TITLE:  Opinion on Whether Trinity River Record of Decision is a Rule, B-287557, May 14, 2001
BNUMBER:  B-287557
DATE:  May 14, 2001
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Opinion on Whether Trinity River Record of Decision is a Rule, B-287557, May
14, 2001

B-287557

May 14, 2001

The Honorable Doug Ose
Chairman, Subcommittee on Energy Policy,
Natural Resources, and Regulatory Affairs
Committee on Government Reform
House of Representatives

Subject: Opinion on Whether Trinity River Record of Decision is a Rule

Dear Mr. Chairman:

This is in response to your letter of March 19, 2001, requesting our views
on whether the Department of the Interior, Fish and Wildlife Service's
Record of Decision (ROD) entitled "Trinity River Mainstem Fishery
Restoration" is a "rule" under the Congressional Review Act (CRA) provisions
of the Small Business Regulatory Enforcement Fairness Act. 5 U.S.C. 801 et
seq.

The ROD concerns the decreased river flows in the Trinity River Basin caused
by the Trinity River Division of the Central Valley Project in 1963. This
decreased flow affected the salmon and steelhead runs, and the ROD documents
the selection of actions necessary to restore and maintain the anadromous
fish in the Trinity River. We requested the views of the Department of the
Interior and received them shortly before the issuance of this opinion.

For the reasons discussed below, we conclude that this ROD is a "rule"
covered by the Congressional Review Act.

Rules Subject to Congressional Review

Chapter 8 of title 5, United States Code, entitled "Congressional Review of
Agency Rulemaking," is designed to keep Congress informed about the
rulemaking activities of federal agencies and to allow for congressional
review of rules. The requirements of chapter 8 take precedence over any
other provision of law. 5 U.S.C. 806(a).

Section 801(a)(1) provides that before a rule becomes effective, the agency
promulgating the rule must submit to each House of Congress and to the
Comptroller General a report containing:

"(i) a copy of the rule;

"(ii) a concise general statement relating to the rule, including whether it
is a major rule; and

"(iii) the proposed effective date of the rule."

On the date the report is submitted, the agency also must submit to the
Comptroller General and make available to each House of Congress certain
other documents, including a cost-benefit analysis, if any, and agency
actions relevant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
and the Unfunded Mandates Reform Act of 1995, 5 U.S.C. 202 et seq., and any
other relevant information or requirements under any other legislation or
any relevant executive orders. 5 U.S.C. 801(a)(1)(B)(I)-(iv).

Once a rule, whether determined to be a major rule [1] or not, is submitted
in accordance with section 801(a)(1), special procedures for congressional
consideration of a joint resolution of disapproval are available for a
period of 60 session days in the Senate or 60 legislative days in the House.
5 U.S.C. 802. These time periods can be extended upon a congressional
adjournment. 5 U.S.C. 801(d)(1).

A major rule may not become effective until 60 days after it is submitted to
Congress or published in the Federal Register, whichever is later. 5 U.S.C.
801(a)(3)(A).

Section 804(3) provides that for purposes of chapter 8, with some
exclusions, the term "rule" has the same meaning given the term in 5 U.S.C.
551(4), which defines rules subject to the Administrative Procedure Act
(APA). The APA definition of a "rule" is as follows:

"the whole or part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or
prescribe law or policy or describing the organization, procedure, or
practice requirements of an agency and includes the approval or prescription
for the future of rates, wages, corporate or financial structures or
reorganizations thereof, prices, facilities, appliances, services or
allowances therefor or of valuations, costs, or accounting, or practices
bearing on any of the foregoing ï¿½ ."

Chapter 8 contains several exclusions from the APA definition of "rule":

"(A) any rule of particular applicability, including a rule that approves or
prescribes for the future rates, wages, prices, services or allowances
therefor, corporate or financial structures, reorganizations, mergers or
acquisitions thereof, or accounting practices or disclosures bearing on any
of the foregoing;

(B) any rule relating to agency management or personnel; or

(C) any rule of agency organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency parties." 5
U.S.C. 804(3).

Trinity River Record of Decision

The Trinity River Record of Decision (Trinity ROD) was the culmination of a
process covering nearly 20 years of detailed, scientific efforts documenting
the selection by the Secretary of the Interior of actions determined to be
necessary and appropriate to restore and maintain the anadromous fishery
resources of the Trinity River. The Trinity ROD implements the Central
Valley Project Improvement Act. [2] That section requires the Fish and
Wildlife Service to conduct an extensive study of instream fishery flow
requirements and Trinity River Division operating criteria and procedures
and prepare alternative recommendations to ensure fishery restoration goals.
The Act further requires the implementation of the Study's recommendations
if the Secretary and the Hoopa Valley Tribe concur in the recommendations.

The Trinity River Division

California's Central Valley is one of the most fertile agricultural regions
in the country. [3] The federal Central Valley Project (CVP), the largest
federal irrigation project, supports this productivity principally by
diverting water from streams that flow out of the Sierra Mountains to the
Sacramento River.

The Trinity River rises in the Sierra Mountains of northern California and
flows in a generally northwesterly direction to the Klamath River, which in
turn empties into the Pacific. The Trinity River Division (TRD) of the CVP,
which began operating in the 1960's, diverts the river's flow out of the
Klamath Basin and into the Sacramento River Basin. [4] The TRD has exported
as much as 90 percent of the river's flow at Lewiston, California, to the
Sacramento River. Since the TRD began operation, the Klamath/Trinity's
anadromous fish populations have suffered severe decline.

The Central Valley Project Improvement Act

In 1992 the Central Valley Project Improvement Act (CVPIA [5]) was passed,
in part to "protect, restore, and enhance fish, wildlife, and associated
habitats in the Central Valley and Trinity River basins in California."
Section 3406(b)(23) of the Act contains provisions "to meet Federal trust
responsibilities to protect the fishery resources of the Hoopa Valley Tribe,
and to meet the fishery restoration goals of the Act of October 24, 1984,
Public Law 98-541." [6] The latter Act established "the long-term goal of
restoring fish and wildlife populations in the Trinity River Basin to a
level approximating that which existed immediately before the start of
construction of the Trinity River division." [7]

Section 3406(b)(23) of the CPIA requires the completion of a Trinity River
Flow Evaluation Study "in a manner which ensures the development of
recommendations, based on the best available scientific data, regarding
permanent instream fishery flow requirements and Trinity River Division
operating criteria and procedures for the restoration and maintenance of the
Trinity River fishery." [8] Upon the concurrence of the Secretary of the
Interior and the Hoopa Valley Indian Tribe with these recommendations, the
Act requires the Secretary to implement them. [9] Pending the study's
completion, the Act established a minimum release of 340,000 acre feet/year
(af/yr) from the Trinity River Division. [10] Water released to the Trinity
mainstem is necessarily unavailable to the CVP.

To comply with the National Environmental Policy Act of 1969 (NEPA), [11]
the Fish and Wildlife Service initiated the process of developing and
assessing fishery restoration alternatives in 1994. [12] The review, which
provided for public involvement during the process, culminated in the
release of a Draft Environmental Impact Statement and an attendant public
comment period in October 1999. After twice extending the public comment
period, the Service reviewed the comments and issued a Final Environmental
Impact Statement (FEIS) in November 2000. [13] The Secretary of the
Interior's Record of Decision, at issue here, followed a month later. [14]

The Record of Decision

The FEIS identified (and the ROD adopted) a preferred restoration
alternative that would provide for increased variable instream flow releases
to the Trinity River mainstem, ranging from 369,000 to 815,000 af/yr
depending on annual hydrology. [15] The preferred alternative reduced the
average annual export of Trinity River water from 74 percent of the flow to
52 percent. [16] The ROD modified the Bureau of Reclamation's Operating
Criteria and Procedures for the TRD to reflect the new flow regimes. [17]
The Secretary states in the ROD that the preferred alternative will restore
fish habitat necessary to the restoration of the anadromous fishery of the
Trinity River. [18] However, the ROD also indicates that the reduction in
volume of water diverted to the CVP will result in reduced deliveries to
agricultural contractors and reduced CVP power generation. [19]

The ROD also implements two biological opinions issued by Fish and Wildlife
Service and the National Marine Fisheries Service under the Endangered
Species Act. These opinions concluded that implementation of the proposed
action would not result in the taking of various endangered and threatened
species in the Trinity River Basin and Central Valley if Interior adopted
certain "reasonable and prudent measures" to limit harm to these species.
Interior adopted these measures in the ROD.

Westlands Water District Case

Fearing reduced water deliveries and power availability, several users of
CVP water sued Interior last December in federal district court, alleging
among other things that the agency violated NEPA by failing to prepare a
supplemental Environmental Impact Statement analyzing (1) the impacts of
implementing the biological opinions, and (2) the impacts of implementing
the ROD on the availability of electricity in California. [20] The
plaintiffs (agricultural water districts and electric utilities) sought a
preliminary injunction prohibiting Interior from implementing the ROD.

The court held that the ROD constituted final agency action under the APA,
and that it was therefore reviewable. [21] The ROD represented "the
consummation of Interior's decisionmaking process ... especially under the
CVPIA sect. 3406(b)(23) (requiring the agreed upon alternative ... to be
implemented after the government and the Hoopa Valley tribe so concur.)"
[22] In addition, the court held that a preliminary injunction was
warranted. The plaintiffs established the probability of irreparable injury
from the ROD's implementation resulting from lost water deliveries, which
the court found were irreplaceable, and the potential for reduced
electricity generation. [23] The court noted that implementation of the ROD
would reduce CVP water deliveries by approximately 5 percent to
south-of-Delta agricultural service contractors. [24] Moreover, the
plaintiffs established a likelihood of succeeding on the merits of the two
NEPA claims discussed above. [25] Accordingly, the court enjoined water
allocation pursuant to the ROD, except to the extent of allowing
approximately 368,600 af to be released to the Trinity River (which
represents the mandated 340,000 af/yr plus approximately 28,600 af for
restoration purposes, pending completion of the additional required NEPA
analysis).

Analysis

To determine whether the Trinity River Record of Decision is a rule for the
purpose of CRA, we must examine two issues. First, we must determine whether
the Trinity ROD constitutes an "agency statement of general or particular
applicability and future effect designed to implement, interpret, or
prescribe law or policy." Secondly, we must determine whether the Trinity
River ROD is excluded by one of the exceptions provided by CRA.

In determining whether the Trinity River ROD is a rule for the purposes of
CRA, we must be mindful that Congress intended that the CRA should be
broadly interpreted both as to the type and scope of rules covered. [26] It
was intended to cover not only formal rulemaking, but also to cover rules
that are not subject to notice and comment requirements of the APA, informal
rulemaking under 5 U.S.C. sect. 553(c), rules that must be published in the
Federal Register before taking effect (5 U.S.C. sect. 552(a)(1) and (2)), and
other guidance documents. [27] Hence, the entire focus of the Act is to
require congressional review of agency actions that substantially affect the
rights or obligations of outside parties. [28]

Under the CRA, a "rule" is an agency action that constitutes a "statement of
general or particular applicability and future effect [29] designed to
implement, interpret or prescribe law or policy." Utilizing the legislative
history of the APA and the Attorney General's Manual on the APA, courts have
formulated a test to assist in determining which agency actions constitute
"rulemaking." Thus, the courts have noted that "rulemaking" is legislative
in nature, primarily concerned with policy considerations for the future and
is not concerned with the evaluation of past conduct based on evidentiary
facts. American Express Co. v. U.S., 472 F.2d 1050, 1055 (1973); LeFevre v.
Dept. of Veterans Affairs, 66 F.3d 1191, 1196 (1995).

Under this test, the Trinity ROD clearly constitutes a "rule" since its
essential purpose is to set policy for the future. It is in no way concerned
with the evaluation of past conduct based on evidentiary facts. While the
Trinity ROD sets forth the past actions of the federal government that
contributed to the current situation, it is presented as background to
establish the state of the river basins leading up to the enactment of the
CVPIA. The Act then delegated to Interior the authority to determine the
action necessary to restore the anadromous fishery on the Trinity River. The
entire purpose of the ROD is to set a future course of action intended to
achieve that purpose, as directed by the CVPIA.

We next turn to whether the exceptions in 5 U.S.C. sect. 804(3) to the CRA's
definition of "rule" would serve to exclude the Trinity ROD. [30] Interior,
in its recently submitted comments, contends that the Trinity ROD is
excluded as either a rule of agency organization, procedure, or practice or
as a rule of "particular applicability."

Interior argues that the ROD is not a "rule" because it is an agency
procedure or practice that does not substantially affect the rights and
obligations of non-agency parties. According to Interior, the ROD applies
only to the Department's own employees and sets out how they are to manage
the Bureau of Reclamation's water projects. Also, since the Central Valley
irrigators receive their water pursuant to water service contracts between
water districts and the United States, and those contracts permit reduced
water deliveries under certain circumstances, the ROD does not affect the
"rights or obligations" of non-agency parties.

We need not reach the contractual issue since we do not find the ROD to be a
rule of agency procedure or practice. Rather than merely directing agency
personnel how to manage a water project, it implements the congressional
directive contained in the CPVIA of protection and restoration of the
Central Valley and Trinity River basins. It is clearly not an agency
procedural rule, as Interior portrays it, since it follows the lengthy River
Flow Evaluation Study, thousands of public comments, and the ROD's extensive
discussion of mitigating the impacts of its implementation. Such internal
agency rules are mainly directed toward improving the efficient and
effective operation of an agency rather than determining the rights and
interests of affected parties. [31]

The next issue is whether section 804(3), which excludes rules of
"particular applicability," is sufficiently broad so as to exclude the
Trinity River ROD from coverage under the CRA. The legislative history of
this exception speaks to rules of particular applicability as follows: "Many
agencies, including the Treasury, Justice, and Commerce Departments, issue
letter rulings or other opinion letters to individuals who request a
specific ruling on the facts of their situation." [32] Further, it notes
that "IRS private letter rulings and Customs Service letter rulings are
classic examples of rules of particular applicability, notwithstanding that
they may be cited as authority in transactions involving the same
circumstances ï¿½ . The test is whether such rules announce a general
statement of policy or an interpretation of law of general applicability."
[33]

Because Congress intended the CRA to have a broad sweep and specifically
rejected attempts to narrow the scope of coverage, we do not believe that
the "particular applicability" exception should be interpreted expansively.
Thus, in determining whether a final agency action announces a general
statement of policy or an interpretation of law of general applicability, we
believe that the Act does not require a finding that it will generally apply
to the population as a whole. Rather, all that is required is a finding that
it has general applicability within its intended range, regardless of the
magnitude of that range. For example, an Occupational Safety and Health
Administration rule pertaining to exposure to a specific chemical compound
is not a matter of particular applicability, even though it applies to a
very small percentage of the working public. It is intended to protect all
workers in the covered range, those who are exposed to the particular
chemical compound.

The Trinity ROD is a general statement of policy regarding the issues of
water flow in both the Trinity and Sacramento River mainstems. It will have
broad effect on both rivers' ecosystems and potentially significant economic
effect within the Sacramento and Trinity River basins. Also, the ROD
implements the CVPIA, which provides congressional direction to restore the
anadromous fishery of the Trinity River, both for the benefit of certain
Indian tribes, as well for the benefit of the environment more generally.
[34] Interior anticipated that the ROD would have significant positive
economic impacts by encouraging increased recreation in the Trinity River,
as well as job growth in the commercial fishing and seafood processing
sectors resulting from the revival of the anadromous fishery. [35] Interior
also acknowledged that the ROD would have adverse economic and employment
effects on the agricultural sector in the Central Valley, including the farm
machinery and cotton production sectors, and would result in approximately a
6 percent reduction in CVP power generation, producing in turn higher power
costs to customers within the Central Valley Project. [36]

In short, applicable congressional direction and the agency's own
description of its efforts indicate that the Trinity ROD would have
significant economic and environmental impact throughout several major
watersheds in the nation's largest state. Accordingly, we conclude that the
section 804(3)(A) exception to CRA coverage does not exclude the Trinity
River ROD.

For the foregoing reasons, it is our opinion that the Trinity ROD [37]
constitutes a "rule" under the Congressional Review Act and should be
submitted to Congress and the Comptroller General in accordance with the
provisions of the Act.

We trust this is responsive to your request. If you have any questions,
please contact James Vickers, Assistant General Counsel, on 202-512-8210.

Sincerely yours,

[Image]

Anthony H. Gamboa
General Counsel

Notes

1. A "major rule" is one found by the Office of Information and Regulatory
Affairs, Office of Management and Budget, to meet certain criteria, such as
whether the rule will have an annual effect on the economy of $100 million
or more. 5 U.S.C. 804(2).

2. Pub. L. No. 102-575, sect. 3406(b)(23), 106 Stat. 4600, at 4720-21.

3. Westlands Water District v. NRDC, 43 F.3d 457, 459 (9th Cir. 1994).

4. U.S. Department of the Interior Record of Decision, Trinity Mainstem
Fishery Restoration, Final Environmental Impact Statement/Environmental
Impact Report (December 2000) at 1 (hereinafter "ROD").

5. P.L. No. 102-575, Title XXXIV; 106 Stat. 4706 (1992).

6. Id., at 4720-21

7. P.L. No. 98-541, sect. 1(6), 98 Stat. 2721 (1984).

8. P.L. No. 102-575, sect. 3406(b)(23); 106 Stat. 4706, 4720-21.

9. Id.

10. Id.

11. The National Environmental Policy Act, as amended, 42 U.S.C. sect.
4332(2)(c), requires that whenever a federal agency undertakes "major
federal actions significantly affecting the quality of the human
environment," it must first prepare a "detailed statement" of the action's
anticipated environmental impacts. The agency must generally prepare a
detailed Environmental Impact Statement (EIS), that evaluates alternatives
to the proposed action, assesses the environmental impacts of each
alternative, and displays the agency's preferred alternative. The agency
must announce its final decision in a Record of Decision. 40 C.F.R. 1505.2a.

12. ROD at 8.

13. ROD at 9.

14. In 1997, the National Marine Fisheries Service (NMFS) listed the
southern Oregon/northern California coast coho salmon as threatened under
the Endangered Species Act. 62 Fed. Reg. 24588 (May 6, 1997). The
degradation of coho habitat resulting from dams in the region was one factor
supporting the listing. In 1999, NMFS designated the Trinity River below
Lewiston Dam as part of the coho's critical habitat. 64 Fed. Reg. 20462 (May
5, 1999).

15. ROD at 12. "Annual hydrology" refers to the abundance of water in the
region in a particular year. Classifications range from critically dry to
extremely wet.

16. ROD at 20.

17. ROD at 12. However, "full implementation" of the preferred alternative
will not occur for at least 2 years to allow for bridge modification and
other needed infrastructure improvements. ROD at 22.

18. ROD at 11.

19. ROD at 24. The ROD also requires certain habitat restoration activities
in the Trinity River, as well as adaptive management and mitigation
measures. ROD at
13-16.

20. Westlands Water District v. DOI, CIV F 00-7124 OWW DLB, March 22, 2001,
slip. op. at 14-15 (hereinafter Westlands).

21. Id. at 35.

22. Id.

23. Id. at 28.

24. Id. at 24.

25. Id. at 49-51.

26. "The committees intend this chapter to be interpreted broadly with
regard to the type and scope of rules that are subject to congressional
review." Cong. Rec. S3687 (daily ed. Apr. 19, 1996) (Joint Explanatory
Statement of Senate Sponsors); 142 Cong. Rec. E579 (daily ed. Apr. 19, 1996)
(Joint Explanatory Statement of House Sponsors.).

27. Id.

28. Id.

29. The Trinity ROD is clearly intended to have future effect, namely the
restoration and maintenance of anadromous fishery resources in the Trinity
River. The court in Westlands clearly indicated that the ROD will have
future effect, and in fact, issued a preliminary injunction to prevent the
adverse effects to plaintiffs from the reduction of water flow from the
Trinity River to the Central Valley Project.

30. The CRA provides three exceptions to the definition of "rule." The
exceptions in section 804(3)(A) and (C) are discussed above. The remaining
exception pertains to rules relating to agency management or personnel,
which is not implicated here. See 5 U.S.C. sect. 803(3)(B).

31. McKenzie v. Heckler, 602 F. Supp. 1150 (1985).

32. Cong. Rec. E578, April 19, 1996

33. Id.

34. CVPIA, sect. 3406(b)(23); ROD at 17-18.

35. ROD at 24.

36. Id.

37. We note that there are many contexts in which agencies issue records of
decisions. Whether a particular record of decision constitutes a CRA "rule"
or is excluded by one of the CRA's exceptions is an highly fact-intensive
inquiry that requires detailed case-by-case examinations of the document at
issue. Thus, this opinion only speaks to the Trinity ROD.