Environmental Review of Western Water Project Operations: Where NEPA Has Not Applied, Will It Now Protect Farmers from Fish?
Benson, Reed D., UCLA Journal of Environmental Law & Policy
The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states; the storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act (NEPA). This article analyzes relevant NEPA cases involving these Bureau projects, and argues that the 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 the Bureau's efforts to comply with the Endangered Species Act (ESA) in operating the Central Valley Project. The article concludes that the 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 the Cases Correct in Exempting "Routine" Project Operations from NEPA? E. If NEPA Review is Not Required for Operations, Should the 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 the ESA D. Criticism of Judge Wanger's Conclusions Regarding NEPA V. CONCLUSION
Few federal agencies are as well known for their environmental impacts as the U.S. Bureau of Reclamation. The Bureau spent much of the 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 the western United States. (3) Opposition to proposed Bureau darns has been credited With galvanizing the modern conservation movement, (4) and there is little doubt that environmental opposition helped bring an end to the era of major federal dam construction. (5)
Today, the 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 the West. Most notably, reservoir operations change the quantity, quality, and timing of downstream river flows, often damaging aquatic ecosystems and harming native species. (7) Indeed, a 1996 study of counties in the western United States "found that the number of ESA-listed fish species in a county correlated positively with the level of irrigated agriculture reliant on surface water in the county. In particular, the number of species depended positively on water-supply levels of the Bureau of Reclamation." (8) Where project operations have harmed species protected by the Endangered Species Act, (9) the ESA has sometimes forced the Bureau to modify its operations, generating major legal and political controversy. (10)
Another of the nation's monumental environmental laws, however, has had virtually no impact on the 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. …