ORDER

KARLTON, Chief Judge Emeritus.

Plaintiffs, various environmental groups, seek to enjoin the Bureau of Reclamation ("Bureau") from entering into renewal contracts to supply water from the Friant Dam unit of the Central Valley Project. They allege violation of the National Environmental Policy Act, 42 U.S.C. § 4332, the Endangered Species Act, 16 U.S.C. § 1536, the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706, and various federal regulations and guidelines promulgated under those statutes.

On January 7, 1992, plaintiffs were granted leave to amend to assert an APA claim premised on the Bureau's alleged violation of Section 8 of the Reclamation Act of 1902 ("Section 8"). Plaintiffs maintain that Section 8 mandates compliance by the Bureau, as owner of Friant Dam, with California Fish Game Code § 5937 and that the Bureau has failed to comply with this state law.

Both the federal and non-federal defendants, the irrigation and water districts supplied by the dam, now move to dismiss this cause of action pursuant to Federal Rule of Civil Procedure 12(b)(6). They argue that plaintiffs lack standing to assert this claim and that in any event Section 8 does not mandate the federal government's compliance with § 5937. For the reasons expressed below, defendants' motion is denied.

I DISMISSAL STANDARDS UNDER FED.R.CIV.P. 12(b)(6)

In general, the complaint is construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). So construed, the court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King Spalding, 467 U.S. 69, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). In spite of the deference the court is bound to pay to the plaintiff's allegations, however, it is not proper for the court to assume that "the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged." Associated General Contractors v. California State Council, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983).

II STANDING

A motion addressed to standing questions "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). It raises a legal question addressed to the allegations of the complaint, see Public Agencies Opposed to Social Security Entrapment v. Heckler ( "POSSE"), 613 F. Supp. 558, 566 (E.D.Cal. 1985), rev'd on other grounds, 477 U.S. 41, 106 S.Ct. 2390, 91 L.Ed.2d 35 (1986), and not the merits of the case. POSSE, 613 F. Supp. at 566. For this reason, in ruling on a motion to dismiss for want of standing the court accepts the allegations of the complaint as true and draws all inferences in favor of the plaintiff. MWAA v. CAAN, 501 U.S. ___, ___, 111 S.Ct. 2298, 2305-06, 115 L.Ed.2d 236, 251 (1991) (quoting Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206).

To establish standing to sue under the APA, 5 U.S.C. § 702, plaintiffs must allege that they have suffered an injury in fact and must demonstrate that this injury falls within the "zone of interests" sought to be protected by the statutory provision which provides the legal basis for their complaint. Air Courier Conference v. American Postal Workers Union, 498 U.S. ___, ___, 111 S.Ct. 913, 917-18, 112 L.Ed.2d 1125, 1134 (1991). The injury-in-fact requirement is an Article III mandate, while the "zone of interests" requirement is a nonconstitutional, prudential limitation on the exercise of jurisdiction. Port of Astoria, Oregon v. Hodel, 595 F.2d 467, 474 (9th Cir. 1979). See also Fair v. United States EPA, 795 F.2d 851 (9th Cir. 1986).

A. Injury in Fact

Defendants do not argue that plaintiffs have failed to allege sufficient actual injury, nor could they. The complaint alleges that many of plaintiffs' members earn their living from the San Joaquin River and its environs and engage in recreational activities on the river. They allege economic and recreational damage suffered by members occasioned by the drying up of the San Joaquin River below the Friant Dam resulting from the Bureau's delivery of water pursuant to the original contracts and that they will continue to suffer those losses should the contracts be renewed. These allegations are sufficient to satisfy the injury-in-fact requirement for standing purposes. State of Cal. etc. v. Watt, 683 F.2d 1253, 1270 (9th Cir. 1982), rev'd on other grounds, 464 U.S. 312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984). See also Sierra Club v. Watt, 608 F. Supp. 305, 314-15 (E.D.Cal. 1985).

B. Zone of Interests

The APA standing section, 5 U.S.C. § 702, does not contain a "zone of interests" test. The Supreme Court supplied this gloss as a means of implementing what it described as Congress' intent to broaden remedies, but not to allow suit by every person suffering injury in fact. Clarke v. Securities Industry Ass'n, 479 U.S. 388, 395, 107 S.Ct. 750, 754, 93 L.Ed.2d 757 (1987).

The first step in "zone of interests" analysis is identification of the statute by which the zone of interest is measured. "[T]he relevant statute [under the APA], of course, is the statute whose violation is the gravamen of the complaint." Air Courier, 498 U.S. at ___, 111 S.Ct. at 921, 112 L.Ed.2d at 1138 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, ___, 110 S.Ct. 3177, 3186-87, 111 L.Ed.2d 695, 714 (1990)). The court is to look only to the relevant statute unless another statute is found to bear an "integral relationship" to the underlying statute. Air Courier, 498 U.S. at ___, 111 S.Ct. at 920-21, 112 L.Ed.2d at 1137-38. Where this relationship exists, a court may look to both statutes. Id.

At oral argument, all parties agreed that to determine the "zone of interest" in the matter at bar the court is to look to both Section 8 and to § 5937. The court agrees. Under the pleadings, Section 8 and § 5937 bear an integral relationship with each other, since plaintiffs allege that Section 8's incorporation of state law "relating to the control, appropriation, use or distribution of water used in irrigation" incorporates § 5937. See Marshall Ilsley Corp. v. Heimann, 652 F.2d 685, 695-98 (7th Cir. 1981), cert. denied, 455 U.S. 981, 102 S.Ct. 1489, 71 L.Ed.2d 691 (1982), and State of Idaho ex rel. Robson v. First Security Bank, 315 F. Supp. 274 (S.D. Idaho 1970).

Once the court has determined the relevant statute, it must examine whether the interest asserted by a plaintiff bears a "plausible relationship to the policies underlying" the statute. Clarke, 479 U.S. at 403, 107 S.Ct. at 759.

In cases where the plaintiff is not itself the subject of the contested regulatory action, the test denies a right of review if the plaintiff's interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit. The test is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.

I now turn to the policies meant to be furthered by the enactment of Section 8 and § 5937.

The Supreme Court has characterized Section 8 as a statute exemplifying "cooperative federalism," California v. United States, 438 U.S. 645, 650, 98 S.Ct. 2985, 2988, 57 L.Ed.2d 1018 (1978). Notions of federalism usually refer to the requisite federal respect of state sovereignty. See, e.g., Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Relative to Section 8, however, the Supreme Court has explained that Congress was motivated not only by respect for state sovereignty, but also sought to protect water users from being subjected to different and possibly conflicting state and federal water use statutes. The Court explained that a "primary motivating factor" for enacting Section 8 was Congress' intent to insure that state laws pertaining to the appropriation, distribution or use of water were preserved so as to avoid the confusion which would be occasioned by the same water rights being governed by both state and federal law. California v. United States, 438 U.S. at 668-69, 98 S.Ct. at 2997-98. Put another way, a primary congressional concern in adopting Section 8 was protection of water users by ensuring that all in-state water use would be subject to the same restrictions.

Plaintiffs allege that § 5937 restricts for certain instream uses the Bureau's ability to divert all water from the area below the Friant Dam, an area which once made up a portion of the San Joaquin River. Plaintiffs' groups are composed of would-be users of the water and water-generated resources that would result if the Bureau were required to allow water to flow over or around the dam consistent with the provisions of § 5937. As potential benefactors of the instream uses of this water, it is plain plaintiffs' interests are not "marginally related to or inconsistent with the purposes implicit" in Section 8 and § 5937. Accordingly, plaintiffs have satisfied the zone-of-interests test.

Since plaintiffs' pleadings demonstrate injury in fact and satisfaction of the zone-of-interests test, defendants' motion to dismiss for want of standing is DENIED.

III MERITS

Resolution of this aspect of defendants' motion is a matter of statutory construction. As I explain below, the plain meaning of Section 8, binding authority interpreting the statutory language employed therein, application of a relevant canon of statutory construction and the statute's legislative history all demonstrate that defendants' contention is without merit.

I begin by noting that defendants' argument fails to take into account the tenet of statutory construction requiring a court to construe a statute so that every word has some operative effect. United States v. Nordic Village, 503 U.S. ___, ___, 112 S.Ct. 1011, ___, 117 L.Ed.2d 181, 189 (1992). By its terms, Section 8 does not apply solely to state water laws that determine the control, appropriation, use or distribution of water used in irrigation. Rather, the statute provides that nothing in the Reclamation Act is meant to interfere with the state laws " relating to the control, appropriation, use or distribution of water used in irrigation." Thus, plaintiffs may properly state a claim under Section 8 for a violation of a state statute not only where that statute directly regulates water used in irrigation, but also where the statute relates to the control, appropriation, use or distribution of water used in irrigation. Thus, to determine whether § 5937 is incorporated into Section 8's saving clause, I must examine whether § 5937 relates to those state laws specified in Section 8.

This is not the first case where a court has been required to apply the phrase "relating to" used in a federal statute for the purpose of referring to state statutes. See Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2899-2900, 77 L.Ed.2d 490 (1983) (interpreting the provision of Employee Retirement Income Security Act of 1974 ("ERISA") which preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" covered by ERISA. 29 U.S.C. § 1144(a)). As the Supreme Court explained there, "[a] law 'relates to' an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan." Id. at 96-97, 103 S.Ct. at 2900. The Court concluded that it must give effect to this plain language unless there was good reason to believe Congress intended the language to have a more restrictive meaning. Id. at 97, 103 S.Ct. at 2900.

Obviously, the phrase thus construed has an extraordinary breadth. Indeed so construed, the Court explained, the phrase encompasses every state statute having any connection with the subject of the federal law unless the state statute's relationship to the federal statute is "tenuous, remote or peripheral." Id. at 100 n. 21, 103 S.Ct. at 2901. While recognizing the statute's expansive preemptive effect on state law when so construed, the Court felt compelled to give the phrase the full effect because there was no indication that Congress did not intend to give words in the phrase their ordinary meaning. Accordingly, unless there is reason to believe Congress intended the language to have a more restrictive meaning, I too must accord the phrase its full effect.

Neither the terms of Section 8 nor its history indicates that Congress intended the words "relating to" to be narrowly construed. Indeed, in California v. United States, 438 U.S. 645, 98 S.Ct. 2985, the Court explicitly rejected what it characterized as dictum from prior cases which narrowly interpreted Section 8. Id. at 674, 98 S.Ct. at 3000 (rejecting language from Ivanhoe Irrigation District v. McCracken, 357 U.S. 275, 291-92, 78 S.Ct. 1174, 1183-84, 2 L.Ed.2d 1313 (1958), and Arizona v. California, 373 U.S. 546, 586-87, 83 S.Ct. 1468, 1490-91, 10 L.Ed.2d 542 (1963)). The Court held that Section 8 subjected the distribution of water to state law unless that state law is inconsistent with congressional directives. California v. United States, 438 U.S. at 674-75, 98 S.Ct. at 3000-01; see also California v. FERC, 495 U.S. 490, 502-04, 110 S.Ct. 2024, 2031-32, 109 L.Ed.2d 474, 489 (1990), where Court noted the "broad terms" of Section 8's interpretation in California v. United States. Thus, so long as § 5937 has a connection with or reference to the control, appropriation, use or distribution of water used in irrigation, it is incorporated by Section 8 unless it is found to be remote from Section 8's purposes.

Contrary to federal defendants' argument, such an interpretation does not eliminate the need for the subsequent statutory phrase "or any vested rights acquired thereunder." This argument assumes that to give these words effect, incorporation must be limited to state laws that vest rights. Although it is unclear whether § 5937 vests any water rights, a natural reading of the statute does not suggest that only laws vesting water rights are incorporated. The natural reading is that Section 8 protects from federal interference both those state laws which have a connection with the control, appropriation, use or distribution of water used in irrigation, and individual rights which have vested under those, or any other, laws.

Having concluded that defendants' limited reading of the statute is inappropriate, I must determine whether § 5937 is a state statute that relates to the control, appropriation, use or distribution of water used in irrigation. Although the matter at bar is a question of first impression, both the Supreme Court and Ninth Circuit have provided guidance on this issue.

In California v. United States, 438 U.S. 645, 98 S.Ct. 2985, the Supreme Court carefully analyzed the legislative history of the 1902 Reclamation Act. It concluded that state law was to control the Secretary's appropriation, purchase or condemnation of necessary water rights, id. at 665, 98 S.Ct. at 2996, and the distribution of waters released from the dam, id. at 667, 98 S.Ct. at 2996, unless that state law is inconsistent with congressional directives. Id. at 674-75, 98 S.Ct. at 3000-01. But for certain subsequent developments in the Ninth Circuit, California v. United States would clearly be dispositive of the defendants' argument. I now examine the Circuit's treatment of the scope of Section 8.

On remand, the Ninth Circuit, in dicta, distinguished between laws relating to the impoundment and distribution of water on the one hand, and the operation of the dam on the other. United States v. State of Cal., State Water Resources Control Bd., 694 F.2d 1171 (9th Cir. 1982) (hereinafter "U.S. v. Water Resources"). The court suggested that laws concerning operation of a dam were not covered under Section 8, and thus the Bureau would not have to comply with state law regarding dam operation. Id. at 1182. Under this analysis, the determination of whether Section 8's savings clause incorporates § 5937 would turn on whether it was a law relating to the control, appropriation, use, or distribution of water used in irrigation or whether it is a statute controlling the actual operation of the dam. The either/or formulation of this question is hardly inevitable, and U.S. v. Water Resources does not suggest what resolution is appropriate if a statute both addresses operation of a dam and relates to distribution of water.

Defendants, indulging in the same assumption made in U.S. v. Water Resources, argue that because the implementation of § 5937 would require the release of water from the dam, it relates to dam operation and does not relate to the impoundment or distribution of water. Plaintiffs reply by arguing that while it is not clear what "actual operation of the dam" covers, the Ninth Circuit, by approving various conditions regulating the release of water in U.S. v. Water Resources, indicated that such conditions do not constitute control of the operation of the dam. At oral argument, plaintiffs also argued that if the application of any law that requires the opening of dam gates is considered a law controlling the operation of a dam, Section 8's savings clause would be eviscerated since compliance with many state water laws may require opening the dam gates.

I cannot agree with plaintiffs that the Ninth Circuit's decision in U.S. v. Water Resources approving the conditions imposed on the Bureau in the course of the permit process is dispositive of the issue now facing this court. There the court dealt with the Water Resources Control Board's conditioning of the appropriation permit on compliance with various provisions limiting the federal project's water impoundment and distribution for the preservation and enhancement of fish and wildlife. See 694 F.2d at 1173 ("the validity of these specific conditions is at the heart of this case"). It is, of course, true that some of these conditions would require the opening of the dam gates to allow water to pass through the dam. See, e.g., Conditions 2, 5, 6, and 17 at 694 F.2d at 1183-84. These conditions, however, were imposed as part of the permit process; thus they related to the appropriation and initial impoundment of the water, a situation the Supreme Court determined to be covered by Section 8. Here an entirely different issue is tendered, one related to the application of § 5937 to compel Bureau conduct independent of the permit process.

In a case decided subsequent to U.S. v. Water Resources, the Ninth Circuit ignored the distinction posited therein between laws relating to water usage and laws relating to dam operation. In South Delta Water Agency v. U.S. Dept. of Int., 767 F.2d 531 (9th Cir. 1985), the court observed, also in dicta, that as owners of the Friant Dam, the Bureau must "comply with state law both in their operation of the CVP and in their acquisition of water rights for the project." Id. at 537-38. See also United States v. State Water Resources Control Bd., 182 Cal.App.3d 82, 134, 227 Cal.Rptr. 161 (1986). South Delta Water Agency tendered the question of whether Cal. Water Code § 11460 was incorporated by Section 8, thus providing plaintiffs with a cause of action under the APA. By its terms, § 11460 applies to dam operation. The court held that the statute restrained the Bureau's operation of Friant Dam and that this restraint was not inconsistent with congressional intent as expressed in the Reclamation Act.

The apparent conflict between U.S. v. Water Resources and South Delta Water Agency concerning the Bureau's obligations relative to state laws affecting dam operation may be resolved by reading the dicta in the former case narrowly to reach only those state statutes which have as their exclusive result the regulation of dams, but not to encompass those statutes which while affecting operations of the dam, also affect the impoundment or distribution of water. This resolution does no violence to U.S. v. Water Resources, since as I have noted, the Court there assumed that a statute either regulated water use or dam operation. Thus a reading of U.S. v. Water Resources restricting its application to its assumptions appears appropriate. Moreover, such a reading is consistent with logic. The fact that application of a statute may require the opening of a dam's gates does not preclude the statute from relating to the impoundment of water which in the absence of the dam would otherwise be naturally flowing.

I conclude that U.S. v. Water Resources should be read to free from Section 8's reach only those statutes which exclusively regulate the operation of dams and which have no effect on the distribution of water. Consistent with the teaching of California v. United States and South Delta Water Agency, Section 8 incorporates state statutes which affect both dam operation and water impoundment or distribution and statutes which solely affect water impoundment or distribution. As I explain below, § 5937 affects the impoundment and distribution of water. Accordingly, even if § 5937 also affects the operation of Friant Dam, Section 8 mandates the Bureau's compliance with the state statute.

By its terms, § 5937 mandates that the owner of a dam allow water to pass over or through the dam for certain purposes. Without deciding whether § 5937 is a water appropriation statute, vel non, the statute's plain language demonstrates that it was intended to limit the amount of water a dam owner desiring to collect water for eventual irrigation may properly impound from an otherwise naturally flowing stream. Thus, it is a prohibition on what water the Bureau, as owner of the dam, may otherwise appropriate. Since the water is withheld by the Bureau for the purposes of use in irrigation, the law restricting this withholding relates to the control, appropriation, use and distribution of water used in irrigation. See California Trout Inc. v. State Water Resources Control Bd., 207 Cal.App.3d 585, 601, 255 Cal.Rptr. 184 (1989) ("Compulsory compliance with a rule requiring the release of sufficient water to keep fish alive necessarily limits the water available for appropriation for other uses"). Put another way, to the extent § 5937 preserves from appropriation by the Bureau of an amount of water necessary for instream uses, it relates to the appropriation or use of water used in irrigation. Accordingly, § 5937 must be held to be within the purview of state laws made applicable to the Bureau through Section 8.

IV CONCLUSION

Defendants' motion to dismiss plaintiffs' fourth cause of action is premised upon arguments that plaintiffs lack standing to sue under the APA and that the Bureau is exempted from complying with California Fish Game Code § 5937 because it is not covered by the savings clause of Section 8 of the Reclamation Act of 1902. For the reasons stated above, that motion is DENIED.

IT IS SO ORDERED.