73 F.4th 570
8th Cir.2023Background
- The Bureau of Reclamation approved the Central North Dakota Water Supply Project (Sept. 2018 FONSI) to provide Garrison Diversion a 40-year water service contract for 20 cfs from the McClusky Canal (fed by Lake Audubon/Lake Sakakawea).
- Proposed facilities: canal intake, wet well, pump station, and ~6-mile pipeline tying into the Red River Valley Project; only 0.10 miles of pipeline on Bureau land.
- The Bureau relied on a 2013 Northwest Area Project study and supplemental EIS for cumulative-depletions analysis and listed the state-sponsored Red River Valley Project as a reasonably foreseeable action (volume increased from 122 to 165 cfs).
- The Bureau concluded negligible impacts to the Missouri River mainstem, no measurable effect on reservoir levels, and no inter-basin transfer risk because (1) contract limits use to in-basin purposes and (2) flow meters/control valves would prevent out-of-basin withdrawals.
- Missouri sued under the APA alleging violations of the Water Supply Act and NEPA; the district court granted summary judgment for defendants; the Eighth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Bureau violated the Water Supply Act by proceeding without Congress when project modifications could affect Missouri River reservoir purposes | Missouri: project modifies reservoir operations and therefore needed Congressional approval under 43 U.S.C. § 390b(e) | Bureau/Defendants: project is authorized under the Garrison Diversion Act and other project-specific authorizations, so no additional Congressional approval under the Water Supply Act was required | Held: Bureau reliance on Garrison Diversion Act was not arbitrary or unlawful; Missouri failed to show Water Supply Act violation |
| Whether NEPA required an EIS (segmentation/connected-actions) | Missouri: Bureau improperly segmented analysis by excluding the state-sponsored Red River Valley Project and should have prepared an EIS | Bureau: Red River Valley Project is a state action to be completed without federal approval, so it need not be aggregated; EA and incorporated analyses suffice | Held: Connected-actions doctrine does not force aggregation of federal and non-federal actions; FONSI and EA were adequate — no EIS required |
| Adequacy of the Environmental Assessment: cumulative effects and downstream impacts | Missouri: EA inadequately analyzed cumulative effects, downstream depletions, and inter-basin transfer risks | Bureau: EA incorporated prior comprehensive study (Northwest Area Project), updated reasonably foreseeable actions, and addressed depletions and controls; technical assessments support negligible impacts | Held: EA’s cumulative-effects and downstream analyses were not arbitrary or capricious; court defers to agency technical expertise |
| Adequacy of alternatives analysis in EA | Missouri: Bureau considered only no-action alternative and failed to analyze shorter contracts, smaller volumes, or other sources | Bureau: Project small in scope, minimal environmental effect, and alternatives were not raised in the administrative record; range of alternatives appropriately limited | Held: Failure to analyze additional alternatives was not arbitrary; objections to unraised alternatives were forfeited |
Key Cases Cited
- Sierra Club v. Kimbell, 623 F.3d 549 (8th Cir. 2010) (NEPA "hard look" and EIS principles)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard)
- Cent. S.D. Co-op Grazing Dist. v. Sec'y of U.S. Dep't of Agric., 266 F.3d 889 (8th Cir. 2001) (deference on technical agency determinations)
- Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d 428 (8th Cir. 2004) (standards for EA showing an EIS unnecessary)
- Big Bend Conservation All. v. Fed. Energy Regul. Comm'n, 896 F.3d 418 (D.C. Cir. 2018) (connected-actions doctrine limits)
- Ark. Wildlife Fed'n v. U.S. Army Corps of Eng'rs, 431 F.3d 1096 (8th Cir. 2005) (EA cumulative impacts and tiering)
- Del. Riverkeeper Network v. Fed. Energy Reg. Comm'n, 45 F.4th 104 (D.C. Cir. 2022) (limited review of agency decision not to prepare an EIS)
- Dep't of Transp. v. Public Citizen, 541 U.S. 752 (2004) (preservation of administrative comments on alternatives)