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Programmatic EIS Not Required for Water Reallocation, Court Rules

The Interior Department did not need to prepare a programmatic environmental impact statement before proceeding with water transfers in western Nevada, the Ninth U.S. Circuit Court of Appeals has ruled. The court further held that the EIS which the U.S. Fish & Wildlife Service did complete adequately assessed cumulative impacts to groundwater and farming. Writing for the unanimous three-judge panel of the Ninth Circuit, Judge Richard Paez said that the court should not "fly-speck" the work of the Fish & Wildlife Service and argue that the agency could have done things differently. "As with the programmatic EIS discussed above, if we were preparing the [final] EIS, we might insist on additional detail," Paez wrote. "That is not our role, of course. Rather we review the legal sufficiency of the [final] EIS." And, the court held, the document was legally adequate. At issue in the case is use of the Truckee and Carson rivers, which has been the subject of political and legal contention for about 90 years. Indians, farmers, cities, utilities and the federal government have all fought over the water rights. In 1990, Congress passed the Truckee-Carson Pyramid Lake Water Rights Settlement Act to address comprehensively the loss of wetlands in western Nevada, the health of Pyramid Lake on the Paiute Tribe reservation north of Reno, and the endangered cui-ui fish that lives in Pyramid Lake. Essentially, the Settlement Act calls for providing more water to the lake and to wetlands in Nevada's Lahontan Valley that have been shrinking for many years. The Fish & Wildlife Service studied four strategies for acquiring water rights and a "no action" alternative. The agency settled on a plan to purchase 55,000 acre-feet of water from willing sellers in the Carson Divide, which the agency would add to already-acquired water rights from other sources. In September 1996, the Fish & Wildlife Service published a final EIS on water rights acquisition for Lahontan Valley wetlands in Churchill County, Nevada. Churchill County and the City of Fallon, Nevada, sued, arguing that the federal agency violated the National Environmental Policy Act. Federal District Judge Edward Reed initially ruled that the county and city lacked standing to file the suit, but the Ninth Circuit reversed that decision in Churchill County v. Babbitt, 150 F.3d 1972, amended by 158 F.3d 491 (see CP&DR Legal Digest, December 1998). The case then went back to Reed, who ruled that the Fish & Wildlife Service's approach to environmental review complied with NEPA. This time, the Ninth Circuit upheld the lower court. In his opinion, Paez recounted the history of the 100-year-old Newlands Reclamation Project, which diverted water from the Truckee and Carson rivers that had fed Pyramid Lake and tens of thousands of acres of Lahontan Valley wetlands. The federal government's dams and canals supplied the water to farmers. Over the years, the level of Pyramid Lake dropped about 40 feet, about 85% of the wetlands dried up and water quality in the remaining wetlands deteriorated. The Settlement Act was intended to reverse decades of environmental damage. Under its selected alternative for implementing the Settlement Act, the Fish & Wildlife Service was to acquire 55,000 acre feet of water rights from the Carson River, continue with acquisition of another 20,000 acre-feet, lease more water when available, purchase water rights upriver from Lahontan Reservoir, use treated wastewater as available, use water conserved by a U.S. Navy base, and pump groundwater near the wetlands. In all, the plan was intended to provide 125,000 acre-feet of additional water for environmental purposes. Churchill County and the City of Fallon argued that the Fish & Wildlife Service must prepare a programmatic EIS on the "cumulative and synergist impacts" of the Settlement Act's interrelated provisions. Churchill County and Fallon argued that the Fish & Wildlife Service was segmenting parts of the same program — such as the purchase of 55,000 acre-feet of water — so that the cumulative impacts would not be fully addressed. This would be a violation of NEPA. The Ninth Circuit agreed that "it would seem quite reasonable … for the responsible agencies to analyze the actions required under the Settlement Act and their cumulative impacts in one document." But, its failure to prepare such a document did not mean that the Fish & Wildlife Service acted inappropriately, the court held. "Although we can see that the Service's decision was a close call, the record does not support a conclusion that the agency's goal was to minimize the possible cumulative environmental impacts by segmenting the wetlands water rights acquisition program from the analysis of other foreseeable actions," Judge Paez wrote. "We cannot, as Plaintiffs may wish, sanction the use of NEPA's EIS requirements to challenge the policy goals served by the Settlement Act. … We agree with the district court that the Service took a ‘hard look' and that its decision not to proceed with a programmatic EIS was not arbitrary. The county and city also argued that the EIS did not adequately address the cumulative impacts, did not study impacts to groundwater and did not examine a reasonable range of alternatives. Both the county and the city were concerned that the plan would decrease water available for domestic and agricultural uses, especially if the diversions lowered water tables. But the appellate panel upheld the EIS as adequate. The document contained 15 subsections on 15 different parts of the overall water plan and summarized the cumulative impacts of the actions. The document also made clear that agricultural interests would suffer. And, the court ruled, the Fish & Wildlife Service's use of groundwater modeling allowed the agency to make an informed decision. The Case: Churchill County v. Norton, No. 00-15967, 01 C.D.O.S. 10468. Filed December 19, 2001. The Lawyers For Churchill County: Antonio Rossmann, (415) 861-1401. For Norton, Kathryn Kovacs, U.S. Department of Justice Environmental & Natural Resources Divisions, (202) 514-2000.