A Wash. Non-profit Corp.. v. United States Bureau Of Reclamation

• Citation: 715 F.Supp.2d 1185
• Decision Date: 21 May 2010
• Docket Number: No. CV-09-160-RHW.,CV-09-160-RHW.
• Parties: CENTER FOR ENVIRONMENTAL LAW AND POLICY, a Washington non-profit corporation and Columbia Riverkeeper, a Washington non-profit corporation, Plaintiffs, v. UNITED STATES BUREAU OF RECLAMATION, an agency of the Department of the Interior, and Michael L. Connor, in his official capacity as Commissioner of the Bureau of Reclamation, Defendants.
• Court: U.S. District Court — Eastern District of Washington

715 F.Supp.2d 1185

CENTER FOR ENVIRONMENTAL LAW AND POLICY, a Washington non-profit corporation and Columbia Riverkeeper, a Washington non-profit corporation, Plaintiffs,
v.
UNITED STATES BUREAU OF RECLAMATION, an agency of the Department of the Interior, and Michael L. Connor, in his official capacity as Commissioner of the Bureau of Reclamation, Defendants.

No. CV-09-160-RHW.

United States District Court,E.D. Washington.

May 21, 2010.

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Christopher Winter, Cascade Resources Advocacy Group, Portland, OR, Lauren Goldberg, Columbia Riverkeeper, Hood River, OR, for Plaintiffs.

Charles R. Shockey, US Department of Justice, Sacramento, CA, for Defendants.

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENTROBERT H. WHALEY, District Judge.

Before the Court are Plaintiffs' Motion for Summary Judgment (Ct. Rec. 68) and Defendants' Cross Motion for Summary Judgment (Ct. Rec. 82). A hearing on these motions was held on April 14, 2010. For the reasons set forth below, the Court grants Defendants' motion and denies Plaintiffs'.

I. BACKGROUND

The Center for Environmental Law and Policy and Columbia Riverkeeper sued the United States Bureau of Reclamation and Michael L. Connor for violations of the National Environmental Policy Act (“NEPA”). Plaintiffs allege that Defendants failed to release a timely Environmental Assessment (“EA”) or Environmental Impact Statement (“EIS”) on the Lake Roosevelt Drawdown Project, contrary to NEPA requirements. After this action began, Defendants completed an EA and issued a Finding of No Significant Impact (“FONSI”). Plaintiffs complain that these measures were both untimely and inadequate. Plaintiffs request a declaratory judgment that Defendants violated NEPA, and also request injunctive relief to prevent Defendants from taking action related to the Project.

This case arises out of Defendant Bureau of Reclamation's Columbia Basin Project (“CBP”), which annually diverts 2.65 million acre-feet of water from the Columbia River for irrigation. The CBP also includes the Grand Coulee Dam, which generates hydroelectric power from the flow of the Columbia River. Defendant has currently completed the first half of the CBP, and now seeks to engage in a phased development of the second half. This includes the project at issue here: the Lake Roosevelt Incremental Storage Releases Project, also known as the Lake Roosevelt Drawdown Project. This project seeks to annually divert tens of thousands of acre-feet of water from Lake Roosevelt, the reservoir formed behind Grand Coulee Dam, for irrigation use in the Odessa Subarea. The Project would decrease the level of Lake Roosevelt by one foot in most years, and by 1.8 feet in drought years (approximately once every 26 years).

In 2004, the Bureau of Reclamation entered into a Memorandum of Understanding (“MOU”) with Washington State and the three irrigation districts served by the CBP (one of whom intervenes here on behalf of Defendants). The MOU details the parties' plans to work together to increase the availability of Columbia River water for various uses through projects

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including the Lake Roosevelt Drawdown Project. The MOU also acknowledges that the Bureau of Reclamation's action were subject to compliance with Reclamation law, including NEPA.

Two years later, Washington State enacted legislation directing the Department of Ecology to “aggressively pursue the development of instream and out-of-stream [water] uses,” including releases of water from Lake Roosevelt. RCW 90.90.005. In response, Ecology developed a policy advisory group composed of various tribal and local governments, federal and state agencies, and stakeholder groups. In 2007, Washington State signed Water Resources Management Agreements with the Confederated Tribes of the Colville Reservation and the Spokane Tribe of Indians, in which the state “agreed to provide annual payments to the tribes to mitigate potential damage to fish and wildlife, recreation and cultural activities resulting from the release of water from Lake Roosevelt, and for economic development investments to benefit the local economy.” (Final EA, LR-A000023).

In 2005, the Bureau of Reclamation submitted a water rights application to the Department of Ecology for the Lake Roosevelt Drawdown Project. The Bureau later withdrew this application and submitted amended applications in 2008. Ecology issued two secondary water use permits for the Lake Roosevelt Project on December 1, 2008. Plaintiffs filed this lawsuit the same day. Defendants thereafter released a draft EA on March 20, 2009, and a final EA and FONSI on June 12, 2009, and Plaintiffs amended their Complaint accordingly. Previously, the Court permitted Vision for Our Future, an environmental organization located within the jurisdiction of the Confederated Tribes of the Colville Indian Reservation, to intervene as a Plaintiff, and East Columbia Basin Irrigation District and the Washington State Department of Ecology to intervene as Defendants.

II. APA STANDARD OF REVIEW

The parties agree that the Court's standard of review is set by the Administrative Procedure Act (“APA”), 5 U.S.C. § 706. Under the APA, the Court must determine whether the Board's decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” If the Court can “examine the relevant data and articulate a rational connection between the facts found and the choice made,” Defendants' decision should be affirmed. Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1032 (9th Cir.2008) (quoting Pub. Citizen v. DOT, 316 F.3d 1002, 1020 (2003)).

III. DISCUSSION

Plaintiffs make two basic arguments: that Defendants violated NEPA by beginning to implement the Project before complying with NEPA, and that the EA Defendants later prepared was flawed in three respects.

A. Timing of the EA

Plaintiffs first argue that Defendants violated NEPA's strict timing requirements by beginning implementation of the Project before preparing NEPA documentation and soliciting public comments. Plaintiffs cite NEPA's implementing rules, providing that “[u]ntil an agency issues a record of decision ... no action concerning the proposal shall be taken which would: (1) Have an adverse environmental impact; or (2) Limit the choice of reasonable alternatives.” 40 C.F.R. § 1506.1(a); see also Metcalf v. Daley, 214 F.3d 1135, 1142 (9th Cir.2000) (“An assessment must be prepared early enough so that it can serve practically as an important contribution to the decisionmaking process and will not be

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used to rationalize or justify decisions already made.”) (internal quotations and citations omitted).

Plaintiffs argue that Defendants impermissibly limited the range of reasonable alternatives by (1) entering into the MOU before engaging in the NEPA process; and (2) seeking and obtaining water rights required to implement the Project, and only later approving the Project through an EA and FONSI. According to Plaintiffs, these “water rights committed the agency to a course of action that precluded alternatives to achieve the goals of the Project, most notably employing water conservation alternatives to supply new uses and/or providing more water for instream flows.” (Plaintiffs' Memorandum in Support, Ct. Rec. 69, p. 9). Plaintiffs compare these facts to those of several cases in which the Ninth Circuit held that agencies violated NEPA by irretrievably committing themselves to courses of action before engaging in the NEPA process. See, e.g., Pit River Tribe v. U.S. Forest Service, 469 F.3d 768, 782-83 (9th Cir.2006) (finding that leases and lease extensions were an irreversible commitment where the leases did not reserve to the agencies “an absolute right to deny exploitation of those resources,” and preserved only the agencies' rights to limit development when not inconsistent with the lease rights); Metcalf, 214 F.3d at 1143-44 (agency violated NEPA by committing to a whaling proposal in writing and only later preparing a “slanted” EA); Conner v. Burford, 848 F.2d 1441, 1451 (agency violated NEPA by failing to prepare NEPA documents before selling leases that relinquished “the ability to prohibit potentially significant inroads on the environment”).

Defendants respond by first pointing out that the EA and FONSI at issue here were not created in a vacuum, but instead relied heavily on and incorporated Environmental Impact Statements prepared by the Washington Department of Ecology in 2007 and 2008. Defendants thus argue that the EA at issue here reflects “the ongoing cooperative work being undertaken by the State and Federal Government agencies.” (Defendants' Memorandum in Support, Ct. Rec. 83, pp. 10-11).

Defendants next argue that the MOU did not constitute an irreversible commitment. Defendants cite the language of the MOU itself, which sets forth the parties' commitment only to “use their best efforts in working collaboratively and in good faith to secure economic and environmental benefits from improved water management both within the federal Project and along the mainstem of the Columbia River by advancing the actions described in this MOU.” (LR-B004239, § 3). Defendants also point out that the MOU expressly specified that it created no legal obligations binding any of the parties, and that no existing water supplies or water rights would be impaired as a result of the MOU. Defendants thus distinguish the MOU from the agreements at issue in Metcalf, where an agency would have incurred liability for breaching a contract entered into before preparing an EA. 214 F.3d at 1144.

Defendants also dispute Plaintiffs' argument regarding the water rights permits, arguing that “mere possession of a water right does not trigger any action because the holder cannot perfect that right until that water has been applied to a recognized beneficial use.” (Ct. Rec. 83, p. 14) (citing RCW 90.03.320). Defendants concede that if they had...