ELR Citation: ELR 20497
No(s). 86-2453 (9th Cir. Feb 24, 1988)

The court holds that the scope of review for a challenge to the Bureau of Reclamation's environmental impact statement (ELS) on a Central Arizona Project (CAP) aqueduct is limited to the administrative record, and the EIS is sufficient. The court first holds that the administrative record was fully developed and open to public comment prior to the Bureau's decision on the aqueduct, and that the administrative record contains adequate information to respond to the plaintiffs' criticisms. Moreover, there has been no showing that the Bureau acted improperly or in bad faith.

The court next holds that the EIS was sufficient. The Bureau of Reclamation did not supplement the EIS when, shortly after it was published, a local irrigation district decided not to contract for water from the CAP, but this only significantly affected a rejected alternative. The Bureau studied the effects on rejected alternatives and reasonably concluded they did not rise to the level of environmental significance that would warrant a supplement to the EIS, issuing a statement of explanation. The plaintiffs have not shown any inadequacies in the EIS or any evidence of bad faith in its preparation.

The court holds that a worst-case analysis on the health effects of water purification is not required, noting that the worst-case regulations issued in 1986 do not apply because the Notice of Intent for this EIS was published in 1984. No showing has been made that the information on these health effects is important or essential to the decision, or that the information is unknown or uncertain.

Finally, the court holds that the Bureau was not required to consider the additional alternative of storing the water through groundwater recharge, since this is a local decision of water storage and not part of the federal project. Moreover, the Bureau properly rejected it as a reasonable alternative and provided an explanation for the rejection.

Counsel for Plaintiffs-Appellants
Sean Bruner
Ralls & Bruner
273 S. Scott, Tucson AZ 85701
(602) 884-1234

Counsel for Defendants-Appellees
Martin W. Matzen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4426

Counsel for Defendants-Intervenors-Appellees
Clifford J. Roth
Winston & Strawn
2300 Great American Tower, 3200 N. Central Ave., Phoenix AZ 85012
(602) 279-8500

Casey Shpall
Mountain States Legal Foundation
1200 Lincoln St., Suite 600, Denver CO 80203
(303) 861-0244

Before Hug and Noonan, JJ.