Gov't of the Province of Man. v. Zinke, Civil Action No. 02–2057 (RMC) consolidated with 09–373

• Decision Date: 10 August 2017
• Docket Number: Civil Action No. 02–2057 (RMC) consolidated with 09–373
• Citation: 273 F.Supp.3d 145
• Parties: GOVERNMENT OF the PROVINCE OF MANITOBA, et al., Plaintiffs, v. Ryan ZINKE, Secretary, United States Department of the Interior, et al., Defendants, and State of North Dakota, Defendant–Intervenor.
• Court: U.S. District Court — District of Columbia

273 F.Supp.3d 145

GOVERNMENT OF the PROVINCE OF MANITOBA, et al., Plaintiffs,

v. Ryan ZINKE, Secretary, United States Department of the Interior, et al., Defendants,andState of North Dakota, Defendant–Intervenor.

Civil Action No. 02–2057 (RMC) consolidated with 09–373

United States District Court, District of Columbia.

Signed August 10, 2017

Sarah L. Knapp, Office of the Attorney General for the District of Columbia, Scott M. DuBoff, Benjamin J. Lambiotte, Washington, DC, Laura Elizabeth Elsbury, Joel Benjamin Reschly, Missouri Attorney General's Office, Agriculture & Environment, Jefferson City, MO, for Plaintiffs.

Jane M. Lyons, U.S. Attorney's Office, Romney Sharpe Philpott, Donna S. Fitzgerald, U.S. Department Of Justice, Washington, DC, for Defendants.

Nessa Elise Horewitch Coppinger, Beveridge & Diamond, P.C., Washington, DC, Jennifer L. Verleger, North Dakota Office of Attorney General, Bismarck, ND, for Defendant–Intervenor.

ROSEMARY M. COLLYER, United States District Judge

The National Environmental Protection Act (NEPA), 42 U.S.C. § 4321 et seq . (2012), is designed to ensure that federal officials seriously study the environmental effects and implications of any major federal action before proceeding. As this aged litigation makes clear, NEPA's requirements cannot be sidestepped. In the end, however, NEPA does not dictate the outcome of an agency decision. As long as the federal agency has adequately identified its options, seriously studied and evaluated the consequences of each, identified and adopted reasonable measures to mitigate adverse consequences, and selected its action after balancing all of the above, NEPA will not prevent the agency from going ahead. Much less, after a thorough environmental impact statement, is the Judiciary assigned the duty of balancing and choosing between serious but opposing policy choices. This Court's work is done because the Bureau of Reclamation has finally done its work. The policy debate is legitimate and has strong advocates on each side but it cannot be decided by a court. The government's motion for summary judgment will be granted.

I. BACKGROUND

The Court presumes familiarity with its prior opinions and will not belabor the facts. See Gov't of the Province of Manitoba v. Norton , 398 F.Supp.2d 41, 65 (D.D.C. 2005)( Manitoba I ) (remanding for a "more searching" environmental assessment); Gov't of the Province of Manitoba v. Salazar , 691 F.Supp.2d 37, 51 (D.D.C. 2010)( Manitoba II ) (remanding for a "hard look" at the impact of withdrawals from Lake Sakakawea and the Missouri River and consequences of foreign biota transfer into Hudson Bay Basin); see also Gov't of the Province of Manitoba v. Zinke , 849 F.3d 1111, 1122 (D.C. Cir. 2017) (concluding that significant change in circumstances warranted modification of injunction).

In response to longstanding water shortages and poor water quality in northwestern and northcentral North Dakota, in 1987 the Bureau of Reclamation (Reclamation) developed the Northwest Area Water Supply Project (NAWS or the Project). The goal of NAWS is to provide water from Lake Sakakawea, a reservoir in the Missouri River Basin, to communities in North Dakota in need of water. In the process, water will be transferred through pipes across the Basin Divide,¹ which separates two large water Basins: to the south is the Missouri River Basin and to the north is the Hudson Bay Basin. These Basins have distinct ecological characteristics and contain different species of fish and other aquatic organisms, as well as pathogenic species such as bacteria, viruses, protozoa, fungi, and other microscopic organisms. The co-mingling of water from these two Basins could result in the introduction of foreign biota—the various life forms of a particular region or habitat—that may be invasive and dangerous to indigenous biota. Foreign biota "whose introduction does or is likely to cause economic or environmental harm or harm to human health" are also referred to as alien invasive species (AIS). Executive Order 13112, 64 Fed. Reg. 6183 (February 3, 1999). The federal government and the State of North Dakota have labored for years to bring water from Lake Sakakawea across the Divide to the parched communities in the northwestern area of North Dakota. Water in North Dakota drains north into the Hudson Bay Basin. Manitoba therefore has a strong interest in avoiding the introduction of AIS from the Missouri River Basin draining into the Province.

In 2002, the Province of Manitoba sued under NEPA to prevent Reclamation from proceeding with NAWS, arguing that an April 2001 Environmental Assessment (EA) and a Finding of No Significant Impact² (FONSI) violated NEPA. See Manitoba I , 398 F.Supp.2d at 44. As designed originally, NAWS would have transferred billions of gallons of water each year from the Missouri River Basin, on the southern side of the Basin Divide, into the Hudson Bay Basin, on the northern side of the Divide, without any treatment to avoid an inevitable transfer of AIS. Years later, Reclamation has finally produced a thorough and studious environmental impact statement (EIS). The policy choice between (i) the risk of AIS entering Manitoba as water drains north from North Dakota into the Hudson Bay Basin and (ii) providing adequate water to the communities in northwest North Dakota has been made, with significant mitigation efforts to reduce the risks to Manitoba.

The pending cross-motions for summary judgment address the sufficiency of the Final 2015 Supplemental Environmental Impact Statement (2015 SEIS), for which notice of availability was published in the Federal Register by Reclamation on April 10, 2015, 80 Fed. Reg. 19347–01 (Apr. 10, 2015) ; see also 2015 SEIS [Dkt. 260-8] 2015 AR 2015_107; and the Record of Decision (2015 ROD) identifying the selected action for implementation. See 2015 ROD [Dkt. 260–2] 2015 AR 2015_100. Reclamation continues to propose, with North Dakota's support, the annual conveyance of billions of gallons of water across the Basin Divide to ten counties in northwestern North Dakota. See Recl. Mot. Sum. J. [Dkt. 243]; North Dakota Mot. Sum. J. [Dkt. 242]. Reclamation and North Dakota ask the Court to dissolve its injunction, as amended, which has prevented most construction work on NAWS since 2005. Manitoba and the State of Missouri, which fears the consequences of the loss of so much water from the Missouri River on its downstream citizens, oppose lifting the injunction and file cross-motions for summary judgment.³ SeeManitoba Mot. Sum. J. [Dkt. 249–1]; Missouri Mot. Sum. J. [Dkt. 246].

A. The 2015 SEIS

The 2015 SEIS analyzes the same five alternatives that had been previously described in the Draft SEIS, issued in June 2014, and on which Reclamation received copious public comments. See Draft SEIS [Dkt. 258–14] 2015 AR 2014_165 at 35–36; 2015 SEIS, 2015 AR 2015_107 at 46. The alternatives include a "no action" alternative, as required by NEPA, which would mean an end to the Project. See 2015 SEIS, 2015 AR 2015_107 at 50; see also 40 C.F.R. § 1502.14(d) (requiring agencies to "[i]nclude the alternative of no action" in an EIS). Of the other four alternatives, two are "inbasin alternatives," drawing water from the Hudson Bay Basin, and two are "Missouri River alternatives," drawing water from the Missouri River Basin. 2015 SEIS, 2015 AR 2015_107 at 46. The first inbasin alternative, "Groundwater with Recharge," would use existing groundwater from the Minot and Sundre aquifer wellfields (both within the Hudson Bay Basin) as the primary source of water and use the Souris River (also within the Hudson Bay Basin) to provide artificial recharge to the aquifers. Id. at 51. The second inbasin alternative, "Groundwater with Recharge and the Souris River," includes the same water sources as the first and would also use the Souris River as a direct source of water to supplement the groundwater. Id. at 60. The inbasin alternatives would draw from water exclusively on the northern side of the Basin Divide, avoiding the need to transfer water between Basins and thus any need to construct a Biota Water Treatment Plant (WTP) in Max, North Dakota on the southern side of the Basin Divide. See 2015 SEIS Executive Summary [Dkt. 260–10] 2015 AR 2015_109 at 14–15.

The Missouri River alternatives both involve piping water from Lake Sakakawea in the Missouri River Basin across the Divide and blending it with water north of the Basin Divide. As now envisioned, both would require the construction of a Biota WTP in order to treat the water prior to transfer across the Divide. See 2015 SEIS, 2015 AR 2015_107 at 66, 73. The water would then be treated again north of the divide at a second water treatment plant in Minot, North Dakota. The first of these alternatives, "Missouri River and Conjunctive Use," would blend Lake Sakakawea water with groundwater from the Minot and Sundre aquifers as well as water from the Souris River. Id. at 66. Reclamation identifies the second Missouri River alternative, "Missouri River and Groundwater," as its preferred alternative. Id. at 99. This alternative would blend Lake Sakakawea water with groundwater only, with no additional water from the Souris River. Id. at 73.

The 2015 SEIS identifies five methods for treating water at a Biota WTP in Max, N.D., south of the Basin Divide, for the Missouri River alternatives. The Draft SEIS planned to use Chlorination/Ultraviolet (UV) Inactivation at the Biota WTP to treat the water in part before piping it northward to the Minot WTP, on the northern side of the Basin Divide, to complete treatment. Id. at 99. The Environmental Protection Agency (EPA) submitted comments to the Draft SEIS advising that the use of Chlorination/UV Inactivation could result in the formation of disinfection by products which "pose a risk to human health when present in drinking water" at high concentrations. Comments to Draft SEIS [Dkt. 260–4] AR 2015 AR 2015_104 at 289. EPA recommended that...