Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt.

CENTER FOR BIOLOGICAL DIVERSITY, Plaintiff, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants.

WHITE PINE COUNTY, et al., Plaintiffs, v. UNITED STATES BUREAU OF LAND MANAGEMENT, et al., Defendants.

Case No. 2:14-cv-00226-APG-VCF

Case No. 2:14-cv-00228-APG-VCF

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

August 23, 2017

ORDER GRANTING IN PART AND DENYING IN PART THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT

(ECF Nos. 87, 93, 97, 99, 107, 110)

The plaintiffs in these consolidated cases challenge the Bureau of Land Management's decision to approve the first phase of a massive water-redistribution pipeline that, when completed, will carry millions of gallons of water from rural areas of eastern-central Nevada to Nevada's most populous county, Clark County. The plaintiffs—the Center for Biological Diversity, Confederated Tribes of the Goshute Reservation, White Pine County, and the Ely Shoshone and Duckwater Shoshone Tribes—all believe that BLM violated several environmental statutes by approving this phase of the project. They move for summary judgment, seeking to halt construction. BLM and Intervenor Southern Nevada Water Authority (the Nevada agency that applied for permission to build this project) both move for summary judgment as well, arguing that BLM properly approved this phase.

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/ / / / I am sensitive to the strong feelings and weighty interests at stake in this contest over Nevada's water—after all, in the West, "whisky's for drinkin' and water's for fightin' over."¹ There can be no question that drawing this much water from these desert aquifers will harm the ecosystem and impact cultural sites that are important to our citizens. On the other hand, southern Nevada faces an intractable water shortage. But regardless of whether I think this pipeline is a good or bad idea, my power to review BLM's decision is narrow and set by statute. I must evaluate whether BLM gathered enough information about the project's impacts and used a reasonable, transparent process for determining whether the project should be approved.

For the most part, I cannot say that BLM violated its duties in approving this portion of the pipeline project. The plaintiffs' primary complaint is that BLM punted the specifics of some of its assessments until later phases of the project. But given that this is a large, complex project that the agency is reviewing in pieces, it must be given some leeway to figure out an efficient and effective way to manage its review as a whole. Courts have acknowledged that agencies need such discretion when reviewing massive projects like this, and it doesn't get much more massive than this 40-year construction project. BLM has determined in its expertise that reviewing this project in phases makes the most sense and that some parts of its review should wait. BLM's decision-making process here was not perfect. But given the scale of this project and the years of development to come, the agency's approval of the first phase of the pipeline was generally not arbitrary or capricious.

That said, there are two narrow areas where I conclude BLM did not meet its obligations. Both involve substantive rules that compel BLM to mitigate certain types of lost habitat. BLM used a sophisticated groundwater model to project how much habitat would be lost, but it failed to explain how BLM or SNWA would mitigate those losses. This omission violated the National Environmental Protection Act's requirement for BLM's Environmental Impact Statement to at least discuss whether and how the project will comply with other environmental rules. I thus remand back to BLM so that the agency can address these narrow deficiencies.

I. Factual Background

A. General overview of the project

This case arises from BLM approving SNWA's application to build a massive pipeline to convey water from Spring, Delamar, Dry Lake, and Cave Valleys in eastern-central Nevada to Las Vegas. This pipeline is a nearly-unprecedented feat of engineering and water reallocation, and stands to move over 27 million gallons of water each year. It will cost billions of dollars and nearly four decades to complete.

SNWA has been developing this project since 1989.² Over the last two plus decades, the agency has been working with state and federal authorities on this project as one of several solutions to southern Nevada's longtime water crisis.³ BLM's role is to decide whether to give SNWA permission to build its pipelines and supporting facilities on federally-controlled land between Clark County and the water aquifers (the underground lakes that will be tapped for the water). But it is the State of Nevada, not the federal government, that must approve SNWA's claim to the water itself.⁴

BLM's authority to issue a right-of-way (in other words, to allow SNWA to build its pipeline on federal land) comes from three statutes. First, the Federal Land Policy and Management Act (FLPMA) authorizes BLM to manage public lands by balancing various public interests, including environmental, recreational, and other interests like municipal water supply needs. FLPMA requires BLM to consider any applications for rights-of-way to use federal lands for these purposes.

In the next two statutes, Congress specifically directed BLM to approve requests to build water pipelines in Nevada. The Southern Nevada Public Land Management Act (SNPLMA) says that, upon application by a local or regional governmental entity and in accordance with FLPMAand other applicable laws, BLM "shall issue right-of-way grants on Federal lands in Clark County, Nevada" for a pipeline and related facilities for "transportation or distribution of water."⁵ The Lincoln County Conservation, Recreation, and Development Act (LCCRDA) states that BLM "shall grant to [SNWA] and the Lincoln County Water District nonexclusive rights-of-way to federal land in Lincoln County and Clark County, Nevada for . . . pipelines . . . that are necessary for the construction and operation of a water conveyance system."⁶

The project depends on SNWA receiving water rights from the State of Nevada—otherwise, SNWA will have no water to pump. Initially, Nevada's State Engineer granted SNWA over 100,000 afy (acre feet per year) of water. In March of 2012, the State Engineer revised that amount to allow SNWA to pump up to 83,988 afy of groundwater. A few months later, BLM approved SNWA's application for a right-of-way for the first phase of the project, which includes the main pipeline.⁷

Because of the complexity and scope of this decades-long construction project, BLM decided to review it in phases. BLM's current decision does not approve a right-of-way for any groundwater pumping facilities or other pipelines. Rights-of-way for those facilities would have to be evaluated separately in a process conducted in accordance with the National Environmental Policy Act (NEPA) and FLPMA. BLM is not obligated to grant rights-of-way for those future parts of the project.⁸ SNWA will submit separate applications identifying those facilities, and BLM will analyze them on their own.⁹

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/ / / / SNWA's right-of-way for this main pipeline is subject to several terms and conditions, including requirements for mitigation and monitoring.¹⁰ Once SNWA finishes some preconstruction obligations (such as geological surveys), BLM will develop a Construction, Operation, Maintenance, Monitoring, Management, and Mitigation Plan (COM Plan).¹¹ The COM Plan will address mitigation and monitoring for the construction, operation, maintenance, and abandonment of the main pipeline and subsequent phases of the project. After SNWA has received all necessary approvals from BLM and secured the necessary water rights, construction of the main pipeline, including two lateral pipelines from Cave and Spring Valleys, will take up to five years. Even if all goes as planned, it will take approximately 38 more years for the project to be fully constructed.¹²

B. BLM's approval of SNWA's first phase of construction, the trunk pipeline, and its high-level programmatic review of the project as a whole

SNWA applied for a right-of-way for this project in August 2004.¹³ BLM began reviewing the application in April 2005. It issued a draft Environmental Impact Statement in June 2011 and solicited public comments for 120 days. Because this project is large, complex, and spread out over a number of years, BLM used a tiered approach to analyze the environmental impacts under NEPA. BLM explained that this tiered approach was needed because it does not yet have crucial information, such as the location of the well sites or the precise hydrology and geology of the aquifers. In this first phase and EIS, BLM analyzed the environmental impacts of the construction and operation of the main pipeline, and also analyzed on a "programmatic level" the potential impacts of the completed project in its entirety. In future phases, BLM will conductsite-specific analyses of the environmental impacts of particular groundwater pumping facilities. These future analyses will also revisit the programmatic assessment of the entire project.¹⁴

Although the current decision under review approves only the main trunk pipeline, BLM conducted a high-level review of the project as a whole, including the impacts of drawing the water. BLM relied on a computer model of groundwater flow that was developed to evaluate the probable long-term effects of future groundwater withdrawal for the project on a regional scale.¹⁵ The model was reviewed by a team of hydrology experts, including scientists from the United States Geological Survey and independent groundwater modeling experts. The team met several times to develop and hone the model so that it was as accurate as possible. The model considered the hydrogeological framework of the basins, the rate of recharge to the groundwater system, evapotranspiration, and spring flow.¹⁶ BLM assumed it would take 38 years for SNWA to complete the project, and it analyzed potential...