The opinion of the court was delivered by: Hon. Anthony J. BattagliaU.S. District Judge
ORDER (1) DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, (2) GRANTING FEDERAL DEFENDANTS' CROSS MOTION FOR SUMMARY JUDGMENT, AND (3) DENYING AS MOOT INTERVENING DEFENDANTS' CROSS MOTION FOR SUMMARY [Docs. 60, 63, 65]
Presently before the Court are a motion for summary judgment filed by Plaintiffs*fn1 (Doc. 60), a cross motion for summary judgment filed by Federal Defendants*fn2 (Doc. 63), and a cross motion for summary judgment filed by Intervening Defendants*fn3 (Doc. 65). For the reasons set forth below, the Court (1) DENIES Plaintiffs' motion for summary judgment, (2) GRANTS Federal Defendants' cross motion for summary judgment, and (3) DENIES AS MOOT Intervening Defendants' cross motion for summary judgment.
Plaintiffs filed this action against Federal Defendants challenging the final agency decision of the Secretary of the Interior approving the Colorado River Water Delivery Agreement ("CRWDA"). The CRWDA is one of numerous agreements governing the use and distribution of Colorado River water. Plaintiffs allege that the Secretary failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq., by failing to consider the necessary information prior to executing the CRWDA. Plaintiffs request judicial review of the Secretary's decision under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"). Plaintiffs seek (1) a declaration that the Secretary violated NEPA and the CAA in executing the CRWDA and (2) an order immediately ceasing water deliveries under the void CRWDA.
The parties submitted copious briefing on the three instant motions.*fn4 Before discussing their various arguments, the Court finds it helpful to examine an overview of NEPA, as well as a brief history of Colorado River water apportionment in California leading up to the CRWDA.
NEPA is a procedural statute that requires federal agencies to consider the potential environmental impacts of their proposed actions and also guarantees broad public dissemination of relevant information. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Importantly, NEPA exists to ensure a process, not any particular result. Id. at 350; Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88 F.3d 754, 758 (9th Cir. 1996).
To ensure that federal agencies take the necessary "hard look" at environmental consequences prior to approving an action, NEPA requires the preparation of an environmental impact statement ("EIS").*fn5 42 U.S.C.§ 4332(c); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976). NEPA's procedures are set forth in regulations promulgated by the Council on Environmental Quality ("CEQ"), which are binding on all federal agencies. 40 C.F.R. § 1500.2 et seq.; Anderson v. Evans, 371 F.3d 475, 487 (9th Cir. 2002). The CEQ regulations prescribe the form of an EIS, including the evaluation of "all reasonable alternatives" to the proposed action and a "no action" alternative. 40 C.F.R. §§ 1502.14(a), 1502.14(d).
The CEQ regulations emphasize public disclosure and involvement. Specifically, they require publication in the Federal Register of a Notice of Intent to prepare an EIS, followed by a public "scoping" process. 40 C.F.R. § 1501.7. The lead agency then prepares a draft EIS and circulates it for comment from the public, appropriate state and local agencies, Indian tribes, cooperating agencies, and other federal agencies which have asked to comment. 40 C.F.R. §§ 1502.9(a), 1502.19, 1503. The comment period must be at least 45 days. 40 C.F.R. § 1506.10(c). Following the receipt of comments on a draft EIS, the lead agency prepares a final EIS, which must include a response to comments received on the draft.*fn6 40 C.F.R. §§ 1502.9(b), 1503.4. The final EIS must also be circulated to the public and filed with the Environmental Protection Agency ("EPA"), and a notice of the final EIS must be published in the Federal Register. 40 C.F.R. §§ 1502.19, 1506.9, 1506.10(a).
In some situations, even after the final EIS is prepared, an agency must prepare a supplemental EIS if (1) the agency makes substantial changes in the proposed action relevant to environmental concerns, or (2) there are significant new circumstances or information bearing on the proposed action that are relevant to environmental concerns. 40 C.F.R. § 1502.9(c)(1); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 372 n.16 (1989). The CEQ regulations do not dictate how agencies determine whethera change in the proposed action, circumstances, or new information rises to the level of significance that would require a supplemental EIS. Courts, however, have approved agency use of "supplemental information reports" or similar documents to determine the environmental significance of such changes or new information. Id. at 383-85; Price Rd. Neighborhood Ass'n v. U.S. Dep't of Transp., 113 F.3d 1505, 1510 (9th Cir. 1997). An agency's decision whether to prepare a supplemental NEPA analysis does not require public disclosure or comment. Friends of the Clearwater v. Dombeck, 222 F.3d 552, 560 (9th Cir. 2000).
Of particular import here, the CEQ regulations specifically permit (and in some circumstances require*fn7 ) agencies to incorporate documents by reference into an EIS. See 40 C.F.R. § 1502.21; Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 99 n.12 (1983); City of Sausalito v. O'Neill, 386 F.3d 1186, 1214 (9th Cir. 2004); Kern v. U.S. Bureau of Land Mgmt., 284 F.3d 1062, 1073 (9th Cir. 2002) ("CEQ procedures allow agencies to incorporate by reference certain materials to cut down on the bulk of an EIS . . . .").
Colorado River Apportionment
Water from the Colorado River is apportioned among seven western states and Mexico. It is governed by a complex series of laws dating back nearly a century. Administrative Record ("AR") 2375, 2431-32. Under the 1928 Boulder Canyon Project Act, California's use of the Colorado River is limited to no more than 4.4 million acre-feet per year ("MAFY") and one-half of any surplus water available. Pub.L. 642-70, § 4(a) 45 Stat. 1057 (Dec. 21, 1928); see also 43 U.S.C. § 617c(a); AR 2375, 2431-33, 2435. The Secretary of the Interior manages Colorado River deliveries and determines when surplus conditions occur-i.e., when California may receive more than its 4.4 MAFY entitlement. Pub. L. No. 90-537, § 602; AR 19799-800.
In 1931, the principal users of California's apportionment entered into the Seven Party Agreement, which allocated water among the California parties by priority, but did not quantify the exact amount that each agricultural contractor was individually entitled to receive in the first three priorities. AR 2375, 37197; see generally 65 Fed. Reg. 48531, 48532 (Aug. 8, 2000); AR 2375, 2433, 37197-202. The first four priorities under the Seven Party Agreement allocated a total of 4.4 MAFY, which equals California's basic apportionment without surplus water, but the Agreement apportioned a total of 5.362 MAFY among the signatories. AR 37197-98 (art. I).*fn8
California lawfully used more than 4.4 MAFY for several decades, since Arizona and Nevada underutilized their full apportionments and surplus water was available. AR 9749, 9835. But when Arizona and Nevada began increasing their water use, California's continued access to more than 4.4 MAFY was threatened. AR 9749, 9835. As unused apportionments dwindled, pressure mounted for IID to reduce its water use under its unquantified allocation as a potential solution to future water shortages. AR 9749, 9835. In particular, MWD and Coachella alleged that IID was wasting water through inefficient irrigation practices and sought to compel IID to reduce its water use and thereby make more water available to them. Negotiations commenced to quantify the top three agricultural priorities to Colorado River water and to reduce California's use to its 4.4 MAF normal-year apportionment. AR 9749, 9835, 9837.
The resulting settlement is referred to as the QSA, although it took 35 agreements, including the Quantification Settlement Agreement itself, to fully implement all of the aspects of the settlement among all of the interested parties. The QSA was approved in October 2003. The main state agreements include implementing water conservation programs in IID's service area and transferring conserved water from IID to Coachella, MWD, SDCWA, and others. AR 1005-316. The settlement also includes the water agencies' substantial commitment of mitigation funds toward the environmental impacts of the QSA and associated water transfers. AR 1005, 1227-45.
The main federal agreement under the QSA-and the only federal action challenged by Plaintiffs in this case-is the CRWDA. Because implementing the QSA and related water transfer contracts required the Secretary's approval, the Secretary and real parties in interest negotiated an Implementation Agreement ("IA"), under which the Secretary agreed to deliver Colorado River water in accordance with the QSA terms. The IA was subsequently replaced by the CRWDA, which provides the necessary federal authorization for specified water deliveries to IID, Coachella, MWD, and SDCWA and implements the agreed-upon water budgets and quantifications of priorities set forth in the QSA and related transfer agreements. AR 36-40 (arts. 1-5). Among other provisions, the CRWDA effectuates the changes in the amount and locations of deliveries of approximately 400,000 AFY. AR 36, 47.
The NEPA review for the Secretary's approval of the CRWDA was contained in the IA EIS.*fn9
Its principal focus was on potential direct effects of the CRWDA on the main stem of the Colorado River, but the document also considered indirect effects of that action in the Imperial Valley.
One significant obstacle to the QSA was the Salton Sea. The body of water was becoming a hyper-saline lake without the water transfers, but any conservation of water in the IID service area could potentially accelerate the Sea's ongoing decline, causing increased salinity and decreasing elevation levels. AR 1516-17. This caused tensions between the goal of conserved water transfers, ...