A federal appeals court panel on Aug. 19 seconded a lower court opinion that said the federal Bureau of Reclamation had adequately considered the effects on the environment when permitting the 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 fish.
“As always, our review under the National Environmental Policy Act is limited to determining whether the agency, in this case the United States Bureau of Reclamation (“Reclamation”), took a ‘hard look’ and genuinely scrutinized the environmental consequences of its proposed action,” according to an Aug. 19 opinion penned by Judge M. Margaret McKeown. The Ninth Circuit panel that considered the appeal included McKeown, Mary M. Schroeder and Consuelo M. Callahan, all circuit judges.
“Our own close look at the record persuades us that Reclamation was keenly aware of, and appropriately discharged, this duty when it prepared the drawdown project analysis,” the opinion said. As a result an earlier U.S. District Court upholding the bureau decision was affirmed.
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 a NEPA environmental impact statement for the project. Because a Bureau environmental assessment resulted in a finding of no significant impact the agency did not develop an EIS.
The complaint asked 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.
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 said the Bureau failed to adequately consider cumulative and indirect impacts associated with the new water diversions as required by NEPA.
The groups had also argued that the drawdown’s environmental impacts would be exacerbated by the products of the Bureau’s Odessa Subarea Special Study, which proposes to take additional amounts of water out of the Columbia River for irrigation.
“CELP’s most significant challenge on appeal is to the cumulative effects analysis in the EA. Although we agree with CELP that the portion of the EA exclusively devoted to cumulative effects is conclusory and unenlightening, reading the EA as a whole reveals that Reclamation understood and accounted for the cumulative effects of past projects,” the opinion says.
“The EA does not discuss the cumulative impact of one of the reasonably foreseeable projects known as the Odessa Subarea Special Study. Significantly, however, Reclamation has committed itself to scrutinizing the cumulative effects of the Special Study with the drawdown project before implementing any action resulting from the Special Study.
“Under our precedents and the circumstances presented here, this procedure does not violate NEPA,” the opinion says. “Our review reveals no other deficiencies in the substance of the EA, and although Reclamation took several steps toward implementing the drawdown project before drafting the EA, it scrupulously adhered to NEPA’s timing requirements. We therefore affirm the district court.”
The conservation groups had argued that the Bureau’s EA was “untimely” under NEPA provisions because it was completed after the agency had applied to WDOE for, and received, two secondary use water permits that would be needed to implement the additional withdrawals.
But the opinion said that the Bureau satisfied NEPA’s timeliness requirement “because it undertook no irreversible commitments vis-à-vis the drawdown before the EA was completed.
“Although CELP argues that the agency irretrievably committed water from the lake to the drawdown project when it procured water use permits from Ecology in December 2008, simply obtaining permits was not tantamount to an irreversible commitment,” the opinion said.
Under the Lake Roosevelt project 25,000 acre-feet would be made 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. The additional 82,500 acre-feet of water releases were estimated to draw down the reservoir by an additional foot.
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
The conservation groups have argued that the Columbia River cannot afford additional withdrawals.
“We’re disappointed in the Ninth Circuit’s decision, obviously,” said Rachael Paschal Osborn, executive director for CELP. “The Columbia River is in dire straits. This opinion does not deny that fact or in any way rule that the river is healthy and everything is okay. It simply states that the Bureau’s environmental analysis was sufficient.”
“The Ninth Circuit did rule that the environmental analysis associated with the Odessa project must consider impacts that were not considered in the Lake Roosevelt Drawdown analysis,” according to a CELP response to the new opinion sent to media.
CELP and Columbia Riverkeeper brought the case to challenge the Bureau’s failure to consider the adverse impacts of climate change on in-stream flows through loss of snowpack and glaciers and change in timing of flows that will make it more difficult to ensure fish protection. The groups were also said additional drawdown of Lake Roosevelt in the summer season would further expose slag and toxic sediments lying on the bed of the reservoir. That slag tumbled down from discharges from a Trail, British Columbia metals smelter upstream.
“The Bureau’s continuing efforts to take more water from the Columbia River to expand irrigation contradict endangered salmon recovery that requires sufficient in-stream flows to move juvenile salmon downstream, including spills at dams along the Columbia and Snake Rivers, as well as detailed study of flow augmentation and changes in reservoirs operations,” the CELP response says.