ELR Citation: 43 ELR 20212
No(s). 10-35303 (9th Cir. Sep 11, 2013)

The Ninth Circuit dismissed a conservation group's lawsuit challenging DOI's diversion of water from Icicle Creek, a tributary of the Wenatchee River and the Columbia River, to the Leavenworth National Fish Hatchery without a state permit. The group argued that DOI violated §8 of the Reclamation Act of 1902, which requires that federal reclamation projects operate in compliance with state water law, because it failed to comply with permit requirements under the state water code. The group, however, lacks prudential standing. The purpose of §8 is to protect the state's sovereign authority to regulate the appropriation and use of state waters. Here, Washington state delegated authority to enforce its water code to the Department of Ecology and has not recognized a public right to independently enforce the permit requirement. Thus, adjudicating the group's water code claim would be "more likely to frustrate than to further" the statutory objectives of §8 by forcing the Department of Ecology to adjudicate the need for a permit and by "deputizing" the group to compel enforcement of the state water code in a manner not provided by state law. The group also argued that DOI violated Washington state's fishway law by failing to: (1) submit fishway plans to the Washington Department of Fish and Wildlife; (2) maintain durable and efficient fishways on hatchery structures that obstruct fish passage; and (3) supply existing fishways with adequate water. But the first two arguments fail because the relevant provisions of the fishway law are not incorporated into §8 of the Reclamation Act, and the third argument fails because it does not challenge final agency action as required by the APA.