The National Environmental Policy Act: The Bureau of Reclamation Bypasses an EIS and Opts for an Environmental Assessment for a Major Water Diversion Project

Posted on November 7, 2012 by Thomas Hnasko

On January 27, 2011, the Bureau of Reclamation (“BOR”) issued an environmental assessment (“EA”) for the Ute Lake Diversion Project in eastern New Mexico, which would withdraw up to 24,000 acre-feet per year of water from Ute Lake and transport it via hundreds of miles of pipeline to communities in eastern New Mexico.  Inexplicably, the BOR found that this major federal project would not materially affect the environment and issued a finding of no significant impact (“FONSI”).  Based on the FONSI, the members of the proposed pipeline (including various municipalities in eastern New Mexico), announced their intention to begin construction of a $14 million intake structure at the side of the lake, which would require detonation activities and result in a potential fish kill from the detonation and the resulting turbidity.

The Village of Logan, a small community wholly dependent on the recreational resources derived from Ute Lake, filed suit in New Mexico Federal District Court, claiming that the BOR’s decision to perform an EA was contrary to its internal regulations and that an Environmental Impact Statement (“EIS”) must be prepared based on numerous significant environmental impacts resulting from the proposed project.  Additionally, Logan claimed that numerous alternatives existed to the project, including retiring groundwater rights presently used for agriculture, or treating effluent and re-injecting water into the Ogallala Aquifer.  Both options, according to Logan, would create a sustainable water source for eastern New Mexico until at least 2060.

The CEQ Regulations identify the specific circumstances under which a federal agency should perform an EIS before committing resources to a major federal action.  40 C.F.R. § 1501.4 provides that an EIS should be prepared where an agency’s own internal guidelines and procedures provide that a proposed federal action is the type that “normally requires” an EIS.  The BOR’s internal guidelines provide that the Bureau will “normally require” the preparation of an EIS prior to the initiation of construction of any major water project, which all parties agree includes the Ute Lake Diversion Project.  However, the BOR says it has discretion not to perform an EIS because the word “normally” does not mean “always.”  Logan has countered by claiming that the Bureau cannot avoid an EIS unless it has developed specific procedures stating when and under what circumstances an EA may be performed, in lieu of an EIS.  In the present situation, the BOR has no such guidelines identifying the projects for which an EA, rather than an EIS, may be appropriate.  Accordingly, Logan contends that there is no objective basis for the Bureau to side-step the EIS requirements and that the FONSI must be reversed.

The matter is presently scheduled for a preliminary injunction hearing before the Honorable William Johnson, District Court Judge, District of New Mexico.



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