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6 ELR 20047 | Environmental Law Reporter | copyright © 1976 | All rights reserved Sierra Club v. MortonNo. C-71-500-CBR (400 F. Supp. 610, 7 ERC 2153) (N.D. Cal. July 28, 1975)This action was brought by environmental groups seeking to preserve the Sacremento Delta waterway area. The district court finds that major elements of the California Water Project were constructed and are presently operated without proper authorization, in violation of §§ 9 and 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401 and 403, ELR 41141; the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., ELR 41009; and the California Environmental Quality Act, Cal. Pub. Res. Code §§ 2100 et seq., ELR 43010. The facilities in question are two pumping plants located in the Sacramento Delta area. In addition, a proposed peripheral canal would, if built, also be in violation. The facilities are intended to redistribute the plentiful waters of northern California to the arid and semi-arid areas of central and southern California. The Delta area includes 700 miles of meandering waterways, some of which are navigable. Evidence has shown that operation of the facilities in question causes water levels in navigable waters to drop from one to one and a half feet, and actually cause net flow reversals in rivers flowing to the Pacific. The court finds an implied private right of action under the Rivers and Harbors Act. Plaintiffs are members of the class for whose benefit the statute was specifically enacted; §§ 9 and 10 were intended by Congress to prevent injuries to private parties resulting from unauthorized obstructions to navigable capacity; and suits by private individuals are consistent with the underlying purposes of the legislative scheme. Cort v. Ash. 422 U.S. 66 (U.S. 1975); Alameda Conservation Ass'n v. California, 437 F.2d 1087, 1094-95, 1 ELR 20097 (9th Cir. 1971). The court rejects Red Star Towing and Transportation Co. v. Dep't of Transportation Co., 423 F.2d 104, 106 (3d Cir. 1970). Where the proposed canal crosses the Middle River, complete damming of the river would result. Further, there is presently no provision to pass boats by the canal. Thus, as proposed, the canal would be a "dike" within the meaning of § 9. Citizens Comm. for the Hudson Valley v. Volpe, 302 F. Supp. 1083, 1089 (S.D.N.Y. 1969), aff'd, 425 F.2d 97 (2d Cir. 1970). Section 9 is not, however, applicable to the Delta and Tracy pumping plants as both are at least two miles from any navigable water. But § 10, which prohibits the creation of any obstruction to navigable capacity without proper authorization, does apply to the pumping stations. The court rejects defendants' contrary contention based on the fact that the structures are not "over or in" navigable waters. Section 10 does not require that such an obstruction actually be "over or in" the water, United States v. Republic Steel Corp., 362 U.S. 482, 486 (1960), but merely that a condition exists which could potentially limit the navigable capacity of the waterway. Operation of the Tracy plant has been shown to do this by lowering of water levels of waterways within the Delta and by causing the waters to flow upstream. The court holds that although the exact magnitude of effect is not precisely established, it far exceeds the de minimus exception established by United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 708 (1899). Under Wisconsin v. Illinois, 278 U.S. 367 (1929), congressional authorization is not necessary for actions within the second and third clauses of § 10, which relate to building certain structures and modifying the capacity of navigable waters. Obstructions of the type in question need only be recommended by the Chief of Engineers and authorized by the Secretary of the Army. With respect to the canal, defendants do not even contend that proper authorization has been obtained. As for the pumping plants, defendants assert that authorization has been accomplished by virtue of various § 10 permits, FPC licensing approvals, and congressional action. The court rejects this view, holding that the letters and permits offered as evidence of authorization do not establish the specific authorization required. It distinguishes Scenic Hudson Preservation Conf. v. Callaway, 370 F. Supp. 162, 167 (S.D.N.Y. 1973), aff'd, 499 F.id 127, 4 ELR 20530 (2d Cir. 1974). Just because the Corps of Engineers was a member of the Interagency Delta Committee does not mean that it must be deemed to have had constructive knowledge of the entire facility and thus to have approved it. Likewise, general FPC licensing and approval of the navigational aspects of the California aqueduct system did not amount to authorization. The court also rejects the argument that certain acts of Congress constituted consent. Such authorization must be express; in giving general approval to the Central Valley Project by appropriating funds Congress did not agree to relinquish its § 10 responsibilities for the entire project. The plaintiffs' alleged violations of §§ 2 and 3 of the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 662 and 663, ELR 41801-03, are dismissed because no private right of action exists under it. Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 749, 754, 1 ELR 20130 (E.D. Ark. 1971). The court concludes that NEPA has been violated because no adequate environmental impact statements were prepared for these projects, which are major federal actions primarily because of the fact that licensing by the Corps of Engineers is required under the Rivers and Harbors Act. Davis v. Morton, 469 F.2d 593, 597-98, 2 ELR 20758 (10th Cir. 1972). Federal agencies, in complying with NEPA, must consider the existence of present facilities in making future decisions so as to minimize adverse environmental consequences. NEPA is not intended to validate past unlawful construction and operation of facilities, but rather to ensure future operation in accord with the law. The California Environmental Quality Act imposes similar requirements. The court orders the federal and state defendant agencies to obtain Corps of Engineers approval of these projects under §§ 9 and 10 of the Rivers and Harbors Act by a date to be established at a later scheduled hearing. The court also orders the Corps to prepare and file an environmental impact statement with respect to the Tracy and Delta pumping plants, which statement must be completed prior to its action under the Rivers and Harbors Act. It is further ordered that no work shall commence on the peripheral canal until such an impact statement has been completed by the Corps and until the requisite approval is given under the Rivers and Harbors Act. If the Bureau of Reclamation files an EIS on the canal, the court will accept it in lieu of that ordered filed by the Corps. The full text of this opinion is available from ELR (62 pp. $7.50, ELR Order No. C-1005). Counsel for Plaintiffs Gary Near Michael R. Sherwood Counsel for Defendants Evelle J. Younger, Attorney General Counsel for Intervening Defendants James G. McCain Albert T. Henley Daniel F. Gallery Renfrew, J. [OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE] 6 ELR 20047 | Environmental Law Reporter | copyright © 1976 | All rights reserved |