Ctr. For Envtl. Law v. United States Bureau of Reclamation

• Decision Date: 19 August 2011
• Docket Number: No. 10–35646.,10–35646.
• Citation: 73 ERC 1589,2011 Daily Journal D.A.R. 12692,655 F.3d 1000,11 Cal. Daily Op. Serv. 10657
• Parties: CENTER FOR ENVIRONMENTAL LAW AND POLICY, a Washington nonprofit corporation; Columbia Riverkeeper, a Washington nonprofit corporation, Plaintiffs–Appellants,andVision for Our Future, Petitioner–Intervenor,v.UNITED STATES BUREAU OF RECLAMATION, an agency of the Department of Interior; Michael L. Connor, in his official capacity as Commissioner of the Bureau of Reclamation, Defendants–Appellees,East Columbia Basin Irrigation District; Washington Department of Ecology, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

655 F.3d 1000

73 ERC 1589

11 Cal. Daily Op. Serv. 10,657

2011 Daily Journal D.A.R. 12,692

CENTER FOR ENVIRONMENTAL LAW AND POLICY, a Washington nonprofit corporation; Columbia Riverkeeper, a Washington nonprofit corporation, Plaintiffs–Appellants,andVision for Our Future, Petitioner–Intervenor,

v.UNITED STATES BUREAU OF RECLAMATION, an agency of the Department of Interior; Michael L. Connor, in his official capacity as Commissioner of the Bureau of Reclamation, Defendants–Appellees,East Columbia Basin Irrigation District; Washington Department of Ecology, Intervenor–Defendants–Appellees.

No. 10–35646.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 2011.Filed Aug. 19, 2011.

Christopher Winter, Crag Law Center, Portland, OR; Lauren Goldberg, Columbia Riverkeeper, Hood River, OR; Sean Malone [argued], Eugene, OR, for the plaintiffs-appellants.Andrew C. Mergen, Charles R. Shockey, David C. Shilton [argued], U.S. Department of Justice, Washington, DC, for the defendants-appellees.Thomas J. Young [argued], Assistant Attorney General, Olympia, WA, for intervenor-defendant-appellee Washington Department of Ecology.

Katherine L. Kenison, Richard Lemargie, Lemargie Kenison Wyman and Whitaker, Ephrata, WA, for intervenor-defendant-appellee East Columbia Basin Irrigation District.Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, Senior District Judge, Presiding. D.C. No. 2:09–cv–00160–RHW.Before: MARY M. SCHROEDER, M. MARGARET McKEOWN, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

Lake Roosevelt in eastern Washington state serves a variety of purposes, including irrigation, navigation, flood control, power generation, recreation, and fish management. We consider here a challenge by environmental groups to a proposed incremental drawdown of water from the lake. As always, our review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., is limited to determining whether the agency, in this case the United States Bureau of Reclamation (“Reclamation”), took a “hard look” and genuinely scrutinized the environmental consequences of its proposed action. Our own close look at the record persuades us that Reclamation was keenly aware of, and appropriately discharged, this duty when it prepared the drawdown project analysis.

Background

The Columbia River forms the centerpiece of a basin that spans over 250,000 square miles of the United States and Canada. The river, which is home to numerous species of salmon and other fish, is controlled by a “complex and highly regulated system of ... dams and reservoirs.” These include the Grand Coulee Dam, which is located in eastern Washington, nearly 600 miles from the mouth of the Columbia River and approximately 150 miles from the Canadian border. The portion of the Columbia River between the Grand Coulee Dam and the border is known as Lake Roosevelt.

Lake Roosevelt is operated by Reclamation and other federal agencies in cooperation with state agencies and in accord with a hodgepodge of treaties, statutes, and contracts. The lake typically holds about 5 million acre-feet of water. Water levels in the lake are, however, routinely lowered twice a year—once in early spring for flood control, and again in summer to increase downstream flow in the Columbia River. Water levels also fluctuate on a daily basis as a result of power-generating operations at the Grand Coulee Dam. In addition, the government diverts 2.65 million acre-feet of water from Lake Roosevelt every year to irrigate farmland in Washington state.

Faced with a variety of water needs in the Columbia River Basin, Reclamation, the State of Washington Department of Ecology (“Ecology”), and other agencies agreed to pursue various strategies to increase water supplies. Those undertakings are set out in a 2004 Memorandum of Understanding (“MOU”). Significant to this appeal, the parties to the MOU decided to divert a total of 82,500 acre-feet of water per year from Lake Roosevelt for three purposes—municipal and industrial use, groundwater replacement in the so-called Odessa Subarea in eastern Washington, and increased downstream flow to benefit fish populations. The parties also agreed to pursue an additional diversion of 50,000 acre-feet per year in drought years to alleviate water shortages. These agreements were preliminary: by its terms, the MOU did not “create a legally binding contract,” and it expressly “acknowledge[s] that Reclamation's actions are subject to federal reclamation law[s],” including NEPA.

In 2006, the Washington state legislature passed the Columbia River Water Management Act (“Water Management Act”), Wash. Rev.Code § 90.90.005 et seq. , “to aggressively pursue the development of water supplies to benefit both instream and out-of-stream uses.” The Water Management Act, like the MOU, provided for “new releases of Lake Roosevelt water of approximately eighty-two thousand five hundred acre feet of water, increasing to no more than one hundred thirty-two thousand five hundred acre feet of water in drought years.” Id. § 90.90.060.

Consistent with the Washington State Environmental Policy Act, Ecology prepared a Preliminary Environmental Impact Statement (“PEIS”) that evaluated the impact of “the major components of the [Act's Water] Management Program.” After describing the various projects in the Management Program and the direct environmental effects of those projects, the PEIS briefly discusses the cumulative impacts of the various parts of the program.

One year after completing the PEIS, Ecology issued a Supplemental Environmental Impact Statement (“SEIS”) specifically addressing the drawdown from Lake Roosevelt envisioned by the MOU and the Water Management Act. The SEIS considers a number of methods of releasing the water as well as alternatives to a drawdown and discusses at some length the impacts of the proposed drawdown on various aspects of the environment. The SEIS also includes a brief analysis of the cumulative impacts of the drawdown.

Shortly before Ecology released its final SEIS, Reclamation applied to Ecology for two secondary use water permits that would allow it to withdraw water from Lake Roosevelt. Ecology issued the permits on December 1, 2008. Taken in combination, the permits allow Reclamation to withdraw 82,500 acre-feet of water per year from Lake Roosevelt for municipal, industrial, agricultural, and instream use.

Soon after receiving the permits, Reclamation published a draft Environmental Assessment (“EA”) for the drawdown project; the final EA issued in June 2009. The final EA analyzes the project as envisioned in the MOU, the Water Management Act, and Ecology's PEIS and SEIS. It also briefly discusses a no-action alternative. Like the SEIS, the EA describes the potential impacts of the project in detail. Also like the SEIS, the EA includes a short section expressly evaluating the project's cumulative impacts, including three future projects involving the Columbia River. Along with the EA, Reclamation issued a Finding of No Significant Impact (“FONSI”) memorializing its finding that “implementation of [the drawdown project] and associated environmental commitments would have no significant impact on the quality of the human environment or the natural resources in the affected area.”

The Center for Environmental Law and Policy and other groups (collectively, “CELP”) originally filed this action as a challenge to the timeliness of Reclamation's preparation of an EA. After Reclamation released its final EA, CELP amended its complaint to allege that the EA was not only untimely but also inadequate with respect to cumulative effects, indirect effects, and reasonable alternatives. Ecology and the East Columbia Basin Irrigation District intervened as defendants, and the parties filed cross-motions for summary judgment. The district court granted summary judgment to the defendants, holding that “the NEPA documents at issue”—including Ecology's PEIS and SEIS as well as Reclamation's EA— “thoroughly account for the history of development in the region and the project's cumulative impacts thereto,” that the agencies' “analysis of indirect impacts complies with NEPA,” that the EA's discussion of alternatives was sufficient in light of the “long collaborative process between [various] stakeholders” that led to the drawdown project, and that because Reclamation “retained the discretion[in the EA] to move forward with the project or not,” its NEPA review was timely.

We review de novo the district court's grant of summary judgment to Reclamation. See Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir.2010). However, because “judicial review of agency decisions under ... NEPA” is governed by Section 706 of the Administrative Procedure Act, we will uphold the agency's action “unless it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). Our review is “limited to the question of whether the agency took a ‘hard look’ at the proposed action as required by a strict reading of NEPA's procedural requirements.” Bering Strait Citizens for Responsible Res. Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir.2008). We must defer to any agency decision that is “fully informed and well-considered,” but we will not overlook “a clear error of judgment.” Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998) (internal quotation marks omitted).

CELP's most significant challenge on appeal is to the cumulative effects analysis in the EA. Although we agree with CELP that the portion of the EA exclusively devoted to cumulative effects is conclusory and unenlightening, reading the EA as a whole reveals that Reclamation understood and accounted for the cumulative effects of past projects. The EA does not discuss the cumulative impact of one of the...