Animal Defense Council v. Hodel, 86-2453

Citation840 F.2d 1432
Decision Date24 February 1988
Docket NumberNo. 86-2453,86-2453
Parties, 18 Envtl. L. Rep. 20,497 ANIMAL DEFENSE COUNCIL; Friends of the Desert; Friends of the Earth; Earth First; Animal Protection Institute of America; Arizona Wildlife Federation; Citizens for Cap Recharge; Paul Hirt, Plaintiffs-Appellants, v. Donald P. HODEL, in his official capacity as Secretary of the Interior of the United States; C. Dale Duvall, in his official capacity as Commissioner of the Bureau of Reclamation; Edward M. Hallenbeck, in his official capacity as Acting Regional Director of the Lower Colorado Region of the Bureau of Reclamation; Larry D. Morton, in his official capacity as Acting Project Manager of the Arizona Projects Office of the Bureau of Reclamation, Defendants-Appellees, Southern Arizona Water Resources Association; Central Arizona Water Conservation District; City of Tucson; Mountain States Legal Foundation, Defendants-Intervenors-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Sean Bruner, Jacoby & Meyers, Tucson, Ariz., for plaintiffs-appellants.

Martin W. Matzen, Dept. of Justice, Washington, D.C., for defendants-appellees.

Casey Shpall, Mountain States Legal Foundation, Denver, Colo., for defendant-intervenor-appellee.

Frederick S. Dean and Loretta Humphrey, Office of the City Attorney, Tucson, Ariz., and Marvin S. Cohen, Clifford J. Roth and Andrew L. de Mars, Winston & Strawn, Phoenix, Ariz., for defendant-intervenor-appellee City of Tucson.

Ralph E. Hunsaker and Scott E. Boehm, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., for defendant-intervenor-appellee Central Arizona Water Conservation Dist.

Steven Weatherspoon, Chandler, Tullar, Udall & Redhair, Tucson, Ariz., for defendant-intervenor-appellee Southern Arizona Water Resources Ass'n.

On Appeal from the United States District Court for the District of Arizona.

Before HUG, NELSON and NOONAN, Circuit Judges.

NELSON, Circuit Judge:

The Animal Defense Council and several other non-profit associations (Council) appeal from the district court's grant of summary judgment in favor of the Bureau of Reclamation of the United States Department of the Interior (Bureau). The Council brought suit under the National Environmental Policy Act (NEPA), 42 U.S.C. Sec. 4321, et seq. (1982), challenging the sufficiency of the Final Environmental Impact Statement (EIS) on the Tucson Aqueduct Phase B of the Central Arizona Project.

The district court limited its review to the administrative record and granted the Bureau's motion for summary judgment, holding that the EIS was sufficient and that the Bureau did not need to prepare a supplemental EIS. This court has jurisdiction over this appeal under 28 U.S.C. Sec. 1291 (1982). We affirm.

I. FACTUAL BACKGROUND

The Central Arizona Project (CAP) is part of a comprehensive plan to provide water from the Colorado River to arid regions in Arizona, as authorized by the Colorado River Basin Project Act, 43 U.S.C. Secs. 1501-21 (1982). The CAP water is part of Arizona's entitlement to Colorado River water. Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963). The Tucson aqueduct is a feature of the CAP designed to convey this water to target regions in Arizona. The EIS at issue in this action describes the proposed construction, operation, and maintenance of Phase B of the Tucson aqueduct. Phase B will extend from the terminus of Phase A forty-five miles to the Tucson metropolitan area and to the south boundary of the San Xavier Indian Reservation.

On August 14, 1985, the Bureau filed its EIS for Phase B of the aqueduct. In the EIS, the Bureau discussed five alternative routes for the aqueduct as well as the alternative of no federal action. The Bureau in the EIS proposed the West Side Plan, a route located on the west side of the Tucson Mountains and utilizing a greater amount of open canal than the other alternatives. The Council preferred the East Side Plan, which consisted of a predominately closed canal located on the east side of the Tucson Mountains. Water conveyed within a closed canal has fewer biological impacts because fewer acres of habitat are lost and fewer wildlife movement areas are disrupted. At the time the EIS was issued, the Bureau's estimated total cost for construction and operation of the West Side Plan was approximately $55 million less that the cost of the East side plan.

The EIS provided for delivery of water to the Avra Valley Irrigation District (AVID) in each of the alternative plans. The East Side Plan included the cost of construction of a canal to deliver CAP water to the AVID, although the canal was not part of the federal aqueduct. The canal to AVID consisted of approximately six miles of open canal. Because the West Side Plan already passed through AVID, the cost of the canal was not included.

Prior to the issuance of the EIS, in April, 1985, AVID asked the Central Arizona Water Conservation District (CAWCD) for an extension of time to execute its subcontract for CAP water. Although AVID requested an extension to August 5, 1985, nine days before the filing of the EIS, the CAWCD granted an extension to September 3. Approximately two weeks after the publication of the EIS, AVID's final deadline to contract for the receipt of CAP water expired, thus eliminating the need in the East Side Plan for the six miles of open canal to convey water to AVID. The elimination of the canal dropped the estimated cost of the East Side Plan by $40 million, reducing the difference in cost between the East Side Plan and the Bureau's preferred West Side Plan to approximately $15-20 million. The cancellation of the canal also eliminated most of the environmental consequences of the East Side Plan because it eliminated the need for an open canal.

The Bureau provided revised cost comparison tables reflecting the elimination of the East Side canal to AVID. The Bureau concluded that supplementation of the EIS was not required because the only impact on the West Side Plan was that turnouts would not need to be constructed. In addition, the West Side Plan remained the least expensive alternative of the five considered because the Plan without the canal to AVID remained $15-20 million less expensive than the East Side Plan.

During the Bureau's planning for the Phase B aqueduct, Dr. C. Brent Cluff, an associate hydrologist at the University of Arizona, Tucson, advocated a groundwater recharge proposal. The proposal advocated using CAP waters to recharge the groundwater, which would then be recovered from the ground for use. The EIS indicated that the Bureau considered two plans involving recharge, one using an east side alignment and the other utilizing the Bureau's proposed west side alignment. Tables in the EIS set forth the comparative physical features and costs of these plans. The EIS indicated that although the groundwater recharge proposal had been extensively reviewed, the Bureau had decided to eliminate ground-water as a viable alternative because the proposals were less cost effective than the West Side Plan and because the proposals lacked support from the City of Tucson and the Southern Arizona Water Resources Association.

The EIS also discussed the differences in water quality between Colorado River water and local ground water. The EIS stated that the State of Arizona requires the treatment of all surface water used for drinking but does not require treatment of ground water. The EIS further stated that this treatment includes chlorination to remove microorganisms and bacteria and that EPA findings indicate that chlorination of surface water for drinking involves a potential cancer risk. Because of the high organic content of Colorado River water resulting from extensive upstream irrigation, the EIS suggested that Arizona officials should consider this risk in designing facilities to treat CAP water.

On September 24, 1985, the Bureau issued its record of decision, officially selecting the West Side Plan. The Bureau acknowledged that the West Side Plan had "significantly greater biological and cultural impacts," but that these impacts could be reduced to an acceptable level. The Bureau stated that it selected the West Side Plan because the Plan had the least construction and operating costs and because the Plan had strong public support.

On February 21, 1986, the Council filed suit under NEPA seeking declaratory and injunctive relief, and challenging the sufficiency of the EIS. Upon motions by the Bureau, the district court limited the scope of review to the administrative record and prohibited discovery unless the plaintiffs provided the court with adequate justification to grant the discovery request. The district court granted the Bureau's motion for summary judgment, holding that 1) the Bureau was not required to supplement the EIS to reflect new information because the new information related only to a rejected alternative route, not to the aqueduct route selected; and 2) the EIS did not have to include a worst case analysis of the risks associated with chlorination as a method of water purification; and 3) the EIS did not have to address the merits of an alternative groundwater recharge proposal.

II. ISSUES PRESENTED

1. Did the district court err in limiting the scope of review to the administrative record and in prohibiting discovery unless the Council provided adequate justification for discovery requests?

2. Was the Bureau required to supplement its EIS to reflect post-EIS changes affecting the features and cost of a rejected alternative?

3. Should the Bureau have included in its EIS a worst case analysis of the possible health effects of the City of Tucson's water treatment process?

4. Did the EIS adequately address groundwater recharge as a possible means for storage of CAP water to be delivered by the aqueduct?

III. STANDARD OF REVIEW

In NEPA actions, this court reviews de...

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