Citations
- 819 F. Supp. 2d 956
Full opinion text
MEMORANDUM DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT (DOCS. 52, 60, 62) AND MOTION TO STRIKE (DOC. 77)
OLIVER W. WANGER, District Judge.
I. INTRODUCTION.........................................................962
II.PROCEDURAL BACKGROUND ................................'...........963
III. JURISDICTION..........................................................963
A. 5 U.S.C. § 706(2) ......................................................964
B. 5 U.S.C. § 706(1) ......................................................964
IV. HISTORICAL BACKGROUND..........................'....................965
A. CREATION OF THE CVP .............................................965
B. OPERATION OF THE CVP........................:...................967
C. ALLOCATION OF CVP WATER........................................967
D. STATE LAW AREA OF ORIGIN STATUTES............................967
1. THE CALIFORNIA ATTORNEY GENERAL ANALYZES THE AREA OF ORIGIN STATUTES...................................968
2. THE BUREAU’S PERMITS FOR CVP WATER SUPPLY ARE CONDITIONED TO PROTECT APPROPRIATION OF WATER WITHIN THE AREA OF ORIGIN................................968
3. APPLICATION OF THE AREA OF ORIGIN STATUTES BY SWRCB AND REJECTION OF TCCA CLAIM FOR PREFERENCE TO CVP WATER.................................969
E. THE DISPUTED CVP WATER SERVICE CONTRACTS..................970
1. TCCA MEMBERS’ RIGHT TO CVP WATER UNDER THEIR LONG-TERM CVP WATER SERVICE CONTRACTS...............971
2. INTERIM CONTRACTS...........................................972
3. NEGOTIATION OF CURRENTLY OPERATIVE TCCA RENEWAL CONTRACTS: THE BUREAU’S INTERPRETATION AND PERFORMANCE ......................972
4. TCCA ACCEPTS LONG-TERM RENEWAL CONTRACTS WITHOUT PRIORITY ALLOCATION TERMS: THE SHORTAGE PROVISIONS.......................................973
5. TCCA MEMBERS’ VALIDATION OF ALL RENEWAL CONTRACTS IN STATE COURT.................................974
6. EXECUTION BY PERFORMANCE AND CONDUCT UNDER THE TCCA RENEWAL CONTRACTS.............................974
V.STANDARDS OF DECISION..............................................975
VI.LAW AND ANALYSIS ....................................................975
A. STATUTE OF LIMITATIONS .........................................975
B. CVP STATUTES AND SECTION 1U60 DO NOT CONTAIN OR SUPPORT THE PRIORITY ALLOCATION RIGHT TO CVP WATER THAT TCCA ADVANCES....................................975
1. STATUTORY INTERPRETATION OF THE CVP STATUTES.........976
a. Plain Language................................................976
b. Legislative History of the CVP Statutes...........................977
2. STATUTORY INTERPRETATION OF SECTION 11160 ...............978
a. Plain Language................................................978
b. Decades of Consistent Interpretation By the California Attorney General, the SWRCB, and the Bureau is That Section 1H60 Governs Appropriation Not Allocation of Water in the Area of Origin......................................................979
i. Attorney General Opinion...................................979
ii. The Bureau’s Interpretation of Reclamation Law..............980
iii. The SWRCB Has Independently Interpreted Section 1116 0 in the same manner as the AG Op..........................981
3. SECTION lU60’s INTERPRETATION BY THE AG Op., SWRCB, AND THE BUREAU ARE ALL CONSISTENT WITH THE PERMIT TERMS ...............................................981
4. SUBSEQUENT LEGISLATIVE ACTS...............................982
5. CALIFORNIA CASE LAW.........................................982
a. The El Dorado and Phelps Decisions.............................983
b. The SWRCB Cases Provide No Binding Or Persuasive Precedent...................................................984
6. Plaintiffs Interpretation of Section 11160 Conflicts With The Congressional Directive of the 1950 Act.............................985
C. CONCLUSION RE: STATUTES........................................986
D. INTERPRETATION OF LONG-TERM CVP WATER SERVICE CONTRACTS.......................................................987
1. FEDERAL CONTRACT LAW.......................................987
2. STANDARDS RE: THE BUREAU’S STATUTORY DISCRETION TO APPORTION CVP WATER IN TIMES OF SHORTAGE.....988
3. TCCA MEMBER LONG-TERM CVP CONTRACTS: SHORTAGE TERMS ........................................................989
a. Discretionary Interpretive Authority in Renewal Contract Shortage Provisions..........................................989
b. The Renewal Contract’s Shortage Provisions Are Not a Limitation on the Bureau’s Discretion to Apportion Contract Water.......................................................990
c. Article 18(a) in Not a Limitation on the Bureau’s Discretion to Apportion Contract Water.....................................993
d. Article 8 and l(u) Are Not a Limitation on the Bureau’s Discretion to Apportion Contract Water.........................993
4. CONTRACT NEGOTIATION AND PERFORMANCE.................993
5. CONCLUSION RE: INTERPRETATION OF THE CONTRACT RENEWAL TERMS.............................................995
6. EFFECT OF TCCA RENEWAL CONTRACT VALIDATION...........996
E. THE BAR OF EQUITABLE ESTOPPEL................................998
F. PLAINTIFF’S FUTILITY ARGUMENT IS WITHOUT MERIT..........1000
VII. CONCLUSION...........................................................1000
I. INTRODUCTION.
This lawsuit is brought by an association of Federal Water Contractors for federal water from the Sacramento River Division of the Central Valley Project (“CVP”) north of the San Joaquin-Sacramento Delta against the United States Department of the Interior (“Interior”), its Secretary, the Bureau of Reclamation (“Bureau”), and its Regional Director of the Mid-Pacific Region, and by Defendant-Intervenors, San Luis & Delta-Mendota Water Authority and Westlands Water District, Federal Contractors, who use CVP water on lands south of the Sacramento-San Joaquin Delta, and seeks to establish superior water rights under CVP water service contracts in the Sacramento Valley, which would limit and exclude export of CVP water south of the Delta, until after Plaintiff and its Members first receive 100% of their allocated CVP contractual water supply.
The Plaintiff, Tehama Colusa Canal Authority (“TCCA”), a Joint Powers Authority organized under the laws of the State of California, is comprised of 16 water agency members on whose behalf the case is brought. Cal. Gov’t Code § 6500, et seq. Plaintiff filed this suit on February 11, 2010, seeking injunctive and declaratory relief against implementation of the shortage provisions of Federal water service contracts under the Federal Administrative Procedure Act (“APA”), 5 U.S.C. §§ 702 to 706. Specifically, §§ 706(1) and 706(2).
II. PROCEDURAL BACKGROUND
After TCCA filed its complaint February 11, 2010, Defendant-Intervenors, San Luis & Delta-Mendota Water Authority and Westlands Water District were granted leave to intervene on April 16, 2010. Doc. 23; Doc. 34. The case was reassigned to this Court on April 23, 2010. Doc. 30. Federal Defendants filed the Administrative Record on July 16, 2010, and filed a Supplemental Administrative Record on October 14, 2010. Doc. 39; Doc. 43. On December 1, 2010 Plaintiff filed a motion for summary judgment. Doc. 52. Federal Defendants and Defendant-Interveners filed cross-motions for summary judgment on July 1, 2010. Doc. 60, 62, respectively.
III. JURISDICTION
Jurisdiction exists under 28 U.S.C. § 1331, as this case arises under the laws of the United States, specifically, § 8 of the United States Reclamation Act of 1902. Reclamation Act of 1902, ch. 1093, § 8, 32 Stat. 390 (codified at 43 U.S.C. § 383 (2006)). Section 8 is part of Federal Reclamation law that governs the Bureau’s operation of the CVP Act, authorizing the construction, repair, and preservation of certain public works on rivers and harbors, Pub.L. No. 75-392, § 2, 50 Stat. 844, 850 (1937), as amended and supplemented, August 4, 1939 (53 Stat. 1187), July 2, 1956 (70 Stat. 483), June 21, 1963 (77 Stat. 68), October 12, 1982 (96 Stat. 1263), as amended and supplemented October 27, 1986 (100 Stat. 3050), and Title XXXIV of the Act of October 30, 1992 (106 Stat. 4706) (Central Valley Project Improvement Act (“CVPIA”)) collectively referred to as “Reclamation Law;” (authorizing the Central Valley Project); S. Delta Water Agency v. United States, 767 F.2d 531, 536 (9th Cir.1985).
Jurisdiction is also invoked under the APA. Section 702 of the APA waives the sovereign immunity of the United States, its agencies, and its individual officers acting in their official capacity. U.S. v. Park Place Associates, Ltd., 563 F.3d 907, 929, n. 15 (9th Cir.2009) (APA waives sovereign immunity but does not confer federal jurisdiction). APA Section 704 authorizes review of “final agency action for which there is no other adequate remedy in a court.” Because neither Federal Reclamation law nor California Water Code (“CWC”) § 11460 (“Section 11460”) grants a right of judicial review, the APA provides the appropriate standard of decision. S. Delta Water Agency, 767 F.2d at 536-541 (holding that a claim that the Bureau’s operation of the CVP violated Section 11460 was reviewable under the APA.)
Plaintiffs declaratory and injunctive relief claims arise under 28 U.S.C. § 1361, 43 U.S.C. § 383, 28 U.S.C. § 2201 (declaratory relief) and Fed. R. Civ. Proc. 65 (injunctive relief).
Plaintiff claims 16 of its public agency members that supply water to agricultural or municipal and industrial water users or to both, received water from the CVP through the CVP’s Tehama-Colusa and/or Corning Canals pursuant to a “Long-Term Renewal Contract Providing for Project Water Service From the Sacramento River Division” between each member and the Bureau. TCCA, in turn, has a separate contract with the Bureau under which TCCA operates and maintains the Tehama-Colusa and Corning Canals and their related facilities on behalf of its members. All Defendants’ water service contracts are entered into and performed under Reclamation law.
Plaintiff and its Members’ first claim is based on the Bureau allegedly:
a) Reducing Plaintiffs water allocations under their water service contracts in times of “water shortage” disregarding area of origin protections and alleged priority right of Plaintiffs provided by CWC §§ 11460, 11463 and 11128; Reclamation Law; Fifth Amendment due process; and state law water rights under California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978);
b) Improperly declaring conditions of shortage as to Plaintiff while exporting CVP water outside the Sacramento River watershed and reducing Plaintiffs full contractual water allocations;
c) Arbitrarily allocating pro rata water allocations and/or shortages among all CVP water service contractors without applying area of origin protections and Plaintiffs “priority rights” to CVP water;
d) Violating the terms of Reclamation’s State-issued permits to operate the CVP by ignoring area of origin protection; and
e) Announcing conditions of water shortage, issuing a statement of legal authority to allocate CVP supply without compliance with area of origin protections, thereby issuing unlawfully restricted licenses to CVP supply, imposing an order or sanctions on Plaintiff as to its supply, and denying relief to Plaintiff.
The second claim is for injunctive relief under Fed.R.Civ.P. 65.
The third claim is for declaratory judgment under 28 U.S.C. § 2201.
The fourth claim seeks attorney’s fees pursuant to 5 U.S.C. §§ 504(a)(1) and 504(b)(1)(C) and the Equal Access to Justice Act, 28 U.S.C. §§ 2412(b) and (d).
Plaintiff asserts its claims are for violation of 5 U.S.C. § 706(2) for alleged agency actions that are arbitrary, capricious, unlawful, and in excess of statutory authority.
Defendants concede that review is available under Section 706(2), but is limited to claims arising within the six year statute of limitations under the APA. Hells Canyon Preservation Council v. U.S. Forest Service, 593 F.3d 923, 930 (9th Cir.2010).
TCCA further asserts that jurisdiction is proper under 5 U.S.C. § 706(1). Section 706(1) applies to compel agency action unlawfully withheld or unreasonably delayed. Pursuant to Section 11460, Plaintiff seeks to preclude the export of CVP project water necessary to preserve sufficient supply to meet TCCA Members’ and the area of origin’s present and future needs to the extent of their full contractual supplies. Judicial intervention under § 706(1) to compel action only applies to discrete agency action the agency is required to take. Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). A required “ministerial or nondiscretionary act” on which an agency can be ordered “to take action upon a matter, without directing how it shall act.” Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1112 (9th Cir.2005). Plaintiff suggests that water deliveries under the water service contracts is only ministerial. The Bureau’s annual water allocations under the CVP water service contracts are not ministerial, but rather entail uniquely discretionary action that requires it to interpret CVP contracts and balance all competing interests under operational constraints, to comply with other statutory requirements, including but not limited to, decisions of the SWRCB, the CVPIA, Reclamation law and the ESA. Westlands Water Dist. v. U.S., 153 F.Supp.2d 1133, 1144 (2001) (“Westlands 2001 ”) (“[the Bureau] has contractual authority and administrative discretion over how it provides water service among the CVP’s water and power-users, and how it picks its priorities among them.”)
Plaintiff invokes Natural Resources Defense Council v. Patterson, 333 F.Supp.2d 906 (E.D.Cal.2004) as authority for section 706(l)’s application because Section 11460’s “plain meaning, legislative history, and construction by the state court” all confirm Plaintiffs interpretation. Patterson is distinguishable as Cal. Water Code § 5937, at issue in that case, expressly required the Bureau to comply with its mandate to release water from Friant Dam. Id. at 916. Here, Congress leaves “to Interior the use of its considerable experience and expertise to implement CVP water supply allocations.” Central Valley Water Agency v. United States, 327 F.Supp.2d 1180, 1206 (E.D.Cal.2004), San Luis & Delta-Mendota Water Authority v. U.S. Dept. of Int., 637 F.Supp.2d 777, 805 (E.D.Cal.2008) (Bureau’s accounting [is] a complex process within the agency’s discretion).
Section 11460 does not provide a mandatory duty or ministerial discretion. Although § 11460 instructs that areas of origin are not to be “denied” of the “prior right” to “the water reasonably required to adequately supply the beneficial needs of the watershed,” it does not specifically identify what action the Bureau is required to take to protect such “prior right.” Section 11460 does not address whether: 1) the “prior right” is protectable by a requirement that limits the Bureau’s ability to divert water for export as the SWRCB has continuously interpreted the statute, or 2) whether the Bureau must provide CVP contractors within an area of origin a preference to CVP water at the expense of other CVP contractors. Without a mandatory duty or ministerial action, the Court is limited to'the inquiry whether the Bureau has made a discretionary decision, not to second guess whether the agency should have made a different decision. Coos County Board of Commissioners v. Kempthorne, 531 F.3d 792, 803 (9th Cir. 2008). The Bureau makes discretionary allocation determinations in performing all its CVP water service contracts. Plaintiff is not entitled to relief under § 706(1).
Relief by way of writ of mandate is equally unavailable under 28 U.S.C. § 1361 because that extraordinary remedy lies only to compel the performance of a clear nondiscretionary duty. Pittston Coal Group v. Sebben, 488 U.S. 105, 121, 109 S.Ct. 414, 102 L.Ed.2d 408 (1988).
IV. HISTORICAL BACKGROUND.
A. CREATION OF THE CVP.
California’s two largest rivers, the Sacramento and the San Joaquin, meet to form the Sacramento-San Joaquin Delta (“Delta”) south of the City of Sacramento. Their combined waters, if not diverted, flow through the Delta, Suisun Bay, and San Francisco Bay, to the Pacific Ocean. This region, commonly known as the Bay-Delta, is the hub of California’s two largest water distribution systems, the CVP, operated by the Bureau, and the State Water Project (“SWP”), operated by the California Department of Water Resources (“DWR”). In re Bay-Delta Programmatic Env. Impact Report Coordinated Proceedings, 43 Cal.4th 1143, 1151, 77 Cal. Rptr.3d 578, 184 P.3d 709 (2008). Plaintiff makes no claims against the DWR or its operation of the SWP. The CVP and SWP are operated in a coordinated manner under the Coordinated Operating Agreement, Administrative Record (“AR”) at 5046, et seq., and State Water Resources Control Board (“SWRCB”) Decision 1641(d), AR at 4106.
The California Legislature originally conceived the CVP “to conserve and put to maximum beneficial use the waters of the Central Valley of California.” S. Delta Water Agency, 767 F.2d at 533-34. Maximizing the use of the Central Valley’s water would be achieved by constructing an irrigation project capable of moving water from where water was plentiful in the north part of California above the Sacramento Valley, to the San Joaquin Valley, south of the Delta, which had abundant land but a shortage of water. United States v. Gerlach Live Stock Co., 339 U.S. 725, 728, 70 S.Ct. 955, 94 L.Ed. 1231 (1950); see also, California State Engineer Bulletin 12 at 22, Supplemental Administrative Record (“SAR”) at 3136.
The first step in development of the Projects was the California legislature’s enactment of the Central Valley Project Act of 1933, ch. 1042, 1933 Cal. Stat. 2643 (1933), which authorized construction of Kennett Dam and Reservoir (now Shasta Dam and Shasta Lake) on the Sacramento River, to pump water from the lower Sacramento River to the lower San Joaquin River, and Friant Dam on the San Joaquin River, with canals to carry water to the southern San Joaquin Valley. The Act also included the area of origin statutes, codified as CWC sections 11460-11463 and intended to protect water use within areas of origin. CWC §§ 11460 and 11463 were made applicable to the Bureau in 1951. See CWC § 11128.
The State of California was unable to finance the Project alone and sought participation by the United States to do so. Federal authorization for the CVP was enacted under the provisions of the Emergency Relief Appropriation Act of 1935, ch. 48, 49 Stat. 115, § 4. Congress re-authorized the CVP pursuant to the Rivers & Harbors Act of August 26, 1937, ch. 832, 50 Stat. 844, 850 and the Act of October 17, 1940, 54 Stat. 1198 (1940) (“Rivers & Harbors Act”). As initially authorized, the CVP did not include any facilities intended to provide water to the Sacramento Valley. Congress did not authorize any facilities for the CVP until 1950. See An Act to Authorize Sacramento Valley Irrigation Canals, Central Valley Project, California, Pub.L. No. 81-839, 64 Stat. 1036, § 2 (1950) (“1950 Act”), AR at 9136-38.
It is undisputed that the federal Legislative history for the 1950 Act describes it as: “a desirable step to implement the intent of the legislation of the State of California which preserves the water supply that will be required to meet present and future beneficial needs in the various watersheds of origin.” S.Rep. No. 81-2447 at 638-39 (1950), AR at 9131-32. Congress effectuated the California Legislature’s intent by bringing subsidized irrigation water to a valley that was then primarily devoted to dry-farming to “create a much more intensified and diversified farming economy.” Id. at 636, AR at 9133. The 1950 Act specifically addressed how the canals of the CVP, that served Plaintiffs members, would be operated. The 1950 Act did not direct that the canals be operated to provide area of origin contractors with a priority over other contractors, rather Congress required that the canals be “coordinated and integrated” with the operation of “the existing features of the Central Valley Project in such manner as will effectuate the fullest and most economic utilization of the land and water resources of the Central Valley of California for the widest public benefit.” 1950 Act, § 4 (emphasis added). This irreconcilable conflict between Plaintiffs position that areas of origin have statutory priority and the Congressional enactment that provided the existing features of the CVP were to be coordinated and integrated to effectuate the fullest and most economic use of the lands and water resources of the Central Valley of California for the widest possible public benefit is the crux of this dispute.
B. OPERATION OF THE CVP
The CVP operates under a Coordinated Operating Agreement between the Bureau and the DWR as an integrated unit. Westlands 2001, 153 F.Supp.2d at 1170-71. The modern CVP encompasses more than twenty (20) reservoirs and five hundred (500) miles of major canals, it continues to be generally operated as an integrated unit. Id. Contractors receiving water from the CVP do not apply for appropriative water rights from the SWRCB, as is required to perfect a water right from a California water source. Instead, they obtain CVP water — developed or appropriated through Bureau facilities — by contracting solely with the Bureau. 43 U.S.C. § 511 (authorizing Interior to contract with irrigation entities, not individual water users, for the delivery of Bureau Project water). It is undisputed that the Plaintiff nor any of its Members has ever applied for, nor has the SWRCB ever issued to them, appropriative water rights permits.
C. ALLOCATION OF CVP WATER.
The Bureau normally allocates CVP water between its divisions on a pro rata basis; except when 1) operational constraints or 2) contract provisions dictate priority allocation. M & I Water Shortage Policy at 1, SAR at 853 (providing general policy and operational constraints); Del Puerto Water Dist. v. U.S. Bureau of Reclamation, 271 F.Supp.2d 1224, 1243 (E.D.Cal.2003), aff'd O’Neill v. United States, 50 F.3d 677 (9th Cir.1995) (recognizing contract-based priority of Exchange Contractors to CVP water.) In dry water years, all CVP contractors have received less than their full contractual entitlements of water. The drought’s impact on water supplies, reservoir storage levels, and water allocation within the CVP has not been uniform. Operational limitations at the Delta facilities mean that allocation shortages are not solely a reflection of water supply conditions and contractors south-of-Delta usually bear an increased burden of the shortages.
The two dry water years at issue in this case are 2008 and 2009. In 2008, TCCA and other north-of-Delta water service contractors received 100% of their allocation, while south-of-the-Delta contractors received only 50%. AR at 2244.
In 2009, a drought year that caused the Governor of California to declare a State of Emergency; AR at 1862, north-of-Delta received 40% of their contractual quantity, while south-of-Delta contractors subject to operational constraints received only 10%. AR at 1862.
D.STATE LAW AREA OF ORIGIN STATUTES.
The area of origin statutes, CWC §§ 11460-11465 (“area of origin statutes”), were enacted to alleviate the concern that construction of the CVP would leave inadequate water supplies for local uses. United States v. State Water Resources Control Bd., 182 Cal.App.3d 82, 138, 227 Cal.Rptr. 161 (1986). Reclamation’s appropriation of water for the CVP is subject to those statutes. Natural Res. Def. Council v. Kempthorne, 621 F.Supp.2d 954, 993 (E.D.Cal.2009) clarified on other grounds, 2009 WL 2424569 (Aug. 6, 2009). However, Area of Origin statutes do not dictate the allocation by the Bureau of CVP water. Area of Origin statutes help determine the quantity of water available to the Bureau for allocation, not how the water is allocated by the Bureau’s Contracting Officer.
1. THE CALIFORNIA ATTORNEY GENERAL ANALYZES THE AREA OF ORIGIN STATUTES.
In 1955, a California Attorney General Opinion performed an analysis of the scope and Effect of area of origin statutes. 25 Ops. Cal. Att’y Gen. 8 (1955) (“AG Op.”), AR at 9498. The AG Op. found Section 11460 was intended to protect area of origin water users by creating an “inchoate” priority to a water right. AG Op. at 20; AR at 9509. To protect the statutory right, inhabitants of any area of origin “must comply with the general water law of the state ... to apply for and perfect a water right----” AG Op. at 20-21; AR at 9509-10.
The Attorney General opined that Area of Origin provisions were constitutional and California had the authority to incorporate their protections into conditions on the permits issued to the Bureau for the CVP. AG Op. at 28-29, 82; AR at 9517-18, 9521.
2. THE BUREAU’S PERMITS FOR CVP WATER SUPPLY ARE CONDITIONED TO PROTECT APPROPRIATION OF WATER WITHIN THE AREA OF ORIGIN.
In 1961, the SWRCB approved the United States’ application to appropriate Sacramento River water for the CVP by Decision 990 (“D-990”). AR at 5463. D-990 recognized one of the CVP’s principal functions is to export water from the Sacramento River watershed into the San Joaquin Valley. D-990 at 65, AR at 5528. D-990 also spoke to the SWRCB’s interpretation of the area of origin statutes:
The public interest requires that water originating in the Sacramento Valley Basin be made available for use within the Basin and the Sacramento-San Joaquin Delta before it is exported to more distant areas, and the permits granted herein will so provide.
D-990 at 72-73; AR at 5535-36.
This protection was implemented by the condition Term 22 imposed on the Bureau’s water rights permits. Term 22 made the Bureau’s water permits “subject to rights initiated by applications for use within said watershed and Delta regardless of the date of filing said applications.” D-990 at 73, 85; AR at 5536, 5548 (emphasis added). Term 22 protects appropriators of water with permits within the area of origin, not CVP contractors.
The Bureau’s permits also include a condition, Term 23, that addresses the use of Project water by water users within an area of origin. Term 23 does not require CVP water to be allocated for the benefit of areas of origin. Rather, it granted then-current water users within the Sacramento River watershed a three year period to request water service contracts from the Bureau which would be preferred over requests from users outside the watershed. It also included a ten year preference in obtaining a water service contract to those within a watershed area then using water. D-990 at 73, 85-86; AR at 5536, 5548-49. SWRCB decision D-1641 states that the “basis for Term 23 may have been protection of the public interest, but it was not compelled by the area of origin statutes.” D-1641 at 100; AR at 4217.
In 1978 the SWRCB modified the Bureau’s CVP permits to require the Bureau to meet water quality standards in the Delta and Suisun Marsh. D-1485 at 10; AR at 5188. This required the CVP to either release water from storage or to curtail diversions so that outflow from the Delta would be sufficient to prevent sea water from intruding into the Delta and to enhance water quality by decreased salinity. D-1594 at 1-3, SAR at 1377-79; United States v. SWRCB, 182 Cal.App.3d at 125, 227 Cal.Rptr. 161. The California Court of Appeal affirmed D-1485 recognizing the SWRCB’s authority to modify the Bureau’s water right permits, but criticized the SWRCB for actions it took to meet water quality standards solely by restricting the CVP and the SWP while imposing no obligations on other water rights holders.
To protect water availability, in 1965 the SWRCB added Term 80 to new water rights permits which reserved the SWRCB’s jurisdiction over the permit. In 1984, the Board responded to the Court of Appeals’ criticism with D-1594, which addressed how to determine water availability for over 500 water rights permit holders in the Delta watershed that were issued with Term 80. See D-1594 at 2; SAR at 1378. The implementation means was Term 91, which has been applied to those and all subsequent water permits within the watershed. El Dorado Irr. Dist. v. State Water Res. Control Bd., 142 Cal. App.4th 937, 951, 48 Cal.Rptr.3d 468 (2006).
The SWRCB adopted Term 91 “to protect persons claiming paramount rights to divert water from the Delta and the water quality upon which such rights depend and to protect fish and wildlife.” Id. at 953, 48 Cal.Rptr.3d 468. Term 91 imposes on new appropriators shared responsibility to meet Delta water quality standards. D1594 at 9, SAR at 1372. “Term 91 prohibits permitees from diverting water when stored Project water is being released to meet Delta water quality standards or other in-basin demands.” D-1594 at 8, SAR at 01385; El Dorado, 142 Cal.App.4th at 950, 48 Cal.Rptr.3d 468. This Term 91 prohibition is to ensure sufficient outflow of water from the Delta to keep sea water from intruding into the Delta and increasing salinity, which degrades water quality. Adequate water quality increases availability of water throughout the Delta watershed. D-1594 at 2, SAR at 1378. Term 91 uses the affected area of origin provisions, because Term 91 assumes that the CVP’s and SWP’s export water rights are junior to all other water rights in the watersheds of origin. Phelps v. State Water Res. Control Bd., 157 Cal.App.4th 89, 107, 68 Cal. Rptr.3d 350 (2007), D-1594 at 40, SAR at 01417 (an underlying assumption of Term 91 methodology is to prefer in-basin permittees over CVP and SWP exports.)
3. APPLICATION OF THE AREA OF ORIGIN STATUTES BY SWRCB AND REJECTION OF TCCA CLAIM FOR PREFERENCE TO CVP WATER.
Plaintiff contends that since the Bureau first obtained water rights through the SWRCB permit process, 50 years ago, § 11460 has been applied to protect the ability of potential in-basin water users to obtain a natural flow water right by appropriation. The terms of the Bureau’s water rights permits, and those of hundreds of other water rights holders, in effect treat the CVP’s right to export water out of the area of origin as junior to all water rights, even future water rights, within an area of origin.
Based on this premise, two TCCA member agencies, Glyde and Orland-Artois Water Districts, filed a complaint with the SWRCB in 1991 claiming preferential access to CVP water supply under the area of origin statutes, which was rejected by the SWRCB’s decision that the TCCA members had no preferential access to CVP water supply under the area of origin statutes. The SWRCB explained: Sections 11460-11463 “allow [] water users within the watershed of origin to appropriate water under a priority senior to rights of the Bureau .... ” AR at 4952 (May 24, 1991 Letter from SWRCB). The SWRCB interpreted § 11460 in that response:
The statutes and permit terms protecting the areas of origin do not guarantee that the water supply needs of the entire area of origin, or any particular water users within the area of origin, will be met. Rather, the area-of-origin protections protect water users within the area of origin against previous appropriations for export. They are a guarantee that, up to the amount of the exports, the Board will not reject a new application in the area of origin on the basis that no water is available for appropriation.
The area-of-origin provisions provide only priority; export projects approved subject to the area-of-origin requirements do not have rights senior to water projects approved by the Board subsequently for the area of origin. The right to obtain a priority does not accord other rights such as a right to obtain water at the price it would cost under a contract from an exporter.
AR at 4956.
The SWRCB restated its interpretation during the 1990’s. Order 95-6 confirmed that the correct way to obtain area of origin protections is to “file a water right application and receive a permit with seniority over the rights of the DWR or the USBR to export water from the area.” SAR at 1256-57; see also SWRCB Order 98-09 (1998), SAR at 1037. Plaintiff and its Members hold no such water rights permits. The SWRCB again addressed area of origin statutes in D-1641, issued December 29, 1999. AR at 4428. The SWRCB rejected TCCA’s arguments “that the CVP is required under Water Code §§ 11460, et seq. to supply water to meet the needs of users in the Sacramento Valley.” D-1641 at 99, 101-102. The Board responded to petitions for reconsideration of D-1641, by removing its findings regarding area of origin law at pp. 101-102 of the original D-1641. AR at 4438. On reconsideration, the Board explained: “TCCA has been advised in the past that the appropriate way to obtain additional service water supplies under the Watershed Protection Act is to file applications to appropriate the additional water.” AR at 4217. The revised D-1641 confirmed: “[T]he USBR is subject to Water Code sections 11460 and 11463, which are part of the area of origin laws, and if it violates those sections, the SWRCB has authoiity to require compliance.” AR at 4211. The SWRCB has never found that the Bureau violated the Watershed Protection Act.
E. THE DISPUTED CVP WATER SERVICE CONTRACTS.
CVP water is only available under water service contracts with the United States through Interior and the Bureau. West-lands 2001, 153 F.Supp.2d at 1144 (citing, 43 U.S.C. § 511). Reclamation has contracted with water districts from the CVP’s nine divisions, including the Sacramento, San Luis, San Felipe, and Delta Divisions to provide CVP water service. Plaintiffs 16 members are located within the Sacramento Division, north of the Delta. SAR at 129; 706. Defendant Intervenors San Luis & Delta-Mendota Water Authority and Westlands Water District are located south of the Delta, within the CVP’s San Luis, San Felipe and Delta Divisions. Westlands 2001, 153 F.Supp.2d at 1142. In CVP Federal water service contracting, there are at least three categories of contracts. The first are “Exchange Contracts” which give express contractual priority to CVP water service to designated “Exchange Contractors” on the basis of their pre-existing pre-1914 riparian and appropriative rights to the San Joaquin River. Westlands Water Dist. v. United States, 337 F.3d 1092, 1096 (9th Cir.2003) (“Westlands 2003”). The Exchange Contractors “traded” their preexisting water rights to the Bureau, which obtained water permits from the SWRCB based on these exchanged water rights, for which the Bureau in turn granted priority access to CVP water supply to the Exchange Contractors in federal water service contracts. This enabled the Bureau to provide water for a proposed CVP expansion in other areas of the San Joaquin Valley. Westlands 2003, 337 F.3d at 1096-97 (citing, Westlands Water Dist. v. U.S., 864 F.Supp. 1536, 1539 (E.D.Cal.1994)).
The second category of CVP contracts are Settlement Contracts including the Sacramento River Settlement (“SRS”) Contracts, which grant a contractual priority to CVP water supply through limitations on shortage provisions. Natural Res. Def. Council v. Kempthorne, 2008 WL 5054115 at *23 (E.D.Cal.2008) (not reported). The SRS Contracts’ priority arises from: “[T]he CVP’s water rights are subject to the Settlement Contractors’ [preexisting water rights]” which include riparian, appropriative, and other water rights recognized by the State Board. Id. at *23.
The third category of contracts are held by CVP contractors, north-of-Delta, in-Delta, and south-of-Delta. All of these third category CVP contractors, which include TCCA and its Members, (except Glen-Colusa), SLDMA and Westlands, held no pre-existing water rights to offer as consideration for CVP water service and have no priority access rights to CVP water supply or deliveries in times of shortage; no guarantee of 100% contract water deliveries; and no recognition they include pre-existing water rights. The Bureau allocates reduced CVP water supplies during Shortages to the third category of CVP water service contractors on a CVP-wide basis in accordance with the terms of all these contracting Districts’ water service contracts.
1. TCCA MEMBERS’ RIGHT TO CVP WATER UNDER THEIR LONG-TERM CVP WATER SERVICE CONTRACTS.
TCCA Members executed their original CVP water service contracts in the 1960’s and 1970’s. See AR at 2781, 2992, 3543 (1960’s); AR at 2890, 2920, 3434 (1970’s). All original TCCA contracts contained “shortage” provisions which permitted the Bureau to apportion and reduce the available water supply in years of shortage. See, e.g., Dunnigan Water Service District Contract (Feb. 5, 1963) (“Dunnigan Renewal Contract”), Request for Judicial Notice (“RJN”), Ex. 3 at 17. Before the original TCCA CVP contracts expired in 1995, the Bureau delivered less than 100% of contract amounts to TCCA Members in five shortage water years, 1977, 1990, 1991, 1992, and 1994. SAR at 3177. In those years, other third category contractors received similarly reduced amounts of water, including Westlands. SAR at 3177.
In 1992, Congress enacted the Central Valley Project Improvement Act (“CVPIA”), Pub.L. No. 102-575, 106 Stat. 4706 (1992), which reallocated priorities for use of CVP water. Among other things, the CVPIA precluded the Secretary from entering into new CVP contracts for delivery of CVP water for any purpose other than fish and wildlife until certain environmental requirements were met and directed that 800,000 acre-feet of “Project yield” would be immediately dedicated to the implementation of the fish, wildlife and habitat restoration purposes established by the Act. CVPIA at §§ 3404(a), 3406(b)(2). The passage of the CVPIA came just as many CVP contracts were about to expire. The process of developing new CVP water contracts began.
2. INTERIM CONTRACTS.
In 1995, TCCA Members entered into “interim” renewal contracts awaiting review and assessment of long-term renewal contracts. SAR at 382. Interim renewal contracts commenced execution in 1995 and were subsequently renewed for periods up to two years until 2005. SAR at 382. The TCCA interim contracts included water shortage provisions prescribed by Article 12, authorizing the Bureau to determine conditions of shortage and to apportion the reduced available water supply among CVP contractors. See Dunnigan Renewal Contract at 24-25. TCCA Members’ interim contracts did not provide for preferential water allocations based on area of origin. SAR at 1065-66. During the interim TCCA contracts, the Bureau reduced available water supply among all CVP water service contracts in four shortage years, 1995, 1997, 1999, and 2001. Through 2005 TCCA CVP water service contracts always included a shortage provision.
3. NEGOTIATION OF CURRENTLY OPERATIVE TCCA RENEWAL CONTRACTS: THE BUREAU’S INTERPRETATION AND PERFORMANCE.
TCCA was afforded an opportunity to comment and discuss the renewal of long-term contract provisions with the Bureau. SAR at 518. The Bureau and TCCA Members extensively discussed the applicability of area of origin laws to the CVP contracts and the Bureau’s authority to reduce water deliveries to CVP contractors in times of shortage.
The Bureau asserted the non-applicability of Section 11460 to allocation and delivery of CVP water under CVP contracts. In 1994 the Bureau issued a November 2, Area of Origin Issue Paper, SAR at 1317, which stated the Bureau’s position that Section 11460 is “directed toward obtaining prior water rights, not obtaining deliveries of water under the Project’s rights.” In 1996 another Bureau draft report addressed applicability of area of origin statutes to the CVP, confirming that area of origin statutes in California water law “do not guarantee that the water supply needs of an entire area of origin, will or can be met.” SAR at 1154:
Under these statutes, water rights applicants within the area of origin are essentially guaranteed that new water right applications filed for the development of water within the area of origin, will not be rejected by the [Board] on the basis that no water is available for appropriation by virtue of a senior water right to export the water from the water shed. While the area of origin statutes may result in future reductions in the quantities of CVP water that can be delivered to CVP export customers, the area of origin provisions do not become part of a contract for the delivery of water; they are part of the water rights on which the contract is based and subject that right to appropriations by users within the area of origin.
The Bureau found: “Area of origin statutes ... do not establish any priority to the allocation of CVP contract water or 26 CVP water used for implementation of the [CVPIA].” SAR at 1156. Many contractors responded to the draft report. See, e.g., SAR at 1105-11; 1125-32, 1133, 1134-37, 1138-40, 1150-53. TCCA then acknowledged that “the Bureau’s conclusions come as no surprise, as this is a restatement of positions they [sic] have articulated on numerous occasions in the past.” SAR at 1141. In 2000, Reclamation again stated: “Area of origin/county of origin statutes do not give any CVP user a priority over any other CVP user regarding water service provided by CVP contracts ... this is also the position of the State Water Resources Control Board .... ” SAR at 977.
The Bureau consistently rejected requests that an area of origin provision be included in north-of-Delta CVP contracts. SAR at 1317; 1308; 3238. TCCA proposed draft contract language precluding water reductions to TCCA Members “unless and until reductions have also been imposed in irrigation users receiving water from the integrated CVP water supply who are outside the Sacramento River watershed.” SAR at 3238. TCCA contractors requested area of origin transfer provisions and increased CVP contract water allocations based on alleged area of origin protections. SAR at 1004-7 (request for area of origin transfer provisions); SAR at 1021-24 (request for water quantity increase); SAR at 1000-1 (same); SAR at 831 (same). Both interim TCCA contracts included a similar area of origin transfer provision, SAR at 1308, as did the TCCA Renewal Contracts. AR at 307-71. The Bureau did not adopt contract terms to increase contract quantities or afford protection against shortages. AR at 3056 (same contract amounts in interim and renewal contracts).
4. TCCA ACCEPTS LONG-TERM RENEWAL CONTRACTS WITHOUT PRIORITY ALLOCATION TERMS: THE SHORTAGE PROVISIONS.
All TCCA Members executed long-term CVP water service contracts in 2005 (“TCCA Renewal Contracts”). All TCCA renewal contracts contain identical shortage provisions, including Dunnigan Water District, AR at 3043-97; Colusa County Water District, AR at 3539-93; Corning Water District, AR at 2777-2834; Cortina Water District, AR at 2917-30; Colusa County Water District, AR at 3539-93; Corning Water District AR at 2777-2834; Cortina Water District AR at 2917-30; Davis Water District AR at 3150-3201; 4M Water District, AR at 2887-2901; Glyde Water District, AR at 3430-82; Holthouse Water District, AR at 2960-73; Canawha Water District, AR at 3098-3149; Kirkwood Water District, AR at 2673-2723; LaGrande Water District, AR at 3377-3429; Orland Artois Water District, AR at 3322-76; Proberta Water District, AR at 2835-86; Thornes Creek Water District, AR at 2724-76; Westside & Westside Water District, AR at 3202-52.
All TCCA Renewal Contracts contain an Article 12 shortage provision substantively identical to the shortage provision in the prior long term contracts under which the Bureau declared conditions of shortage and then allocated less than full contractual amounts to TCCA and its Members under interim TCCA contracts. See Dunnigan Renewal Contract at 24-25. The TCCA long term renewal contracts memorialize the agreement of “the United States and [each] contractor ... to enter into the contract pursuant to Federal Reclamation law on the terms and conditions set forth below.” AR at 3208. These purposes include: operation of the CVP “for diversion, storage, carriage, distribution and beneficial use, for flood control, irrigation, municipal, domestic, industrial, fish and wildlife mitigation, protection and restoration, generation and distribution of electric energy, salinity control, navigation and other beneficial uses.”
The TCCA Renewal Contract’s Article 12 shortage provision authorize the Bureau to determine shortages and apportion waters in times of shortage:
12(a): in its operation of the Project, the Contracting Officer will use all reasonable means to guard against a Condition of Shortage in the quantity of water to be made available to the Contractor pursuant to this contract. In the event the Contracting Officer determines that a Condition of Shortage appears probable, the Contracting Officer will notify the Contractor of said determination as soon as practicable.
12(b): if there is a Condition of Shortage because of errors in physical operations of the Project, drought, or other physical causes beyond the control of the Contracting Officer or actions taken by the Contracting Officer to meet legal obligations then, except as provided in subdivision (a) of Article 18 of this Contract, no liability shall accrue against the United States or any of its officers, agents, or employees, for any damage, direct or indirect, arising therefrom.
12(e): In any year in which there may occur a shortage for any of the reasons specified in subdivision (b) above, the Contracting Officer shall apportion the available Project Water supply among the Contractor and others entitled, under existing contracts and future contracts ... and renewals thereof, to receive Project Water consistent with the contractual obligations of the United States.
12(d): Project Water furnished under this Contract will be allocated in accordance with the then-existing Project M & I Water Shortage Policy. Such Policy shall be amended, modified, or superseded only through a public notice and comment procedure.
See, e.g., AR at 3073-74. Article 12 authorizes the Bureau to apportion available CVP supply among all CVP water service contractors during conditions of shortage, without regard to whether those water service contractors are within or outside an area of origin, as it has for the over-sixty year history of the CVP and almost forty years of active dispute with TCCA over area of origin alleged priority in CVP federal water service contracts.
5. TCCA MEMBERS’ VALIDATION OF ALL RENEWAL CONTRACTS IN STATE COURT.
Article 38 of the TCCA Renewal Contracts provides that TCCA Members obtain a State Court judgment validating each member contract. AR at 3090(“The Contractor shall furnish the United States a certified copy of the Final Decree, the validation proceedings, and all pertinent supporting records of the Court approving and confirming this Contract, and decreeing and adjudging it to be lawful, valid, and binding on the Contractor.”). This validation process, undertaken by each TCCA member confirmed and validated under state law each renewal contract, establishing the valid execution and enforceability of every provision of the TCCA Renewal Contracts by judgment of the State Superior Court. SAR at 23-31; 34-42; 43 — 45; 46-59; 60-64.
6. EXECUTION BY PERFORMANCE AND CONDUCT UNDER THE TCCA RENEWAL CONTRACTS.
Following execution and validation of the TCCA Renewal Contracts, the Bureau continued to make water deliveries and performed by reducing Plaintiffs’ water allocations in water years when shortages were declared, as it had previously done under the original and interim TCCA contracts. Under Article 12, the Bureau declared conditions of shortage in 2007, 2008, and 2009. SAR at 317-80. The Bureau delivered less than full contract amounts to all CVP water service contractors, including TCCA members in 2008 and 2009. AR at 1591 (the cause of reduction was “the ongoing absence of precipitation in Northern California”). In correspondence that followed execution of the TCCA Renewal Contracts, the Bureau affirmed its interpretation that area of origin laws did not conflict with the terms of Article 12 of the Renewal Contracts and the reduced apportionment of CVP water so authorized. AR at 1602-3; 1589. TCCA admitted that the Bureau had “consistently maintained more than a decade that CVP contractors in the Sacramento River watershed are entitled to no priority to CVP water supplies under Section 11460.” AR at 1596.
V. STANDARDS OF DECISION.
A motion for summary judgment must be granted when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (summary judgment motion should be granted “so long as whatever is before the district court” shows that the standard set by Rule 56(c) is satisfied).
For purposes of summary judgment, a fact is “material,” when it could affect the outcome of the suit. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute about a material fact is “genuine” when the evidence is such that a reasonable jury could return a verdict for the party opposing the motion. Id. at 248, 106 S.Ct. 2505. The moving party must show that it is entitled to summary judgment because, under the governing law, there can be but one reasonable determination of the relevant cause of action or issue. Id. at 250, 106 S.Ct. 2505; Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). In ruling on a motion for summary judgment, the court draws all inferences in favor of the non-moving party, makes no credibility determinations, and does not weigh the evidence. Anderson, 477 U.S. at 249-250, 106 S.Ct. 2505. If the matter can be decided as a matter of law, because there are no genuine factual issues, there is no need for a trial and summary judgment is proper. Id. at 250-251, 106 S.Ct. 2505.
In an APA case, the Court may not resolve factual questions but determines “whether or not, as a matter of law, the evidence in the Administrative Record permitted the agency to make the decision it did.” Consolidated Delta Smelt Cases, 760 F.Supp.2d 855, 868 (E.D.Cal.2010) (quoting Sierra Club v. Mainella, 459 F.Supp.2d 76, 90 (D.D.C.2006).) In administrative review cases, the Court determines “whether the Agency action is supported by the Administrative Record and otherwise consistent with the APA standard of review.” Id. at 90.
VI. LAW AND ANALYSIS.
A. STATUTE OF LIMITATIONS.
Plaintiffs counsel conceded at oral argument that APA claims are subject to a six year statute of limitations and any claims prior to February 11, 2004 are time-barred. Hells Canyon Preservation Council, 593 F.3d at 930. Water shortages have been declared under CVP water service contracts in 10 of the last 33 years. Summary judgment is GRANTED as to any claims arising before February 11, 2004. Only the water shortages declared in 2008 and 2009 remain in dispute.
B. CVP STATUTES AND SECTION 1U60 DO NOT CONTAIN OR SUPPORT THE PRIORITY ALLOCATION RIGHT TO CVP WATER THAT TCCA ADVANCES.
TCCA contends that Congress, the State of California, and Reclamation “all intended the CVP to provide for the water needs of the Sacramento Valley with a priority over exports.” The non-Federal Defendants rejoin that TCCA’s reliance on engineering documents, reports, statements by State officials, and state laws, need not be referenced based on unambiguous federal statutory language and do not bear on Congress’ intent in passing Federal laws that authorize the CVP and are inconsistent with state law.
TCCA argues:
1. Water service and deliveries to TCCA members must be given priority over other CVP divisions and water service contractors to provide 100% contract allocations to TCCA members before south-of-Delta CVP contractors receive water service; and
2. Its proposed allocation aligns with the 1950 Act’s directive to “effectuate the fullest and most economic utilization of the land and water resources of the Central Valley of California for the widest possible public benefit.” 1950 Act, § 4.
The Federal-Defendants argue that TCCA’s construction of Section 11460 conflicts with the congressional directive in the legislation authorizing the CVP canals, emphasizing the total lack of any language in the Reclamation Acts, or CVPIA, recognizing or granting such origin priority to TCCA. To the contrary, Congressional enactments have repeated the federal legislative intent that the CVP created was for multiple public benefits throughout the Central Valley and that Interior’s mandate was to integrate and coordinate the Sacramento River Division into the entire CVP to achieve the legislative purpose of “the widest possible public benefit.”
As a matter of ascertaining legislative intent, a court looks first to the words of the statute. United States v. Monsanto, 491 U.S. 600, 610, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989) (“Congress’ intent is ‘best determined by [looking to] the statutory language that it chooses ... ’ ”). Where the plain language of a statute clearly expresses Congress’ intent, there is no need to resort to legislative history. Abrahim & Sons Enterprises v. Equilon Enterprises, LLC, 292 F.3d 958, 963 (9th Cir.2002).
1. STATUTORY INTERPRETATION OF THE CVP STATUTES. a. Plain Language.
The language of the original enactment for the CVP in 1935 grants no area of origin priority or intended preference to store and provide water with priority for users in the Sacramento Valley. Emergency Relief Appropriations Act of 1935, 49 Stat. 115 (1935). Congress’ express language manifests its intent that the CVP be used to satisfy multiple purposes to achieve the broadest public benefit for the entire Central Valley. The Rivers & Harbors Act of 1937 stated the original purposes for creating the CVP:
Improving navigation, regulating the flow of the San Joaquin River and the Sacramento River, controlling floods, providing for storage and for the delivery of the stored waters thereof, for the reclamation of arid and semi-arid lands and lands of Indian reservations, and other beneficial uses and for the generation and sale of electric energy ...
Rivers & Harbors Act of August 26, 1937, Pub.L. No. 75 392, 50 Stat. 844, 850 (1937).
None of the Federal laws authorizing the CVP include an “area of origin” provision directing the Bureau to deliver 100% of CVP water contract-allocations to Sacramento Valley users before deliveries to other CVP contractors. Rather, Congress intended the CVP to be used and operated for multiple purposes to achieve broad public benefits for the entire Central Valley. Dugan v. Rank, 372 U.S. 609, 612, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (footnote omitted) (CVP intended “to conserve and put to maximum beneficial use, the waters of the Central Valley of California.”).
TCCA contends that “Congress authorized the physical means to meet the CVP’s [area of origin] obligations” through the 1950 Act. TCCA refers to § 3 of the 1950 Act, which relates to “locating and designing [of] the works authorized by § 2,” concerning engineering and construction. TCCA asserts § 3 directed the Secretary of the Interior to give the State Engineer Bulletins 13 and 26 “due consideration” in locating and designing the Sacramento Canals Unit. According to Plaintiff, this language demonstrates that Congress was well aware of the Bulletins and of the Act’s affect on “local interests.” 1950 Act at § 3. This section says nothing about an area of origin priority.
Defendants rejoin that § 4 of the 1950 Act (“Section 4”) expressly states as to the Tehama-Colusa Conduit Canal:
[T]he Secretary of the Interior is directed to cause the operation of said work ... to be coordinated and integrated with the operation of ... the existing features of the Central Valley Project in such manner as will effectuate the fullest and most economic utilization of the land and water resources of the Central Valley of California for the widest public benefit.
TCCA contends that Section 4 is a “broad mandate” which does not direct agencies to perform any specific nondiscretionary actions. Under Section 4 of the 1950 Act, Congress gave two instructions for the Unit’s operation: (1) the canals are to be operated to achieve the widest possible public benefit and (2) that benefit would be realized by the fullest and most economic utilization of the land and water resources of the Central Valley, not just the Sacramento Valley.
The lack of any federal statutory language recognizing or granting an area of origin priority in CVP water service contracts defeats TCCA’s self-serving, and wholly unsupported contention that such a priority exists and is not inconsistent with the CVP’s purposes. See Westlands Water District v. Firebaugh Canal, 10 F.3d 667, 671 (9th Cir.1993). Firebaugh Canal reviewed the district court’s refusal to grant San Luis (non-priority contractors) a CVP water priority under the authorizing statute:
The strongest argument in favor of the Bureau is that the Act nowhere mandates that the Reservoir first be used to satisfy the needs of the San Luis Contractors before any diversion to other contractors is allowed. Creating a preference in favor of the San Luis Contractors and others similarly situated, or providing that Reservoir water is for their exclusive benefit, would have been a simple enough drafting exercise for Congress. In effect, the San Luis Contractors ask us to add an important substantive provision to the Act. Such a provision cannot be found in the plain language of the Act, and indeed would be inconsistent with the mandate that the San Luis Unit be operated as an integral part of the whole CVP.
b. Legislative History of the CVP Statutes.
Both sides claim support in the legislative history of the 1950 Act. TCCA asserts that select documents, including a letter to then-Congress member Engle from the Assistant Secretary of the Interior, represent “unequivocal policy statements’ by Reclamation that only excess water would be diverted outside of the Sacramento Valley basin. AR 9735 (“I can assure you that the Bureau will determine the amounts of water required in the Sacramento Valley drainage basin to the best of its ability so that only surplus waters would be exported to the San Joaquin
Plaintiffs legal authority cited to support finding these remarks “informative” demonstrate the opposite: “We are mindful of the limited persuasive value of the remarks of an individual legislator. Nevertheless, the unanimously expressed understanding of the scope of [Federal legislation] assists our analysis, particularly when that expressed understanding is in complete harmony with the Congressional purpose and statutory text.” Reto v. Glock, Inc., 565 F.3d 1126, 1137 (9th Cir. 2009). No evidence has been submitted of later Congressional history of any uniform understanding that any legislation authorizing or implementing the CVP recognized a state area of origin priority.
To the contrary, the same CVP Documents Plaintiff invokes provide statements defeating the existence of any uniform understanding. The House Special Subcommittee on Irrigation and Reclamation, cited by TCCA, provides:
(a) That the statements of policy with respect to the importation of surplus water from the Sacramento Valley made by the State of California, the original sponsors of the Project, and subsequently repeated in a similar manner by Interior Department representatives, are certainly confusing, if not misleading; (b) Categorical statements about the reservation of water for Sacramento Valley needs, such as the assurance given by Secretary Krug in Oroville on October 12, 1948, c