ANN AIKEN, Chief District Judge.
Plaintiffs Central Oregon Landwatch and Waterwatch of Oregon move for summary judgment pursuant to Fed. R. Civ. P. 56. Defendant United States Forest Service("Forest Service") and defendant-intervenor City of Bend ("City") each filed cross-motions for summary judgment.
This dispute surrounds Tumalo Creek (the "Creek"), a tributary of the Deschutes River that runs through the City. Specifically, plaintiffs challenge the Forest Service's decision to issue a special use permit (SUP) allowing the City to construct a new water supply pipeline allowing continued diversion of water from the Creek. The Bridge Creek Water Supply Project (the "Project"), would allow the City to install an approximately 10-mile long, single replacement pipe under an existing road. Administrative Record ("AR") 50372. The City sought to replace its existing water supply system because the two deteriorating pipelines "are in poor condition and [1 at risk of failure."
On September 18, 2012, the Forest Service initially approved the issuance of a SUP allowing the City to construct the pipeline, however the project was enjoined by
Based on their findings, the Forest Service approved the City's renewed request for a SUP. Plaintiffs challenged this decision via administrative protest and filed several objections to the agency's decision. AR 50753. In October 2013, the Forest Service responded to plaintiffs' protests and affirmed its decision to proceed with the Project. AR 50753-55. After exhausting their administrative remedies, plaintiffs filed a complaint in this Court, alleging that the 2013 EA and the Forest Service's decision to issue a SUP violates the National Environmental Policy Act ("NEPA"), the National Forest Management Act ("NFMA"), the Clean Water Act ("CWA"), and the Federal Land Policy Management Act ("FLPMA").
A federal agency's compliance with environmental laws is reviewed under the Administrative Procedure Act ("APA"). 5 U.S.C. § 706. In an APA case, summary judgment is awarded in favor of the plaintiff if, after reviewing the administrative record, the court determines that the agency's action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
Review under this standard is narrow and the court may not substitute its judgment for that of the agency.
Plaintiffs argue that the Forest Service violated NEPA by failing to: (1) take a "hard look" at the Project's effects on the Creek; (2) conduct an adequate alternatives analysis; (3) use adequate baseline data; and (4) prepare an environmental impact statement (EIS). For the reasons set forth below, the Court finds that the Forest Service's NEPA analysis was not arbitrary or capricious.
NEPA is "a procedural statute that does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a hard look at the environmental consequences of their actions."
The agency first prepares an environmental assessment ("EA") to determine whether an action will be significant; if the agency concludes there is no significant effect associated with the proposed action, it may issue a Finding Of No Significant Impact, "accompanied by a convincing statement of reasons to explain why a project's impacts are insignificant," in lieu of preparing an EIS.
In assessing whether the agency took the requisite "hard look," the court considers whether the agency's EA contains "a reasonably thorough discussion" of the significant aspects of the probable environmental consequences of the proposed action. See
Initially, the Forest Service was not required to consider the direct impact of flows greater than 18.2 cfs because that action was not permitted and is not proposed. AR 50834. Thus, plaintiffs may argue only that the Forest Service failed to consider the indirect or cumulative impacts of the Project if the City diverted more than 18.2 cfs. Regarding NEPA's indirect impact requirement, the Forest Service did not need to "account for potential growth effects that might be caused by a project if the project is exclusively intended to serve a much more limited need."
Further, the Forest Service was not required to analyze the cumulative impacts of withdrawing more than 18.2 cfs because that action is not reasonably foreseeable.
Even assuming the City may eventually decide it needs more than the allotted 18.2 cfs of water, the Forest Service must first approve another SUP which would then trigger a new round of environmental review and public input, including NEPA analysis. Even if an "EA does not discuss the cumulative impact of reasonably foreseeable projects," the EA is not deficient because the agency "has committed itself to scrutinizing the cumulative effects of the [future decision] . . . before implementing any action resulting from the [future decision]."
The Forest Service also properly analyzed the Project's impact on climate change. Plaintiffs' allege that the Forest Service misapplied its own guidance and should have used available quantitative tools to assess the Project's impact. Regarding the former, the documents plaintiffs rely on are not judicially enforceable because they are merely guidance documents.
Plaintiffs' contend the Forest Service impermissibly refused to consider an adequate range of alternatives. They argue the Project's purpose and need statement was "unreasonably narrow" and, even assuming the statement was reasonable, the agency incorrectly decided that plaintiffs' proposals did not satisfy the Project's purpose.
Contrary to plaintiffs' assertion, the Court finds that the Forest Service's definition of the Project's purpose and need was reasonable. A purpose and need statement must "briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 C.F.R. § 1502.13. An agency's purpose and need statement is entitled to deference and will be dismissed if it "unreasonably narrows the agency's consideration of alternatives so that the outcome is preordained."
Further, an agency is not required to consider alternatives that are not feasible in light of a proposed action's purpose or need.
Plaintiffs also argue the Forest Service's "no action" alternative analysis was inadequate. NEPA requires a federal agency to consider a no action alternative, which involves comparing the consequences of a proposed action against the status quo. See
Plaintiffs next argue that the EA is erroneous because the Forest Service relied on inadequate streamflow baseline data in assessing the Project's environmental impacts. While the Court found that reliance on a similar data set was insufficiently justified in
Moreover, the Court finds that the Forest Service provided an adequate baseline of 18.2 cfs for the City's water diversion rate. Under NEPA, a federal agency must only provide enough information to promote "a reasoned choice among alternatives." 40 C.F.R. 1502.22. Nonetheless, plaintiffs contend the Forest Service incorrectly estimated the City's baseline diversion and use rates. They assert the agency needed to collect additional data to determine the appropriate diversion baseline. Plaintiffs fail to offer sufficient evidence to prove that the agency's existing data violated NEPA and "an agency's selection of a particular baseline [does] not prevent it from complying with NEPA."
NEPA requires a federal agency to prepare an EIS for "all major Federal actions significantly affecting the quality of the human environment."
Plaintiffs focus on the first significance factor, however, this factor fails to establish that an EIS was necessary. In several letters, the Oregon Water Resources Department stated that the City is in compliance with state law and did not require additional permits to operate its diversion facility. AR 10732, AR 11541, AR 50764. This evidence is sufficient to reject plaintiffs' argument and the Court finds that the City's diversion is not in violation of state law. Further, despite plaintiffs' numerous allegations, it was not arbitrary or capricious for the Forest Service to conclude that the Project would not have a significant impact on the environment. An independent review of the record makes it clear that each of plaintiffs' remaining claims are without merit.
The NFMA, 16 U.S.C. §§ 1600 et seq., establishes both procedural and substantive requirements for the management of National Forest System lands. Under the NFMA, the Forest Service is required to manage the Deschutes National Forest pursuant to the Deschutes Land and Resource Management Plan ("LRMP"). The Forest Service may not approve any site-specific actions, such as the Project, that are inconsistent with the Deschutes LRMP. 16 U.S.C. § 1604(i). The LRMP "was developed to guide all natural resource management activities and establish standards/guidelines for the Deschutes National Forest." AR 01502. The Plan contains various provisions related to the maintenance and enhancement of riparian areas and fisheries.
Plaintiffs contend that the Forest Service violated NFMA by issuing a SUP that was inconsistent with the Deschutes LRMP.
As a preliminary matter, the majority of these cited guidelines cannot form a basis for judicial review because they are barred by the Supreme Court's decision in
The Court finds that only five of the fifteen planning directives plaintiffs cite are site-specific provisions subject to judicial review — Deschutes LRMP RP-9, NWFP LH-2 & LH-3, & INFISH LH-1 & LH-3. However, on their face, these management directives do not impose a duty on the Forest Service to set minimum instream flow requirements for the Creek. Pls.' Reply Mem. in Supp. of Mot. Summ. J. 6-8. For example, the Deschutes LRMP RP-9 regulation requires the Forest Service to "[p]rotect instream flow on National Forest System Lands." Plaintiffs, however, interpret this provision to mean the agency had a duty to establish minimum streamflow levels before issuing the SUP. While the Forest Service had a duty to protect the Creek's instream flows, it was not required to adopt plaintiffs' specific recommendations on how to do so.
Moreover, an independent review of the record reveals that the Forest Service considered the Creek's instream flow needs prior to issuing the SUP, as NFMA mandates. The Forest Service evaluated the Creek's current streamflow conditions, including minimum instream flows, and the Project's potential impact on the Creek. AR 50469-81. The agency concluded that instream flows under the Project would be sufficient to protect riparian resources and aquatic habitats. The EA examined flows in all three reaches of the Creek and determined that the Project would not reduce streamflow levels in Reaches B and C compared to the City's current system. AR 50480-81. In Reach A, however, the Project would improve instream flows if the City diverts less than 18.2 cfs. AR 50479. Additionally, the Forest Service analyzed how changes in streamflow would impact spawning, juvenile, and adult fish habitat. The agency relied on the "most widely accepted and applied fish habitat model" and found that the Project would have little to no impact on the Creek's aquatic habitats. AR 50499, AR 50850.
Plaintiffs, however, argue this streamflow analysis was inadequate because the Forest Service's interpretation of minimum instream flows "had nothing to do with the needs of riparian resources, but rather, simply reflected [the City's] senior instream right." Pls.' Reply Mem. in Supp. of Mot. Summ. J. 10. In other words, plaintiffs argue the Forest Service should have relied on the minimum flow levels established in the Creek's ISWR, rather than the minimum flows based on the City's more senior water rights. Plaintiffs cite
In
Collectively, these cases illustrate that the Forest Service is entitled to impose flows that conflict with state water rights, but it is not required to do so. Unlike those cases, the Forest Service did not need to establish minimum flows because limiting the City's diversion to 18.2 cfs was sufficient to protect the Creek's resources. Consequently, the Forest Service was not required to reprioritize the Creek's ISWR over the City's consumptive rights in its streamflow analysis.
Finally, as a practical matter the ISWR minimum instream flow levels will generally be met in Reach A if the Project is implemented.
INFISH amended the Deschutes LRMP with respect to water quality. The goal of the INFISH guidelines is to "maintain and restore" riparian resources, ecosystem health and fish populations. The standard under INFISH is not to "retard attainment of water quality standards." Specifically, one INFISH riparian management objective ("RMO") requires the Forest Service to protect the stream by ensuring "[m]aximum water temperature below 590F within adult holding habitat and below 480F within spawning and rearing habitats." AR 04519.
Plaintiffs argue that the Creek is currently violating these temperature standards and the Project will cause continued violations. Conversely, the Forest Service argues that the Project does not violate INFISH because it will not "retard" attainment of RMOs. The Court finds that the Project, now limiting the City's diversion to 18.2 cfs, does not violate INFISH. The Forest Service determined the Project would not prevent attainment of RMOs and explained its conclusion in the 2013 EA. For instance, the agency found that the Project "decreases temperature in [Reach A], trending toward
The Forest Service did not act arbitrarily or capriciously in determining that the Project was consistent with its obligations under NFMA.
The CWA was enacted to "restore and maintain the chemical, physical, and biological integrity of [the] Nation's waters." 33 U.S.C. § 1251(a). Under the CWA, federal agencies are required to comply with state water-quality standards "in the same manner, and to the same extent as any nongovernmental entity." 33 U.S.C. § 1323(a).
Plaintiffs argue the.Forest Service violated the CWA because the Project violates Oregon's Protecting Cold Water (PCW) standard. Defendants contend plaintiffs' claim fails because the PCW does not apply to the Project. The Forest Service argues that because Tumalo Creek remains on the CWA 303(d) list for high temperatures it cannot be subject to a standard created to protect or preserve cold water. Further, the City contends the PCW is inapplicable because only discharges of water are subject to state water quality standards.
Even accepting plaintiffs' argument that the PCW applies here, the Court finds that the Forest Service did not violate the CWA. The agency determined that the PCW standard did not apply because the Project satisfied an exception to the rule. The PCW does not apply if "[t]here are no threatened or endangered salmonids currently inhabiting the water body; [t]he water body has not been designated as a critical habitat; and [t]he colder water is not necessary to ensure that downstream temperatures achieve and maintain compliance with the applicable temperature criteria." Or. Admin. R. 340-041-0028(11) (c). Here, the Forest Service determined that all three criteria were met and "Tumalo Creek is not subject to or in violation of this State water quality standard." AR 50492. Plaintiffs assert this was an unsupported conclusion and the Forest Service failed to provide a sufficient explanation for why the colder water in Tumalo Creek is not necessary to achieve and maintain temperature standards downstream.
Plaintiffs' claim is without merit. In the 2013 EA, the Forest Service explained that Reach C is not significantly impacted by Tumalo Creek's temperature because its "contribution is small, and does not contribute enough cold water to the main stem of the Deschutes River to attain temperature standards on its own." AR 50494. Moreover, the agency noted that at the mouth of the Tumalo Creek, which feeds into the Deschutes River, the temperature difference between the proposed and existing water supply system is less than 0.10C. Considering this negligible difference, the record supports the Forest Service's conclusion that Tumalo Creek waters are not necessary to ensure colder temperatures downstream in the Deschutes River.
Further, to the extent plaintiffs' argue that colder Tumalo Creek water upstream is necessary for non-attaining waters in Reach B, this argument also fails. The record shows that the flow and temperatures downstream of the Project area are "controlled primarily by the operation of TID's irrigation diversions — not the municipal use of water." AR 50494. The Forest Service further explained that regardless of the City's demand, `TID's water management primarily controls flows in Reach B and temperatures are not expected to change as a result of the Project. AR 50487. Consequently, it was not a clear error in judgment for the Forest Service to conclude that the Creek's colder water was not necessary to "ensure downstream temperatures achieve or maintain compliance with applicable temperature criteria." The Court finds no violation of the CWA.
The Forest Service's and defendant-intervenors' motions for summary judgment (docs. 119, 114, respectively) are GRANTED. The plaintiffs' motion for summary judgment (doc. 100) is DENIED. This case is DISMISSED and all pending motions are denied as moot.
IT IS SO ORDERED.
