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Government of Province of Manitoba v. Zinke

United States District Court, District of Columbia

August 10, 2017

GOVERNMENT OF THE PROVINCE OF MANITOBA, et al., Plaintiffs,
v.
RYAN ZINKE, Secretary, United States Department of the Interior, et al., Defendants, and STATE OF NORTH DAKOTA Defendant-Intervenor.

          OPINION

          ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.

         The National Environmental Protection Act (NEPA), 42 U.S.C. §§ 4321, et seq. (2012), is designed to ensure that federal officials seriously study the environmental effects and implications of any major federal action before proceeding. As this aged litigation makes clear, NEPA's requirements cannot be sidestepped. In the end, however, NEPA does not dictate the outcome of an agency decision. As long as the federal agency has adequately identified its options, seriously studied and evaluated the consequences of each, identified and adopted reasonable measures to mitigate adverse consequences, and selected its action after balancing all of the above, NEPA will not prevent the agency from going ahead. Much less, after a thorough environmental impact statement, is the Judiciary assigned the duty of balancing and choosing between serious but opposing policy choices. This Court's work is done because the Bureau of Reclamation has finally done its work. The policy debate is legitimate and has strong advocates on each side but it cannot be decided by a court. The government's motion for summary judgment will be granted.

         I. BACKGROUND

         The Court presumes familiarity with its prior opinions and will not belabor the facts. See Gov't of the Province of Manitoba v. Norton, 398 F.Supp.2d 41, 65 (D.D.C. 2005) (Manitoba I) (remanding for a “more searching” environmental assessment); Gov't of the Province of Manitoba v. Salazar, 691 F.Supp.2d 37, 51 (D.D.C. 2010) (Manitoba II) (remanding for a “hard look” at the impact of withdrawals from Lake Sakakawea and the Missouri River and consequences of foreign biota transfer into Hudson Bay Basin); see also Gov't of the Province of Manitoba v. Zinke, 849 F.3d 1111, 1122 (D.C. Cir. 2017) (concluding that significant change in circumstances warranted modification of injunction).

         In response to longstanding water shortages and poor water quality in northwestern and northcentral North Dakota, in 1987 the Bureau of Reclamation (Reclamation) developed the Northwest Area Water Supply Project (NAWS or the Project). The goal of NAWS is to provide water from Lake Sakakawea, a reservoir in the Missouri River Basin, to communities in North Dakota in need of water. In the process, water will be transferred through pipes across the Basin Divide, [1] which separates two large water Basins: to the south is the Missouri River Basin and to the north is the Hudson Bay Basin. 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. The co-mingling of water from these two Basins could result in the introduction of foreign biota-the various life forms of a particular region or habitat-that may be invasive and dangerous to indigenous biota. Foreign biota “whose introduction does or is likely to cause economic or environmental harm or harm to human health” are also referred to as alien invasive species (AIS). Executive Order 13112, 64 Fed. Reg. 6183 (February 3, 1999). The federal government and the State of North Dakota have labored for years to bring water from Lake Sakakawea across the Divide to the parched communities in the northwestern area of North Dakota. Water in North Dakota drains north into the Hudson Bay Basin. Manitoba therefore has a strong interest in avoiding the introduction of AIS from the Missouri River Basin draining into the Province.

         In 2002, the Province of Manitoba sued under NEPA to prevent Reclamation from proceeding with NAWS, arguing that an April 2001 Environmental Assessment (EA) and a Finding of No Significant Impact[2] (FONSI) violated NEPA. See Manitoba I, 398 F.Supp.2d at 44. As designed originally, NAWS would have transferred billions of gallons of water each year from the Missouri River Basin, on the southern side of the Basin Divide, into the Hudson Bay Basin, on the northern side of the Divide, without any treatment to avoid an inevitable transfer of AIS. Years later, Reclamation has finally produced a thorough and studious environmental impact statement (EIS). The policy choice between (i) the risk of AIS entering Manitoba as water drains north from North Dakota into the Hudson Bay Basin and (ii) providing adequate water to the communities in northwest North Dakota has been made, with significant mitigation efforts to reduce the risks to Manitoba.

         The pending cross-motions for summary judgment address the sufficiency of the Final 2015 Supplemental Environmental Impact Statement (2015 SEIS), for which notice of availability was published in the Federal Register by Reclamation on April 10, 2015, 80 Fed. Reg. 19347-01 (Apr. 10, 2015); see also 2015 SEIS [Dkt. 260-8] 2015 AR 2015107; and the Record of Decision (2015 ROD) identifying the selected action for implementation. See 2015 ROD [Dkt. 260-2] 2015 AR 2015100. Reclamation continues to propose, with North Dakota's support, the annual conveyance of billions of gallons of water across the Basin Divide to ten counties in northwestern North Dakota. See Recl. Mot. Sum. J. [Dkt. 243]; North Dakota Mot. Sum. J. [Dkt. 242]. Reclamation and North Dakota ask the Court to dissolve its injunction, as amended, which has prevented most construction work on NAWS since 2005. Manitoba and the State of Missouri, which fears the consequences of the loss of so much water from the Missouri River on its downstream citizens, oppose lifting the injunction and file cross-motions for summary judgment.[3] See Manitoba Mot. Sum. J. [Dkt. 249-1]; Missouri Mot. Sum. J. [Dkt. 246].

         A. The 2015 SEIS

         The 2015 SEIS analyzes the same five alternatives that had been previously described in the Draft SEIS, issued in June 2014, and on which Reclamation received copious public comments. See Draft SEIS [Dkt. 258-14] 2015 AR 2014165 at 35-36; 2015 SEIS, 2015 AR 2015107 at 46. The alternatives include a “no action” alternative, as required by NEPA, which would mean an end to the Project. See 2015 SEIS, 2015 AR 2015107 at 50; see also 40 C.F.R. § 1502.14(d) (requiring agencies to “[i]nclude the alternative of no action” in an EIS). Of the other four alternatives, two are “inbasin alternatives, ” drawing water from the Hudson Bay Basin, and two are “Missouri River alternatives, ” drawing water from the Missouri River Basin. 2015 SEIS, 2015 AR 2015107 at 46. The first inbasin alternative, “Groundwater with Recharge, ” would use existing groundwater from the Minot and Sundre aquifer wellfields (both within the Hudson Bay Basin) as the primary source of water and use the Souris River (also within the Hudson Bay Basin) to provide artificial recharge to the aquifers. Id. at 51. The second inbasin alternative, “Groundwater with Recharge and the Souris River, ” includes the same water sources as the first and would also use the Souris River as a direct source of water to supplement the groundwater. Id. at 60. The inbasin alternatives would draw from water exclusively on the northern side of the Basin Divide, avoiding the need to transfer water between Basins and thus any need to construct a Biota Water Treatment Plant (WTP) in Max, North Dakota on the southern side of the Basin Divide. See 2015 SEIS Executive Summary [Dkt. 260-10] 2015 AR 2015109 at 14-15.

         The Missouri River alternatives both involve piping water from Lake Sakakawea in the Missouri River Basin across the Divide and blending it with water north of the Basin Divide. As now envisioned, both would require the construction of a Biota WTP in order to treat the water prior to transfer across the Divide. See 2015 SEIS, 2015 AR 2015107 at 66, 73. The water would then be treated again north of the divide at a second water treatment plant in Minot, North Dakota. The first of these alternatives, “Missouri River and Conjunctive Use, ” would blend Lake Sakakawea water with groundwater from the Minot and Sundre aquifers as well as water from the Souris River. Id. at 66. Reclamation identifies the second Missouri River alternative, “Missouri River and Groundwater, ” as its preferred alternative. Id. at 99. This alternative would blend Lake Sakakawea water with groundwater only, with no additional water from the Souris River. Id. at 73.

         The 2015 SEIS identifies five methods for treating water at a Biota WTP in Max, N.D., south of the Basin Divide, for the Missouri River alternatives. The Draft SEIS planned to use Chlorination/Ultraviolet (UV) Inactivation at the Biota WTP to treat the water in part before piping it northward to the Minot WTP, on the northern side of the Basin Divide, to complete treatment. Id. at 99. The Environmental Protection Agency (EPA) submitted comments to the Draft SEIS advising that the use of Chlorination/UV Inactivation could result in the formation of disinfection byproducts which “pose a risk to human health when present in drinking water” at high concentrations. Comments to Draft SEIS [Dkt. 260-4] ¶ 2015 AR 2015104 at 289. EPA recommended that Reclamation consider Conventional Treatment, which avoids the formation of disinfection byproducts by removing solids and other particles before applying Chlorination/UV Inactivation treatment. Id. Manitoba has been urging the use of Conventional Treatment for years to mitigate the risk of AIS transfer between Basins. See Manitoba Mot. Sum. J. at 7 (noting “the ROD selected a biota treatment technology-conventional treatment- that Manitoba (any many other commenters) recommended”). Reclamation, however, insists that such treatment is not necessary to avoid AIS but was only adopted to comply with regulations issued under the Safe Water Drinking Act, 42 U.S.C. §§ 300f et seq., by reducing the risk of the formation of disinfection byproducts. See 2015 SEIS, 2015 AR 2015107 at 99 (stating that the choice of Conventional Treatment “does not reflect the level of treatment necessary to address the concerns relative to the Project-related risk of AIS transfer”). Reclamation maintains that “[o]ther options proposed for the Biota WTP would be sufficient to reduce the . . . risk for AIS transfer” but acknowledges that Conventional Treatment reduces the risk of AIS transfer by providing “protection against the organisms of concern and includ[ing] a physical barrier for removal.” Id. at 99-100.

         Despite Reclamation's final acquiescence to the use of Conventional Treatment, Manitoba is not appeased, arguing that Reclamation's assessment of the risk of AIS transfer continues to fall short of NEPA obligations. It emphasizes a 2016 report issued by the Department of the Interior after completion of the 2015 SEIS, which emphasized the concerns with AIS transfer generally:

Invasive species pose one of the greatest ecological threats to America's lands and waters. Their control can be complex and expensive and is often conducted in perpetuity; their harm can be irreversible. . . . Preventing the introduction of invasive species is the first line of defense against biological invasion.

         Manitoba Mot. Sum. J. at 8 (citing Dep't of the Interior, Safeguarding America's Lands and Waters from Invasive Species: A national framework for early detection and rapid response (2016) at v, 1) (Safeguarding Report). An invasion occurs when alien species “breach biogeographic barriers and extend their range. . . . [E]arly detection is the process of surveying for, reporting, and verifying the presence of a non-native species, before the founding population becomes established or spreads so widely that eradication is no longer feasible.” Safeguarding Report at 4. Manitoba cites the Safeguarding Report to emphasize the seriousness of the consequences of the transfer of AIS into the Province. Notably, Reclamation was one of the agencies involved in the study and policy decisions that led to the Safeguarding Report, so it had full awareness of that analysis as it completed the 2015 SEIS and ROD.

         Nevertheless, Reclamation has produced a 2015 SEIS and ROD that collectively demonstrate appropriate and reasonable efforts to avoid and mitigate the risks of transfer of AIS from the Missouri River Basin as a result of the Project and the Court will not interfere with what is now a policy choice made by the Executive Branch.

         II. LEGAL STANDARDS

         A. Summary Judgment

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255.

         When evaluating cross-motions for summary judgment, each motion is reviewed “separately on its own merits to determine whether [any] of the parties deserves judgment as a matter of law.” Family Trust of Mass., Inc. v. United States, 892 F.Supp.2d 149, 154 (D.D.C. 2012) (internal quotation marks omitted). Neither party is deemed to “concede the factual assertions of the opposing motion.” Competitive Enter. Inst. Wash. Bureau, Inc. v. Dep't of Justice, 469 F.3d 126, 129 (D.C. Cir. 2006). “[T]he court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Select Specialty Hosp.-Bloomington, Inc. v. Sebelius, 774 F.Supp.2d 332, 338 (D.D.C. 2011) (internal quotation marks omitted). A genuine issue exists only where “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. At 248.

         B. NEPA

         NEPA requires government agencies to take a “hard look” at the environmental impact of proposed actions before deciding whether to proceed. 42 U.S.C. § 4332(C); Stand Up for California! v. Dep't of the Interior, 204 F.Supp.3d 212, 303 (D.D.C. 2016). If an agency determines that a proposed federal action will “significantly affect[] the quality of the human environment, ” it must prepare a detailed environmental impact statement assessing “the environmental impact of the proposed action, ” 42 U.S.C. § 4332(C)(i), “any adverse environmental effects which cannot be avoided should the proposal be implemented, ” § 4332(C)(ii), and any “alternatives to the proposed action, ” § 4332(C)(iii). This procedural requirement is “[a]t the heart of NEPA ” Sierra Club v. U.S Army Corps of Engineers, 803 F.3d 31, 37 (D.C. Cir. 2015). The statute does not require a particular outcome but rather imposes “‘procedural requirements . . . with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.'” Delaware Riverkeeper Network v. Fed. Energy Regulatory Comm'n , 753 F.3d 1304, 1310 (D.C. Cir. 2014) (quoting Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 756-57 (2004)); see also Delaware Riverkeeper Network v. Fed. Energy Regulatory Comm'n , 857 F.3d 388, 394 (D.C. Cir. 2017) (“So long as the agency takes a hard look at the environmental consequences, NEPA does not mandate particular results”) (internal quotation marks omitted)). NEPA does not “‘require agencies to elevate environmental concerns over other appropriate considerations.'” WildEarth Guardians v. Jewell, 738 F.3d 298, 303 (D.C. Cir. 2013) (quoting Balt. Gas & Elec. Co. v. Natural Res. Def Council, Inc., 462 U.S. 87, 97 (1983)). It requires informed and well-considered decision-making “but not necessarily the best decision.” New York v. Nuclear Regulatory Comm'n , 681 F.3d 471, 476 (D.C. Cir. 2012).

         The Court reviews an EIS to ensure the agency took a “hard look” at the environmental consequences of its proposed project. The Court's role is not to “‘flyspeck' an agency's environmental analysis, looking for any deficiency no matter how minor.” Nevada v. Dep't of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006). Rather, the Court's role is to “‘ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious, '” Id. (quoting Balt. Gas & Elec. Co., 462 U.S. at 97-98), and that it has “[r]igorously explore[d] and objectively evaluate[d] all reasonable alternatives.” 40 C.F.R. § 1502.14(a). The “arbitrary and capricious” standard applies to both the agency's compliance with NEPA's procedures and the adequacy of the agency's EIS. See Nevada, 457 F.3d at 87-88.

         III. ANALYSIS

         Manitoba complains that Reclamation's work is not done: it asserts that Reclamation failed to consider adequately the possibility of increased turbidity in the waters of Lake Sakakawea due to the effects of climate change; it assails as insufficient Reclamation's plans for mitigation through an Adaptive Management Plan; it discredits Reclamation's analysis of the availability of sufficient in-Basin water without the need for water from Lake Sakakawea; and it complains that Reclamation pre-selected its preferred option.

         A. Turbidity and Climate Change

         NAWS is constructed for a lifetime of 40 years or more. See 2015 SEIS, 2015 AR 2015107 at 23 (explaining NAWS “is intended to address long-standing water supply and water quality problems experienced by residents of northwestern North Dakota . . . through 2060”). Over those decades, Manitoba complains that climate change can be expected to increase the turbidity of the water in the Missouri River and Lake Sakakawea, thereby decreasing the ability of the Biota WTP to treat it. See Manitoba Mot. Sum. J. at 23. Turbidity “is a surrogate for a broad array of constituents-soil particles, dissolved minerals, microbes, bacteria, and viruses, ” which, in high quantities, can reduce the efficacy of water treatment systems. Id.

         In its comments to the Draft SEIS, Manitoba expressed concern with Reclamation's choice of Chlorination/UV Inactivation because “the effectiveness of UV irradiation is widely acknowledged to be adversely impacted by elevated levels of turbidity and organics.” Comments to Draft SEIS, 2015 AR 2015104 at 227. Manitoba insisted that best practices required a filtration system to deal with turbidity and recommended conventional treatment:

The only secure means of ensuring the effectiveness of both UV and chlorination [as proposed in the Draft SEIS] is to first pre-treat the water using conventional treatment. This will reduce turbidity and dissolved organic levels in the feed water to the UV and C12 systems and also maximize the UV transmittance of the raw water thus ensuring far greater reliability and effectiveness of the UV and C12 systems.

Id. at 231. Reclamation has now done exactly that. Nevertheless, Manitoba insists that Reclamation has not adequately considered “how climate change-induced increases in the turbidity of raw intake water for the NAWS Project will impact the performance and effectiveness of the treatment system selected in the ROD.” Manitoba Surreply [Dkt. 263] at 5. It takes issue with Reclamation's focus on climate change-induced increases of the flow and quantity of Missouri River water rather than its quality as impacted by turbidity. See Manitoba Mot. Sum. J. at 22.

         Reclamation does not challenge Manitoba's overarching claim that turbidity can create issues for water treatment, see Transbasin Effects Report [Dkt. 260-3] 2015 AR 2015103 at 180 (“High turbidity can reduce the efficacy of chlorination . . . and UV disinfection.”), but disagrees with Manitoba's projection of the impact of turbidity on the Project given the use of Conventional Treatment and the water intake location at Lake Sakakawea. Commenting on the Draft SEIS, Manitoba emphasized the impact of turbidity if Reclamation retained the Chlorination/UV Inactivation treatment method. See Comments to Draft SEIS, 2015 AR 2015104 at 227-31. In response to Reclamation's choice of Conventional Treatment in the 2015 SEIS, Manitoba expressly approved stating that “the ‘preferred alternative' for water treatment identified in the Final [2015] SEIS represents the most sensible, and most protective, course of action.” Comments to 2015 SEIS [Dkt. 260-2] 2015 AR 2015100 at 40. Reclamation also clarified that water for NAWS will be withdrawn from Lake Sakakawea at the Snake Creek Pumping Plant, which “is located more than 100 miles from the reservoir headwaters” and therefore “likely not subject to significant inflow-related changes in turbidity.” Transbasin Effects Report, 2015 AR 2015103 at 181.

         The argument thus arises from a scientific disagreement as to the nature and impact of climate change-induced turbidity in the relevant environment, not from a failure of Reclamation to consider and address the issue. For example, the parties disagree on the level of turbidity at which water treatment may be affected. Compare Transbasin Effects Report, 2015 AR 2015103 at 180 (“For unfiltered water, the UV dose-response is generally not affected when the turbidity is less than 10 nephelometric turbidity units (NTU).”) with Comments to Draft SEIS, 2015 AR 2015104 at 228 (“A value of 5 NTU is . . . generally considered . . . to be the threshold beyond which chlorination's effectiveness can be reduced.”). In addition, Manitoba challenges Reclamation's use of mean turbidity data, which it argues “mask[s] the impact of maximum turbidity values and intermittent spikes” and also underestimates the impact of turbidity, see Manitoba Surreply at 6, while Reclamation argues that it “expressly analyzed the relationship between inflow in the [sic] Lake Sakakawea and turbidity []using data from an intake that was thirty miles closer to the Missouri River inlet []and which therefore would be expected to overstate any inflow impacts.” Recl. Reply [Dkt. 252] at 10-11 (emphasis added).

         These dueling contentions do not answer the relevant question before the Court: has Reclamation adequately considered climate change and turbidity in preparing the 2015 SEIS? The parties' disagreement over the interpretation of scientific studies or the application of those findings to the particulars of the NAWS Project does not lead to the conclusion that Reclamation failed to consider the relationship between climate change and turbidity or that its conclusions were arbitrary or capricious. The Court is acutely aware of the legitimate fears behind Manitoba's position to “consistently oppose[] and continue[] to oppose inter-basin transfers of water.” Comments to 2015 SEIS, 2015 AR 2015100 at 40. However, the role of the Court under NEPA is not to evaluate the substantive decisions made in the 2015 SEIS but to ensure the agency has taken a “hard look” at environmental consequences and reasonable mitigation measures, and made an informed decision on whether and how to proceed. See Delaware Riverkeeper Network, 753 F.3d at 1310 (“NEPA itself does not mandate particular results.” (internal quotation marks omitted)). NEPA is a procedural statute designed “to ensure ‘a fully informed and well-considered ...


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