Water: Transfer halted over invasive species concerns

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SandBar 9:1, April, 2010 Recommended citation: Terra Bowling , Water Project Diverted: Transfer Halted Over Invasive Species Concerns , 9:1 SandBar 13 (2010). Water Project Diverted Transfer halted over invasive species concerns Terra Bowling, J.D. Citing concerns over invasive species, the U.S. District Court for the District of Columbia has ruled that a water withdrawal project is in violation of the National Environmental Policy Act (NEPA).1 The project, called the Northwest Area Water Supply Project, would withdraw water from a reservoir on the Missouri River and transfer it across the continental divide into Canada for use in Minot, North Dakota and surrounding areas. The joint federal-state project, designed to provide drinking water that meets the “secondary” standards of the Safe Water Drinking Act to local communities and rural water systems in eight to ten counties in North Dakota, would include the withdrawal of over three and one-half billion gallons of water each year. The concern over the project stems from the fact that the water is taken from the Missouri River Basin and deposited into the Hudson Bay Basin. Because the basins have distinct ecological characteristics and contain different species of fish and other aquatic organisms, the withdrawal and transfer of untreated water from one Basin into another could result in the introduction of invasive species, which can harm or eliminate indigenous species. Prior Litigation This litigation is not new. In 2002, the Province of Manitoba, Canada sued the Department of the Interior and the Bureau of Reclamation arguing that an initial Environmental Assessment (EA) and subsequent “Finding of No Significant Impact” (FONSI) pursuant to NEPA was arbitrary and capricious due to a failure to take a hard look at the inter-basin transfer of invasive species. In that case, the court agreed and ordered Reclamation to submit an additional EA. When Reclamation issued an Environmental Impact Statement (EIS) addressing water treatment options and reissued the EA and FONSI, Manitoba and the State of Missouri separately sued, again alleging NEPA violations. NEPA This time around, the D.C. District Court first looked at impacts of water withdrawal on the Missouri River. While the EA found the impacts would be low, the court disagreed. The court felt that the failure of Reclamation to consider the cumulative impact of other projects did not provide the requisite “hard look” under NEPA. The court next looked at the EA’s analysis of water transmission risks, specifically the risk of introducing invasive species. Reclamation had determined that the risks of contaminated water breaching the pipeline were low. The court disagreed, stating that “It may be that the risk of a breach is low given the pipeline’s construction, but that is not an excuse for Reclamation to refuse entirely to analyze the consequences. When the degree of potential harm could be great, i.e., catastrophic, the degree of analysis and mitigation should also be great.”2 Finally, the court looked at Reclamation’s analysis of invasive species impacts on Canada. Reclamation found that it was not required by NEPA to take a hard look at the consequences of biota transfer. The court disagreed, noting that in its NEPA guidance, the Council on Environmental Quality “has determined that agencies must include analysis of reasonably foreseeable transboundary effects of proposed actions in their analysis …”3 The court concluded that NEPA requires analysis of transboundary effects resulting from federal actions; therefore, Reclamation must include this analysis in its EA. Conclusion The court ordered Reclamation to take a “hard look” at (1) the cumulative impacts of water withdrawal on the water levels of Lake Sakakawea and the Missouri River, and (2) the consequences of biota transfer into the Hudson Bay Basin, including Canada. Reclamation will now have to provide closer analysis of the impacts. Although these types of transfers can help solve water quantity issues, it is important to ensure that transferred water does not bring more problems than it solves. Endnotes 1. Manitoba v. Salazar, 2010 U.S. Dist. LEXIS 19982 (D.D.C. Mar. 5, 2010). 2. Id. at 34. 3. Id. at 36.
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SandBar 9:1, April, 2010
Recommended citation: Terra Bowling , Water Project Diverted: Transfer Halted Over Invasive Species Concerns , 9:1 SandBar 13 (2010).

Water Project Diverted
Transfer halted over invasive species concerns

Terra Bowling, J.D.

Citing concerns over invasive species, the U.S. District Court for the District of Columbia has ruled that a water withdrawal project is in violation of the National Environmental Policy Act (NEPA).1 The project, called the Northwest Area Water Supply Project, would withdraw water from a reservoir on the Missouri River and transfer it across the continental divide into Canada for use in Minot, North Dakota and surrounding areas. The joint federal-state project, designed to provide drinking water that meets the “secondary” standards of the Safe Water Drinking Act to local communities and rural water systems in eight to ten counties in North Dakota, would include the withdrawal of over three and one-half billion gallons of water each year.
The concern over the project stems from the fact that the water is taken from the Missouri River Basin and deposited into the Hudson Bay Basin. Because the basins have distinct ecological characteristics and contain different species of fish and other aquatic organisms, the withdrawal and transfer of untreated water from one Basin into another could result in the introduction of invasive species, which can harm or eliminate indigenous species.

Prior Litigation
This litigation is not new. In 2002, the Province of Manitoba, Canada sued the Department of the Interior and the Bureau of Reclamation arguing that an initial Environmental Assessment (EA) and subsequent “Finding of No Significant Impact” (FONSI) pursuant to NEPA was arbitrary and capricious due to a failure to take a hard look at the inter-basin transfer of invasive species. In that case, the court agreed and ordered Reclamation to submit an additional EA. When Reclamation issued an Environmental Impact Statement (EIS) addressing water treatment options and reissued the EA and FONSI, Manitoba and the State of Missouri separately sued, again alleging NEPA violations.

NEPA
This time around, the D.C. District Court first looked at impacts of water withdrawal on the Missouri River. While the EA found the impacts would be low, the court disagreed. The court felt that the failure of Reclamation to consider the cumulative impact of other projects did not provide the requisite “hard look” under NEPA.
The court next looked at the EA’s analysis of water transmission risks, specifically the risk of introducing invasive species. Reclamation had determined that the risks of contaminated water breaching the pipeline were low. The court disagreed, stating that “It may be that the risk of a breach is low given the pipeline’s construction, but that is not an excuse for Reclamation to refuse entirely to analyze the consequences. When the degree of potential harm could be great, i.e., catastrophic, the degree of analysis and mitigation should also be great.”2
Finally, the court looked at Reclamation’s analysis of invasive species impacts on Canada. Reclamation found that it was not required by NEPA to take a hard look at the consequences of biota transfer. The court disagreed, noting that in its NEPA guidance, the Council on Environmental Quality “has determined that agencies must include analysis of reasonably foreseeable transboundary effects of proposed actions in their analysis …”3 The court concluded that NEPA requires analysis of transboundary effects resulting from federal actions; therefore, Reclamation must include this analysis in its EA.

Conclusion
The court ordered Reclamation to take a “hard look” at (1) the cumulative impacts of water withdrawal on the water levels of Lake Sakakawea and the Missouri River, and (2) the consequences of biota transfer into the Hudson Bay Basin, including Canada. Reclamation will now have to provide closer analysis of the impacts. Although these types of transfers can help solve water quantity issues, it is important to ensure that transferred water does not bring more problems than it solves.

Endnotes
1. Manitoba v. Salazar, 2010 U.S. Dist. LEXIS 19982 (D.D.C. Mar. 5, 2010).
2. Id. at *34.
3. Id. at *36.