Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173 (9th Cir. 2016) (holding that three federal agencies managing a dam did not violate the requirements of NEPA when they decided to fluctuate the level of a reservoir without filing an environmental impact statement because that decision was within the range of action originally available when the dam was first operational, and therefore, was not a major federal action).
The National Environmental Policy Act (“NEPA”) requires that federal agencies prepare an environmental impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the human environment.” An EIS is a detailed study that examines the environmental consequences of an agency’s action. To determine whether an EIS is necessary, Agencies prepare environmental assessments (“EA”). In this case, the United States Court of Appeals for the Ninth Circuit decided whether the Bonneville Power Administration (“BPA”) violated the requirements of NEPA when BPA concluded in an EA that no EIS would be necessary to raise and lower the level of Lake Pend Oreille to generate power through the Albeni Falls Dam.
The Albeni Falls Dam (“Dam”) lies on the Pend Oreille River and operates to balance a variety of competing objectives including flood control, power generation, navigation, and wildlife conservation. Lake Pend Oreille (“Lake”) serves as the Dam’s reservoir. The Dam’s electricity output corresponds with the amount of water released from the Lake. Higher output lowers the Lake and causes its shoreline to recede.
The Army Corps of Engineers (“Corps”), the BPA, and the Bureau of Reclamation jointly manage the Dam. Since its completion in 1957, the Corps fluctuated the level of the Lake to generate power as needed during the winter months. However, from 1997 to 2011, the Corps maintained the Lake at a constant level to mitigate adverse effects on the kokanee salmon population.
In 2009, the BPA advocated for more “flexible winter power operations.” The operating agencies developed a new plan (the “Plan”), which preserved the Corps’ discretion to raise and lower the level of the lake by up to five feet during the winter. Along with the Plan, the agencies published an EA in which they concluded that fluctuating the level of the Lake had no significant environmental impact. The agencies moved forward without preparing an Environmental Impact Statement.
The Idaho Conservation League (“Petitioner”) challenged the agencies’ decision to move forward without preparing an EIS as a violation of the requirements of NEPA. The Petitioner requested the court to require the BPA prepare an EIS. The Petitioner also challenged the EA’s finding of no significant impact, claiming the agencies failed to consider the Plan’s impact on the spread of the flowering rush, an invasive species. The court held the Plan did not violate the requirements of NEPA.
First, the court rejected the Petitioner’s EIS request, explaining that an action is not a major federal action when an agency operates a facility “within the range originally available to it,” and that the EIS requirement only applies where the proposed action is major. Actions regarding ongoing projects can be major when agencies make changes that “themselves amount to major Federal actions.” There was no change in the Plan. In other words, the plan “did not change the status quo” because if the agencies had before consistently fluctuated the levels of the Lake during the winter, then formalizing the approach to fluctuation would be “doing nothing new, nor more extensive, nor other than that contemplated when the [Dam] was first operational.” The court concluded the Corps never relinquished its discretion to fluctuate the level of the Lake from 1997 to 2011 when the agency maintained the Lake at a consistent level. The court reasoned that because the agencies decided to maintain the lake at a consistent winter level on a year-to-year basis, that they had always retained the authority to respond to annual changes in power demands. By rejecting Petitioner’s request, the court held all other challenges to the EA were moot. Since the Plan did not trigger a major federal action, the agencies had no need to further consider the flowering rush.
Finally, the court noted that the Petitioner may have had a separate colorable claim if they had argued that the agencies must have supplemented an existing EIS with an analysis of how year-round dam operations affect the spread of the flowering rush. Agencies have a duty to supplement if there are “significant new circumstances or information relevant to environmental concerns” that were not considered in an earlier EIS. However, the court found that issue was outside the scope of the case and only raised on appeal.
Accordingly, the court held that the agencies’ decision to move forward with the Plan without preparing an EIS did not violate NEPA.
Trevor C. Lambirth
Image: Photo taken by Roland Taylor of Lake Pend Oreille in Northern Idaho. Flickr user U.S. Department of the Interior, Creative Commons.