9th Circuit Court Nixes Imperial County’s Water Transfer Plan Suit





By Sean McLernon

SAN FRANCISCO – The Ninth Circuit on Monday refused to revive a California county’s suit against the U.S. Department of the Interior over a landmark accord transferring Colorado River water from farms to cities in San Diego County, ruling that the water distribution plan did not violate federal environmental law.


The appeals court panel affirmed a lower court decision shooting down a challenge from Imperial County and the Imperial County Air Pollution Control District, which had argued that the DOI violated the National Environmental Policy Act and the Clean Air Act in approving the Colorado River Water Delivery Agreement in 2003.


Although the panel found that the county had standing to sue the federal government, the challenge still falls short because the government followed NEPA and CAA requirements when it analyzed the impact of a new water delivery schedule, according to the decision.


Striking down all of the county’s claims in the 33-page opinion, the appeals court said the federal government did not abuse its discretion when it incorporated earlier environmental reviews, when it segmented the process into two environmental impact statements or when it decided a supplemental review was not necessary.


The DOI looked at potential mitigation measures and weighed the environmental consequences of the plan, fulfilling its legal obligations, according to the decision.


“An EIS must contain ‘a reasonably complete discussion of possible mitigation measures,’ and a record of decision must state whether ‘all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not,'” the decision says. “The implementation agreement EIS and the secretary’s record of decision sufficiently considered potential mitigation measures.”


The county had argued that the Colorado River Water Delivery Agreement, or CRWDA, and another Colorado River distribution agreement, the Quantification Settlement Agreement, enabled growth in Southern California at the expense of the Salton Sea, a state park and wildlife refuge.


The changes will cause injury to public health, the environment, and fish and wildlife habitats through accelerated salinization of the Salton Sea and increased emissions resulting from greater exposure of Salton Sea shoreline, according to the suit.


U.S. District Judge Anthony J. Battaglia ruled in April 2012 that the county did not have standing because they are not regulated directly by the agreements and don’t claim to own the land beneath or adjacent to the Salton Sea, granting summary judgment to the federal government.


The appeals court overturned Judge Battaglia on the standing issue, but it didn’t make a difference in the end, because the panel ruled that the lower court judge properly found in the alternative that the DOI did not violate NEPA.


The Ninth Circuit also shot down the county’s Clean Air Act claims as well, ruling that the government acted within its authority when it determined the agreement would neither directly nor indirectly increase particular matter emissions.


“In the absence of a new water delivery agreement, the Salton Sea might decline at a slower rate,” the decision says. “However, any resulting emissions would not be ‘practicably controlled’ by the secretary.”


A spokesman for the Department of the Interior declined to comment on the Ninth Circuit decision. A representative for the Imperial County Air Control District was not immediately available for comment Monday.


Judges Paul J. Watford, Andrew D. Hurwitz and William E. Smith sat of the panel for the Ninth Circuit.


Imperial County is represented by county counsel Michael L. Rood and Katherine Turner. The county’s air control district is represented by Alene M. Taber, Michael L. Tidus, Kathryn M. Casey and Jonathan E. Shardlow of Jackson DeMarco Tidus Peckenpaugh.


The U.S. Department of the Interior is represented by Peter J. McVeigh, Ignacia S. Moreno, David C. Shilton, Stephen M. MacFarlane and Norman L. Rave Jr. of the U.S. Department of Justice and Robert Snow and M. Rodney Smith Jr. of the DOI Office of the Solicitor.


The case is People of the State of California ex rel. Imperial County Air Pollution Control District v. U.S. Department of the Interior et al., case number 12-55856, in the U.S. Court of Appeals for the Ninth Circuit.