Missouri ex rel. Bailey v. U.S. Dep't of Interior
| Docket Number | 21-3408 |
| Decision Date | 10 July 2023 |
| Citation | 73 F.4th 570 |
| Parties | State of MISSOURI, EX REL. Attorney General Andrew BAILEY, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF INTERIOR, BUREAU OF RECLAMATION; United States Army Corps of Engineers; Debra Haaland, Secretary of the Interior, in her official capacity; M. Camille Calimlim Touton, Bureau of Reclamation Commissioner, in her official capacity; Christine Wormuth, Secretary of the Army, in her official capacity; Brigadier General Geoff Van Epps, Northwest Division Commander, in his official capacity; Joseph E. Hall, Bureau of Reclamation Dakotas Area Manager, in his official capacity; Brent C. Esplin, Bureau of Reclamation Missouri Basin Regional Director, in his official capacity; North Dakota Garrison Diversion Conservancy District; State of North Dakota, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from United States District Court for the Western District of Missouri - Jefferson City
Jeff P. Johnson, Asst. Atty. Gen., Jefferson City, MO, argued (Eric S. Schmidt, Atty. Gen., Amber L. Krisp, Mo. Dept. of Natural Resources, Jefferson City, MO, on the brief), for plaintiff-appellant.
John E. Bies, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., argued (Todd Kim, Asst. Atty. Gen., Michael T. Gray, U.S. Dept. of Justice, Environment and Natural Resources Div., Bryan Wilson, U.S. Dept. of the Interior, Daniel Inkelas, U.S. Army Corps of Engineers, Jacksonville, FL, on the brief), for federal defendants-appellees.
Bennett L. Johnson, Vogel Law Firm, Bismarck, ND, argued (Tami L. Norgard, Vogel Law Firm, Bismarck, ND, Drew H. Wrigley, Atty. Gen., Jennifer L. Verleger, Asst. Atty. Gen., State of North Dakota, Bismarck, ND, on the brief), for defendant-appellee Garrison Diversion Conservancy Dist. and intervenor defendant-appellant State of North Dakota.
Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
In September 2018, the United States Department of the Interior, Bureau of Reclamation ("the Bureau") decided to move forward with a water project in North Dakota. The State of Missouri challenged the decision under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4347, and the Water Supply Act of 1958 ("Water Supply Act"), 43 U.S.C. § 390b. The district court2 granted summary judgment in favor of the Defendants. We affirm.
The project at the heart of this dispute is the Central North Dakota Water Supply Project. Under the proposed action, the Bureau would enter into a contract with Garrison Diversion Conservancy District to provide Garrison Diversion with access to a certain amount of water. Garrison Diversion is a North Dakota "governmental agency, body politic and corporate." N.D. Cent. Code § 61-24-02. It was established by the state's legislature to make Missouri River water available for various uses in North Dakota. See id. § 61-24-01.
Consistent with this mandate, Garrison Diversion is developing water supply projects in central and eastern North Dakota. Although the main project at issue in this appeal is the Central North Dakota Project, it is not the only project we need to discuss. The state-sponsored Red River Valley Water Supply Project is also relevant. We begin first with details about the Central North Dakota Project before turning to the Red River Valley Project. And lastly, we discuss the relevant portions of the Bureau's findings from the administrative record.
The Central North Dakota Project began with Garrison Diversion's request for twenty cubic feet per second ("cfs") of water from the McClusky Canal (approximately 14,489 acre-feet of water per year). McClusky Canal is in central North Dakota. It originates at Lake Audubon, which is fed by water pumped from Lake Sakakawea. Lake Sakakawea is a Missouri River mainstem impoundment constructed by a dam on the river, and it is regulated by the Army Corps of Engineers (the "Corps"). Lake Audubon is a "sub-impoundment" of Lake Sakakawea and is regulated by the Bureau.
Under the proposed action, Garrison Diversion would divert water from the McClusky Canal to the Red River Valley Project's main transmission pipeline. The required facilities include an intake on the McClusky Canal, a "wet well," a pump station, and a six-mile pipeline connecting the canal with the Red River Valley Project.3 To facilitate Garrison Diversion's request, the Bureau proposed: (1) entering into a forty-year water service contract with Garrison Diversion for twenty cfs of water; (2) approving authorization of the Pick-Sloan Missouri Basin Program preference power contract with Garrison Diversion; and (3) issuing the necessary permits for Garrison Diversion's use of the Bureau's land, including a twenty-five-year special use permit for the pipeline and other required facilities.
Now we turn to the Red River Valley Project. This project began as a statutorily authorized federal project. See Dakota Water Resources Act of 2000, Pub. L. 106-554, § 608(b), 114 Stat. 2763A-281, 287. Pursuant to the statute's requirements, the Bureau completed an environmental impact statement ("EIS") for the project in 2007, but the necessary federal authorization was never finalized. Instead, North Dakota decided to independently pursue a separate, but similar, state-sponsored project under the same name. One change was that the project increased in volume from 122 cfs to 165 cfs.
The state-sponsored project is planned and coordinated by Garrison Diversion, and the Bureau maintains that it will be completed without the approval or involvement of the Bureau. Its purpose is to provide water from the Missouri River to central and eastern North Dakota during times of water scarcity. The main transmission pipeline will travel west to east and transport water across the continental divide from the Missouri River Basin into the Hudson Bay Basin. This is known as an "inter-basin transfer," and the administrative record suggests such a transfer could implicate the 1909 Boundary Waters Treaty between the United States and Canada.
The Bureau issued the Environmental Assessment for the Central North Dakota Project in July 2018 and a Finding of No Significant Impact in September 2018. Two parts of the Environmental Assessment that are particularly relevant are the Bureau's analysis of Missouri River depletions and its explanation for why the Central North Dakota Project does not involve an inter-basin transfer. We first provide a brief overview of the Environmental Assessment findings before discussing the Bureau's Finding of No Significant Impact.
For its Missouri River depletions analysis, the Bureau determined it was "sufficient and appropriate" to rely on a 2013 study conducted for the Northwest Area Water Supply Project and an accompanying supplemental EIS. According to the Bureau, the final cumulative effects report for the Northwest Area Project was "the most recent and comprehensive analysis of its kind within the Missouri River Basin and included historic, existing and reasonably foreseeable future actions . . . ." In addition, the Bureau updated the reasonably foreseeable actions list by including the state-sponsored Red River Valley Project and taking into account the project's increase in volume from 122 cfs to 165 cfs.
The Bureau found "the net change in the volume of . . . future action depletions is nearly zero." Thus, the Bureau determined it was "reasonable to conclude that the potential impacts of the [Central North Dakota Project] on the Missouri River Mainstem System would be very similar to the potential impacts disclosed in the [Northwest Area Project Supplemental EIS] and those impacts were negligible." The Bureau also observed the Central North Dakota Project would increase annual depletions of the Missouri River above Garrison Dam by about one-fifth of one percent and "the effects on reservoir levels and dam releases would likely not be measurable."
The Bureau has maintained that the Central North Dakota Project will not have "inter-basin impacts." To support this conclusion, the Bureau relied on two primary features of the project. The first feature is that Garrison Diversion requested the water for use only within the Missouri River Basin. Indeed, the proposed contract between the Bureau and Garrison Diversion will include a condition to that effect. The second feature is its proposed infrastructure. Technology at the canal intake pump station will adjust the withdrawal rate to match the delivery need within the basin, and "flow meter[s] and control valve[s]" will be used "to monitor and regulate the flow leaving the" Red River Valley pipeline. According to the Bureau, this technology ensures no more water will be withdrawn from the canal than is actually used in the Missouri River Basin.
After completing the Environmental Assessment, the Bureau issued a Finding of No Significant Impact, considering the project's context and intensity consistent with the factor-based analysis in 40 C.F.R. § 1508.27 (2018). The Bureau stated the Central North Dakota Project had "no predicted long-term effects" and "no significant effects on public health or safety." Construction of the facilities at the McClusky Canal would permanently impact approximately 0.20 acres of land, and construction impacts from the six-mile pipeline would be temporary. In addition, the Bureau did not identify effects on the quality of the human environment that could be "considered highly controversial." Nor were there effects on the human environment that could be considered "highly uncertain or to involve unique or unknown risks."
The Bureau decided to move forward with the Central North Dakota Project and enter into a water service contract with Garrison Diversion. The State of Missouri sued various federal and state entities and...
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