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United States v. California

ELR Citation: 7 ELR 20351
Nos. No. 75-3554, 550 F.2d 1239/9 ERC 2062/(9th Cir., 04/01/1977) Aff'd

The Ninth Circuit affirms a lower court's judgment, 6 ELR 20120, that §8 of the Reclamation Act of 1902 does not require the United States to obtain from the California State Water Resources Control Board a permit to appropriate unappropriated water from the Stanislaus River for the New Melones dam project. The court finds this ruling dictated by the Supreme Court's recent decisions in Hancock v. Train, 6 ELR 20555, and EPA v. California, 6 ELR 20563, which held that language even more specific than that appearing in §8 did not subject the federal government to state permit procedures under the Clean Air Act and Federal Water Pollution Control Act Amendments of 1972. Moreover, the court emphasizes, the law establishing the state permit procedures in this case was not enacted until 20 years after the Reclamation Act was passed. Congress could not have intended to require federal compliance with state laws not yet in existence. The court notes, however, that §8 does require the federal government, in acquiring water for federal reclamation projects, to make application to the state board to notify it of the scope of the planned federal project and to enable the state to determine, according to its laws, whether there is sufficient unappropriated water available.

Counsel for Plaintiff-Appellee
Dwayne Keyes, U.S. Attorney; Richard W. Nichols, Ass't U.S. Attorney
650 Capitol Mall, Room 2058, Sacramento CA 95814
(916) 449-2331

Carl Strass
Lands and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 737-8200

Counsel for Defendants-Appellants
Evelle J. Younger, Attorney General; Carl Boronkay, Ass't Attorney General; Roderick Walston, Dennis D. Smaage, Richard Jacobs, Deputy Attorneys General
6000 State Bldg., San Francisco CA 94102
(415) 557-2620

For himself, Carter & Wallace, JJ.