Government of Province of Manitoba v. Norton

• Decision Date: 03 February 2005
• Docket Number: No. CIV.A. 02CV02057RMC.,CIV.A. 02CV02057RMC.
• Citation: 398 F.Supp.2d 41
• Parties: GOVERNMENT OF THE PROVINCE OF MANITOBA, Plaintiff, v. Gale A. NORTON, Secretary, United Stated Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

398 F.Supp.2d 41

GOVERNMENT OF THE PROVINCE OF MANITOBA, Plaintiff, v. Gale A. NORTON, Secretary, United Stated Department of the Interior, et al., Defendants.

No. CIV.A. 02CV02057RMC.

United States District Court, District of Columbia.

February 3, 2005.

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Eldon V. C. Greenberg, Garvey Schubert Barer, Washington, DC, Lois J. Schiffer, Manuel S. Varela, Baach Robinson & Lewis PLLC, Washington, DC, for Plaintiff.

Ann D. Navaro, U.S. Department of Justice, G. Michael Harvey, Office of the United States Attorney, Michael C. Johnson, U.S. Attorney's Office, Lois J. Schiffer, Baach Robinson & Lewis PLLC, Washington, DC, Charles Michael Carvell, Office of Attorney General, Bismarck, ND, for Defendants.

MEMORANDUM OPINION

COLLYER, District Judge.

The United States Government and the State of North Dakota have begun construction on a project that is designed to transfer water through a mountain range from the Missouri River Basin into the Hudson Bay Basin for purposes of providing water to numerous small communities in North Dakota. This "NorthWest Area Water Supply Project" ("NAWS") would be the first federally-sponsored interbasin transfer of water.

The Province of Manitoba, Canada ("Manitoba") has filed suit against Gail A. Norton, Secretary of the Department of the Interior, John W. Keys, III, Commissioner of the Bureau of Reclamation, Maryanne C. Bach, Great Plains Regional Director of the Bureau of Reclamation, and Dennis E. Breitzman, Dakotas Area Manager of the Bureau of Reclamation (collectively, "Federal Defendants"). Manitoba challenges the Federal Defendants' compliance with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq. ("NEPA"), in connection with their consideration and approval of the water transfer project. More particularly, Plaintiff contends that the April 30, 2001 Environmental Assessment ("EA") for the project is inadequate and that the Finding of No Significant Impact ("FONSI"), dated May 18, 2001, as revised September 10, 2001, together with the actions based thereon, are therefore arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law within the meaning of Section 10 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The point of contention is the degree to which NAWS threatens to bring non-native biota from the Missouri River Basin into the Hudson Bay Basin.

Pending before the Court are Cross-Motions for Summary Judgment filed by Manitoba, Federal Defendants, and Intervenor-Defendant, the State of North Dakota ("North Dakota"). Manitoba's motion is supported by amici curiae the Government of Canada and the State of Missouri. Upon consideration of the arguments presented in the parties' memoranda and at oral argument, the Court will grant in part, and deny in part, Manitoba's motion for summary judgment and will deny the motions of Federal Defendants and North Dakota.

BACKGROUND

The Continental Divide separates water flows in the Unites States so that streams flow to opposite sides of the continent. Where it goes through North Dakota, the divide separates two river basins, the Missouri River Basin and the Hudson Bay Basin. AR at 862.¹ On the western side of the divide in North Dakota, the Missouri River flows into the Missouri River Basin and eventually drains south to the Gulf of Mexico. On the eastern side of the divide, the waters flow north and east into the Hudson Bay Basin. AR at 545.

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. AR at 1200; Pltf's Motion for Summary Judgment at 4.² The co-mingling of untreated water from one basin into another can result in the introduction of biota — the various life forms of a particular region or habitat — that may be invasive and dangerous to indigenous biota.³ The effect upon fish of "interbasin biota transfer," for example, can be devastating. The introduction of foreign biota can eliminate indigenous species, cause reduced growth and survival rates in indigenous species, and change the trophic structure of fish communities. AR at 3005. In documented cases, non-native species have displaced native species through direct competition, predation, inhibition of reproduction, environmental modification, transfer of new parasites and diseases, and destruction of the gene pool through hybridization. AR at 3005.⁴

Aquatic invasive or non-indigenous species are organisms that have moved beyond their natural geographical ecosystem. They may include fish, fish pathogens and parasites, invertebrates, and aquatic plants. When a new species or organism is introduced into an ecosystem, the economic and ecological consequences can be detrimental and irreversible.

. . . . .

Aquatic non-indigenous species can cause complex changes within their new environment as evidenced by the zebra mussel and many other species.... Changes to aquatic ecosystems can include a decline in the abundance of native species, extirpation of rare or endangered species, introduction of new diseases to native populations, alteration of the gene pool of native species, and reductions in reproductive success, genetic integrity, and biodiversity.

AR at 9815-17 (internal citations to reports omitted).

The transfer of biota can occur in many different ways, both natural and unnatural. "Direct connection through water is only one of several possible ways for biota to be transferred between basins. Many vectors, or pathways, have been identified including attachment to birds, insects, through fish-stocking programs, transfer of biota in live wells and bilge water of recreational or commercial water craft, and through live bait transport." AR at 544. Flooding and other natural events can also transfer biota from basin to basin.

NorthWest Area Water Supply Project

For many years, northwestern North Dakota has experienced water supply problems. AR at 466. Many municipalities and small communities in the region, as well as farms and ranches, rely upon groundwater sources that are finite or of poor quality. AR at 466. The largest city in the region, Minot, North Dakota, currently obtains most of its water from the Minot and Sundre aquifers. AR at 470. In the past, these aquifers were recharged by water from the Souris River. However, increased water usage and the construction of two water storage reservoirs in Canada — which reduced flows on the Souris River in the United States — have limited the amount of available water in these aquifers. AR at 470. See AR at 498 (The Souris River flows south from Canada into North Dakota, takes a wide swing through the northwest part of the state, and flows north back into Canada.).

The NorthWest Area Water Supply Project is a joint federal-state project that "involves the construction of a municipal, rural, and industrial [] bulk water distribution system in North Dakota." Compl. ¶ 2. The Bureau of Reclamation ("Bureau" or "BOR"), through the Secretary of the Interior, is charged with planning and construction and is accomplishing this with the State of North Dakota. The primary purpose of this project is to provide drinking water that meets the "secondary" standards of the Safe Water Drinking Act, 42 U.S.C. § 300f, to local communities and rural water systems in eight to ten counties in North Dakota. AR at 470-71.

The cornerstone of the project is the source of the water for NAWS. As presently contemplated, NAWS would withdraw over three and one-half billion gallons of Missouri River water from Lake Audubon or Lake Sakakawea every year. The water, which would be partially disinfected and pre-treated south of the basin divide, would flow through buried pipelines across the divide into the Hudson Bay Basin where it would receive final treatment in Minot, North Dakota prior to distribution.⁵ The finished water would be delivered by pipeline to communities and rural water systems north of the basin divide. Water from the project would drain into the Souris River, which flows into Manitoba. Upon completion, NAWS would establish the first artificial link in 10,000 years between the Missouri River Basin and the Hudson River Basin.

From the outset, the potential of NAWS to transfer Missouri River Basin biota to the Hudson Bay Basin has been recognized as a major concern, prompting considerable study, analysis, and diplomatic negotiation among interested parties. AR at 823 ("Since 1981, numerous international committees and groups have been formed to address this issue at both a policy and technical level."); see, e.g., AR at 1023 (1990 Garrison Joint Technical Committee, Biology Task Force Report); AR at 1199 (1994 NAWS Engineering-Biology Task Group). The parties to this litigation agree that such a transfer could have catastrophic consequences. "One of the greatest concerns for irreversible commitments of resources is interbasin biota transfer. Most often, when this occurs, the damage is not reversible." AR at 591; see AR at 1201, Engineering-Biology Task Group Report ("The effects of the introduction of a disease pathogen or parasite could be catastrophic to wild or cultured fish.").

In 1994, the NAWS Chloramine Challenge Study was undertaken to investigate the effectiveness of chloramination and ozonation for disinfection and pre-treatment of Missouri River water. The study developed "experimental protocols for microbial inactivation using chlorine/chloramine and ozone. The chlorine/chloramine protocols included both Giardia and MS2 Bacteriophage inactivation experiments." AR at 825. The ozone protocols were also developed for Giardia inactivation. The results of the study indicated that both chloramine and ozone "could be employed for disinfection of Lake Audubon water." AR at 825-26.

Early studies concluded that the "risk of biota transfer from...