Westlands Water District v. United States Department of the Interior
Docket: Nos. 03-15194, 03-15289, 03-15291 and 03-15737
Court: Court of Appeals for the Ninth Circuit; July 13, 2004; Federal Appellate Court
For forty years, water from the Trinity River has been diverted to the Sacramento River basin, negatively affecting the populations of chinook salmon, coho salmon, and steelhead trout. Congress mandated the return of some water to the Trinity River to aid in the revival of these fish populations. California municipal water agencies and power districts challenged the water redirection plan, claiming it failed to comply with the procedural requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA).
In response to cross-motions for summary judgment, the district court issued an injunction on parts of the restoration program proposed by federal agencies and the Hoopa Valley Tribe, mandated the implementation of non-flow restoration measures, and required federal agencies to supplement their Environmental Impact Statement (EIS) to address previously neglected issues.
The ruling is partially affirmed and partially reversed: the court reversed the district court's assessment of the EIS's scope and the injunction requiring supplementation to address appeal-related issues. However, it upheld the ruling that certain mitigation measures from the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) exceeded their statutory authority. Additionally, the court rejected three claims from the Plaintiffs on cross-appeal while affirming the rest of the judgment.
The Trinity River, which flows from northwest California to join the Klamath River, has historically supported rich fishery resources that were vital to local tribes and early 20th-century canneries. The Trinity River Division (TRD), part of the Central Valley Project (CVP), manages water supply for California’s Central Valley, serving numerous water districts and generating hydroelectric power. The TRD includes the Trinity Reservoir, formed by Trinity Dam, and regulates water releases through Lewiston Dam, with additional diversions to the Sacramento River Basin. The Trinity River Fish Hatchery operates nearby to mitigate the ecological damage caused by water management practices.
In 1955, Congress authorized the construction of the Trinity River Division (TRD) as part of the Central Valley Project (CVP), concluding through studies that 'surplus' water could be diverted without harming fishery resources. The law mandated the Secretary of the Interior to protect the fishery and wildlife of the Trinity River Basin. The TRD was completed in 1963 and began full operations in 1964, diverting an average of 988,000 acre-feet per year (AF/year), or 68% of the river's flow, up until 1997. The initial ten years saw even higher diversions at around 1,277,400 AF/year (88% of the flow). By the early 1970s, significant declines in salmonid populations prompted governmental studies to address the resulting fishery damage.
Salmon and steelhead require a diverse river environment for their life stages, relying on specific habitats for spawning, incubation, and juvenile growth. The TRD's construction disrupted the natural dynamics of the Trinity River, which previously supported varied temperatures and flow patterns essential for fish survival. The alteration resulted in the blocking of 109 miles of upstream spawning habitat, while low water flows created extreme drought-like conditions for over thirty years, severely degrading the river's ecosystems that once sustained abundant fish populations.
Heavy vegetation growth along the banks of the Trinity River, due to insufficient spring melt-off flows, narrowed the river channels, steepened the banks, and inhibited channel shape changes. This led to faster and more uniform water velocities, reduced shallow areas, and detrimental conditions for fish spawning, as fine sediments accumulated, decreasing oxygen availability for eggs and trapping young fish. Dam releases caused temperature imbalances: water was excessively warm in winter and too cold in summer, disrupting fish migration and smoltification. A 1978 FWS study indicated that an annual flow of 340,000 acre-feet (AF) was necessary for a healthy fish habitat. By 1980, the FWS reported a 60% to 80% decline in fish populations and 80% to 90% habitat loss. In response, the Secretary directed a 12-year flow evaluation study for habitat restoration, which led to legislative actions including the 1984 Trinity River Basin Fish and Wildlife Management Act and the 1992 Central Valley Project Improvement Act (CVPIA). These laws mandated the development of a fish and wildlife management program and required the completion of the TRFES by September 30, 1996, with a minimum flow release of 340,000 AF/year established. The TRFES, produced in collaboration with the FWS and Hoopa Valley, recommended varied flow increases based on water-year classifications, aiming to restore conditions for salmon and steelhead trout. It advocated for a permanent flow increase ranging from 368,900 AF/year in critically dry years to 815,200 AF/year in extremely wet years, and included non-flow measures like vegetation removal and riverbed reshaping to enhance salmonid production.
NEPA mandates that federal agencies assess the environmental impacts of proposed actions, publish a draft Environmental Impact Statement (EIS), and address public feedback. To comply with California's environmental regulations, the Department of the Interior initiated an Environmental Impact Report (EIR) alongside the EIS under the California Environmental Quality Act. A draft EIS/EIR (DEIS) was released in October 1999, evaluating alternatives for restoring the Trinity River fishery and ultimately recommending the TRFES plan. In October 2000, the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) issued Biological Opinions (BioOps) that acknowledged potential impacts on local fisheries and proposed reasonable and prudent measures (RPMs) to mitigate these effects. A final EIS/EIR (FEIS) was issued in November 2000, with Hoopa Valley supporting the TRFES recommendations, leading to a Record of Decision (ROD) from the Department of the Interior on December 19, 2000.
In December 2000, Westlands Water District filed a lawsuit against the Department of the Interior and other federal entities for alleged violations of the Endangered Species Act (ESA) and NEPA. After the ROD was signed, Westlands, along with additional water agencies, filed an amended complaint. The Yurok intervened as a defendant, while the Northern California Power Agency (NCPA) and Sacramento Municipal Utility District (SMUD) became intervenors as plaintiffs. In March 2001, the district court imposed a preliminary injunction on flow releases, allowing implementation of the ROD's restoration plan with a limitation on annual flow. By March 2002, the court modified the injunction to permit increased releases for the 2002 water year and moved the case forward for a merits determination.
Cross-motions for summary judgment were filed by all parties. The district court ruled that NEPA applied to the TRFES flow recommendations and found that the EIS team had inadequately defined the Statement of Purpose and Need and failed to consider a sufficient range of alternatives. Consequently, the court ordered the Interior and Hoopa Valley to prepare a supplemental EIS (SEIS) to explore additional alternatives and address certain mitigation measures from the NMFS and FWS BioOps. The court also set aside a provision from each BioOp while allowing non-flow measures from the ROD to proceed. Following an appeal, the district court on April 7, 2003, extended the SEIS completion deadline to July 9, 2004, and permitted additional flow releases for the 2003 and 2004 water years.
Standards of review for a district court's summary judgment concerning an Environmental Impact Statement (EIS) compliance with the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) are conducted de novo, meaning the reviewing court assesses the case from the same perspective as the district court. Under the Administrative Procedure Act (APA), agency decisions may be overturned if found arbitrary or capricious. NEPA outlines procedural requirements without mandating specific outcomes, focusing instead on whether an agency adequately considered the environmental impacts of its decisions.
The regulations stipulate that an EIS must evaluate the environmental consequences of the proposed action as well as reasonable alternatives, which is deemed central to the EIS. Agencies are required to clearly articulate the purpose and need for the proposed action, which informs the range of alternatives considered. Courts utilize a framework from City of Carmel-By-The-Sea v. U.S. Dep't of Transp. to assess whether the range of alternatives is reasonable based on the stated project goals.
In the case at hand, the district court determined that the EIS improperly limited the geographic scope of its Purpose and Need statement, a finding that the federal agencies contest on appeal. Courts typically grant agencies significant discretion in defining project objectives, but this discretion is not boundless; reasonableness is the standard applied in evaluating the Purpose and Need statement, particularly in light of statutory objectives that guide the agency's judgment.
The Statement of Purpose and Need outlines the objective of restoring anadromous fish populations on the Trinity River mainstem downstream of Lewiston Dam, driven by Congressional mandates to protect fish and wildlife resources affected by water diversions. While the legislation encompasses the entire Trinity River basin, including tributaries, the document's focus on the mainstem does not render it arbitrary or capricious under NEPA, as the mainstem is crucial for fish production.
Plaintiffs argue that the Statement of Purpose and Need is biased toward increasing water flows, neglecting non-flow measures and other federal responsibilities. However, the emphasis on habitat restoration aligns with NEPA requirements, allowing for the consideration of various restoration strategies. The EIS's focus on channel rehabilitation is justified, as the CVPIA prioritizes habitat protection measures. The language of the Statement does not preclude the evaluation of non-flow alternatives, and the EIS team's decisions were within their discretion, affirming the appropriateness of their actions regarding fish recovery efforts.
Lead agencies appropriately determined that EIS authors could prioritize instream habitat to enhance natural fishery production, while giving 'less attention' to factors like hatcheries and predation. Non-flow measures were included in all alternatives considered, and the EIS, TRFES, and ROD provided extensive discussions on these measures, which, alongside flow minimums, aim to improve river habitat. The emphasis on flow in the EIS was in accordance with Congressional directives to establish 'permanent instream fishery flow requirements.' The Statement of Purpose and Need clearly defined the project’s objectives without arbitrary limitations.
Under legal standards, an EIS must thoroughly explore and evaluate all reasonable alternatives, even those outside the lead agency’s jurisdiction, and identify a preferred alternative. The review adheres to the 'rule of reason,' which does not require consideration of every possible alternative but rather those that are reasonable and feasible. Alternatives must be related to the project’s purposes, and the agency is not obligated to analyze alternatives that are not significantly different from those already considered.
The EIS analyzed six alternatives: Maximum Flow, Flow Evaluation, Percent Inflow, Mechanical Restoration, No Action, and State Permit. The first four met the project’s purposes and needs, primarily differing in the yearly instream flow volume to the Trinity River. All alternatives included non-flow habitat rehabilitation and fishery management measures. The district court mandated implementation of all non-flow measures. The No Action Alternative maintains the current instream flow at 340,000 AF/year, with existing water operations continuing under current standards. Current habitat management and fish population management practices would also remain unchanged. The State Permit Alternative reduces flows to 120,500 AF/year, allowing more diversions to the Sacramento River and limiting habitat management to gravel placement only.
The Mechanical Restoration Alternative maintains instream flow at 340,000 AF/year while enhancing watershed protection to reduce sediment in the Trinity River. It emphasizes accelerated road decommissioning, maintenance, and rehabilitation, and plans to mechanically maintain natural floodplain features and remove riverbank vegetation at forty-seven designated sites. The Percent Inflow Alternative proposes a flow release based on weekly inflows, allowing approximately 40 percent of inflow to the river, with annual releases varying from 165,000 AF/year in Critically Dry years to 978,000 AF/year in Extremely Wet years. This alternative also plans for forty-seven new habitat rehabilitation sites, relying solely on water flow for sustainability. The Flow Evaluation Alternative, informed by FWS and Hoopa Valley recommendations, suggests annual flows between 369,000 AF/year in Critically Dry years and 815,000 AF/year in Extremely Wet years, and includes an adaptive management program for ongoing habitat monitoring and evaluation. The Maximum Flow Alternative would release all inflows from the Trinity Reservoir, with annual flows ranging from 463,000 AF/year in Critically Dry years to 2,146,000 AF/year in Extremely Wet years. Under this alternative, existing habitat projects would not be mechanically maintained, and no new projects would be initiated, while current fish population management would continue.
Additionally, eight alternatives were considered and rejected, including dam removals and various fishery rehabilitation methods. The plaintiff water agencies claimed the alternatives were insufficient for not integrating flow and non-flow measures, specifically watershed protection and adaptive management. This assertion is countered by the record, which shows that non-flow measures are included in all alternatives. The Mechanical Restoration Alternative specifically addresses the water agencies' concerns by incorporating aggressive non-flow strategies aimed at maintaining a healthy river habitat while adhering to the minimum flow requirements established by Congress in the CVPIA.
The Percent Inflow Alternative and Flow Evaluation Alternative evaluate existing and new non-flow measures, allowing for annual flow variations that remain significantly below Trinity River inflows to the Reservoir. The EIS team addressed suggestions to enhance non-flow measures to offset decreases in instream flow but concluded they would not support natural salmonid production, a core objective of the restoration plan. The district court incorrectly ruled that the range of alternatives was unreasonable under NEPA, suggesting that while the Interior could dismiss certain non-flow measures as standalone solutions, the EIS failed to incorporate them into a restoration plan. This interpretation undermines agency discretion and deference regarding scientific matters. The EIS determined that measures like increased hatchery production could be ineffective or harmful to restoring a naturally producing salmonid population and that lower flow alternatives relying more on non-flow measures could not maintain a viable fish habitat. The pursuit of a sustainable natural river habitat was prioritized in the TRFES. The district court criticized the EIS for not considering more mid-range alternatives, asserting only three alternatives were effectively analyzed, which it deemed insufficient. However, the inclusion of the Mechanical Restoration Alternative, even at minimum flow levels set by the CVPIA, was considered realistic. The EIS was not required to analyze every possible mid-range alternative, including the Integrated Management Plan suggested by water agencies, and its response to this plan was deemed adequate. NEPA does not mandate exhaustive consideration of all possible alternatives; it requires that the selection and discussion of alternatives facilitate informed decision-making and public participation. The EIS engaged in thorough public discourse regarding various flow and non-flow combinations, adequately addressing proposed alternatives. The ruling of the district court regarding the unreasonableness of the alternatives in the EIS is reversed.
The Statement of Purpose and Need was constructed reasonably according to governing statutes, with the range of alternatives considered fulfilling NEPA's goals of promoting informed public discussion and decision-making. The Environmental Impact Statement (EIS) evaluated several realistic options before selecting a Preferred Alternative, satisfying the rule of reason. The district court mandated the preparation of a Supplemental EIS (SEIS) due to insufficient public vetting of mitigation measures for the Preferred Alternative's environmental impacts. Hoopa Valley challenged this order, arguing that the relevant issues were adequately addressed in the Draft EIS (DEIS) and that no new significant information warranted an SEIS. The court reversed the district's decision regarding the NMFS BioOp on auxiliary bypass outlets related to Sacramento River temperatures and the energy crisis discussion, affirming the decision to set aside the FWS BioOp RPM, concluding that no SEIS was needed for these issues.
NEPA’s requirements aim to ensure agencies consider detailed environmental impact information while informing the public for comment. An EIS must discuss possible mitigation measures in detail, not merely list them, to guarantee environmental consequences are thoroughly evaluated. Agencies are not obligated to create complete mitigation plans and can incorporate new information into a Final EIS without recirculation. An SEIS is necessary only when new significant circumstances or information arise that impact the proposed action or its effects. An agency's refusal to issue an SEIS is subject to arbitrary and capricious review.
The district court's ruling regarding the NMFS Biological Opinion (BioOp) Reasonable and Prudent Measures (RPM) aimed at mitigating the Preferred Alternative's effects on Sacramento River temperatures has been reversed. The Endangered Species Act (ESA) mandates federal agencies to consult with the National Marine Fisheries Service (NMFS) or the Fish and Wildlife Service (FWS) to ensure no jeopardy to endangered or threatened species. Upon consultation, a BioOp is issued, which may include assessments of incidental takes and necessary measures to minimize impacts.
In this case, the FWS and NMFS issued BioOps with non-discretionary RPMs. The Interior Department concluded that these RPMs did not warrant a supplemental environmental impact statement (SEIS) or recirculation of the Environmental Impact Statement (EIS). However, evidence suggests that the Interior was aware of significant changes proposed by the BioOps that could necessitate recirculation.
The NMFS RPM requires the Bureau of Reclamation and FWS to collaborate on temperature control plans for the Trinity and Sacramento Rivers, specifically mandating preparation to use auxiliary bypass outlets at Trinity Dam to manage river temperatures as necessary. The district court found that the Draft EIS (DEIS) inadequately analyzed the RPM's impact on power generation and that the Final EIS (FEIS) did not sufficiently address significant changes. Plaintiffs argue for affirmation of this finding.
However, it is asserted that the RPM did not constitute a significant new circumstance requiring recirculation, as using the auxiliary bypass outlets has been a pre-existing option for managing temperature fluctuations. The FEIS indicates past use of these bypasses to protect fisheries from adverse temperatures. The DEIS considered the impacts of the alternatives on river temperatures and the potential use of the bypass outlets, suggesting their use as a mitigation measure. Relevant sections of the DEIS discuss the impact of the Preferred Alternative on river temperatures and fisheries.
The Final Environmental Impact Statement (FEIS) concludes that using auxiliary bypasses will not significantly impact Sacramento River temperatures or chinook salmon mortality, despite acknowledging that this usage may harm the Trinity River Division's (TRD) power generation capacity. Detailed modeling and discussions of the bypass effects are included in the FEIS and its appendices. The analysis demonstrated compliance with National Environmental Policy Act (NEPA) requirements, showing that the potential reduction in power output was considered, and the decision not to issue a Supplemental Environmental Impact Statement (SEIS) was justified.
Hoopa Valley contends that the impacts of the Preferred Alternative on California's power supply were sufficiently analyzed in both the Draft and Final EIS. While the Draft EIS (DEIS) discussed power supply effects, it did not account for the California energy crisis, which arose after its publication. The Department of Energy later pointed out the DEIS's assumptions regarding power reliability. The FEIS contains a thematic response addressing these concerns, and the Record of Decision (ROD) mentions the energy crisis while establishing operating criteria for emergency situations. Ultimately, the Interior Department concluded that the Preferred Alternative's impact on power reliability was insignificant, indicating that TRD power generation constitutes about 1% of California's demand, with an average reduction of only six percent under the Preferred Alternative, translating to a minimal overall impact on the state's electrical energy supply.
An internal response from the Interior Department to the Department of Energy's August 23, 2000 letter indicated that a decrease in power generation would lead to an average reduction of 0.041% in a typical water year. The district court acknowledged that further analysis would likely demonstrate that the impacts on Central Valley Project (CVP) power supply are not significant, attributing California's power shortages partly to fraud and market manipulation. California's amicus brief supported the conclusion that a Supplemental Environmental Impact Statement (SEIS) was unnecessary, as the state possesses expertise regarding the energy crisis and power reliability. Interior concluded that the losses in power generation from the Preferred Alternative were minimal compared to overall power generation in California, and thus the energy crisis did not represent a significant new circumstance warranting an SEIS.
Regarding Endangered Species Act (ESA) violations, regulations stipulate that reasonable and prudent measures (RPMs) cannot fundamentally alter the proposed action and may only involve minor changes. Courts typically do not overturn an agency's assessment unless it is deemed arbitrary and capricious. The Tribes contested the district court's invalidation of two RPMs: one from the Fish and Wildlife Service (FWS) concerning X2 saltwater movement in the Sacramento Delta, and another from the National Marine Fisheries Service (NMFS) regarding the implementation of a flow regime. The FWS RPM requires a plan to mitigate X2 movement if it intrudes upstream by 0.5 km from February to June. Implementing this RPM may necessitate reallocating significant water resources, with modeling indicating that X2 could move upstream more than 0.5 km in 20% of Junes, requiring the commitment of 127,000 acre-feet of water for mitigation. Reclamation would need to execute these mitigation efforts approximately every five years, acknowledging the complexities of managing Delta water inflows and salinity while ensuring that mitigation responsibilities are equitably distributed across various water supplies.
Redirecting water flows as per the X2 RPM will significantly impact wildlife in the Sacramento Delta and other waterways, likely causing extensive system-wide effects within the Central Valley Project (CVP). The X2 RPM requires substantial action, rather than being a minor adjustment to the Preferred Alternative, leading to the affirmation of the district court's decision to set it aside. The NMFS RPM mandates the USFWS and Reclamation to promptly implement specified flow regimes, including a non-discretionary condition that requires immediate implementation post-Record of Decision, which alters the timing of the action and violates ESA regulations. The district court's decision to set aside this RPM is also affirmed.
On cross-appeal, water agencies raised three issues, all found to lack merit. The district court's application of a traditional harms balance to allow certain flow measures for Critically Dry and Dry conditions was deemed appropriate, as maintaining these flow levels would not lead to permanent harm or hinder future flow recommendations. The court also determined that the government breached its trust obligations to the Hoopa and Yurok Tribes, supporting its order for implementing parts of the Preferred Alternative; however, this trust issue was not central to the court's decision and does not necessitate reversal. Lastly, the challenge regarding additional flow releases for the 2003 water year is deemed moot.
In conclusion, the district court’s finding that the EIS did not adequately consider a reasonable range of alternatives and the requirement for a supplemental EIS in light of the NMFS BioOp is reversed. However, the invalidity of the FWS BioOp RPM regarding X2 movement as a major change under ESA regulations is affirmed.
The court vacates the district court’s order regarding the inclusion of X2 movement in a Supplemental Environmental Impact Statement (SEIS) but affirms its decision to set aside the National Marine Fisheries Service (NMFS) Recovery Plan Management (RPM) that mandated immediate implementation of a flow regime for the Trinity River. Extensive studies, including an Environmental Impact Statement (EIS), have been conducted over many years to evaluate how to restore the Trinity River fishery while balancing the interests of various water claimants. Although concerns were raised about the federal agencies potentially undermining the National Environmental Policy Act (NEPA) process, the review indicates that the public was given sufficient opportunity to address their concerns. Significant legislative measures have been in place for over two decades to restore the Trinity River and its fish populations, with flow increases under consideration since 1981. The restoration efforts are significantly overdue. Following the resolution of issues related to the SEIS, the court supports the implementation of the Record of Decision (ROD) and its associated flow plan. The case is remanded to the district court for further proceedings consistent with this ruling, with each party bearing its own costs.
Interior has designated the Fish and Wildlife Service (FWS) as the lead agency for the Draft Environmental Impact Statement/Environmental Impact Report (DEIS/EIR), with Trinity County, the Bureau of Reclamation, and Hoopa Valley serving as co-leads, collectively referred to as “the EIS team.” The Hoopa Valley Tribe disputes the district court’s initial finding that the Statement of Purpose and Need was flawed for not addressing the 1984 Act's goals of improving both the mainstem and tributaries while balancing competing Central Valley Project (CVP) uses. However, the district court later clarified that Interior was not obligated to balance the interests of other CVP users.
Road decommissioning involves removing culverts, out-sloping, and eliminating unmaintainable roads, while road rehabilitation includes resurfacing and culvert replacement. Channel rehabilitation entails mechanically removing riparian sand berms and reconstructing gently sloping, unvegetated riverbanks typical of the pre-Trinity River Diversion (TRD) environment. The Trinity River Hatchery releases approximately 3 million chinook smolts and 2.6 million yearlings annually. The Bureau of Reclamation, part of the Department of Interior, manages the CVP and the TRD and is a co-lead on the EIS.
Modeling from the DEIS indicates that X2 movement may exceed 0.5 kilometers in 7% of Februarys (resulting in a loss of 173,000 acre-feet of water), 1% of Marches (90,000 AF), and 1% of Aprils (310,000 AF), with potential additional losses in years where X2 movement exceeds this threshold in multiple months.
