The Bureau of Reclamation has always been known for two things: building dams, and harming the environment. Of course, dam construction inevitably has environmental impacts, and so does dam operation. The volume and timing of water storage and release affects water quality, recreation, fish and wildlife both above and below the dam. With these kinds of impacts, one might think that federal dam operations would be subject to environmental reviews under NEPA, just as federal land management activities are. But in fact, Reclamation rarely does NEPA reviews of “routine” dam operations, despite the serious impacts on downstream rivers.
I can understand why Reclamation–an agency with a big, important job and a limited budget–is not eager to do environmental reviews on project operations. The NEPA process takes time, costs money, and presents litigation risks. But the same is true for the Forest Service and BLM, and they routinely “do NEPA” on their actions. Why doesn’t Reclamation? Because the courts have allowed it. In a 1990 case called Upper Snake River Chapter of Trout Unlimited v. Hodel, the 9th Circuit Court of Appeals held that Reclamation did not need to do an environmental review before reducing dam releases into the South Fork Snake River. The court acknowledged that cutting the releases would harm the river’s trout fishery, but said that NEPA did not apply because Reclamation was simply operating the dam as it had since the time it was built. Ever since the Upper Snake decision, the courts have esssentially exempted “routine” dam operations from NEPA, requiring an environmental review only when Reclamation proposes to change the operating regime.
So what? The courts have always said that NEPA does not dictate results, only process, leaving agencies free to make environmentally harmful decisions. But Congress and the courts have also seen the value in environmental reviews which identify alternatives to an agency’s proposed action, assess the impacts of the proposal and the alternatives, and identify mitigation measures. Moreover, the NEPA process provides an opportunity for public involvement and participation in agency decision-making that would otherwise involve only a handful of stakeholders. Developing alternatives, providing information, engaging the public … these things are basic good government, and they could help Reclamation develop long-term plans for operating projects to serve a variety of uses in wet, average, and dry years.
The 9th Circuit recently issued a decision that held, among other things, that Reclamation must do a NEPA review when it accepts and implements a “reasonable and prudent alternative” under the Endangered Species Act. What is bizarre about that holding in San Luis & Delta-Mendota Water Authority v. Jewell: routine dam operations are normally exempt from NEPA despite their impacts, but when Reclamation proposes a change to reduce environmental impacts, NEPA is triggered. The court relied on Upper Snake, and never indicated that its earlier decision might be wrong. But it also emphasized that NEPA applies “to the fullest extent possible,” that there is no statutory exemption for this type of agency decision, and that Reclamation’s operating decisions have major importance for people and ecosystems. All valid points, and had the court applied those principles–and the Council on Environmental Quality’s NEPA rules–faithfully in the Upper Snake case, the result would have been different. (I made this argument, and suggested that environmental reviews could be beneficial in this context, in a 2011 article on Reclamation and NEPA).
I hope the day is coming when the 9th Circuit reconsiders its ruling in Upper Snake. NEPA reviews certainly will not resolve all the environmental problems associated with Reclamation’s dam operations. But I do think the NEPA process has value in the context of long-term operations plans, requiring the agency to generate alternatives, involve the public, and develop ways to mitigate impacts. In a West where the climate is changing, water uses are changing, and values are changing, I believe NEPA can help Reclamation make better decisions about the future of its projects.
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