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September 9, 2011

Ninth Circuit Upholds Bureau of Reclamation’s NEPA Review of Proposed Lake Roosevelt Drawdown Project

Center for Environmental Law and Policy v. United States Bureau of Reclamation [No. 10-35646, filed August 19, 2011]

By Andrea A. Matarazzo

The Center for Environmental Law and Policy (“CELP”) challenged the Bureau of Reclamation’s NEPA review of a water diversion project, arguing that the agency’s Environmental Assessment (“EA”) was a post hoc rationale for a decision already made.  CELP claimed that the EA also failed to comply with NEPA standards for analysis of cumulative impacts, growth inducement, and alternatives.  The District Court granted summary judgment in favor of Reclamation, and the Ninth Circuit Court of Appeals affirmed.

Lake Roosevelt is the portion of the Columbia River located in Washington between the Grand Coulee Dam and the Canadian border.  Reclamation and other federal agencies operate the facility in cooperation with state agencies, to serve many purposes, including irrigation, flood control, power generation, recreation, and fish management.  Competing water needs led Reclamation and the State of Washington Department of Ecology (“Ecology”) to pursue strategies to increase supplies, which they memorialized in a Memorandum of Understanding (“MOU”).  The MOU called for annual water diversions of 82,5000 acre-feet from Lake Roosevelt for municipal and industrial use, groundwater replacement in eastern Washington, and increased downstream flow to benefit fish populations.  The parties to the MOU also agreed to pursue another 50,000 acre-feet in drought years to alleviate water shortages.

Reclamation took several steps toward implementing the drawdown project before it drafted an EA, including obtaining state permits from Ecology.  CELP argued that Reclamation’s environmental review violated NEPA because it was merely a post hoc rationale for an action the agency was already undertaking.  Under NEPA, the agency “must complete an EA before the ‘go-no go’ stage of a project” (i.e., before “making an irreversible and irretrievable commitment of resources”).  The Ninth Circuit concluded that Reclamation satisfied this requirement, stating, “[t]hese agreements were preliminary: by its terms, the MOU did not ‘create a legally binding contract,’ and it expressly acknowledged that Reclamation’s actions are subject to federal reclamation law[s],’ including NEPA.”  The state permits also “allowed Reclamation to keep its options open,” and Reclamation retained “absolute authority to decide” whether water from Lake Roosevelt would be committed to the drawdown until after it released the NEPA document.  Because Reclamation “clearly retained the right to change course,” the agency had not made an irretrievable commitment of resources before conducting NEPA review.

CELP argued that the EA’s cumulative impact analysis was deficient because (1) its three-paragraph discussion of past projects was conclusory, and (2) it failed to account for certain future projects.  The court agreed that the EA’s summary of the cumulative effects of past projects failed to rise above “vague generalities.”  It went on to explain that this was not reflective of Reclamation’s overall approach, however, and in the EA as a whole, Reclamation had given “detailed scrutiny” to cumulative effects in the other substantive portions of the analysis.  “[I]t would impermissibly elevate form over substance,” the court explained, if the EA were required to repeat its entire analysis of past projects under the heading of cumulative effects.

As to CELP’s second argument regarding cumulative effects of future projects, the court rejected Reclamation’s position that a proposed future project to deliver additional water from the Columbia River to eastern Washington (the “Odessa Subarea Special Study”) was not reasonably foreseeable.  Reclamation had issued a notice of intent to prepare an environmental impact statement (“EIS”) for the Special Study almost a year before Reclamation published its final EA, making the Special Study a reasonably foreseeable future project.  Failing to include it in the EA’s cumulative effects analysis nevertheless did not violate NEPA, because “[b]y issuing the notice of intent to prepare an EIS for the Special Study, the government impliedly promised to consider the cumulative effects of the special study with the drawdown project in that EIS.”  The court noted that the Special Study was a much larger proposal (over 300,000 acre-feet per year), and concluded that preparation of an EIS for that project would prevent Reclamation from initiating multiple drawdowns without first evaluating their cumulative environmental effects.

Although the drawdown project also involved expanded capacity [an additional 1,950 cubic feet per second (“cfs”)] of a portion of the canal system used to divert Lake Roosevelt Water, and the project itself would only use 181 cfs of that capacity, the court found that the impacts of full usage of the expanded system were “not indirect effects of the drawdown project.  Agencies need not account for potential growth effects that might be caused by a project if the project is exclusively intended to serve a much more limited need.”  Even with the expanded canal system, additional diversions could not take place absent three more events: (1) a decision by Reclamation to use the additional capacity; (2) expansion of other canals in the area; and (3) NEPA review of the additional drawdowns.  Because expansion of a portion of the canal system, by itself, was not sufficient to allow additional diversions, the court found that any environmental effects from such diversions in the future were not indirect effects of the current drawdown project.

The court also found the EA’s consideration of alternatives to be adequate although it included only the proposed action and the “no action” alternative.  NEPA does not establish a “numerical floor on alternatives to be considered.”  Reclamation need not evaluate CELP’s preferred alternatives such as conservation and water rights marketing, the court found, because such options had been among a wider range of alternatives considered and rejected in a prior EIS.  Reclamation was not required to repeat those discussions in its EA for the drawdown project.

 

By Andrea Matarazzo

 

Andrea advises and advocates for private and public clients in all aspects of project permitting and entitlements, environmental compliance, and litigation, particularly regarding environmental review under CEQA and NEPA, land use and zoning issues, air quality regulation, climate change law and policy, water supply and water quality mandates, state and federal endangered species laws, wetlands permitting, and other regulatory requirements.

 

(916) 496-8500

(916) 737-5838 (Direct)

andrea@pioneerlawgroup.net

 

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