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Westlands Water Dist. v. Natural Resources Defense Council

Citation: 25 ELR 20371
No. Nos. 94-16092 et al., 43 F.3d 457/39 ERC 1993/(9th Cir., 12/21/1994)

The court holds that the Secretary of the Interior is not required to complete an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) before implementing § 3406(b)(2) and (d)(1) of the Central Valley Project Improvement Act (CVPIA). The court holds that an irreconcilable conflict exists between NEPA and § 3406(b)(2) and (d)(1)'s requirement that the Secretary, "upon enactment of this title," deliver a specified amount of water to wetlands in California's Central Valley for the purposes of implementing the Act's fish and wildlife restoration measures. The phrase "upon enactment of this title" plainly means that implementation is triggered by enactment. Congress did not give the Secretary discretion over when to carry out his duties under the provision. Also, this interpretation is consistent with other sections of the Act. Section 3409 requires the Secretary to complete a programmatic EIS studying fish and wildlife restoration actions and the cumulative effect of renewing all water service contracts. Although § 3406(b)(2) and (d)(1) require implementation of fish and wildlife actions "upon enactment," § 3404(c)(1) expressly requires the Secretary to complete the programmatic EIS before renewing existing water service contracts. Thus, the contrasting text of the provisions indicates that Congress intended for the Secretary to implement the fish and wildlife provisions in § 3406(b)(2) and (d)(1) before completing the programmatic EIS. The court next holds that § 3411(a)'s requirement that the Secretary obtain a modification in water use permits before reallocating water will not delay implementation of § 3406(b)(2) and (d)(1). The court also holds that the requirement that the Secretary consult with state and federal agencies and other interests before implementing the water allocation provisions does not provide sufficient time for the Secretary to conduct an EIS. Moreover, consultation requires only minimal written communications. The court next holds that § 3406(b), which requires the Secretary to meet all obligations under federal law, does not override § 3406(b)(2) and (d)(1). The phrase "upon enactment of this title" in § 3406(b)(2) and (d)(1) is a specific directive that governs § 3406's general directive to abide by all laws when implementing the CVPIA. The court holds that it need not consult legislative history to determine whether § 3409 exempts the CVPIA from NEPA compliance, because the plain meaning of § 3409 reconciles NEPA compliance with the language in § 3406(b)(2) and (d)(1). The court vacates a preliminary injunction barring implementation of the fish and wildlife provisions, holding that plaintiff water districts have shown neither a likelihood of success on the merits nor the existence of a serious question on the merits.

[Briefs in this action are digested at ELR PEND. LIT. 66353.]

Counsel for Plaintiffs
Thomas W. Birmingham, William T. Chisum
Kronick, Moskovitz, Tiedemann & Girard
400 Capitol Mall, 27th Fl., Sacramento CA 95814
(916) 321-4500

Counsel for Defendants
Brian E. Gray
Hastings College of Law
University of California
200 McAllister St., San Francisco CA 94102
(415) 565-4600

Before Choy, Farris and Brunetti, JJ.