California ex rel. Imperial Cnty. Air Pollution Control Dist. v. United States Dep't of Interior, Civil No. 09cv2233 AJB (PCL)

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtAnthony J. Battaglia
Decision Date06 April 2012
PartiesPEOPLE OF THE STATE OF CALIFORNIA EX REL. IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; IMPERIAL COUNTY AIR POLLUTION CONTROL DISTRICT; COUNTY OF IMPERIAL, Plaintiff, v. UNITED STATES DEPARTMENT OF INTERIOR; KEN SALAZAR, SECRETARY OF THE UNITED STATES DEPARTMENT OF INTERIOR; UNITED STATES BUREAU OF RECLAMATION; MICHAEL L. CONNOR, COMMISSIONER, BUREAU OF RECLAMATION, Defendants. METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA; SAN DIEGO COUNTY WATER AUTHORITY; IMPERIAL IRRIGATION DISTRICT; COACHELLA VALLEY WATER DISTRICT, Intervening Defendants
Docket NumberDoc. 65,Doc. 60,Civil No. 09cv2233 AJB (PCL),Doc. 63

PEOPLE OF THE STATE OF CALIFORNIA
EX REL.
IMPERIAL COUNTY AIR
POLLUTION CONTROL DISTRICT;
IMPERIAL COUNTY AIR POLLUTION
CONTROL DISTRICT; COUNTY OF IMPERIAL, Plaintiff,
v.
UNITED STATES DEPARTMENT OF
INTERIOR; KEN SALAZAR, SECRETARY
OF THE UNITED STATES DEPARTMENT
OF INTERIOR; UNITED STATES
BUREAU OF RECLAMATION; MICHAEL
L. CONNOR, COMMISSIONER, BUREAU
OF RECLAMATION, Defendants.

METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA; SAN DIEGO
COUNTY WATER AUTHORITY;
IMPERIAL IRRIGATION DISTRICT;
COACHELLA VALLEY WATER
DISTRICT, Intervening Defendants

Civil No. 09cv2233 AJB (PCL)
Doc.
60
Doc. 63
Doc. 65

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: April 6, 2012


ORDER (1) DENYING PLAINTIFFS'
MOTION FOR SUMMARY
JUDGMENT, (2) GRANTING
FEDERAL DEFENDANTS' CROSS
MOTION FOR SUMMARY
JUDGMENT, AND (3) DENYING AS
MOOT INTERVENING DEFENDANTS'
CROSS MOTION FOR SUMMARY
JUDGMENT

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Presently before the Court are a motion for summary judgment filed by Plaintiffs1 (Doc. 60), a cross motion for summary judgment filed by Federal Defendants2 (Doc. 63), and a cross motion for summary judgment filed by Intervening Defendants3 (Doc. 65). For the reasons set forth below, the Court (1) DENIES Plaintiffs' motion for summary judgment, (2) GRANTS Federal Defendants' cross motion for summary judgment, and (3) DENIES AS MOOT Intervening Defendants' cross motion for summary judgment.

I.

BACKGROUND

Plaintiffs filed this action against Federal Defendants challenging the final agency decision of the Secretary of the Interior approving the Colorado River Water Delivery Agreement ("CRWDA"). The CRWDA is one of numerous agreements governing the use and distribution of Colorado River water. Plaintiffs allege that the Secretary failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq., by failing to consider the necessary information prior to executing the CRWDA. Plaintiffs request judicial review of the Secretary's decision under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"). Plaintiffs seek (1) a declaration that the Secretary violated NEPA and the CAA in executing the CRWDA and (2) an order immediately ceasing water deliveries under the void CRWDA.

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The parties submitted copious briefing on the three instant motions.4 Before discussing their various arguments, the Court finds it helpful to examine an overview of NEPA, as well as a brief history of Colorado River water apportionment in California leading up to the CRWDA.

A. NEPA Overview

NEPA is a procedural statute that requires federal agencies to consider the potential environmental impacts of their proposed actions and also guarantees broad public dissemination of relevant information. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Importantly, NEPA exists to ensure a process, not any particular result. Id. at 350; Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996).

To ensure that federal agencies take the necessary "hard look" at environmental consequences prior to approving an action, NEPA requires the preparation of an environmental impact statement ("EIS").5 42 U.S.C.§ 4332(c); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). NEPA's procedures are set forth in regulations promulgated by the Council on Environmental Quality ("CEQ"), which are binding on all federal agencies. 40 C.F.R. § 1500.2 et seq.; Anderson v. Evans, 371 F.3d 475, 487 (9th Cir. 2002). The CEQ regulations prescribe the form of an EIS, including the evaluation of "all reasonable alternatives" to the proposed action and a "no action" alternative. 40 C.F.R. §§ 1502.14(a), 1502.14(d).

The CEQ regulations emphasize public disclosure and involvement. Specifically, they require publication in the Federal Register of a Notice of Intent to prepare an EIS, followed by a public "scoping" process. 40 C.F.R. § 1501.7. The lead agency then prepares a draft EIS and circulates it for

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comment from the public, appropriate state and local agencies, Indian tribes, cooperating agencies, and other federal agencies which have asked to comment. 40 C.F.R. §§ 1502.9(a), 1502.19, 1503. The comment period must be at least 45 days. 40 C.F.R. § 1506.10(c). Following the receipt of comments on a draft EIS, the lead agency prepares a final EIS, which must include a response to comments received on the draft.6 40 C.F.R. §§ 1502.9(b), 1503.4. The final EIS must also be circulated to the public and filed with the Environmental Protection Agency ("EPA"), and a notice of the final EIS must be published in the Federal Register. 40 C.F.R. §§ 1502.19, 1506.9, 1506.10(a).

In some situations, even after the final EIS is prepared, an agency must prepare a supplemental EIS if (1) the agency makes substantial changes in the proposed action relevant to environmental concerns, or (2) there are significant new circumstances or information bearing on the proposed action that are relevant to environmental concerns. 40 C.F.R. § 1502.9(c)(1); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372 n.16 (1989). The CEQ regulations do not dictate how agencies determine whether a change in the proposed action, circumstances, or new information rises to the level of significance that would require a supplemental EIS. Courts, however, have approved agency use of "supplemental information reports" or similar documents to determine the environmental significance of such changes or new information. Id. at 383-85; Price Rd. Neighborhood Ass'n v. U.S. Dep't of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997). An agency's decision whether to prepare a supplemental NEPA analysis does not require public disclosure or comment. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000).

Of particular import here, the CEQ regulations specifically permit (and in some circumstances require7 ) agencies to incorporate documents by reference into an EIS. See 40 C.F.R. § 1502.21; Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 99 n.12 (1983); City of Sausalito v. O'Neill, 386 F.3d 1186,

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1214 (9th Cir. 2004); Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1073 (9th Cir. 2002) ("CEQ procedures allow agencies to incorporate by reference certain materials to cut down on the bulk of an EIS . . . .").

B. Colorado River Apportionment

Water from the Colorado River is apportioned among seven western states and Mexico. It is governed by a complex series of laws dating back nearly a century. Administrative Record ("AR") 2375, 2431-32. Under the 1928 Boulder Canyon Project Act, California's use of the Colorado River is limited to no more than 4.4 million acre-feet per year ("MAFY") and one-half of any surplus water available. Pub.L. 642-70, § 4(a) 45 Stat. 1057 (Dec. 21, 1928); see also 43 U.S.C. § 617c(a); AR 2375, 2431-33, 2435. The Secretary of the Interior manages Colorado River deliveries and determines when surplus conditions occur—i.e., when California may receive more than its 4.4 MAFY entitlement. Pub. L. No. 90-537, § 602; AR 19799-800.

In 1931, the principal users of California's apportionment entered into the Seven Party Agreement, which allocated water among the California parties by priority, but did not quantify the exact amount that each agricultural contractor was individually entitled to receive in the first three priorities. AR 2375, 37197; see generally 65 Fed. Reg. 48531, 48532 (Aug. 8, 2000); AR 2375, 2433, 37197-202. The first four priorities under the Seven Party Agreement allocated a total of 4.4 MAFY, which equals California's basic apportionment without surplus water, but the Agreement apportioned a total of 5.362 MAFY among the signatories. AR 37197-98 (art. I).8

California lawfully used more than 4.4 MAFY for several decades, since Arizona and Nevada underutilized their full apportionments and surplus water was available. AR 9749, 9835. But when Arizona and Nevada began increasing their water use, California's continued access to more than 4.4 MAFY was threatened. AR 9749, 9835. As unused apportionments dwindled, pressure mounted for IID to reduce its water use under its unquantified allocation as a potential solution to future water shortages. AR 9749, 9835. In particular, MWD and Coachella alleged that IID was wasting water through inefficient irrigation practices and sought to compel IID to reduce its water use and thereby make more

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water available to them. Negotiations commenced to quantify the top three agricultural priorities to Colorado River water and to reduce California's use to its 4.4 MAF normal-year apportionment. AR 9749, 9835, 9837.

The resulting settlement is referred to as the QSA, although it took 35 agreements, including the Quantification Settlement Agreement itself, to fully implement all of the aspects of the settlement among all of the interested parties. The QSA was approved in October 2003. The main state agreements include implementing water...

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