Appendices — Churchill County v. Norton

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-15967

CHURCHILL COUNTY; CITY OF FALLON,

Plaintiffs-Appellants,

V.

GALE A. NorTON, in her official capacity as Secretary of the

Interior;* WILLIAM BETTENBERG, in his official capacity as

Assistant Director, Office of Policy Analysis, Department

of the Interior; JEFFREY ZIPPIN, in his official capacity as

Team Leader Truckee-Carson Coordination Office,

Department of the Interior; RONALD ANGLIN, in his official

capacity as Refuge manager, Stillwater NationalWildlife

Refuge, Department of the Interior; MARVIN PLENERT, in

his official capacity as Regional Director of the U.S. Fish

and Wildlife Service; JOHN DOEBEL, in his official capacity

as Assistant Regional Director of the U.S. Fishand Wild-

life Service; and ANN BALL, in her official capacity as

Project Manager of Bureau of Reclamation Lahontan Basin

Project Office,

Defendants-Appellees,

and SIERRA PACIFIC POWER COMPANY,

Defendant-Intervenor.

March 11, 2002, Filed

* Gale A. Norton is substituted for her predecessor, Bruce Babbitt, as

Secretary of the Interior.

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ORDER AMENDING OPINION AND

DENYING PETITION FOR REHEARING AND

REHEARING EN BANC

PAEZ, Circuit Judge:

The panel has unanimously voted to deny the petition for

rehearing. The full court has been advised of the petition for

rehearing en banc, and no judge of the court has requested a

vote on the petition for rehearing en banc. Fed. R. App. P.

35(b). The petitio> for rehearing is denied and the petition for

rehearing en banc is ,ejected.

The opinion filed December 19, 2001, is hereby

AMENDED as follows:

1. On page 17022 of the slip opinion [Pet. App. 8a], in the

sentence beginning, “The Secretary withdrew .. . .” delete

“20,000 acres” and replace with “approximately 200,000

acres.”

2. On page 17029 of the slip opinion [Pet. App. 16a], the

sentence reading, “For example, Section 204 confirmed a

court-ordered allocation between California and Nevada of

water from the Carson River, Lake Tahoe, and the Truckee

River.” is deleted and replaced with the following two

sentences: “For example, Section 204 confirmed the Alpine

Decree, allocating water from the Carson River between

California and Nevada. It also allocated water from the

Truckee River and Lake Tahoe between the two states.”

3. On page 17031 of the slip opinion [Pet. App. 17a], the

two sentences reading, “The Newlands Project’s Operating

Criteria and Procedures (OCAP) must be revised. The Section

also covers expansion of the Newlands Project purposes to

include recreation.” are deleted and replaced by the following

two sentences: “It expands the authorized purposes of the

Newlands Project to include recreation and water quality,

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among others. The Section also requires the Secretary to

study the feasibility of improving the conveyance efficiency

of Newlands Project facilities.”

4. On page 17036 of the slip opinion [Pet. App. 22a], the

following two sentences are deleted: “Fallon’s underground

water rights are served by the Newlands Project. Its municipal

water system is served and supplied by wells whose aquifers

are recharged through surface irrigation.” They are replaced

by the following sentence: “Fallon’s municipal water system

is served and supplied by wells whose aquifers are recharged,

at least in part, through surface water diverted through the

Newlands Project.”

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 00-15967

CHURCHILL COUNTY; CITY OF FALLON,

Plaintiffs-Appellants,

V. »

GALE A. NorRTON, in her official capacity as Secretary of the

Interior; WILLIAM BETTENBERG, in his official capacity as

Assistant Director, Office of Policy Analysis, Department

of the Interior; JEFFREY ZIPPIN, in his official capacity as

Team Leader Truckee-Carson Coordination Offfice,

Department of the Interior; RONALD ANGLIN, in his official

capacity as Refuge manager, Stillwater National Wildlife

Refuge, Department of the Interior; MARVIN PLENERT, in

his official capacity as Regional Director of the U.S. Fish

and Wildlife Service; JOHN DOEBEL, in his official

capacity as Assistant Regional Director of the U.S. Fish

and Wildlife Service; and ANN BALL, in her official

capacity as Project Manager of Bureau of Reclamation

Lahontan Basin Project Office, :

Defendants-Appellees,

and SIERRA PACIFIC POWER COMPANY,

Defendant-Intervenor.

JUDGES: Before: Joseph T. Sneed, Susan P. Graber, and

Richard A. Paez, Circuit Judges.

* Gale A. Norton is substituted for her predecessor, Bruce Babbitt, as

Secretary of the Interior. Fed. R. App.P. 43(c)(2).

Sa

PAEZ, Circuit Judge:

For more than a century, myriad interests, from individuals

to power companies to Indian tribes, from federal to state to

local governments, have disputed the rights to water from the

Truckee and Carson Rivers. Through its enactment of Public

Law 101-618, 104 Stat: 3289 (1990), Congress addressed

years of legal challenges regarding the over-committed water

resources of this region. This action involves Title II of

Public Law 101-618—the Truckee-Carson Pyramid Lake

Water Rights Settlement Act (“Settlement Act”).? Title II

includes a variety of provisions intended to settle disputes

over the rights to water from the Truckee and Carson Rivers

and to address the environmental effects of overuse. Many of

these provisions direct actions involving water allocation and

usage in the region.

Section 206(a) of the Settlement Act requires the Secretary

of the Interior to acquire sufficient water and water rights

from willing sellers to sustain approximately 25,000 acres (on

a long-term average) of primary wetland habitat located in the

Lahontan Valley of west-central Nevada. The Fish and

Wildlife Service (“FWS” or “Service”) prepared an

Environmental Impact Statement (“EIS”) in connection with

the implementation of Section 206(a). The Service evaluated

five alternative strategies for acquiring water rights and

related interests, including a “no action alternative,” and

selected Alternative 5. Alternative 5 provides for purchases

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' “Water litigation is a weed that flowers in the arid West.” United

States v. Orr Water Ditch Co., 256 F.3d 935, 940 (9th Cir. 2001).

? Title I—the Fallon Paiute-Shoshone Indian Tribes Water Rights

Settlement Act of 1990—established a $43 million fund for, among other

purposes, the Tribes’ economic development and acquisition of land,

water rights, or related property interests to consolidate the Tribes’

Reservation holdings in exchange for the Tribes’ release of all claims

against the United States.

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from willing sellers of up to 55,000 acre-feet of water rights

in the Carson Division, supplementing water and water rights

already acquired under an earfier acquisition effort or to be

acquired from other sources, such as the Carson River above

the Lahontan Reservoir. In September 1996, the Service

published the Final Environmental Impact Statement, Water

Rights Acquisition for Lahontan Valley Wetlands, Churchill

County, Nevada (“WEIS”).

Plaintiffs, Churchill County and the City of Fallon, filed

separate actions and one joint action asserting claims for

violation of the National Environmental Policy Act of 1969

(“NEPA”), 42 U.S.C. §§ 4321-4370f. Plaintiffs contend that

(1) the Service violated NEPA by approving land and water

rights purchases pursuant to Section 206 of the Settlement

Act without first preparing a programmatic EIS analyzing the

cumulative and synergistic impacts of the Act’s interrelated

provisions; and (2) the WEIS, prepared in connection with

Section 206, failed to comply with NEPA _ because

Defendants did not adequately assess the cumulative impacts

of actions other than wetlands acquisitions, failed to study

impacts to groundwater, and failed to define and study a

reasonable range of alternatives.

Early in the litigation, the district court granted

Defendants’ motion for summary judgment on the ground

that Plaintiffs lacked standing. We reversed, holding that the

County and the City had established standing. Churchill

County v. Babbitt, 150 F.3d 1072, 1078 (9th Cir.), amended

by 158 F.3d 491 (9th Cir. 1998).

On March 31, 2000, the district court granted Defendants’

motion for summary judgment on the programmatic EIS

claims, concluding that Sections 205, 206, 207, 209, and

210(b)(16) are not “connected actions” or “related actions”

that have cumulative or synergistic impacts. As a result, these

other projects and directives did not need to be addressed

in a single comprehensive EIS. The court also granted

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Defendants’ cross-motion and denied Plaintiffs’. cross-motion

on the adequacy of the WEIS, concluding that it satisfied

NEPA’s procedural requirements by analyzing the potential

adverse environmental impacts of implementing Section

206(a) and considering a wide range of reasonable, feasible

alternatives.

Plaintiffs timely appealed. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

I

RELEVANT FACTUAL BACKGROUND

Water has always been scarce in Nevada. Indeed, “Nevada

has, on the average, less precipitation than any other State in

the Union.” Nevada v. United States, 463 U.S. 110, 114, 77

L. Ed. 2d 509, 103 S. Ct. 2906 (1983). “Ninety percent of the

annual precipitation is lost to evaporation and transpiration,

compounding the problems of a naturally short growing

season.” A. Dan Tarlock, The Creation of New Risk Sharing

Water Entitlement Regimes: The Case of the Truckee-Carson

Settiemeni, 25 Ecology L.Q. 674, 677 (1999).

The Carson and Truckee Rivers provide western Nevada

with its water supply. The Carson River “rises on the eastern

slope of the High Sierra in Alpine County, California, and

flows north and northeast over a course of about 170 miles,

finally disappearing into Carson sink.” Nevada, 463 U.S. at

115. The Truckee River “rises in the High Sierra in Placer

County, California, flows into and out of Lake Tahoe, and

thence down the eastern slope of the Sierra Nevada

mountains. It flows through Reno, Nevada, and after a course

of some 120 miles debouches into Pyramid Lake, which has

no outlet.” 463 U.S. at 114; see also S. Rep. No. 101-555,

at 8 (1990).

“It has been said that Pyramid Lake is ‘widely considered

the most beautiful desert lake in North America[and that its]

fishery [has] brought it worldwide fame.“ Nevada, 463 U.S.

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at 114 (citation omitted). The lake and surrounding areas have

been the ancestral home of the Pyramid Lake Paiute Tribe for

centuries. Two fish species—the cui-ui (a type of sucker fish

found only in Pyramid Lake) and the Lahontan cutthroat

trout—are of great economic, cultural, and spiritual value to

the Tribe. E. Leif Reid, Note, Ripples From the Truckee: The

Case for Congressional Apportionment of Disputed Interstate

Water Rights, 14 Stan. Envtl. L.J. 145, 149 (Jan. 1995); S.

Rep. No. 101-555, at 11. Today, the cui-ui is a federally listed

endangered species, and the Lahontan cutthroat trout is listed

as threatened.

“In 1859 the Department of the Interior set aside nearly

half a million acres in what is now western Nevada as a

reservation for the area’s Paiute Indians. In 1874 President

Ulysses S. Grant by executive order confirmed the

withdrawal as the Pyramid Lake Indian Reservation. The

Reservation includes Pyramid Lake, the land surrounding it,

the lower reaches of the Truckee River, and the bottom land

alongside the lower Truckee.” Nevada, 463 U.S. at 115.

The City of Fallon is located southeast of the Pyramid Lake

Indian Reservation and has a population of 8,300. It is the

county seat of Churchill County, whose population is 25,000.

Agricultural production has long been an important part of

the County’s economic base, due in large part to the

Newlands Reclamation Project, one of the earliest projects

the Bureau of Reclamation built after passage of the

Reclamation Act of 1902, Pub. L. No. 57-161, 32 Stat. 388

(1902). S. Rep. No. 101-555, at 10. The Reclamation- Act

“directed the Secretary of the Interior to withdraw from

public entry arid lands in specified western States, reclaim the

lands through irrigation projects, and then to restore the lands

to entry pursuant to the homestead laws and certain

conditions imposed by the Act itself.” Nevada, 463 U.S. at

115. The Secretary withdrew from the public domain

approximately 200,000 acres in western Nevada, which

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ultimately became the Newlands Reclamation Project. “The

Project was designed to irrigate a substantial area in the

vicinity of Fallon, Nevada, with waters from both the Truckee

and the Carson Rivers.” Jd. To divert the water from the

Truckee River, the government constructed the Derby

Diversion Dam on the lower Truckee and the Truckee Canal.

This flow was augmented by water from the Carson River.

Thus, both the Truckee and Carson rivers contributed to the

Newlands Reclamation Project.

When Captain John C. Fremont recorded his impressions

back in 1844,? Pyramid Lake was about 50 miles long and 12

miles wide. The lake evaporates approximately four feet—

roughly 440,000 acre-feet—per year. The Newlands Project

has exacerbated the negative effects of evaporation. Between

1925 and 1967, more than 50 percent of the flow of the

Truckee River, an average of approximately 260,000 acre-

feet per year, was diverted at Derby Dam to the Newlands

Project. The level of Pyramid Lake dropped about 40 feet

between 1920 and 1938. The combination of evaporation and

diversion thus reduced the surface area of the lake by 20,000

acres, forming a delta that prevents the trout and cui-ui from

reaching their spawning grounds in the Truckee River.

S. Rep. No. 101-555, at 11.

The Newlands Project has also diverted the waters of the

Carson River. “Experience in the early days of the Project

indicated the necessity of a storage reservoir on the Carson

River, and accordingly Lahontan Dam was constructed and

Lahontan Reservoir behind that Dam was created.” Nevada,

463 U.S. at 116. Several irrigation canals deliver water from

the Lahontan Reservoir to farms and ranches in Churchill

County. /d. Although the original Newlands Project plan

> The Lake “broke upon our eyes like the ocean” and was “set like a

gem in the mountains.” | The Expeditions of John Charles Fremont 604-

05 (1970), quoted in Nevada, 463 U.S. at 114.

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contemplated irrigation of about 200,000 acres, no more than

65,000 acres were irrigated. S. Rep. No. 101-555, at 10.

“The impacts of Newlands Project diversions on the

Pyramid Lake fishery triggered protracted and repeated

litigation by the Pyramid Lake Paiute Tribe and the United

States against the Newlands Project’s operator, Truckee-

Carson Irrigation District, and virtually every user of Truckee

River water in Nevada and California.” Id. at 11. In 1913, the

United States filed a complaint in the United States District

Court for the District of Nevada, for the benefit of both the

Newlands Project and the Pyramid Lake Reservation, to quiet

title to Truckee River water rights, beginning what became

known as the Orr Ditch litigation. The government named all

the water users on the Truckee River as defendants.

The parties reached a settlement agreement in 1935. In 1944,

the district court adopted the agreement and entered a final

decree. Nevada, 463 U.S. at 118.

In 1973, the United States, later joined by the Pyramid

Lake Paiute Tribe, sued all those claiming water rights to the

Truckee and its Nevada tributaries. In pursuing that action,

the plaintiffs sought to obtain more water from the Truckee

River for Pyramid Lake and its fisheries. S. Rep. No. 101-

555, at 13. The plaintiffs argued that the Orr Ditch decree had

not concluded the controversy, but had only quantified the

Reservation’s right to water for agricultural purposes, not for

the Lake and fisheries. Nevada, 463 U.S. at 143-45. The

Supreme Court ultimately rejected the plaintiffs’ argument.

Carson River water and water rights have been the subject

of litigation as well. In 1925, the United States sued to

adjudicate the water rights. After years of litigation, the

district court entered a final decree in 1980. United States v.

Alpine Land & Reservoir Co., 503 F. Supp. 877 (D. Nev.

1980), aff'd, 697 F.2d 851 (9th Cir. 1983), cert. denied, 464

U.S. 863 (1983). Among other things, the Alpine decree

quantified individual water rights, established the rights to

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reservoir storage in the upper Carson River watershed, and

provided a starting point for an interstate allocation. S. Rep.

No. 101-555, at 19.

In February 1967, “the Secretary of the Interior adopted

general operating criteria and procedures [OCAP] to govern

the exercise of water rights held by the United States in the

Truckee and Carson River systems.” S. Rep. No. 101-555, at

14. The criteria were intended to “maximize the use of

Carson River waters to meet water requirements on the

Newlands Project and conserve Truckee flows so as to make

as much water available to Pyramid Lake as possible.” /d.;

see also 43 C.F.R. § 418.17.

II

THE CURRENT CONTROVERSY

A. The Lahontan Valley Wetlands

For at least 4,000 years, the Lahontan Valley wetlands *

have supported a wide diversity of wildlife. The wetlands

“provide expansive areas of uniformly shallow wetland

habitats with waters of varying salinity.” WEIS at 3-58. The

wetlands shrink and swell continuously, according to season

and over geologic time. “Within the span of one season, these

wetlands can transform from shallow lakes with clear, fresh

water, to shallow, brackish marshes with high salt

concentrations.” /d.

Historically, runoff from the Sierra Nevada, via the Carson

River, has provided the main inflow of fresh water to the

wetlands. Between 40 and 60 percent of the annual flow has

come from runoff from April through July, thereby flushing

the wetlands of accumulated salts and other dissolved solids.

*The Lahontan Valley wetlands include the Stillwater Wildlife

Management Area, the Stillwater National Wildlife Refuge (located in

Churchill County), and the Carson Lake and Pasture.

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As inflow of water from the Carson River tapered off in

summer and as evaporation increased, the wetlands would

shrink. Shallower, more saline marsh habitats remained. /d.

at 3-59.

These fluctuations in inflow created a variety of habitats

and attracted diverse animal species, including ducks, geese,

pelicans, wading birds, and shorebirds. /d. at 3-59 to 3-60; S.

Rep. No. 101-555, at 16. “Over 410,000 ducks, 28,000 geese

and 14,000 swans have been observed using the area annually

during wet year spring and fall migrations.” S. Rep. No. 101-

555, at 16. In addition, “Anaho Island National Wildlife

Refuge, located in Pyramid Lake, supports the largest nesting

colony of American white pelicans in North America... .

The number of young pelicans produced at Anaho Island

dropped from 6,000 in 1987 to 300 in 1989.” Jd. at 17.

As water upstream from the wetlands was diverted for

agricultural purposes, the Stillwater marshes, Carson Lake,

and Carson sink largely dried up. “Episodic flooding, which

had once sent voluminous springtime flows into the marshes

was contained by Lahontan Dam and stored in Lahontan

Reservoir for irrigation use.” WEIS at 3-60. By 1987, less

than 15 percent of the wetlands remained, just 15,000 acres.

S. Rep. No. 101-555, at 16. Although the situation has

improved somewhat, the Newlands Project is widely

acknowledged to have contributed substantially to the loss of

wetland acreage by eliminating areas entirely or by

intercepting “clean water supplies and __ substituting

agricultural drainage.” /d. Waterfowl still use the remaining

wetlands. As the water evaporates, however, “naturally

occurring trace elements such as arsenic, boron, lithium,

molybdenum, mercury and selenium are becoming

concentrated, some reaching toxic levels.” /d. No one

disputes the fact that the survival of the Lahontan Valley

wetlands depends upon significantly increased firm supplies

of clean water. In fact, even before passage of the Settlement

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Act, funds had been appropriated for acquisition of water

rights for this purpose. WEIS, at 1-33 to 1-34 (“The Service’s

Proposed Action and action alternatives would be a

continuation of a water rights acquisition program for the

Lahontan Valley wetlands which was first initiated by the

Service in 1989 under previous appropriations and existing

authorities (not Public Law 101-618).”).

B. The Settlement Act

“The circumstances behind . . . title [II] are unusually

complex, involving interstate water apportionment,

management of Federal water storage and diversion facilities,

protection and restoration of wetlands and endangered and

threatened fish species, and the settlement of Indian tribal

claims to water and other interests.” S. Rep. No. 101-555, at

8. In short, Congress recognized that everyone wants and

needs the water:

The Truckee is the principal source of water for

irrigation, municipal, industrial and domestic uses in the

Reno-Sparks metropolitan area and provides water to the

Newlands Reclamation Project, near Fallon, Nevada.

The Carson River provides water for irrigation and some

municipal use in California, and is extensively used for

irrigation in Nevada. The Carson is the principal source

of water for the Newlands Reclamation Project.

Id. at 9.

United States Senator Harry Reid of Nevada is credited

with urging use of a “problemshed” approach regarding the

Truckee and Carson basins, “addressing many issues

simultaneously, and getting all the key parties that could veto

a settlement involved in the negotiating process.” Douglas S.

Kenney and William B. Lord, Analysis of Institutional

Innovation in the Natural Resources and Environmental

Realm: the Emergence of Alternative Problem-Solving

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Strategies in the American West 77-78 (University of

Colorado 1999).° Specifically, the Pyramid Lake Paiute

Tribe, Sierra Pacific Power Company (representing the

interests of Reno-Sparks), the States of Nevada and

California, Truckee-Carson Irrigation District (representing

irrigation interests and most water rights holders), and the

Department of the Interior were invited to the table. Each

participant had a different goal:

The tribe sought increased flows into Pyramid Lake,

clear title to the beds and bank of the lake, and funding

for fisheries management and habitat restoration. Sierra

Pacific was primarily interested in obtaining upriver

storage on the Truckee to provide drought protection for

* Senator Reid offered his perspective on the context in which the

Settlement Act was enacted in a statement before the Senate

Subcommittee on Water and Power of the Senate Energy and Natural

Resources Committee:

The negotiations that led to Public Law 101-618 were historic in

my state. They brought together a diverse group of interests that had

been pitted against each other in the water wars: electrical power,

recreationists, environmentalists, an Indian tribe and the business

community of the Greater Reno-Sparks area . . . . Absent from any

real participation in this process were the agricultural! water users as

represented by the Truckee-Carson Irrigation District. This absence

was not because they were not invited to the table, but because they

withdrew .. . . I note this, Mr. Chairman, because we are now at

another crossroads. Agriculture in the Lahontan Valley of

northwestern Nevada is an important part of the history of our state.

With the growth of Nevada, its overall economic influence has

waned, but it is still an economy that I would like to see preserved

to the full extent possible . . . . I believe that legitimate agricultural

needs can be met, but they must be one part of an overall picture,

not the sole snapshot.

Newlands Project, Nevada: Hearing Before the Subcomm. on Water and

Power of the Senate Comm. on Energy and Natural Res. Comm., 103rd

Cong. 461 (Pt. 2)(April 12, 1994).

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Reno-Sparks . . . . The states wanted greater certainty in

regional allocation matters, something that could be

achieved by congressional ratification of the interstate

water allocation compact. Parties associated with TCID

generally wanted to maintain the status quo and their

senior water rights. The federal government presumably

sought to honor all federal obligations and protect all

federal rights in an efficient manner.

Id. at 78.

The final agreement Congress enacted in 1990 set forth the

purposes of Title II, the Truckee-Carson Pyramid Lake Water

Rights Settlement Act (“Settlement Act”):

(a) [to] provide for the equitable apportionment of the

waters of the Truckee River, Carson River, and Lake

Tahoe between the State of California and the State of

Nevada;

(b) [to] authorize modifications to the purposes and

operation of certain Federal Reclamation project

facilities to provide benefits to fish and wildlife,

municipal, industrial, and irrigation users, and

recreation;

_ (c) [to] authorize acquisition of water rights for fish and

wildlife;

(d) [to] encourage settlement of litigation and claims;

(e) [to] fulfill Federal trust obligations toward Indian

tribes;

(f) [to] fulfill the goals of the Endangered Species Act

by promoting the enhancement and recovery of the

Pyramid Lake fishery; and

(g) [to] protect significant wetlands from further

degradation and enhance the habitat of many species of

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wildlife which depend on those wetlands, and for other

purposes.

Settlement Act § 202.

The Settlement Act directed several actions involving

water allocation and usage in the region. For example,

Section 204 confirmed the Alpine Decree, allocating water

from the Carson River between California and Nevada. It

also allocated water from the Truckee River and Lake Tahoe

between the two states. Likewise, pursuant to Section 205, the

Secretary of the Interior is required to negotiate with

California and Nevada to reach an agreement governing

operation of the reservoirs in the Truckee River basin. These

negotiations are to culminate in the Truckee River Operating

Agreement (“TROA”). The TROA must provide, among

other things, for operation of the Truckee River reservoirs to

satisfy dam safety and flood control requirements and to

enhance the spawning flows available for the Pyramid

Lake fishery.

Section 206(a), the section of the Settlement Act in relation

to which the WEIS was prepared, “is intended to lay the

foundation for the restoration and permanent protection of

Great Basin wetland ecosystems in the Lahontan Valley,

including the Stillwater National Wildlife Refuge.” S. Rep.

No. 101-555, at 24. Subsection (a) directs the Secretary to

acquire and manage sufficient water and water rights to

support 25,000 acres of wetlands. Jd. The Secretary is

expected to meet this requirement through purchases (only

from willing sellers), leases, exchanges, and public and

private donations, among other means. /d. at 25. Further, “the

Secretary is directed to acquire and use water and water rights

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in a manner consistent with, among other things, efforts to

recover the Pyramid Lake fishery.” /d.°

Section 207 authorizes acquisition of water and water

rights for recovery of endangered fish—the cui-ui and the

Lahontan cutthroat trout.

Under Section 209, the Newlands Reclamation Project is

targeted for improvement. It expands the authorized purposes

of the Newlands Project to include recreation and water

quality, among others. The Section also requires the Secretary

to study the feasibility of improving the conveyance

efficiency of Newlands Project facilities.

Groundwater assessment is a key feature of Section 210.

The Secretary must, under Section 210(b)(16), assess and

remedy significant adverse impacts on domestic groundwater

resulting from other provisions of the Settlement Act.

Plaintiffs contend that (1) the Service violated NEPA by

approving land and water rights purchases pursuant to Section

206 of the Settlement Act without first preparing a

® Section 206(b) addresses the Secretary’s management of the

Stillwater National Wildlife Refuge. Section 206(c) requires the Secretary

of the Navy to implement measures to improve the efficiency of water

usage at the Naval Air Station in Fallon. Section 206(d) involves cost-

sharing between the federal and state governments. Under Section 206(e),

the Secretary of the Interior is authorized to convey to the State of Nevada

certain federal lands in the “Carson Lake and Pasture “area for Nevada’s

use as a state wildlife refuge. Section 206(f) established the “Lahontan

Valley and Pyramid Lake Fish and Wildlife Fund” to receive specified

donations which the Secretary of the Interior could direct toward fish and

wildlife programs for Lahontan Valley and to protect the Pyramid Lake

fishery. The Act further requires the Secretary to “endeavor to distribute

benefits from this fund on an equal basis between the Pyramid Lake

fishery and the Lahontan Valley wetlands,” subject to certain exceptions.

Finally, Section 206(g) authorizes the Secretary to convey to Nevada or to

Churchill County certain federal lands pursuant to appropriate agreements

for fish and wildlife and recreation.

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programmatic EIS analyzing the cumulative and synergistic

impacts of the Act’s interrelated provisions; and (2) the

WEIS, prepared in connection with Section 206, failed to

comply with NEPA because Defendants did not adequately

address the cumulative impacts of actions other than wetlands

acquisitions, failed to study impacts to groundwater, and

failed to define and study a reasonable range of alternatives.

Ill

STANDARD OF REVIEW

The district court’s order granting or denying a motion for

summary judgment is reviewed de novo. Blue Mountains

Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th

Cir. 1998). NEPA does not contain a separate provision for

judicial review; we therefore review an agency’s compliance

with NEPA under the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706(2)(A). N.W. Res. Info. Ctr., Inc. v.

Nat’l Marine Fisheries Serv., 56 F.3d 1060, 1066 (9th Cir.

1995). An agency’s decision not to prepare an EIS is

reviewed under the arbitrary-and-capricious standard. Blue

Mountains, 161 F.3d at 1211. We defer to a “fully informed

and well-considered” agency decision, but “we need not

forgive a ‘clear error of judgment.’“ /d. (quoting Save the

Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988), and

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 104 L.

Ed. 2d 377, 109 S. Ct. 1851 (1989)).

““Whether a particular deficiency, or combination of

deficiencies, in-an EIS is sufficient to warrant holding it

legally inadequate, or constitutes merely a “fly-speck,” is

essentially a legal question, reviewable de novo.’” N. Alaska

Envtl. Ctr. v. Lujan, 961 F.2d 886, 889 (9th Cir. 1992)

(quoting Or. Envtl. Council v. Kunzman, 817 F.2d 484, 493

(9th Cir. 1987); see also Salmon River Concerned Citizens v.

Robertson, 32 F.3d 1346, 1356 (9th Cir. 1994) (“We review

the district court’s summary judgment that the FEIS is legally

19a

adequate under NEPA and the CEQ [Council on Envir-

onmental Quality] regulations de novo.”’).

We apply a “rule of reason” standard when reviewing the

adequacy of an agency’s EIS. Under this standard, we ask

“whether an EIS contains a reasonably thorough discussion of

the significant aspects of the probable environmental

consequences.” Trout Unlimited v. Morton, 509 F.2d 1276,

1283 (9th Cir. 1974). “This standard is not susceptible to

refined calibration.” California v. Block, 690 F.2d 753, 761

(9th Cir. 1982). Rather, we make “a pragmatic judgment

whether the EIS’s form, content and preparation foster both

informed decision-making and informed public _partici-

pation.” Jd. Review under the rule of reason and for abuse of

discretion “are essentially the same.” Neighbors of Cuddy

Mountain v. United States Forest Serv., 137 F.3d 1372, 1376

(9th Cir. 1998) (citing Marsh, 490 U.S. at 377 n. 23).

Our role is to ensure that the agency has taken a “hard

look.” Or. Natural Res. Council v. Lowe, 109 F.3d 521, 526

(9th Cir. 1997). We are not free to “impose upon the agency

four] own notion of which procedures are ‘best’ or most

likely to further some vague, undefined public good.” Vt.

Yankee Nuclear Power Corp. v. Natural Res. Def. Council,

Inc., 435 U.S. 519, 549, 55 L. Ed. 2d 460, 98 S. Ct. 1197

(1978). We must, however, strictly interpret the procedural

requirements in NEPA and the CEQ regulations “to the

fullest extent possible” consistent with the policies embodied

in NEPA. Lathan v. Brinegar, 506 F.2d 677, 687 (9th Cir.

1974) (en banc) (citing 42 U.S.C. § 4332(1)). “Grudging, pro

forma compliance will not do.” /d. at 693.

IV

DISCUSSION

A. NEPA

“NEPA ‘is our basic national charter for protection of the

environment.” “ Blue Mountains, 161 F.3d at 1215 (quoting

20a

40 C.F.R. § 1500.1(a)). The Act requires a federal agency to

prepare a detailed EIS for all “major Federal actions

significantly affecting the quality of the human environment.”

42 U.S.C. § 4332(2)(C). “Significance” is a function of the

context and the “intensity” of the action. 40 C.F.R.

§ 1508.27.’ As part of an agency’s determination of the

intensity of the impact, numerous factors should be

considered, including the “unique characteristics of the

geographic area such as proximity to . . . prime farm-lands,

wetlands, . . . or ecologically critical areas.” /d.

§ 1508.27(b)(3). The agency should also consider “whether

the action is related to other actions with individually

insignificant but cumulatively significant impacts.” /d.

§ 1508.27(b)(7). The regulation adds that an action is

“significant” if “it is reasonable to anticipate a cumulatively

significant impact on the environment. Significance cannot be

avoided by terming an action temporary or by breaking it

down into small component parts.” Jd. (emphasis added).

Title 42 U.S.C. § 4332(2)(C) is “one of the ‘action-forcing’

provisions intended as a directive to ‘all agencies to assure

consideration of the environmental impact of their actions in

decisionmaking.’” Kleppe v. Sierra Club, 427 U.S. 390, 409,

49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976) (quoting Conference

Report on NEPA, 115 Cong. Rec. 40416 (1969)). Compliance

with this requirement “ensures that the agency . . . will

have available, and will carefully consider, detailed

information concerning significant environmental impacts; it

” NEPA created the CEQ, which promulgated regulations to promote

compliance with the “action-forcing” requirements of NEPA § 102(2). 40

C.F.R. § 1500.1. The regulations define the terms of NEPA and set forth

the responsibilities of federal agencies. Although initially advisory in

nature, the regulations were made binding on the administrative agencies

by Executive Order No. 11991, 3 C.F.R. § 124. “CEQ’s interpretation of

NEPA is entitled to substantial deference.” Andrus v. Sierra Club, 442

U.S. 347, 358, 60 L. Ed. 2d 943, 99 S. Ct. 2335 (1979).

2la

also guarantees that the relevant information will be made

available to the larger public audience.” Robertson v. Methow

Valley Citizens Council, 490 U.S. 332, 349, 104 L. Ed. 2d

351, 109 S. Ct. 1835 (1989), quoted in Blue Mountains, 161

F.3d at 1212; see also Found. on Econ. Trends v. Heckler,

244 U.S. App. D.C. 122, 756 F.2d 143, 147 (D.C. Cir. 1985)

(“NEPA’s dual mission is thus to generate federal attention to

environmental concerns and to reveal that federal consid-

eration for public scrutiny.”). NEPA also “emphasizes the

importance of coherent and comprehensive up-front envir-

onmental analysis to ensure informed decision making to the

end that ‘the agency will not act on incomplete information,

only to regret its decision after it is too late to correct.’”

Blue Mountains, 161 F.3d at 1216 (quoting Marsh, 490 U.S.

at 371).

B. The Proposed Action

In the draft WEIS, the Service proposed acquisition of a

permanent and reliable supply of water to provide an average

of 125,000 acre-feet of water annually to sustain 25,000 acres

of wetland habitat at four designated primary wetland habitat

areas: (1) Stillwater National Wildlife Refuge, (2) Stillwater

Wildlife Management Area, (3) Carson Lake, and (4) Fallon

Paiute-Shoshone Indian Reservation. In addition to

purchasing water rights from willing sellers, the Service

considered other methods of acquisition including leasing,

donation, transfer, and exchange. The Service concluded that

“acquisition of water rights from Newlands Project owners is

the most readily available source of water for wetlands

maintenance.” U.S. Department of the Interior Fish and

Wildlife Service, Water Rights Acquisition Program for

Pyramid Lake and Lahontan Valley Wetlands, Nevada,

Report to the United States Congress, November 1993.

The Service evaluated five alternatives, four “action”

alternatives and one “no-action” alternative. On November 4,

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1996, the Regional Director for Region I of the Service issued

the Record of Decision (“ROD”) documenting the decision

and rationale for selecting Alternative 5. Under Alternative 5,

the Service would supplement drainwater and spillwater by

(1) purchasing up to 55,000 acre-feet of water rights in the

Carson Division, in addition to the existing water rights

acquisition program of 20,000 acre-feet, for a combined total

of 75,000 acre-feet; (2) leasing water from water-rights

owners as available; (3) purchasing water rights from the

Middle Carson River corridor, up-river from the Lahontan

Reservoir; (4) using treated sewage effluent as available; (5)

using conserved U.S. Navy water as available; and (6)

pumping groundwater near the primary wetland areas. The

75,000 acre-feet of water rights included up to 4,000 acre-feet

of water rights that might be acquired in trust for tribal

wetlands. ROD at 5. The Service explained that Alternative 5

would distribute the impact of acquisitions across a greater

area through its reliance on a variety of water sources.

Notably, “Alternative 5 will minimize the conversion of

irrigated farmland to non-agricultural uses, minimize adverse

impacts to agricultural production and the agricultural

economy, and minimize potential impacts to groundwater

discharge.” ROD at 8.

C. Plaintiffs’ Concerns

The City of Fallon operates its own municipal water

system and provides domestic, commercial, and industrial

water service to its residents. Churchill County residents rely

on thousands of wells that tap shallow and intermediate

aquifers. Fallon’s municipal water system is served and

supplied by wells whose aquifers are recharged, at least in

part, through surface water diverted through the Newlands

Project. The city also owns surface water rights adjudicated

under the Orr Ditch and Alpine decrees. Fallon is particularly

23a

concerned about the effects that reallocation of water rights

under the Settlement Act will have on the city’s water supply.

D. Programmatic EIS

Plaintiffs argue that, in refusing to prepare a programmatic

EIS, the Department of the Interior and its sub-agencies,

notably the Fish and Wildlife Service, violated NEPA’s

requirement that “[p]roposals or parts of proposals which are

related to each other closely enough to be, in effect, a single

course of action shall be evaluated in a single impact

statement.” 40 C.F.R. § 1502.4(a). They maintain that several

of the directives contained in the Settlement Act will impose

cumulative and synergistic impacts on water allocation and

water quality within the Newlands Project and Lahontan

Valley. As water supply concerns are at the core of tiic

Settlement Act, they contend, the Department of the Interior

was required to assess in a single EIS the combined effects of

reallocations away from the Newlands Project (i.e., from

Churchill County and Fallon).

Although NEPA does not address the question, the CEQ

regulations do call for preparation of a programmatic EIS in

appropriate circumstances:

Environmental impact statements may be prepared, and

are sometimes required, for broad Federal actions such

as the adoption of new agency programs or regulations

(§ 1508.18). Agencies shall prepare statements on broad

actions so that they are relevant to policy and are timed

to coincide with meaningful points in agency planning

and decisionmaking.

40 C.F.R. § 1502.4(b). The regulations specify the “Major

Federal actions” that are subject to NEPA’s EIS requirement.

The adoption of programs constitutes one category of

“Federal action” and is defined by the regulations as follows:

“a group of concerted actions to implement a specific policy

or plan; systematic and connected agency decisions allocat-

24a

ing agency resources to implement a specific statutory

program or executive directive.” 40 C.F.R. § 1508.18(b)(3).

The regulations suggest that agencies “may find it useful “to

evaluate those “broad actions (including proposals by more

than one agency)” in one of three possible ways:

(1) Geographically, including actions occurring in the

same general location, such as body of water, region,

or metropolitan area.

(2) Generically, including actions which have relevant

similarities, such as common timing, impacts,

alternatives, methods of implementation, media, or

subject matter. |

(3) By stage of technological development including

federal or federally assisted research, development or

demonstration programs for new technologies which,

if applied, could significantly affect the quality of the

human environment.

40 C.F.R. § 1502.4(c),

Moreover, through a process called “tiering,” agencies can

“relate broad and narrow actions and . . . avoid duplication

and delay.” /d. § 1502.4(d). Tiering enables an agency to

cover

general matters in broader environmental impact state-

ments (such as national program or policy statements)

with subsequent narrower statements or environmental

analyses (such as regional or basin-wide program

statements or ultimately site-specific statements) incor-

porating by reference the general discussions and con-

centrating solely on the issues specific to the statement

subsequently prepared.

Id. § 1508.28. The regulation endorses tiering when the

agency moves from the general to the specific or from the

specific to a supplement. /d.

25a

In Kleppe v. Sierra Club, 427 U.S. 390, 409, 49 L. Ed. 2d

576, 96 S. Ct. Z718 (1976), the Supreme Court acknowledged

that NEPA may require a “comprehensive” EIS “in certain

situations where several proposed actions are pending at the

same time.” In Kleppe, several environmental organizations

sued the Department of the Interior for failing to prepare a

programmatic EIS on coal mining-related actions such as

issuing coal leases, approving mining plans, and otherwise

enabling private companies and public utilities to develop

coal reserves on federally owned or controlled land located in

the North Great Plains region.* The Department of the

Interior had prepared a programmatic EIS on the entire

proposed national coal-leasing program and had prepared

EISs for individual actions in the region, including approval

of mining plans and issuance of right-of-way permits.

Plaintiffs maintained that NEPA required a comprehensive

EIS for the region before officials could allow further

development. /d. at 395.

The Court held that § 102(2)(C) of NEPA did not require a

regional EIS in the absence of a proposal for action of

regional scope. /d. at 399. In addition, the Court found that

Plaintiffs’ “desire for a regional environmental impact

statement [could not] be met for practical reasons. “/d. at 401.

Because a regional proposal would “define fairly precisely

the scope and limits of the proposed development,” /d. at 402,

the Court concluded that in the absence of such a proposal,

“there would be no factual predicate for the production of an

environmental impact statement of the type envisioned by

NEPA.” /d.

Further, the Court held that “[{a] court has no authority to

. . . determine a point during the germination process of a

* Plaintiffs identified the region as encompassing portions of four

States: northeastern Wyoming, eastern Montana, western North Dakota,

and western South Dakota, 427 U.S. at 396.

26a

potential proposal at which an impact statement should be

prepared.” 427 U.S. at 406. A final EIS is required only at the

time the agency “makes a recommendation or report on a

proposal for federal action.” Jd. (quoting Aberdeen &

Rockfish R.C. v. SCRAP, 422 U.S. 289, 320, 95 S. Ct. 2336,

45 L. Ed. 2d 191 (1975)).

Finally, the Court recognized that “when several proposals

. . . that will have cumulative or synergistic environmental

impact upon a region are pending concurrently before an

agency, their environmental impacts must be considered

together.” /d. at 410. According to the Court, “only through

comprehensive consideration of pending proposals can the

agency evaluate different courses of action.” Jd. However, the

Court stated that the determination of whether cumulative

environmental impacts exist so as to require a comprehensive

impact statement “is a task assigned to the special com-

petency of the appropriate agencies.” /d. at 413-14. There-

fore, a party challenging an agency’s refusal to prepare a

comprehensive EIS must show that the agency acted

arbitrarily in making that determination. /d. at 412.

Since Kleppe, numerous litigants have urged courts to

require that an agency prepare a programmatic EIS. In Nat'l

Wildlife Fed’n v. Appalachian Reg’l Comm'n, 219 U.S. App.

D.C. 295, 677 F.2d 883, 884 (D.C. Cir. 1981), for example,

the court addressed whether NEPA required a programmatic

EIS “for an ongoing, but mostly completed, federally assisted

highway development project.” In that case, a number of

highways still needed to be built to finish the Appalachian

system, but the court noted that these fragments “only fill in

disjointed gaps left in a highway network thoroughly defined

now by old roads in place plus new roads already com-

pleted or under construction.” /d. at 887. Although site-

specific EISs were planned for most of the remaining roads,

27a

the plaintiffs sought to require the defendant to first prepare a

programmatic EIS for the entire project.

The D.C. Circuit noted that a “multi-phase federal program

like a major highway development is a probable candidate

for a programmatic EIS,” as the CEQ guidelines confirmed.

Id. at 888. Reviewing whether an “agency’s environmental

vision” was arbitrary or capricious, the court listed two

inquiries that were particularly helpful in the analysis: “(a)

Could the programmatic EIS be sufficiently forward looking

to contribute to the decisionmakers’ basic planning of the

overall program? and, (b) Does the decisionmaker purport to

‘segment’ the overall program, thereby unreasonably con-

stricting the scope of primordial environmental evaluation?”

Id. at 889; see also Heckler, 756 F.2d at 159 (“[A]

programmatic EIS should be prepared if it can be forward-

looking and if its absence will obstruct environmental

review.”). NEPA does not require an EIS to supply an after-

the-fact justification for a project. NEPA does prohibit an

agency from breaking up a “large or cumulative project into

smaller components in order to avoid designating the project

a major federal action.” Nat’l Wildlife Fed’n, 677 F.2d at 890

(citation and internal quotation marks omitted). The court

explained that an agency could not escape the existence of

a comprehensive program with cumulative environmental

effects by “disingenuously describing it as only an amal-

gamation of unrelated smaller projects.” Jd. Decision-

makers could, however, reduce “a once vast and variegated

program” to “a few uncompleted, smaller-scale enterprises.”

Id. The court found a programmatic EIS unnecessary given

the reality of the existing 1700 miles of decentralized

highway construction in Appalachia and the absence of any

indication of arbitrary action in using site-specific EISs for

the remaining projects. /d. at 891-92.

In Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985), we

examined the Forest Service’s decision not to prepare a

28a

comprehensive EIS analyzing the combined effects of

construction of a timber road in a formerly roadless area of

the Nez Perce National Forest in Idaho and the resulting

timber sales that the road would facilitate. We acknowledged

the considerable discretion afforded agencies in defining the

scope of an EIS and affirmed NEPA’s requirement that an

agency consider the effects of several related actions in a

single EIS in appropriate circumstances. “Not to require this

would permit dividing a project into multiple ‘actions,’ each

of which individually has an insignificant environmental

impact, but which collectively have a substantial impact.”

Id. at 758.

The CEQ regulations require that so-called “connected” or

“cumulative” actions be considered in a single EIS. 40

C.F.R. § 1508.25(a)(1), (a)(2); cf City of Tenakee Springs v.

Block, 778 F.2d 1402, 1407 (9th Cir. 1985) (“Where there are

large-scale plans for regional development, NEPA requires

both a programmatic and a site-specific EIS. 40 C.F.R.

§ 1508.28, 1502.20[.]”) (additional citations omitted). Plain-

tiffs here do not argue that the sections of the Settlement Act

regarding water rights, usage, and allocations are “connected”

actions within the meaning of the regulations. Rather, they

maintain that the actions are “cumulative.” Cumulative

actions are defined as “actions, which when viewed with

other proposed actions have cumulatively significant

impacts.” 40 C.F.R. § 1508.25(a)(2). A cumulative envir-

onmental impact “results from the incremental impact of the

action when added to other past, present, and reasonably

foreseeable future actions regardless of what agency .. . or

person undertakes such other actions.” 40 C.F.R. § 1508.7.

The regulatory definition includes impacts resulting from

“individually minor but collectively significant actions taking

place over a period of time.” /d.

In Thomas, we found sufficient evidence in the record to

suggest that the road and timber sales would have significant

29a

cumulative effects, including sediment deposits in the Salmon

River (detrimental to fish) and destruction of critical habitat

for the endangered Rocky Mountain gray wolf. The Fish and

Wildlife Service had submitted comments regarding these

impacts to the Forest Service, and we found that the

comments raised “substantial questions” about the cumulative

effects of the road and timber sales, thus requiring an EIS

analyzing the potential impact. Thomas, 753 F.2d at 759.

Considering the cumulative effecis after the road was already

approved, moreover, would not satisfy NEPA. /d. at 760.

We also rejected the Forest Service’s argument that the

timber sales were too uncertain and too far in the future to

analyze their impacts together with those of the road. “[I]f the

sales are sufficiently certain to justify construction of the

road, then they are sufficiently certain for their environmental

impacts to be analyzed along with those of the road.” /d.

In City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 |

(9th Cir. 1990), we stated that an agency must prepare both a

programmatic EIS and a site-specific EIS “where there are

large scale plans for regional development.” At least when the

projects in a particular geographical region are foreseeable

and similar, NEPA calls for an examination of their impact in

a single EIS. /d. Thus, we held that the Forest Service’s

failure to analyze the effects of the timber harvesting plans

scheduled over the life of the contract between the Forest

Service and Alaska Pulp Company raised serious questions

about the adequacy of a supplemental EIS.

In this case, Plaintiffs argue that NEPA required the

Service to prepare a programmatic EIS “analyzing the

Settlement Act components affecting future water allocations

to the Newlands Project.” Plaintiffs maintain that Congress’s

integrated mandate in the Settlement Act constitutes a

regional plan addressing the “use of water from two rivers,

the Truckee and Carson.” S. Rep. No. 101-555, at 8. Plaintiffs

are correct; acquisition and allocation of water rights are the

30a

core goals of several Settlement Act provisions. The Senate

Report states that the Act “concerns the apportionment and

use of water from [the Truckee and Carson] rivers.” /d. at 8.

The text of the Act, moreover, purports to resolve long-

standing issues in this particular region involving this scarce

resource. In addition, in 1992, the Special Assistant to the

Secretary of the Interior, William Bettenberg, discussed

formulating an overall strategy to implement the Settlement

Act in a memorandum to the relevant sub-agencies, stating

that the “issues are complex and interrelated and in some

cases the objectives of the law are at cross purposes with one

another and place substantial competing demands on scarce

water resources. “Mr. Bettenberg indicated that strategic

planning was then feasible because “enough experience has

been gained under the Act to appreciate its many nuances.”

Furthermore, the Fish and Wildlife Service, the Bureau of

Indian Affairs, and the Bureau of Reclamation had “built up

considerable expertise regarding the law, the water resource

situation in the area, and other problems with which we

must deal.”

The Pyramid Lake fisheries and Lahontan Valley wetlands

both require Newlands Project water. /d. at 10. It is not

readily apparent how the Service proposed to get a complete

picture of the cumulative environmental impacts without

including in its analysis the water-related actions and

activities already underway or anticipated. It would seem

quite reasonable, in fact, for the responsible agencies to

analyze the actions required under the Settlement Act and

their cumulative impacts in one document. Early in the

implementation process, the agencies indicated that they

would attempt a broad analysis, taking into account those

Settlement Act directives aimed at water usage. Ultimately,

however, they rejected this approach. The Service offers

several arguments in support of its course of action.

3la

The Service contends that it did not prepare a

programmatic EIS because it had no obligation under NEPA

to do so. None of the actions contemplated under sections

205, 207, and 209 of the Act had ripened into “proposais.

“As Plaintiffs .2spond, however, the regulations do not

require a final proposal. Rather, under 40 C.F.R. § 1508.23, a

proposal “exists at that stage in the development of an action

when an agency subject to the Act has a goal and is actively

preparing to make a decision on one or more alternative

means of accomplishing that goal” so that “the effects can be

meaningfully evaluated.” (Emphasis added.) “Reasonable

forecasting and speculation is thus implicit in NEPA... .”

City of Davis v. Coleman, 521 F.2d 661, 676 (9th Cir. 1975).

Indeed, NEPA requires that the agency evaluate a project’s

environmental consequences early in the planning process.

Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 327 (9th

Cir. 1975). “This requirement is temperéd, though, by the

statutory command that we focus upon a _ proposal’s

parameters as the agency defines them.” Block, 690 F.2d at

761 (citing Kleppe, 427 U.S. at 406-07). It simply makes

sense to “defer detailed analysis until a concrete development

proposal crystallizes the dimensions of a project’s probable

environmental consequences.” /d.

Plaintiffs further maintain that a number of the actions

contemplated under the Settlement Act had matured into”

proposals.” For example, in 1995, the Department of the

Interior published a Notice of Intent to Prepare an EIS “on a

broad-based water management program.” The program was

intended to “consolidate three closely related activities

contemplated in Public Law 101-618,” notably, the wetlands

management plan under Section 206(a), recovery of the

Pyramid Lake fish under Section 207(a), and modifications to

the Newlands Project Operating Criteria and Procedures

(OCAP). The Notice cited “an extensive list of proposed and

active Federal and non-Federal projects that may have

ja

32a

cumulative impacts,” which would also be considered in the

EIS, including:

the proposed TROA; a revised O&M agreement; water

rights acquisitions to enhance water quality of the lower

Truckee River; water rights acquisitions to sustain on a

long term average of 25,000 acres of wetlands in

Lahontan Valley; interim changes to the existing OCAP

for the Newlands Irrigation Project; Lahontan Reservoir

storage agreements; a pilot project to acquire Truckee

Division water to enhance populations of endangered

cui-ui, and any Upper Carson water acquisitions.

The Department itself characterized the actions as

proposals. As Plaintiffs note, the Department has called the

TROA a proposal since at least 1996, despite delays in

producing the EIS. In short, Plaintiffs have submitted

sufficient evidence to show that many of the actions required

under the Settlement Act met NEPA’s definition of a

proposal. Defendants’ contention that it was not obligated to

prepare a programmatic EIS because other projects required

by the Settlement Act were not sufficiently definite to permit

meaningful review is unpersuasive.

But whether or not the actions and activities anticipated as

a result of the Settlement Act were “proposals “is somewhat

off-point. Plainly, the officials responsible for implementing

the Settlement Act believed for at least several years that it

made good sense to analyze several provisions of the Act as a

whole, especially the sections requiring water rights

acquisitions and allocations. It also appears that a

programmatic EIS was the vehicle for the analysis. It is just

as evident that the officials changed their minds. Defendants

offer many reasons why NEPA did not require them to

proceed by way of a programmatic EIS, many of which

Plaintiffs adeptly refute. The regulations and case law would

support a decision by the Service to prepare a programmatic

EIS, had it decided to prepare one. Indeed, had we been

33a

charged with the decision, we may have elected to prepare a

programmatic EIS first. The problem, of course, is that it was

not our decision to make.

Although we can see that the Service’s decision was a

close call, the record does not support a conclusion that the

agency’s goal was to minimize the possible cumulative

environmental impacts by segmenting the wetlands water

rights acquisition program from the analysis of other

foreseeable actions. The Settlement Act is unwieldy and

potentially contradictory in its various requirements. In

addition, agricultural interests will unavoidably feel much of

the impact of the changes that Congress has ordered. We

cannot, as Plaintiffs may wish, sanction the use of NEPA’s

EIS requirements to challenge the policy goals served by the

Settlement Act. See, e.g., Metro. Edison Co. v. People

Against Nuclear Energy, 460 U.S. 766, 777, 75 L. Ed. 2d

534, 103 S. Ct. 1556 (1983) (“The political process, and not

NEPA, provides the appropriate forum in which to air policy

disagreements.”). The fact that we might proceed differently

does not compel us to order the Service to prepare a

programmatic EIS instead of, or along with, the WEIS. We

agree with the district court that the Service took a “hard

look” and that its decision not to proceed with a

programmatic EIS was not arbitrary.

E. Wetlands EIS

Plaintiffs argue that the WEIS failed to assess the

cumulative impacts of actions other than the proposed

acquisition, failed to address the impacts on groundwater

resources adequately, and impermissibly segmented the water

rights acquisitions for the Stillwater wetlands from the

conservation plan for managing the wetlands.

34a

1. Cumulative Impacts

Plaintiffs argue that the Service failed to analyze the

cumulative impacts of Section 206 acquisitions together with

all the other reasonably foreseeable Settlement Act actions

affecting allocations for the Newlands Reclamation Project

and the wetlands. According to Plaintiffs, the purchase of

water rights for Pyramid Lake fish, recoupment, the TROA,

and OCAP revisions are among the actions that should have

been assessed cumulatively. Plaintiffs contend that the

lengthy list of impacts provided by the Service cannot

substitute for the required analysis. For example, the Service

failed to state the full amount of agricultural land that would

be lost upon implementation of all relevant Settlement Act

provisions, not just Section 206(a). The magnitude of

combined potential agricultural losses, according to Plaintiffs,

would be “staggering.” The WEIS also failed to quantify the

cumulative effects of acquisitions for the wetlands and for

cui-ui recovery. As for the TROA, Plaintiffs maintain that the

WEIS did not address the foreseeable negative impacts on the

cui-ui, which may well prompt acquisition of more Newlands

Project water rights. That fact would likely have significant

implications for the wetlands acquisitions.” Plaintiffs further

maintain that, while the Service acknowledges that the

cumulative effects of implementing the Settlement Act are

likely to adversely impact groundwater recharge in the

Lahontan Valley, it did not analyze or quantify the extent of

the problem.

Defendants must do more than just catalogue “relevant past

projects in the area.” City of Carmel-by-the-Sea v. United

States Dep’t of Transp., 123 F.3d 1142, 1160 (9th Cir. 1997),

quoted in Muckleshoot Indian Tribe v. United States Forest

Serv., 177 F.3d 800, 809-10 (9th Cir. 1999). The EIS “must

* Plaintiffs also complain that the WEIS did not analyze the combined

effects of Settlement Act provisions on vegetation and air quality.

35a

also include a ‘useful analysis of the cumulative impacts

of past, present and future projects.”” Jd. This means a

discussion and an analysis in sufficient detail to assist “the

decision-maker in deciding whether, or how, to alter the

program to lessen cumulative impacts.” /d. Thus, in

Muckleshoot, we did not find the “cumulative effects”

sections in the EIS to be adequate because they provided only

“very broad and general statements devoid of specific,

reasoned conclusions.” 177 F.3d at 811. Merely indicating the

amount of land to be exchanged, for example, and whether

the land would be subject to commercial harvest, followed by

an optimistic conclusion fell short of the “useful analysis” we

required when the EIS “contained no evaluation whatsoever

of the impact on natural resources of timber harvesting onthe

lands transferred to Weyerhaeuser,” nor any assessment of

the impact on surrounding areas of such harvesting. /d.

The Service contends that it did consider the potential loss

of Newlands Project land under each of the five alternatives

discussed in the WEIS but that to look beyond the acquisition

proposal to the cumulative effects on agricultural lands

resulting from other Settlement Act actions would be “pure

speculation.” The Service disputes Plaintiffs’ assertions about

the potential total amount of agricultural losses, although it

does not suggest any alternative estimates. The Service did

explain in the WEIS, however, that several forthcoming

agreements or actions could possibly make it unnecessary to

acquire any Truckee River water rights. Specifically, the

Truckee River Water Quality Settlement Agreement, OCAP

adjustments, the TROA, and the water rights acquired for the

wetlands, individually or in combination, could well reduce

the amount of agricultural losses. Under these circumstances

and given these uncertainties, we do not find the absence of

an estimate of the total reduction in agricultural acreage

arbitrary or capricious.

36a

We have reviewed Chapter 4 of the WEIS, in which the

Service analyzed the environmental consequences of the

action alternatives. The Service first considered the impacts

of the alternatives on the Newlands Project operations and

infrastructure, water resources, vectors, erosion, agricultural

pests, air quality, wetlands, vegetative communities, fish,

birds, agriculture, farmland, the local economy, recreation,

population characteristics, land use, land values, property

taxes, municipal services, social values, and Indian trust

assets and cultural resources. The WEIS then examined the

cumulative effects on environmental resources in the study

area from past, present, and reasonably foreseeable future

actions or activities, including the relevant provisions of the

Settlement Act (both Titles I and II). The WEIS identified the

following actions or activities: (1) acquisition of water rights

for the Fallon Paiute-Shoshone Reservation agricultural lands

(Section 102); (2) closure of the TJ Drain (Section 106); (3)

negotiation of the TROA (Section 205(a)); (4) the

comprehensive management plan for the Stillwater National

Wildlife Refuge (Section 206(b)); (5) Fallon Naval Air

Station studies of land-management options to reduce water

use for aircraft safety purposes (Section 206(c)(3)); (6)

transfer of Carson Lake and pasture to the State of Nevada for

use as a wildlife refuge (Section 206(e)); (7) recovery plans

for endangered and threatened Pyramid Lake fish (Section

207(a)); (8) recoupment of water diverted from the Truckee

River in excess of amounts permitted by the OCAP during the

period from 1973 to 1987 (Section 209(j)); (9) possible

adjustments to the 1988 OCAP (Section 209(j)(2)); (10) the

- Truckee River Water Quality Settlement Agreement; (11) the

expansion of Fallon Naval Air Station as the Navy relocates

various operations to this location; (12) the effects of

predicted growth and diversification of Churchill County;

(13) the effects of the transfer of the Indian Lakes area,

consisting of approximately 9,355 acres, to Churchill County

and, subsequently, to the City of Fallon (Section 206(g)); (14)

37a

acquisition of 20,000 acre-feet of water rights in the Carson

Division to the primary wetlands; and (15) agricultural

production.

In each of the fifteen subsections identified in the WEIS,

the Service discussed the predicted impacts and provided its

best assessment of what might happen and how the Service

and other agencies would likely respond. In addition, the

Service summarized the potential cumulative impacts of the

above actions and activities if the “preferred alternative” were

not selected, then summarized the potential impacts of the

actions and activities if the Service adopted the preferred

alternative. Under the preferred alternative, the Service

predicted that agricultural production would be significantly

adversely affected. The Service stated unequivocally in the

“Unavoidable Adverse Effects” section that the preferred

alternative was expected to cause unavoidable adverse

impacts on the agricultural economy, agricultural-dependent

wiidlife, and “farm preservation values” of community

members, ultimately changing the very character of the

community with the completion of the water rights

acquisition program. In short, the WEIS recognized that

agricultural interests would bear the brunt of the Settlement

Act directives.

Plaintiffs have pointed out errors and missing information

in the WEIS. We could certainly “fly-speck” this chapter of

the WEIS and find instances where the inclusion of

quantitative data would benefit the Service and the public. As

with the programmatic EIS discussed above, if we were

preparing the WEIS, we might insist on additional detail.

That is not our role, of course. Rather, we review the legal

sufficiency of the WEIS. We conclude that the Fish and

Wildlife Service has taken the requisite “hard look” at the

cumulative environmental impacts of the action alternatives

and has not violated NEPA.

38a

2. Impacts on Groundwater Resources

Plaintiffs argue that the WEIS failed to address adequately

the impacts that the acquisitions would have on groundwater

resources. They contend that the Service relied on studies that

either established existing conditions without analyzing the

possible impacts or called for additional studies due to

incomplete understanding of the hydrologic system. In

response to comments on the draft WEIS regarding this

analytical deficiency, the Service acknowledged this fact

(“the Service concurs that the existing groundwater reports do

identify a need for further study of the groundwater

resources”) and encouraged “local interests” to support

funding the studies that the U.S. Geological Service

proposed. WEIS at 6-105.

As the Service notes, the studies on which it relied were

not definitive, but it never represented that they were. The

studies were sufficient, however, to permit the Service to

make a reasoned decision as to which action alternative to

select. Notably, the Service reviewed existing studies

regarding groundwater aquifers in Churchill County and

sponsored new studies of the groundwater in the area. One of

these studies (Seiler & Allander) used existing and newly

drilled observation wells to locate the principal recharge areas

for the shallow groundwater aquifer in Churchill County. As

the Service explains, this study enabled it to analyze the

acquisitions potential groundwater impacts from different

locations in the Carson Division.

The second study, the Maurer Report, developed a

conceptual model of the entire groundwater system in the

Carson Division and surrounding area. According to the

report, the three factors that affected groundwater recharge

were the area from which the Service acquires the water

rights, seepage from the Newlands Project distribution

system, and consumptive use by crops. The Service used

Maurer’s model to analyze the potential impacts of each of

39a

the action alternatives. Recognizing the limits of the study,

the Service was nevertheless able to make an informed

decision.

Additional studies undoubtedly would fill in relevant

details regarding groundwater resources under each of the

action alternatives. Nonetheless, the Service relied on current

information, not outdated studies or technology. We conclude

that the WEIS provides a reasoned analysis of the impacts on

groundwater consistent with the requirements under NEPA.

3. “Segmentation’

Plaintiffs argue that the WEIS should have covered the

water rights acquisitions for the wetlands together with the

conservation plan that dealt with management of the

wetlands. According to Plaintiffs, these components were

interrelated and segmenting analysis of the environmental

impacts was not consistent with NEPA. However, other than

list the possible ways that the management plan might affect

the water rights acquisition plan, Plaintiffs do not show that

the Service acted arbitrarily or capriciously.

AFFIRMED.

40a

SNEED, Circuit Judge, Concurring:

I concur in the result reached by Judges Paez and Graber. I

write separately to emphasize the need for a comprehensive

resolution of California and Nevada interests in the Truckee

and Carson rivers. Such a resolution is the only action that

can secure a degree of stability. Repetitive and contentious

disagreements over the use of the limited water supply to

satisfy various rights, wants, and demands are sure to

continue. A comprehensive cumulative impact study, while

not legally required in this case, is nonetheless essential given

the scarce water supply. One hopes that the Truckee River

Operating Agreement, currently under negotiation, will solve

the comprehensive allocation of the Truckee River waters.

Despite the well-reasoned majority opinion, the

consequence is that a dissatisfaction with the allocation of the

water between parties is likely to follow. This may be a

situation in which we simply cannot muster the political will

to resolve the various claims. Congress noted all too late that

“in retrospect, it is clear that the limited benefits of the

Truckee River were promised by the United States to too

many interests.” S. Rep. No. 101-155 (1990), at 13.

me

%

4la

To aid those who might be interested in this disposition, a

map of the affected areas is appended.

rs re ee

f \ 1 =

\ XY 3 0 Kilometers 50

\ i

\ 3 | Winnemucca

| } Lake (ary)

| Re ER Stillwater Wildlife

eae ™ eS — 2 Stillwater

We | __, National

j nenwt Wildlife

Refuge

5 Newlands Project

i Truckee Division

Magri, a

CALIFORNIA

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

[Filed Mar. 31, 2000]

CV-N-95-00724-ECR-RAM

(Base File)

CV-N-96-00146-ECR-RAM

CV-N-96-00754-ECR-RAM

(Consolidated Cases)

CHURCHILL COUNTY,

CITY OF FALLON,

Plaintiffs,

V.

BRUCE BABBITT, in his official capacity

as Secretary of the Interior; et al.

Defendants.

ORDER

The Court now considers the federal defendants’ Renewed

Motion for Summary Judgment (#132) addressing whether

the National Environmental Policy Act (NEPA) requires the

federal government to perform a programmatic environmental

impact statement before it may implement any section of the

Truckee-Carson-Pyramid Lake Water Settlement Act, Title II

of Public Law 101-618 [hereinafter Settlement Act]. The

plaintiffs filed an opposition (#134) and Cross-Motion for

Summary Judgment on the federal defendants failure to

comply with NEPA in refusing to prepare a programmatic

environmental impact statement and approving water rights

acquisitions under section 206 of the Settlement Act based

upon a defective environmental impact statement. The federal

defendants filed a reply in support of their renewed motion

for summary judgment on the programmatic EIS claims and

opposition to the plaintiffs’ cross-motion for summary

judgment and cross-motion for summary judgment on the

wetlands EIS claim (#145). The plaintiffs filed a reply (#155)

to defendants’ memorandum in opposition to plaintiffs’ cross-

motion and cross-motion for summary judgment on the

wetlands EIS claim.

This Court notes at the outset that it is not our role, as the

Supreme Court has stated, to substitute our judgment for that

of the agency as to the environment consequences of the

agency’s actions. See Kleppe v. Sierra Club, 427 U.S. 390,

410 fn. 21 (1976). We are also not required to assess whether

the course of action chosen by the Department of the Interior

is the best course of action available. Our role is limited. It is

simply to ensure that the Department of the Interior has taken

a “hard look” at the environmental consequences of its

proposed actions and that the agency’s final environmental

impact (“FEIS”) meets the procedural safeguards established

by the National Environmental Policy Act.

Background

The history of conflict over water resources within and

between the states of Nevada and California is long and

complicated. Lake Tahoe lies in the Sierra Nevada, straddling

the California-Nevada border with two-thirds of the lake

lying in California and the remainder located in Nevada. In

addition, the Truckee and Carson Rivers are shared by both

states. The Truckee and Carson Rivers run generally parallel

to each other in an easternly direction commencing in

California near Lake Tahoe and ending within closed basins

in Nevada.’ California and Nevada have contested the

' See Defendants Renewed Motion for Summary Judgment, Ex-2,

Providing for the Settlement of Water Rights Claims of the Fallon Paiute

Shoshone Indian Tribes and for other Purposes, S.REP.NO. 101-555,

at 8 (1990).

44a

allocation of the Truckee and Carson Rivers since the 1800’s,

with the most heated controversy surrounding the Truckee

System.” The debate has been partially fueled by the federal

government’s efforts to secure water for the Newlands

Reclamation Project and its efforts to secure water to remedy

the environmental impacts of that project.

The long history of the conflict began in the 1860’s when a

water company built a dam at the outlet of Lake Tahoe to

supply water to San Francisco. The project was soon

abandoned and the dam and surrounding property came into

the hands of the Bureau of Reclamation and the Truckee

River General Electric Company. The ensuing conflict among

the federal government, the power company and property

owners marked the beginning of the modern era controversy

over water rights.

In 1902 Congress passed the Reclamation Act of 1902

which directed the Secretary of the Interior to withdraw from

public entry arid lands in specified states, to reclaim those

lands through irrigation projects, and then to restore the lands

to entry pursuant to certain conditions in the Reclamation

Act. Approximately 200,000 acres of land were with-

drawn from public domain in western Nevada. These lands

ultimately became the Newlands Reclamation Project

? California and Nevada both presently make extensive use of the two

rivers’ water. “California uses Truckee River water at its headwaters,

Lake Tahoe, and downstream to the interstate border, near Farad.”

(Defendants’ Renewed Motion, Ex. 2, S-Rep. No. 101-555 at 9) Sierra

Pacific Power Company has hydroelectric facilities in California and

Nevada on the Truckee above Reno. (/d.) “Nevada makes use of Lake

Tahoe in its portion of the Tahoe basin. The Truckee is the principal

source of water for irrigation, municipal, industrial and domestic uses in

the RenoSparks metropolitan area and provides water to the Newlands

Reclamation Project, near Fallon, Nevada.” (/d.) The Carson River

provides water for irrigation and municipal use in California and is used

for irrigation in Nevada. The Carson is the principal source of water for

the Newlands Project. (/d.)

45a

(hereinafter Project), which was designed to irrigate a

substantial area of lands suitable for cultivation in the vicinity ~

of Fallon, Nevada. The Project induced individuals to ranch

and farm the withdrawn lands because of the stable water

supply. A farming and ranching community grew in Fallon

and the surrounding counties. Several irrigation canals were

built from the Lahontan Reservoir to deliver water to farms

and ranches in Churchill County.

The Project irrigates approximately 60,000 acres of land

near Fallon.’ Most of the land is used for irrigated pasture or

alfalfa production.’ The Project relies on a combination of

Truckee and Carson River water. In order to make the most

use of the two rivers’ water supply, the government con-

structed the Derby Diversion Dam on the Lower Truckee and

the Truckee Canal, which diverted water from the Truckee to

the Carson Rivers.” A dam was built on the Carson River,

creating Lahontan Reservoir.° Following several negotiations,

the federal government obtained an easement at the site of the

Lake Tahoe Dam and in 1915 obtained possession of the

> The original Project contemplated the irrigation of about 200,000

acres, however, the Project has never exceeded about’ 65,000. (See id.

at 10)

* Agricultural drainage-from the Project lands flows to wetlands areas

known as the “Lahontan Valley wetlands” which include the Stillwater

Wildlife Management Area, Stillwater National Wildlife Refuge, and

Carson Lake and Pasture. (/d. at 10)

* A small portion of the Truckee diverted water is released into the

Truckee canal within the Truckee basin to irrigate lands near Fernley,

Nevada. The amount of water available for diversion at Derby dam varies

seasonally and annually as a result of annual precipitation in the Sierra

Nevada, operation of storage reservoirs in the Truckee basin, and

upstream water supply and demands. (/d.)

® Lahontan Reservoir on the Carson River has a storage capacity of

approximately 317,000 acre-feet.

46a

dam.’ In addition, the United States entered into contracts

with several landowners in the Newlands area who had

perfected water rights before the creation of the Project. The

contracts provided that in exchange for their water rights the

landowners would have a right to use Project water.® To

establish the rights of the United States to use water from the

Truckee and Carson Rivers for the benefit of the Newlands

Project and the Pyramid Lake Paiute Indian Reservation, the

United States began quiet title actions.”

The Project and other upstream appropriations of the

Truckee and Carson Rivers spurred several lawsuits. In 1944,

a federal-court decree, known as the Orr Ditch Decree,

adjudicated the water rights of litigants in a 1913 suit filed by

the United States which sought to confirm water rights for

7 A small dam on the Truckee River outlet to Lake Tahoe controls the

top 6.1 feet of the lake, providing around 740,000 acre-feet storage. (Id.)

® In a report issued by the Senate in 1990 the Senate noted that the

amount of water that is diverted at Derby Dam depends on the amount of

water necessary to sustain the Newlands Project and that a portion of the

Project’s demand can be met by water from the Carson River system. (/d.

at 10) The Report also noted that:

The amount of water required for delivery to Project lands is a

function of the number of irrigable water-righted acres actually

being irrigated and the water duty established for each acre. . . . The

amount of water supplied to meet water duty demands is a function

of the efficiency of the irrigation water distribution system.

Improving irrigation water distribution system efficiency would

reduce the diversion requirements for the Truckee River, but would

also reduce drainage flows reaching Lahontan Valley wetlands."

(/d. at 11)

* In 1913, the United States initiated a quiet title action to Truckee

River water rights in Nevada, United States v. Orr Water Ditch Company

which resulted in the Orr Ditch Decree. In 1925, the United States brought

an action for adjudication of Carson River water rights and a final decree

was entered in 1980 in United States v. Alpine Land and Reservoir

Company, 503 F. Supp. 877 (D.Nev. 1980), aff'd 697 F.2d 851 (9th

Cir. 1983).

47a

use in the Newlands Project.'® Litigation over water rights

continued over the area and as a result of litigation initiated in

1973, a federal court ruled that the Newlands Project was

divesting too much water from the Truckee River and

imposed a limit on diversions.'' The Bureau of Reclamation

imposed efficiency standards known as Operating Criteria

and Procedures (OCAP) for the Project. The purpose of

OCAP is to maximize the use of Carson River water for

the Newlands Project and to minimize the diversion of

Truckee River water via the Truckee Canal. This resulted in

more litigation.

Truckee-Carson-Pyramid Lake Water Settlement Act

On November 16, 1990 Congress enacted the Truckee-

Carson-Pyramid Lake Water Settlement Act, Title II of Pub.

L. 101-618 [hereinafter Settlement Act]. The purposes of

the Settlement Act are generally to resolve water disputes

regarding the Truckee and Carson Rivers and Lake Tahoe

between California and Nevada, to encourage a more efficient

use of the water, to protect the wetlands habitats within the

'° The Orr Ditch Decree affirmed individual water rights and provided

for the operation of Lake Tahoe and Boca Reservoir to serve those rights.

Parties to the Decree include the federal government, Sierra Pacific, the

Washoe County Water Conservation District, and individual water rights

holders in Nevada. In addition, based on the date of establishment of the

Pyramid Lake Indian Reservation, the court recognized an 1859 priority

date for water rights for irrigation on reservation lands. These rights are

known as Claims | and 2 and are the two most senior water rights on the

Truckee River. (S.Rep.No.101-555, at 11)

'' See Nevada v. United States, 463 U.S. 110 (1983). In this action, the

United States, joined by the Pyramid Lake Paiute Tribe, brought suit

against all persons claiming water rights to the Truckee River and its

tributaries in Nevada. The suit sought additional water from the Truckee

for the benefit of preserving Pyramid Lake and its Fisheries. The

government and the Tribe argued that the Orr Ditch Decree only

quantified the Pyramid Lake Reservation’s right to water for agricultural

purposes. The Supreme Court rejected that ciaim.

48a

Newlands Area, to remedy environmental impacts upon the

wildlife in the wetlands, and to set up a development fund for

the Paiute Tribe.

The Settlement Act addresses several issues, including

“interstate water apportionment, management of Federal

water storage and diversion facilities, protection and

restoration of wetlands and endangered and threatened fish

species, and the settlement of Indian tribal claims to water

and other interests.” (Federal Defendants’ Renewed Motion

for Summary Judgment on Programmatic EIS Claims, Ex. 2,

S.REP. No. 101-555, at 8 (1990))

The Settlement Act includes the following provisions: (1)

‘section 204 addresses the interstate allocation of waters of

Lake Tahoe and the Truckee and Carson rivers; '” (2) section

205 discusses measures to provide a drought supply of water

to the cities of Reno and Sparks and to obtain additional

water for Pyramid Lake through an operating agreement for

‘he Truckee River reservoirs (TROA);” (3) section 206 gives

'2 Section 204(a) concerns the Carson River and confirms the

allocation of waters by the Alpine Decree. It provides that if a portion of

the effluent imported from Lake Tahoe basin into the watershed of the

Carson River in California changes so that the supply of water in the

Nevada portion of the Truckee increases, the allocation to California of

water of the West Fork of the Carson Fiver and its tributaries shall be

augmented with some limitations. Section (b) allocates Lake Tahoe water

between California and Nevada and section (c) address the diversion of

Truckee River water to California with some limitations.

'? Section 205 directs the Secretary to negotiate an operating agreement

between California and Nevada to provide for the operation of the

Truckee River Reservoirs and to ensure that the reservoirs are operated to:

(A) satisfy dam and flood control requirements.

(B) “provide for the enhancement of spawning flows available in

the Lower Truckee River for the Pyramid Lake fishery .. .

consistent with the Endangered Species Act.”

(C) carry out the provisions of the Preliminary Settlement

Agreement as modified by the Ratification Agreement.

49a

the Secretary of the Interior a directive to-begin restoring and

protecting the Great Basin wetlands ecosystems in the

Lahontan Valley, including the Stillwater Wildlife Refuge

and the acquisition of sufficient water rights to maintain

25,000 acres of primarily wetland habitat;'* (4) section

207 discusses additional measures to aid the endangered

species of Pyramid Lake;'* and (5) section 208 sets aside

$25,000,000 to establish the Pyramid Lake Fisheries and

Development Funds.'® In section 209 the Settlement Act

(D) ensure that water is released and stored from the Truckee in

accordance with the Orr Ditch Decree and Truckee River General

Electric Decree.

(E) minimize the costs associated with operating and maintaining

the Stampede Reservoir.

Section 205(3) lists some of the provisions the Operating Agreement

should include. The agreement must be approved by the Secretary and the

state of Nevada and California. Section 205(b) authorizes the use of

storage facilities at Washoe Project, Truckee and Lake Tahoe Dam and

Reservoir.

'* Under section 206(a), the Secretary is authorized to purchase water

rights for the restoration and maintenance of the wetlands from willing

sellers. Section 206(c) instructs the Secretary to conduct a study of the

lands owned by the U.S. within the Naval Station to reduced direct

surface deliveries of water. Section 206(f) establishes a Lahontan Valley

and Pyramid Lake Fish and Wildlife Fund.

'S In particular, section 207(a) instructs the Secretary to revise, update

and implement plans for the conservation and recovery of the cui-ui and

Lahontan cutthroat trout in accordance with the Endangered Species Act.

The plan is to take into account and be implemented in a manner

consistent with the water allocations between California and Nevada and

the Operating Agreement, “if and when those allocations and agreements

enter into effect.” Section 207(b) calls for a study to determine the

feasibility of rehabilitating the lower Truckee River for the benefit of the

Pyramid Lake fishery. Section 207 (c) authorizes the Secretary to acquire

water rights for the conservation and recovery of the Pyramid Lake

Fishery from willing sellers.

'€ This section creates the Pyramid Lake Paiute Fisheries Fund and the

Pyramid Lake Paiute Economic Development Fund. The section proceeds

50a

provides incentives to assist in the resolution of disputes

concerning the Newlands Project.'’ Section 210 addresses

miscellaneous provisions, such as encouraging settlement of -

outstanding litigation and proceedings.

National Environmental Policy Act of 1969

Section 102 (2) (C) of the National Environmental Policy

Act of 1969'® (NEPA) requires that all federal agencies

include a detailed statement of environmental consequences

known as an environmental impact statement “in every

recommendation or report on proposals for legislation and

other major Federal actions significantly affecting the quality

to provide some guidance on how the money is to be disbursed and for

what purposes.

'7 Section 209(a) expands the purposes of the Newlands Project to

benefit: (a) fish and wildlife; (b) water supply for Lyon and Churchill

counties; (c) recreation; (d) water quality; and (e) any other beneficial

purpose. Section 209(b) prohibits the Secretary from implementing any

provision of the Settlement Act in a manner that would increase

diversions of Truckee River water to the Newlands Project in excess of

those allowed by operating-agreements or court decrees. Section (c)

authorizes the Secretary to conduct a project efficiency study. Section (d)

authorizes the Secretary, in consultation with the State of Nevada and the

Newland’s Project operator, to enter into agreements to allow water right

holders to use Newlands Project facilities. Studies are authorized under

sections (e) and (f). Section (h) encourages settlement of claims. Under

section (j) the government places limitations on the Secretary’s imple-

mentation of the provisions of the Settlement Act.

'’ The purpose of NEPA is set forth in its opening section:

To declare a national policy which will encourage productive and

enjoyable harmony between man and his environment, to promote

efforts which will prevent or eliminate damage to the environment

and biosphere and stimulate the health and welfare of man; to enrich

the understanding of the ecological systems and natural resources

important to the Nation; and to establish a Council on Envi-

ronmental Quality.

42 U.S.C.§ 4321 (1994).

Sla

of the human environment.” 42 U.S.C. § 4332(2)(C) (1994).'?

The environmental impact statement (EIS) “must include,

among other things, ‘a detailed statement’ describing the

reasonably foreseeable environmental impact both of the

proposed federal action and of any feasible alternative(s)

to the proposed federal action, including nonaction.” City

of Grapevine, Tex. v. Department of Transp. (DOT), 17

F.3d 1502, 1503 (D.C. Cir. 1994) (quoting 42 U.S.C.

§ 4332(2)(C)). The regulations promulgated by the Council

on Environmental Quality (CEQ), the agency responsible for

ensuring compliance with NEPA, state that federal agencies

are responsible for “[d]esignating the major decision points

for the agency’s principal programs likely to have a

significant effect on the human environment and assuring

that the NEPA process corresponds with them.” 40 C.F.R.

§ 1505.1(b). An agency does not need to conduct a com-

prehensive EIS if an environmental assessment reveals that

the proposed action will have little effect on the environment.

40 C.F.R. § 1501.4.

The purpose of an EIS is to “provide decisionmakers with

sufficiently detailed information to aid in determining

whether to proceed with an action in light of its envir-

onmental consequences and to provide the public with infor-

mation and an opportunity to participate in the information

'° The detailed statement should discuss:

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided

should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short term uses of man’s

environment and the maintenance and enhancement of long-term

productivity, and

(v) any irreversible and irretrievable commitments of resources

which would be implemented.

42 U.S.C. § 4332(C).

52a

gathering process.” Northwest Resource Info. Ctr, Inc. v.

National Marine Fisheries Serv., 56 F.3d 1060, 1064 (9th Cir.

1995). An EIS must contain a “‘reasonably thorough discus-

sion of the significant aspects of probable environmental

consequences” to ensure that the agency took a “hard

look” at the environmental impacts of its proposed action.

Neighbors of Cuddy Mountain v. United States Forest Serv.,

137 F. 3d 1372, 1376 (9th Cir. 1998) (quoting Oregon

Natural Resources Council v. Lowe, 109 F.3d 521, 526 (9th

Cir. 1997)).

The Dispute over the implementation of the Settlement Act

The City of Fallon is located in Churchill County within

the boundaries of the Newlands Project. The City operates its

own municipal water system and provides domestic,

commercial and industrial water services to its residents. The

City of Fallon has underground water rights which are served

by the Newlands Project. Fallon’s municipal water system is

served and supplied by wells whose aquifers are recharged by

surface irrigation. (Plaintiffs’ Opposition and Cross-Motion,

p.6, 11. 12-14) In addition, Fallon owns surface water rights

adjudicated under the Orr Ditch Decree and the Alpine

Decree which are also served by the Newlands Project. (/d.)

The City is concerned about its water supply because the

Newlands Project water rights are subject to reallocation

under the authorizations of the Settlement Act. Churchill

County residents rely on 5500 individual wells that tap the

shallow or intermediate aquifers. (/d. p.6, 11. 18-20) The

County recently enacted an ordinance whereby developers

will tender water rights in return for County water service.

(Id. p.6, 11. 20-22)

The plaintiffs are particularly concerned about the pro-

visions in the Settlement Act that could result in the

acquisition of water rights, or in the alteration of water usage

in the Project away from agriculture to other purposes. The

53a

plaintiffs allege that the purchase of water rights will

adversely affect their water supplies which depend upon

recharge of the groundwater in the Project area.

The Department of the Interior, through its Secretary, is

charged with implementing the Settlement Act. On Novem-

ber 4, 1996 the U.S. Fish & Wildlife Service issued its

Record of Decision (ROD) 7° on water rights acquisitions for

the Lahontan Valley wetlands as authorized by Section 206(a)-

of the Settlement Act. Prior to issuing the ROD, the Service

prepared and published a final environmental impact

statement (FEIS) on its proposal to acquire water and water

rights for the benefit of the Lahontan Valley wetlands.”' The

Department of the Interior states that no other section of the

Settlement Act is ready to be implemented.”

Lawsuit

The plaintiffs Churchill County and the City of Fallon

allege that the Secretary of the Interior and other officials of

the Department of the Interior are in violation of the National

Environmental Policy Act of 1969. First, the plaintiffs assert

that NEPA requires the federal defendants to analyze the

impact of implementing sections 205, 206, 207, 209, and 210

(b) (16) of the Settlement Act’s provisions in a single EIS

known as a programmatic EIS.” The plaintiffs argue that

these provisions of the Settlement Act have synergistic or

?° Record of Decision of Nov. 4, 1996, Administrative Record (AR)

Tab 3217.

?! Final Environmental Impact Statement, Water Rights Acquisition for

Lahontan Valley Wetlands September 1996, AR Tab 1189.

*2 See Federal Defendants’ Renewed Motion for Summary Judgment,

p.6 and Att. A, William Bettenberg Declaration.

3 Plaintiffs’ Counsel at oral argument on March 27, 2000 clarified to

the Court that the plaintiffs claim that only sections 205, 206, 207, 209,

and 210(b) (16) needed to be addressed-in a programmatic environmental

impact study.

54a

cumulative effects or are connected actions and therefore,

need to be considered in a single EIS. Second, the plaintiffs

argue that the 1996 Final EIS prepared for section 206,

acquisition of water rights for the Lahontan Valley wetlands,

is legally deficient because the federal defendants failed to

“adequately analyze cumulative and synergistic impacts,”

failed to study the impacts to the groundwater and failed to

define and study a reasonable range of alternatives. (Plain-

tiffs’ Opposition and Cross-Motion, p. 6, 11.4-7) Plaintiffs

aiso seek a permanent injunction to prevent defendants from

implementing interrelated components of the Settlement Act

and related actions affecting water usage until the defendants

follow NEPA.

In their motion for summary judgement and in their reply

the defendants have raised several arguments. First, defend-

ants argue that apart from the action to acquire water rights

for the Lahontan Valley wetlands, the plaintiffs’ claims are

not ripe for judicial review. The federal defendants state that

they have not taken any reviewable final agency action with

respect to any other provisions of Pub. L. 101-616. (Defend-

ants’ Renewed Motion for Summary Judgement, p.6)

Second, defendants argue that a programmatic EIS

assessing the combined effects of implementing the actions

under the Settlement Act is not required because the different

sections of the Settlement Act are not connected or cumu-

lative actions. The defendants state that sections 205, 206,

207, 209, and 210 (b) (16) each have independent utility and

are not inextricably intertwined. They claim that the intent

and purpose of the statute was to resolve a number of

*at oral argument plaintiffs counsel argued that the test for

determining whether a programmatic EIS is required is whether the sec-

tions of the Settlement Act have cumulative or synergistic effects. In the

Plaintiffs’ Opposition and Cross-Motion, plaintiffs also state that actions

that are “connected actions” must be considered in one EIS. See Plaintiffs’

Opposition and Cross-Motion, p.16-17.

55a

outstanding disputes and to provide a framework to resolve

other problems in the area. They argue that the provisions of

the Settlement Act require the development of specific

administrative plans and that the provisions are independent

of one another.

In addition, the defendants argue that the 1996 Final EIS is

legally adequate because the wetlands environmental impact

statement (“WEIS”) presents a reasonable and thorough

analysis of the potential adverse environmental consequences

of implementing section 206. The defendants contend that

the WEIS considered all reasonably feasible alternatives

and presented all the information necessary to make an

informed decision.

I Summary Judgment

Summary judgment allows courts to avoid unnecessary

trials where no material factual dispute exists. Northwest

Motorcycle Ass’n v. U.S. Department of Agriculture, 18 F.3d

1468, 1471 (9th Cir. 1994). In deciding whether to grant

summary judgment, the court must view the evidence and any

inferences arising from the evidence in the light most

favorable to the nonmoving party, Bagdadi v. Nazar, 84 F.3d

1194, 1997 (9th Cir. 1996), and should grant summary judg-

ment where no genuine issues of material fact remain in

dispute and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(c). Judgment as a matter of

law is appropriate where there is no legally sufficient

evidentiary basis for a reasonable jury to find for the

nonmoving party. Fed. R. Civ. P. 50(a). Where reasonable

minds could differ on the material facts at issue, however,

summary judgment should not be granted. Warren v. City of

Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).

The moving party bears the burden of informing the court

of the basis for its motion, together with evidence which

demonstrates the absence of any genuine issue of material

56a

fact. Celotex Corp. v. Catertt, 477 U.S. 317, 323 (1986).

Once the moving party has met its burden, the party opposing

the motion may not rest upon mere allegations or denials in

the pleadings, but must set forth specific facts showing that

there exists a genuine issue for trial. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Although, the parties

may submit evidence in an inadmissable form-namely,

depositions, admissions, interrogatory answers, and affidavits

only evidence which might be admissible at trial may be

considered by the trial court in ruling on a motien for sum-

mary judgmerit. Fed. R. Civ. P. 56(c); Beyene v. Coleman

Security Services, Inc., 854 F.2d 1179, 1181 (9th Cir. 1988).

Material facts are facts that might affect the outcome of the

suit; materiality is determined by reference to the substantive

law at issue in the case. Anderson, 477 U.S. at 248. Disputes

over irrelevant or unnecessary facts should not be considered.

Id. If, given the evidence submitted, a reasonable jury could

hold for the nonmoving party, the dispute over material fact is

“genuine.” /d. Where there is a complete failure of proof on

an essential element of the case for the nonmoving party, all

other facts become immaterial, and the moving party is

entitled to judgment as a matter of law. Celotex, 477 US.

at 323.

II Ripeness

Courts are generally precluded, under the doctrine of

ripeness, from prematurely adjudicating administrative

matters until the proper agency has formalized its decision

making process. Ecology Center, Inc. v. United States Forest

Serv., 192 F.3d 922, 924 (9th Cir. 1999). NEPA does not

contain a provision allowing a right of action. Lujan v.

National Wildlife Fed., 497 U.S. 871 (1990). A party alleging

violations of NEPA can bring an action under the Admin-

istrative Procedure Act (“APA”) challenging an “agency

action.” See id; ONRC Action v. Bureau of Land Mgt., 150

F.3d 1132, 1135 (9th Cir. 1998). Under the APA, a person

57a

suffering a legal wrong because of agency action, or

adversely affected by agency action within the meaning of the

statute is entitled to judicial review.> 5 U.S.C. § 702. The

agency action must be a final agency action reviewable by

statute or final agency action for which there is no other

adequate court remedy. 5 U.S.C. § 704. An administrative

action is considered a final agency action when two

conditions are met: (1) the action marks the consummation of

the agency’s decision making process; and (2) the action

should be one by which rights or obligations have been

determined or from which legal consequences flow. Bennett

v. Spear, 520 U.S. 154 (1997); Ecology Center, 192 F.3d

at 922. ;

As a threshold matter, the federal defendants argue that the

plaintiffs have not challenged a “final agency action” as

required by the APA. In their view, the plaintiffs are claiming

that their decision not to prepare a programmatic EIS for all

the sections in the Settlement Act is arbitrary and capricious.

The federal defendants argue, however, that the “final agency

action” challenged only concerns buying of water rig’s under

section 206 and that no plan, proposal, or action with regard

to the remaining sections has taken place. Plaintiffs argue

that the Service’s choice not to prepare a programmatic EIS is

a final agency action which the court may review. Courts

have found that the decision by an agency not to conduct an

EIS is a final agency action that is reviewable. See, e.g.,

Kleppe v. Sierra Club, 427 U.S. 390, 408-409 (1976).

However, often the courts were reviewing an agency’s

decision not to prepare any environmental study. Under the

facts of this case, however, the defendants have prepared an

> To establish a right of relief under section 702 of the APA, a

ciaimant must satisfy two requirements: (1) that it has been affected by

“agency action” as defined in section 551(13); and (2) that it has been

“adversely affected or aggrieved” by that action “within the meaning of

the relevant statute.” 5 U.S.C. § 702.

58a

EIS for their proposed action and the real issue is whether the

NEPA requires the defendants to perform a_ program-

matic EIS. The NEPA requires an EIS only when actions

are connected, cumulative, or similar actions. 40 C.F.R.

§ 1508.25.

The Court finds that the defendants’ argument that no

agency action exists is flawed. First, the defendants argument

relies on a mischaracterization. The defendants argue that

because the other sections of the Settlement Act are still in

the preliminary stages of development, there is no final

agency action that can be reviewed. However, the plaintiffs

claim is that the Wetlands WEIS and ROD are inadequate

because the WEIS should have addressed the impact of

sections 205, 206, 207, 209, and 210(b) (16) of the Settlement

Act. The plaintiffs contend that sections 205, 206, 207, 209,

and 210(b)(16) of the Settlement Act are intimately related

and therefore should have been considered together in one

programmatic EIS. Therefore, plaintiffs are challenging a

final agency action—the preparation of an EIS that simply

evaluates the impact of implementing section 206. In Kleppe

v. Sierra Club, 427 U. S. at 408, the respondents asked the

Supreme Court to address whether a comprehensive regional

impact statement was necessary even though a regional plan

or proposal did not exist. The Court stated that one way to

view this argument was as an “attack upon the decision of the

petitioners not to prepare one comprehensive impact state-

ment on all proposed projects in the region.” /d. at 408. The

Supreme Court found that contention properly before the

Court because the petitioners had made it clear they did not

intend to prepare such a statement. /d.

Second, this court finds the Ninth Circuit’s analysis in

Northwest Resource Ctr, Inc. v. National Marine Fisheries

Serv., 56 F.3d 1060 (9th Cir. 1995), applicable to this case. In

Northwest Resource, the plaintiffs filed suit against the Army

Corps of Engineers and National Marine Fisheries Services

59a

alleging NEPA violations. The plaintiffs alleged that the

defendants violated the NEPA by failing to consider the

impacts of the transportation program for juvenile salmon in

the EIS analyzing salmon-river flow improvement measures.

Id. at 1065. The defendants argued that the plaintiffs had

failed to challenge any agency action because they were

challenging the Corps of Engineers’ decision not to prepare

an EIS for the transportation program for which no action had

been taken. /d. The Ninth Circuit stated that the “defendants

argument begs the question” and that the court must first

determine whether the transportation program is a connected

action to the flow improvements programs. /d. at 1067. The

Ninth Circuit held that “if the two [actions] were connected

actions then NEPA required them to be addressed in the same

EIS.” /d. This court finds that in considering whether there is

agency action, the court must first determine whether the

separate sections of the Settlement Act constitute cumulative

or connected actions that should have been addressed in the

same EIS.

III Standard of Review

Under the Administrative Procedure Act an agency’s

decision may be set aside only if it was “‘arbitrary,

Capricious, an abuse of discretion, or otherwise not in

accordance with law.’” Morongo Sand of Mission Indians v.

Federal Aviation on Admin., 161 F.3d 569, 573 (9th Cir.

1996) (quoting 5 U.S.C. § 706(2)(A)). Agency decisions

regarding NEPA are reviewed under the APA’s arbitrary and

capricious standard. See id. In evaluating whether an agency’s

decision complies with NEPA’s requirements, a court must

determine whether the agency’s decision contains “a rea-

sonably thorough discussion of the significant aspects of the

probable environmental consequences.” Neighbors of Cuddy

Mountain v. United States Forest Serv., 137 F.3d 1372, 1376

(9th Cir. 1998).

60a

IV Programmatic Environmental Impact Statement

A. Parties Arguments

Plaintiffs argue that sections 205, 206, 207, 209, and

210(b)(16) are interrelated because they have a common

thread tying them together—the protection of the Pyramid

Lake Fishery. They also claim that the historical language of

the Settlement Act suggests the Act was viewed as “an

integrated and comprehensive agreement” and that certain

employees, and the Department of the Interior itself, con-

sidered sections 205, 206, 207, 209, and 210(b)(16) inter-

related. The plaintiffs state that the “primary driver” of the

Settlement Act and a common thread among all the sections

in the Settlement Act is the protection of the Pyramid Lake

Fishery and that the different components of the Settlement

Act intend to produce cumulative effects to fish and wildlife.

(Plaintiffs’ Opposition and Cross-Motion, p. 17)

Defendants contend that the provisions of the Settlement

Act are not connected or cumulative actions. First, the

defendants argue that the Settlement Act itself does not create

a single federal program because each of the provisions in the

Act has a different purpose. (Defendants’ Reply to Plaintiffs’

Opposition and Cross-Motion, p.2) The defendants state that

the Settlement Act was passed by Congress in an effort to

address several different problems and concerns and that it

does not have the restoration of the Pyramid Lake Fishery as

its central theme. Second, defendants note that each of the

provisions is independent of the other and that while they

may benefit each other they are not interdependent and can be

implemented without the other. (Defendants’ Reply to

Plaintiffs’ Opposition and Cross-Motion, p. 4-7)

B. Requirement for a Programmatic EIS

The Council on Environmental Quality (CEQ), which

issues regulations regarding NEPA, has stated that “(pro-

posals or parts of proposals which are related to each other

6la

closely enough to be, in effect, a single course of action shall

be evaluated in a single impact statement.” 40 C.F.R.

§ 1502.4(a). In determining the scope of an EIS an agency

should consider whether the actions involved are connected,

cumulative, or similar actions which should be included in the

same EIS as set out in section 1508.25.7° Id.; see also

National Wildlife Fed’n vy. Federal Energy Regulatory

Comm'n, 912 F.2d 1471, 1476 (D.C. Cir. 1990). In this case,

we are only concerned with connected and cumulative

actions. We note that an analysis of cumulative actions and

cumulative impacts are different. Section 1508.25 requires

cumulative actions to be considered in one EIS. However,

even if actions are not found to be cumulative (or connected),

*° Section 1508.25 defining the scope of an EIS states: Scope consists

of the range of actions, alternatives, and impacts to be considered in an

environmental impact statement. The scope of an individual statement

may depend on its relationships to other statements (§§ 1502.20 and

1508.28). To determine the scope of environmental impact statements,

agencies shall consider 3 types of actions, 3 types of alternatives, and 3

types of impacts. They include:

(a) Actions (other than unconnected single actions) which may be:

(1) connected actions, which means that they are closely related

and therefore should be discussed in the same impact statement.

Actions are connected if they:

(i) Automatically trigger other actions which may require

environmental impact statements.

(ii) Cannot or will not proceed unless other actions are taken

previously or simultaneously.

(iii) Are interdependent parts of a larger action and depend on

the larger action for their justification.

(2) Cumulative actions, which when viewed with other proposed

actions have cumulatively significant impacts and should therefore

be discussed in the same impact statement.

(3) Similar actions, which when viewed with other reasonably

foreseeable or proposed agency actions, have similarities that

provide a basis for evaluating their environmental consequences

together, such as common timing or geography. . . .

62a

an agency must still analyze in its EIS the direct, indirect, and

cumulative impacts of its proposed action. 40 C.F.R. §

1508.25(c). Section 1502.1 states that the purpose of an EIS

is to provide “full and fair discussion of significant

environmental impacts and shall inform decisionmakers and

the public of the reasonable alternatives which would avoid

Or minimize adverse impacts or enhance the quality of the

human environment.” 40 C.F.R. § 1502.1.

Cumulative actions are actions which “when viewed with

other proposed actions have cumulatively significant impacts

and should therefore be discussed in the same impact

statement.” See 40 C.F.R. § 1508.25(a) (2); see also City of

Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir.

1990) (stating that where “several foreseeable similar projects

in a geographical region have a cumulative impact they

should be considered in a single EIS”). The regulations define

cumulative impact as “the impact on the environment which

results from the incremental impact of the action when added

to other past, present, and reasonably foreseeable future

actions regardless of what agency . . . or person undertakes

such ocher actions.” 40 C.F.R. § 1508.7. Connected actions

are defined as actions that:

(i) Automatically trigger other actions which may

require environmental impact statements.

(ii) Cannot or will not proceed unless other actions are

taken previously or simultaneously.

(iii) Are interdependent parts of a larger action and

depend on the larger action for their justification.

40 C.F.R. 1508.25(a)(1).

Analyzing cumulative actions in one EIS is at times

necessary in order to ensure that an agency has considered the

full environmental impact of its actions during its decision-

making. Kleppe v. Sierra Club, 427 U.S. 390, 408 (1976).

63a

One of the rationales for requiring an agency to consider

connected actions together in the same EIS is to ensure that

an agency does not divide the project into several smaller

actions, each having insignificant environmental impact when

considered in isolation but when taken as a whole would have

a substantial impact. Northwest Resource Info. Ctr. v.

National Marine Fisheries Serv., 56 F. 3d 1060, 1068 (9th

Cir. 1995).

B. Analysis

Several principles can be gleaned from cases which have

addressed the issue of when NEPA requires actions to be

considered in one EIS. In Thomas v. Peterson, 753 F.2d 754

(9th Cir. 1985), the Ninth Circuit held that the construction of

a road to facilitate logging and the sale of timber that would

result from that logging were connected actions. The court

found that the two actions were “inextricably intertwined”

because the timber sales “cannot proceed without the road,

and the road would not be built but for the contemplated

timber sales.” /d. at 757. Similarly, in Save the Yaak Comm.

v. J.R. Block, 840 F.2d 714 (9th Cir. 1988), the Ninth Circuit

held that the Forest Service’s proposed road reconstruction

and timber sales were connected actions that had to be

analyzed in one EIS. The court found that there was a “clear

nexus between the timber contracts and the improvement of

the road.” /d. at 720. The court was persuaded by the fact that

a substantial part of the testimony and evidence established

that the purpose of the road was to make the log hauling more

efficient and there was no indication that the road was

reconstructed for any other purpose. /d.

In Trout Unlimited v. Morton, 509 F.2d 1276 (9th Cir.

1974), the Ninth Circuit held that the first and second phase

of the Teton Dam and Reservoir Project need not be

addressed in the same EIS because each phase was

substantially independent. /d. at 1284. The court stated that an

EIS must cover subsequent phases when the “dependency is

64a

such that it would be irrational, or at least unwise, to

undertake the first phase if subsequent phases were not also

undertaken.” /d. at 1285. This principle was followed by the

Court in Daly v. Volpe, 514 F.2d 1106 (9th Cir. 1975). In

Volpe, the Court held that segments of a highway may be

evaluated separately if the segment has “independent utility.”

Id. at 758. The Ninth Circuit has interpreted “independent

utility” to mean utility such that the agency might reasonably

consider constructing only the segment in question. Thomas,

753 F.2d at 760.

The Ninth Circuit held in Sylvester v. U. S. Army Corps of

Eng’rs, 884 F.2d 394, 400 (9th Cir. 1989), that the effects of

a proposed golf course and resort did not need to be

considered in the same EIS. The court analogized envir-

onmental impacts to “scattered bits of a broken chain, some

segments of which contain numerous links, while other have

only one or two. Each segment stands alone, but each link

within each segment does not.” /d. at 399. Following this

analogy the court noted that the golf course and the remainder

of the resort complex, separate segments of the chain, “ could

exist without the other, although each would benefit from the

other’s presence.” Jd. at 400; see also Western Radio Serv.

Co. v. Glickman, 123 F.3d 1189, 1194 (9th Cir. 1997)

(holding that the modification of an existing project to

construct a tower and an access road did not make the

projects connected actions because the two actions did not

satisfy the definition of connected actions). In Northwest

Resource Info. Ctr., Inc. v. National Marine Fisheries Serv.,

56 F.3d 1060 (9th Cir. 1995), the Court held that a river flow

improvement project and a juvenile salmon transportation

program were not connected actions. The court found that the

two programs were not “links in the same bit of chain”, that

each program could continue without the other and that the

two actions had independent utility. /d. at 1068. The court

held that the two actions were interconnected to the extent

that each would benefit from the existence of the other. /d. at

65a

1069. The court did acknowledge that the two actions were

not wholly unrelated but rejected the district court’s argument

that the two actions were so interdependent as parts of a

larger action of improving the survival of the salmon that they

needed to be addressed in the same EIS. The court stated that

while an agency cannot “segregate its actions in order to

support a contention of minimal environmental impact” the

agency could not be forced to “aggregate diverse actions to

the point where problems must be tackled from every angle at

once. To do so risks further paralysis of agency decision

making.” /d.

1. Cumulative Actions

We do not find that sections 205, 206, 207, 209, and

210(b)(16) are related actions that have cumulative or

synergistic impacts. To determine whether actions are

cumulative or will have synergistic environmental impacts

upon a region, a court should weigh a number of relevant

factors, including “the extent of the interrelationship among

proposed actions and practical considerations of feasibility.”

Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976); see also,

Airport Neighbors Alliance, Inc. v. United States, 90 F.3d

426, 431 (10th Cir. 1996) (applying the “inextricable nexus”

and “unwise or irrational” standards to determine whether

particular actions of a program were cumulative). The

Supreme Court stated that “[rJesolving these issues requires a

high level of technical expertise and is properly left to the

informed discretion of the responsible federal agencies.”

Kleppe, 427 U.S. at 412. Absent a showing of arbitrary

action, the court must assume that the agency has exercised

its discretion appropriately.

First, the Court finds that section 210(b)(16) is not a

substantive requirement placed upon the agency but rather a

procedural safeguard to ensure that the agency considers the

effect upon local interests of implementing the Settlement

Act. The agency has in fact done that in its final EIS. Second,

66a

the Court finds that sections 205, 206, 207, and 209 have liitle

or no interrelationship. Section 205 concerns the negotiation

of an operating agreement for the Truckee River reservoirs.

This section directs the Secretary to negotiate an agreement

between the State of Nevada and the State of California.

Section 205 is not related to or dependent upon section 206,

207 or 209. The Secretary is free to begin negotiations at any

time and is not constrained by either section 206, 207 or 209.

Section 206 addresses the purchase and acquisition of water

rights to maintain 25,000 acres of wetland habitat. The

Settlement Act does not limit the time in which the Secretary

can begin to purchase the water rights and section 206

can proceed without having sections 205, 207, or 209

simultaneously implemented.

Section 207 concerns the conservation and recovery of the

cui-ui and Lahontan cutthroat trout. Although this section,

like section 206, is also designed to benefit the environment,

it is not interdependent on section 205, 206, and 209. It is not

unwise or irrational to postpone implementing section 207.

Section 209 directs the Secretary to conduct a variety of

studies regarding the Newlands Reclamation Project and

directs the Secretary to operate and maintain the project in a

more efficient manner in order to serve several interests

including fish and wildlife, municipal water supply, water

quality, and recreation. While section 209 may result in

benefits to fish and wildlife, section 209 is not interdependent

or interrelated to sections 205, 206, and 207. Each of the

sections discussed above has a different goal and different

methods for achieving these goais. The sections are not

“inextricably intertwined.”

In addition, no action or proposals have been made

regarding sections 205, 207, and 209. Counsel for the

defendants stated in oral argument that it will be another two

years at least before the Truckee River Operating Agreement

called for in section 205 reaches a proposal stage. No action

67a

has been taken under section 209(j)(3) for recoupment since

that is being handled through litigation.”” Also, no proposals

exist for recovery of the Pyramid Lake Fishery in section 207.

Therefore, it is not feasible to consider these sections in a

programmatic EIS. The Court also notes that the primary

purpose of the Settlement Act is not the protection of the

Pyramid Lake Fishery but rather the resolution of water

disputes between the State of California and Nevada. The

Senate report on the Settlement Act devotes a substantial

section of the report to describing the water dispute between

the two states. (Defendants Renewed Motion for Summary

Judgment, Ex. 2, S.Rep. No. 101-555, p.8-19)

Furthermore, the plaintiffs rely on Kleppe v. Sierra Club,

427 U.S. 390 (1976), to support their argument that sections

205, 206, 207, 209, and 210(b) (16) are cumulative actions

that need to be considered in one EIS. In Kleppe the Supreme

Court stated that when several proposals that “will have

cumulative or synergistic environmental impact upon a region

are pending concurrently before an agency, their environ-

mental consequences must be considered together.” /d. at

410. However, the Supreme Court noted that an agency is not

required to consider in a single environmental statement

actions that are not yet proposed projects. The Supreme Court

Siued that the statute “speaks solely in terms of Proposed

actions; it does not require an agency to consider the possible

environmental impacts of less imminent actions when

preparing the impact statement on proposed actions.” /d.

at 410 fn.20; see also, National Wildlife Fed’n v. Federal

Energy Regulatory Comm'n, 912 F.2d 1471, 1478-79 (D.C.

Cir. 1990) (stating that K/eppe “clearly establishes that an EIS

need not delve into the possible effects of a hypothetical

project, but need only focus on the impact of the particular

proposal at issue and other pending or recently approved

?” See United States v. Board of Directors, Truckee-Carson Irric- Dist.,

et al., CV-N-95-757-HDM (D.Nev.).

68a

proposals that might be connected to or act cumulatively with

the proposal at issue”).

The Supreme Court in Kleppe, 427 U.S. at 410 fn.20, went

on to state that “[s]hould contemplated actions later reach the

stage of actual proposals, impact statements on them will take

into account the effect of their approval upon the existing

environment; and the condition of that environment presum-

ably will reflect earlier proposed actions and their effects.” /d.

Under this rule, the Department of the Interior was not

required to consider the effect of sections 205, 207, or 209

because there are no proposed actions currently before the

agency on these sections. Furthermore, once these sections

have reached the stage of proposed actions, impact state-

ments on these sections will take into account the effects of

section 206.

2. Connected Actions

We also do not find that sections 205, 206, 207, and 209

are connected actions that need to be addressed in a single

EIS. First, these sections do not fall under the definition of

connected actions set out in section 1508.25. See 40 C.F.R.

§ 1508.25. Sections 205, 206, 207, and 209 do not auto-

matically trigger each other. Each section may be imple-

mented individually and can proceed without another section

being implemented simultaneously. Also, sections 205, 206,

207, and 209 are not interdependent parts of a larger action

that depend on the larger action for justification. Each section

addresses an issue that Congress wanted to see resolved. The

Court does not find that Congress intended for each provision

to exist only if the other provisions are carried out.

Congress’s goal in passing Title II of the Settlement Act was

to provide a framework to resolve some of the water disputes

between the two states, to benefit the environment in the

Newlands area and to encourage settlement of water disputes

between the state of California and Nevada.

ee eee

69a

Second, the Court finds that the provisions of the

Settlement Act are not connected actions under Ninth Circuit

precedent. The Settlement Act’s provisions are not “inex-

tricably intertwined” as the court described in Thomas y.

Peterson, 753 F.3d 754, 757 (9th Cir. 1985). The imple-

mentation of section 206 is not dependent on other sections.

Water purchased for the benefit of the Tribe and the Pyramid

Lake fish can proceed without section 206. Likewise, it is not

irrational to proceed with implementing section 206 without

implementing other sections. Sections 205, 206, 207, and 209

have independent utility and separate purposes and goals.

Although, the provisions may generally benefit the envir-

onment, the Settlement Act is not itself one federal program.

Sections 205, 206, 207, and 209 are only interconnected to

the extent that each would benefit from the existence of the

other. See Northwest Resource, 56 F.3d at 1060. However,

they are separate segments of the chain and do not need to be

considered in one EIS. See Sylvester, 884 F.2d at 400.

IV Inadequacy of WEIS for Section 206

The role of the courts in reviewing agency compliance with

the NEPA is a limited one because “NEPA does not mandate

particular substantive results, but instead imposes only pro-

cedural requirements.” Laguna Greenbelt, Inc. v. United

States Dep't of Treasury, 42 F.3d 517, 523 (9th Cir. 1994);

See Daly v. Volpe, 514 F.2d 1106, 1108 (9th Cir. 1975). A

court’s task is to ensure that the agency has considered and

disclosed the environmental impact of its actions. Association

of Pub. Agency Customers, Inc. v. Bonneville Power Admin.,

126 F.3d 1158, 1183 (9th Cir. 1997). A court is not to

“substitute [its] judgment for that of the agency concerning

the wisdom or prudence of a proposed action.” Oregon Envil.

Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987).

In reviewing the adequacy of a final environmental impact

statement we merely examine “’ whether there is a reasonable,

good faith, objective presentation of the topics [that NEPA}

70a

requires an [EIS to] cover.’” Colorado Envtl. Coalition v.

Dombeck, 185 F.3d 1162, 1171 (10th Cir. 1999) (citing Holy

Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522

(10th Cir. 1992)). Our objective is not to “fly speck” the EIS,

but rather to make a pragmatic judgment on whether the

EIS’s content, form, and preparation “‘foster both informed

decisionmaking and informed public participation.’” /d.

(quoting Oregon Ervtl. Council v. Kunzman, 817 F.2d 484,

492 (9th Cir. 1987)).

For NEPA actions challenging the adequacy of an envir-

onmental impact statement, the Ninth Circuit has fashioned a

“rule of reason” to determine whether the agency has engaged

in a “reasonably thorough discussion of the significant

aspects of probable environmental consequences.” American

Rivers v. Federal Energy Regulatory Comm., 201 F.3d 1186

(9th Cir . 2000); Oregon Natural Resources Council v. Lowe,

109 F.3d 521, 526 (9th Cir. 1997). Once the court is satisfied

that the agency has taken a “hard look” at a decision’s

environmental consequences, the courts review is at an end.

American Rivers, 201 F.3d at 1194; Idaho Conservation

League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).

“The rule of reason analysis and the review of abuse of

discretion are essentially the same.” Neighbors of Cuddy

Mountain v. United States Forest Serv., 137 F.3d 1372, 1376

(9th Cir. 1998); Muckleshoot Indian Tribe v. United States

Forest Serv., 177 F.3d 800, 810 (9th Cir. 1999).

In determining whether an agency acted in an arbitrary and

capricious manner a court must ensure that the agency

decision was based on a “consideration of the relevant

factors” and examine “‘whether there has been a clear error of

judgment.’” Colorado Envtl. Coalition v. Dombeck, 185 F.3d

1162, 1167 (10th Cir. 1999) (quoting Citizens to Preserve

Tla

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). An

agency’s decision is arbitrary and capricious if

“the agency . . . relied on factors which Congress had not

intended it to consider, entirely failed to consider an

important aspect of a problem, offered an explanation

for its decision that runs counter to the evidence before

the agency, or is so implausible that it could not

be ascribed to a difference in view or the product of

agency expertise.”

Id. (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto Ins. Co., 463 U.S. 29, 43 (1983)).

NEPA requires that an EIS serve two functions: (1) to

provide decision makers with a detailed statement of the

environmental impact of a project so that they can make an

informed decision on the project, and (2) to provide the

public with information on a project’s environmental impact

and encourage public participation. Trout Unlimited v.

Morton, 509 F.2d 1276, 1283 (9th Cir. 1974). The court is to

make a “pragmatic judgement whether the [EIS’s] form,

content and preparation foster both informed decision-making

and informed public participation.” Jdaho Conservation

League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).

Plaintiff's Arguments for why the WEIS is Inadequate:

The plaintiffs argue that the final EIS completed for section

206 is inadequate for several reasons. First, they argue that

the EIS did not adequately analyze the cumulative and syner-

gistic impacts of the Settlement Act’s various provisions.

Second, plaintiffs allege that the WEIS does not adequately

study the effects on groundwater that would result from

implementing the Settlement Act’s various sections. Third,

plaintiffs claim that the defendants have improperly seg-

mented two closely related actions—wetlands acquisitions

and the wetlands management plan. Fourth, plaintiffs argue

that the proposed alternatives in the WEIS are incomplete and

72a

are not true alternatives. The plaintiffs allege that the

preferred alternative selected in the ROD is not feasible and

was not fully analyzed. Finally, plaintiffs claim that the WEIS

failed to analyze the effect of the proposed alternatives on

certain resources, such as air quality and soil erosion.

A. Adequacy of EIS as it Relates to Cumulative and

Synergistic Impacts

1. NEPA Requirements

Regulations implementing NEPA require that a federal

agency consider the cumulative impacts of past, present, and

reasonably foreseeable actions on the proposed action. Save

the Yakk Committee v. J.R. Block, 840 F.2d 714 (9th Cir.

1988); Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985).

Cumulative impacts is defined as:

[T]he impact on the environment which results from the

incremental impact of the action when added to other

past, present and reasonably foreseeable future actions

regardless of what agency (Federal or non-Federal) or

person undertakes such other actions. Cumulative

impacts can result from individually minor but collec-

tively significant actions taking place over a period

of time.

40 C.F.R. § 1508.7

An EIS must “catalogue adequately the relevant past

projects in the area” and include a “useful analysis of the

‘cumulative impacts of past, present and future projects.” City

of Carmel-By-The-Sea v. U.S. Dept of Transp., 123 F.3d

1142, 1160 (9th Cir. 1997). To meet this requirement an EIS

must discuss how future projects together with the proposed

project will affect the environment. /d.; Inland Empire Public

Lands v. United States Forest Serv., 88 F.3d 754, 764 (9th

Cir. 1996) (stating that cumulative impact analysis requires

the agency to consider the combined effects of the project at

issue with those of past, present, and foreseeable future

nm Se ae

73a

projects). This analysis must discuss the combined effects in

sufficient detail to be “useful to the decisionmaker in

deciding whether, or how, to alter the program to lessen

cumulative impacts.” /d; Muckleshoot Indian Tribe v. United

States Forest Serv., 177 F.3d 800, 810 (9th Cir. 1999).

2. Parties Arguments

The plaintiffs contend that the WEIS failed to adequately

analyze the cumulative and synergistic impacts resulting from

the implementation of related actions and the proposed

action. The plaintiffs first state that the related actions were

simply listed and that the WEIS never analyzed the impacts

with sufficient detail. The plaintiffs also argue that the WEIS

failed to analyze the synergistic effects of the Settlement

Act’s various provisions on agricultural providers and others

relying on Newlands Project resources. Also, the plaintiffs

contend that the WEIS unlawfully deferred the specific study

of cumulative impacts from five of its fifteen acknowledged

“related actions” to future EISs or EAs expected after section

206 has been approved.”*

The defendants contend that the WEIS did take into

account the cumulative impact of past, present, and reason-

ably foreseeable future projects. Defendants argue that the

Service identified the related actions to the “project at issue”

and then analyzed the cumulative and synergistic impacts

of these related actions individually and _ collectively.

(Defendants’ Reply, p. 29) The defendants further argue that

the plaintiffs criticism of the cumulative analysis is simply

another version of plaintiffs’ complaint that a programmatic

EIS was required.

3. Analysis

The “project at issue” in the WEIS was described as “a

proposal to acquire water and water rights from within a

8 The deferred actions include the cumulative effects study of TROA,

cui-ui recovery, OCAP, and the Stillwater wetlands management program.

74a

portion of a single river basin for the benefit of wetlands

within that same river basin.” (Defendants’ Reply to

Plaintiffs’ Opposition and Cross-Motion, p. 33) In section

4.26 (p.4-135) the WEIS discusses the cumulative impacts of

the Settlement Act’s various provisions in the proposed

project area. The WEIS addresses the effects of Section 102

(acquisition of water rights for the Fallon Paiute-Shoshone

Reservation agricultural lands), Section 205(a) (The Truckee

River Operating Agreement), Section 206(c)(3) (NAS-Fallon

Studies of Land Management options to reduce water use for

aircraft safety purposes), Section 206(e) (Transfer of Carson

Lake for use as wildlife refuge), Section 207(a) (recovery

plans for endangered species and threatened Pyramid Lake

fish), Section 209(j) (Newlands Project recoupment), Section

209(j)(2) (Adjustments to OCAP), the Truckee River Water

Quality Settlement Agreement, and Section 206(g) (Transfer

of the Indian Lakes Area). The WEIS also considered the

cumulative impact of the NAS-Fallon Expansions, the growth

and diversification of Churchill County, and agricultural

production.

In Muckleshoot Indian Tribe v. United States Forest Serv.,

177 F.3d 800 (9th Cir. 1999), the Ninth Circuit held that

cumulative analysis sections which “merely provide very

broad and general statements devoid of specific, reasoned

conclusions” are insufficient to satisfy the NEPA. /d. at 811.

This Court does not find that the analysis of the cumulative

impacts in the Wetlands FEIS is “general or one-sided.” The

WEIS does not simply “list” the related actions; it analyzes

the impacts of the related actions individually and col-

lectively. The analysis provided in the Wetlands FEIS is very

different from the cumulative impact analysis the Ninth

Circuit held in Muckleshoot was insufficient to meet NEPA.

Id. In Muckleshoot the court found that the EIS merely

provided general statements with no details as to the

cumulative impacts the related actions would have on the

75a

surrounding environment.” /d. The court cited as an example

of the deficiency of the EIS the EIS’s cumulative impact

statement regarding the impact of proposed alternatives 2

and 3. The court stated that the impact statement “simply

indicates the amount of land to be exchanged, and whether or

not the land will be subject to commercial harvest. [The EIS]

then concludes:

‘Under Alternatives two and three, the Forest Service

would manage for non-harvest uses an additional 16,

735 (16,876 Alternative 3) acres of young forest and

non-forest vegetation. Most of this acreage . . . would

over time develop greater species diversity and stand

structure.’”

Id. The court noted that the statement did not contain any

evaluation of the impact on natural resources of timber

harvesting on the lands or upon surrounding areas. /d.

In this case, the WEIS considered the cumulative impact of

its current proposal with certain related past and present

actions, such as an earlier 20,000 AF water rights acquisition

effort, and the expansion of the Naval Air station at Fallon,

(WEIS p.4-148-149, 151-152). The EIS also considered the

cumulative impact of reasonably foreseeable future actions,

such as adjustments to OCAP, the negotiation of the TROA,

and possible cui-ui recovery methods which were under

consideration at the time.*’ (WEIS section 4.26.9, p.4-145 to

2° In Muckleshoot Indian Tribe v. United States Forest Serv., 177 F.3d

800, 811 (9th Cir. 1999), the Ninth Circuit held that the EIS’s treatment of

cumulative impacts was insufficient. The court held that the cumulative

effects discussion merely provided broad and general statements devoid of

any specific or reasoned conclusions. /d.

*° In addressing the effects of the cui-ui recovery under section 207(a)

the WEIS discusses some suggestions made by the Cui-ui Recovery Plan

of measures to increase the flow of water in the lower Truckee River. The

WEIS states that the “Service recently released a draft environmental

assessment that considered and evaluated several alternatives for acquir-

76a

146 discusses OCAP, section 4.26.3, p. 4-138 discusses the

TROA, and section 4.26.7, p.4-141 to 142 discusses the

Pyramid Lake fishery recovery). In addition, the WEIS

considered the cumulative impacts of the proposed action

with other trends, such as the growth and diversification

of Churchill County and agricultural production. (WEIS,

p. 4-149 to 150, 4-152). Furthermore, in sections 4.26.16 and

4.26.17 the WEIS analyzes the anticipated cumulative

impacts of these related actions collectively under the

proposed alternative and the no action alternative. These

sections are sufficiently detailed to make an informed the

decision and to disclose to the public the environmental

effects of the proposed action.!

The WEIS estimated that the acquisition of water rights for

Lahontan Valley would occur over a period of 20 years. The

WEIS then identified related actions and considered the

potential impact of those actions, and the project at issue,

ing water rights for cui-ui under a pilot program. The proposed pilot

program called for the acquisition of up to 3,500 AF of water rights.

Finalization of the EA has been delayed pending completion of an eight-

year study to assess the population status of cui-ui.” WEIS, p.4-142.

*! In section 4.26.17 summary the cumulative effects of the Settlement

Act’s various provisions, although the WEIS does at times direct the

reader to other sections that provide more in depth detail on the subject,

the analysis of the cumulative impact of the Act’s various sections and

other foreseeable projects is not general or inadquate. For example, in

discussing agriculture, farmland, local economy and land use, one section

of the WEIS states:

Acreage of irrigated farmland would decline in the Carson Division

by another 15,400 acres and along the Middle Carson River by as

much 4,800 acres, which further impact the agricultural commu-

nities in Churchill and Lyon Counties . . . . (Please Sections 4.16

and 4.19 for more detail and for information on possible mitigation

measures. )

WEIS p.4-160.

Se

Se

77a

upon the environment within the study area. Several exam--

ples illustrate that the WEIS adequately analyzed the cumu-

lative impacts:

Acquisition of Water Rights for Fallon Paiute-Shoshane

Reservation

Section 102 of the Act, authorizes the acquisition of water

rights for the benefit of the Tribe. Although the Tribes have

taken no action to implement this provision, the WEIS

proceeds to describe the possible effects of implementing this

section. The WEIS evaluates the effect on the water quality as

water rights are transferred from one location in the

Newlands project and applied to previously un-irrigated lands

on the reservation. (WEIS, section 4.26.1, p. 4-135, 4-136)

The WEIS’s assessment of these water rights acquisitions

examines the potentially adverse effects of the water acqui-

sition on farmland, water quality, groundwater recharge,

private land ownership, county tax rolls, and species habitat.”

The WEIS evaluates each of these adverse effects under

possible scenarios, provides alternative methods of reducing

some of the effects, and points out the benefits that would be

achieved. For example, the EIS states that water quality in

individual drains will be affected as water rights are

transferred from one location in the Newlands Project and

applied to previously un-irrigated lands. The EIS evaluates

these effects:

The concentration of potentially toxic heavy metals in

the water of some drains could experience temporary

increases as rainwater leaches naturally occurring heavy

*? The WEIS states that the concentration of potentially toxic metals in

the water will increase, that the “pattern of groundwater recharge from

canal losses and on-farm losses would be shifted from areas in the Carson

Division to reservation lands”, that recharge of the shallow aquifer could

be impacted, that their would be temporary declines in farmland habitat

and riparian habitat, a reduction in privately-owned farmland in Carson

Division. (WEIS 4-135, 4-136)

78a

metals and minerals from the newly-irrigated fields. The

concentration of metals in the rainwater would be

dependent on the quantity of materials in the newly

irrigated soils. Drain water effluent from new fields

would flow in to Stillwater [National Wildlife Refuge]

NWR and, therefore, could potentially reduce water

quality on the refuge for several years. Metals flushed

from the soil would accumulate in the refuge. Continued

irrigation is expected to flush most of the metals from

the soil. The concentration of metals in drain water from

newly irrigated fields is expected to decline to levels

more comparable with existing drains within the area in

about 5 to 7 years.

WEIS, section 4.26.1, p. 4-135.

Recovery Plans for endangered species

The WEIS does evaluate the cumulative impacts of

acquiring more water to benefit the cui-ui even though there

are no current proposals for section 207. The EIS states that

water acquisition for the cui-ui may result in reduce flows in

the Truckee canal as farms in the Truckee Division are taken

out of production, which could then affect the groundwater

recharge in the Fernley area. (WEIS p. 4-143) Another cumu-

lative impact identified is the change in property tax revenues

as taxable lands are removed from County tax rolls. (Id.) The

WEIS also states that water purchased may affect the wetland

acres at the Fernley WMA which could then affect the

diversity and abundance of wetland-dependent species. (/d.)

TROA

The WEIS states that the TROA is still being negotiated and

that it would be premature to speculate as to its provisions.

However, the WEIS notes that any negotiated TROA is

limited by the Orr Ditch decree and the Truckee River

General Electric Decree and that, therefore, the TROA is not

expected to impact the Newlands Project. (WEIS p. 4-138)

79a

An agency is not required to consider every cumulative

impact, just reasonably foreseeable ones. The plaintiffs argue

that the TROA wiil have “negative impacts on Cui-ui and as

such require purchase of additional Newlands Project water

rights, thus, further reducing groundwater recharge in

Lahontan Valley.” (Plaintiffs’ Opposition and CrossMotion,p.

41, citing Tab 139) A look at the document from which

plaintiffs base their assertion reveals that such document

merely states that mitigation efforts will have to be

considered to offset any negative impact to the Cui-ui from

section 204 and that such mitigation could come in the form

of additional purchase of water rights. (/d.) The NEPA does

not mandate that the agency have a “‘fully developed plan

that will mitigate environmental harm before an agency can

act.”” City of Alexandria v. Slater, 198 F.3d 862, 870 (D.C.

Cir. 1999) (quoting Robertson v. Methow Valley Citizens

Council, 490 U.S. 3321 (1989)). Also, the WEIS discloses

that the TROA being negotiated in 1996 was to benefit the

cui-ui by changing the timing flows of the Truckee River.

The Service even considered additional actions that would

have an impact on the Project area. The WEIS in section

4.26.12 addressed the impact of growth and diversification of

Churchill County. (WEIS p. 4-149) The WEIS assesses that

an increase in growth in Churchill County will create more

demand or groundwater supplies in Churchill County and that

growth in Fallon could adversely effect the basalt aquifer

recharge as well as shallow and intermediate aquifer

recharge. (/d.) The WEIS also considers the impact of agri-

cultural production. (WEIS p.4-152) The WEIS examines the

impact of water rights acquisition or alfalfa production, which

contributes about $16 million annually economic activity in

Churchill County. (/d.)

In addition, the WEIS addressed the combined effect of the

cumulative impacts under the preferred alternative and

without the preferred alternative. (WEIS, p. 4-153 to 163)

80a

The WEIS states that without the preferred alternative the

cumulative effect of the activities described by the WEIS

(basically the implementation of the provisions in the

Settlement Act) would result in higher efficiency rates for the

Newlands Project,*? water quality of wetlands inflow will

improve,” short term increase in wind erosion and mosquitos,

growth in wetland dependent habitat, a decrease in farmland,

an increase in recreational opportunities, a reduction in_lands

subject to property taxes, and enhance cultural resources. The

anticipated impacts of the preferred alternative are generally

as follows: improvement in Newlands delivery efficiency

rates, increase water quality while decreasing basalt aquifer

recharge, increase in pest problems, increase in wetland

habitat, reduction in farmland overall although under this

alternative less farmland may need to be purchased, and

increase in revenue for Lyon County. (WEIS section 4.26.17,

p.4-158 to 161).

The WEIS contains sufficient detail of the cumulative

impacts to allow an informed decision on how to mitigate the

impacts. Also, in response to plaintiffs’ arguments the

defendants could defer studies on the TROA, cui-ui recovery,

and OCAP until laier because these actions are not connected

* The WEIS states that acquisition of water rights for the Fallon

Reservation lands, adjusted OCAP, the implementation of the NAS-Fallon

modified land management plan, growth in Churchill County and

completion of the 20,000 AF water rights acquisition program will

contribute to a rise in delivery efficiency rates in the Newlands Project.

(WEIS p. 4-153) The WEIS points out that growth in Churchill County as

well as conversion of farmland to residential use will decrease water

efficiency. (/d.)

** The purchase of water rights within the Carson Division for use by

the Reservation will impact the shallow water recharge. Residential

development will also adversely impact shallow and intermediate

aquifers. The WEIS recommends that a water system that supplements

groundwater pumping with other sources, such as Newlands surface

water, will reduce the impact to groundwater recharge. (WEIS p. 4-154)

8la

or cumulative actions that need to be addressed in the same

EIS. We find that the Service has taken a “hard” look at the

environmental consequences. Our job is not to “question the

wisdom of the Forest Service’s ultimate decision or its

conclusion concerning the magnitude of indirect cumulative

impacts.” Colorado Envtl. Coalition v. Dombeck, 185 F.3d

1162, 1176 (10th Cir. 1999). After examining the record and

the WEIS we find that the Department’s impact analysis does

not violate NEPA.

B. The EIS does not adequately study the effects on

groundwater

The plaintiffs next contend that the WEIS failed to provide

an adequate study of the potential impacts of water rights

acquisitions for the Lahontan Valley wetlands on ground-

water in Churchill County and Fallon. The plaintiffs further

claim that the Service failed to prepare studies of ground-

water resources in the Lahontan Valley. We disagree.

The Court finds that the WEIS’s groundwater discussion is

“reasonably thorough.” See City of Carmel By-The-Sea v.

United States Dep't of Transp., 123 F.3d 1142, 1151 (9th Cir.

1997). The Service identified that impacts to ground-

water quality and quantity were a major ‘ssue of public

concern. (AR Tab 207, at 5187-5188) The Service reviewed

existing studies conducted by the U.S. Geological Survey

(USGS) of groundwater in Churchill County. (AR Tab 1147)

In section 3.3.3 entitled “Groundwater” the WEIS describes

the four principal aquifers of the Lahontan Valley in detail.

The WEIS provides information on the aquifers depths, water

yield, groundwater quality and groundwater recharge. The

groundwater descriptions are sufficient to allow a reasonable

person to understand the make-up of the groundwater in

Churchill County.

The Service did not simply rely on stale or old scientific

evidence. In 1991 the Service and Bureau of Reclamation

82a

contracted with USGS to conduct two groundwater studies in

the Lahontan Valley. The first study, undertaken by Ralph L.

Seiler and Kip K. Allander of the USGS, studied the

groundwater in the Newlands Project in an effort to (1)

“determine the depth to the water table in the shallow aquifer;

(2) determine the groundwater gradients in the shallow

aquifer; (3) determine the direction of ground-water flow; and

(4) design a network for future ground-water level moni-

toring.” (AR Tab 297, at 6296). > The second study was

conducted by Douglas Maurer and known as the “Maurer

Report.” It was published in 1994 and its objective was to

develop a conceptual model of the entire groundwater system

in the Carson Division of the Newlands and surrounding

areas. (Tab 14688) The purpose of the model was “to

describe potential effects of water-use changes on aquifer

yield and ground-water quality.” /d.

The studies were used by the Service to analyze the

environmental impacts of each of the alternatives to ground-

water recharge and drinking supplies in Churchill County.

(WEIS 4-33-45) For example, the WEIS states that the most

direct impact on groundwater levels and recharge as a result

of the proposed action and alternatives will occur in the

shallow aquifer. (4-33) The WEIS then proceeds to describe

the possible impacts and possible measures to mitigate these

impacts.°° (WEIS p.4-38 to 39) In addition, in its comments

*® The Seiler & Allander study used existing as well as newly drilled

observation wells and historical data to show that the construction of the

canal and drain networks of the Newlands Project led to significant

changes to the shallow aquifer in the Fallon Area, including a more

uniform and shallower water table across the area in 1992 than 1904. The

study also investigated water level changes in the shallow aquifer and

found that they had changed little between 1977 and 1992.

*© Some of the possible mitigation measures identified include

maintaining Newlands Project irrigation delivery efficiency, to convey

water to the primary wetlands using the Carson River channel, protective

Sere

,

83a

and responses section the Service addressed the groundwater

issues raised. (WEIS p. 6-14, 6-18, 6-19)

The plaintiffs seek too much from the WEIS. The NEPA

“requires a ‘reasonably thorough’ discussion of the envi-

ronmental consequences in question, not unanimity of

opinion, expert or otherwise. Agency ‘concerns’ and criticism

alone do not undermine the validity of an [EIS].” City of

Carmel-By-The Sea, 123 F.3d at 1151. The plaintiffs have

criticized the WEIS on the grounds that it failed to ade-

quately address groundwater concern. The plaintiff's point to

statements in the Maurer study that additional studies should

be done. However, “NEPA does not require that [a court]

decide whether an [EIS] is based on the best scientific

methodology available.” Greenpeace Action v. Franklin, 14

F.3d 1324, 1333 (9th Cir. 1992). The fact that there are some

uncertainties due to groundwater-irrigation relationships and

pattern of water acquisitions, does not mean that the WEIS is

inadequate: An agency “takes a sufficient hard look when it

obtains opinions from its own experts, obtains opinions from

experts outside the agency, gives careful scientific scrutiny

and responds to all legitimate concerns that are raised.”

Hughes River Watershed Conservancy v. Johnson, 165 F.3d

283, 288 (4th Cir. 1999) (citing Marsh, 490 U.S. at 378-85).

The Service relied on current scientific studies and

analyzed its proposed alternatives based on the evidence

produced by the studies. The WEIS provides sufficient infor-

mation for the public to be aware of the possible outcomes

and for a decisionmaker to determine the best course of action

to take to mitigate the possible effects. Under the arbitrary

and capricious standard the court’s deference to the agency is

greatest “when reviewing technical matters within [the agen-

cy’s] area of expertise, particularly its choice of scientific

data and statistical methodology.” Fuste v. Verity, 853 F.2d

restrictions or targeting of agricultural lands to keep such lands irrigated.

(WEIS p.4-39)

84a

322, 329 (Sth Cir. 1988). The court finds that the WEIS has

taken a hard look at the environmental consequences and that

the Service’s procedure “resulted in a reasoned analysis of the

evidence before it.” Oregon Env. Council v. Kunzman, 817

F.2d 484, 496 (9th Cir. 1987).

C. Defendants have segmented two closely related

actions: wetlands water acquisitions and the wetlands

management plan

The Plaintiffs contend that the WEIS should have con-

sidered the “wetlands management plan” and the wetlands

water acquisitions in the same EIS because these two actions

are closely related and connected actions. Plaintiffs argue that

segmenting these two projects obscures their combined

consequences and undermines the study of project impacts,

mitigation, and alternatives. The plaintiff's point out that

while defendants characterize the management plan as fine

tuning, they state elsewhere that a more “in-depth” exam-

ination of the management strategies could actually reduce

the total number of water demand needed for wetlands under

section 206. Plaintiffs also argue that the “wetlands man-

agement plan” will consider water management strategies

which will affect the region.

Defendants have a variety of responses. First, defendants

point out that the plan is not a wetlands management plan but

rather a revision of an existing 1987 conservation manage-

ment plan that will address the entire wildlife refuge. Second,

defendants argue that both actions are not closely related

or connected actions because section 206 does not trigger

the revision of the refuge management plan and both sec-

tions are derived from separate legal authorities and have

separate purposes.

The Court finds that the management plan and the

acquisition of water rights under section 206 of the

Settlement Act are not closely related or connected actions.

x

:

¢

‘

85a

First, the management plan and the acquisition of the water

rights are independent actions. The creation of a conservation

plan is the

This text is long and has been trimmed here. Open the source document for the complete record.