                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


PEOPLE OF THE STATE OF                 No. 12-55856
CALIFORNIA EX REL. IMPERIAL
COUNTY AIR POLLUTION CONTROL              D.C. No.
DISTRICT; IMPERIAL COUNTY AIR          3:09-cv-02233-
POLLUTION CONTROL DISTRICT;               AJB-PCL
COUNTY OF IMPERIAL,
              Plaintiffs-Appellants,

                 v.

U.S. DEPARTMENT OF THE INTERIOR;
SALLY JEWELL, Secretary of the
United States Department of
Interior; UNITED STATES BUREAU OF
RECLAMATION; MICHAEL L.
CONNOR, Commissioner, Bureau of
Reclamation,
               Defendants-Appellees,

IMPERIAL IRRIGATION DISTRICT; SAN
DIEGO COUNTY WATER AUTHORITY;
COACHELLA VALLEY WATER
DISTRICT; METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA,
   Intervenor-Defendants–Appellees.
2     PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

PEOPLE OF THE STATE OF                    No. 12-55956
CALIFORNIA EX REL. IMPERIAL
COUNTY AIR POLLUTION CONTROL                D.C. No.
DISTRICT; IMPERIAL COUNTY AIR            3:09-cv-02233-
POLLUTION CONTROL DISTRICT;                 AJB-PCL
COUNTY OF IMPERIAL,
                Plaintiffs-Appellees,
                                            OPINION
                 v.

U.S. DEPARTMENT OF THE INTERIOR;
SALLY JEWELL, Secretary of the
United States Department of
Interior; UNITED STATES BUREAU OF
RECLAMATION; MICHAEL L.
CONNOR, Commissioner, Bureau of
Reclamation,
                        Defendants,

                And

IMPERIAL IRRIGATION DISTRICT; SAN
DIEGO COUNTY WATER AUTHORITY;
COACHELLA VALLEY WATER
DISTRICT; METROPOLITAN WATER
DISTRICT OF SOUTHERN
CALIFORNIA,
  Intervenor-Defendants–Appellants.


     Appeal from the United States District Court
        for the Southern District of California
     Anthony J. Battaglia, District Judge, Presiding
         PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.                    3

                  Argued and Submitted
           December 4, 2013—Pasadena, California

                        Filed May 19, 2014

  Before: Paul J. Watford and Andrew D. Hurwitz, Circuit
   Judges, and William E. Smith, Chief District Judge.*

                    Opinion by Judge Hurwitz


                           SUMMARY**


                       Environmental Law

    The panel affirmed the district court’s summary judgment
in favor of federal defendants and intervenor water districts
in an action challenging an environmental impact statement
prepared by the Secretary of the Interior that analyzed the
effects of water transfer agreements on the Salton Sea in
southern California.

    The panel disagreed with the district court and held that
the plaintiffs, Imperial County and the Imperial County Air
Pollution Control District, had standing to sue. The panel
nonetheless affirmed the judgment because the district court
correctly found in the alternative that the Secretary of the


  *
   The Honorable William E. Smith, Chief District Judge for the U.S.
District Court of the District of Rhode Island, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4      PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

Interior did not violate the National Environmental Policy
Act. The panel also held that the record below made plain
that the Secretary did not violate the Clean Air Act.


                       COUNSEL

Michael L. Rood and Katherine Turner, County of Imperial,
County Counsel, El Centro, California, for Plaintiffs-
Appellants–Cross-Appellees.

Alene M. Taber (argued), Michael L. Tidus, Kathryn M.
Casey, and Jonathan E. Shardlow, Jackson, DeMarco, Tidus,
Peckenpaugh, Irvine, California, for Plaintiffs-
Appellant–Cross-Appellee People of the State of California
ex rel. Imperial County Air Pollution Control District, and
Imperial County Air Pollution Control District.

Antonio Rossmann, Roger B. Moore, and Barton Lounsbury,
Rossmann and Moore, LLP, San Francisco, California, for
Plaintiffs-Appellants–Cross-Appellees County of Imperial.

Ignacia S. Moreno, Assistant Attorney General, David C.
Shilton, Stephen M. MacFarlane, Norman L. Rave, Jr., and
Peter J. McVeigh (argued), United States Department of
Justice, Environment & Natural Resources Division,
Washington, D.C.; Robert Snow, M. Rodney Smith, Jr.,
Office of the Solicitor, United States Department of the
Interior, Washington, D.C., for Defendants-Appellees.

Kurt R. Wiese, General Counsel, and Barbara Baird, District
Counsel, Diamond Bar, California, for Amicus Curiae South
Coast Air Quality Management District.
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.         5

Catherine Redmond, District Counsel, Fresno, California, for
Amicus Curiae San Joaquin Valley Unified Air Pollution
Control District.

Katherine C. Pittard, District Counsel, Sacramento,
California, for Amicus Curiae Sacramento Metropolitan Air
Quality Management District.

Dennis Marshall, County Counsel, and William M. Dillon,
Senior Deputy, Santa Barbara, California, for Amicus Curiae
Santa Barbara County Air Pollution Control District.

Nancy Diamond, District Counsel, Law Offices of Nancy
Diamond, Arcata, California, for Amicus Curiae North Coast
Unified Air Quality Management District.

David D. Cooke, Allen Matkins Leck Gamble Mallory &
Natsis LLP, San Francisco, California; David L. Osias and
Mark J. Hattam, Allen Matkins Leck Gamble Mallory &
Natsis LLP, San Diego, California; Jeffrey M. Garber,
General Counsel, Imperial Irrigation District, Imperial,
California, for Intervenor-Defendant–Appellee–Cross-
Appellant Imperial Irrigation District.

Marcia L. Scully, General Counsel, John D. Schlotterbeck,
Senior Deputy Counsel, Adam C. Kear, Senior Deputy
General Counsel, Los Angeles, California; Linus Masouredis,
Chief Deputy General Counsel, Sacramento, California, for
Intervenor-Defendant–Appellee–Cross-Appellant The
Metropolitan Water District of Southern California.

Steven B. Abbott and Julianna Strong, Redwine and Sherrill,
Riverside, California; Michelle Ouellette and Melissa R.
Cushman, Best Best & Krieger, LLP, Riverside California,
6      PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

for Intervenor-Defendant–Appellee–Cross-Appellant
Coachella Valley Water District.

Lisabeth D. Rothman and Amy M. Steinfeld, Brownstein
Hyatt Farber Schreck, LLP, Los Angeles, California; Daniel
S. Hentschke, General Counsel, San Diego County Water
Authority, San Diego, California, for Intervenor-
Defendant–Appellee–Cross-Appellant San Diego County
Water Authority.


                        OPINION

HURWITZ, Circuit Judge:

    The Salton Sea—the largest inland body of water in
California—is a creature of accident. In 1905, water from the
Colorado River breached an irrigation canal and flooded the
then-dry Salton Basin. After the initial flood, irrigation
runoff from the Imperial and Coachella Valleys—supplied by
the Colorado River—sustained the Sea for more than a
century. The Sea has become a unique attraction for water-
based recreation in the harsh southern California desert.

    The Sea’s continued access to Colorado River water is in
jeopardy. Over the last few decades Arizona and Nevada
began to claim their full entitlements to the stream.
California, which has long used more than its share, has been
required to conserve. The affected California water districts
ultimately agreed to transfer some Colorado River water from
the Imperial Valley to urban areas in southern California.
The Secretary of the Interior—who controls the delivery of
River water—prepared an environmental impact statement
(“EIS”), which, among other things, analyzed the effect of
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.          7

these agreements on the Salton Sea. Despite noting some
potentially serious environmental consequences, the Secretary
eventually approved the agreements and implemented a new
water delivery schedule.

    Plaintiffs Imperial County and the Imperial County Air
Pollution Control District (the “Air District”) then sued the
Secretary, claiming that the EIS did not comply with either
the National Environmental Policy Act (“NEPA”) or the
Clean Air Act (“CAA”). The Imperial Irrigation District
(“Imperial Irrigation”), San Diego County Water Authority
(“San Diego Water”), Coachella Valley Water District
(“Coachella”), and Metropolitan Water District of Southern
California (“Metropolitan”), parties to the transfer
agreements, intervened as defendants. The district court
granted summary judgment to the defendants, finding that
neither plaintiff had standing to sue. We disagree as to
standing, but nonetheless affirm the judgment, because the
district court correctly found in the alternative that the
Secretary did not violate NEPA; the record below also makes
plain that the Secretary did not violate the CAA.

                      I. Background

    In 1922, the Colorado River basin states agreed to divide
the River’s waters among upper- and lower-basin states.
Colorado River Compact, 70 Cong. Rec. 324 (1928). In
1928, Congress ratified the compact in the Boulder Canyon
Project Act, Pub. L. No. 70-642, 45 Stat. 1057 (codified as
amended at 43 U.S.C. §§ 617–619b). California, Arizona,
and Nevada are the lower-basin states.

    In 1931, various southern California irrigation and water
districts agreed to a framework for distributing the State’s
8            PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

share of Colorado River water. This “Seven Party
Agreement” created seven priorities and—unrealistically
assuming an everlasting surplus of river water—divided
5.362 million acre feet per year (“mafy”)1 among the
contracting districts. Priorities 1, 2, 3(a), 3(b), 6(a), and 6(b)
in the Seven Party Agreement were either unquantified or
shared among the districts.            Agreement Requesting
Apportionment of California’s Share of the Waters of the
Colorado River Among the Applicants in the State (Aug. 18,
1931), available at http://www.usbr.gov/lc/region/pao/
pdfiles/ca7pty.pdf. The Secretary and the California districts
then incorporated the terms of the Agreement into water
delivery contracts. See 43 U.S.C. § 617d.

     In 1963, the Supreme Court held that the Boulder Canyon
Project Act limited California’s Colorado River allotment to
4.4 mafy. Arizona v. California, 373 U.S. 546, 564–65
(1963). California could exceed this annual allowance only
if (1) the other lower-basin states did not use their allotments
or (2) there was actually surplus water. Id. at 560–61. The
Secretary then promulgated regulations defining surplus. See
43 C.F.R. pt. 417.

    The immediate effects of Arizona v. California on
California were mitigated, however, because the Secretary
designated water as “surplus” rather liberally, proclaiming
surpluses when none truly existed. But eventually the
Secretary made plain that it was time for California to live
within its 4.4 mafy means. In response, the lower-basin
states, the California water districts, and the Secretary
considered methods to reduce California’s dependence on
Colorado River water.

    1
        An acre-foot of water covers an acre with one foot of water.
        PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.               9

     In 1998, Imperial Irrigation and San Diego Water reached
a preliminary agreement under which Imperial Irrigation
would conserve up to 300 thousand acre-feet per year
(“kafy”) of water, which would then be “transferred” to San
Diego Water. In 1999, the Secretary and Imperial Irrigation
initiated a joint NEPA and California Environmental Quality
Act (“CEQA”) study to consider the effects of the proposed
transfer.2 Imperial Irrigation District/San Diego County
Water Authority Water Conservation and Transfer Project,
64 Fed. Reg. 52,102 (Sept. 27, 1999). This “Transfer EIS,”
which is not at issue today, considered off-river impacts of
the transfer and possible environmental mitigation measures.
See id.

    In 1999, several water districts negotiated preliminary
“Quantification Settlement Agreements” to reduce Colorado
River water usage, to quantify and cap Priorities 3 and 6 in
the Seven Party Agreement, and to authorize interdistrict
transfers of conserved Imperial Irrigation water. These
agreements would have limited Imperial Irrigation’s Priority
3(a) to 3.1 mafy.

    In 2001, prompted by the proposed Quantification
Settlement Agreements, the Secretary announced that she
would prepare the EIS challenged here (the “Implementation
Agreement EIS”) to consider the consequences of delivering
a portion of Imperial Irrigation water at different diversion
points on the Colorado River for use outside the Imperial
Valley. See The Implementation Agreement for Secretarial
Actions Associated With California Parties’ Quantification
Agreement, 66 Fed. Reg. 14,211 (Mar. 9, 2001). The Bureau

  2
    CEQA is the California version of NEPA. See Cal. Pub. Res. Code
§§ 21000–21177.
10     PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

of Reclamation proposed studying (1) the on-river
consequences of changing the points of delivery of up to 400
kafy, (2) the implementation of an overrun accounting and
payback policy, and (3) potential biological conservation
measures. Id. The Bureau filed a Draft Implementation
Agreement EIS and Notice of Availability in January 2002.
The comment period for the Draft Implementation Agreement
EIS and the Draft Transfer EIS overlapped; after the
comment period ended, the Secretary filed both final EISs in
November 2002.

    The Final Implementation Agreement EIS discussed,
among other things, the on-river environmental impacts of
altering Colorado River delivery diversion points, the indirect
effects of changing the amount of water received by the
California districts, and potential mitigation measures to
reduce off-river ecological consequences. Because the
various proposed mitigation agreements were discussed
extensively in the Transfer EIS, the Final Implementation
Agreement EIS also summarized and cross-referenced those
findings.

    In October 2003, the Secretary, Imperial Irrigation, San
Diego Water, Metropolitan, and Coachella ratified several
revised Quantification Settlement Agreements. Minor
changes to the proposed master implementation
agreement—the Colorado River Water Delivery Agreement
(“CRWDA”)—and to proposed environmental mitigation
measures had not been discussed in the Final Implementation
Agreement EIS. These included an amendment by various
districts of water-transfer timelines, a modification by
Imperial Irrigation and Coachella of their Salton Sea
environmental mitigation plan, and a revision by the Bureau
of Reclamation of its proposed species conservation plan after
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.           11

consultation with the Fish and Wildlife Service. The
Secretary prepared an environmental evaluation of the
modifications, determined that a supplemental EIS was
unnecessary, and issued a final record of decision.

    This action, in which the plaintiffs allege violations of
NEPA and the CAA, ensued. After the water districts
intervened, all parties cross-moved for summary judgment.
The district court granted summary judgment to the
defendants, holding that plaintiffs lacked Article III standing
and alternatively rejecting their NEPA (but not CAA) claims
on the merits. This appeal followed.

                        II. Standing

                  A. Standard of Review

    We review the district court’s standing determination de
novo. La Asociacion de Trabajadores de Lake Forest v. City
of Lake Forest, 624 F.3d 1083, 1087 (9th Cir. 2010). At the
summary judgment stage, plaintiffs must identify “specific
facts” establishing standing. Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138, 1149 (2013). We analyze standing claim by
claim. Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). We
need not address the standing of each plaintiff if we conclude
that any plaintiff has standing. Nat’l Ass’n of Optometrists &
Opticians v. Brown, 567 F.3d 521, 523 (9th Cir. 2009).

    A plaintiff must show a “threat of suffering ‘injury in
fact’ that is concrete and particularized; the threat must be
actual and imminent, not conjectural or hypothetical; it must
be fairly traceable to the challenged action of the defendant;
and it must be likely that a favorable judicial decision will
prevent or redress the injury.” Summers v. Earth Island Inst.,
12      PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

555 U.S. 488, 493 (2009). If, as here, plaintiffs are not the
object of government action or inaction, “standing is not
precluded, but it is ordinarily ‘substantially more difficult’ to
establish.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 562
(1992) (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)).

    Plaintiffs assert that the Secretary violated NEPA and the
Council on Environmental Quality (“CEQ”) regulations
interpreting it.3 Plaintiffs also allege that the Secretary should
have made a CAA conformity determination because the
CRWDA will expand the Salton Sea’s shoreline and thus
increase airborne levels of particulate matter with a diameter
of ten microns or less (“PM10”). Both alleged injuries are
procedural. Thus, plaintiffs must establish that the Secretary
violated procedural rules designed to protect their concrete
interests, and that the challenged action will threaten those
interests. Citizens for Better Forestry v. U.S. Dep’t of Agric.,
341 F.3d 961, 969–70 (9th Cir. 2003). For procedural rights,
“our inquiry into the imminence of the threatened harm is less
demanding,” Hall v. Norton, 266 F.3d 969, 976 (9th Cir.
2001), and “the causation and redressability requirements are
relaxed,” Cantrell v. City of Long Beach, 241 F.3d 674, 682
(9th Cir. 2001).




  3
    The CEQ regulations interpreting NEPA are “entitled to substantial
deference.” Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
         PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.                   13

                       B. Procedural Injury

    Plaintiffs established Article III standing.4 First, they
plainly alleged that the Secretary violated procedural rules.
NEPA requires federal agencies to analyze the environmental
impacts of their actions, Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752, 756–57 (2004), and the CAA mandates a
“conformity determination” when an agency action increases
pollutants in nonattainment regions, 42 U.S.C. § 7506(c)(1);
40 C.F.R. § 93.150. Imperial County argued, both to the
agency and in the courts, that the Implementation Agreement
EIS was insufficient under NEPA and the CAA.

    Second, NEPA and the CAA were designed to protect the
plaintiffs’ interests. “NEPA provides that ‘local agencies,
which are authorized to develop and enforce environmental
standards’ may comment on the proposed federal action.”
Douglas Cnty. v. Babbitt, 48 F.3d 1495, 1501 (9th Cir. 1995)
(quoting 42 U.S.C. § 4332(2)(c)(v)). Under California law,
the Air District may sue on behalf of the State for a violation
of the state implementation plan (“SIP”). Cal. Health &
Safety Code § 41513. We have also held that the CAA
conformity requirement was designed to protect a sub-state



  4
    The Secretary does not challenge causation or redressability. In any
event, “plaintiffs asserting procedural standing need not demonstrate that
the ultimate outcome following proper procedures will benefit them.”
Cantrell v. City of Long Beach, 241 F.3d 674, 682 (9th Cir. 2001); see
also Natural Res. Def. Council v. Jewell, No. 09-17661, 2014 WL
1465695, at *6 (9th Cir. Apr. 16, 2014) (en banc). Both prongs are met
here. Moreover, because the Secretary does not dispute that plaintiffs’
claims fall within the “zone of interests” of NEPA and the CAA, that issue
is waived. Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1087 n.6 (9th
Cir. 2003).
14      PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

actor’s interest in clean air. City of Las Vegas v. FAA,
570 F.3d 1109, 1114, 1117 (9th Cir. 2009).

     Third, the challenged action threatens plaintiffs’ concrete
interests. A sub-state actor may “sue to protect its own
‘proprietary interests’ that might be ‘congruent’ with those of
its citizens . . . .” Sierra Forest Legacy v. Sherman, 646 F.3d
1161, 1178 (9th Cir. 2011) (per curiam) (quoting City of
Sausalito v. O’Neill, 386 F.3d 1186, 1197 (9th Cir. 2004));
see also Douglas, 48 F.3d at 1500–01. Those interests are “as
varied” as the actors’ “responsibilities, powers, and assets.”
Sausalito, 386 F.3d at 1197.

    The Environmental Protection Agency (“EPA”) has
classified Imperial Valley as a serious nonattainment area for
PM10. Plaintiffs provided declarations asserting that the
CRWDA will increase PM10 levels, thus risking
noncompliance with California’s SIP. Failure to comply with
the SIP risks a federal enforcement action, loss of highway
funds, and mandatory emission offsets. See 42 U.S.C.
§ 7509. Such risks sufficiently demonstrate a threat to
concrete interests. Davis v. EPA, 348 F.3d 772, 778 (9th Cir.
2003); see also Nat’l Ass’n of Clean Air Agencies v. EPA,
489 F.3d 1221, 1227–28 (D.C. Cir. 2007); West Virginia v.
EPA, 362 F.3d 861, 868 (D.C. Cir. 2004).

    Plaintiffs also adequately alleged that the Secretary’s
action will undermine land management in the Imperial
Valley. A county’s “concrete interests” in its “environment
and in land management” can establish Article III standing.
City of Las Vegas, 570 F.3d at 1114; see also Sausalito,
386 F.3d at 1198 (finding a concrete injury because a project
would “result in a detrimental increase in traffic and crowds”
and affect “municipal management and public safety
        PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.            15

functions” (quoting City of Sausalito v. O’Neill, 211 F. Supp.
2d 1175, 1186 (N.D. Cal. 2002))) (internal quotation marks
omitted); City of Davis, 521 F.2d at 671 (holding that
declarations claiming that agency action “will frustrate the
city’s policy of ‘controlled growth’ and render its planning
efforts to date obsolete” established a concrete injury).

                  C. Identification of Facts

    The Secretary claims that plaintiffs did not identify
sufficient facts below to establish standing. We reject the
argument. Plaintiffs argued below that the CRWDA will
increase PM10 levels and undermine the Air District’s ability
to enforce air quality regulations. Their summary judgment
motion included a declaration from the Air Pollution Control
Officer documenting that the CRWDA would increase
fugitive dust by expanding the Salton Sea shoreline and thus
undermine the Air District’s ability to develop an attainment
strategy and comply with its SIP.

    Plaintiffs also identified specific facts in support of their
claim that the Secretary’s action will undermine Imperial
County’s land management. The Planning Director of the
Imperial County Land Use Department declared that the
project would frustrate the County’s land-use plans, reduce its
water supply, and impair its housing development. This
declaration is no less “specific” than that of the city manager
in Sausalito, 386 F.3d at 1198–99.

                  D. Mechanism of Review

    The district court held that plaintiffs lacked standing to
assert a CAA claim because they (1) “recharacterized” their
16     PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

complaint as an enforcement action and (2) failed to identify
an applicable waiver of sovereign immunity. We disagree.

    Plaintiffs’ claim arose from the Secretary’s alleged CAA
violations. The complaint stated that the Secretary’s action
will increase PM10 levels, interfere with the California SIP,
exceed de minimis emission thresholds, and be regionally
significant. Thus, the complaint asserted, the Secretary
should have conducted a conformity determination. Plaintiffs
made identical arguments in their summary judgment
briefing.

     Plaintiffs and the Secretary agree that the Administrative
Procedure Act (“APA”) is the proper statutory mechanism to
challenge the Secretary’s action. The APA creates a right of
action for persons “suffering legal wrong,” 5 U.S.C. § 702,
but provides review only if “there is no other adequate
remedy in a court . . . .” 5 U.S.C. § 704. Although we have
not held that the APA authorizes judicial review when an air
district asserts a federal conformity violation, we have
assumed as much. See S. Coast Air Quality Mgmt. Dist. v.
FERC, 621 F.3d 1085, 1099 (9th Cir. 2010); Sierra Club v.
EPA, 346 F.3d 955, 961, amended by 352 F.3d 1186 (9th Cir.
2003); Pub. Citizen v. Dep’t of Transp., 316 F.3d 1002, 1020
(9th Cir. 2003), rev’d on other grounds, 541 U.S. 752 (2004).
That assumption has solid statutory grounding—the CAA
provides a cause of action against a federal agency which
violates an “emission standard or limitation under this chapter
. . . .” 42 U.S.C. § 7604(a)(1)(A). As relevant here, an
“emission standard or limitation” is in turn defined as “a
schedule or timetable of compliance, emission limitation,
standard of performance or emission standard.” § 7604(f)(1).
The CAA clause requiring a conformity determination,
however, is not a schedule or timetable of compliance, an
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.          17

emission reduction, a standard of performance, or an emission
limitation. Conservation Law Found., Inc. v. Busey, 79 F.3d
1250, 1257–60 (1st Cir. 1996), cited with approval by
Natural Res. Def. Council, Inc. v. S. Coast Air Quality Mgmt.
Dist., 651 F.3d 1066, 1072 (9th Cir. 2011). Judicial review
thus is available under the APA, as “no other adequate
remedy” exists. Id. at 1260–62; see also City of Olmsted
Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 2002).

    The APA also waives the Secretary’s sovereign
immunity. Plaintiffs requested declaratory and injunctive
relief, and the Act abrogates immunity for actions seeking
relief “other than money damages . . . .” 5 U.S.C. § 702; see
also Pub. Citizen, 316 F.3d at 1032 (ordering equitable relief
under the APA for a CAA conformity violation).

                     III. NEPA Claims

                  A. Standard of Review

    “We review de novo the district court’s determination that
the EIS complies with NEPA and that no [supplemental EIS]
was required.” Laguna Greenbelt, Inc. v. U.S. Dep’t of
Transp., 42 F.3d 517, 523 (9th Cir. 1994). Although the
adequacy of an EIS is reviewed for “reasonableness” and the
Secretary’s no-supplemental-EIS determination for “abuse of
discretion,” the standards are the same. Or. Natural Res.
Council v. Lowe, 109 F.3d 521, 528–29 (9th Cir. 1997).
Under either rubric, we must decide whether the Secretary
took a “hard look” at the environmental consequences of the
proposed actions and reasonably evaluated the relevant facts.
Id. at 526. For issues requiring agency expertise, “we must
defer to ‘the informed discretion of the responsible federal
agencies.’” Marsh v. Or. Natural Res. Council, 490 U.S. 360,
18      PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

377 (1989) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 412
(1976)).

                B. Tiering and Incorporation

    CEQ regulations encourage agencies to “tier” with a
previous EIS to “eliminate repetitive discussions of the same
issues and to focus on the actual issues ripe for decision . . . .”
40 C.F.R. § 1502.20. An agency may tier to a NEPA
document, Klamath-Siskiyou Wildlands Ctr. v. Bureau of
Land Mgmt., 387 F.3d 989, 997–98 (9th Cir. 2004), if the
subsequent statement is either of “lesser scope” or a
“statement or analysis at a later stage.” 40 C.F.R. § 1508.28.

    The CEQ regulations also require agencies to incorporate
by reference NEPA and non-NEPA documents. 40 C.F.R.
§ 1502.21 (“Agencies shall incorporate material into an
environmental impact statement by reference when the effect
will be to cut down on bulk without impeding agency and
public review of the action.”); see also 40 C.F.R. § 1500.4(j)
(“Agencies shall reduce excessive paperwork by . . .
[i]ncorporating by reference (§ 1502.21).”). Any material
incorporated by reference must be “cited in the statement,”
“briefly described,” and “reasonably available for inspection
by potentially interested persons,” § 1502.21, but need not be
physically attached to an EIS, 40 C.F.R. § 1502.18(a)
(requiring an appendix to “[c]onsist of material prepared in
connection with an environmental impact statement (as
distinct from material which is not so prepared and which is
incorporated by reference (§ 1502.21))”); Forty Most Asked
Questions Concerning CEQ’s National Environmental Policy
Act Regulations, 46 Fed. Reg. 18,026, 18,034 (Mar. 23, 1981)
(“[T]he material which is incorporated by reference does not
accompany the EIS.”).
         PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.                    19

   Plaintiffs argue that the Final Implementation Agreement
EIS either (a) did not clarify whether it incorporated the state
Transfer Environmental Impact Report (“EIR”) or the federal
Transfer EIS, or (b) improperly cited to a non-NEPA
document—the Transfer EIR. They are incorrect on both
counts.

    The Secretary and Imperial Irrigation originally agreed to
conduct a joint NEPA and state-CEQA study for the 1998
Imperial Irrigation/San Diego Water transfer agreement.
Imperial Irrigation, however, later prepared a separate study
in June 2002 (the “Transfer EIR”) because CEQA has slightly
different reporting requirements than NEPA. The Bureau of
Reclamation prepared its own Transfer EIS in November
2002 (the “Final Transfer EIS”).5 The Secretary then
approved a Final Transfer EIS.6 Imperial Irrigation District
Water Conservation and Transfer Project, California, 67 Fed.
Reg. 68,165 (Nov. 8, 2002).

      The Final Implementation Agreement EIS clearly
distinguished between the Transfer EIR and the Transfer EIS,
explaining that “[i]n order to comply with CEQ regulations
. . . Reclamation is preparing a fully integrated, stand alone
Final EIR/EIS,” and incorporating the Transfer EIS by
reference. As plaintiffs note, the Secretary, in an apparent


 5
   The Final Transfer EIS incorporated errata revisions, excluded analysis
of Habitat Conservation Plan Approach 1, and estimated the Salton Sea’s
exposed shoreline for Alternatives 2 and 3.
 6
   The Secretary’s record of decision for the Implementation Agreement
EIS stated that “this ROD is not based on [the Transfer EIR/EIS].” That
statement is consistent with the Secretary’s position that she incorporated
the Transfer EIS’s discussion of the Salton Sea impacts but did not “tier
to” it.
20       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

effort to avoid confusion, cited to the Transfer EIR (CEQA
version) and the Transfer EIS (NEPA version) as if they were
a single document in the Final Implementation Agreement
EIS. But, plaintiffs fail to identify relevant material discussed
solely in the Transfer EIR or significant information excluded
from the Transfer EIS.7 See Or. Envtl. Council v. Kunzman,
817 F.2d 484, 492 (9th Cir. 1987) (“The reviewing court may
not ‘fly speck’ an EIS and hold it insufficient on the basis of
inconsequential, technical deficiencies.”) (quoting Nw. Indian
Cemetery Protective Ass’n v. Peterson, 795 F.2d 688, 695
(9th Cir. 1986)). And although the Secretary once cited the
Transfer EIR and Transfer EIS as a single document in her
district court briefing, that minor misstatement does not
prejudice our review.8

    Plaintiffs next argue that the Secretary improperly tiered
to “19 non-NEPA documents,” citing to ten pages in the
Implementation Agreement EIS.             These “non-NEPA
documents” are federal statutes, state environmental impact
reviews, and EISs from other Colorado River projects; they
are cited to provide a “road map” of Colorado River
programs, not to sidestep the Secretary’s NEPA obligations.

  7
   Plaintiffs note that the Transfer EIR and Transfer EIS have different
assessments of the impact that changes in water delivery will have on the
Salton Sea’s shoreline. But plaintiffs fail to identify any flaw in the
Transfer EIS assessment.
  8
     Because the Implementation Agreement EIS incorporated only the
Transfer EIS, we need not consider the Transfer EIR’s alleged
shortcomings. Plaintiffs also argue that the Secretary never made a record
of decision for the Transfer EIS. This argument was waived, as it was not
made below or in the opening brief. Alaska Ctr. for the Env’t v. U.S.
Forest Serv., 189 F.3d 851, 858 n.4 (9th Cir. 1999). Moreover, any such
failure would not prevent the Secretary from incorporating the Transfer
EIS by reference into the Implementation Agreement EIS.
         PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.                   21

The Implementation Agreement EIS at most incorporated
these documents, which are properly “cited in the statement,”
“briefly described,” and “reasonably available for inspection
by potentially interested persons.” § 1502.21

    More specifically, plaintiffs argue that the Final
Implementation Agreement EIS cited to the Coachella Valley
Water Management Plan Program EIR, which was not
released for public review during the comment period for the
Implementation Agreement EIS.9 However, a final EIS may
include information not cited in a draft; recirculation is
required only if there is significant new information or
circumstances relating to the proposed action. Westlands
Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 873 (9th
Cir. 2004) (citing 40 C.F.R. § 1502.9(c)(1)(ii)). The
Secretary cited the Coachella Valley Water Management
Program EIR only to respond to comments from the Bureau
of Indian Affairs and to further discuss secondary
environmental consequences of the CRWDA, not to identify
a new proposal or to describe previously unconsidered
environmental consequences. Plaintiffs’ interpretation of
NEPA would require an agency to submit a new draft EIS or
supplemental EIS for any update, regardless of its


   9
     Plaintiffs also assert that a number of cited documents were not
publicly available. The assertion is belied by the public record. See
Imperial Irrigation District Water Conservation and Transfer Project,
67 Fed. Reg. at 68,165; Imperial Irrigation District Water Conservation
and Transfer Project, Draft Habitat Conservation Plan, California, 67 Fed.
Reg. 3732 (Jan 25, 2002); Quantification Settlement Agreement Final
PEIR Preface at 2 (June 2002) (“The Draft PEIR was released for public
review on January 30, 2002.”); Coachella Valley Final Water
Management Plan § 1-5 (Sept. 2002) (“The draft PEIR was released to all
interested public agencies and individuals for review and comment for a
45-day review period that concluded on August 9, 2002.”).
22     PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

significance. Every draft EIS would then be, in effect, a final
EIS.

    Plaintiffs next argue that the Implementation Agreement
EIS improperly stated that it “tiers to and incorporates by
reference” the Quantification Settlement Agreement Program
EIR and the Coachella Valley Water District Management
Plan Program EIR. The Secretary would indeed have erred
if she had tiered to these documents, as they are state
environmental reports, not NEPA documents. Klamath-
Siskiyou, 387 F.3d at 997–98. However, the Secretary’s
“tiers to” language is a scrivener’s error. The non-NEPA
documents were plainly incorporated by reference, and
accidently referring to a document as “tiered to and
incorporated” rather than just “incorporated” is harmless. See
Nat’l Ass’n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 659 (2007) (declining to remand when an
agency made a “stray statement, which could have had no
effect on the underlying agency action being challenged”).

    Finally, Plaintiffs argue that Pacific Rivers Council v.
United States Forest Service, 689 F.3d 1012 (9th Cir. 2012),
requires all discussion of environmental impacts to be in the
text of an EIS, rather than incorporated by reference.
Plaintiffs also contend that the Secretary too heavily
incorporated indirect impact analysis when discussing the
Salton Sea. Our Pacific Rivers opinion, however, was
vacated as moot, 133 S. Ct. 2843 (2013), and, in any event,
provides little help. The court there determined that a Forest
Service supplemental EIS failed to discuss the impact of
logging on individual species of fish. Pac. Rivers, 689 F.3d
at 1029–30. The Forest Service attempted to “save” the
supplemental EIS by claiming that it had incorporated two
biological assessments which discussed these impacts. Those
        PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.           23

assessments, however, were not “described and analyzed in
the text” of the supplemental EIS, contained “no analysis . . .
of the manner or degree to which the alternatives may have
affected these fish,” and “applied to only one group of fish
species.” Id. at 1031–32. Unlike the Forest Service’s
supplemental EIS in Pacific Rivers, the text of the
Implementation Agreement EIS extensively considered the
environmental effects that the CRWDA will have on the
Salton Sea.

                       C. Segmenting

    Plaintiffs next argue that the Secretary improperly
“segmented” the Quantification Settlement Agreements by
preparing two EISs. “Proposals or parts of proposals which
are related to each other closely enough to be, in effect, a
single course of action shall be evaluated in a single impact
statement.” 40 C.F.R. § 1502.4(a). To prevail, plaintiffs
must show that the Secretary acted arbitrarily by not
preparing a single EIS. Kleppe, 427 U.S. at 412 (“Resolving
these issues requires a high level of technical expertise and is
properly left to the informed discretion of the responsible
federal agencies.”). “We apply an ‘independent utility’ test
to determine whether multiple actions are so connected as to
mandate consideration in a single EIS. The crux of the test is
whether ‘each of two projects would have taken place with or
without the other and thus had independent utility.’” Great
Basin Mine Watch v. Hankins, 456 F.3d 955, 969 (9th Cir.
2006) (quoting Wetland Actions Network v. U.S. Army Corps
of Eng’rs, 222 F.3d 1105, 1118 (9th Cir. 2000)).

   The Secretary did not act arbitrarily by separately
preparing a Transfer EIS and an Implementation Agreement
EIS. The Implementation Agreement EIS analyzed the on-
24     PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

river effects of altering the Colorado River diversion points,
and the Transfer EIS considered a separate water-transfer
agreement among the districts and proposed habitat
conservation programs. The Secretary did not prepare two
EISs to “avoid consideration of an entire action’s effects on
the environment.” W. Radio Servs. Co. v. Glickman, 123 F.3d
1189, 1194 (9th Cir. 1997). Rather, the Implementation
Agreement EIS considered both the on-river impact of
changing the Colorado River diversion points and the
secondary, off-river consequences of reducing Imperial
Irrigation’s water.

                   D. Supplemental EIS

    The Secretary also did not abuse her discretion by
concluding that a supplemental EIS was unnecessary. A
supplemental EIS is required if (a) the “agency makes
substantial changes in the proposed action that are relevant to
environmental concerns;” or (b) there are “significant new
circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts.”
40 C.F.R. § 1502.9(c). But, “supplementation is not required
when two requirements are satisfied: (1) the new alternative
is a ‘minor variation of one of the alternatives discussed in
the draft EIS,’ and (2) the new alternative is ‘qualitatively
within the spectrum of alternatives that were discussed in the
draft [EIS].’” Russell Country Sportsmen v. U.S. Forest
Serv., 668 F.3d 1037, 1045 (9th Cir. 2011) (alteration in
original) (quoting Forty Most Asked Questions, 46 Fed. Reg.
at 18,035).

    We defer to the Secretary’s decision not to prepare a
supplemental EIS when, as here, the “new alternative” is a
third-party plan to mitigate environmental impacts. As the
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.           25

Supreme Court has explained, although an agency must
provide a “reasonably complete discussion of possible
mitigation measures,” there is no “substantive requirement
that a complete mitigation plan be actually formulated and
adopted . . . .” Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 352 (1989). When federal action ultimately
depends on “state and local governmental bodies that have
jurisdiction over” the mitigation measures, “it would be
incongruous to conclude that the [federal agency] has no
power to act until the local agencies have reached a final
conclusion on what mitigating measures they consider
necessary.” Id. at 352–53. Accordingly, a supplemental EIS
is unnecessary when an agency’s final decision falls “within
the range of alternatives” considered in an EIS. Russell
Country Sportsmen, 668 F.3d at 1046.

    Plaintiffs argue that a supplemental EIS was required after
the water districts altered their proposed Salton Sea Habitat
Conservation Strategy (“SSHCS”). Under the originally
proposed SSHCS, the Salton Sea could have received
mitigation water directly from the Colorado River until 2030.
The water districts instead ultimately agreed to decrease over
time the amount of water transferred from Imperial Irrigation,
rather than provide direct “mitigation water” to the Sea.
Although the Implementation Agreement EIS did not
consider this exact mitigation mechanism, it did consider the
consequences of providing the Salton Sea with no mitigation
water at all. The changes to the SSCHS thus: (1) were
qualitatively considered through a no-mitigation alternative;
(2) were a secondary aspect of the Implementation
Agreement EIS; (3) reduced overall an adverse environmental
impact; and (4) did not alter the project’s cost-benefit
analysis. Russell Country Sportsmen, 668 F.3d at 1048–49.
26      PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

     Two other post-EIS changes discussed by
plaintiffs—modifications to the water sell and payback
programs—are moot, as they were scheduled to occur in
2006, 2009, and 2012. See Headwaters, Inc. v. Bureau of
Land Mgmt., 893 F.2d 1012, 1015–16 (9th Cir. 1990). And,
plaintiffs’ claim that the Implementation Agreement EIS did
not recognize that the CRWDA will reduce Imperial
Irrigation’s water up to 575.2 kafy in 2017—rather than 300
kafy—assumes water “loss” from prior water exchanges and
conservation measures not at issue here.

    Plaintiffs also argue that the Implementation Agreement
EIS relied on the original SSHCS alone to reduce species loss
at the Salton Sea, while the Secretary instead ultimately
requested a biological assessment from the Fish and Wildlife
Service and “adopted” an Endangered Species Act (“ESA”)
Section 7 approach. Section 7(a)(2) of the ESA requires
consultation with the Fish and Wildlife Service to ensure that
an action will not jeopardize listed species or their designated
habitat. 16 U.S.C. § 1536. “Once Section 7(a)(2)
consultation is complete, the FWS or the Service must
provide the agency with a written biological opinion ‘setting
forth the Secretary’s opinion, and a summary of the
information on which the opinion is based, detailing how the
agency action affects the species or its critical habitat.’”
Jewell, 2014 WL 1465695, at *2 (quoting § 1536(b)(3)(A)).
The Implementation Agreement EIS discussed using either
the SSHCS or Section 7 to mitigate environmental harm in
and around the Salton Sea. The Secretary initiated Section 7
consultations because it appeared that Imperial Irrigation
would not agree to all of the terms in the proposed SSHCS.
Because any mitigation strategy ultimately depended on
“state and local governmental bodies,” it would be
“incongruous” to conclude that the Secretary erred by
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.         27

discussing the environmental impacts of using a SSCHS,
Section 7, or no-mitigation approach in the Implementation
Agreement EIS. Robertson, 490 U.S. at 352. And, given the
Secretary’s consideration of the project’s environmental
impacts without mitigation, adopting the Section 7 approach
in the environmental evaluation fell within the “range” of
options that the Secretary had previously considered. Russell
Country Sportsmen, 668 F.3d at 1046.

    Plaintiffs further contend that the Implementation
Agreement EIS and record of decision failed to discuss
potential mitigation measures. An EIS must contain “a
reasonably complete discussion of possible mitigation
measures,” Robertson, 490 U.S. at 352, and a record of
decision must state whether “all practicable means to avoid
or minimize environmental harm from the alternative selected
have been adopted, and if not, why they were not.” 40 C.F.R.
§ 1505.2(c). The Implementation Agreement EIS and the
Secretary’s record of decision sufficiently considered
potential mitigation measures.

    In the alternative, plaintiffs claim that the Secretary
abused her discretion by using an “environmental
evaluation”—a memorandum made available to the
public—rather than an environmental assessment, to explain
her decision not to prepare a supplemental EIS. But CEQ
regulations do not dictate the form that an agency must use
when deciding whether to prepare a supplemental EIS, and
we have approved the use of various documents. Idaho
Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 565–66 (9th
Cir. 2000) (endorsing the use of supplemental information
reports, reevaluations, memorandums of record, and secretary
issue documents). Moreover, the Secretary did not err by
writing the environmental evaluation without prior public
28     PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

input, as “there is no such requirement for the decision
whether to prepare [a supplemental EIS].” Friends of the
Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000).

                      E. Alternatives

    The Secretary’s decision to discuss only one
alternative—no action—was not arbitrary and capricious.
NEPA regulations require an EIS to “[r]igorously explore and
objectively evaluate all reasonable alternatives, and for
alternatives which were eliminated from detailed study,
briefly discuss the reasons for their having been eliminated.”
40 C.F.R. § 1502.14(a). Whether the Secretary evaluated all
reasonable alternatives depends on the “stated goal of a
project.” City of Carmel-By-The-Sea v. U.S. Dep’t of
Transp., 123 F.3d 1142, 1155 (9th Cir. 1997). “This is all
NEPA requires—there is no minimum number of alternatives
that must be discussed.” Laguna Greenbelt, 42 F.3d at 524.

    The Implementation Agreement EIS only compared the
CRWDA to a no action alternative because the CRWDA is a
negotiated agreement. Discussing a hypothetical alternative
that no one had agreed to (or would likely agree to) would
have been unhelpful, and as a result, the Implementation
Agreement EIS reasonably compared a hard-fought
negotiated agreement to no agreement at all.

    In any event, the Implementation Agreement EIS properly
compared the future environmental consequences of no action
to the effects of the CRWDA. An agency must consider a no
action alternative when discussing the effects of a proposed
project. § 1502.14(d). “The ‘no action’ alternative may be
thought of in terms of continuing with the present course of
action until that action is changed.” Ass’n of Pub. Agency
         PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.                    29

Customers, Inc. v. Bonneville Power Admin., 126 F.3d 1158,
1188 (9th Cir. 1997) (quoting Forty Most Asked Questions,
46 Fed. Reg. at 18,027). The Secretary acted reasonably by
creating a model to compare the predicted conditions at the
Salton Sea under the CRWDA with “no action.”

                            F. Air Quality

    The Implementation Agreement EIS also took the
required “hard look” at the air quality impacts from the
project. “A ‘hard look’ should, of course, involve the
discussion of adverse impacts. A ‘hard look’ does not dictate
a soft touch or brush-off of negative effects.” Native
Ecosystems Council v. U.S. Forest Serv., 428 F.3d 1233, 1241
(9th Cir. 2005). An agency must also “acknowledge and
respond to comments by outside parties that raise significant
scientific uncertainties and reasonably support that such
uncertainties exist.” The Lands Council v. McNair, 537 F.3d
981, 1001 (9th Cir. 2008) (en banc).

    The Implementation Agreement EIS discussed the impact
that the CRWDA will have on air quality, responded to EPA
concerns about the Salton Sea’s shoreline, and incorporated
by reference the detailed air quality discussion in the Transfer
EIS. That was sufficient. Lands Council, 537 F.3d at 1001.10

                     G. Reclamation Project

    The Implementation Agreement EIS sufficiently
discussed the relationship between the CRWDA and the


  10
    Plaintiffs cite a letter and a deposition transcript from a consultant.
Neither, however, was submitted to the Secretary when she was drafting
the EIS. See Pub. Citizen, 541 U.S. at 764–65.
30      PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

Salton Sea reclamation project. An EIS must discuss a
project’s interaction with “other environmental laws and
policies.” 40 C.F.R. § 1502.2(d). The Salton Sea
Reclamation Act of 1998 required the Secretary to conduct a
feasibility study on “various options that permit the continued
use of the Salton Sea” by January 1, 2000. Pub. L. No. 105-
372, § 101, 112 Stat. 3377, 3378. The Secretary reasonably
noted that a reclamation project can proceed with or without
the CRWDA.

                           H. Growth

    An EIS must consider “growth inducing effects and other
effects related to induced changes in the pattern of land use,
population density or growth rate, and related effects on air
and water and other natural systems, including ecosystems.”
40 C.F.R. § 1508.8(b). The Secretary adequately considered
how the CRWDA will interact with southern California land
use, population density, and economic growth.

                  IV. Clean Air Act Claims

    Plaintiffs argue that the Secretary should have performed
a CAA conformity determination because the CRWDA will
expand the Salton Sea’s shoreline and thus increase PM10
levels. In light of its standing ruling, the district court did not
consider this claim. But when we review a final agency
action with a complete record, we may address this argument
in the first instance, City of Davis, 521 F.2d at 673, and we
conclude that the Secretary did not violate the CAA.

    The CAA “conformity provision” requires that no federal
agency “shall engage in, support in any way or provide
financial assistance for, license or permit, or approve, any
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.           31

activity which does not conform to an implementation plan
after it has been approved or promulgated under section 7410
of this title.” 42 U.S.C. § 7506(c)(1). The EPA has adopted
rules identifying when an agency must conduct a full-scale
conformity determination, 40 C.F.R. § 93.153, but also has
allowed state implementation plans to include “criteria and
procedures for assessing conformity of Federal actions,” as
long as those “provisions apply equally to non-Federal as
well as Federal entities,” 40 C.F.R. § 51.851(a), (e). Imperial
Air District adopted, and the EPA approved, such a
conformity rule: Imperial County Air Pollution Control
District Rule 925.         Approval and Promulgation of
Implementation Plans for Arizona and California; General
Conformity Rules, 64 Fed. Reg. 19,916, 19,917 (Apr. 23,
1999). Although we have twice applied federal rules in CAA
cases against federal agencies, S. Coast Air Quality, 621 F.3d
at 1099–1100; City of Las Vegas, 570 F.3d at 1117, under
either rule, the outcome here is the same.

    Neither the federal nor the state rule identify the form an
agency must use when deciding whether a project necessitates
a full-scale conformity determination. Here, the Secretary
announced her decision that a conformity determination was
unnecessary in the Implementation Agreement EIS. An
agency need not prepare a stand-alone document explaining
such a decision. City of Las Vegas, 570 F.3d at 1113, 1117
(approving use of a “Finding of No Significant Impact” to
explain why a CAA conformity determination was
unnecessary); see also Tinicum Twp., Pa. v. U.S. Dep’t of
Transp., 685 F.3d 288, 294 (3d Cir. 2012) (approving a
conformity determination located in an EIS).

   Both the federal and state rules require a full-scale
conformity determination “where the total of direct and
32     PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.

indirect emissions of the criteria pollutant” exceeds a certain
level. § 93.153(b); Air Rule 925(d)(2). Under both rules,
“direct emissions” only include emissions that “occur at the
same time and place as the action.” 40 C.F.R. § 93.152; Air
Rule 925(c)(7). And, both rules define indirect emissions as
being (1) caused by federal action but occurring at a different
time or place as the action, (2) reasonably foreseeable,
(3) practically controlled by the agency, and (4) under the
continuing program responsibility of the agency. § 93.152;
Air Rule 925(c)(16).

    The Secretary did not abuse her discretion by concluding
that actions by the Interior Department will not directly cause
PM10 emissions. The CRWDA only commits the Secretary
to changing the delivery point of Colorado River water. The
Secretary’s real actions thus occur at the Parker and Imperial
Dams; any Salton Sea PM10 emissions would be far from
those diversion points.

    Nor did the Secretary abuse her discretion in finding that
the project will not indirectly increase PM10 emissions. In
the absence of a new water delivery agreement, the Salton
Sea might decline at a slower rate. However, any resulting
emissions would not be “practicably controlled” by the
Secretary. See § 93.152; Air Rule 925(c)(16). Imperial
Irrigation, Imperial County, and the State of California, not
the Secretary, will ultimately determine how to allocate the
water they receive. If they so choose, they could allocate
every acre foot of their Colorado River water to the Salton
Sea. See S. Coast Air Quality, 621 F.3d at 1099–1101
(finding no practical control when a state ultimately causes
the emissions); Determining Conformity of General Federal
Actions to State or Federal Implementation Plans, 58 Fed.
Reg. 63,214, 63,221 (Nov. 30, 1993) (“The EPA does not
       PEOPLE OF THE STATE OF CAL. V. U.S. D.O.I.          33

believe that Congress intended to extend the prohibitions and
responsibilities to cases where, although licensing or
approving action is a required initial step for a subsequent
activity that causes emissions, the agency has no control over
that subsequent activity . . . .”).

                       V. Conclusion

    For the foregoing reasons, we AFFIRM the judgment of
the district court.
