In Idaho Conservation League v. Bonneville Power Administration, 2016 U.S. App. LEXIS 11175, the Ninth Circuit rejected a National Environmental Protection Act (“NEPA”) challenge to changes in the operation of the Albeni Falls Dam.
The Dam, constructed in 1957 as part of the Federal Columbia River Power System, helps provide power to the Pacific Northwest. It is jointly managed by the U.S. Army Corps of Engineers (“Corps”), the Bonneville Power Administration (“BPA”), and the Bureau of Reclamation. The Dam straddles the Pend Oreille River, which connects Lake Pend Orielle and the Columbia River. When water is released from the lake, it drives turbines that generate electricity. For decades, the Corps fluctuated the level of the lake in some winters in order to generate power as needed.
In 1995, the Corps became concerned that the winter fluctuations were adversely affecting the kokanee salmon. In 1997, the Corps began holding the lake’s elevation constant in the winter. In 2009, BPA urged the Corps to return to a flexible management approach so the Dam could generate power year-round if needed. After two years of discussions and a public comment period, the agencies issued an environmental assessment in 2011. It concluded the proposed winter fluctuations would have no significant environmental impact.
Petitioner argued that an environmental impact statement (“EIS”) should have been prepared because this change to the ongoing operations that amounted to a “major Federal action.” The Ninth Circuit, citing Upper Snake River Chapter of Trout Unlimited v. Hodel (9th Cir. 1990) 921 F.2d 232, held that an EIS was not required because the proposed winter fluctuations did not result in a significant shift in operational policy or change the status quo due to the pre-1997 operations at the Dam. The court also noted that the agencies maintained discretion to change the water levels from 1997 to 2011 and met yearly to decide how the Dam would be operated. As stated by the court: “Requiring an agency to prepare an EIS every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt.”
In determining whether a proposed change to the existing operation of a facility constitutes a major Federal action significantly affecting the quality of the human environment, thereby triggering an EIS under NEPA, courts consider several factors including whether the change would alter the status quo in light of the past and current operations. In this instance, a proposed action that involved operating a completed facility in a way that it had been operated in the past did not change the status quo, was not considered a major action, and thus did not require an EIS.