Federal Appellate Court Upholds Environmental Review of Colorado River Water Delivery Agreement


Ninth Circuit Affirms District Court’s Decision Approving NEPA and Clean Air Act Review of Federal QSA

The U.S. Court of Appeals for the Ninth Circuit has issued its decision on the federal case challenging environmental review performed under the National Environmental Policy Act and the Clean Air Act for the Colorado River Water Delivery Agreement which is also referred to as the “Federal Quantification Settlement Agreement.” The CRWDA, state QSA and related agreements were approved in 2003, settling disputes regarding certain rights to, and use of, Colorado River water in California. It also allowed for a major water transfer from Imperial Irrigation District to San Diego County Water Authority, Coachella Valley Water District and Metropolitan Water District of Southern California.

This most recent decision, handed down this week, follows the April 2012 decision of a federal district court, which determined that plaintiffs Imperial County and the Imperial County Air Pollution Control District lacked standing to bring a NEPA or CAA action, and, even if the plaintiffs did have standing, that no NEPA violation occurred. The district court did not rule on the merits of the CAA claim. The Ninth Circuit disagreed with the district court and determined that the plaintiffs did, in fact, have standing. However, the appellate court otherwise affirmed the district court, agreeing that no violation of NEPA had occurred and upholding the Implementation Agreement Environmental Impact Statement. While the district court had not ruled on the issue, the Ninth Circuit examined the record and affirmatively determined that no CAA violation had occurred.

The CRWDA is the federal agreement that implements the QSA, the latter of which provides for the large-scale water transfers from IID to SDCWA, CVWD, and/or Metropolitan. The IA EIS analyzed the environmental impacts of changing the point of delivery of Colorado River water for that water transfer. The Ninth Circuit specifically determined that the IA EIS adequately discussed, among other issues, mitigation measures for the potential air quality and other environmental impacts that could directly or indirectly result from the CRWDA. Further, the EIS took the required “hard look” at CRWDA’s impacts on air quality and sufficiently responded to related comments and concerns. The court also denied the plaintiffs’ arguments that more project alternatives should have been considered and found that the conclusion that the CRWDA would not induce growth in Southern California was supported by record evidence. Lastly, the Ninth Circuit determined that the decision not to prepare a full-scale determination concerning conformity with the CAA was supported by the record because the CRWDA would not directly or indirectly increase emissions.

Best Best & Krieger LLP attorneys were part of the legal team that secured this decision on behalf of the Coachella Valley Water District.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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