CHURCHILL COUNTY; CITY OF FALLON, PLAINTIFFS-APPELLANTS, v. GALE A. NORTON, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE INTERIOR; WILLIAM BETTENBERG, IN HIS OFFICIAL CAPACITY AS ASSISTANT DIRECTOR, OFFICE OF POLICY ANALYSIS, DEPARTMENT OF THE INTERIOR; JEFFREY ZIPPIN, IN HIS OFFICIAL CAPACITY AS TEAM LEADER TRUCKEE-CARSON COORDINATION OFFICE, DEPARTMENT OF THE INTERIOR; RONALD ANGLIN, IN HIS OFFICIAL CAPACITY AS REFUGE MANAGER, STILLWATER NATIONAL WILDLIFE REFUGE, DEPARTMENT OF THE INTERIOR; MARVIN PLENERT, IN HIS OFFICIAL CAPACITY AS REGIONAL DIRECTOR OF THE U.S. FISH AND WILDLIFE SERVICE; JOHN DOEBEL, IN HIS OFFICIAL CAPACITY AS ASSISTANT REGIONAL DIRECTOR OF THE U.S. FISH AND WILDLIFE SERVICE; AND ANN BALL, IN HER OFFICIAL CAPACITY AS PROJECT MANAGER OF BUREAU OF RECLAMATION LAHONTAN BASIN PROJECT OFFICE, DEFENDANTS-APPELLEES. AND SIERRA PACIFIC POWER COMPANY, DEFENDANT-INTERVENOR.
No. 00-15967
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Arguеd and Submitted January 11, 2001. Filed December 19, 2001
276 F.3d 1060
NOTE: AMENDED PER ORDER OF MARCH 11, 2002[Copyrighted Material Omitted][Copyrighted Material Omitted]
Kathryn E. Kovacs (argued), Lois J. Schiffer, Sean H. Donahue, Fred R. Disheroon, Stephen M. McFarlane, Appellate Section, Environment & Natural Resources Division, U.S. Department of Justice, Washington, D.C., for the defendants-appellees.
Appeal from the United States District Court for the District of Nevada Edward C. Reed, District Judge, Presiding, D.C. Nos. CV-95-N-00724 ECR/RAM (Base File), CV-96-N-00146 DWH, CV-96 N-00754 ECR/RAM (Consolidated Cases)
Before: Joseph T. Sneed, Susan P. Graber, and Richard A. Paez, Circuit Judges.
Opinion by Judge Paez; Concurring Opinion by Judge Sneed
OPINION
PEAZ, Circuit Judge:
For more than a century, myriad interests, from individuals to power companies to Indian tribes, from federal to state to local governments, have disputed the rights to water from the Truckee and Carson Rivers.1 Through its enactment of
Section 206(a) of the Settlement Act requires the Secretary of the Interior to acquire sufficient water and water rights from willing sellers to sustain approximately 25,000 acres (on a long-term average) of primary wetland habitat located in the Lahontan Valley of west-central Nevada. The Fish and Wildlife Service (“FWS” or “Service“) prepared an Environmental Impact Statement (“EIS“) in connection with the implementation of Section 206(a). The Service evaluated five alternative strategies for acquiring water rights and related interests, including a “no action alternative,” and selected Alternative 5. Alternative 5 provides for purchases from willing sellers of up to 55,000 acre-feet of water rights in the Carson Division, supplementing water and water rights already acquired under an earlier acquisition effort or to be acquired from other sources, such as the Carson River above the Lahontan Reservoir. In September 1996, the Service published the Final Environmental Impact Statement, Water Rights Acquisition for Lahontan Valley Wetlands, Churchill County, Nevada (“WEIS“).
Plaintiffs, Churchill County and the City of Fallon, filed separate actions and one joint action asserting claims for violation of the National Environmental Policy Act of 1969 (“NEPA“),
On March 31, 2000, the district court granted Defendants’ motion for summary judgment on the programmatic EIS claims, concluding that Sections 205, 206, 207, 209, and 210(b)(16) are not “connected actions” or “related actions” that have cumulative or synergistic impacts. As a result, these other projects and directives did not need to be addressed in a single comprehensive EIS. The court also granted Defendants’ cross-motion and denied Plaintiffs’ cross-motion on the adequacy of the WEIS, concluding that it satisfied NEPA‘s procedural requirements by analyzing the potential adverse environmental impacts of implementing Section 206(a) and considering a wide range of reasonable, feasible alternatives.
Plaintiffs timely appealed. We have jurisdiction under
I. RELEVANT FACTUAL BACKGROUND
Water has always been scarce in Nevada. Indeed, “Nevada has, on the average, less precipitation than any other State in the Union.” Nevada v. United States, 463 U.S. 110, 114 (1983). “Ninety percent of the annual precipitation is lost to evaporation and transpiration, compounding the problems of a naturally short growing season.” A. Dan Tarlock, The Creation of New Risk Sharing Water Entitlement Regimes: The Case of the Truckee-Carson Settlement, 25 Ecology L. Q. 674, 677 (1999).
The Carson and Truckee Rivers provide western Nevada with its water supply. The Carson River “rises on the eastern slope of the High Sierra in Alpine County, California, and flows north and northeast over a course of about 170 miles, finally disappearing into Carson sink.” Nevada, 463 U.S. at 115. The Truckee River “rises in the High Sierra in Placer County, California, flows into and out of Lake Tahoe, and thence down the eastern slope of the Sierra Nevada mountains. It flows through Reno, Nevada, and after a course of some 120 miles debouches into Pyramid Lake, which has no outlet.” Id. at 114; see also S. Rep. No. 101-555, at 8 (1990).
“It has been said that Pyramid Lake is `widely considered the most beautiful desert lake in North America [and that its] fishery [has] brought it worldwide fame.’ ” Nevada, 463 U.S. at 114 (сitation omitted). The lake and surrounding areas have been the ancestral home of the Pyramid Lake Paiute Tribe for centuries. Two fish species -the cui-ui (a type of sucker fish found only in Pyramid Lake) and the Lahontan cutthroat trout -are of great economic, cultural, and spiritual value to the Tribe. E. Leif Reid, Note, Ripples From the Truckee: The Case for Congressional Apportionment of Disputed Interstate Water Rights, 14 Stan. Envtl. L.J. 145, 149 (Jan. 1995); S. Rep. No. 101-555, at 11. Today, the cui-ui is a federally listed endangered species, and the Lahontan cutthroat trout is listed as threatened.
“[I]n 1859 the Department of the Interior set aside nearly half a million acres in what is now western Nevada as a reservation for the area‘s Paiute Indians. In 1874 President Ulysses S. Grant by executive order confirmed the withdrawal as the Pyramid Lake Indian Reservation. The Reservation includes Pyramid Lake, the land surrounding it, the lower reaches of the Truckee River, and the bottom land alongside the lower Truckee.” Nevada, 463 U.S. at 115.
The City of Fallon is located southeast of the Pyramid Lake Indian Reservation and has a population of 8,300. It is the county seat of Churchill County, whose population is 25,000. Agricultural production has long been an important part of the County‘s economic base, due in large part to the Newlands Reclamation Project, one of the earliest projects the Bureau of Reclamation built after passage of the Reclamation Act of 1902,
When Captain John C. Fremont recorded his impressions back in 1844,3 Pyramid Lake was about 50 miles long and 12 miles wide. The lake evaporates approximately four feet -roughly 440,000 acre-feet -per year. The Newlands Project has exacerbated the negative effects оf evaporation. Between 1925 and 1967, more than 50 percent of the flow of the Truckee River, an average of approximately 260,000 acre-feet per year, was diverted at Derby Dam to the Newlands Project. The level of Pyramid Lake dropped about 40 feet between 1920 and 1938. The combination of evaporation and diversion thus reduced the surface area of the lake by 20,000 acres, forming a delta that prevents the trout and cui-ui from reaching their spawning grounds in the Truckee River. S. Rep. No. 101-555, at 11.
The Newlands Project has also diverted the waters of the Carson River. “Experience in the early days of the Project indicated the necessity of a storage reservoir on the Carson River, and accordingly Lahontan Dam was constructed and Lahontan Reservoir behind that Dam was created.” Nevada, 463 U.S. at 116. Several irrigation canals deliver water from the Lahontan Reservoir to farms and ranches in Churchill County. Id. Although the original Newlands Project plan contemplated irrigation of about 200,000 acres, no more than 65,000 acres were irrigated. S. Rep. No. 101-555, at 10.
In 1973, the United States, later joined by the Pyramid Lake Paiute Tribe, sued all those claiming water rights to the Truckee and its Nevada tributaries. In pursuing that action, the plaintiffs sought to obtain more water from the Truckee River for Pyramid Lake and its fisheries. S. Rep. No. 101-555, at 13. The plaintiffs argued that the Orr Ditch decree had not concluded the controversy, but had only quantified the Reservation‘s right to water for agricultural purposes, not for the Lake and fisheries. Nevada, 463 U.S. at 143-45. The Supreme Court ultimately rejected the plaintiffs’ argument.
Carson River water and water rights have been the subject of litigation as well. In 1925, the United States sued to adjudicate the water rights. After years of litigation, the district court entered a final decree in 1980. United States v. Alpine Land & Reservoir Co., 503 F. Supp. 877 (D. Nev. 1980), aff‘d, 697 F.2d 851 (9th Cir. 1983), cert. denied, 464 U.S. 863 (1983). Among other things, the Alpine decree quаntified individual water rights, established the rights to reservoir storage in the upper Carson River watershed, and provided a starting point for an interstate allocation. S. Rep. No. 101-555, at 19.
In February 1967, “the Secretary of the Interior adopted general operating criteria and procedures [OCAP ] to govern the exercise of water rights held by the United States in the Truckee and Carson River systems.” Id. at 14. The criteria were intended to “maximize the use of Carson River waters to meet water requirements on the Newlands Project and conserve Truckee flows so as to make as much water available to Pyramid Lake as possible.” Id.; see also
II. THE CURRENT CONTROVERSY
A. The Lahontan Valley Wetlands
For at least 4,000 years, the Lahontan Valley wetlands4 have supported a wide diversity of wildlife. The wetlands “provide expansive areas of uniformly shallow wetland habitats with waters of varying salinity.” WEIS at 3-58. The wetlands shrink and swell continuously, according to season and over geologic time. “Within the span of one season, these wetlands can transform from shallow lakes with clear, fresh water, to shallow, brackish marshes with high salt concentrations.” Id.
Historically, runoff from the Sierra Nevada, via the Carson River, has provided the main inflow of fresh water to the wetlands. Between 40 and 60 percent of the annual flow has come from runoff from April through July, thereby flushing the wetlands of accumulated salts and other dissolved solids. As inflow of water from the Cаrson River tapered off in summer and as evaporation increased, the wetlands would shrink. Shallower, more saline marsh habitats remained. Id. at 3-59.
These fluctuations in inflow created a variety of habitats and attracted diverse animal species, including ducks, geese, pelicans, wading birds, and shorebirds. Id. at 3-59 to 3-60; S. Rep. No. 101-555, at 16. “Over 410,000 ducks, 28,000 geese and 14,000 swans have been observed using the area annually during wet year spring and fall migrations.” S. Rep. No. 101-555, at 16. In addition, “Anaho Island National Wildlife Refuge, located in Pyramid Lake, supports the largest nesting colony of American white pelicans in North America . . . . The number of young pelicans produced at Anaho Island dropped from 6,000 in 1987 to 300 in 1989.” Id. at 17.
As water upstream from the wetlands was diverted for agricultural purposes, the Stillwater marshes, Carson Lake, and Carson sink largely dried up. “Episodic flooding, which had once sent voluminous springtime flows into the marshes was contained by Lahontan Dam and stored in Lahontan Reservoir for irrigation use.” WEIS at 3-60. By 1987, less than 15 percent of the wetlands remained, just 15,000 acres. S. Rep. No. 101-555, at 16. Although the situation has improved somewhat, the Newlands Project is widely acknowledged to have contributed substantially to the loss of wetland acreage by eliminating areas entirely or by intercepting “clean water supplies and substitut[ing] agricultural drainage.” Id. Waterfowl still use the remaining wetlands. As the water evaporates, however, “naturally occurring trace elements such as arsenic, boron, lithium, molybdenum, mercury and selenium are becoming concentrated, some reaching toxic levels. ” Id. No one disputes the fact that the survival of the Lahontan Valley wetlands depends upon significantly increased firm supplies of clean water. In fact, even before passage of the Settlement Act, funds had been appropriated for acquisition of water rights for this purpose. WEIS, at 1-33 to 1-34 (“The Service‘s Proposed Action and action alternatives would be a continuation of a water rights acquisition program for the Lahontan Valley wetlands which was first initiated by the Service in 1989 under previous appropriations and existing authorities (not
“The circumstances behind . . . title [II] are unusually complex, involving interstate water apportionment, management of Federal water storage and diversion facilities, protection and restoration of wetlands and endangered and threatened fish species, and the settlement of Indian tribal claims to water and other interests.” S. Rep. No. 101-555, at 8. In short, Congress recognized that everyone wants and needs the water:
The Truckee is the principal source of water for irrigation, municipal, industriаl and domestic uses in the Reno-Sparks metropolitan area and provides water to the Newlands Reclamation Project, near Fallon, Nevada. The Carson River provides water for irrigation and some municipal use in California, and is extensively used for irrigation in Nevada. The Carson is the principal source of water for the Newlands Reclamation Project.
United States Senator Harry Reid of Nevada is credited with urging use of a “problemshed” approach regarding the Truckee and Carson basins, “addressing many issues simultaneously, and getting all the key parties that could veto a settlement involved in the negotiating process.” Douglas S. Kenney and William B. Lord, Analysis of Institutional Innovation in the Natural Resources and Environmental Realm: the Emergence of Alternative Problem-Solving Strategies in the American West 77-78 (University of Colorado 1999).5 Specifically, the Pyramid Lake Paiute Tribe, Sierra Pacific Power Company (representing the interests of Reno-Sparks), the States of Nevada and California, Truckee-Carson Irrigation District (representing irrigation interests and most water rights holders), and the Department of the Interior were invited to the table. Each participant had a different goal:
The tribe sought increased flows into Pyramid Lake, clear title to the beds and bank of the lake, and funding for fisheries management and habitat restoration. Sierra Pacific was primarily interested in obtaining upriver storage on the Truckee to provide drought protection for Reno-Sparks . . . . The states wanted greater certainty in regional allocation matters, something that could be achieved by congressional ratification of the interstate water allocation compact. Parties associated with TCID generally wanted to maintain the status quo and their senior water rights. The federal government presumably sought to honor all federal obligations and protect all federal rights in an efficient manner.
The final agreement Congress enacted in 1990 set forth the purposes of Title II, the Truckee-Carson Pyramid Lake Water Rights Settlement Act (“Settlement Act“): (a) [to] provide for the equitable apportionment of the waters of the Truckee River, Carson River, and Lake Tahoe between the State of California and the State of Nevada;
(b) [to] authorize modifications to the purposes and operation of certain Federal Reclamation project facilities to provide benefits to fish and wildlife, municipal, industrial, and irrigation users, and recreation;
(c) [to] authorize acquisition of water rights for fish and wildlife;
(d) [to] encourage settlement of litigation and claims;
(e) [to] fulfill Federal trust obligations toward Indian tribes;
(f) [to] fulfill the goаls of the Endangered Species Act by promoting the enhancement and recovery of the Pyramid Lake fishery; and
(g) [to] protect significant wetlands from further degradation and enhance the habitat of many species of wildlife which depend on those wetlands, and for other purposes.
Settlement Act §§ 202.
The Settlement Act directed several actions involving water allocation and usage in the region. For example, Section 204 confirmed the Alpine Decree, allocating water from the Carson River between California and Nevada. It also allocated water from the Truckee River and Lake Tahoe between the two states. Likewise, pursuant to Section 205, the Secretary of the Interior is required to negotiate with California and Nevada to reach an agreement governing operation of the reservoirs in the Truckee River basin. These negotiations are to culminate in the Truckee River Operating Agreement (“TROA“). The TROA must provide, among other things, for operation of the Truckee River reservoirs to satisfy dam safety and flood control requirements and to enhance the spawning flows available for the Pyramid Lake fishery.
Section 207 authorizes acquisition of water and water rights for recovery of endangered fish -the cui-ui and the Lahontan cutthroat trout.
Under Section 209, the Newlands Reclamation Project is targeted for improvement. It expands the authorized purposes of the Newlands Project to include recreation and water quality, amoung others. The Section also requires the Secretary to study the feasibility of improving the conveyance efficiency of Newlands Project facilities.
Groundwater assessment is a key feature of Section 210. The Secretary must, under Section 210(b)(16), assess and remedy significant adverse impacts on domestic groundwater resulting from other provisions of the Settlement Act.
Plaintiffs contend that (1) the Service violated NEPA by approving land and water rights purchases pursuant to Section 206 of the Settlement Act without first preparing a programmatic EIS analyzing the cumulative and synergistic impacts of the Act‘s interrelated provisions; and (2) the WEIS, prepared in connection with Section 206, failed to comply with NEPA because Defendants did not adequately address the cumulative impacts of actions other than wetlands acquisitions, failed to study impacts to groundwater, and failed to define and study a reasonable range of alternatives.
III. STANDARD OF REVIEW
The district court‘s order granting or denying a motion for summary judgment is reviewed de novo. Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir. 1998). NEPA does not contain a separate provision for judicial review; we therefore review an agency‘s compliance with NEPA under the Administrative Procedure Act (“APA“),
” `[W]hether a particular deficiency, or combination of deficiencies, in an EIS is sufficient to warrant holding it legally inadequate, or constitutes merely a “fly-speck,” is essentially a legal question, reviewable de novo.’ ” N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 889 (9th Cir. 1992) (quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 493 (9th Cir. 1987); see also Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994) (“We review the district court‘s summary judgment that the FEIS is legally adequate under NEPA and the CEQ [Council on Environmental Quality] regulations de novo.“).
We apply a “rule of reason” standard when reviewing the adequacy of an agency‘s EIS. Under this standard, we ask “whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). “This standard is not susceptible to refined calibration.” California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). Rather, we make “a pragmatic judgment whether the EIS‘s form, content and preparation foster both informed decision-making and informed public participation. ” Id. Review under the rule of reason and for abuse of discretion “are essentially the same.” Neighbors of Cuddy Mountain v. United States Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998) (citing Marsh, 490 U.S. at 377 n.23).
IV. DISCUSSION
A. NEPA
“NEPA `is our basic national charter for protection of the environment.’ ” Blue Mountains, 161 F.3d at 1215 (quoting
B. The Proposed Action
In the draft WEIS, the Service proposed acquisition of a permanent and reliable supply of water to provide an average of 125,000 acre-feet of water annually to sustain 25,000 acres of wetland habitat at four designated primary wetland habitat areas: (1) Stillwater National Wildlife Refuge, (2) Stillwater Wildlife Management Area, (3) Carson Lake, and (4) Fallon Paiute-Shoshone Indian Reservation. In addition to purchasing water rights from willing sellers, the Service considered other methods of acquisition including leasing, donation, transfer, and exchange. The Service concluded that “acquisition of water rights from Newlands Project owners is the most readily available source of water for wetlands maintenance.” U.S. Department of the Interior Fish and Wildlife Service, Water Rights Acquisition Program for Pyramid Lake and Lаhontan Valley Wetlands, Nevada, Report to the United States Congress, November 1993.
C. Plaintiffs’ Concerns
The City of Fallon operates its own municipal water system and provides domestic, commercial, and industrial water service to its residents. Churchill County residents rely on thousands of wells that tap shallow and intermediate aquifers. Fallon‘s municipal water system is served and supplied by wells whose aquifers are recharged, at least in part, through surface water diverted throught the Newlands Project. The city also owns surface water rights adjudicated under the Orr Ditch and Alpine decrees. Fallon is particularly concerned about the effects that reallocation of water rights under the Settlement Act will have on the city‘s water supply.
D. Programmatic EIS
Plaintiffs argue that, in refusing to prepare a programmatic EIS, the Department of the Interior and its sub-agencies, notably the Fish and Wildlife Service, violated NEPA‘s requirement that “[p]roposals or parts of proposals which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.”
Although NEPA does not address the question, the CEQ regulations do call for preparation of a programmatic EIS in appropriate circumstances:
Environmental impact statements may be prepared, and are sometimes required, for broad Federal actions such as the adoption of new agency programs or regulations (§ 1508.18). Agencies shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decisionmaking.
(1) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area.
(3) By stage of technological development including federal or federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the human environment.
Moreover, through a process called “tiering,” agencies can “relate broad and narrow actions and . . . avoid duplication and delay.”
general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.
In Kleppe v. Sierra Club, 427 U.S. 390, 409 (1976), the Supreme Court acknowledged that NEPA may require a “comprehensive” EIS “in certain situations where several proposed actions are pending at the same time.” In Kleppe, several environmental organizations sued the Department of the Interior for failing to prepare a programmatic EIS on coal mining-related actions such as issuing coal leases, approving mining plans, and otherwise enabling private companies and public utilities to develop coal reserves on federally owned or controlled land located in the North Great Plains region.8 The Department of the Interior had prepared a programmatic EIS on the entire proposed national coal-leasing program and had prepared EISs for individual actions in the region, including approval of mining plans and issuance of right-of-way permits. Plaintiffs maintained that NEPA required a comprehensive EIS for the region before officials could allow further development. Id. at 395.
The Court held that § 102(2)(C) of NEPA did not require a rеgional EIS in the absence of a proposal for action of regional scope. Id. at 399. In addition, the Court found that Plaintiffs’ “desire for a regional environmental impact statement [could not] be met for practical reasons. ” Id. at 401. Because a regional proposal would “define fairly precisely the scope and limits of the proposed development,” id. at 402, the Court concluded that in the absence of such a proposal, “there would be no factual predicate for the production of an environmental impact statement of the type envisioned by NEPA.” Id.
Further, the Court held that “[a] court has no authority to . . . determine a point during the germination process of a potential proposal at which an impact statement should be prepared.” Id. at 406. A final EIS is required only at the time the agency “makes a recommendation or report on a proposal for federal action.” Id. (quoting Aberdeen & Rockfish R.C. v. SCRAP, 422 U.S. 289, 320 (1975)).
Finally, the Court recognized that when several proposals . . . that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental impacts must be considered together.” Id. at 410. According to the Court, “[o]nly through comprehensive consideration of pending proposals can the agency evaluate different courses of action.” Id. However, the Court stated that the determination of whether cumulative environmental impacts exist so as to require a comprehensive impact statement “is a task assigned to the special competency of the appropriate agencies.” Id. at 413-14. Therefore, a party challenging an agency‘s refusal to prepare a comprehensive EIS must show that the agency acted arbitrarily in making that determination. Id. at 412.
Since Kleppe, numerous litigants have urged courts to require that an agency prepare a programmatic EIS. In Nat‘l Wildlife Fed‘n v. Appalachian Reg‘l Comm‘n, 677 F.2d 883, 884 (D.C. Cir. 1981), for example, the court addressed whether NEPA required a programmatic EIS “for an ongoing, but mostly completed, federally assisted highway development project.” In that case, a number of highways still needed to be built to finish the Appalachian system, but the court noted that these fragments “only fill in disjointed gaps left in a highway network thoroughly defined now by old roads in place plus new roads already completed or under construction.” Id. at 887. Although site-specific EISs were planned for most of the remaining roads, the plaintiffs sought to require the defendant to first prepare a programmatic EIS for the entire project.
In Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), we examined the Forest Service‘s decision not to prepare a comprehensive EIS analyzing the combined effects of construction of a timber road in a formerly roadless area of the Nez Perce National Forest in Idaho and the resulting timber sales that the road would facilitate. We acknowledged the considerable discretion afforded agencies in defining the scope of an EIS and affirmed NEPA‘s requirement that an agency consider the effects of several related actions in a single EIS in appropriate circumstances. “Not to require this would permit dividing a project into multiple `actions,’ each of which individually has an insignificant environmental impact, but which collectively have a substantial impact.” Id. at 758.
The CEQ regulations require that so-called “connected” or “cumulative” actions be considered in a single EIS.
In Thomas, we found sufficient evidence in the record to suggest that the road and timber sales would have significant cumulative effects, including sediment deposits in the Salmon River (detrimental to fish) and destruction of critical habitat for the endangered Rocky Mountain gray wolf. The Fish and Wildlife Service had submitted comments regarding these impacts to the Forest Service, and we found thаt the comments raised “substantial questions” about the cumulative effects of the road and timber sales, thus requiring an EIS analyzing the potential impact. Thomas, 753 F.2d at 759. Considering the cumulative effects after the road was already approved, moreover, would not satisfy NEPA. Id. at 760. We also rejected the Forest Service‘s argument that the timber sales were too uncertain and too far in the future to analyze their impacts together with those of the road. “[I]f the sales are sufficiently certain to justify construction of the road, then they are sufficiently certain for their environmental impacts to be analyzed along with those of the road.” Id.
In City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir. 1990), we stated that an agency must prepare both a programmatic EIS and a site-specific EIS “[w]here there are large scale plans for regional development.” At least when the projects in a particular geographical region are foreseeable and similar, NEPA calls for an examination of their impact in a single EIS. Id. Thus, we held that the Forest Service‘s failure to analyze the effects of the timber harvesting plans scheduled over the life of the contract between the Forest Service and Alaska Pulp Company raised serious questions about the adequacy of a supplemental EIS.
The Pyramid Lake fisheries and Lahontan Valley wetlands both require Newlands Project water. Id. at 10. It is not readily apparent how the Service proposed to get a complete picture of the cumulative environmental impacts without including in its analysis the water-related actions and activities already underway or anticipated. It would seem quite reasonable, in fact, for the responsible agencies to analyze the actions required under the Settlement Act and their cumulative impacts in one document. Early in the implementation process, the agencies indicated that they would attempt a broad analysis, taking into account those Settlement Act directives aimed at water usage. Ultimately, however, they rejected this approach. The Service offers several arguments in support of its course of action.
The Service contends that it did not prepare a programmatic EIS because it had no obligation under NEPA to do so. None of the actions contemplated under sections 205, 207, and 209 of the Act had ripened into “proposals. ” As Plaintiffs respond, however, the regulations do not require a final proposal. Rather, under
Plaintiffs further maintain that a number of the actions contemplated under the Settlement Act had matured into “proposals.” For example, in 1995, the Department of the Interior published a Notiсe of Intent to Prepare an EIS “on a broad-based water management program.” The program was intended to “consolidate three closely related activities contemplated in
the proposed TROA; a revised O&M agreement; water rights acquisitions to enhance water quality of the lower Truckee River; water rights acquisitions to sustain on a long term average of 25,000 acres of wetlands in Lahontan Valley; interim changes to the existing OCAP for the Newlands Irrigation Project; Lahontan Reservoir storage agreements; a pilot project to acquire Truckee Division water to enhance populations of endangered cui-ui, and any Upper Carson water acquisitions.
But whether or not the actions and activities anticipated as a result of the Settlement Act were “proposals ” is somewhat off-point. Plainly, the officials responsible for implementing the Settlement Act believed for at least several years that it made good sense to analyze several provisions of the Act as a whole, especially the sections requiring water rights acquisitions and allocations. It also appears that a programmatic EIS was the vehicle for the analysis. It is just as evident that the officials changed their minds. Defendants offer many reasons why NEPA did not require them to proceed by way of a programmatic EIS, many of which Plaintiffs adeptly refute. The regulations and case law would support a decision by the Service to prepare a programmatic EIS, had it decided to prepare one. Indeed, had we been charged with the decision, we may have elected to prepare a prоgrammatic EIS first. The problem, of course, is that it was not our decision to make.
Although we can see that the Service‘s decision was a close call, the record does not support a conclusion that the agency‘s goal was to minimize the possible cumulative environmental impacts by segmenting the wetlands water rights acquisition program from the analysis of other foreseeable actions. The Settlement Act is unwieldy and potentially contradictory in its various requirements. In addition, agricultural interests will unavoidably feel much of the impact of the changes that Congress has ordered. We cannot, as Plaintiffs may wish, sanction the use of NEPA‘s EIS requirements to challenge the policy goals served by the Settlement Act. See, e.g., Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 777 (1983) (“The political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.“). The fact that we might proceed differently does not compel us to order the Service to prepare a programmatic EIS instead of, or along with, the WEIS. We agree with the district court that the Service took a “hard look” and that its decision not to proceed with a programmatic EIS was not arbitrary.
E. Wetlands EIS
Plaintiffs argue that the WEIS failed to assess the cumulative impacts of actions other than the proposed acquisition, failеd to address the impacts on groundwater resources adequately, and impermissibly segmented the water rights acquisitions for the Stillwater wetlands from the conservation plan for managing the wetlands.
1. Cumulative Impacts
Plaintiffs argue that the Service failed to analyze the cumulative impacts of Section 206 acquisitions together with all the other reasonably foreseeable Settlement Act actions affecting allocations for the Newlands Reclamation Project and the wetlands. According to Plaintiffs, the purchase of water rights for Pyramid Lake fish, recoupment, the TROA, and OCAP revisions are among the actions that should have been assessed cumulatively. Plaintiffs contend that the lengthy list of impacts provided by the Service cannot substitute for the required analysis. For example, the Service failed to state the full amount of agricultural land that would be lost upon implementation of all relevant Settlement Act provisions, not just Section 206(a). The magnitude of combined potential agricultural losses, according to Plaintiffs, would be “staggering.” The WEIS also failed to quantify the cumulative effects of acquisitions for the wetlands and for cui-ui recovery. As for the TROA, Plaintiffs maintain that the WEIS did not address the foreseeable negative impacts on the cui-ui, which may well prompt acquisition of more Newlands Projеct water rights. That fact would likely have significant implications for the wetlands acquisitions.9 Plaintiffs further maintain that, while the Service acknowledges that the cumulative effects of implementing the Settlement Act are likely to adversely impact groundwater recharge in the Lahontan Valley, it did not analyze or quantify the extent of the problem.
The Service contends that it did consider the potential loss of Newlands Project land under each of the five alternatives discussed in the WEIS but that to look beyond the acquisition proposal to the cumulative effects on agricultural lands resulting from other Settlement Act actions would be “pure speculation.” The Service disputes Plaintiffs’ assertions about the potential total amount of agricultural losses, although it does not suggest any alternative estimates. The Service did explain in the WEIS, however, that several forthcoming agreements or actions could possibly make it unnecessary to acquire any Truckee River water rights. Specifically, the Truckee River Water Quality Settlement Agreement, OCAP adjustments, the TROA, and the water rights acquired for the wetlands, individually or in combination, could well reduce the amount of agricultural losses. Under these circumstances and given these uncertainties, we do not find the absence of an estimate of the total reduction in agricultural acreage arbitrary or capricious.
We have reviewed Chapter 4 of the WEIS, in which the Service analyzed the environmental consequences of the action alternatives. The Service first considered the impacts of the alternatives on the Newlands Project operations and infrastructure, water resources, vectors, erosion, agricultural pests, air quality, wetlands, vegetative communities, fish, birds, agriculture, farmland, the local economy, recreation, population characteristics, land use, land values, property taxes, municipal services, social values, and Indian trust assets and cultural resources. The WEIS then examined the cumulative effects on environmental resources in the study area from past, present, and reasonably foreseeable future actions or activities, including the relevant provisions of the Settlement Act (both Titles I and II). The WEIS identified the following actions or activities: (1) acquisition of water rights for the Fallon Paiute-Shoshone Reservation agricultural lands (Section 102); (2) closure of the TJ Drain (Section 106); (3) negotiation of the TROA (Section 205(a)); (4) the comprehensive management plan for the Stillwater National Wildlife Refuge (Section 206(b)); (5) Fallon Naval Air Station studies of land-management options to reduce water use for aircraft safety purposes (Section 206(c)(3)); (6) transfer of Carson Lake and pasture to the State of Nevada for use as a wildlife refuge (Section 206(e)); (7) recovery plans for endangered and threatened Pyramid Lake fish (Section 207(a)); (8) recoupment of water diverted from the Truckee River in excess of amounts permitted by the OCAP during the period from 1973 to 1987 (Section 209(j)); (9) possible adjustments to the 1988 OCAP (Section 209(j)(2)); (10) the Truckee River Water Quality Settlement Agreement; (11) the expansion of Fallon Naval Air Station as the Navy relocates various operations to this location; (12) the effects of predicted growth and diversification of Churchill County; (13) the effects of the transfer of the Indian Lakes area, consisting of approximately 9,355 acres, to Churchill County and, subsequently, to the City of Fallon (Section 206(g)); (14) acquisition of 20,000 acre-feet of water rights in the Carson Division to the primary wetlands; and (15) agricultural production.
In each of the fifteen subsections identified in the WEIS, the Service discussed the predicted impacts and provided its best assessment of what might happen and how the Service and other agencies would likely respond. In addition, the Service summarized the potential cumulative impacts of the above actions and activities if the “preferred alternative” were not selected, then summarized the potential impacts of the actions and activities if the Service adopted the preferred alternative. Under the preferred alternative, the Service predicted that agricultural productiоn would be significantly adversely affected. The Service stated unequivocally in the “Unavoidable Adverse Effects” section that the preferred alternative was expected to cause unavoidable adverse impacts on the agricultural economy, agricultural-dependent wildlife, and “farm preservation values” of community members, ultimately changing the very character of the community with the completion of the water rights acquisition program. In short, the WEIS recognized that agricultural interests would bear the brunt of the Settlement Act directives.
2. Impacts on Groundwater Resources
Plaintiffs argue that the WEIS failed to address adequately the impacts that the acquisitions would have on groundwater resources. They contend that the Service relied on studies thаt either established existing conditions without analyzing the possible impacts or called for additional studies due to incomplete understanding of the hydrologic system. In response to comments on the draft WEIS regarding this analytical deficiency, the Service acknowledged this fact (“[t]he Service concurs that the existing groundwater reports do identify a need for further study of the groundwater resources“) and encouraged “local interests” to support funding the studies that the U.S. Geological Service proposed. WEIS at 6-105.
As the Service notes, the studies on which it relied were not definitive, but it never represented that they were. The studies were sufficient, however, to permit the Service to make a reasoned decision as to which action alternative to select. Notably, the Service reviewed existing studies regarding groundwater aquifers in Churchill County and sponsored new studies of the groundwater in the area. One of these studies (Seiler & Allander) used existing and newly drilled observation wells to locate the principal recharge areas for the shallow groundwater aquifer in Churchill County. As the Service explains, this study enabled it to analyze the acquisitions potential groundwater impacts from different locations in the Carson Division.
The second study, the Maurer Report, developed a cоnceptual model of the entire groundwater system in the Carson Division and surrounding area. According to the report, the three factors that affected groundwater recharge were the area from which the Service acquires the water rights, seepage from the Newlands Project distribution system, and consumptive use by crops. The Service used Maurer‘s model to analyze the potential impacts of each of the action alternatives. Recognizing the limits of the study, the Service was nevertheless able to make an informed decision.
Additional studies undoubtedly would fill in relevant details regarding groundwater resources under each of the action alternatives. Nonetheless, the Service relied on current information, not outdated studies or technology. We conclude that the WEIS provides a reasoned analysis of the impacts on groundwater consistent with the requirements under NEPA.
3. “Segmentation”
Plaintiffs argue that the WEIS should have covered the water rights acquisitions for the wetlands together with the conservation plan that dealt with management of the wetlands. According to Plaintiffs, these components were interrelated and segmenting analysis of the environmental impacts was not consistent with NEPA. However, other than list the possible ways that the management plan might affect the water rights acquisition plan, Plaintiffs do not show that the Service acted arbitrarily or capriciously.
AFFIRMED.
SNEED, Circuit Judge, Concurring:
I concur in the result reached by Judges Paez and Graber. I write separately to emphasize the need for a comprehensive resolution of California and Nevada interests in the Truckee and Carson rivers. Such a resolution is the only action that can secure a degree of stability. Repetitive and contentious disagreements over the use of the limited water supply to satisfy various rights, wants, and demands are sure to continue. A comprehensive cumulative impact study, while not legally required in this case, is nonetheless essential given the scarce water supply. One hopes that the Truckee River Operating Agreement, currently under negotiation, will solve the comprehensive allocation of the Truckee River waters.
Despite the well-reasoned majority opinion, the consequence is that a dissatisfaction with the allocation of the water between parties is likely to follow. This may be a situation in which we simply cannot muster the political will to resolve the various claims. Congress noted all too late that “[i]n retrospect, it is clear that the limited benefits of the Truckee River were promised by the United States to too many interests.” S. Rep. No. 101-155 (1990), at 13.
To aid those who might be interested in this disposition, a map of the affected areas is appended.
Notes
The negotiations that led to