Full opinion text
MEMORANDUM DECISION AND ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [FED. R. CTV. P. 56] WANGER, District Judge. I. INTRODUCTION Central Delta Water Agency, South Delta Water Agency, Alexander Hildebrand, and R.C. Farms, Inc. (“Plaintiffs”) move for summary judgement pursuant to Fed. R.Civ.P. 56 against the United States of America, et al. (“Federal Defendants”) and San Joaquin River Group Authority, et al. (“Intervenors”). Defendants move for summary judgment against Plaintiffs claiming the court should abstain from hearing Plaintiffs’ claims. At issue in this case is whether Defendants have violated the terms of the Central Valley Project Improvement Act (“CVPIA”) by improperly allocating water under CVPIA § 3406(b)(l-3), thereby causing Plaintiffs’ irrigation water to become excessively sali-nated. II. BACKGROUND This lawsuit is brought by four Plaintiffs, two water agencies chartered by the State of California and two private parties. Central Delta Water Authority (“Central Delta”) and South Delta Water Authority (“South Delta”) are water agencies created by the legislature in 1973 to ensure that the lands within their respective jurisdiction (i.e., within the Delta area) have a dependable water supply of suitable quality sufficient to meet present and future needs. The charters of the two agencies allow them to commence litigation to further their goals. See Cal. Water Code App. §§ 116 — 4.2(b), 117-4.3(b). The two private parties are both farmers. R.C. Farms, Inc., owns farmland within Central Delta’s service area, riparian to the channels of the Delta, and “had a permitted license from the State Water Resources Control Board to divert water from the San Joaquin River.” Doc. 191, Federal Defendants’ Statement of Undisputed Facts at 11, ¶ 53, filed October 31, 2003. Alexander Hildebrand owns approximately 150 acres of land adjacent and riparian to the San Joaquin River, in the South Delta service area. Hildebrand also claims to own various appropriative rights to divert water from the Central Valley Project (“CVP”) waterways. Plaintiffs sued the United States Bureau of Reclamation (“Bureau”) for declaratory relief and two other water agencies intervened. The two individual, private parties contend that the Bureau’s current method, of operating the New Melones Unit is highly likely to cause the salinity of the water in the Stanislaus River to exceed the Vernalis Standard at various times. Because they use that water to irrigate their crops, Plaintiffs contend that their ability to grow those crops will be severely hampered by the excessively salinated water. The CVP is the largest federal water management project in the United States. Originally authorized by the Rivers and Harbors Act of 1935, the project consists of 20 dams and reservoirs, 8 powerplants, and approximately 500 miles of major canals and aqueducts. The Project is located in the Central Valley Basin in California, which is roughly 400 miles long by 120 miles wide and includes the major watersheds of the Sacramento and San Joaquin River systems. The two rivers meet at the Sacramento-San Joaquin Delta (“Delta”), where the waters mix and then flow through the Carquinez Strait into San Francisco ,Bay and, ultimately, into the Pacific Ocean. CVP water is used for agricultural, municipal, industrial, power generation, and environmental protection purposes. The Central Valley is the heart of California’s renowned farm country, and the Project provides the water that is essential to its unparalleled productivity. In any given year, the CVP manages water sufficient to irrigate one-third of all agricultural land in California. The Project is operated by the Bureau, a division of the Department of the Interior (“Interior”). Pursuant to permits granted by the California State Water Resources Control Board (“Board”), the Project appropriates water from various mountain sources, and delivers it for beneficial uses to Central California areas. At issue in this case is the Bureau’s operation of the New Melones Unit, one of the many water management units that constitute the Central Valley Project. The New Melones Unit consists of the New Melones Dam on the San Joaquin River. The dam diverts water in the New Melones Reservoir. The Bureau operates the New Melones Unit pursuant to federal reclamation statutes as well as under four California water rights permits numbered 16597-16600, which were issued by the Board in water-rights decision 1422 (“D-1422”), rendered in April 1973. The permits allow for various uses of the water stored in the reservoir, including power generation, consumptive use in certain counties, and the preservation of fish and wildlife. D-1422 authorizes the Bureau to release certain amounts of water from the Reservoir to maintain local fishery populations so long as the salinity concentrations as measured downstream remain no greater than 500 parts-per-million (ppm). The gauging station where salinity levels are measured is located just below the confluence of the San Joaquin and Sacramento Rivers, at Vernalis, causing the salinity standard to be called the “Vernalis Standard.” Water that is used for fishery habitats is not released into the Stanislaus River. Plaintiffs contend that the less water the Bureau releases into the Stanislaus River, the higher the salinity level downstream at Vernalis, which is closer to the ocean. According to the Plaintiffs, water that exceeds the Vernalis Salinity Standard — that is, water that measures in excess of 500 ppm at Vernalis — has a significant negative effect on certain types of crops, and the Bureau’s compliance with the Standard determines what kind of crops they are able to grow. The permits to operate the New Mel-ones Project have been modified over the years in various ways, reflecting the intense competing demands for that Reservoir’s waters. Most relevant to this case, in 1995 the Board issued a new Bay Delta Water Quality Plan (“Bay-Delta Plan”), which included general objectives for the water quality of the Central Valley Project waters. These objectives were agreed to by the state and federal governments, urban, agricultural, and environmental interest groups. The Board issued water rights decision WR-95-6, which resolved some relatively minor inconsistencies between existing permits and the requirements of the Bay-Delta Plan. The new plan, inter alia: 1) changed the unit of measurement for the salinity reading at Vernalis from a ppm standard for total dissolved solids to an electrical conductivity measure; 2) established a lower salinity standard for the April-August peak irrigation season, and a correspondingly higher standard for the other months. The Ver-nalis Salinity Standard was changed. In 1992, Congress enacted the Central Valley Project Improvement Act (“CVPIA”) as Title XXXIV of the Reclamation Projects Authorization and Adjustment Act of 1992, Pub.L. 102-575, 106 Stat. 4600, 4706-31 (1992). The law took effect on October 31, 1992. The Act followed significant lobbying efforts by environmental groups to increase the amount of water from the CVP devoted to environmental purposes. The CVPIA consists primarily of provisions designed to ensure that the CVP is managed to further the protection and restoration of the natural environment. See §§ 3402, 3406. The Act provides generally that the CVP shall be operated in accordance with all obligations under state and federal law, and specifically requires compliance with decisions of the Board that impose conditions on applicable licenses and permits governing the project. Id. Three specific provisions of the statute relate to requirements that the CVP divert water to flood fishery areas to enhance the habitats of various aquatic life forms. Section 3406(b)(1) requires that the Bureau: [DJevelop within three years of enactment and implement a program which makes all reasonable efforts to ensure that, by the year 2002, natural production of 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. To implement this goal, § 3406(b)(2) specifies that the Bureau is required to manage 800,000 acre-feet (“AF”) of Project waters “for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title.” Section 3406(b)(2) also states that in calculating CVP yield to devote to the fish-doubling goal, the Bureau must comply with “flow and operations requirements imposed by terms and conditions existing in license, 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 .... ” Section 3406(b)(3) authorizes the Bureau to “develop and implement a program in coordination and in conformance with the plan required under [§ 3406(b)(1)] for the acquisition of a water supply to supplement the quantity of water dedicated to fish and wildlife purposes under [§ 3406(b)(2) ].” The Act requires Interior to implement a fish doubling and habitat protection program, in accordance with applicable state water use permits. Soon after the CVPIA’s passage, the Bureau adjusted its operations to comply with CVPIA requirements. The Bureau began diverting water for use in fish habitats that otherwise would have been released from the New Melones Reservoir into the Stanislaus and San Joaquin Rivers. Nothing in the Act requires the Bureau to take water from the New Melones Reservoir, as opposed to the many other Central Valley Project reservoirs, to comply with the fish habitat restoration requirements of § 3406(b). Nevertheless, as part of its efforts to meet (b)(2) requirements, the Bureau exercised its discretion to divert water from New Melones. In 1999, the Bureau adopted the New Mel-ones Interim Operations Plan (“Interim Plan”), which provided for the release of water from the New Melones Reservoir in April, May, and October to supplement fishery flows in the Delta and for the purchase of water from other users for the same purpose. Originally intended to be in place for only two years, the Interim Plan has continued in effect for more than five years through the present. III. PROCEDURAL HISTORY This case was filed in May 1999, after the Bureau adopted the Interim Plan and began releasing water from New Melones in order to comply with §§ 3406(b)(l-2) of the Act. The Plaintiffs sought a temporary restraining order to prevent the release of such water unless the Bureau reserved an amount of water sufficient to meet the Vernalis Standard (i.e., water that does not exceed 500 ppm at Vernalis). After a hearing, the Plaintiffs withdrew their motion. The parties filed cross-motions for summary judgment and, after oral arguments, the District Court granted Defendants’ motion with respect to all Plaintiffs’ claims except for those of Stockton East Water District (“SEWD”) under its interim CVP water service contract, ruling: 1) “none of the Plaintiffs have standing to challenge the Bureau’s release of water from New Melones,” and that 2) “previous administrative and judicial proceedings regarding the management of the New Melones Unit barred this action on the grounds of claim and issue preclusion.” The District Court certified the decision for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b). In Cent. Delta Water Agency v. United States, 306 F.3d 938, 946, 951-52 (9th Cir.2002), the Ninth Circuit reversed the decision on the issues of standing and claim and issue preclusion and remanded the matter in a 2-1 decision. On this issue of standing, the Ninth Circuit found that “the risk of harm to [farmer] Plaintiffs’ crops created by the Bureau’s water management procedures ... [wa]s sufficient to afford Plaintiffs standing.” Id. at 950. The two agencies had “associational standing” because the “individual plaintiffs ha[d] standing[,] ... the two state agencies seek to protect interests germane to their purposes[,] ... [and] the individual landowners within the agencies’ jurisdictions (other than the individual Plaintiffs) need [not] be parties to this case.” Id. at 951. The Ninth Circuit also found that claim preclusion did not bar Plaintiffs’ claim because “the prior litigation [did not] involve[ ] the same claim or cause of action as [this suit]” and that issue preclusion was not a bar because “[t]he two actions [were] not ‘identical.’ ” Id. at 952, 953. The United States of America, et al., (“Federal Defendants”) moved for summary judgment against Central Delta Water Agency, et al., (“Plaintiffs”). Doc. 189, Federal Defendants’ Motion (“Federal Defendants’ Motion”), filed October 31, 2003. Plaintiffs cross-moved for summary judgment against Federal Defendants. Doc. 193, Plaintiffs’ Motion for Summary Judgment Against All Defendants (“Plaintiffs Motion”), filed November 3, 2003; Doc 194, (“Plaintiffs’ Memo”), filed November 3, 2003. Plaintiffs submitted a statement of undisputed facts and four declarations in support of their motion. Docs. 195-99. Federal Defendants opposed November 26, 2003. Doc. 201. Plaintiffs replied December 1, 2003. Doc. 202. Plaintiffs filed opposition to Federal Defendants’ motion for summary judgment and submitted a declaration to support their opposition. Docs. 203 and 204, filed December 1, 2003. The San Joaquin River Group Authority (“Intervenors”) submitted opposition to the Plaintiffs’ motion, its own statement of undisputed facts, and a declaration in support of its opposition. Docs. 205-07, filed December 4, 2003. Federal Defendants replied to opposition to its motion for summary judgment. Doc. 208, filed December 12, 2003. Plaintiffs replied to opposition to their cross-motion for summary judgment. Doc. 209, Plaintiffs’ Joint Reply to Opposition to Motion for Summary Judgment, filed December 15, 2003. Oral arguments were heard January 12, 2004. IV. STATEMENT OF FACTS A. Statements of Undisputed Fads 1.Statement of Undisputed Fads for Defendants’ Motion for Summary Judgement 1. The Bureau of Reclamation (“Bureau”) operates New Melones Reservoir, part of the Central Valley Project (CVP). 2. The CVP is operated by the Bureau pursuant to federal reclamation law and water rights permits and licenses issued by the State Water Resources Control Board (SWRCB). 3. New Melones Reservoir is located on the Stanislaus River and has a capacity of approximately 2.4 million acre feet. 5. In 1987, Reclamation executed an agreement with the California Department of Fish & Game which requires Reclamation to release annually from New Melones between 98,000 acre feet and 302,600 acre feet for fishery purposes. 8. Central San Joaquin Water Conservation District has a contract with Reclamation for a supply of water from New Melones. Stockton East Water District (“SEWD”) has a contract for an interim supply of water from New Melones. 9. The SWRCB issued Bureau’s initial permits for New Melones in 1973 pursuant to Water Right Decision D-1422. 10. Among the conditions in the D-1422 permits were that Bureau provide releases for the two senior water rights holders, South San Joaquin Irrigation District and Oakdale Irrigation District; meet fishery needs; and provide for the dilution of salinity. 12. A number of protests were filed to D-1485. See United States v. State Water Resources Control Board, 182 Cal.App.3d 82, 227 Cal.Rptr. 161 (1986) (“Racanelli Opinion”). 13. Among the protesters were the Delta riparians (including Central Delta and Hildebrand) who alleged that the SWRCB’s actions in issuing D-1485 were inadequate in failing to provide more stringent water quality standards to protect their existing rights to use Delta waters against excess salinity. 14. Judge Racanelli stated that “[t]he Delta riparians contend they are entitled to the free use of water flowing by their land ....” 182 Cal.App.3d at 112, 227 Cal.Rptr. 161 (emphasis added). 15. Judge Racanelli held: “Riparians have no rights to a specific amount of water. Rather, they enjoy as an incident of common ownership with other riparians on the stream a correlative share in the natural flow. (Emphasis added). Thus, in times of water shortage, all riparians must curtail their usage in order that they share the available water. Similarly, all ripari-ans must curtail their usage in order that they share the available water.” 182 Cal.App.3d at 104, 227 Cal.Rptr. 161. 19. In October, 1992, Congress enacted the Central Valley Project Improvement Act (CVPIA). Under § 3406(b)(2) of the CVPIA, the Secretary of the Interior was directed to dedicate and manage 800,000 acre-feet of CVP yield to be used for fisheries and wildlife purposes. 20. “For the purpose of this section, the term ‘Central Valley Project yield’ means the 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.” Section 3406(b)(2) of the CVPIA. 22. The pulse flow objective required significantly higher water flows at Vernalis for a one month period (approximately April 15 — May 15). 23. On March 6, 1995, the United States Fish & Wildlife Service (FWS) issued a biological opinion (BO) which addressed the impact of Bureau’s CVP operations on the Delta smelt. The BO required a spring (April 15 — May 15) pulse flow at Vernalis to ensure the movement of the smelt past the export pumps in the southern Delta. 24. The March 6, 1995, BO required flow at Vernalis in the February through June period to contribute to compliance with the “X2” standard for Delta outflow. 27. Several parties, including these Plaintiffs, petitioned the SWRCB for reconsideration of WR 95-6. The petitions were denied by WR 95-14. 28. In addressing Plaintiffs’ claims that Reclamation was violating the terms of its permits, the SWRCB found: Among other beneficial uses, the USBR’s New Melones permits authorize appropriation of water for fish and wildlife preservation and enhancement uses. During the time since the New Melones permits were approved under Water Rights Decision 1422 in 1973, the USBR’s water right permits have not limited the amount of water the USBR can release for fishery protection without violating its water rights permits. Order WR 95-6 did not change this. Consequently, the USBR can release as much water as is necessary for fishery protection without violating its water rights permits. (Emphasis added). 30. The Interim Plan established criteria for sharing the water supply and is based upon forecasted inflow to New Mel-ones and carryover storage. 31. The San Joaquin River Agreement (SJRA), finalized in January 1999, uses the New Melones Interim Operations Plan as the base assumption for the Stanislaus River and contemplates that the Interim Operations Plan for New Melones will be modified. 33. In Decision 1641, 1999 WL 149883 at *55 (Dec. 29, 1999), the SWRCB found: A key issue of Phase 5 of the Bay-Delta Water Rights Hearing was how to allocate responsibility for meeting the southern Delta salinity objectives. The 1995 Bay-Delta Plan contains salinity objectives for the San Joaquin River at Vernalis and for three locations within the southern Delta ... to protect agricultural beneficial uses of water in the southern Delta .... The USBR is required, under its New Melones permits issued pursuant to D-1422 and D-1616, to meet the salinity objective at Vernalis .... The USBR historically has met its responsibility for salinity control in the Delta by releasing water from New Mel-ones Reservoir as required under D-1422 .... Currently, Order WR 98-09 requires the USBR to meet instead the Vernalis salinity objective in the 1995 Bay-Delta Plan. The SWRCB reserved jurisdiction over the permits for New Melones Reservoir for the purpose of revising the release requirements for water quality objectives. 34. In March 2000, the SWRCB issued Revised Water Right Decision 1641. In addressing actions to meet the Vernalis salinity objectives, the SWRCB found: Some parties in the hearing suggested that the USBR should consider potential sources of dilution water other than New Melones Reservoir. The USBR presented testimony that it has acquired water from other parties for the purpose of meeting flow objectives on the San Joaquin River at Vernalis and has considered the use of water from the Delta-Mendota Canal to meet the water quality objectives. The USBR has not considered using water stored in Millerton Lake [Friant Unit] because it believes that conveyance losses due to percolation and uncontrolled diversions are in the order of 50 percent. Because other sources of water are available, the USBR has not made an effort to determine the actual conveyance losses that would occur if water is released from Friant for salinity control at Vernalis .... Westlands Water District (WWD) requested that the SWRCB not take any action that would affect its CVP deliveries. If the SWRCB were to amend the CVP water right permits to require compliance with the southern Delta salinity objectives using only dilution water, there could be adverse effects on the water supply of CVP contractors south of the Delta, including WWD. Revised Decision 1641, 1999 WL 1678482, *53-54. 36. “The USBR historically has met its responsibility for salinity control in the Delta by releasing water from New Mel-ones Reservoir as required under D-1422.” (Revised Decision D-1641, Introduction, Para. 10.1, *52). 37. “Riparian right holders cannot ... require that water stored in another season be released for their benefit. Water stored in another season is not natural flow of the stream. Riparian rights attach only to the natural flow of a stream. [Citations omitted]. Further, riparian rights do not attach to water that has been stored upstream during an earlier period. [Citation omitted]. Thus, if water previously stored in another season is flowing in the stream, that water is not available to riparian right holders.” (Revised Decision D-1641, Introduction, Para. 6.3.2.1., *10). Plaintiffs’ Response: Undisputed as to accuracy of the quote. Disputed as to legal conclusion. 38. In 1999, these Plaintiffs filed this lawsuit alleging that Bureau has violated § 3406(b) of the CVPIA. 39. This Court found that Plaintiffs had “failed to demonstrate the existence of actual injury.” The Bureau’s state water permits require that it schedule releases at New Melones Reservoir to maintain a certain water quality level at Vernalis. See Permit for Diversion and Use of Water, ¶ 19 .... Plaintiffs assert that the Bureau has determined how much water it will allocate to water quality purposes under its interim plan of operations at New Melones ... and that the Bureau’s modeling based on that allocation shows that it will not meet the water quality requirements at Vernalis in 31 of 71 year types .... If the Bureau fails to maintain water quality, downstream users will be adversely affected. However, Plaintiffs presented no evidence that the Bureau is currently violating, or has ever violated, the water permits. Rather, the evidence presented establishes only, at best, that the Bureau may not meet the requirements of its water permit at some future time. Under Plaintiffs’ own analysis, it is more likely than not that the Bureau will not violate the water permits, i.e., in 40 of the 71 year types. Moreover, Plaintiffs’ assertion that the water quality provision will be violated assumes that the Bureau will take no remedial action if, in fact, the Bureau ever fails to satisfy the requirements of its water permits. This is far from demonstrating “a very significant possibility that the future harm will ensue.” Therefore, this alleged injury is too speculative to provide a basis for standing. (Emphasis added). 40. Plaintiff Alexander Hildebrand, in his deposition taken on May 27,1999, testified that there had been no water quality problems in the previous four years. Q: The last four years you have indicated have been wet. Have you had water quality problems at any time during these last four years? A: None that I am aware of. (In the Matter of Bay-Delta Water Rights Hearing, SWRCB, Deposition of Alexander Hildebrand, May 27, 1999.) 41. In his most recent deposition, Mr. Hildebrand testified when asked whether there had been any water quality violations at Vernalis, focusing on agricultural beneficial uses: I don’t recall whether there has been a violation during that period, but we are much aware of the fact that the interim operating plan would, by the Bureau’s own analyses, not meet that requirement in many years over a period of time in July and August and that the violations could be substantial. (June 17, 2003 Deposition of Alexander Hildebrand taken by SJRGA at Tr. 62). 42. Mr. Hildebrand testified at his June 17, 2003, deposition that he was unaware of any violations [of the Vernalis Standard], (Id at 63). 43. When asked by counsel for the Federal Defendants at the June 17, 2003, deposition how alleged violations of the Vernalis Standard were violations of the CVPIA, as alleged by Plaintiffs, Mr. Hildebrand testified: “I can’t segregate between the CVPIA and just the CVP, but the CVP certainly is contributing to the problems we have in the South Delta in both quantity and quality of water levels.” Id. at 79. 44. In a deposition taken in 1998, Mr. Hildebrand testified that the construction of Friant Dam was to blame for less water in the Delta. (Tr. 104-105, Bay-Delta Proceedings before the SWRCB, Deposition of Alex Hildebrand, June 25, 1998). 45. In discovery conducted after the remand from the Ninth Circuit, the Plaintiffs were served with the following document production request: “For each individual and/or group allegedly holding a water right cognizable under State law, provide all documents supporting such alleged water right.” 48. McMullin Reclamation District No. 2075, San Joaquin Water Association and the San Joaquin River Water Users Company are not named Plaintiffs nor is there any indication that they are members of either CDWA or SDWA. 49. Mr. Hildebrand testified at his June 17, 2003, deposition at p. 92 that the San Joaquin River Water Users Company was a co-op. 51. Mr. Herrick, counsel for SDWA, stated at the deposition of Mr. Hildebrand on June 17, 2003, Tr. 71 that “the agency doesn’t hold any license.” 52. A witness for Plaintiff R.C. Farms was asked at his deposition on June 24, 2003, whether R.C. Farms had appropria-tive water rights. The witness responded: ‘Tes. We have riparian rights.” 53. When asked whether R.C. Farms had a permitted license from the State Water Resources Control Board to divert water from the San Joaquin River, the witness testified that he was not sure. 54. In its decision, the Ninth Circuit panel stated: “There is little doubt that a court order could remedy any resulting injury to Plaintiffs by ordering the Bureau to select different means to comply with the Act, so that the proper salinity levels in the San Joaquin river are maintained.” 55. This Court has held that “[t]he Bureau has discretion to prioritize and re-prioritize releases and CVP water allocations to re-balance the overall CVP.” Westlands Water District v. U.S., 153 F.Supp.2d 1133, 1168-69 (E.D.Cal.2001), aff'd, 337 F.3d 1092 (9th Cir.2003). 58. Sensitive to the impacts on New Melones, the SWRCB in Revised Decision 1641 at 83 noted: “The USBR has not considered using water stored in Millerton Lake [Friant Unit] because it believes that conveyance losses due to percolation and uncontrolled diversions are in the order of 50 percent.” The SWRCB, while acknowledging the views of Bureau, has directed Bureau to conduct studies proving the carriage losses if water from Friant, for example, were used. 2. Statement of Undisputed Facts for Plaintiffs’ Motion for Summary Judgement 1. Plaintiff Central Delta Water Agency (hereinafter “CDWA”) is a political subdivision of the State of California created by the California Legislature for the following general purposes: Sec. 4.1. The general purposes of the agency shall be to negotiate, enter into, execute, amend, administer, perform, and enforce one or more agreements with the United States and with the State of California, or with either, which have for their general purposes the following: (a) To protect the water supply of the lands within the agency against intrusion of ocean salinity; and (b) To assure the lands within the agency a dependable supply of water of suitable quality sufficient to meet present and future needs. The agency may also undertake activities to assist landowners and local districts within the agency in reclamation and flood control matters. (California Stats.1973, c. 1133, p. 2321, § 4.1. Amended by Stats.1982, c. 1360, p. 5060, § 5; codified in California Water Code Appendix § 117-4.) 2. Plaintiff South Delta Water Agency (hereinafter “SDWA”) is a political subdivision of the State of California created by the California Legislature for the following purposes: Sec. 4.1. The general purposes of the agency shall be to negotiate, enter into, execute, amend, administer, perform, and enforce one or more agreements with the United States and with the State of California, or with either, which have for their general purposes the following: (a) To protect the water supply of the lands within the agency against intrusion of ocean salinity; and (b) To assure the lands within the agency a dependable supply of water of suitable quality sufficient to meet present and future needs. The agency may also undertake activities to assist landowners and local districts within the agency in reclamation and flood control matters. (California Stats.1973, c. 1089, p. 2211, § 4.1. Amended by Stats.1987, c. 667, § 3; codified in California Water Code Appendix § 116.41) 4. The land of R.C. Farms, Inc., is within the Central Delta Water Agency. (Sharp Dec., p. 2, para. 3.) 10. Hildebrand also possesses appro-priative rights to divert water or may be supplied with water pursuant to licenses # 7143 (application # 19950), # 7144 (application # 19194), # 9228 (application # 13715), # 7568 (application # 17948), and # 4912 (application # 5316). (Doc. 196, Hildebrand Dec., p. 2, para. 3.) 11. Hildebrand’s land is within the South Delta Water Agency. (Id, p. 2, para. 1.) 16. The Central Valley Project is a project of, and operated by, Defendant U.S. Bureau of Reclamation pursuant to various acts of Congress, including among others, the Rivers and Harbors Act of 1935 (49 Stat. 1028, 1038). (Central Delta Water Agency v. United States, 306 F.3d 938, 943 (9th Cir.2002).) 17. The CVP is operated pursuant to permits granted by California’s State Water Resources Control Board. (Id.) 18. Under the provisions of the Flood Control Act of December 22, 1944, and October 23, 1962, the New Melones Unit, consisting of New Melones Dam and Reservoir on the Stanislaus River, as part of the CVP, was authorized and constructed. (58 Stat. 887; 76 Stats. 1173.) 19. The New Melones Unit is permitted by SWRCB, to store and divert water. The Bureau holds SWRCB permit numbers 16597, 16598, 16599 and 16600, originally granted by the SWRCB in SWRCB Water Right Decision 1422. (“D-1422”, Req. For Jud. Not., Exh. “B”, p. 1-2; Exh. “C”, attachment following page 56.) 20. Permit numbers 16598 and 16599 are for the use of water for the generation of power only. Under the terms of the other two permits, consumptive use of water from the New Melones Unit is authorized only in the counties of Stanislaus, Calaveras, Tuolumne and San Joaquin. (Hildebrand Dec. Exh. “B”, para. 3.) 21. D-1422 conditioned the Bureau’s permits for New Melones on meeting the then existing water quality standard as measured at Vernalis of 500 parts per million of Total Dissolved Solids (“ppm” of “TDS”). (Req. For Jud. Not., Exh. “B,” p. 30-31.) 22. The permits state the Bureau shall make “releases of conserved water from New Melones for water quality control purposes ... to maintain a mean monthly Total Dissolved Solids concentration in the San Joaquin River at Vernalis of 500 parts per million or less ...” (Hildebrand Dec., Exh. “B”.) 23. The permits state: “In the event that the Water Quality Control Plan (interim) is amended or superceded, the foregoing water quality objectives shall be modified to conform to then current criteria.” (Id.) 24. Subsequent to D-1422, the Board adopted its 1995 Water Quality Control Plan which changed the 500 TDS standard to 0.7 electrical conductivity (EC) during the period April through August and 1.0 EC for the period of September through March (‘Vernalis Salinity Standard”). (Hildebrand Dec., p. 3, para. 6, Exh. “C”.) 25. The SWRCB Temporary Orders WR 95-6 and WR 98-9 added the changes set forth in the preceding paragraph to the Bureau’s New Melones permits. (Hildebrand Dec., p. 4, para. 7-8.) These changes were continued in SWRCB Decision 1641. (Declaration of John Herrick In Support of Motion for Summary Judgment served and filed herewith, para. 9.) 26. The Vernalis Water Quality standard was adopted for the purpose of protecting water quality for agricultural downstream water users. (Req. For Jud. Not., Exh. “B”, p. 11-13, 31-32.) 27. A 1987 agreement between the Bureau and the California Department of Fish & Game (“DFG”) requires the Bureau to release a minimum of 98,000 acre feet of water from New Melones Reservoir for fish and wildlife. (Hildebrand Dec., Exh. “D”, p. 3, Art. 11(A).) 28.The Bureau has been allocating and releasing and threatens to continue to allocate and release water for the purposes described in Central Valley Project Improvement Act (“CVPIA”) §§ 3406(b)(1) and (b)(2) from New Melones Reservoir to provide fishery flows. (Id., p. 6-7; Herrick Dec., Exh. “A”; Bowling Dep., p. 101.) 32. The SWRCB Vernalis Salinity Standard is a condition existing in the permits and licenses at the time of enactment of the CVPIA. (Req. For Jud. Not., Exh. “B”, p. 37.) 34. The Bureau has purchased and is making purchases of water on the Stanis-laus River and on other tributaries to the San Joaquin River. (Hildebrand Dec., p. 9, para. 22; p. 10, para. 25.) 38. Interior’s DOI Exhibit “4-H Corrected,” attached as Exhibit “E” to the Hildebrand Dec. shows the Bureau’s allocations of New Melones water for the years 1991 through 1997. (Hildebrand Dec., Exh. “E”.) 39. The Bureau violated the SWRCB Vernalis Salinity Standard in 1992, 1993 and 1994. (Hildebrand Dec., p. 6, para. 15, and Exh. “G”; Herrick Dec., Exh. “A”; Bowling Dep., p. 22.) B. Statements of Disputed Facts 1. Facts from Defendants’ Motion for Summary Judgment that Plaintiffs Dispute 4. Reclamation must annually deliver 600,000 acre feet from New Melones to two senior water rights holders, South San Joaquin Irrigation District and Oakdale Irrigation District. 6. Reclamation must meet a water quality standard at Vernalis established by the SWRCB pursuant to its delegated authority under the Clean Water Act. 7. Between 80,000 and 175,000 acre feet annually is needed to meet the Vernal-is Standard. 11. In 1978, the SWRCB issued D-1485, promulgating new Bay-Delta water quality standards. 500,000 to 1,000,000 additional acre feet annually was needed to comply with the new standards. 16. The so-called “Delta standards” were first formulated in November 1965 under D-1275. 182 Cal.App.3d at 109, 227 Cal.Rptr. 161. 17. Judge Raeanelli held that the SWRCB had no obligation to set water quality standards so as to provide salinity control to the southern Delta riparians. 182 Cal.App.3d at 122, 227 Cal.Rptr. 161. 18. Term 91, adopted in D-1594, requires that water right permit holders not divert water under certain conditions, in particular, when the CVP and the State Water Project (SWP) are supplementing natural and abandoned flows with stored water. Term 91 is intended to prevent a permit holder’s diversions from causing a violation of Delta water quality standards or forcing the two Projects to release even more stored water. 21. In December, 1994, various entities, including Federal and State agencies, entered into the Bay-Delta Accord. The major purpose of the Accord was to address issues of water quality standards for the Bay-Delta. Therefore, new Delta water quality standards, including a new salinity standard and a spring “pulse flow” requirement at Vernalis, were developed. 25. The SWRCB adopted a water quality control plan (1995 WQCP) requiring spring flows similar to those in the March BO, and implemented the 1995 WQCP through Water Rights Decisions 95-6 and 98-9. 26. The SWRCB, in June 1995, adopted Order WR 95-6 which approved, in part, petitions filed by Bureau and the California Department of Water Resources (DWR) for permit changes to reflect the implementation of new water quality standards during the pendency of State Board proceedings to allocate responsibility for those standards. 29. In 1996, the New Melones Interim Operations Plan was developed in an attempt to address the need for compliance with all of Bureau’s legal obligations at New Melones as well as the need to address contractor demands. 32. For several years, the SWRCB has been conducting hearings “In the Matter of: Implementation of Water Quality Objectives for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary.” 35. The SWRCB, in addressing the obligations of Reclamation with regard to the Salinity Standard at Vernalis, stated: [Tjhis order amends the CVP permits under which the USBR delivers water to the San Joaquin basin to require that the USBR meet the 1995 Bay-Delta Plan salinity objectives at Vernalis. The USBR has wide latitude in developing a program to achieve this result. The USBR should consider sources of dilution water other than New Melones Reservoir and other means of reducing the salinity concentration in the southern Delta. This decision conforms Condition 5 of D-1422 to the southern Delta salinity objectives in the 1995 Bay-Delta Plan and to the current Basin Plan. If, in five years, modeling and planning studies indicate that salinity objectives will not be consistently achieved, the USBR shall report to the Chief of the Division of Water Rights all activities that were taken in attempting to meet the objectives, including out-of-valley alternatives. Id., *55. This decision requires the USBR to meet the Vernalis objective using any measures available to it .... Although the salinity requirement is applicable to all SWP [State Water Project] and CVP water rights, it should not be construed as requiring that the SWP or the CVP must use water from a particular source if it has another way to meet the requirement. For example, including the salinity control requirement in the Fri-ant permits should not be construed as directing the USBR to use Friant water. Id., *58. 46. On September 24, 2003, counsel for the Federal Defendants reviewed the documents produced by Plaintiffs in response to the request noted above. The following documents were produced: a. “Application for a Permit,” filed by McMullin Reclamation District 2075, dated December 1926. b. “Application for a Permit,” filed by McMullin Reclamation District 2075, dated May 1950. c. “Application for a Permit,” filed by San Joaquin Water Association, dated January 1958. d. “Application for a Permit,” filed by Alexander and Barbara Hildebrand, dated January 1960. e. “Application for a Permit,” filed by Alfred and Florence Grossi, dated February 1961. (For a permit in Marin County.) f. “License for Diversion” issued to McMullin Reclamation District No. 2075, dated May 1957. g. “License for Diversion” issued to Alexander Hildebrand and Barbara Fitch Hildebrand, dated November 1962. (Permit 12419) h. “License for Diversion” issued to Alexander Hildebrand and Barbara Fitch Hildebrand, dated November 1962. (Permit 11452) i. “License for Diversion” issued to San Joaquin Water Association, dated September 1965. j. “License for Diversion” issued to San Joaquin River Water Users Company, dated July 1969. 47. The only appropriative licenses issued by the SWRCB or its predecessor were issued to Mr. Hildebrand, McMullin Reclamation District No. 2075, the San Joaquin Water Association and the San Joaquin River Water Users Company. 50. With regard to riparian rights, the only document produced by Plaintiffs was an “ownership report” for the lands of Plaintiff Hildebrand. 56. The former operations chief for the CVP, Lowell Ploss, provided a declaration at trial in which he testified that if water quality were given the number one priority among the obligations imposed on Reclamation under Federal and State law [which is what the majority in this case suggested should occur], “fishery flows would be less than the minimum in 16 of 71 years. No water would be delivered for CVP contractors, CVPIA instream flows or to help meet the Bay-Delta Water Quality Control Plan.” 57. Lowell Ploss, the former chief of CVP operations, further testified that: For several reasons, Reclamation relies solely on New Melones to provide CVP water to meet flow-related requirements at Vernalis. First, New Melones is the CVP reservoir that can provide benefits to existing fisheries in the Stanislaus River, which ensures multiple uses for releases to Vernalis. It also is the closest CVP reservoir to Vernalis. Second, the New Mel-ones permits are the only permits from the SWRCB that impose Vernalis requirements (i.e., the salinity and pulse flow requirements). Third, releasing water from other CVP reservoirs for compliance at Vernalis has not been shown to be reasonable. Releasing water from Friant, for example, would create substantial losses of CVP water, due to seepage into the riverbed above the Mendota Pool. Releasing water from San Luis Reservoir through the Newman Waterway raises numerous fishery, structural and operational issues that impair the usefulness of this option. 2. Facts from Plaintiffs’ Motion for Summary Judgment that Defendants Dispute 3. R. C. Farms, Inc., is the owner of land riparian to the San Joaquin River on Lower Roberts Island, downstream of the confluence with Old River and upstream from the confluence with Middle River. (Declaration of Kurt Sharp In Support of Motion for Summary Judgment filed June 14, 2003, (“Sharp Dec.”), p. 2, para. 2.; Declaration of Christopher H. Neudeck in Support of Motion for Summary Judgment (“Neudeck Dec.”), para. 3.) 5. As an owner of riparian lands, R.C. Farms, Inc., is entitled to divert waters from the San Joaquin River system for reasonable beneficial uses upon those lands. (Id., p. 2, para. 3.) 6. The months of special concern for R.C. Farms, Inc., on the San Joaquin River are April through August, the peak irrigation months, and water quality is of great interest to R.C. Farms, Inc., because it impacts the crops grown by R.C. Farms, Inc. (Id., p. 2, para. 4.) 7. Higher salinity of the water at Ver-nalis typically means higher salinity in the R.C. Farms, Inc., irrigation water, which impacts crop production. (Id., p. 2-3, para. 5-7.) 8. As salinity rises at Vernalis, particularly above the Vernalis Standard, there is a corresponding negative effect on the irrigated crops grown by R.C. Farms, Inc. (Id., p. 3, para. 7.) 9.Alexander Hildebrand is the owner of approximately 150 acres of land adjacent and riparian to the east bank of the San Joaquin River and devoted to agricultural use, and as the owner of such riparian lands, he is entitled to divert waters from the San Joaquin River system for reasonable beneficial uses upon those lands. (Declaration of Alexander Hildebrand In Support of Application for Temporary Restraining Order, filed May 7, 1999, “Hildebrand Dec.”, p. 2, para. 2; Neudeck Dec., para. 5.). 12. The months of special concern on the San Joaquin River are April through August, the peak irrigation months. (Id., p. 9, para. 21(b).) 13. At times the water quality at Ver-nalis has determined what crops Hildebrand can grow. (Id., p. 9, para. 22.) 14. The number of crop varieties impacted and the magnitude of the impact rises rapidly as the salinity rises above the Vernalis Salinity Standard. (Id., p. 12, para. 29.) 15. Any time the Vernalis Standard is exceeded, there is a corresponding negative effect on the irrigated crops grown by Hildebrand. (Id., p. 12, para. 30.) 29. The releases for fish flows deplete the Reservoir’s storage and reduce the supply available to meet the SWRCB Ver-nalis Salinity Standard. (Hildebrand Dec., p. 5, para. 12, p. 13, para. 32, Herrick Dec., Exh. “A”; Bowling Dep., p. 53-54.) 30. The failure of Interior to meet the SWRCB Vernalis Salinity Standard degrades the quality of water utilized by riparian diverters, including plaintiffs and their constituents, who are legal users of water along the San Joaquin River below Vernalis and in other portions of the Sacramento-San Joaquin Delta. (Id., p. 3, para. 5; 9, para. 22, p. 12, para. 30; Sharp Dec., p. 2-3, para. 5-7.) 31. The current allocation and release of New Melones water is not the dedication of CVP yield after meeting the “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 the enactment” of the CVPIA on October 30, 1992. (Id., p. 7, para. 18; p. 13, para. 31-32, p. 14, para. 35.) 33. The Bureau as the operator of the CVP has not made the allocation of water for the purpose of meeting the Vernalis Water Quality Standard, before allocating water for § 3406(b)(1) and (b)(2) purposes. (Hildebrand Dec., p. 7, para. 17-18; Herrick Dee., Exh. “A”; Bowling Dep., p. 48.) 35. The Bureau’s purchases decrease summer flows in the year of the purchase and/or in subsequent years such that the amount of water budgeted for water quality in New Melones often times is not adequate for the Bureau to meet the water quality standards required by its permits. (Id., p. 11, para. 27; Herrick Dec., Exh. “C”, p. 112-113.) 36. The Bureau’s own modeling indicates it will fail to meet its water quality responsibility in 52 percent of the years, without any contingency plan to cure the shortfall. (Id., p. 8, para. 19.) 37. The Bureau has allocated water from New Melones for (b)(1) and (b)(2) purposes, and purchased water for (b)(3) purposes, without previously allocating the amount of water necessary to meet water quality standards. (Id., p. 7, para. 17-18; Herrick Dec., Exh. “A”; Bowling Dep., p. 27-28.) 40. The Bureau’s allocation for water quality purposes from New Melones is based upon how much remains after its allocation of water for (b)(1) and (b)(2) purposes. (Hildebrand Dec., p. 7, para. 18; Herrick Dec., Exh. “A”; Bowling Dep., p. 27-28.) 41. The Bureau’s allocation and release of § 3406(b)(1), (b)(2) and (b)(3) water, results in the unavailability of water to meet the SWRCB Vernalis Salinity Standard, and the deterioration in water quality in the San Joaquin River at Vernalis and downstream. (Id., p. 5, para. 11-12, p. 13, para. 32.) 42. Purchases of water from agencies or individuals on the tributaries of the San Joaquin River by the Bureau under the authority of the CVPIA § 3406(b)(3) have and will likely continue to result in the shift of flows in the tributaries and the San Joaquin River from the summer to the spring or fall. (Declaration of Alexander Hildebrand In Support of Motion for Summary Judgment, filed herewith (“Hildebrand Dec. 2003”), para. 5.) 43. Decreasing summer flows in the tributaries and the San Joaquin River decreases the dilution of the high salt concentrations in the San Joaquin River during summer months and thus requires greater releases from New Melones Reservoir in order to meet the Water Quality Objectives for Agricultural Beneficial Uses measured at Vernalis and three other locations in the southern Delta as specified in the 1995 Water Quality Control Plan. (Id., para. 6.) 44. Increasing releases from New Mel-ones Reservoir to make up for the shift in flows resulting from purchases on the tributaries on the San Joaquin River decreases the carryover storage in New Melones Reservoir which results in smaller allocations for water quality purposes from that reservoir in future years. (Id., para. 7.) 45. Decreased tributary flows will result in higher salt concentrations entering the Delta in summer and other months during those times sufficient dilution water from New Melones is unavailable to provide similar dilution or when the Bureau chooses to release insufficient water from New Melones. (Id., para. 8.) 46. Higher salt concentrations entering the Delta adversely affects agriculture and other beneficial uses of Delta water. (Id., para. 9.) 47. Providing water for transfers from the tributaries to the San Joaquin River without,a corresponding decrease in the consumptive use of water by the sellers will result in less carryover storage in the reservoirs on those tributaries, and thus less water available for all users dependent on that supply. (Id., para. 10.) IV. Legal Standard A. Motion for Summary Judgement Pursuant to Fed.R.Civ.P. 56 Summary judgment is warranted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence must be viewed in a light most favorable to the nonmoving party. Indiana Lumbermens Mut. Ins. Co. v. West Oregon Wood Products, Inc., 268 F.3d 639, 644 (9th Cir.2001), amended by 2001 WL 1490998 (9th Cir.2001). Facts are “material” if they “might affect the outcome of the suit under the governing law.” Campbell, 138 F.3d at 782 (quoting Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505). The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001). If the moving party fails to meet this burden, “the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of proof, the non-moving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. Triton Energy Corp., 68 F.3d at 1221. The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux, 263 F.3d at 1076. [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. “In order to show that a genuine issue of material fact exists, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.’” Rivera v. National Railroad Passenger Corp., 331 F.3d 1074, 1078 (9th Cir.2003) (quoting Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505). If the moving party can meet his burden of production, the non-moving party “must produce evidence in response .... [H]e cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir.2003). “Conclusory allegations unsupported by factual data cannot defeat summary judgment.” Rivera, 331 F.3d at 1078 (citing Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 922 (9th Cir.2001)). The more implausible the claim or defense asserted by the nonmoving party, the more persuasive its evidence must be to avoid summary judgment. See U.S. ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir.1995). Nevertheless, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor.” Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505. A court’s role on summary judgment is not to weigh evidence or resolve issues; rather, it is to find genuine factual issues. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir.1996). V. Legal Analysis A. Plaintiffs’ Motion for Summary Judgment Plaintiffs offer two arguments to support their motion for summary judgment. Plaintiffs contend “interior is ignoring the requirement that it first meet pre-CVPIA obligations, and not making provision for sufficient water to meet its water quality obligations.” Plaintiffs’ Motion at 8:24-26. Plaintiffs argue that Interior is failing to satisfy its obligations under D-1422, which it is required to do by CVPIA 3406(b)(2). Plaintiffs claim that: [b]y its own admissions, in its implementation of the CVPIA, Interior is ignoring the requirement that it first meet pre-CVPIA obligations, and not making provision for sufficient water to meet its water quality obligations. Indeed it is a matter of simple arithmetic that the Bureau reduces the amount of water available for water quality in order to provide section 3406(b)(2) water. Plaintiffs’ Motion at 8:24-28. Plaintiffs also contend that Interior’s “acquisition of (b)(3) water will increase the number of exceedances of the Vernalis Water Quality Standard ... contrary to the express direction [of] section 3406(b).” Id. at 4-6. Plaintiffs argue “that Interior’s present allocations and releases of (b)(1), (b)(2) and (b)(3) water, are contrary to law.” Plaintiffs’ Motion at 9:10-11. Federal Defendants and Defendants-in-Intervention filed two separate oppositions. Federal Defendants acknowledge that they must operate New Melones Reservoir in compliance with previously existing SWRCB permit conditions, which include Vernalis Salinity Standards. Federal Defendants’ Opposition at 4-8. Federal Defendants also acknowledge that “there is not enough water in the Stanis-laus River watershed during serious, prolonged droughts to fulfill the Vernalis Standard and all other SWRCB permit conditions, let alone provide water for project purposes.” Id. at 5. Federal Defendants object, though, to Plaintiffs’ contention that their New Melones Interim Plan of Operations (NMIPO) indicates a necessary future violation of the Vernalis Standard. Id. at 7:1-3. Federal Defendants respond that Plaintiffs’ reliance on a model, which depends on hypothetical future conditions, cannot provide a basis to infer that a future violation will occur. Id. at 7. As evidence, Federal Defendants offer their history of compliance, “even in the recent dry years.” Id. at 8:8-9. Due to changes in hydrological conditions that occur on a continuing basis, Federal Defendants argue that they should be afforded substantial discretion to determine how best to allocate the water from New Melones and to satisfy all statutory requirements. Id. at 8-12. The language of 3406(b)(2) does not require, they argue, that any particular portion of the yield allocation be used to satisfy the Ver-nalis Standard. Id. at 12-15. Their (b)(3) water purchases do not prevent compliance with the Vernalis Standard, because: “since 1995, the year before the water transfers under (b)(3) began,” no violation of the Vernalis Salinity Standard has occurred. Id. at 17:13-26. Finally, Plaintiffs’ suit is a “collateral attack on the findings of the SWRCB and should be rejected out of hand.” Id. at 18:15-18. Defendants-in-Intervention oppose Plaintiffs’ summary judgment motion arguing that because Plaintiffs challenge the application of 3406(b)(3) and not the statute’s validity, Plaintiffs must provide evidence of any alleged violations, which they have not done, and there is no showing how Defendants’ actions have violated 3406(b)(3). Defendants-in-Intervention Opposition at 6:17-8:2. Defendants contend no factual questions remain since “Plaintiffs have admitted that no excee-dances of the Vernalis Salinity Standard have occurred since 1995.” Id. at 12:8-9. As current (b)(3) purchases are not the cause of any future violations of the Ver-nalis Standard, at best the possible occurrence of future violations is wholly speculative. Id. at 13:12-21:24. Defendants-in-Intervention also argue that Plaintiffs have not established the existence of a “nexus” between (b)(3) purchases and the Federal Defendants’ ability to meet Vernalis requirements or the necessity for equitable relief. Id. at 22-26:17. Plaintiffs submitted a joint reply to Defendants’ two separate oppositions. Plaintiffs argue that Federal Defendants admit they do not have a plan to ensure Vernalis Salinity Standards are met and that the Ninth Circuit has indicated that the Defendants intention not to violate the standard is not necessarily sufficient to preclude Plaintiffs’ action. Plaintiffs Reply 2-3. This ignores the actual operating regime of the CVP which has consistently met the Standard since 1994, and that Defendants literally manage the CVP on a day-to-day basis. “A finite plan” to address specifically, the exact water sources for Vernalis Standards’ compliance, is neither practicable nor necessary, in view of the Bureau’s constant adjustment and reallocation of CVP water throughout each water year. Plaintiffs argue that Federal Defendants have no discretion in meeting Vernalis Standards because an agency only has discretion when the statute in question is ambiguous, and the CVPIA is not ambiguous. Id. at 3^4. This misapprehends that management of the CVP and implementation of the CVPIA have been expressly delegated by law (CVPIA) to Interior’s discretion. Plaintiffs complain that Federal Defendants’ (b)(3) purchase of “tributary flows that would otherwise flow in the San Joaquin do create a need for additional releases from New Melones, and sometimes worsen water quality ... [and will] increase the number of exceedances and the extent of exceedances of the Vernalis Standard.” Id. at 5:9-16. Plaintiffs claim that “the modeled operation with (b)(3) purchases shows that it is only a matter of time before the government’s (b)(3) purchases result in an increase in excee-dances, and an increase in the severity of exceedances.” Id. at 6:3-5. No excee-dance has occurred since 1994. Finally, Plaintiffs deny that their action is a collateral attack on the State Board Phase 5 proceedings. Id. at 6:8-9. Plaintiffs argue that Defendants-in