Home » Case Summaries » 2004 » Westlands Water District v. United States Department of the Interior

 
 

Westlands Water District v. United States Department of the Interior

 

Topics:

The Westlands Water District (Westlands) challenged restoration measures issued by the Department of Interior and the Hoopa Tribe (Interior) for the Trinity River in Northern California arguing that procedural requirements of the National Environmental Policy Act (NEPA)[1] and the Endangered Species Act (ESA)[2] had not been met. Specifically, Westlands alleged that Interior impermissibly narrowed the range of alternatives under NEPA and failed to issue a supplemental environmental impact statement (SEIS) to consider significant new information. The Ninth Circuit held that the original environmental impact statement (EIS) had considered a reasonable range of alternatives and agencies are not required to consider alternatives that are inconsistent with the ultimate policy objective. The Ninth Circuit also held that an SEIS was not required because the agency had not been presented with significant new information. Finally, the Ninth Circuit invalidated two reasonable and prudent measures (RPMs) issued by the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) as contrary to the ESA.

In 1955, Congress concluded that “surplus” water could be diverted from the Trinity River to meet Central Valley irrigation needs without harming the Trinity and Klamath fisheries and thus authorized the construction of the Trinity River Division (TRD) of the Central Valley Project (CVP). Between 1964 and 1997, nearly seventy percent of the river’s flow was diverted to the Central Valley. The completion of the TRD blocked 109 miles of upstream spawning habitat, “imposed what was essentially extreme drought conditions for more than thirty years,” and created unseasonable temperatures that caused physiological and behavioral problems for anadromous salmonids in the Trinity River system. [3]

A 1980 study by FWS determined that habitat losses in the Trinity River exceeded eighty percent and the fish population had been reduced by at least sixty percent. In response, Congress passed legislation concerning the Trinity River, notably the Trinity River Basin Fish and Wildlife Management Act[4] and the Central Valley Project Improvement Act (CVPIA).[5] The CVPIA set a minimum flow of 340,000 acre-feet per year and mandated completion of a Trinity River Flow Evaluation Study (TRFES). The study, which was finished in 1999, recommended a return to flows designed to recreate pre-construction habitat. In 1999, a group of federal, state, and tribal agencies issued a draft EIS, which recommended that the TRFES flows be implemented.

The following year, NMFS and FWS issued Biological Opinions (BiOps) in accordance with ESA consultation requirements.[6] The NMFS’s BiOp included a non-discretionary RPM requiring the auxiliary bypass outlets on Trinity Dam to be used to reduce Sacramento River temperatures “as needed,”[7] and another RPM that required the flow regimes be implemented “as soon as possible.”[8] FWS issued a BiOp requiring elimination of excessive upstream salt migration in the Sacramento Delta between February and June due to lower water flows in the Sacramento River as a result of decreased Trinity River water diversion.

The district court allowed the Yurok tribe to intervene on behalf of Interior, and several water and utility districts to intervene on behalf of Westlands. The district court enjoined implementation of the recommended flow regimes as well as the two RPMs, mandated that non-flow restoration measures be implemented, and ordered Interior to issue an SEIS to discuss issues that were inadequately addressed in the original EIS. The Ninth Circuit reviewed the grant of summary judgment regarding the EIS’s compliance with NEPA and the ESA de novo. The court reviewed NEPA and ESA compliance under the arbitrary and capricious standard.

The first broad issue addressed by the court was compliance with NEPA. NEPA implementing regulations require every EIS to consider the environmental consequences of the proposed action as well as reasonable alternatives to the action.[9] The court noted that the analysis of the range of alternatives, determined by the project’s purpose, is “the heart of the environmental impact statement,”[10] and its analysis must begin by determining whether the statement of purpose and need was reasonable. The court also noted that coordination between the implementing statute and an agency’s statement of purpose and need can “serve as a guide by which to determine the reasonableness of [the] objectives.”[11]

The district court determined that the agencies had improperly narrowed the geographic scope of the EIS statement of purpose and need by focusing solely on fishery rehabilitation in the mainstem of the Trinity River despite congressional intent to rehabilitate the entire river basin below Lewiston Dam. The Ninth Circuit held that, although the statement of purpose and need did not precisely duplicate the geographic scope of the statutes, it was not arbitrary and capricious. The court pointed to scientific evidence suggesting that the vast majority of propagation occurs on the mainstem and “[r]estoring the fishery in the mainstem is a central, primary part of restoring the fishery in the basin as a whole.”[12] In light of the importance of mainstem rehabilitation to basin-wide recovery, the court held that the agencies had acted within their discretion.

The court also addressed whether the statement of purpose and need was impermissibly narrow with regard to consideration of non-flow measures. The court held that the statement of purpose and need was not so narrow that it limited consideration of non-flow measures for three reasons: 1) the court did not find any language in the statement of purpose and need that limited consideration of such measures; 2) the agencies had discretion to determine that habitat improvements would best rehabilitate the fishery; and 3) the agencies had in fact considered several non-flow measures. Thus, the Ninth Circuit held that the scope of the EIS statement of purpose and need was reasonable.

Next the court discussed the range of alternatives analyzed in the EIS. The court noted that an EIS must “[r]igorously explore . . . all reasonable alternatives,”[13] but the “range of alternatives that must be considered in the EIS need not extend beyond those reasonably related to the purposes of the project.”[14] The court noted that the range of alternatives is reviewed under the “rule of reason,” which does not require consideration of infinite alternatives, but rather merely reasonable alternatives.[15]

The EIS evaluated six alternatives and determined that four met the purposes and needs of the project. The court noted that the primary difference between these alternatives was the volume of water discharged into the Trinity River. Westlands argued that the EIS failed to consider non-flow alternatives, such as increased hatchery production and predator control, which would have permitted increased yearly irrigation diversions. The court dismissed this argument because the record showed that non-flow measures were considered as part of each alternative. Westlands also argued that the EIS should have considered integration of non-flow alternatives thereby allowing more water diversion. The court rejected this argument because the Mechanical Restoration Alternative would have achieved that end by imposing aggressive non-flow measures while maintaining the minimum flow set in the CVPIA.[16]

The court noted that agencies are not required to analyze every possible permutation, but rather are required only to select alternatives that encourage “informed decision-making and informed public participation.”[17] The court further pointed out that the EIS responded to comments regarding non-flow measures. Thus, the Ninth Circuit held that the EIS considered a reasonable range of alternatives and satisfied the NEPA hurdle.

The second broad issue addressed by the court dealt with the district court ruling requiring an SEIS to address new information presented by several RPMs and the impact of the California energy crisis. The court noted that an SEIS is only required when a project will significantly impact the environment in a manner that has not been considered. In the NMFS BiOp, one RPM required compliance with temperature requirements in the Sacramento and Trinity Rivers including use of bypass outlets at Trinity Dam when necessary. The district court held that the EIS did not adequately address the demands of the RPM, particularly its impact on power generation.

The Ninth Circuit disagreed with the lower court’s assessment, pointing to EIS language stating that use of the bypass outlets would not have a significant impact on Sacramento River temperatures or on chinook salmon mortality, but that use of the bypass outlets would minimally diminish power generation capacity in California. The court held that because the EIS considered the impacts of using the auxiliary outlets on temperature and power generation, and because use of the outlets has always been an option for preventing temperature fluxes, the RPM did not present significant new information requiring an SEIS. The court also held that an SEIS was not necessary to discuss power generation issues, despite the advent of the California energy crisis, because the average loss of .041% power generation per year based on adoption of the preferred alternative was insignificant.

Finally, the court addressed potential ESA violations. First, the court noted that RPM’s may only result in minor changes to the proposed plan. The FWS RPM required prevention of salt intrusion in the Delta due to decreased freshwater inflows based on adoption of the preferred alternative. The court held that this non-discretionary RPM was not a minor change and that “[r]edirecting flows in accordance with [it] will affect wildlife . . . and will likely have broad system-wide effects in the CVP.”[18] Accordingly, the court affirmed the district court ruling setting aside this RPM. Likewise, the Ninth Circuit affirmed the district court’s invalidation of NMFS’s second RPM requiring immediate implementation of the flow regime because it altered the appropriate timing of the action thereby violating ESA regulations.[19]

The Ninth Circuit held that the EIS considered a reasonable range of alternatives, and that an SEIS was not required to discuss the effects of the California energy crisis and use of the bypass outlets to mitigate Sacramento River temperature fluxes. The Ninth Circuit held that the mitigation of saltwater intrusion in the Delta constituted a major change to the proposed plan and was therefore invalid under the ESA. Finally, the Ninth Circuit set aside the RPM requiring immediate implementation of the flow regime because it violated ESA timing regulations.


[1] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370e (2000).

[2] Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000).

[3] Westlands Water Dist. v. United States Dep’t of Interior (Westlands), 376 F.3d 853, 862 (9th Cir. 2004).

[4] Trinity River Basin Fish and Wildlife Management Act, Pub. L. No. 98-541, 98 Stat. 2721 (1984).

[5] Central Valley Project Improvement Act, Pub. L. No. 102-575, 106 Stat. 4714 (1992).

[6] 16 U.S.C. § 1536(b)(4)(C)(i)-(ii) (2000).

[7] Westlands, 376 F.3d at 874.

[8] Id. at 876.

[9] 40 C.F.R. § 1502.14 (2004).

[10] Id.

[11] Westlands, 376 F.3d at 866.

[12] Id. at 867.

[13] 40 C.F.R. § 1502.14(a) (2004).

[14] Laguna Greenbelt, Inc. v. United States Dep’t of Transp., 42 F.3d 517, 524 (9th Cir. 1994).

[15] Westlands, 376 F.3d at 868 (citing Carmel-By-The-Sea v. United States Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir. 1995)).

[16] Central Valley Project Improvement Act, Pub. L. No. 102-575, § 3406(b), 106 Stat. 4600, 4714 (1992).

[17] Westlands, 376 F.3d at 872 (quoting California v. Block, 690 F.2d 753, 767 (9th Cir. 1982)).

[18] Id. at 876.

[19] Endangered Species Act Consultation Procedures, 50 C.F.R. § 402.14(i)(2) (2003).

Print this pageEmail this to someoneTweet about this on TwitterShare on Facebook

Comments are closed

Sorry, but you cannot leave a comment for this post.