SAN LUIS & DELTA-MENDOTA WATER AUTHORITY; Westlands Water District, Plaintiffs-Appellants, and Pixley Irrigation District; Lower Tule River Irrigation District; Tri-Valley Water District; Hills Valley Irrigation District; Kern Tulare Water District; Rag Gulch Water District; Stockton East Water District; Fresno County; Tulare County, Plaintiffs-Intervenors, and Bay Institute of San Francisco; Save San Francisco Bay Association; Environmental Defense Fund; Natural Resources Defense Council; Pacific Coast Federation of Fishermen's Associations; Institute for Fisheries Resources; United Anglers of California, Plaintiffs-Appellees, v. UNITED STATES of America, Department of the Interior, Bureau of Reclamation; Ken Salazar, Secretary of the Interior; Robyn Thorson, Regional Director of the United States Department of the Interior Fish and Wildlife Service, Region 1; Donald Glaser, Regional Director, United States Department of the Interior Bureau of Reclamation, Mid-Pacific Region, Defendants-Appellees, 672 F.3d 676

Opinion by Judge WU; Partial Concurrence and Partial Dissent by Judge MILAN D. SMITH, JR. OPINION WU, District Judge: “One of the most contentious issues in the western United States is the management of water resources.” Westlands Water Dist. v. U.S. Dep’t of Interior, 337 F.3d 1092, 1100 (9th Cir.2003) (“Westlands Water Dist. I ”).

This appeal arises from a long-running conflict which has devolved to the present remaining dispute as to the classification of approximately 9,000 acre feet (“AF”) of water released between June 17 through 24 of 2004 from the Nimbus and New Melones reservoirs (“latter June 2004 releases”) within California’s Central Valley Project (the “CVP” or “Project”) by Defendant-Appellee United States Department of the Interior (“Interior”), acting through the United States Bureau of Reclamation (the “Bureau”) (collectively, “Federal Defendants” or “Federal Appellees”).

Plaintiff-Appellants San Luis & Delta-Mendota Water Authority (“San Luis”) and Westlands Water District (“Westlands”) (collectively, “Water Agencies” or “Appellants”) contend that Interi- or abused its discretion in failing to apply the latter June 2004 releases against the 800,000 AF of CVP yield especially designated for fish, wildlife, and habitat restoration under

section 3406(b)(2) of the Central Valley Project Improvement Act (“CVPIA”), Pub.L. No. 102-575, 106 Stat. 4600, 4715-16 (1992) (“section (b)(2)” or “(b)(2)”). We have jurisdiction pursuant to 28 U.S.C. § 1291. Because we find that the Water Agencies have standing and the accounting which Interior conducted for the latter June 2004 releases did not constitute an abuse of discretion, we AFFIRM the district court’s orders granting

summary judgment in favor of the Federal Appellees and against Appellants. BACKGROUND A. The Central Valley Project The CVP is the nation’s largest federal water management project. Central Delta Water Agency v. Bureau of Reclamation, 452 F.3d 1021, 1023 (9th Cir.2006) (“Central Delta II ”); Orff v. United States, 358 F.3d 1137, 1141 (9th Cir.2004). The Central Valley of California extends 450 miles south beginning at the Sacramento Valley, which contains the Sacramento River and its tributaries, and is 100 miles wide on average. Dugan v. Rank, 372 U.S. 609, 612, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963).

The Sacramento River runs southward from the Valley’s northern edge, through the City of Sacramento, and then onward to the San Francisco Bay and into the Pacific Ocean. Id. The southern portion of the Central Valley includes the San Joaquin River, which runs from the Sierra Nevada northeast of Fresno, west to Mendota, and then northwest to join the Sacramento River at the Sacramento-San Joaquin Delta. Id.

The San Francisco Bay/Sacramento-San Joaquin River Delta Estuary (“Bay-Delta”) lies at the convergence of the Sacramento, San Joaquin, and other rivers, and forms the centerpiece of a massive and fragile ecosystem.

One of the initial goals of the CVP was to provide for the transportation of “surplus” waters within the Sacramento Valley to the San Joaquin River and to permit “the waters of the latter river to be diverted to new areas for irrigation and other needs.” Id. “To accomplish the project’s purposes, CVP’s construction includes a series of many dams, reservoirs, hydro-power generating stations, canals, electrical transmission lines, and other infrastructure.” Westlands Water Dist. I, 337 F.3d at 1095-96(citing United States v. Gerlach Live Stock Co., 339 U.S. 725, 733, 70 S.Ct. 955, 94 L.Ed. 1231 (1950)).

The 22 reservoirs within the CVP have a total capacity of approximately 11 million AF, of which 7 million AF is released in an average year. See California Department of Water Resources, California State Water Project and the Central Valley Project, http://www.water.ca.gov/swp/cvp.cfm (“CDWR Website”) (last visited January 30, 2012). “The CVP supplies two hundred water districts, providing water for about thirty million people, irrigating California’s most productive agricultural region and generating electricity at nine powerplants.” Westlands Water Dist. v. U.S.

Dep’t of Interior, 376 F.3d 853, 861 (9th Cir.2004). The CVP is operated by the Bureau. Westlands Water Dist. I, 337 F.3d at 1096. The Bureau’s control of the CVP water is subject to a plethora of federal statutes and regulations governing many areas including, but not limited to: (1) the release of the CVP yield (see, e.g.,

section 3406 of the CVPIA), (2) water quality (see, e.g., the Clean Water Act, 33 U.S.C. § 1321), and (3) the impact of the releases on the environment and wildlife (see, e.g., San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1171 (9th Cir.2011)) (“The ‘no-jeopardy’ provision in [the Endangered Species Act, 16 U.S.C. § 1536(a)(2)] requires an agency to ensure that any action it takes ‘is not likely to jeopardize the continued existence of any endangered or threatened species.’ [footnote omitted.]”).

Additionally, the Bureau has entered into over 250 long-term contracts for the delivery of CVP water to various agricultural, industrial, and commercial entities in addition to municipal water agencies. See State Water Res. Control Bd. Cases, 136 Cal.App.4th 674, 692, 39 Cal.Rptr.3d 189 (2006). Also within the Central Valley is the California State Water Project (“SWP”), which includes storage faeilities/reservoirs (holding 5.8 million AF of water and annually delivering an average of 3 million AF), hydroelectric power plants, and about 700 miles of open canals and pipelines. See CDWR Website.

The SWP is the largest state-built water project in the country and is managed by the California Department of Water Resources (“CDWR”). Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, 606 F.Supp.2d 1122, 1128 (E.D.Cal.2008). The CVP and SWP share certain facilities and, for over thirty years, have operated in an increasingly coordinated manner pursuant to various agreements between the Bureau and the CDWR. Id.; see also Natural Res. Def. Council v. Kempthorne, 506 F.Supp.2d 322, 330 (E.D.Cal.2007). As described in State Water Res. Control Bd., 182 Cal.App.3d at 97, 227 Cal.

Rptr. 161: The [Sacramento-San Joaquin] Delta serves as a conduit for the transfer of water by the statewide water projects. Both the CVP and the SWP divert water from the rivers that flow into the Delta and store the water in reservoirs. Quantities of this stored water are periodically released into the Delta. Pumps situated at the southern edge of the Delta eventually lift the water into canals for transport south to the farmers of the Central Valley and the municipalities of Southern California.

Water which is neither stored nor exported south passes through the Delta where it is used by local farmers, industries and municipalities. The excess flows out into the San Francisco Bay. The construction and operation of the CVP, along with other stressors, has had a devastating effect upon California’s native fish populations, including, in particular, its native salmon. See In re Bay-Delta Programmatic Envtl. Impact Report Coordinated Proceedings, 43 Cal.4th at 1156, 77 Cal.Rptr.3d 578, 184 P.3d 709.

Anadromous fish, such as salmon, are particularly sensitive to changes in flow patterns, salinity, temperature and other conditions in and upstream of the Bay-Delta estuary. See generally Pac. Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez, 606 F.Supp.2d 1195, 1218-23 (E.D.Cal.2008). Most of California’s salmon face serious risk of extinction. Id. at 1250-53. B. The CVPIA The CVPIA, enacted by Congress in 1992, amended the CVP’s authorizing legislation and elevated “mitigation, protection, and restoration of fish and wildlife” to Project purposes on par with irrigation.

See CVPIA § 3406(a)(l)-(2), 106 Stat. at 4714; see also O’Neill v. United States, 50 F.3d 677, 686 (9th Cir.1995) (“CVPIA marks a shift in reclamation law modifying the priority of water uses.”). The overall purposes of the CVPIA are: (

a) to protect, restore, and enhance fish, wildlife, and associated habitats in the Central Valley and Trinity River basins of California; (

b) to address impacts of the Central Valley Project on fish, wildlife and associated habitats; (

c) to improve the operational flexibility of the Central Valley Project; (

d) to increase water-related benefits provided by the Central Valley Project to the State of California through expanded use of voluntary water transfers and improved water conservation; (

e) to contribute to the State of California’s interim and long-term efforts to protect the San Francisco Bay/Sacramento-San Joaquin Delta Estuary; (

f) to achieve a reasonable balance among competing demands for use of Central Valley Project water, including the requirements of fish and wildlife, agricultural, municipal and industrial and power contractors. CVPIA § 3402, 106 Stat. at 4706; Central Delta II, 452 F.3d at 1023-24.

Section 3406 of the CVPIA deals with “fish, wildlife and habitat restoration.” 106 Stat. at

Section 3406(

b) states that the Secretary of the Interior (“Secretary”) “shall operate the Central Valley Project to meet all obligations under State and Federal law, including but not limited to the Federal Endangered Species Act, 16 U.S.C. § 1531, et seq., and all decisions of the California State Water Resources Control Board establishing conditions on applicable licenses and permits for the project.” Id. The Secretary is further charged in

section 3406(b)(1) with developing and implementing, within three years of the CVPIA’s enactment, “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.... ” Id.

Section 3403(

a) defines “anadromous fish” as “those stocks of salmon (including steelhead), striped bass, sturgeon, and American shad that ascend the Sacramento and San Joaquin rivers and their tributaries and the Sacramento-San Joaquin Delta to reproduce after maturing in San Francisco Bay or the Pacific Ocean.” Id. at

Section 3406(b)(1)(

B) of the CVPIA states that: As needed to achieve the goals of this [anadromous fish doubling] program, the Secretary is authorized and directed to modify Central Valley Project operations to provide flows of suitable quality, quantity, and timing to protect all life stages of anadromous fish, except that such flows shall be provided [1] from the quantity of water dedicated to fish, wildlife, and habitat restoration purposes under paragraph (2) of this subsection [§ 3406(b)(2) ]; [2] from the water supplies acquired pursuant to paragraph (3) of this subsection [§ 3406(b)(3)]; and from other sources which do not conflict with fulfillment of the Secretary’s remaining contractual obligations to provide Central Valley Project water for other authorized purposes.

Id. at

Section 3406(b)(2) provides in part that the Secretary shall: upon enactment of this title[,] dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for [1] the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title; [2] to assist the State of California in its efforts to protect the waters of the San Francisco Bay/Sacramento-San Joaquin Delta Estuary; and [3] to help meet such obligations as may be legally imposed upon the Central Valley Project under State or Federal law following the date of enactment of this title, including but not limited to additional obligations under the Federal Endangered Species Act.

Id. at 4715-16; see also Central Delta I, 306 F.3d at 945; Central Delta II, 452 F.3d at

Section 3406(b)(3) directs the Secretary to develop and implement a program “for the acquisition of a water supply to supplement the quantity of water dedicated to fish and wildlife purposes under [§ 3406(b)(2) ]” which utilizes “the following options: improvements in or modifications of the operations of the project; water banking; conservation; [water] transfers; conjunctive use; and temporary and permanent land fallowing, including purchase, lease, and option of water, water rights, and associated agricultural land.” 106 Stat. at 4716. C.

Outflow Requirements and Objectives To understand the present dispute, some familiarity is required as to the “outflow” provisions for certain portions of the CVP waterways enacted in part pursuant to the Clean Water Act. As observed in PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 128 L.Ed.2d 716 (1994): [T]he complex statutory and regulatory scheme that governs our Nation’s waters [commonly known as the Clean Water Act, 33 U.S.C. § 1251 et seq.] ... implicates both federal and state administrative responsibilities.... ...

Section 303 of the Act ... requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters. §§ 1311(b)(1)(C), 1313.... A state water quality standard “shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.” 33 U.S.C. § 1313(c)(2)(A).

In 1978, the California State Water Resources Control Board (“SWRCB”) adopted the “Water Quality Control Plan for the Sacramento-San Joaquin Delta and Suisun Marsh” (the “1978 Plan”) that established new water quality standards for salinity control and for fish and wildlife protection in the Delta, which took into account the combined massive effects of the CVP and SWP. See State Water Res. Control Bd., 182 Cal.App.3d at 97-98, 227 CaLRptr. 161.

As part of that plan, the SWRCB modified the appropriation permits held by the Bureau and the CDWR to require the CVP and the SWP to release more water into the Delta (via flows) and to curtail their exports of water from the Delta (by means of pumping or diversions) as necessary to maintain the water quality standards under the plan. Id. at 119, 227 Cal.Rptr. 161.

In 1986, certain of those water quality standards were deemed invalid by a California Court of Appeal, inter alia, because the SWRCB: (1) improperly considered the protection of purportedly vested water rights in its formulation of the standards, and (2) failed to include in its analysis all sources of water quality degradation such as upstream diverters and polluters. Id. at 117-18, 227 CaLRptr. 161.

In December 1994, “[i]n order to provide ecosystem protection for the Bay-Delta Estuary,” various representatives from California state and federal agencies (including the Secretary of the Interior, the Administrator of the Environment Protection Agency, and the Secretary of the California Resources Agency) plus certain interested parties (such as PlaintiffAppellee Bay Institute of San Francisco, Appellant San Luis, and the Environmental Defense Fund) entered into a compact entitled “Principles for Agreement on Bay-Delta Standards between the State of California and the Federal Government” (“Bay-Delta Accord”), available at http:// calwater.ca.gov/content/documents/library/ SFBayDeltaAgreementpdf (last visited January 30, 2012).

Bay-Delta Accord at 1, 4-5. That agreement contained detailed interim measures for environmental protection and water quality standards for the Bay-Delta. See In Re Bay-Delta Programmatic Envtl. Impact Report Coordinated Proceedings, 43 Cal.4th at 1156, 77 Cal.Rptr.3d 578, 184 P.3d 709. Included therein were water outflow provisions, a new salinity standard, and a spring “pulse flow” requirement on the San Joaquin River at Vernalis. See Central Valley Water Agency v. United States, 327 F.Supp.2d 1180, 1194 (E.D.Cal.2004).

The Bay-Delta Accord also contained language that “[a]ll CVP water provided pursuant to these Principles shall be credited toward the CVP obligation under

Section 3406(b)(2) of the Central Valley Project Improvement Act to provide 800,000 acre feet of project yield for specified purposes.” Bay-Delta Accord at 3. In May 1995, the SWRCB adopted the “Water Quality Control Plan for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary, 95-1 WR” (“1995 WQCP”), available at http://www.swrcb.ca.gov/ waterrights/water_issues/programs/bay_ delta/wq_controLplans/1995wqcp/docs/ 1995wqcpb.pdf (last visited January 30, 2012).

The 1995 WQCP covered certain measures included in the Bay-Delta Accord and provided for the Delta outflow and Vernalis flow objectives that are involved in this case. The 1995 WQCP also identified seventeen “beneficial uses” of CVP/SWP water. Those utilizations were, in turn, placed into three general categories: (1) “municipal and industrial beneficial uses,” (2) “agricultural beneficial uses” — and (3) “fish and wildlife beneficial uses” and water quality objectives were then established for each category. See 1995 WQCP at 14-15.

Certain water quality criteria/objectives overlap two or more of the designated categories. For example, prevention of salinity intrusion is an element as to all three categories. 1995 WQCP at 14. Water quality objectives for fish and wildlife beneficial uses are set out in Table 3 of the 1995 WQCP.

Those requirements cover: (1) “Delta outflow objectives ... included for the protection of estuarine habitat for anadromous fishes and other estuarine-dependent species”; (2) “Sacramento and San Joaquin river flow objectives ... included to provide attraction and transport flows and suitable habitat for various life stages of aquatic organisms, including Delta smelt and chinook salmon”; and (3) “[(Objectives for export limits ... included to protect the habitat of estuarine-dependent species by reducing the entrainment of various life stages by the major export pumps in the southern Delta.” 1995 WQCP at 15.

The water quality objectives delineated in Table 3 are established “for the reasonable protection” of the enumerated beneficial uses 11 through 17 which cover uses of water that support: (1) warm or cold “water ecosystems including, but not limited to, preservation or enhancement of aquatic habitats, vegetation, fish or wildlife, including invertebrates”; (2) habitats necessary for reproduction, early development, migration and/or other temporary activities of aquatic organisms including, but not limited to, anadromous fish; and (3) estuarine ecosystems for fish, shellfish, invertebrates, amphibians, reptiles, mammals, and waterfowl, including habitats for rare, threatened or endangered plant or animal species. 1995 WQCP at 12-13, 15.

Additionally, the water quality objectives in Table 3 also provide protection for certain beneficial uses that do not involve fish, wildlife, and habitat restoration such as “[ujses of water for shipping, travel, or other transportation by private, military, or commercial vessels.” Id.

As to Delta outflow and designated river flows, the 1995 WQCP observed that: Unlike water quality objectives for parameters such as dissolved oxygen, temperature, and toxic chemicals, which have threshold levels beyond which adverse impacts to the beneficial uses occur, there are no defined threshold conditions that can be used to set objectives for flows and project operations. Instead, the available information indicates that a continuum of protection exists. Higher flows and lower exports provide greater protection for the bulk of estuarine resources up to the limit of unimpaired conditions.

Therefore, these objectives must be set based on a subjective determination of the reasonable needs of all of the consumptive and nonconsumptive demands on the waters of the Estuary. 1995 WQCP at 14-15. The 1995 WQCP also contained the following concession regarding salmon protection and the CYPIA’s anadromous fish doubling goal: “It is uncertain whether implementation of the numeric objectives in this plan alone will result in achieving the narrative objective for salmon protection.” 1995 WQCP at 28.

In response to petitions from the CDWR and the Bureau “to change points of diversion of the Central Valley Project (CVP) and the State Water Project (SWP) in the southern Delta” and “to change the use and purpose of use of the CVP,” the SWRCB in March 2000 issued the “Revised Water Right Decision 1641.” See In the Matter of: Implementation of Water Quality Objectives for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary, available at http://www.waterrights. ca.gov/Decisions/D1641rev.pdf (“D-1641”).

As explained therein: Currently, the authorized places of use in the [Bureau’s] water right permits do not all cover the same area. Because the [Bureau] commingles its water from several large reservoirs and diversion works, and because separate permits for these facilities have different requirements, the [Bureau] finds it impractical and infeasible to ensure that water appropriated under a specific permit is delivered only to lands within the place of use specified in the permit.

Accordingly, the [Bureau’s] practice is to deliver water from any source to any location within its service area without ensuring that water appropriated under a specific permit is delivered only to places specified in the permit.... To the extent that the [Bureau] delivers water to places outside a permitted place of use, however, it is operating inconsistently with the terms and conditions of the permit. D-1641 at 119. The SWRCB approved the consolidation of CVP permit places of use to remedy the Bureau’s prior potentially “inconsistent” practice. D-1641 at 119-21.

Additionally, the D-1641 approved, for a period of twelve years, conducting the Vernalis Adaptive Management Plan (“VAMP”), an experimental program to determine the relative impact of changes in flow and export limitations in the San Joaquin River on chinook salmon. See D-1641 at 2, 17. The VAMP provides for certain target flows at the Vernalis gage on the San Joaquin River during a 31-day period in April-May and a concomitant potential reduction in SWP and CVP water exports depending upon the amount of available water due to hydrological conditions. Id. at 19-20. A number of challenges were raised to the D-1641.

In 2006, on appeal of consolidated cases challenging its adoption, a California Court of Appeal held, inter alia, that in adopting portions of the D-1641 the SWRCB erred because it “was not entitled to implement alternate flow objectives agreed to by various interested parties in lieu of the flow objectives actually provided for in the [1995 WQCP]____[and it] failed to adequately implement certain salinity objectives in the [1995 WQCP] and failed to implement the minimum flows necessary to achieve the narrative objective for salmon protection in the [1995 WQCP].” State Water Res. Control Bd.

Cases, 136 Cal.App.4th at 690, 39 Cal.Rptr.3d 189. One of the specific holdings was that “by failing to implement all of the Vernalis flow objectives while the San Joaquin River Agreement is in effect, the [SWRCB] ‘fail[ed] to establish the minimum flows necessary to achieve the salmon-doubling standard.’ ” Id. at 777, 39 Cal.Rptr.3d 189. D. Previous Challenges in This Litigation to Interior’s Implementation of CVPIA § 3406(b)

(2) Water allocations under the CVPIA have generated approximately 13 years of protracted litigation in this case, addressing four sequential administrative decisions regarding the implementation of

section 3406(b)(2). The case began as a challenge by San Luis to Interior’s “Administrative Proposal on Management of

Section 3406(b)

(2) Water” (“Administrative Proposal”), issued in November 1997, and was later consolidated with a separate challenge brought by various environmental interests, including Plaintiff-Appellees the Bay Institute of San Francisco and others (“Environmental Parties”). The district court issued an April 9, 1999 order granting a partial judgment finding that the Administrative Proposal was deficient. After remand to the agency, Interior released its October 5, 1999 “Decision on Implementation of

Section 3406(b)(2) of the Central Valley Project Improvement Act” (“1999 Decision”), setting forth the manner in which it would calculate CVP yield in accordance with the CVPIA and how it would account for (and manage) the use of the 800,000 AF of dedicated yield. On November 16, 1999, San Luis filed a First Amended Complaint challenging the 1999 Decision. A Second Amended Complaint adding Plaintiff-Appellant West-lands (and updating the challenge to the 1999 Decision) was filed on April 5, 2001.

Therein, the Appellants argued that the Federal Defendants were required to credit against the 800,000 AF allocation of CVP yield all water used to satisfy any requirements under either the 1995 WQCP or the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq. The district court agreed, writing in its October 19, 2001 Memorandum Decision that “if it were left to Interior’s ‘discretion’ whether or not to count CVP yield used for such (b)(2) purposes, the annual 800 TAF [thousand acre feet] cap would be illusory.” See San Luis & Delta-Mendota Water Auth. v. U.S.

Dep’t of Interior, 236 F.R.D. 491, 494 (E.D.Cal.2006). In particular, the district court held that “[a]s a matter of law, [the statutory] language is not ambiguous — water used to meet WQCP or post-CVPIA ESA requirements is an additional (b)(2) purpose and must be charged against the 800 TAF (b)(2) mandate if so used.” Id. The district court’s March 20, 2002 partial judgment certified the (b)(2) accounting issues for appeal pursuant to Fed.R.Civ.P. 54(b). Both the Water Agencies and the Environmental Parties appealed.

During the pendency of that appeal, Interior issued a “final agency action” entitled “Decision on Implementation of

Section 3406(b)(2) of the Central Valley Project Improvement Act — May 9, 2003” (“May 2003 Decision”) which set out “the calculation of CVP yield ..., the method of accounting for use of (b)(2) water, and procedures for management and accountability for the dedicated (b)(2) water.” The May 2003 Decision incorporated the parts of the district court’s ruling regarding the mandatory treatment of water uses under the 1995 WQCP and/or postCVPIA ESA requirements as chargeable against the dedicated (b)(2) yield. On June 3, 2003, we issued a memorandum opinion in Bay Institute of San Francisco v.

United States, 66 Fed.Appx. 734 (9th Cir.2003), affirming in part and reversing in part the district court’s March 2002 partial judgment. In particular, we overruled the district court’s decision regarding Interior’s lack of discretion in accounting for water used for any (b)(2) purpose (such as for 1995 WQCP or postCVPIA ESA requirements) against the 800,000 AF of Project yield. On December 17, 2003, the Bureau’s Regional Director and the United States Fish and Wildlife Service’s (“USFWS”) California/Nevada Operations Manager issued a joint memorandum on “Guidance for Implementation of

Section 3406(b)(2) of the CVPIA” (“2003 Guidance Memo”) which was intended to “supplement ] the May 9, 2003 Decision, in light of the June 3, 2003 Ninth Circuit Ruling.” The Guidance Memo noted that: The May 9, 2003 Decision specifically provides for a target of up to 200,000 acre-feet of use in the October through January period, primarily for high priority fish and wildlife uses.

Moreover, actions taken pursuant to the 1995 Water Quality Control Plan and State Water Resources Control Board Decision D-1641 (“the 1995 WQCP”) involve the dedication and management of Central Valley Project yield for long-term fishery beneficial use and protection. Such actions are not taken to help meet agricultural or municipal and industrial water quality standards that are set forth in the 1995 WQCP. Most of the fishery beneficial uses and objectives under the 1995 WQCP and in Reclamation’s water rights permits help fulfill the fish, wildlife, and habitat restoration purposes and measures authorized by

Section 3406(b). Consistent with the June 3, 2003 Ninth Circuit decision, much of the (b)(2) water that is dedicated and managed annually to help meet fishery beneficial use and protection objectives of the 1995 WQCP serves

Section 3406(b)(2)’s “primary purpose” of fish, wildlife, and habitat restoration.

Also, under the 2003 Guidance Memo, the agencies agreed to start each year “with targets of up to 300,000 acre feet of (b)(2) water annually for high priority fish and wildlife actions” and “up to 500,000 acre-feet of (b)(2) water annually to help meet WQCP and ESA obligations.” However, the agencies recognized that “[t]his guidance does not establish caps but assures that priority actions are carefully weighed against the standards in the WQCP designed for fish and wildlife benefits.” Further, the 2003 Guidance Memo provided that “if the projected and/or realized WQCP/ESA costs for the accounting year exceed the 500,000 acre-feet of (b)(2) water, the [USFWS] and [the Bureau] will confer to determine the best course of action.” On January 23, 2004, we issued an amended decision in Bay Institute of San Francisco v.

United States, 87 Fed.Appx. 637 (9th Cir.2004) (“Bay Institute ”). On the issue of Interior’s discretion not to charge CVP yield used for secondary (b)(2) purposes against the 800,000 AF account, we stated: The district court erred in concluding that Interior lacks discretion to refrain from crediting the amount of Project yield actually used for any (b)(2) purpose against the designated 800,000 acre feet of Project yield. To hold otherwise would defeat the primary purpose for which the 800,000 acre feet were designated — fish, wildlife, and habitat restoration.

Section 3406(b)(2) provides that the “primary purpose” to which the 800,-000 acre feet should be dedicated is the implementation of “fish, wildlife, and habitat restoration purposes authorized by this title ... [sic]”

Section 3406(b)(2) also provides that the 800,000 acre feet may be used to “help” meet obligations under the Endangered Species Act and to “assist” in meeting water quality standards. If Interior were required to deduct some or all the water it uses for water quality and Endangered Species Act purposes from the (b)(2) dedication, the water needed for implementation of the Improvement Act’s restoration mandate could be relegated to a secondary role, or perhaps no role at all. Such a scenario would directly conflict with the Interior’s mandate to give effect to the hierarchy of purposes established in

Section 3406(b)(2). Id. at 639-40. Interior reviewed and considered our amended decision when undertaking subsequent (b)(2) actions, but made no changes to its 2003 Guidance Memo or other policy documents. See SL & DM Water Auth. I, 637 F.Supp.2d at 783. E. The 2004(b)

(2) Accounting Interior set the CVP (b)(2) accounting year to run from October 1 through September 30 because that time frame is consistent with the life cycle of most salmon and steelhead that spawn in the Central Valley rivers. See May 2003 Decision at 4. Typically, the fall and early winter are spawning periods for those anadromous fish whose eggs hatch in approximately two months. Id. After hatching, the salmonid fry spend their early life stages in nearby rearing habitats.

During April through June, “fishery actions target the emigration habitat for juvenile salmon as they migrate downstream, through the Delta and to the ocean.” Id. As described in San Luis Unit Food Producers v. United States, 772 F.Supp.2d 1210, 1218 (E.D.Cal.2011): Each year [the Bureau] projects the amount of water that will be available based upon reservoir storage, precipitation, runoff forecasts, and other indices....

Based on that projection and after taking into account the amount of water required to satisfy statutory and regulatory requirements, [the Bureau] determines the amount of water that can be delivered and allocated to its various contractors, including irrigation districts, municipal and industrial users, and wildlife refuges.... [The Bureau’s] water service contracts ... contain shortage provisions that specifically recite that [the Bureau] is not liable for shortages caused by compliance with legal obligations.

In October 2003, the Bureau proposed a series of prognostications of CVP operations for the upcoming 2004 year which included inter alia two hydrology scenarios — one where there was a 90% chance that the forecast would be exceeded (“90% numbers”) and one where there was a 50% chance of its being exceeded (“50% numbers”).

The Bureau also developed projections of CVP operations under: (1) pre1992 conditions (“baseline forecast”), (2) under the provisions of the SWRCB’s D-1641 (“water quality control plan forecast”), and (3) under the requirements of the 1995 WQCP and other (b)(2) mandated actions (“(b)(2) forecast”). Initial projected monthly and annual CVP water costs were estimated by running and comparing the forecasts against the 90% and 50% numbers. Each subsequent month, the Bureau updated the actual hydrology and CVP operations data and, in turn, developed a new set of the 90% and 50% numbers.

The actual (b)(2) accounting was based on a comparison of the daily CVP operations, including the (b)(2) actions, to the daily hypothetical CVP operations under the baseline (pre-1992) conditions. Interior initially summarized its use of CVP water for (b)(2) purposes during 2004 in a document entitled “Preliminary b(2) Accounting, Oct '03-Sep '04” (“Preliminary Accounting”). The Preliminary Accounting shows that spring of 2004 was a period of heavy use for (b)(2) water. In April, the (b)(2) account incurred charges to implement the VAMP and to meet Vernalis flow objectives.

In addition, due to the unexpected volume of storms in the middle of March 2004, the water costs of meeting the 1995 WQCP requirements relating to the location of “X2” during April were much higher than Interior had anticipated. May 2004 was another period of heavy use due to upstream releases, VAMP implementation, and releases from New Melones Reservoir. Much of the administrative record in this case consists of technical charts and compilations showing constantly updated forecasts and estimates of CVP operations and (b)(2) accounting.

As the Federal Appellees pointed out in their brief, there is no single document that comprises a “record of decision” for the 2004 Water Year. However, certain documents prepared during and at the end of the 2004 Water Year — particularly a chart entitled “Water Year 2004 Fishery Action Costs” (“2004 Year-End Accounting”) — illustrate the actions that Interior implemented for that year. The 2004 Year-End Accounting reflects 799,700 AF used for (b)(2) purposes and 158,900 AF used for other “Non-(b)

(2) Fishery Actions.” As Interior realized that it would reach the 800,000 AF limit on (b)(2) water dedications in late May or early June, Interior (in consultation with the USFWS) considered various accounting scenarios to deal with water released to meet 1995 WQCP and/or post-1992 requirements. In addition, Interior began taking actions to reduce other (b)(2) uses and sought to utilize Environmental Water Account (“EWA”) assets to manage the annual (b)(2) operations and accounting.

Ultimately, Interi- or established three categories of use to account for CVP releases of water under its various statutory responsibilities: (1) “PRIMARY PURPOSE Fish Actions,” (2) “WQCP Actions that contribute to PRIMARY PURPOSE,” and (3) “WQCP/ESA Actions that contribute to SECONDARY PURPOSE.” From June 17 to 30, 2004, Interior made releases from the Nimbus Reservoir on the American River, from the New Melones Reservoir on the Stanislaus River (which flows into the San Joaquin River near Vernalis), and in Clear Creek.

The 2004 Year-End Accounting reflects that, during the relevant period, the Clear Creek releases were charged to the (b)(2) account, and they are not directly involved in this appeal. The Nimbus releases and a portion of the New Melones releases, however, were not charged against the (b)(2) account because they were ostensibly made to meet general Delta outflow and Vernalis flow standards for June. A total of 5,500 AF was released from the Nimbus Reservoir in the latter portion of June 2004 in order to meet the 1995 WQCP Delta outflow standard.

Similarly, in that period, there was a total of 17,600 AF released from the New Melones Reservoir Complex at the Goodwin Dam in order to meet the San Joaquin River flow requirements at Vernalis.

The Nimbus release and 3,500 AF of the New Melones release were assigned in Interior’s accounting to the third category of ‘WQCP/ESA Actions that contribute to SECONDARY PURPOSE.” Because they were categorized as “Secondary Purpose” actions, Interior refrained from charging 5,500 AF of the Nimbus release and 3,500 AF of the New Melones release against the 800,000 AF (b)(2) account allocated for CVPIA’s restoration mandate. The sum of the those figures is the contested 9,000 AF at issue in this appeal. F. Motions for

Summary Judgment Following the 2004 Water Year, the Water Agencies sought and obtained leave to file a Supplemental Complaint. See San Luis & Deltar-Mendota Water Auth. v. U.S. Dep’t of Interior, 236 F.R.D. 491 (E.D.Cal.2006). The Supplemental Complaint alleged that Interior’s 2004(b)(2) accounting was arbitrary, capricious, an abuse of discretion, and contrary to law. In November 2007, following the Federal Appellees’ preparing and filing of the Administrative Record for the 2004(b)(2) accounting year, the Water Agencies and Federal Defendants each filed cross-motions for

summary judgment. The Water Agencies argued in their motion that Interior unlawfully classified certain actions and water releases in late June and in August/September 2004 as “Non-(b)

(2) Fishery Actions.” The August/September 2004 releases are not at issue in this appeal. On September 19, 2008, the district court issued its decision on the cross-motions, granting the Water Agencies’ motion for

summary judgment as to the AugusVSeptember 2004 actions and granting the Federal Defendants’ cross-summary judgment motion as to the latter June 2004 releases. SL & DM Water Auth. I, 637 F.Supp.2d at 806-07. Accurately characterizing the Water Agencies’ challenge as concerning “the scope of Interior’s discretion, rather than whether Interior has any discretion at all,” id. at 795 n. 8 (the latter question having been resolved by the previous appeal), the district court engaged in a detailed analysis of the 2004 allotments and concluded that Interior had not abused its discretion as to its treatment of the latter June 2004 releases. Id. at 803-04, 806-07. In their

summary judgment motion, the Water Agencies, while acknowledging that Interior enjoys some discretion not to charge WQCP/ESA actions against the (b)(2) yield, nevertheless argued that this discretion is extremely limited. Under the Water Agencies’

interpretations of the CVPIA and of this court’s June 2003 Bay Institute decision, any water used to meet WQCP and/or ESA purposes must be counted against the (b)(2) yield unless doing so would not serve any fish, wildlife, and habitat restoration purposes, or if counting the water toward the 800,000 AF limit would “significantly impair”

section (b)(2)’s primary restoration purposes. See id. at 795. The Water Agencies further urged that any water used pursuant to the WQCP or the ESA to further fish and wildlife restoration necessarily “serves the primary purpose and effectuates the hierarchy of purposes set in

section 3406(b)(2),” and so must be counted against the (b)(2) allotment. Id. The Federal Appellees proffered a much broader

interpretation of the scope of Interior’s discretion as to CVP water used to satisfy the 1995 WQCP or post-1992 ESA requirements. They argued that the ruling in Bay Institute “must be read as a command to Interior to ensure that it exercises its discretion in a manner that will not frustrate the primary purpose of fish, wildlife, and habitat restoration.” Id. at 796. The Environmental Parties’ position approximately tracked that of the Federal Appellees, except that they also expressly argued that the sole primary purpose of the CVPIA is anadromous fish doubling. Id. The district court rejected the Environmental Parties’ suggestion that the “fish doubling” requirement set forth in

section 3406(b)(2) was “the only restoration activity that should be considered a component of the ‘primary purpose.’ ” Id. at 798. It also, however, rejected the Water Agencies’ argument that the reference to the ESA and WQCP requirements in the CVPIA reflects Congress’s understanding that these requirements must always be considered part of the “primary purpose” of the CVPIA. See id. at 797.

Ultimately, the district court held that “a plain language reading of the primary purpose language ... suggests that Congress intended only actions specifically authorized by the CVPIA to be considered ‘primary purpose’ measures.” Id. at 799. Further, it determined that “[t]he ‘primary purpose’ includes.... water dedicated to accomplish the anadromous fish doubling goal set forth in

section 3406(b)(1), but also includes water needed to accomplish any of the other specifically enumerated programs listed in

section 3406(b)” that could conceivably affect water releases or flows (ie., 3406(b)(4), (5), (8), (9), (12), (18) & (19)). Id. at 799-800. Noting the “potential for overlap” between primary purpose measures and actions taken pursuant to the 1995 WQCP and/or the ESA, and applying our prior ruling in Bay Institute, the district court articulated the following precept: [I]f an action taken under the WQCP and/or the ESA predominantly contributes to one of the primary purpose programs (e.g., fish doubling), it must be counted toward the 800,000 AF limit.

Interior retains the discretion not to count other secondary actions, so long as doing so is necessary to give effect to the hierarchy of purposes. Id. at 801-02. The district court found that its conclusion (that the CVPIA does not require that all ESA and WQCP compliance actions count towards a primary purpose) was “reinforced” by the fact that

section (b)(2) itself delineates “multiple priorities.” Id. at 797. As the court stated: Primacy is given to those “fish, wildlife, and habitat restoration purposes and measures authorized by [the CVPIA].” Thereafter, Interior is directed by the statute “to assist” the State in its “efforts to protect the waters of the San Francisco Bay Sacramento-San Joaquin Delta Estuary,” and “to help” meet obligations imposed upon the CVP under State and Federal law, “including but not limited to additional obligations under the Federal Endangered Species Act....” Id. at 797-98 (quoting § 3406(b)(2)).

Applying its stated rule, the district court then considered whether Interior had abused its discretion in its accounting of the latter June 2004 releases. In doing so, the district court acknowledged that it was forced to look beyond the administrative record. It observed: [N]one of the guidance documents presented in the Administrative Record directly identify or explain the procedures Interior must follow either in a “normal” (b)(2) year or an “exceptional” one in which the 800,000 AF limit may need to be exceeded.

The May 9, 2008 [sic] Decision comes the closest, stating: Interior will account for the total amount of CVP water costs associated with meeting the WQCP obligations and ESA obligations imposed after enactment of CVPIA against the annual (b)(2) allocation, up to the balance of (b)(2) water remaining at the time the cost is incurred. This Decision, however, predates the Ninth Circuit’s ruling on the issue. Id. at 803 (citation omitted).

The district court further noted that the Federal Defendants had themselves asserted that there was “no formal administrative decision in this case to which Chevron deference is owed” and that, accordingly, the parties had stipulated “to allow for the submission of expert declarations to help explain the contents of this ‘rather unusual administrative record to the court.’ ” Id. (citation omitted). The supplemental materials included the declarations of Roger Guiñee (the Water Operations Division Chief for the USFWS’s Water and Fishery Resources Program) and Paul E.

Fujitani (the Chief of the Water Operations Division in the Bureau’s Central Valley Operations Office). Those declarations stated that: (1) the latter June 2004 Nimbus and New Melones releases were specifically implemented to respectively meet the WQCP Delta outflow and the Vernalis flow requirements, and (2) the USFWS had not recommended that the Bureau increase flow releases in June 2004 on the American River for primary fish restoration purposes pursuant to

section (b)(2). Utilizing those submissions, the district court concluded that Interior did not abuse its discretion by failing to deduct the additional 9.000 AF of CVP yield released in the latter portion of June of 2004 from the 800.000 AF (b)(2) account. This conclusion, however, was based in part on the district court’s finding (later withdrawn) that, because the 1995 WQCP numeric standards “do not specifically identify an intent to support the fish doubling goal (or any other specifically-enumerated 3406(

b) program),” actions taken to satisfy those standards do not “ ‘predominantly’ contribute to primary purpose programs.” Id. at 804. G. Motion for Reconsideration The Water Agencies moved for reconsideration of the district court’s decision regarding Interior’s June 2004 allocation of the 9,000 AF to “Non-(b)

(2) Fishery Actions.” On May 14, 2009, the district court granted that motion, but did not change its overall conclusion that Interior had not abused its discretion. See SL & DM Water Auth. II, 624 F.Supp.2d at 1217. Although the district court reversed its finding that the SWRCB did not intend “for the numeric flow standards in the 1995 WQCP to contribute toward the narrative fish doubling goal in the WQCP,” it noted that its reversal on that point did not “resolve whether water used for WQCP purposes also is predominantly used for primary CVPIA 3406(b)(2) purposes.” Id. at 1217. As to that question, the court conceded that “[t]he

summary judgment record contained very little specific information pertaining to this issue.” Id. at 1214. In the meantime, the parties had submitted new declarations with the motion for reconsideration, including one from Christina Swanson, Ph.D., a fisheries biologist with the Bay Institute of San Francisco, whose earlier declaration also had been considered in connection with the

summary judgment motions. Id. at 1215. Dr. Swanson stated that the Delta outflow objective primarily benefits non-salmonid fish species such as white sturgeon, bay shrimp, Crangon franciscorum, longfin smelt, and Sacramento splittail. Id. Dr. Swanson further testified that the releases at issue could not have benefitted salmon because, in late June 2004, most of the juvenile salmon were gone from the San Joaquin River and the agencies were not even sampling for salmon in the river at that time. Id. at 1216.

In addition, Guiñee in his supplemental declaration stated that the latter June 2004 Nimbus releases were “specifically implemented to support CVP export pumping” and “to meet Delta demands.” Absent evidence that they were intended to predominantly benefit anadromous fish as opposed to other fish species, “and in light of the fact” that an Environmental Impact Report performed in connection with the 1995 WQCP indicated that the Delta outflow standard was intended to benefit multiple fish species (as well as other animals), the district court again found no abuse of discretion in connection with Interior’s accounting for the latter June 2004 releases made to satisfy the Delta outflow objective.

Id. at 1215-16. As to the water released from the New Melones facility to comply with the Vernal-is flow standard, the court noted that there was a dispute among the parties’ experts regarding the possible reasons for the release and “predominant use of [the] water.” See id. at 1216-17. Nevertheless, the court noted: As to such a decision on a subject, water accounting, inherently within the agency’s discretion and expertise, the deferential standard favoring the agency’s decision is not overcome.

Based on the totality of the information available to the Bureau at the time, including the fact that the Vernalis flow standard is designed to serve multiple purposes, not just anadromous fish doubling, coupled with the fact that there were no salmon present in the San Joaquin system in late June 2004, the Bureau exercised discretion and did not abuse it in not counting water released to comply with the Vernalis flow standard toward the (b)(2) account.

Even though the Bureau’s rationale was not clearly articulated in the record, a court should “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” [Nat’l Ass’n of] Home Builders [u Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) ]. Id. at 1217. STANDARD OF REVIEW We review de novo a district court’s grant of

summary judgment. Nolan v. Heald College, 551 F.3d 1148, 1153(9th Cir.2009). The district court’s

interpretation and application of federal statutes are also reviewed de novo, as is its determination on the issue of standing. Levine v. Vilsack, 587 F.3d 986, 991 (9th Cir.2009). Because the CVPIA contains no provision for judicial review, the Administrative Procedure Act (“APA”) governs the review of Interior’s challenged actions in this case. 5 U.S.C. §§ 701-06; see also United States v. Bean, 537 U.S. 71, 77, 123 S.Ct. 584, 154 L.Ed.2d 483 (2002) (“[I]n the absence of a statutorily defined standard of review for [an agency’s] action under [a federal statute], the APA supplies the applicable standard.”).

Under the APA, an administrative action may be set aside only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “We will sustain an agency action if the agency has articulated a rational connection between the facts found and the conclusions made.” Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 426 F.3d 1082, 1090 (9th Cir.2005) (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)).

Although a decision may be upheld if the agency’s reasoning may be reasonably inferred, it is impermissible to “infer an agency’s reasoning from mere silence.” Id. at 1091(quoting Beno v. Shalala, 30 F.3d 1057, 1073-74 (9th Cir.1994)).

Reversal of the agency action is appropriate when “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. at 1090 (quoting Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, 103 S.Ct. 2856). ANALYSIS A.

Standing As delineated by Appellants in their Opening Brief, the “issue presented for review” herein is: Whether Interior’s method of accounting for Central Valley Project (“CVP”) yield dedicated and managed under

section 3406(b)(2) of the CVPIA during June, 2004, is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law because it excluded water dedicated and managed to benefit fishery resources and habitat pursuant to numerical Delta outflow and San Joaquin River flow objectives set forth in the 1995 Water Quality Control Plan (“1995 WQCP”) against the 800,000 acre-feet limit imposed by Congress. Because the Federal Appellees have renewed their challenge of the Water Agencies’ standing to raise this issue, we initially turn to that jurisdictional requirement.

Where, as here, a plaintiff seeks to challenge a federal agency’s action under the APA, it must satisfy both the constitutional elements for standing under

Article III as well as the statutory requirements for “standing under the APA.” See Public Citizen v. Dep’t of Transp., 316 F.3d 1002, 1019-20 (9th Cir.2003), rev’d on other grounds, 541 U.S. 752, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004); Fair v. EPA, 795 F.2d 851, 853-54 (9th Cir.1986). To establish

Article III standing: (1) a “plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (

a) concrete and particularized, ... and (

b) actual or imminent, not conjectural or hypothetical”; (2) “there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court”; and (3) “it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted); see also Salazar, 638 F.3d at 1169. The burden of establishing the elements of standing falls upon the party asserting federal jurisdiction. Lujan, 504 U.S. at 561, 112 S.Ct. 2130. The Water Agencies have

Article III standing to challenge the accounting methods employed by Interior with respect to the allocation of (b)(2) water resources in 2004 because Interior’s accounting decision arguably resulted in reduced water deliveries to them. To establish its injury in fact, Westland claims that it has a beneficial interest in water stored and delivered by the CVP. As stated in Westlands Water Dist. I: Westlands entered into a contract with the Bureau for water from the San Luis Unit of the CVP, which diverts water from the Sacramento-San Joaquin River Delta via the Delta-Mendota Canal.

Westlands is the largest contractor for water from the San Luis Unit, Firebaugh Canal Co. v. United States, 203 F.3d 568, 572 (9th Cir.2000), with a contractual entitlement to purchase 900,000 acre feet of water annually, O’Neill v. United States, 50 F.3d 677, 680 (9th Cir.1995). 337 F.3d at 1097. The contract between Westlands and the Bureau recognizes that: There may occur at times during any year a shortage in the quantity of water available for furnishing to the District through and by means of the Project. ...

In any year in which there may occur a shortage from any cause, the United States reserves the right to apportion the available water supply among the District and others entitled under the then existing contracts to receive water from the San Luis Unit.... Id. at 1097-98. We have held that “an unavailability of water resulting from the mandates of valid legislation constitutes a shortage by reason of ‘any other causes.’ ” Id. at 1101 (citing O’Neill, 50 F.3d at 684).

Westlands presented undisputed evidence that, for most of the 2004 water year, allocations of CVP yield to agricultural service contractors south of the Delta (which would include the Water Agencies here) were at 65% of contracted amounts. In response to that shortfall, Westlands had to purchase alternative supplies and its landowner customers had to pump groundwater. This court has recognized that “the loss of affordable irrigation water for ... agricultural lands” is an injury in fact, Laub v. U.S.

Dep’t of Interior, 342 F.3d 1080, 1086 (9th Cir.2003), and that the adverse consequences flowing from a reduction in water delivery are “concrete and particularized” and “actual or imminent.” Salazar, 638 F.3d at 1169-70.

The Water Agencies also contend that they face the threat of future injury because Interior claims discretion to refrain from counting prospective releases utilizing CVP yield (that are required by the 1995 WQCP or the ESA) against the (b)(2) account. “[T]he possibility of future injury may be sufficient to confer standing on plaintiffs; threatened injury constitutes ‘injury in fact.’ ” Central Delta I, 306 F.3d at 947 (citing Ecological Rights Found, v. Pac. Lumber Co., 230 F.3d 1141, 1151 (9th Cir.2000)).

The Water Agencies have demonstrated that they face a “significant risk” that their water allocations will be reduced in the future as a result of the Federal Appellees’ (b)(2) accounting decisions regarding releases pursuant to the 1995 WQCP and/or the ESA in operating the CVP. Id. at 948. Because the Water Agencies have shown both an actual injury and a threat of future injury, we conclude that the first element of

Article III standing is satisfied. The Federal Appellees do not specifically contest the Water Agencies’ showing as to their injury in fact, but instead primarily focus on the second factor (ie., causation). They contend that the Water Agencies have not proffered any evidence that the CVP’s “less than demand” allocation to Westlands or the other south-of-Delta agricultural contractors was in fact caused by Interior’s actual accounting determinations that the Water Agencies challenge in this lawsuit.

The causation element requires that the injury be “fairly traceable to the challenged action of the defendant” and not “the result of the independent action of some third party not before the court.” Tyler v. Cuomo, 236 F.3d 1124, 1132 (9th Cir.2000). The district court, addressing the Federal Appellees’ causation argument, noted that, even though the Water Agencies “do not specifically explain how Interior’s 2004 Water Year accounting actions resulted in reduced water deliveries,” the Federal Appellees themselves “accounted for these actions as reductions from CVP yield....” SL & DM Water Auth.

I, 637 F.Supp.2d at 787-88. In challenging Appellants’ ability to demonstrate causation, Interior attempts to characterize the district court’s observation, that “[i]f this reduction of CVP annual yield did not cause losses to CVP contractors, Federal Defendants have not explained why,” id. at 788, as an improper attempt to shift the burden on the issue of standing. As noted at oral argument, however, the allocation of CVP water is a zero-sum game. Thus, if Project yield is used for one purpose, it reduces the available water for other purposes.

The conelusion that an unexpected and sizable reduction in available CVP yield resulted in decreased water deliveries to CVP contractors is a natural and plausible one. The CVPIA specifically provides that “[i]f the quantity of water dedicated under this paragraph, or any portion thereof, is not needed for the purposes of this section, based on a finding by the Secretary, the Secretary is authorized to make such water available for other project purposes.” CVPIA, § 3406(b)(2)(D), 106 Stat. at 4716. Had Interior accounted for the 9,000 AF in question as water used in service of

section 3406(b)(2)’s primary purpose, more water would have been available for allocation to CVP contractors, including those represented in this lawsuit. Causation is also demonstrated by the methodology that the Bureau uses in its delivery of water allocations and its agreements with agricultural contractors such as the Water Agencies herein. Under the contracts, when there is a shortage of water “from any cause” to deliver the full specified amounts of CVP yield, the Bureau is permitted to apportion the available water among all of the parties that are entitled to the water under the existing contracts.

While hydrological conditions such as rainfall, temperature, snow pack, reservoir levels, conveyance losses, and other factors will affect the amount of CVP yield, actions by government bodies can also impact the quantity of water available for distribution. As recognized in West-lands Water Dist. I, 337 F.3d at 1101, the mandates of valid legislation can cause a shortage which would fall within the “from any cause” provision. Thus, the set aside of 800,000 AF in the CVPIA reduces the quantity of available water for delivery to the south-of-Delta agricultural contractors.

Additionally, the Federal Defendants’ failure to account for particular releases as being within the (b)(2) 800,000 AF would potentially allow them to circumvent the legislative directive in the CVPIA that, “to the greatest degree practicable, the specific quantities of yield dedicated to and managed for fish and wildlife purposes under this title are credited against any additional obligations of the Central Valley Project which may be imposed by the State of California following the enactment of this title.... ” CVPIA § 3406(b)(1)(C), 106 Stat. at 4715.

A failure to properly account for the releases would cause additional shortfalls of available yield, which in turn would cause the Bureau to proportionally reduce the amounts of water for delivery to agricultural contractors.

Finally, Appellees also do not dispute that the relief sought in this case— i e., (1) a declaration that Federal Defendants do not have discretion to refrain from counting fish-related actions taken pursuant to the 1995 WQCP or postCVPIA ESA requirements toward the (b)(2) allocation, and (2) an injunction prohibiting Federal Defendants from failing to count such actions against the (b)(2) allocation in the future — would redress the Water Agencies’ alleged injury.

There is, potentially, a concern about redressability and/or mootness, because the Water Agencies are not seeking damages or any remedy that would undo actions taken in the 2004 water year. However, their claims fall within the “capable of repetition yet evading review” exception to mootness. See, e.g., Fed. Election Comm’n v. Wis.

Right to Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (noting established exception to mootness where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.”) (quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)).

If, indeed, Interior has misinterpreted the scope of its discretion not to charge water it uses for WQCP and/or ESA purposes against the (b)(2) account, then, arguably, the Water Agencies would sustain a new injury in every year such use exceeds the 800,000 AF allotment or the agency incorrectly accounts for uses of the dedicated (b)(2) yield and the Water Agencies receive less than their contractual allotment. Thus, it is jurisdictionally appropriate to review the latter June 2004 accounting decisions. Because the Water Agencies have met the three requirements under Lujan, they have

Article III standing to challenge the accounting methods employed by Interior for the 2004(b)(2) water year. The Water Agencies also have statutory standing under the APA.

Section 10(

a) of the APA provides: “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” 5 U.S.C. § 702.

As to the first element, Interior’s decisions for the 2004(b)(2) accounting year clearly are “agency actions.” As to the second factor, in order to be “adversely affected or aggrieved” within the meaning of a statute, “the plaintiff must establish that the injury he complains of ... falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

As the district court noted, “one of the stated purposes of the CVPIA is to ‘achieve a reasonable balance among competing demands for the use of [CVP] water, including the requirements of fish and wildlife, agricultural, municipal and industrial and power contractors.’ CVPIA § 3402(f).” SL & DM Water Auth. I, 637 F.Supp.2d at 792. Characterizing the Water Agencies’ alleged injury as “reduced water deliveries to agricultural, municipal, and industrial contractors,” the district court correctly concluded that the injury fell “within the zone of interest of the CVPIA.” Id. B.

Whether Interior Abused Its Discretion In support of them contention that Interior’s decision not to charge the latter June 2004 releases against the (b)(2) account was an abuse of discretion, the Water Agencies argue that: (1) “Section 3406(b)(2) provides Interior with limited discretion regarding accounting of water used for WQCP purposes”; (2) “The ‘primary purpose’ actions under

section 3406(b)(2) include all actions serving the purposes and measures authorized by the CVPIA”; (3) “Allowing Interior discretion to exclude water dedicated to WQCP or other uses from the (b)(2) account would eviscerate the 800,000 acre-feet limit and conflict with other CVPIA provisions”; and (4) “Until it was faced with the 2004 accounting problem, Interior understood that it was required to count the ‘non-B2 fishery actions’ taken from June 17, 2004, through June 30, 2004, against the 800,000 acre-feet limit of

section 3406(b)(2).” These arguments are unavailing. First, no party or court currently contends that Interior possesses unlimited discretion regarding its accounting of the 800,000 AF of CVP yield which it manages under

section 3406(b)(2) of the CVPIA. Here, the dispute revolves around the scope or limits of the discretion as set out in the enabling legislation. Initially, in 1999, the Water Agencies took the position that the Federal Defendants had to charge all CVP yield used to satisfy any requirements under the 1995 WQCP or ESA against the 800,000 AF allocation. The district court agreed in its 2001 decision. We reversed.

We held that, while (b)(2) water may be used to help meet obligations under the ESA or water quality standards in the 1995 WQCP, “[i]f Interior were required to deduct some or all of the water it uses for water quality and Endangered Species Act purposes from the (b)(2) dedication, the water needed for implementation of the Improvement Act’s restoration mandate could be relegated to a secondary role, or perhaps no role at all. Such a scenario would directly conflict with Interior’s mandate to give effect to the hierarchy of purposes established in

Section 3406(b)(2).” Bay Institute, 87 Fed.Appx. at 640. Upon remand and further litigation, the district court held that the “primary purpose” language in

section 3406(b)(2) refers only to the programs specifically enumerated in

section 3406(

b) of the CVPIA, beginning with anadromous fish doubling measures. SL & DM Water Auth. I, 637 F.Supp.2d at 799-800. Recognizing the potential for overlaps between actions taken pursuant to a

section (b)(2) primary purpose program and those under the 1995 WQCP and/or the ESA, the district court concluded that CVP yield used to meet WQCP and/or ESA requirements had to be counted against the 800,000 AF limits only when they “predominantly” contributed as well to one of the specified (b)(2) primary purpose measures. Id. at 802. That

interpretation by the district court is consistent with the statutory language and the prior decisions of this court. The district court drew an appropriate distinction between actions taken under the WQCP and/or ESA generally (which, as the district court acknowledged, could contribute to “primary purpose” objectives) and actions under the WQCP and/or ESA that “predominantly contribute[ ] to one of the primary purpose programs.’ ” Id. Second, the Water Agencies’ contention that “the ‘primary purpose’ actions under

section 3406(b)(2) include all actions serving the purposes and measures authorized by the CVPIA” is both vague and inconsistent with the statute and our prior ruling.

Section 3406(b)(2) states that the Secretary of the Interior is to “dedicate and manage annually eight hundred thousand acre-feet of Central Valley Project yield for the primary purpose of implementing the fish, wildlife, and habitat restoration purposes and measures authorized by this title.... ” The Water Agencies’ position omits the statutory language that primary purpose actions (to which the 800,000 AF are to be dedicated) are limited to those which “implement] the fish, wildlife, and habitat restoration purposes and measures” in the CVPIA.

Thus, the Appellants’ effort to untether the concept of the (b)(2) “primary purpose” from fish, wildlife, and habitat restoration measures actually delineated in the CVPIA is incorrect. Further,

section 3406(b)(2) provides that after implementing the primary purpose, the remainder of the 800,000 AF can also be used “to assist the state of California in its efforts to protect the waters of the San Francisco Bay/Sacramento-San Joaquin Delta Estuary; and to help to meet such obligations as may be legally imposed upon the Central Valley Project under State or Federal law ... including but not limited to additional obligations under the federal Endangered Species Act.” The distinction in the statute itself between the primary restorative purpose (on the one hand) and those of water protection and meeting other legal obligations such as the ESA (on the other) clearly demonstrates that an action taken to meet water quality criteria and/or ESA requirements does not, by itself, fall within the category of a (b)(2) primary purpose.

This is precisely the point we previously made in Bay Institute, 87 Fed.Appx. at 639-40.

Third, we also again reject the Water Agencies’ argument that “allowing Interior discretion to exclude water dedicated to WQCP or other uses from the (b)(2) account would eviscerate the 800,000 acre-feet limit and conflict with other CVPIA provisions.” We have already held that “[i]f Interior were required to deduct some or all the water it uses for water quality and Endangered Species Act purposes from the (b)(2) dedication, the water needed for implementation of the Improvement Act’s restoration mandate could be relegated to a secondary role, or perhaps no role at all.” Id. at 640.

Appellants cite to language in

section 3406(b)(1)(

C) of the CVPIA which requires that: The Secretary shall cooperate with the State of California to ensure that, to the greatest degree practicable, the specific quantities of yield dedicated to and managed for fish and wildlife purposes under this title are credited against any additional obligations of the Central Valley Project which may be imposed by the State of California following enactment of this title, including but not limited to increased flow and reduced export obligations which may be imposed by the California State Water Resources Control Board in implementing San Francisco Bay/Sacramento-San Joaquin Delta Estuary standards pursuant to the review ordered by the California Court of Appeals in United States v.

State Water Resources Control Board, 182 Cal. App.3d 82 [227 Cal.Rptr. 161] (1986), and that, to the greatest degree practicable, the programs and plans required by this title are developed and implemented in a way that avoids inconsistent or duplicative obligations from being imposed upon Central Valley Project water and power contractors. 106 Stat. at 4715. Clearly,

section 3406(b)(1)(

C) does recognize that portions of the 800,000 AF utilized for (b)(2) purposes (including increased flows and reduced exports) could overlap with post-1992 water quality control measures imposed by California (such as the later-enacted 1995 WQCP). However, that provision does not particularly support the Water Agencies’ case here. In the face of such overlap, the statute does not require any automatic or compulsory “one-for-one” deduction from the 800,000 AF (b)(2) account.

Rather, the Secretary of the Interior is to “cooperate” with the State of California “to ensure that, to the greatest degree practicable,” the specific quantities of CVP yield used for fish and wildlife purposes designated in the CVPIA are “credited” against the additional obligations; and that, “to the greatest degree practicable,” programs that are developed and implemented avoid imposing “inconsistent or duplicative obligations” on CVP contractors.

The “to the greatest degree practicable” language indicates that any crediting against the dedicated 800,000 AF of CVP yield stemming from the overlap between actions taken for the primary (b)(2) purpose and actions required by post-1992 water quality and ESA measures would be left to Interior’s expertise and discretion. Cf Central Delta II, 452 F.3d at 1027 (“It is equally clear that the Bureau’s is an extremely difficult task: to operate the country’s largest federal water management project in a manner so as to meet the Bureau’s many obligations.

Recognizing this difficulty, Congress granted the Bureau considerable discretion in determining how to meet those obligations.”). Fourth, Appellants’ argument (that “until it was faced with the 2004 accounting problem, Interior understood that it was required to count the ‘non-B2 fishery actions’ taken from June 17, 2004, through June 30, 2004, against the 800,000 acre-feet limit of

section 3406(b)(2)”) actually raises two issues: (1) whether the Bureau’s prior guidelines and circulated notices mandated that the latter June 2004 releases be classified as primary purpose (b)(2) actions; and (2) whether, even if those guidelines and/or notices were not controlling, the record below fails to show any rational connection between the facts before the Bureau and its decision not to treat the latter June 2004 releases as predominantly undertaken for a (b)(2) primary purpose. Initially, the Appellants rely on the 2003 Guidance Memo.

They specifically point to the language therein which states: [A]ctions taken pursuant to the 1995 Water Quality Control Plan and State Water Resources Control Board Decision D-1641 (“the 1995 WQCP”) involve the dedication and management of Central Valley Project yield for long-term fishery beneficial use and protection. Such actions are not taken to help meet agricultural or municipal and industrial water quality standards that are set forth in the 1995 WQCP.

Most of the fishery beneficial uses and objectives under the 1995 WQCP and in Reclamation’s water rights permits help fulfill the fish, wildlife, and habitat restoration purposes and measures authorized by

Section 3406(b). Consistent with the June 3, 2003 Ninth Circuit decision, much of the (b)(2) water that is dedicated and managed annually to help meet fishery beneficial use and protection objectives of the 1995 WQCP serves

Section 3406(b)(2)’s “primary purpose” of fish, wildlife, and habitat restoration. The 2003 Guidance Memo’s characterization of the 1995 WQCP and its

interpretation of the “primary purpose” language in the CVPIA are not controlling on this court. See Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000) (“[I]nterpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law — do not warrant Chevron-style deference. See, e.g., Reno v. Koray, 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (internal agency guideline, which is not ‘subject to the rigors of the Administrative Procedure Act, including public notice and comment,’ entitled only to ‘some deference’ (internal quotation marks omitted)).... Instead,

interpretations contained in formats such as opinion letters are ‘entitled to respect’ under our decision in Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944), but only to the extent that those

interpretations have the ‘power to persuade,’ ibid.”)', accord League of Wilderness Defenders/Blue Mts. Biodiversity Project v. Forsgren, 309 F.3d 1181, 1189 (9th Cir.2002).

The 2003 Guidance Memo errs when its asserts that “actions taken pursuant to the 1995 Water Quality Control Plan and State Water Resources Control Board Decision D-1641.... are not taken to help meet agricultural or municipal and industrial water quality standards that are set forth in the 1995 WQCP.” For example, the prevention of excessive salinity intrusion is a water quality objective for all three categories of “municipal and industrial,” “agricultural,” and “fish and wildlife” beneficial uses. See 1995 WQCP at 14.

The 1995 WQCP specifically recognized that “[t]he water supply-related objectives include those for Delta outflow, river flows, export limits, the Delta Cross Channel gates, and salinity control for the protection of municipal and industrial supply, agricultural supply (excluding salinity objectives for protection of southern Delta agriculture ...), and fish and wildlife.” Id. at 27.

It further noted regarding Southern Delta agricultural salinity that: Elevated salinity in the southern Delta is caused by low flows, salts imported in irrigation water by the State and federal water projects, and discharges of land-derived salts, primarily from agricultural drainage. Implementation of the objectives will be accomplished through the release of adequate flows to the San Joaquin River and control of saline agricultural drainage to the San Joaquin River and its tributaries....

This plan’s objectives for flows in the San Joaquin River at Vernalis are expected to contribute to achieving the salinity objectives in the southern Delta. Presently, the [Bureau] is responsible for meeting Vernalis salinity objectives through the release of water from the New Melones Reservoir, as required under Water Right Decision 1422. Additional releases from other reservoirs for fish and wildlife protection in the San Joaquin River tributaries may be required through ongoing [Federal Energy Regulatory Commission] proceedings. Id. at 29.

Likewise, the water quality objectives incorporated in Table 3 of the 1995 WQCP for the reasonable protection of fish and wildlife also provide protection for some non-restorative beneficial uses such as navigation (¿e., “uses of water for shipping, travel, or other transportation by private, military or commercial vessels”) and commercial and sport fishing. Id. at 12,15.

Further, as we have explained, the fact that certain water releases were not taken to help meet agricultural or municipal and industrial standards under the 1995 WQCP does not mean that they must necessarily be treated as (b)(2) primary purpose actions. Though it was not entirely evident at the time the 2003 Guidance Memo was issued, it became clear in the course of the 2004(b)(2) accounting year from our revised decision in Bay Institute that the (b)(2) “primary purpose” is narrower than the 2003 Guidance Memo suggests.

It consists not of fish, wildlife, and habitat restoration generally, but rather, only of those restoration measures which are specifically enumerated in

section 3406(b)(2) of the CVPIA. See 87 Fed.Appx. at 639 (“Section 3406(b)(2) provides that the ‘primary purpose’ to which the 800,000 acre feet should be dedicated is the implementation of ‘fish, wildlife, and habitat restoration purposes authorized by this title.’ ”). Also, the USFWS recognized that the 2003 Guidance Memo was inconsistent with our view of the amount of discretion Interior enjoys under the CVPIA regarding the allocation of (b)(2) water. A USFWS document labeled “CVPIA § 3406(b)

(2) Background,” dated April 21, 2004, and bearing the notation “For DOI (b)

(2) Discussion Purposes Only,” included the following observation: April 2004 [the Bureau] and USFWS met to resolve inconsistencies between January 2004 Appellate Court ruling and Interior’s December 2003 Guidance Memo. Inconsistencies identified by Service staff and DOI Solicitor’s staff include: 3. The Guidance Memo does not give effect to hierarchy of purposes as mandated by the Ninth Circuit Court and established in CVPIA. Finally, as the 2003 Guidance Memo indicates, “most of’ (but not all of) “the fishery beneficial uses and objectives under the 1995 WQCP” also “help fulfill the fish, wildlife, and habita

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