Environmental Review of Western Water Project Operations: Where NEPA Has Not Applied, Will It Now Protect Farmers from Fish

Abstract

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states; storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, Bureau has largely been excused from complying with environmental review requirements of National Environmental Policy Act (NEPA). This article analyzes relevant NEPA cases involving these Bureau projects, and argues that Bureau should conduct NEPA reviews for long-term project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wanger's recent decisions applying NEPA to Bureau's efforts to comply with Endangered Species Act (ESA) in operating Central Valley Project. The article concludes that Bureau should use NEPA as a tool for making long-term decisions on project operations, but that courts should not insist on NEPA compliance that would interfere with efforts to protect endangered species. I. INTRODUCTION II. LEGAL BASICS A. Reclamation Project Operations B. NEPA Requirements for Environmental Impact Review III. NEPA AND THE BUREAU'S PROJECT OPERATIONS A. The Bureau's NEPA Rules, Procedures, and Policy B. USBR's Practice in Implementing NEPA C. Cases Addressing NEPA Requirements and Reclamation Project Operations D. Are Cases Correct in Exempting Routine Project Operations from NEPA? E. If NEPA Review is Not Required for Operations, Should Bureau do it Anyway? IV. NEPA AND ESA COMPLIANCE AT BUREAU PROJECTS A. Endangered Species Act Section 7 Requirements for Federal Agency Actions B. The Bureau's Section 7 Duties C. The CVP Controversy: Judge Wanger's Decisions Regarding NEPA and ESA D. Criticism of Judge Wanger's Conclusions Regarding NEPA V. CONCLUSION I. INTRODUCTION Few federal agencies are as well known for their environmental impacts as U.S. Bureau of The Bureau spent much of 20th century building hundreds of dams across seventeen western states, (1) resulting in what Marc Reisner called the most fateful transformation that has ever been visited on any landscape, anywhere[.] (2) The construction and closing of these dams wiped out many magnificent places across western United States. (3) Opposition to proposed Bureau darns has been credited With galvanizing modern conservation movement, (4) and there is little doubt that environmental opposition helped bring an end to era of major federal dam construction. (5) Today, Bureau operates hundreds of existing dams, storing and releasing water for irrigation, hydropower, drinking water, and other human uses. (6) Operation of these dams, however, creates a variety of serious and ongoing environmental impacts throughout West. Most notably, reservoir operations change quantity, quality, and timing of downstream river flows, often damaging aquatic ecosystems and harming native species. (7) Indeed, a 1996 study of counties in western United States found that number of ESA-listed fish species in a county correlated positively with level of irrigated agriculture reliant on surface water in county. In particular, number of species depended positively on water-supply levels of Bureau of Reclamation. (8) Where project operations have harmed species protected by Endangered Species Act, (9) ESA has sometimes forced Bureau to modify its operations, generating major legal and political controversy. (10) Another of nation's monumental environmental laws, however, has had virtually no impact on Bureau's project operations. The National Environmental Policy Act (11) (NEPA) recently marked its 40th anniversary, and President Obama issued a proclamation calling it the cornerstone of our nation's modern environmental protections. …