Cnty. of Mohave v. United States Bureau of Reclamation
| Decision Date | 06 April 2023 |
| Docket Number | CV-22-08246-PCT-MTL |
| Parties | County of Mohave, et al., Plaintiff, v. United States Bureau of Reclamation, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is Plaintiffs Mohave County, La Paz County Yuma County, and the City of Yuma's Application for Preliminary Injunction. (Doc. 9.) They seek an injunction against Defendant United States Bureau of Reclamation's (“Reclamation”) approval of a partial assignment and transfer of a Colorado River water entitlement held by GSC Farm, LLC (“GSC Farm”) to the Town of Queen Creek (“Queen Creek”). Plaintiffs' Application for Preliminary Injunction (Doc. 9) will be denied.
GSC Farm is located in La Paz County. It holds a fourth priority Colorado River water entitlement (the “Entitlement”) to divert up to 2,913.3 acre-feet per year (“AFY”) of water for irrigation of its farmland located within the Cibola Valley Irrigation and Drainage District. [2]
Queen Creek is a municipality located within Maricopa and Pinal counties. It relies almost entirely on groundwater for its municipal water needs. In an effort to become less reliant on ground water, Queen Creek entered into a Purchase and Transfer Agreement for Mainstream Colorado River Water Entitlement (the “Proposed Water Transfer”) with GSC Farm. (Doc. 1-3 at 10.) This Proposed Water Transfer would assign most of GSC Farm's Entitlement to Queen Creek, allowing it to divert 2,033.01 AFY from the Colorado River for consumptive use. (Id. at 11.) Queen Creek plans on having the water diverted at an existing diversion point at the Mark Wilmer Pumping Plant, through the Central Arizona Project system, to groundwater savings facilities where the water will be stored. (Id.) This would result in changing the point of diversion “from the [Cibola Valley Irrigation and Drainage District] . . . upstream approximately 88 river miles to the existing Mark Wilmer Pumping Plant, located near Parker Dam.” (Doc. 23 at 12.)
Arizona law requires Queen Creek and GSC Farm to submit the Proposed Water Transfer to the Arizona Department of Water Resources (“ADWR”), and confer with its director, before the Transfer can proceed. Ariz. Rev. Stat. § 45-107(D). Initially, ADWR endorsed the Proposed Water Transfer, but only at 1,078.01 AFY of the Entitlement. (Doc. 23 at Ex. C.) ADWR later revised its position, recommending that GSC Farm could transfer 2,033.01 AFY to Queen Creek. (Id. at Ex. D.)
GSC Farm and Queen Creek next sought Reclamation's approval. Reclamation was asked to approve and execute the following four contracts, which would change the Entitlement's point of diversion, place of use, and type of use:
(Id. at Exs. E-H.)
The process for reviewing these contracts is subject to the National Environmental Policy Act (“NEPA”), which requires Reclamation to analyze the potential environmental impacts of the Proposed Water Transfer. 42 U.S.C. §§ 4321 et seq. Under NEPA's procedures, Reclamation first scoped the Proposed Water Transfer and provided a period of time for public comment. 30 C.F.R. § 1500.1.[3] Next, Reclamation conducted an Environmental Assessment (“EA”) to ascertain whether the Proposed Water Transfer would significantly impact the environment. 40 C.F.R. §§ 1508.7, 1508.8, 1508.9. If Reclamation's EA determined that the Proposed Water Transfer constituted a “major Federal action significantly affecting the quality of the human environment,” it was then required to prepare an Environmental Impact Statement (“EIS”). 42 U.S.C. § 4332(C) (alteration omitted). Conversely, if Reclamation found that the Proposed Water Transfer was not a major federal action significantly impacting the environment, Reclamation could issue a Finding of No Significant Impact (“FONSI”), which negates its obligation to move forward with an EIS. 40 C.F.R. § 1501.4(a).
In this instance, Reclamation scoped the Proposed Water Transfer by publishing notices in newspapers; websites; and direct mailing to 972 private citizens, nongovernmental organizations, public officials, and stakeholders. (Doc. 1-3 at 13.) In response to the public comments received, Reclamation prepared a draft EA. (Doc. 23 at 11.) Another period of public comment followed, during which representatives from La Paz County, Mohave County, and Yuma County objected to Reclamation approving the Proposed Water Transfer on the basis that the draft EA was inadequate and violated NEPA. (Doc. 1-3 at 83.) Reclamation then considered these objections and issued written responses. (Id. at 83-97.) Next, based on the public comments received during the scoping period, Reclamation conducted a final EA that analyzed the environmental impacts of three different alternatives. First, Reclamation considered a “No Action Alternative” where the Proposed Water Transfer would not be approved and GSC Farm would retain its Entitlement. (Id. at 17.) Second, Reclamation considered a “Proposed Action” alternative where the Proposed Water Transfer would be approved and GSC Farm would transfer its Entitlement to Queen Creek. (Id.) Finally, Reclamation analyzed an “Alternative Action” where the Proposed Water Transfer would be partially approved and GSC Farm would transfer only 1,078.01 AFY of its Entitlement. (Id. at 20.)
As to the Proposed Action, Reclamation considered the impact on biological resources, socioeconomic concerns, prime farmlands, and environmental justice.[4]Regarding biological resource impacts, Reclamation determined that the “only reduction in flow of diversion from the [Proposed Water Transfer] would occur between Parker Dam and the current [Cibola Valley Irrigation and Drainage District] point of diversion for the GSC Farm property.” (Id. at 33.) As such, the Proposed Water Transfer would only impact roughly eighty-eight miles of the Colorado River. (Id. at 63-67.) Furthermore, for this eighty-eight mile stretch of the Colorado River, Reclamation determined that this portion of the River would only experience a monthly average reduction amounting to 0.045 to 0.053 percent. (Id.) Based on these findings, Reclamation concluded that the “cumulative impact of the [Proposed Water Transfer] . . . on biological resources would be minimal” and that “no discernible effect or change in the ecosystem functions supported by river flows are expected from implementation of the Proposed Action.” (Id. at 34, 54.)
Reclamation further determined that the Proposed Water Transfer would not have “measurable impacts on habitat[s] that might be used by riparian or marsh special-status bird species[.]” (Id. at 34.) Reclamation's analysis relied on the Lower Colorado River Multi-Species Conservation Program (“LCR MSCP”), a biological assessment prepared by Reclamation and various other agencies in 2004 to facilitate wildlife conservation along the Lower Colorado River (Doc. 1-4 at 25.) The LCR MSCP detailed how “[d]iversion changes are expected to occur in response to shifts in water demand during the 50-year term of the LCR MSCP.” (Doc. 23-1 at 265.) Such future changes in diversions over the course of these 50 years was covered in the amount of 1.574 million AFY. (Id.) Consequently, based on these calculations, Reclamation concluded that the Proposed Water Transfer would not significantly impact biological resources or wildlife habitats as the amount of diversions would fall within the amounts covered by the LCR MSCP:
Diversions from the Colorado river in 2020 contributed to a net reduction in flow below the Parker Dam of 455,422 AFY on a consumptive use basis; these flow changes are accounted for and covered under the LCR MSCP's reduction in flow coverage of 1,574,000 AFY. The actions considered in this EA do not result in a reduction in the volume of flows below the Parker Dam beyond what was contemplated and is covered by the LCR MSCP.
As to socioeconomic impacts, Reclamation determined that the “direct and indirect . . . effects of the federal action are small compared to the economies of the regions evaluated.” (Id. at 55.) There would not be a “discernible effect that would be considered a significant departure from the foreseeable future trends in Arizona's economy from selection of any of these alternatives.” (Id. at 56.) In reaching this conclusion, Reclamation considered the future development of Queen Creek. Reclamation described how Queen Creek's current planning projections account for the Town meeting its water demands through “groundwater, surface water, and reclaimed water sources.” (Id. at 51.) And that none of the proposed actions would therefore “change the expected growth of [Queen Creek], nor would [they] change the economic outputs generated by [Queen Creek's] economy.” (Id. at 56.) Lastly, Reclamation considered that under the Proposed Water Transfer GSC Farm would fallow 485 acres of land, but concluded that this would only result in losing two jobs, thus rendering the socioeconomic impacts de minimis. (Id. at 39-40.)
As to prime farmlands, Reclamation determined that GSC Farm holds approximately 479 acres of...
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