Environmental review of western water project operations: where NEPA has not applied, will it now protect farmers from fish?

Author:Benson, Reed D.
Position:National Environmental Policy Act
 
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The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states; the storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act (NEPA). This article analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau should conduct NEPA reviews for long-term project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wanger's recent decisions applying NEPA to the Bureau's efforts to comply with the Endangered Species Act (ESA) in operating the Central Valley Project. The article concludes that the Bureau should use NEPA as a tool for making long-term decisions on project operations, but that courts should not insist on NEPA compliance that would interfere with efforts to protect endangered species.

  1. INTRODUCTION II. LEGAL BASICS A. Reclamation Project Operations B. NEPA Requirements for Environmental Impact Review III. NEPA AND THE BUREAU'S PROJECT OPERATIONS A. The Bureau's NEPA Rules, Procedures, and Policy B. USBR's Practice in Implementing NEPA C. Cases Addressing NEPA Requirements and Reclamation Project Operations D. Are the Cases Correct in Exempting "Routine" Project Operations from NEPA? E. If NEPA Review is Not Required for Operations, Should the Bureau do it Anyway? IV. NEPA AND ESA COMPLIANCE AT BUREAU PROJECTS A. Endangered Species Act Section 7 Requirements for Federal Agency Actions B. The Bureau's Section 7 Duties C. The CVP Controversy: Judge Wanger's Decisions Regarding NEPA and the ESA D. Criticism of Judge Wanger's Conclusions Regarding NEPA V. CONCLUSION I. INTRODUCTION

    Few federal agencies are as well known for their environmental impacts as the U.S. Bureau of Reclamation. The Bureau spent much of the 20th century building hundreds of dams across seventeen western states, (1) resulting in what Marc Reisner called "the most fateful transformation that has ever been visited on any landscape, anywhere[.]" (2) The construction and closing of these dams wiped out many magnificent places across the western United States. (3) Opposition to proposed Bureau darns has been credited With galvanizing the modern conservation movement, (4) and there is little doubt that environmental opposition helped bring an end to the era of major federal dam construction. (5)

    Today, the Bureau operates hundreds of existing dams, storing and releasing water for irrigation, hydropower, drinking water, and other human uses. (6) Operation of these dams, however, creates a variety of serious and ongoing environmental impacts throughout the West. Most notably, reservoir operations change the quantity, quality, and timing of downstream river flows, often damaging aquatic ecosystems and harming native species. (7) Indeed, a 1996 study of counties in the western United States "found that the number of ESA-listed fish species in a county correlated positively with the level of irrigated agriculture reliant on surface water in the county. In particular, the number of species depended positively on water-supply levels of the Bureau of Reclamation." (8) Where project operations have harmed species protected by the Endangered Species Act, (9) the ESA has sometimes forced the Bureau to modify its operations, generating major legal and political controversy. (10)

    Another of the nation's monumental environmental laws, however, has had virtually no impact on the Bureau's project operations. The National Environmental Policy Act (11) (NEPA) recently marked its 40th anniversary, and President Obama issued a proclamation calling it "the cornerstone of our nation's modern environmental protections." (12) NEPA's key requirement is that federal agencies prepare an Environmental Impact Statement (EIS) on their proposed actions which could significantly affect environmental quality. (13) The Bureau today conducts a significant number of environmental reviews under NEPA, covering a wide range of activities. As this article explains, however, federal courts have held--rightly or wrongly--that the Bureau's "routine" project operations do not require an EIS. Thus, despite their environmental impacts, the Bureau's decisions regarding project operations have mostly been immune from NEPA requirements to develop alternatives, involve the public, and assess environmental consequences.

    One can understand why the Bureau might be reluctant to do more environmental reviews of project operations. NEPA compliance at existing projects would require a significant investment of time and resources, and would expose the Bureau to litigation risks. These are serious drawbacks, but applying NEPA to project operations also offers potentially significant benefits. It would bring the Bureau's practices in line with prevailing law and policy regarding NEPA implementation. It would ensure that the Bureau meets its commitment to integrate environmental factors into its decisions. It would expand opportunities for public involvement, and thus, ensure that a wide range of interested groups have the chance to be informed and engaged regarding project operations. Finally, it would assist the Bureau in making long-term plans for responding to changed conditions, including those arising from climate change.

    One court has ordered the Bureau to comply with NEPA, however, in ongoing litigation over the operation of the massive Central Valley Project (CVP) in California. Recently adopted measures to protected endangered fish species, along with drought and other factors, have caused serious cutbacks in CVP water deliveries for irrigation and other purposes, provoking a major legal and political controversy. (14) In cases brought by California water users challenging the federal government's actions, U.S. District Judge Oliver Wanger has held that the Bureau violated NEPA by adopting and implementing the ESA measures without an EIS, and that water users deserve injunctive relief pending NEPA compliance. It is too soon to tell the effects of these May 2010 decisions, (15) but they potentially mean that NEPA contributes to the extinction of at least one highly imperiled species, (16) and that the "cornerstone" of US environmental law poses a burden on environmental protection and a boon to water users who seek to reduce or delay economic losses.

    This article addresses the role of NEPA regarding the Bureau's operation of existing water projects. Part II provides basic information on the Bureau's project operations and the general requirements of NEPA for federal agencies. Part III addresses the Bureau's NEPA policies and practices, analyzes relevant NEPA cases involving Bureau projects, and argues that the Bureau should conduct NEPA reviews for long-term project operations even if not required by the courts. Part IV summarizes the Bureau's obligations in operating its projects under the ESA, then describes and critiques Judge Wanger's application of NEPA to the Bureau's recent decisions regarding ESA compliance and CVP operations. The article concludes with comments on the role of these two environmental laws in relation to operation of the Bureau's water projects.

  2. LEGAL BASICS

    1. Reclamation Project Operations

      Congress launched the federal reclamation program in 1902, enacting a statute (17) that authorized the Interior Secretary to build "irrigation works for the storage, diversion, and development of waters" (18) in the western states and territories. As originally conceived, these projects would supply irrigation water to farmers who would settle on designated lands and "reclaim" them for irrigated agriculture, repaying the government's construction costs over a ten-year period. (19) From the beginning, the Bureau was to manage and operate project reservoirs, and to retain ownership and control of them even after the farmers had paid their share of project costs. (20)

      The 1902 Reclamation Act authorized projects solely for irrigation, and under that statute the Bureau got off to a rather slow start. (21) The pace of construction picked up dramatically in the 1930s, (22) in part because the reclamation program expanded to serve new purposes. By 1939, Congress had recognized that reclamation projects could serve multiple purposes, including hydropower, flood control, navigation, municipal water supply, and other "miscellaneous purposes." (23) As stated by historian Donald Pisani, "[n]ot until the 1930s, when the 'High Dam Era' gave the bureau responsibilities for providing water to cities as well as farms, did it become the most important federal agency in the West. From 1930 to 1970 the water and power provided by the bureau transformed the region[.]" (24)

      The 1902 Act and other programmatic statutes lay out general rules for the reclamation program, but each project operates within its own legal framework, including project authorizing statutes and water supply contracts. (25) The authorizing statutes specify (among other things) the purposes for which the projects are constructed and operated: for example, Congress authorized the multipurpose Washita Basin Project in Oklahoma:

      [F]or the principal purposes of storing, regulating, and furnishing water for municipal, domestic, and industrial use, and, for the irrigation of approximately twenty-six thousand acres of land and of controlling floods and, as incidents to the foregoing for the additional purposes of regulating the flow of the Washita River, providing for the preservation and propagation of fish and wildlife, and of enhancing recreational opportunities. (26) This example indicates that authorizing statutes may dictate the priorities as well as the functions of a project. The specific water supply obligations of a project are governed by contracts between the Bureau and an entity such as an irrigation district or a...

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