fish. In fact, these fishery actions

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2327
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 prescribed by the Act.

However, that language fails to support Appellants’ arguments. 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 ambiguity in the last sentence of the quote. It arises from whether the

qualifying clause “which further the CVPIA’s primary restoration 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 circumstances surrounding the latter June releases are largely

30The 2004 Joint Letter also indicates that “Interior implements its obligations 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. 

2328 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
undisputed. The WQCP objective of maintaining the appropriate 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 significantly 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 operations 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) dedicated 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

31As recognized in Appellants’ Opening Brief at page 20: 

[T]he water costs of meeting the 1995 WQCP requirements relating to location of X2 during April [2004] were higher than Interior 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2329
accounting. The district court properly rejected that characterization.32

Additionally, the record demonstrates that the agency’s

decisions did not amount to an abuse of its discretion. As indicated 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 beneficial use of the remaining (b)(2) water for fish and wildlife

management actions that year, whether they are for fish, wildlife and habitat restoration purposes or to help meet WQCP

standards and ESA obligations.” Here, the USFWS and the

32As 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 eventually 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. 

2330 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 measures 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 objectives) against the (b)(2) account, especially given our instruction 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 implementation of specific CVPIA restoration mandates.

[12] The Appellants counter that the Delta outflow and

Vernalis flow standards were placed in the 1995 WQCP specifically 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 primary 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

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2331
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 purposes, 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

33The 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 Environmental 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.” 

34As explained in the initial Guinee Declaration at paragraphs 12 and

13: 

2332 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 discretion to treat the latter June 2004 releases as “non-(b)(2) fishery 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 purpose:

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 anadromous fish, including listed runs of Chinook salmon

and steelhead trout, and improve conditions for estuarine 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 latter 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 . . . . 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2333
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 rationalization, 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. Appellants do not challenge the district court’s decision to supplement the administrative record, nor do they challenge any of

the declarations relied upon by the district court.35 Based on

35Appellants 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. 

2334 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 complete 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

36With regard to the Vernalis flow requirements, it is noted that Attachment 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. 

37The 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2335
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 accordance 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 unanticipated 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 rationalization. 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 salinity adjustment was not crucial to survival of the few salmon still there, but

would still have marginally beneficial effect, Interior should have discretion to not count this release as section (b)(2) water.” 

2336 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
The truth is that the Department of the Interior’s (Interior) recategorization of the late June 2004 releases from the Nimbus

and New Melones reservoirs was a purely post-hoc rationalization 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 requirements 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 evisceration 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, including many crops that are exclusively grown in California.1

 The

1California Department of Food and Agriculture, California Agricultural

Resources Directory 2010–11 at 17, http://www.cdfa.ca.gov/

Statistics/PDFs/ResourceDirectory_2010-2011.pdf. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2337
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, including Fresno, Tulare, Kern, Merced, Stanislaus, and San Joaquin 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 Sacramento 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 communities 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 necessarily 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

2Katie Paul, Dying on the Vine, Newsweek, Aug. 23, 2009, at 1, available at http://www.newsweek.com/2009/08/23/dying-on-the-vine.html. 

3California 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. 

5Valerie 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-fishfor-california-water/. 

6Dying on the Vine at 1. 

2338 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 meaningless 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 devastated 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 original 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) limitation. See generally 137 Cong. Rec. H4799-01. 

On April 10, 1992, the Senate, after its subcommittee meetings 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2339
On June 18, 1992, the House considered and passed a separate bill, H.R. 5099, entitled the Central Valley Project

Improvement Act. 138 Cong. Rec. H4918-06. This bill originally 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 version 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 Secretary of the Interior will:

Develop and implement a program for the acquisition 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 Valley 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 primary purpose of implementing the fish, wildlife, and

habitat restoration purposes and measures authorized by this section, except that such water shall be

in addition to that required to implement subsections

2340 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
(b)(6) and (b)(15)(A). This water may be assigned

immediately to supplement instream flows. The

United States Fish and Wildlife Service shall conduct studies and monitoring activities as may be necessary 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 Secretary 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 compromise finally introduced the 800,000 AF provision. 138

Cong. Rec. H11493-01. The newly compromised bill mirrored 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. 

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2341
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 Congressional 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 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.

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 authorized 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. 

2342 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 discretion ‘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 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.” 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 additional (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?).

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2343
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 Interior’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 allocate 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 discretion 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

2344 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
purpose for which the 800,000 acre feet were

designated-fish, wildlife, and habitat restoration.

Section 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

. . . .” 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 restoration 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 purposes” related to anadromous fish to “no role at all.” Under

our non-precedential ruling, if a water allocation is made pursuant 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 salinity 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 authoSAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2345
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 politically 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 purpose leaves open the question of how to determine if an allocation of water is “for the primary purpose of implementing

the fish, wildlife, and habitat restoration purposes and measures authorized by this title.” 

In answering this question, the district court applied the following 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 “predominant,” 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. 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.

2346 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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.” Otherwise, 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 recognized, 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 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

. . . .” 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. 

Id. Thus, “primary” as used in the statute most logically

applies to the hierarchy of purposes. In other words, the primary 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 confuses 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 purpose” if it “predominantly” serves it. Bay Inst., 87 F. App’x

at 637. However, there is nothing in the Act that indicates that

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2347
its single use of the word “primary” means that water allocation 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 following hypothetical: (1) Interior allocates 500,000 AF of water to

achieve a beneficial salinity under WQCP, that furthers agricultural purposes and helps both anadromous and nonanadromous 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 purposes 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 anadromous 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 livelihood and existence. In this sense, the size of the pie in a given

2348 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
year is fixed. A bigger slice for one person means a smaller

slice for another. Most importantly (as already noted), adopting 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 benefit 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 standard 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 consequential 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 InteSAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2349
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 Guidance 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 “primary purpose” of fish, wildlife, and habitat restoration. 

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 Interior’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 control actions against the 800,000 acre-feet. The 1995

2350 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
WQCP prescribes numerous actions that were developed in 1994 by Interior, working in consultation

with the state, to help restore Delta fisheries, including 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 estuarinedependent 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 organisms, including Delta smelt and chinook salmon.” Id. 

These two documents, along with the 1995 WQCP objectives, 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 Vernalis 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 Interior 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

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2351
allocations are wholly consistent to the Interior’s own documents 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 carefully 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 Interior realized too late that it was using too much water that it

believed had to be charged as section (b)(2) water, and backpeddled in order to make its year end numbers match. Congress 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 declarations 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 particular, the majority points to the use of the phrase “much of

2352 SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR
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 principle 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’ rationalizations 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 agency’s actions, the declarations submitted by Interior do not

meet this exception. See id. What was submitted were declarations that attempted to explain why the water allocation categorization 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 carefully 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.

SAN LUIS v. U.S. DEPARTMENT OF THE INTERIOR 2353