Central Oregon LandWatch et al v. Connaughton et al
Filing
147
OPINION and ORDER: Denying as Moot Motion to Strike 99 ; Denying Motion for Summary Judgment 100 ; Granting Motion for Summary Judgment 114 ; Granting Motion for Summary Judgment 119 . This case is dismissed. Signed on 12/5/2014 by Chief Judge Ann L. Aiken. (plb) Modified text on 12/5/2014 to add opinion. (kf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CENTRAL OREGON LANDWATCH,
an Oregon non-profit corporation,
et. al.
Plaintiffs,
v.
KENT CONNAUGHTON, in his official
capacity as Regional Forester of
the Deschutes National Forest,
JOHN ALLEN, in his official
capacity as Forest Supervisor of
the Deschutes National Forest, and
the UNITED STATES FOREST SERVICE,
a federal agency,
Defendants,
v.
THE CITY OF BEND,
DefendantIntervenor.
Ralph Bloemers
Christopher Winter
Crag Law Center
917 S.W. Oak Street, Suite 417
Portland, Oregon 97205
Attorneys for plaintiffs
Page 1 - OPINION AND ORDER
Case No. 6:13-cv-02027-AA
OPINION AND ORDER
S. Amanda Marshall
United States Attorney
Stephen J. Odell
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Attorneys for defendant
Teresa Jacobs
Albert Ferlo (pro hac vice)
Perkins Coie LLP
700 Thirteenth Street N.W.
Washington, DC 20005
Attorneys for defendant-intervenor
AIKEN, Chief Judge:
Plaintiffs Central Oregon Landwatch and Waterwatch of Oregon
move
for
Defendant
summary
United
judgment
States
pursuant
Forest
to
Fed.
R.
Service("Forest
Civ.
P.
56.
Service")
and
defendant-intervenor City of Bend ("City") each filed cross-motions
for summary judgment. 1 The Court held oral argument on October 30,
2014.
For the reasons set forth below, the plaintiffs' motion is
denied and the defendants' motions are granted.
BACKGROUND
This dispute surrounds Tumalo Creek (the "Creek"), a tributary
of the Deschutes River that runs through the City. Specifically,
plaintiffs
challenge
the
Forest
Service's
decision
to
issue
a
special use permit (SUP) allowing the City to construct a new water
supply pipeline allowing continued diversion of water from the
Creek. The Bridge Creek Water Supply Project (the "Project"), would
1
In August 2014, this Court granted motions allowing several
parties to appear as amici curiae, including Oregon Water
Utilities Council, League of Oregon Cities, Special Districts
Association of Oregon, Oregon Water Resources Congress, and
Oregon Water Resources Department.
Page 2 - OPINION AND ORDER
allow the City to install an approximately 10-mile long,
replacement pipe under an existing road.
single
Administrative Record
("AR") 50372. The City sought to replace its existing water supply
system
because
the
two
deteriorating
pipelines
"are
in
poor
condition and [] at risk of failure." Id.
On September 18, 2012, the Forest Service initially approved
the issuance of a SUP allowing the City
however
the
project
was
enjoined
to construct the pipeline,
by
Cent.
Or.
Landwatch
v.
Connaughton (Landwatch I), 905 F. Supp. 2d 1192 (D. Or. 2012). The
Forest
Service
and
City
then
produced
a
second
Environmental
Assessment (the "2013 EA") that included a temporary limit on the
amount of water diversion, which the City alleges is equivalent to
its current level of diversion. The more than two-hundred page 2013
EA addresses the environmental impacts of the Project in detail,
including its effect on the Creek's streamflow and temperature. To
assess the Project's impacts, the Forest Service divided
the Creek
into three separate "reaches." Reach A consisted of 13.2 miles
between the confluence of the Tumalo and Bridge Creeks and the
point where the Tumalo Irrigation District ("TID") withdraws water
for its system. AR 50460. The impact of the City's water withdrawal
occurs in Reach A. AR 50462.
Reach B covers the portion of the
Creek from the TID diversion point to the mouth of the Tumalo
Creek. AR 50460. Lastly, Reach C extends from the mouth of Tumalo
Creek into the Deschutes River. Id.
Based on
City's
renewed
their
findings,
request
for
Page 3 - OPINION AND ORDER
a
the
SUP.
Forest
Service
Plaintiffs
approved the
challenged
this
decision via administrative protest and filed several objections to
the
agency's
decision.
AR
50753.
In
October
2013,
the
Forest
Service responded to plaintiffs' protests and affirmed its decision
to proceed with the Project. AR 50753-55. After exhausting their
administrative
remedies,
plaintiffs
filed
a
complaint
in
this
Court, alleging that the 2013 EA and the Forest Service's decision
to
issue a
SUP violates
the
National
Environmental
("NEPA"), the National Forest Management Act
Water Act
("CWA"),
and the
Federal Land
Policy Act
("NFMA"), the Clean
Policy Management Act
( "FLPMA") .
STANDARD
A federal
agency's
compliance
with
environmental
reviewed under the Administrative Procedure Act ("APA").
§
706.
laws
is
5 U.S.C.
In an APA case, summary judgment is awarded in favor of the
plaintiff if, after reviewing the administrative record, the court
determines that the agency's action was "arbitrary, capricious, an
abuse of discretion,
or otherwise not in accordance with law."
Natural Res. Def. Council v. Nat'l Marine Fisheries Serv., 421 F.3d
872 ,
877
decision
( 9th Ci r .
is
not
2 0 05 )
( quoting
5
U. S . C .
arbitrary or capricious
7 0 6 ( 2 ) (A) ) .
§
if the
federal
A
agency
articulated a rational connection between the facts found and the
choice made.
384 F.3d 1163,
Council,
Nat'l Wildlife Fed'n v. U.S. Army Corps of Eng'rs,
1170
490 U.S.
(9th Cir.
360,
378
2004);
(1989)
Marsh v.
Or. Natural Res.
(courts examine "whether the
decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment") .
Page 4 - OPINION AND ORDER
Review under this standard is narrow and the court may not
substitute its judgment for that of the agency.
Mission Indians v.
Cir. 1988).
Fed. Aviation Admin.,
Morongo Band of
161 F.3d 569,
(9th
Nevertheless, while this standard is deferential, the
court must "engage in a substantial inquiry,
probing, in-depth review."
Serv.,
573
418 F.3d 953,
960
a thorough,
Native Ecosys. Council v. U.S. Forest
(9th Cir.
2005)
(citation and internal
quotations omitted) .
DISCUSSION
I.
NEPA Claims
Plaintiffs argue that the Forest Service violated NEPA by
failing to:
(1) take a "hard look" at the Project's effects on the
Creek;
conduct
( 2)
an
adequate baseline data;
adequate
and
(4)
alternatives
analysis;
( 3)
use
prepare an environmental impact
statement (EIS). For the reasons set forth below, the Court finds
that
the
Forest
Service's
NEPA analysis
was
not
arbitrary
or
capricious.
A. Requirements
NEPA is "a procedural statute that does not mandate particular
results, but simply provides the necessary process to ensure that
federal agencies take a hard look at the environmental consequences
of their actions."
Sierra Club v. Bosworth ("Sierra Club I"l, 510
F.3d 1016, 1018 (9th Cir. 2007)
omitted).
(citation and internal quotations
To accomplish a "hard look," NEPA requires all agencies
to prepare an EIS for any "major Federal actions significantly
affecting the quality of the human environment."
Page 5 - OPINION AND ORDER
42 U.S.C.
§
4332 (2) (C).
The agency first prepares an environmental assessment ("EA")
to determine whether an action will be significant; if the agency
concludes
there
is
no
significant
effect
associated
with
the
proposed action, it may issue a Finding Of No Significant Impact,
"accompanied by a convincing statement of reasons to explain why a
project's impacts are insignificant," in lieu of preparing an EIS.
Sierra Club I, 510 F.3d at 1018 (citation and internal quotations
omitted); 40 C.F.R. § 1508.9.
Thus, an EA "need not be extensive."
Grand Canyon Trust v. U.S. Bureau of Reclamation, 623 F. Supp. 2d
1 0 15 , 1 0 2 6 ( D. Ar i z . 2 0 0 9 ) .
B. Analysis
i.
In
Failure to Take a Hard Look
assessing
whether
the
agency
took
the
requisite
"hard
look," the court considers whether the agency's EA contains "a
reasonably thorough discussion" of the significant aspects of the
probable environmental consequences of the proposed action.
Nat'l Parks & Conservation Ass'n v. BLM,
Cir.
2010),
cert.
denied,
131 S.
internal quotations omitted).
Ct.
See
606 F.3d 1058, 1072 (9th
1783
(2011)
(citation and
Plaintiffs contend that the 2013 EA
is erroneous because it did not consider the Project's effects if
the
City
diverted
more
than
18.2
cfs
of
water.
In
addition,
plaintiffs assert that the Forest Service failed to evaluate how
the Project "will impact Tumalo Creek in light of changing climatic
conditions." Pls.' Mem. in Supp. of Mot. Summ. J. 14.
Initially, the Forest Service was not required to consider the
Page 6 - OPINION AND ORDER
direct impact of flows greater than 18.2 cfs because that action
was not permitted and is not proposed. AR 50834. Thus, plaintiffs
may argue only that the
Forest
Service
failed to
consider the
indirect or cumulative impacts of the Project if the City diverted
more than 18.2 cfs. Regarding NEPA's indirect impact requirement,
the Forest Service did not need to "account for potential growth
effects
that
might
be
caused by
a
project
if
the
project
is
exclusively intended to serve a much more limited need." Ctr. for
Envtl. L.
1011
& Policy v. U.S. Bureau of Reclamation,
(9th Cir.
2011)
(citation omitted)
655 F.3d 1000,
(agency did not need to
consider indirect effects of water withdrawal above a project's
stated limit) .
Further, the Forest Service was not required to analyze the
cumulative impacts of withdrawing more than 18.2 cfs because that
action
is
not
reasonably
foreseeable.
See
AR
50835
("actual
operation authorized by this decision would not exceed 18.2 cfs and
can reasonably be expected to be less than that for at least the
foreseeable future during substantial parts of the year when the
City
does
not
need
that
much
water
or
constrained by water rights distribution").
its
rights
are
being
The issuance of a SUP
allowing the diversion of more than 18.2 cfs at some point in the
future is speculative and therefore does not need to be analyzed
for potential cumulative impacts. Vt. Yankee Power Corp. v. Natural
Res. Def. Council, Inc.,
435 U.S.
mandate a "crystal ball" inquiry)
omitted) .
Page 7 - OPINION AND ORDER
519, 534
(1978)
(NEPA does not
(citation and internal quotations
Even assuming the City may eventually decide it needs more
than the allotted 18.2 cfs of water, the Forest Service must first
approve
another
SUP
which
would
then
environmental review and public input,
trigger
a
new
round
of
including NEPA analysis.
Even if an "EA does not discuss the cumulative impact of reasonably
foreseeable projects," the EA is not deficient because the agency
"has committed itself to scrutinizing the cumulative effects of the
[future decision]
before implementing any action resulting
from the [future decision]." Ctr. for Envtl. L. & Policy, 655 F. 3d
at 1005. "[U]se of the expanded [water withdrawal] capacity remains
both firmly in the control of [the agency] and is subject to review
in a future EA or EIS." Id. at 1012.
The Forest Service also properly analyzed the Project's impact
on
climate
misapplied
change.
its
own
Plaintiffs'
guidance
allege
and
that
should
the
have
Forest
used
Service
available
quantitative tools to assess the Project's impact. Regarding the
former,
the
documents
plaintiffs
rely
on
are
not
judicially
enforceable because they are merely guidance documents.
Radio Servs.
Co.
v.
Espy,
79 F.3d 896,
900-01
(9th Cir.
Western
1996).
Furthermore, the Forest Service was not required to use plaintiffs'
preferred methodology.
During the NEPA process,
plaintiffs
and
their experts advised the Forest Service of a quantitative approach
that they preferred for climate change analysis. However, NEPA does
not "require us to resolve disagreements among various scientists
as to methodology." Friends of Endangered Species, Inc. v. Jantzen,
760 F.2d 976, 986 (9th Cir. 1985). The Forest Service conducted a
Page 8 - OPINION AND ORDER
sufficient analysis
for the purposes of NEPA. See AR 50600-02, AR
50851-52. The agency relied on data that permitted a "reasonably
thorough discussion" of the Project's climate change impacts and
therefore satisfied NEPA.
ii.
Failure to Consider Adequate Alternatives
Plaintiffs' contend the Forest Service impermissibly refused
to
consider an adequate
range
of
alternatives.
They argue
the
Project's purpose and need statement was "unreasonably narrow" and,
even assuming the statement was reasonable, the agency incorrectly
decided that plaintiffs' proposals did not satisfy the Project's
purpose.
Contrary to plaintiffs' assertion, the Court finds that the
Forest Service's definition of the Project's purpose and need was
reasonable. A purpose and need statement must "briefly specify the
underlying purpose and need to which the agency is responding in
proposing
the
C. F. R.
1502.13.
§
alternatives
An
including
agency's
the
purpose
proposed
and
need
action."
40
statement
is
entitled to deference and will be dismissed if it "unreasonably
narrows the agency's consideration of alternatives
so that the
outcome is preordained." Alaska Survival v. Surface Transp. Bd.,
705 F.3d 1073, 1084 (9th Cir. 2013)
(citation omitted). The Forest
Service determined that the purpose of the SUP was to use national
forest
lands for planned upgrades to the City's existing water
supply system. AR 50376. This broad statement reasonably captured
the goal of the SUP and did not foreclose the Forest Service's
ability to consider a range of alternatives.
Page 9 - OPINION AND ORDER
Further, an agency is not required to consider alternatives
that are not feasible in light of a proposed action's purpose or
need.
Alaska Survival,
705
F. 3d at 1087.
Plaintiffs allege the
Forest Service impermissibly dismissed several of their proposed
alternatives
and
only
analyzed
two
options
in
detail
the
preferred alternative and the no action alternative. NEPA demands
that an agency briefly explain why it rejected certain alternatives
and that
is
1502.14 (a) .
exactly what
In
the
2013
the
EA,
Forest
the
Service
agency
did.
examined
4 0 C. F. R.
a
number
§
of
different alternatives, but declined to discuss certain options in
detail because they did not satisfy the Project's purpose and need.
AR 50402-11. For example, the Forest Service considered a "short
pipe" alternative but found that it would pose a threat to water
quality and undeveloped forest
lands.
AR 50407-08.
The 2013 EA
contained over twenty pages devoted to alternatives analysis. AR
50402-428.
The agency properly provided an explanation for each
proposed alternative and its decision regarding the most reasonable
alternatives is entitled to deference. See Native Ecosys. Council
v. U.S. Forest Serv., 428 F.3d 1233, 1245-46 (9th Cir. 2005).
Plaintiffs
also
argue
the
Forest
Service's
"no
action"
alternative analysis was inadequate. NEPA requires a federal agency
to consider a no action alternative, which involves comparing the
consequences of a proposed action against the status quo. See Ass'n
of Pub. Agency Customers, Inc. v. Bonneville Power Admin., 126 F.3d
1158,
1188
(9th Cir.
1997).
Plaintiffs
allege
that
the
Forest
Service incorrectly presumed the no action baseline was the City's
Page 10 - OPINION AND ORDER
continued diversion of 18.2 cfs because the City's current SUP will
expire in less than five years. 2 They assert that the appropriate
no action alternative was the discontinuation of the current water
system. However, the Forest Service explained that "the no action
alternative is best represented by current conditions,
including
the City's current system that has been in place now for decades .
not
the
environmental
conditions
that
may
have
been
in
existence prior to the beginning of diversions in the 1920s." AR
50845. Further, there is no reason to presume that when the City's
current SUP expires, the Forest Service would not renew it as it
has in years past. See Ass'n of Pub. Agency Customers, 126 F.3d at
1188
("The
'no
action'
alternative
examined ... which
continuing its present power sales contracts,
action'
Forest
system,
alternative.")
Service
it
was
to
not
involve[d]
[was] a proper 'no-
Although plaintiffs would have liked the
consider
a
discontinuation
arbitrary or
capricious
of
for
the
the
existing
agency to
conclude that the City's current system represented the status quo.
See Akiak Native Cmty. v. U.S.P.S., 213 F.3d 1140, 1148 (9th Cir.
2000).
iii. Failure to Use Adequate Baseline Data
Plaintiffs next argue that the EA is erroneous because the
Forest Service relied on inadequate streamflow baseline data in
assessing the
Project's
environmental
2
impacts.
While the Court
Plaintiffs also assert that 18.2 cfs is an unsubstantiated
amount, however the record supports the Forest Service's decision
to apply that figure, as discussed in further detail in the
following section.
Page 11 - OPINION AND ORDER
found
that
reliance
on
a
justified in Landwatch I,
similar
905 F.
data
Supp.
set
was
insufficiently
2d at 1197,
the Forest
Service has now explained its choice of data set and supported it
with expert scientific opinion. The agency explained that the data
set
it
relied on
accurate
data
"represents
set
available
the
for
longest,
Tumalo
most
complete,
Creek."
AR
and
50713-14.
Plaintiffs allege this data does not address the extreme droughts
in recent years, however the agency explained that the data set it
used actually included drought cycles similar to recent droughts.
Id.
The
Forest
Service
also
noted
that
more
recent
data
is
unreliable due to "issues with gauge operation and location." AR
50467. Even assuming plaintiffs' assertion that "more recent data
would likely lead to a different result" is something more than
conjecture,
this
is
insufficient
to
overcome
the
"substantial
deference" standard which must be accorded the Forest Service's
selection of an appropriate baseline data set.
Council v. Weldon,
697 F.3d 1043, 1053
See Native Ecosys.
(9th Cir. 2012)
(citation
omitted) .
Moreover, the Court finds that the Forest Service provided an
adequate baseline of 18.2 cfs for the City's water diversion rate.
Under NEPA, a federal agency must only provide enough information
to promote "a reasoned choice among alternatives." 40 C.F.R.
1502.22.
Nonetheless,
plaintiffs
contend
the
Forest
§
Service
incorrectly estimated the City's baseline diversion and use rates.
They
assert
the
agency
needed
to
collect
determine the appropriate diversion baseline.
Page 12 - OPINION AND ORDER
additional
data
to
Plaintiffs fail to
offer sufficient evidence to prove that the agency's existing data
violated NEPA and "an agency's selection of a particular baseline
[does] not prevent it from complying with NEPA." Theodore Roosevelt
Conservation P'ship v. Salazar,
2009)
605 F. Supp. 2d 263,
281
(D.D.C.
(citation omitted).
iv.
Failure to Prepare an EIS
NEPA requires a federal agency to prepare an EIS for "all
major Federal actions significantly affecting the quality of the
human environment." Blue Mts.
Bio.
1208,
(citation
1212
(9th
Cir.
1998)
Proj.
v.
and
Blackwood,
internal
161 F.3d
quotations
omitted). In assessing a project's significance, both its context
and intensity are
evaluated.
40
C.F.R.
§
1508.27.
The
context
varies depending on the scope of the project. Id. The intensity, or
the "severity of the impact" of the proposed action,
evaluated based on a
number of "significance"
should be
factors.
See
40
C.F.R. § 1508.27(b) (1)-(10). A court may find substantial risk of
a
significant effect based on just one of these factors.
Ocean
Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 865 (9th Cir.
2004). Plaintiffs argue that a number of these significance factors
weigh in favor of preparation of an EIS for the Project, including:
(1) the Project threatens violations of federal and state law;
a
substantial
controversy
exists;
environmental
effects
(2)
remain
uncertain; (3) the Project area has unique characteristics; (4) the
Project sets a precedent for future actions; and (5)
the Project
may affect threatened and sensitive species.
Plaintiffs focus on the first significance factor,
Page 13 - OPINION AND ORDER
however,
this
factor
fails
to
establish that
an EIS
was
necessary.
In
several letters, the Oregon Water Resources Department stated that
the City is
in compliance with state
law and did not
require
additional permits to operate its diversion facility. AR 10732, AR
11541, AR 50764. This evidence is sufficient to reject plaintiffs'
argument and the Court finds that the City's diversion is not in
violation
of
allegations,
state
law.
Further,
despite
plaintiffs'
numerous
it was not arbitrary or capricious for the Forest
Service to conclude that the Project would not have a significant
impact on the environment.
makes
it
clear
that
each
An independent review of the record
of
plaintiffs'
remaining
claims
are
without merit. See, e.g., AR 50800-06, AR 50857-58.
II.
NFMA Claims
A. Requirements
The
NFMA,
procedural
and
16
U.S.C.
substantive
§§
1600
et
requirements
seq.,
for
establishes
the
both
management
of
National Forest System lands. Under the NFMA, the Forest Service is
required to manage the Deschutes National Forest pursuant to the
Deschutes Land and Resource Management Plan ("LRMP"). The Forest
Service may not approve any site-specific actions,
such as the
Project, that are inconsistent with the Deschutes LRMP. 16 U.S.C.
§
1604(i). The LRMP "was developed to guide all natural resource
management activities and establish standards/guidelines for the
Deschutes National Forest." AR 01502.
The Plan contains various
provisions related to the maintenance and enhancement of riparian
areas and fisheries. See, e.g., AR 01592-93, AR 01599. The Inland
Page 14 - OPINION AND ORDER
Native Fish Strategy (INFISH) and the Northwest Forest Plan (NWFP)
amended the Deschutes LRMP and provide additional guidelines with
respect to aquatic habitats and riparian resources.
B. Analysis
i. Minimum Instream Flows
Plaintiffs contend that the Forest Service violated NFMA by
issuing a
SUP that
Specifically,
minimum
was
inconsistent
plaintiffs
instream
flow
argue
the
levels
based
with
the
agency was
on
the
Deschutes LRMP. 3
required to
State
of
set
Oregon's
instream water right for the Creek. 4 In support of this argument,
plaintiffs cite numerous planning directives from the Deschutes
LRMP,
the
NWFP,
and
INFISH.
They
allege
these
standards
and
guidelines placed a "binding commitment" on the Forest Service to
impose minimum instream flow requirements for the Creek prior to
issuing the City's SUP.
As
a
preliminary
matter,
the
majority
of
these
cited
guidelines cannot form a basis for judicial review because they are
barred by the Supreme Court's decision in Norton v. Southern Utah
3
Plaintiffs also allege the Forest Service's decision
violated FLPMA. FLPMA requires the Forest Service to condition
rights-of-way such that they will "minimize damage to scenic and
esthetic values and fish and wildlife habitat and otherwise
protect the environment." 43 U.S.C. § 1765(a) (ii). The statute
does not require the Forest Service to undertake any specific
actions, thus plaintiffs' FLMPA claim is similarly dismissed.
4
An Instream Water Right (ISWR) is "a water right held in
trust by the Water Resources Department for the benefit of the
people of the State of Oregon." Or. Rev. Stat. § 537.332(3)
(1987). ISWRs establish minimum streamflow levels that are
necessary to restore or maintain the State's riparian resources.
Page 15 - OPINION AND ORDER
Wilderness Alliance, 542 U.S. 55 (2004)
("SUWA"). It is undisputed
that plaintiffs can proceed only if they allege the Forest Service
"failed to take a
discrete
agency action that
[the agency]
is
required to take." Id. at 64 (emphases in original) . Therefore, the
forest-wide standards and guidelines plaintiffs cite are "generally
not amenable to suit under the APA because they do not constitute
final agency actions." Ecology Ctr. v. Castaneda, 574 F.3d 652, 658
(9th
Cir.
2009)
(citation
omitted).
Plaintiffs
contend
these
provisions contain a "clear indication of binding commitment," such
that the Court may compel the Forest Service's action. SUWA,
U.S.
at
69.
However,
a
plain
reading of
the
542
cited provisions
contradicts plaintiffs' argument. Accordingly, the Court may only
review
plaintiffs'
claims
as
they
relate
to
site-specific
compliance with the LRMP, the NWFP, and INFISH. See Ecology Ctr.,
574 F.3d at 658
The
Court
(citation omitted).
finds
that
only
five
of
the
fifteen
planning
directives plaintiffs cite are site-specific provisions subject to
judicial review - Deschutes LRMP RP-9, NWFP LH-2 & LH-3, & INFISH
LH-1 & LH-3. However, on their face, these management directives do
not impose a duty on the Forest Service to set minimum instream
flow requirements for the Creek. Pls.' Reply Mem. in Supp. of Mot.
Summ.
J.
6-8.
For example,
the
Deschutes
LRMP RP-9
regulation
requires the Forest Service to "[p]rotect instream flow on National
Forest System Lands." Plaintiffs, however, interpret this provision
to mean the
agency had a
duty to establish minimum streamflow
levels before issuing the SUP. While the Forest Service had a duty
Page 16 - OPINION AND ORDER
to protect the Creek's instream flows, it was not required to adopt
plaintiffs' specific recommendations on how to do so. See SUWA, 542
U.S.
at
66
(environmental
regulation was
"mandatory as
to
the
object to be achieved," but allowed agency discretion in deciding
how to achieve it). Further, the Forest Service's "interpretation
and
implementation
substantial
of
deference."
its
own
Weldon,
forest
697
plan
F.3d
is
at
entitled
1056
to
(citation
omitted). Accordingly, plaintiffs' argument that the Forest Service
had a
duty to establish minimum instream flow
requirements
is
without merit.
Moreover, an independent review of the record reveals that the
Forest Service considered the Creek's instream flow needs prior to
issuing the SUP, as NFMA mandates. The Forest Service evaluated the
Creek's current streamflow conditions, including minimum instream
flows, and the Project's potential impact on the Creek. AR 5046981.
The agency concluded that instream flows
would be
sufficient
to
protect
riparian
under the Project
resources
and
aquatic
habitats. The EA examined flows in all three reaches of the Creek
and determined that the Project would not reduce streamflow levels
in Reaches Band C compared to the City's current system. AR 5048081. In Reach A, however, the Project would improve instream flows
if the City diverts less than 18.2 cfs. AR 50479. Additionally, the
Forest
Service analyzed how changes in streamflow would impact
spawning,
juvenile, and adult fish habitat. The agency relied on
the "most widely accepted and applied fish habitat model" and found
Page 17 -OPINION AND ORDER
that the Project would have little to no impact on the Creek's
aquatic habitats. AR 50499, AR 50850.
Plaintiffs,
however,
inadequate because
instream flows
resources,
but
argue
this
streamflow
analysis
was
the Forest Service's interpretation of minimum
"had nothing
rather,
to
simply
do
with
the
reflected
needs
[the
of
riparian
City's]
senior
instream right." Pls.' Reply Mem. in Supp. of Mot. Summ. J. 10. In
other words, plaintiffs argue the Forest Service should have relied
on the minimum flow levels established in the Creek's ISWR, rather
than
the minimum
flows
based on
the
City's
more
senior water
rights. Plaintiffs cite Cnty. of Okanogan v. Nat'l Marine Fisheries
Serv., 347 F.3d 1081 (9th Cir. 2003), Trout Unlimited v. USDA, 320
F. Supp. 2d 1090 (D. Colo. 2004), and Sequoia Forestkeeper v. U.S.
Forest Serv., No. CV F 09-392 LJO JLT, 2010 WL 5059621 (E.D. Cal.
Dec. 3, 2010)
to support their position.
In each of these cases,
the court held that the Forest Service had the authority to impose
instream flow requirements even though this would conflict with a
permitee's state water rights. Plaintiffs assert that these cases
establish the Forest Service's authority to evaluate the Project
using the Creek's ISWR minimum flows and condition the City's SUP
accordingly. This Court is not persuaded by these cases.
In County of Okanogan, the Ninth Circuit held that the Forest
Service could impose instream flow
flows
were
required
to
protect
requirements because certain
endangered
species.
Cnty.
of
Okanogan, 347 F.3d at 1084-85. However, the Creek does not have any
threatened or endangered species. AR 04677, AR 50388. Further, in
Page 18 - OPINION AND ORDER
Trout Unlimited and Sequoia Forestkeeper, the Forest Service did not
impose instream flow restrictions although evidence suggested the
proposed actions could adversely affect fish and wildlife habitat.
See Trout Unlimited, 320 F. Supp. 2d at 1106; Sequoia Forestkeeper,
2010 WL
5059621
restrictions
on
at
*20-21.
the
Here,
City's
the
water
Forest
use
Service did place
to
minimize
adverse
environmental impacts.
Collectively, these cases illustrate that the Forest Service
is entitled to impose flows that conflict with state water rights,
but it is not required to do so.
Unlike those cases,
the Forest
Service did not need to establish minimum flows because limiting the
City's diversion to 18.2 cfs was sufficient to protect the Creek's
resources.
Consequently,
the Forest Service was not required to
reprioritize the Creek's ISWR over the City's consumptive rights in
its streamflow analysis.
Finally, as a practical matter the ISWR minimum instream flow
levels
will
generally
implemented. 5 AR 50479.
be
met
in
Reach
A
if
Other than two months
the
Project
of the
year,
is
the
portion of the Creek primarily affected by the City's withdrawal
will be in compliance with this state water right. Plaintiffs would
like the Court to focus on the streamflow inadequacies in Reach B,
however the 2013 EA is clear that flows in this portion of the Creek
5
The Court notes that the minimum flows in the Creek's ISWR
are higher than the actual minimum levels required to protect
fish habitats. When Oregon issued the Creek's ISWR it adopted
flow levels that were higher than previously identified minimum
flows. AR 04995, AR 49914-15, AR 49917.
Page 19 - OPINION AND ORDER
are more influenced by the Tumalo Irrigation District's management
and practices. AR 50481.
ii. INFISH
INFISH
quality.
amended
the
Deschutes
LRMP
with
respect
to
water
The goal of the INFISH guidelines is to "maintain and
restore" riparian resources, ecosystem health and fish populations.
The standard under INFISH is not to "retard attainment of water
quality standards." Specifically,
one INFISH riparian management
objective ("RMO") requires the Forest Service to protect the stream
by ensuring "[m] aximum water temperature below 5 9oF within adult
holding
habitat
and
below
48oF
within
spawning
and
rearing
habitats." AR 04519.
Plaintiffs argue that the Creek is currently violating these
temperature
standards
and
the
Project
will
cause
continued
violations. Conversely, the Forest Service argues that the Project
does not violate INFISH because it will not "retard" attainment of
RMOs.
The Court finds that the Project,
now limiting the City's
diversion to 18.2 cfs, does not violate INFISH. The Forest Service
determined the Project would not prevent attainment of RMOs and
explained its conclusion in the 2013 EA. For instance, the agency
found that the Project "decreases temperature in [Reach A] , trending
toward attainment of [the] objective." AR 50549 (emphasis added);
see also AR 50552-50556. Further, in Landwatch I this Court noted
that the 2013 EA did not address INFISH compliance during critical
summer months. Landwatch I,
however,
905 F. Supp. 2d at 1197. The 2013 EA,
explains that the Project would provide benefits to the
Page 20 - OPINION AND ORDER
Creek's
water
Moreover,
temperature
during the
hottest months.
AR 50550.
the Forest Service provided a detailed analysis of the
Project's impact on fisheries and found that it would not adversely
affect
native
standard,
fish.
it was
not
AR
a
50525-50537.
Considering the
clear error of
judgment
for
applicable
the
Forest
Service to conclude that the Project complied with INFISH.
The Forest Service did not act arbitrarily or capriciously in
determining that the Project was consistent with its obligations
under NFMA.
III. CWA Claim
A. Requirements
The CWA was enacted to "restore and maintain the chemical,
physical,
and biological integrity of
[the]
Nation's waters." 33
U.S.C. § 1251(a). Under the CWA, federal agencies are required to
comply with state water-quality standards "in the same manner, and
to the same extent as any nongovernmental entity." 33 U.S.C.
§
1323 (a).
B. Analysis
Plaintiffs argue the ·Forest Service violated the CWA because
the Project violates Oregon's Protecting Cold Water (PCW) standard.
Defendants contend plaintiffs' claim fails because the PCW does not
apply to the Project. The Forest Service argues that because Tumalo
Creek remains on the CWA 303(d) list for high temperatures it cannot
be subject to a standard created to protect or preserve cold water.
Page 21 - OPINION AND ORDER
Further,
the City contends the PCW is inapplicable because only
discharges of water are subject to state water quality standards.
Even accepting plaintiffs' argument that the PCW applies here,
the Court finds that the Forest Service did not violate the CWA. The
agency determined that the PCW standard did not apply because the
Project satisfied an exception to the rule. The PCW does not apply
if "[t] here are no threatened or endangered salmonids currently
inhabiting the water body; [t]he water body has not been designated
as a critical habitat; and [t]he colder water is not necessary to
ensure that downstream temperatures achieve and maintain compliance
with the applicable temperature criteria."
0028 (11) (c).
Here,
criteria
were
met
violation
of
this
Or. Admin. R. 340-041-
the Forest Service determined that all three
and
"Tumalo
State
Creek
water
is
quality
not
subject
standard."
to
AR
or
in
50492.
Plaintiffs assert this was an unsupported conclusion and the Forest
Service failed to provide a
colder
water
in
Tumalo
sufficient explanation for why the
Creek
is
not
necessary to
achieve
and
maintain temperature standards downstream.
Plaintiffs' claim is without merit. In the 2013 EA, the Forest
Service explained that Reach C is not significantly impacted by
Tumalo Creek's temperature because its "contribution is small, and
does not
contribute enough cold water to the main stem of the
Deschutes River to attain temperature standards on its own." AR
50494. Moreover, the agency noted that at the mouth of the Tumalo
Creek,
which
feeds
into
the
Deschutes
River,
the
temperature
difference between the proposed and existing water supply system is
Page 22 - OPINION AND ORDER
less than O.loc. Considering this negligible difference, the record
supports the Forest Service's conclusion that Tumalo Creek waters
are not necessary to ensure colder temperatures downstream in the
Deschutes River.
Further,
to the extent plaintiffs'
argue that colder Tumalo
Creek water upstream is necessary for non-attaining waters in Reach
B,
this argument also fails.
temperatures
downstream
The record shows that the flow and
of
the
Project
area
are
"controlled
primarily by the operation of TID's irrigation diversions- not the
municipal
use
explained
of water." AR
504 94.
that
regardless
the
of
The
Forest
City's
Service
demand,
'TID's
further
water
management primarily controls flows in Reach B and temperatures are
not
expected to
change
as
a
result
of the
Project.
AR
504 87.
Consequently, it was not a clear error in judgment for the Forest
Service to conclude that the Creek's colder water was not necessary
to "ensure downstream temperatures achieve or maintain compliance
with applicable temperature criteria." The Court finds no violation
of the CWA.
Page 23 - OPINION AND ORDER
CONCLUSION
The Forest Service's and defendant-intervenors' motions for
summary judgment (docs. 119, 114, respectively) are GRANTED. The
plaintiffs' motion for summary judgment (doc. 100) is DENIED.
This case is DISMISSED and all pending motions are denied as
moot.
IT IS SO ORDERED. r ,-~
Dated this L) of December 2014.
Ann Aiken
United States District Judge
Page 24 - OPINION AND ORDER
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