Idaho Conservation League v. Bonneville Power Administration , 826 F.3d 1173 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IDAHO CONSERVATION LEAGUE, No. 12-70338
Petitioner,
v. OPINION
BONNEVILLE POWER
ADMINISTRATION,
Respondent.
On Petition for Review of an Order of the
Bonneville Power Administration
Argued and Submitted October 6, 2014
Portland, Oregon
Filed June 21, 2016
Before: Alex Kozinski, Ferdinand F. Fernandez
and Andre M. Davis,* Circuit Judges.
Opinion by Judge Kozinski
*
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
2 IDAHO CONSERVATION LEAGUE V. BPA
SUMMARY**
Environmental Law
The panel denied a petition for review of a decision of the
Bonneville Power Administration to move forward with a
proposal to change how the Albeni Falls Dam in the Pacific
Northwest operates during winter months without first
preparing an environmental impact statement under the
National Environmental Policy Act.
Lake Pend Oreille, which serves as the dam’s reservoir,
is jointly managed by the Army Corps of Engineers, the
Bonneville Power Administration, and the Bureau of
Reclamation. In the initial winter months of the dam’s
operation, starting in the late 1950s, the Corps fluctuated the
level of the lake, but in some years the Corps held the lake’s
level constant. From 1997 to 2011, the Corps held the lake’s
level constant. In 2011, the agencies confirmed in an
environmental assessment that they planned to return to a
more flexible approach and allow the lake level to fluctuate.
NEPA only requires the preparation of an environmental
impact statement when a proposed federal action is major, but
“where a proposed federal action would not change the status
quo,” an environmental impact statement is not required.
Upper Snake River Chapter of Trout Unlimited v. Hodel, 921
F.2d 232, 235 (9th Cir. 1990).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IDAHO CONSERVATION LEAGUE V. BPA 3
The panel held that the agencies complied with NEPA
when they finalized their 2011 decision without preparing an
environmental impact statement. The panel held that holding
lake levels constant from 1997 to 2011 did not change the
status quo, and reverting to the previous regime of fluctuating
the lake levels did not change the status quo either.
The panel held that because the agencies’ decision
adopting flexible winter operations did not trigger NEPA’s
requirement to publish an environmental impact statement,
petitioner’s challenges to the environmental assessment’s
finding of no significant impact were moot. The panel held
that petitioner did not properly raise a challenge to the
Bonneville Power Administration’s failure to prepare a
supplemental environmental impact statement addressing the
effects of the flowering rush on the dam’s operation.
COUNSEL
Bryan Hurlbutt (argued), Advocates for the West, Boise,
Idaho, for Petitioner.
Hub V. Adams (argued), Attorney; Jacilyn R. Margeson,
Assistant Attorney General; Randy A. Roach, General
Counsel; Bonneville Power Administration, Portland,
Oregon; David J. Adler, Special Assistant United States
Attorney; S. Amanda Marshall, United States Attorney;
Stephen J. Odell, Assistant United States Attorney; United
States Attorney’s Office, Portland, Oregon; for Respondent.
4 IDAHO CONSERVATION LEAGUE V. BPA
OPINION
KOZINSKI, Circuit Judge:
Operated by the Army Corps of Engineers (Corps), the
Albeni Falls Dam helps provide power to the Pacific
Northwest. The Bonneville Power Administration (BPA) is
charged with marketing the power generated from the dam.
In 2011, the agencies decided to change how they operated
the dam during the winter months. We consider whether they
complied with the National Environmental Policy Act
(NEPA) when they finalized this decision without preparing
an environmental impact statement.
FACTS
The Albeni Falls Dam straddles the Pend Oreille River,
which connects Lake Pend Oreille and the Columbia River.
Completed in 1957 as part of the Federal Columbia River
Power System, it is jointly managed by the Corps, BPA and
the Bureau of Reclamation. Like other dams in the System,
the Albeni Falls Dam is operated to balance a variety of
competing objectives, such as flood control, power
generation, navigation and wildlife conservation.
Lake Pend Oreille serves as the dam’s reservoir. When
water is released from the lake, it drives turbines that generate
electricity. This decreases the reservoir’s depth and causes its
shoreline to recede. For decades, the Corps maintained the
flexibility to generate power during the winter months. In the
initial winters of the dam’s operation, starting in the late
1950s, the Corps fluctuated the level of the lake to generate
power as needed. In some years, however, the Corps held the
lake’s level constant, often near 2051 feet.
IDAHO CONSERVATION LEAGUE V. BPA 5
In 1995, the Corps determined that allowing the lake’s
elevation to drop during the winter months had adverse
effects on the kokanee salmon population and so beginning
in 1997 began holding the lake’s elevation constant. But in
2009, BPA urged the Corps to return to a more flexible
approach to winter dam management. After two years of
discussions and a public comment period, the agencies
confirmed in a 2011 environmental assessment (EA) that they
planned to follow through with BPA’s proposal. The plan for
“flexible winter power operations” gives the Corps the option
each winter to store water in the reservoir and then release it
through the dam according to power needs. Thus, instead of
keeping the lake’s level constant, the Corps may allow it to
rise and fall by as much as five feet during the winter.
The EA concludes that the proposed winter fluctuations
will have no significant environmental impact. Accordingly,
the agencies decided to move forward with the proposal
without preparing an environmental impact statement (EIS).
See 40 C.F.R. §§ 1501.4(b)–(c), 1508.9. Petitioner
challenges this decision as a violation of NEPA and asks us
to require BPA to prepare an EIS. We have original
jurisdiction pursuant to the Northwest Power Act. 16 U.S.C.
§ 839f(e)(5).
DISCUSSION
NEPA, which applies to all federal agencies, 42 U.S.C.
§ 4332, doesn’t dictate particular policy outcomes; instead, it
regulates the manner in which agencies arrive at them.
Specifically, for all “major Federal actions significantly
affecting the quality of the human environment,” the agency
must prepare an EIS, which is a detailed study examining the
environmental consequences of its decision. Id.6 IDAHO CONSERVATION LEAGUE V. BPA
§ 4332(2)(C). An EA is meant to briefly document the
reasons for the agency’s determination whether an EIS is
required. 40 C.F.R. § 1508.9; see Cascadia Wildlands v.
Bureau of Indian Affairs, 801 F.3d 1105, 1111 (9th Cir.
2015). The EA here concludes that no EIS is required
because the proposed action will not “result in any new
significant impacts to the human environment.”
1. NEPA only requires the preparation of an EIS when a
proposed federal action is major. See Upper Snake River
Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 234–35
(9th Cir. 1990). A federal action that may have significant
environmental impacts need not “also be ‘major’ in an
economic or some other nonenvironmental sense to trigger
the EIS requirement.” City of Davis v. Coleman, 521 F.2d
661, 673 n.15 (9th Cir. 1975); see 40 C.F.R. § 1508.18(“Major reinforces but does not have a meaning independent
of significantly.”). But when an agency, responding to
changing conditions, makes a decision to operate a completed
facility “within the range originally available” to it, the action
is not major. Upper Snake River, 921 F.2d at 235 (quoting
Cty. of Trinity v. Andrus, 438 F. Supp. 1368, 1388 (E.D. Cal.
1977)). In other words, “where a proposed federal action
would not change the status quo, an EIS is not necessary.”
Id.; accord San Luis & Delta-Mendota Water Auth. v. Jewell,
747 F.3d 581, 646 (9th Cir. 2014).
Upper Snake River involved a challenge to the Bureau of
Reclamation’s management of the Palisades Dam. Upper
Snake River, 921 F.2d at 233. Reclamation typically ensured
that water flowed into the Snake River at a rate of at least
1,000 cubic feet per second. Id. In response to a drought, the
agency reduced water flow below that rate in two consecutive
years and wanted to do so a third time without preparing an
IDAHO CONSERVATION LEAGUE V. BPA 7
EIS. Id. at 233 & n.1, 234. We acknowledged that, “if an
ongoing project undergoes changes which themselves amount
to ‘major Federal actions,’ the operating agency must prepare
an EIS.” Id. at 234. But Reclamation was not effecting a
substantial operational change or expanding the Palisades
Dam’s original facilities. Instead, the agency was doing what
it had always done: “from time to time and depending on the
river’s flow level, adjust[ing] up or down the volume of water
released from the Dam.” Id. at 235. Accordingly, we found
that Reclamation did not need to prepare an EIS. Id. at 236.
If the agencies in our case have consistently fluctuated
winter lake levels, formalizing that approach would not be a
major federal action because the agencies would be “doing
nothing new, nor more extensive, nor other than that
contemplated when the [Albeni Falls Dam] was first
operational.” Id. at 235. The Corps fluctuated the elevation
of Lake Pend Oreille in many winters prior to 1997, and
various dam management strategies considered in a 1995 EIS
included elements of what is now the proposal for flexible
winter operations. Accordingly, the question is whether
holding lake levels constant from 1997 to 2011 changed the
status quo. If not, then reverting to the previous regime
doesn’t change the status quo either.
The Corps discussed holding winter lake levels constant
in an EA published in 1995. This document reviewed a
proposal for a three-winter test to hold the lake at a high
minimum and found that doing so would have no significant
environmental impacts. BPA and the Corps subsequently
published Records of Decision putting this plan into action.
We have explained that the time for an EIS is when an agency
undertakes a “significant shift of direction in operating
policy.” Grand Canyon Trust v. U.S. Bureau of Reclamation,
8 IDAHO CONSERVATION LEAGUE V. BPA
691 F.3d 1008, 1022 (9th Cir. 2012) (as amended). And, for
purposes of NEPA, the term “[m]ajor reinforces but does not
have a meaning independent of significantly.” 40 C.F.R.
§ 1508.18. Thus, this short-term decision, which was found
to have no significant environmental impact, could not have
constituted a major federal action because it wasn’t a
significant or long-term change in operating policy. In short,
it did not change the status quo.
Actions taken with respect to winter dam management
since 1995 reinforce the conclusion that there was no change
to the status quo. As mentioned, the plan to hold winter lake
levels constant began as a three-year test. The agencies
managing the dam twice decided to carry forward this
management strategy at the urging of the U.S. Fish and
Wildlife Service. It’s also notable that, since 2000, an
interagency team has met each year to recommend the lake’s
constant elevation for the coming winter. In four winters
from 1996 to 2011, Lake Pend Oreille was held near 2051
feet; the lake was also held near that elevation in eight
winters between 1980 and 1995. See Upper Snake River,
921 F.2d at 235 (finding that even if an agency had only
engaged in a proposed action sporadically in the past, that
was enough to show that repeating that action did not change
the status quo). As in Upper Snake River, the agencies here
considered each year how to manage the Albeni Falls Dam
based on that year’s conditions. The Corps never
relinquished its authority to fluctuate the lake’s elevation in
response to power demands: The Corps’ 2002 Water Control
Manual notes that Lake Pend Oreille “is usually operated”
within a one-foot range above the winter minimum, but that
“storage above [that minimum] may be used for . . .
unscheduled hydropower operations.” Thus, from 1997 to
2011, the agencies maintained the discretion they have
IDAHO CONSERVATION LEAGUE V. BPA 9
always had to respond annually to changing conditions. See
id. Continuing to do so did not change the status quo.
Because the period when the agencies held winter lake
levels constant did not change the operational status quo,
neither does the decision to revert to flexible winter
operations. Power generation has always been among the
central concerns in operating the dam. For example, a 1948
Army report on plans for the dam explained that, “[d]uring
the fall and winter period when regional power supply is
lowest and power loads are greatest, the stored water [at Lake
Pend Oreille] will be drawn upon for power purposes.” The
EA echoes that report, noting that “[t]he purpose of [flexible
winter operations] is to more efficiently use the available
water storage capabilities at AFD to generate power during
the winter” and that “[s]toring water in the near term will
provide power benefits at a future date when that water is
released[,] . . . depend[ing] on power prices, load demand,
and conditions at [another dam].” As the EA further
explains: “Historically, winter power operations have been
associated with [releasing] water for power. Water was
stored for power operations during the winter in the 1980s
and early 1990s.” Thus, in some winters the lake has
fluctuated, and in others it hasn’t. Accordingly, the agencies
will be doing “nothing new, nor more extensive, nor other
than that contemplated when the project was first
operational.” Upper Snake River, 921 F.2d at 235.
Petitioner argues that Upper Snake River is
distinguishable because “[u]nder existing operations, the
Corps maintains steady lake levels throughout winter,” while
under flexible winter operations, “lake levels would be raised
and lowered over a five-foot range up to three times every
winter for the life of the Dam.” But Petitioner’s view of
10 IDAHO CONSERVATION LEAGUE V. BPA
“existing operations” is incorrectly limited to operations since
the publication of the 1995 EA. Moreover, Petitioner
mischaracterizes the proposal. According to the current EA,
it’s “unlikely” that lake levels would rise and fall over a five-
foot range three times every winter—a variety of factors, such
as power demand and weather conditions, will influence how
the agencies operate the dam each year. Additionally, there
may still be winters where the agencies hold the lake’s level
constant in order to facilitate kokanee reproduction. Thus,
the flexible winter operations proposal comprises elements of
both earlier and more recent management strategies. These
details support the conclusion that the agencies charged with
operating the Albeni Falls Dam will do so in accordance with
the status quo. Id.; see also Grand Canyon Trust, 691 F.3d at
1022.
Petitioner finally argues that implementing flexible winter
operations requires an EIS because the continued operation of
the Albeni Falls Dam is itself a major federal action that
significantly affects the human environment. See 40 C.F.R.
§ 1508.18(a) (“Actions include new and continuing activities
. . . .”). But decisions made as a part of the ongoing operation
of a federal project must themselves “rise to the level of
major federal actions to warrant preparation of an EIS.”
Upper Snake River, 921 F.2d at 235 n.3. Requiring an agency
to prepare an EIS every time it takes an action consistent with
past conduct would grind agency decisionmaking to a halt.
Cf. Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 373 (1989)
(explaining that requiring a supplemental EIS every time new
information is available “would render agency
decisionmaking intractable”); Grand Canyon Trust, 691 F.3d
at 1022 (noting it would be neither pragmatic nor realistic to
require an agency to prepare an EIS when it engages in
“routine and required annual reporting”).
IDAHO CONSERVATION LEAGUE V. BPA 11
2. Petitioner claims the EA arbitrarily concludes that
flexible winter operations will have only an incremental
impact on the spread of the flowering rush, an invasive
species that was discovered around Lake Pend Oreille in
2008. Because the decision adopting flexible winter
operations doesn’t trigger NEPA’s requirement to publish an
EIS, this and Petitioner’s other challenges to the EA’s finding
of no significant impact are moot. See Upper Snake River,
921 F.2d at 234.
Petitioner also argues in passing that, because the
flowering rush has never been considered in a NEPA
document, “BPA arbitrarily limited its analysis of flowering
rush impacts to only the incremental impacts attributable to
the new winter fluctuations; BPA never considered the
significance of the spread of flowering rush in relation to the
Dam’s year-round operation.” Agencies have a continuing
duty to “prepare supplements to . . . final environmental
impact statements” if there are “significant new
circumstances or information relevant to environmental
concerns” that were not considered in an earlier EIS.
40 C.F.R. § 1502.9(c)(1); Marsh, 490 U.S. at 372–74. The
relevant EIS in this case is the 1995 Columbia River Power
System Operation Review Environmental Impact Statement
(SOR EIS), a programmatic EIS that evaluated a range of
alternative management strategies for the 14 federal dams and
reservoirs in the Columbia River Power System. The EA
here acknowledges that the SOR EIS did not consider the
effect of the dam’s operation on the flowering rush and
characterizes the rush’s spread as “new information.” It
nevertheless concludes that there are “no significant new
circumstances or information” warranting preparation of a
supplemental EIS.
12 IDAHO CONSERVATION LEAGUE V. BPA
Petitioner may well have a colorable claim that the
agencies managing the Albeni Falls Dam must supplement
the SOR EIS with an analysis of how year-round dam
operations, as compared with flexible winter operations
specifically, affect the “seemingly inevitable spread of this
invasive species.” But this question is outside the scope of
this case; Petitioner sought review of “the final decision . . .
adopting the ‘Flexible Winter Power Operations’ at Albeni
Falls Dam.” Petitioner’s opening brief similarly frames the
issue as whether BPA violated NEPA by “approving the new
winter operations without preparing an up-to-date EIS” and
concludes by asking us to “reverse and remand the . . . EA
approving the Flexible Winter Operations.” Petitioner only
mentions in a footnote that BPA might need to prepare a
supplemental EIS addressing the impact of year-round dam
operations on the flowering rush. We do not “ordinarily
consider matters on appeal that are not specifically and
distinctly argued” in an opening brief, Laboa v. Calderon,
224 F.3d 972, 985 (9th Cir. 2000), including those raised only
in a footnote, see id. at 985 n.8. A later agency decision or
action may provide Petitioner occasion to challenge BPA’s
failure to prepare a supplemental EIS addressing the
flowering rush. But the time has passed to do so as part of a
challenge to this EA.
We address Petitioner’s remaining claims in a
memorandum disposition filed concurrently herewith.
DENIED.