Summary of a Recent
Judicial Development in
Water Law

Bureau of Reclamation has Discretion to Deviate from Plan
to Meet State Salinity Requirements

L. Paul Goeringer
National AgLaw Center Research Associate

Summary of Decision

In Central Delta Water Agency v. Bureau of Reclamation, 452 F.3d 1021 (9th Cir. 2006), the Court of Appeals for the Ninth Circuit affirmed the district court's grant of summary judgment in favor of the Bureau of Reclamation. The Ninth Circuit found that its previous decision regarding the plaintiffs' standing did not confer "law of the case" on the plaintiffs' requirement to show an actual violation of the Central Valley Project Improvement Act. Finally, the court found that it was within the Bureau's discretion to determine how to comply with the state standards, and no genuine issue of fact existed.

Background

The Central Valley Project Improvement Act (CVPIA) was passed by Congress to give the Bureau of Reclamation (BOR) the ability to improve wildlife habitat by releasing certain amounts of water from the Central Valley Project (CVP). Id. at 1024. In a prior opinion, the Ninth Circuit found that the demands of the CVPIA to improve fisheries were to be done with regard to applicable state water use permits. Id. One such state standard that was required to be met was the Vernalis Salinity Standard (standard).

The BOR adopted plans under the CVPIA to release waters from the New Melones Unit to help fisheries and wildlife. Id. The BOR adopted the New Melones Interim Operation Plan (plan). Id. "The [p]lan provide[d] for [§ 3406](b)(2) water releases from New Melones, as well as the purchase of water, under § 3406(b)(3) from other water users." Id. at 1024-25. This plan predicted a violation of the standard ten percent of the time over a seventy-one year period. Id. at 1025. The BOR deviated from the plan in order to meet various legal obligations, including the standard. Id.

The plaintiffs filed for injunctive relief against the BOR, arguing that the BOR could not release any water from New Melones or purchase water, as dictated by the plan, unless it first satisfied the standard. Id. In a previous opinion, the Ninth Circuit had found that the modeling showed a risk of harm sufficient to give the plaintiffs standing. Id. On remand, both parties moved for summary judgment. The district court granted the BOR's motion and denied the plaintiffs' motion. Id. The plaintiffs appealed to the Ninth Circuit a second time. Id.

Arguments

The plaintiffs argued that they did not have show an actual violation of the CVPIA because the Ninth Circuit's prior decision was the law of the case. Id. at 1025. Next, the plaintiffs argued that the BOR was required to "dedicate and allocate a specific amount of water to meet the Vernalis Salinity Standard before it may do anything else." Id. at 1026. Finally, the plaintiffs tried to raise a genuine issue of material fact as to whether the BOR would comply with the standard by relying on the operation plan. Id.

Analysis and Holdings

The Ninth Circuit found that there was no "law of the case." Id. at 1025. The prior decision had only addressed the issue of standing and could not be used to address the merits of the litigation. Id. There was no law of the case that allowed the plaintiffs to avoid showing an actual statutory violation. Id. at 1025-26.

The court also rejected the plaintiffs' argument that the BOR was required to meet certain obligations before releasing water for fish. Id. at 1026. The statute cited by the plaintiffs was a definition of the "Central Valley Project yield." Id. The statute did nothing to direct the BOR to meet certain past requirements before using its discretion to achieve other purposes. Id.

The court agreed with the plaintiffs that whether to comply with the standard was not within the discretion of the BOR, but the CVPIA left up to the BOR's discretion how to comply with the standard. Id. Even though modeling, done by the BOR, showed that the BOR would violate the standard ten percent of the time, the BOR had consistently met the standard. Id. The court agreed that leaving BOR with the discretion to change the operation plan as conditions required seemed to be working well. Id.

The court found two problems with the assertion that there were factual issues presented. Id. First, the model was designed on hypothetical conditions, and not on actual conditions. Id. The court recognized that actual conditions would change as the BOR operated the CVP. Id. In addition, the court recognized that the BOR would not always be able to follow the plan. Because the BOR would be legally obligated to meet the standard, it would have to deviate from the plan when conditions required. Id. The court found it was within in the BOR's discretion to determine how to meet the standard, and it would have to deviate from the plan in order to meet the standard. Id. at 1026-27. Because the court found no material issue of fact, the court affirmed the decision of the district court. Id. at 1027.

The case was decided on June 23, 2006.