Oral argument in federal appeals court in Seattle Tuesday focused on whether the U.S. Bureau of Reclamation properly considered “cumulative” and “indirect” effects on the environment in permitting the additional drawdown of central Washington’s Lake Roosevelt by as much as 132,500 acre-feet annually to feed irrigation in the Odessa Subarea and industries and cities, and to augment in-stream flows for salmon and other fish.
The lawsuit was filed in December 2008 by Center for Environmental Law & Policy and Columbia RiverKeeper in U.S. District Court in Seattle. It targeted the Lake Roosevelt Incremental Storage Release project developed by the state of Washington's Department of Ecology in collaboration with the Bureau. The groups' complaint said the Bureau broke federal environmental and water laws by failing to prepare an environmental impact statement for the project.
The complaint asks the district court to declare illegal a memorandum of understanding signed by the Bureau, state of Washington and three irrigation districts that committed the federal agency to helping develop water supply projects.
Under the program 25,000 acre-feet would be available annually for additional municipal and industrial use, 30,000 acre-feet would be annually available to individuals in the Odessa Subarea who irrigate with a valid state groundwater rights and 27,500 acre-feet would be available annually to augment in-stream flows for salmon and steelhead and other fishes. In a drought year, releases would total 132,500 acre-feet. Lake Roosevelt, was created with construction of Grand Coulee Dam on the mid-Columbia River. The Bureau operates Grand Coulee Dam.
The Bureau decided, based on its final environmental analysis, that implementation of the project, would have no significant impact on the quality of the human environment or the natural resources in the affected area.
U.S. District Court Judge Robert H. Whaley in a May 2, 2010, order ruled that the Bureau “complied with NEPA’s timing requirement by preparing a final EA and FONSI before the ‘go-no-go’ stage of the Lake Roosevelt Drawdown Project’s development. The Court further finds that the final EA and FONSI adequately considered alternatives to the project, as well as the project’s cumulative and impacts.”
CELP and RiverKeepers then asked the U.S. Court of Appeals for the Ninth Circuit to overturn Whaley’s decision and require that the lower court order a remand of the Bureau decision on the drawdown project.
The conservation organizations say the Bureau failed to consider cumulative and indirect impacts associated with the new water diversions as required by the National Environmental Policy Act.
The groups’ attorney Sean Malone on Tuesday told the three member appellate panel that the drawdown project is effectively the first phase of the expansion of the Columbia Basin Project with a goal of replacing declining groundwater for irrigation in the Odessa Subarea with surface water from the Columbia River.
He said the expansion of a water pipe, called the Weber Siphon, undertaken by the Bureau will create a conduit 10 times the size of what is needed for the Lake Roosevelt Drawdown. But, Malone said, but the Bureau failed to consider the environmental impacts associated with future water diversions that the increased capacity would enable. Those amount to indirect effects that that need to be accounted for through NEPA processes.
“NEPA requires that you consider these indirect effects,” Malone told the panel comprised of Judges Mary Murphy Schroeder, Margaret M. McKeown and Consuelo Maria Callahan. He said expansions, such as those being considered in the Odessa Subarea Special Study Draft Environmental Impact Statement released late in 2010 by the Bureau, are “reasonably foreseeable.”
Federal attorneys argue that the EA properly considered possible cumulative effects, ie. analyzed the effect the planned additional drawdown of Roosevelt by about a foot in an average year in context with habitat changes already existing because of dam operations, logging, water diversions for irrigated agriculture, human population growth and other factors.
The consideration of future diversion developments in the drawdown EA process was impossible and in appropriate, according to attorneys for the Bureau.
“The possibility of additional diversions of water for irrigation purposes beyond the 30,000 AF from Lake Roosevelt approved by this Project is too speculative to require consideration as an indirect impact of this Project,” according to a federal brief filed Feb. 2. “The mere fact that the expanded Weber Siphons are large enough to accommodate additional water deliveries to the Odessa Subarea does not render such future deliveries less speculative, because increased deliveries would require expansion of the East Low Canal, a major and costly project the prospects of which are highly uncertain.”
“This small decision doesn’t drive anything in that process,” Justice Department attorney David Shilton told the panel.
The East Low Canal expansion is one of the alternatives being considered in the Odessa Subarea Special Study process. It is investigating the possibility of continuing phased development of the Columbia Basin Project to deliver surface water from the project to lands currently using groundwater in the Odessa Subarea. CBP is located in east central Washington and now irrigates about 671,000 acres, or 65 percent of the 1,029,000 acres originally authorized by Congress in 1943.
The Odessa Subarea is east of and uphill from the existing East Low Canal.