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Government of Province of Manitoba v. Norton

February 3, 2005

GOVERNMENT OF THE PROVINCE OF MANITOBA, PLAINTIFF,
v.
GALE A. NORTON, SECRETARY, UNITED STATED DEPARTMENT OF THE INTERIOR, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

The United States Government and the State of North Dakota have begun construction on a project that is designed to transfer water through a mountain range from the Missouri River Basin into the Hudson Bay Basin for purposes of providing water to numerous small communities in North Dakota. This "NorthWest Area Water Supply Project" ("NAWS") would be the first federally-sponsored interbasin transfer of water.

The Province of Manitoba, Canada ("Manitoba") has filed suit against Gail A. Norton, Secretary of the Department of the Interior, John W. Keys, III, Commissioner of the Bureau of Reclamation, Maryanne C. Bach, Great Plains Regional Director of the Bureau of Reclamation, and Dennis E. Breitzman, Dakotas Area Manager of the Bureau of Reclamation (collectively, "Federal Defendants"). Manitoba challenges the Federal Defendants' compliance with the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq. ("NEPA"), in connection with their consideration and approval of the water transfer project. More particularly, Plaintiff contends that the April 30, 2001 Environmental Assessment ("EA") for the project is inadequate and that the Finding of No Significant Impact ("FONSI"), dated May 18, 2001, as revised September 10, 2001, together with the actions based thereon, are therefore arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law within the meaning of Section 10 of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). The point of contention is the degree to which NAWS threatens to bring non-native biota from the Missouri River Basin into the Hudson Bay Basin.

Pending before the Court are Cross-Motions for Summary Judgment filed by Manitoba, Federal Defendants, and Intervenor-Defendant, the State of North Dakota ("North Dakota"). Manitoba's motion is supported by amici curiae the Government of Canada and the State of Missouri. Upon consideration of the arguments presented in the parties' memoranda and at oral argument, the Court will grant in part, and deny in part, Manitoba's motion for summary judgment and will deny the motions of Federal Defendants and North Dakota.

BACKGROUND

The Continental Divide separates water flows in the Unites States so that streams flow to opposite sides of the continent. Where it goes through North Dakota, the divide separates two river basins, the Missouri River Basin and the Hudson Bay Basin. AR at 862.*fn1 On the western side of the divide in North Dakota, the Missouri River flows into the Missouri River Basin and eventually drains south to the Gulf of Mexico. On the eastern side of the divide, the waters flow north and east into the Hudson Bay Basin. AR at 545.

These basins have distinct ecological characteristics and contain different species of fish and other aquatic organisms, as well as pathogenic species such as bacteria, viruses, protozoa, fungi, and other microscopic organisms. AR at 1200; Pltf's Motion for Summary Judgment at 4.*fn2 The co-mingling of untreated water from one basin into another can result in the introduction of biota -- the various life forms of a particular region or habitat -- that may be invasive and dangerous to indigenous biota.*fn3 The effect upon fish of "interbasin biota transfer," for example, can be devastating. The introduction of foreign biota can eliminate indigenous species, cause reduced growth and survival rates in indigenous species, and change the trophic structure of fish communities. AR at 3005. In documented cases, non-native species have displaced native species through direct competition, predation, inhibition of reproduction, environmental modification, transfer of new parasites and diseases, and destruction of the gene pool through hybridization. AR at 3005.*fn4

Aquatic invasive or non-indigenous species are organisms that have moved beyond their natural geographical ecosystem. They may include fish, fish pathogens and parasites, invertebrates, and aquatic plants. When a new species or organism is introduced into an ecosystem, the economic and ecological consequences can be detrimental and irreversible.....

Aquatic non-indigenous species can cause complex changes within their new environment as evidenced by the zebra mussel and many other species.... Changes to aquatic ecosystems can include a decline in the abundance of native species, extirpation of rare or endangered species, introduction of new diseases to native populations, alteration of the gene pool of native species, and reductions in reproductive success, genetic integrity, and biodiversity.

AR at 9815-17 (internal citations to reports omitted).

The transfer of biota can occur in many different ways, both natural and unnatural. "Direct connection through water is only one of several possible ways for biota to be transferred between basins. Many vectors, or pathways, have been identified including attachment to birds, insects, through fish-stocking programs, transfer of biota in live wells and bilge water of recreational or commercial water craft, and through live bait transport." AR at 544. Flooding and other natural events can also transfer biota from basin to basin.

NorthWest Area Water Supply Project

For many years, northwestern North Dakota has experienced water supply problems. AR at 466. Many municipalities and small communities in the region, as well as farms and ranches, rely upon groundwater sources that are finite or of poor quality. AR at 466. The largest city in the region, Minot, North Dakota, currently obtains most of its water from the Minot and Sundre aquifers. AR at 470. In the past, these aquifers were recharged by water from the Souris River. However, increased water usage and the construction of two water storage reservoirs in Canada -- which reduced flows on the Souris River in the United States -- have limited the amount of available water in these aquifers. AR at 470. See AR at 498 (The Souris River flows south from Canada into North Dakota, takes a wide swing through the northwest part of the state, and flows north back into Canada.).

The NorthWest Area Water Supply Project is a joint federal-state project that "involves the construction of a municipal, rural, and industrial [] bulk water distribution system in North Dakota." Compl. ¶ 2. The Bureau of Reclamation ("Bureau" or "BOR"), through the Secretary of the Interior, is charged with planning and construction and is accomplishing this with the State of North Dakota. The primary purpose of this project is to provide drinking water that meets the "secondary" standards of the Safe Water Drinking Act, 42 U.S.C. § 300f, to local communities and rural water systems in eight to ten counties in North Dakota. AR at 470-71.

The cornerstone of the project is the source of the water for NAWS. As presently contemplated, NAWS would withdraw over three and one-half billion gallons of Missouri River water from Lake Audubon or Lake Sakakawea every year. The water, which would be partially disinfected and pre-treated south of the basin divide, would flow through buried pipelines across the divide into the Hudson Bay Basin where it would receive final treatment in Minot, North Dakota prior to distribution.*fn5 The finished water would be delivered by pipeline to communities and rural water systems north of the basin divide. Water from the project would drain into the Souris River, which flows into Manitoba. Upon completion, NAWS would establish the first artificial link in 10,000 years between the Missouri River Basin and the Hudson River Basin.

From the outset, the potential of NAWS to transfer Missouri River Basin biota to the Hudson Bay Basin has been recognized as a major concern, prompting considerable study, analysis, and diplomatic negotiation among interested parties. AR at 823 ("Since 1981, numerous international committees and groups have been formed to address this issue at both a policy and technical level." ); see, e.g., AR at 1023 (1990 Garrison Joint Technical Committee, Biology Task Force Report); AR at 1199 (1994 NAWS Engineering-Biology Task Group). The parties to this litigation agree that such a transfer could have catastrophic consequences. "One of the greatest concerns for irreversible commitments of resources is interbasin biota transfer. Most often, when this occurs, the damage is not reversible." AR at 591; see AR at 1201, Engineering-Biology Task Group Report ("The effects of the introduction of a disease pathogen or parasite could be catastrophic to wild or cultured fish.").

In 1994, the NAWS Chloramine Challenge Study was undertaken to investigate the effectiveness of chloramination and ozonation for disinfection and pre-treatment of Missouri River water. The study developed "experimental protocols for microbial inactivation using chlorine/chloramine and ozone. The chlorine/chloramine protocols included both Giardia and MS2 Bacteriophage inactivation experiments." AR at 825. The ozone protocols were also developed for Giardia inactivation. The results of the study indicated that both chloramine and ozone "could be employed for disinfection of Lake Audubon water." AR at 825-26.

Early studies concluded that the "risk of biota transfer from NAWS was 'low' but did not quantify this determination." AR at 1863. In 2000, the Bureau prepared a Comparative Risk Assessment ("CRA"), which was designed to "quantitatively analyze potential risks and to present a mathematical and statistical basis to better define a 'low risk.'" AR at 1863.*fn6 Notably, the CRA used the organism, Giardia, as a surrogate for species presumed to be non-native biota. In addition, Whirling Disease ("WD"), a parasitic protozoan, was used as representative of disinfection resistant organisms. AR at 1863 ("The CRA addressed the microorganisms Giardia, viruses, and [WD] spores only."). The study concluded that "[f]rom the time water is withdrawn from [the intake in the Missouri River Basin] until the used water is discharged from wastewater plants to the Souris River by users, about 99.9999999 percent of Giardia and 99.9999999999999 percent of viruses are likely to be inactivated or removed from the water." AR at 1864.

Later, in August 2001, the Plaintiff commissioned a "Technical Report" ("TetrES Report") that showed that "because of significant new findings after 1994 regarding disinfection efficacy for protozoans such as Cryptosporidium... the conclusions of [earlier studies] are outdated and are no longer relevant for a project proposed for construction over seven years later." AR at 9831.*fn7 This study further suggested that reliance upon Giardia, virus, and WD as representative organisms by which to assess the effectiveness of treatment using chloramine was misplaced because, inter alia, those organisms are highly treatable or innocuous if introduced into a foreign system. In sum, the TetrES Report concluded that analysis using "treatment resistant organisms like Cryptosporidius," would better present the true effectiveness of such pre-treatment. AR at 9832.

Administrative Proceedings

Due in large measure to concerns over the interbasin transfer of biota, NAWS has a long and torturous history of project development in which numerous alternative water supply systems have been analyzed and considered. AR at 472. Several parameters were considered in assessing alternatives, including the quantity and quality of the water source, limits of service areas, type of treatment, intake facilities, adaptability to phased construction, environmental impacts, capital costs, and operation and maintenance costs. AR at 478. From 1988 to 1993, the number of alternatives was reduced from ten to three.

In June 1997, the Bureau released a draft EA for NAWS. The initial work on the EA evaluated three alternatives. See AR at 1361- 1411, February 27, 1997 Environmental Assessment Alternative Analysis (identifying Alternative A - an integrated system; Alternative B - an individual treatment system; Alternative C - a combination of Alternatives A & B). Public meetings on the Draft EA were held, and interested parties including Canada and the Environmental Protection Agency ("EPA") submitted written comments. The Bureau subsequently issued a Final EA on April 30, 2001, concluding that "[t]he risk of interbasin transfer of non-native biota as a result of the NAWS project is considered low." Compl. ¶ 46. The Final EA analyzed three alternatives and a no-action alternative. AR at 478.

Alternative A included an intake of Missouri River water at either Lake Audubon or Lake Sakakawea, a pre-treatment facility at the intake or at a booster pump station, and upgrade of the water treatment plant ("WTP") in Minot. AR at 479. The pipeline between intake at the lakes and the Minot WTP would be about forty-five miles long and include pumping stations and storage reservoirs. AR at 479-80. The Missouri River water would be disinfected with ozone or chlorine/chloramine -- with a chloramine residual maintained in the pipeline for biofilm controlat a pre-treatment facility on the Missouri River Basin side of the divide to provide biota transfer control and inactivation of protozoan pathogens and viruses. AR at 479-81. After reaching the Minot WTP, the pre-treated water would be disinfected further with ultraviolet radiation before being delivered to communities and the rural water systems by way of 413 miles of distribution pipeline.

Unlike Alternative A, Alternative B would not have used Missouri River water at all, relying upon the existing water sources of users. AR at 485. This alternative would have required the drilling of additional wells, some additional pipelines, and other upgrades, but would have eliminated the need for 407 miles of pipeline compared to Alternative A, and 298 miles of pipeline as compared to the Preferred Alternative. AR at 489. It would not have involved the interbasin transfer of Missouri River water.

The Preferred Alternative combined Alternatives A and B and was developed "based on the capital costs for both an integrated system and individual treatment systems." AR at 495.

The Preferred Alternative would have one intake at either Lake Sakakawea or Lake Audubon, a pre-treatment facility at the intake or the Max booster pump station, one central treatment plant at Minot, eight storage reservoirs, 13 pumping plants, 304 miles of distribution pipelines, two new treatment plants with drain ponds (Wildrose and Grenora), and one upgraded treatment plant (Parshall).

AR at 495.

Under Alternative A and the Preferred Alternative, Missouri River water would be pumped from either Lake Sakakawea or Lake Audubon. AR at 499. Also under both alternatives, the Missouri River water would first be pre-treated at or near the intake and later treated to "drinking water" standards at the Minot WTP. The Final EA pointed out that "[t]wo options were analyzed and eliminated for the treatment of Missouri River water to reduce the possibility of interbasin biota transfer into the Hudson Bay watershed:" full treatment at Minot and full treatment at the intake. AR at 508. Full treatment at the Minot WTP involved a cost of $15.9 million, but "was dropped because of unacceptable risk of interbasin biota transfer." AR at 508. Full treatment at the intake "would have required the construction of a complete, new treatment plant," and would have cost $28.2 million. AR at 508-09. "The difference in cost between a full treatment plant at Lakes Audubon or Sakakawea and upgrade of the Minot treatment plant is $12.3 million ($28.2 million$15.9 million)." AR at 509 (internal cross-reference omitted). Accordingly, both alternatives using water drawn from the Missouri River called for pre-treatment at the intake and at the Minot water treatment plant because it "was considered the most viable and most supportable treatment alternative in terms of costs, financing, and use of existing facilities." AR at 510.

Based on the findings in the Final EA, the Bureau issued a FONSI on May 18, 2001, which stated that a full Environmental Impact Study ("EIS") was not necessary for NAWS because "[r]easonably foreseeable activities, as described in the EA, will not have adverse effects on the human or natural environment." Compl. ¶ 47.*fn8 Following an administrative appeal by Manitoba Conservation (the provincial agency of Manitoba), Environment Canada (the federal Canadian environmental agency), and a North Dakota citizen, Dr. Gary Pearson, in which the TetrES Report was presented, on September 10, 2001, the Bureau issued a revised FONSI and a decision upholding the determination that an EIS was not necessary. The revised FONSI noted that the "issue of full treatment v. pretreatment at the intake site is a difficult, but critical one." AR at 752.

Technical studies have been conducted to find a solution that is responsible and reasonable from both an economic and environmental standpoint. Pretreatment using both ozone and chloramine, as proposed in the Preferred Alternative, will meet requirements set by the Garrison U.S./Canada Consultative Group for prevention of biota transfer. The Northwest Area Water Supply Project Chloramine Challenge Study - December 1995 demonstrated that pretreatment with either chloramine or ozone provides disinfection of Giardia to 3-log detection (inactivation) and Bacteriophage to 4-log detection (inactivation).... We believe the incremental reduction in the environmental risk of biota transfer provided by full treatment at the intake, compared to that of pretreatment, does not warrant the additional cost of constructing full treatment facilities at the source.

AR at 752-53.

Construction Underway

Construction on NAWS, which is estimated to take five years, began in 2002 and, as of April 13, 2004, 16.5 miles of the core pipeline (38 percent) had been constructed. The entire cost of the project is estimated at $145 million, with 65 percent of that cost provided by the federal government. Three contracts have been awarded for NAWS at a total cost of $16.6 million. In addition to the pipeline, the project requires construction of storage reservoirs, two new WTPs, an upgraded retreatment plant, and pumping plants. AR at 495. All told, the project will serve about 81,000 people. AR at 473. Water likely will not flow into Minot until at least 2008. Bach Decl. ¶ 4.

ARGUMENTS

Manitoba challenges the Federal Defendants' compliance with NEPA in connection with their consideration and approval of NAWS. Plaintiff's principal argument is that the Bureau, in reaching its determination that no EIS was required, considered outdated 1994 EPA standards of disinfection and treatment. Pltf's Motion for Summary Judgment at 5. Manitoba argues that EPA has revised its standards since 1994 "to require control of the more treatment-resistant organism Cryptosporidium, as well as Giardia, and substantial improvements have been made in disinfection technology" and that, in any event, the "Bureau must examine the real world, not the world as governed by standards that are long out of date" in considering the environmental impact of its actions. Id. at 5-6. Plaintiff claims that "[t]he Bureau rejected, without fully analyzing, complete treatment of Missouri River water at the source," id. at 6, and that there is "substantial uncertainty about the effectiveness of the Bureau's control measures," id. at 9. In light of these substantial uncertainties and the potential for interbasin transfer of biota through "catastrophic system failures," "normal and expected leakage from line joints and connectors," "and discharges to the environment of backwash water and residue or sludge from treatment processes in Minot," Manitoba contends that a finding of no significant impact is unsupportable. Id. *fn9

Federal Defendants' arguments proceed on the assumption that the pretreatment process results in a low risk of biota transfer. In what is a constant drumbeat throughout the briefing, they argue that the project will result in a disinfection rate that "is greater than 99% for biota of concern to the Province - meeting the goal agreed to by the international ...


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