Full Opinion (html_with_citations)

MOORE, Circuit Judge,

with whom RADER and SCHALL, Circuit Judges, join, concurs in the denial of the petition for rehearing en banc. GAJARSA, Circuit Judge, with whom MICHEL, Chief Judge, and DYK, Circuit Judge, join, dissents from the denial of the petition for rehearing en banc. LINN, Circuit Judge, dissents.

ORDER

A combined petition for panel rehearing and rehearing en banc was filed by the Appellee, and a response thereto was invited by the court and filed by the Appellant. The court granted the motions of California State Water Resources Control Board, California Trout, Inc., Natural Resources Defense Council, Law Professors Robert W. Adler, et al., Defenders of Wildlife et al., Fisheries Scientists Kozmo Bates, et al., and Tulare Lake Basin Water Storage District et al. for leave to file briefs as amici curiae.

The petition for rehearing was referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc, response, and the amici curiae briefs were referred to the circuit judges who are authorized to request a poll whether to rehear the appeal en banc. A poll was requested, taken, and failed.

Upon consideration thereof,

IT IS ORDERED THAT:

*1331(1) The petition for panel rehearing is denied.

(2) The petition for rehearing en banc is denied.

(3) The mandate of the court will issue on February 24, 2009.