ELR Citation: ELR 20206
No(s). 1:09-CV-00861 (E.D. Cal. Sep 8, 2009)

A district court dismissed two local water agencies' NEPA action against various federal and state regulatory agencies, water districts, and other interested parties involved in the development and environmental review of the Bay Delta Conservation Plan, a yet-to-be consummated collaborative approach to restoring the Sacramento-San Joaquin River Delta ecosystem while also protecting water supplies. NOAA-Fisheries and the FWS published notices in the Federal Register announcing their intent to conduct public scoping and to prepare an EIS for the plan. The local water agencies filed suit under NEPA, arguing that the notices were too ambiguous and that too many lead agencies were involved. The water agencies, however, lack standing. Unlike most NEPA suits, the action challenged here is not the preparation (or lack thereof) of an EIS, but only the lead agencies' decision to publish a notice of intent and to conduct scoping without first publishing a detailed draft of the plan. Further, there are no prescribed rules or procedures that govern preparation of the plan. Accordingly, the agencies do not set forth a plausible basis for finding that the challenged actions—the failure to issue a sufficiently detailed notice of intent, and the designation of multiple lead agencies—are reasonably likely to harm their concrete interests in the Delta. Alternatively, the agencies' NEPA claim is not ripe for review since no project has yet been formulated and the record cannot possibly reveal whether any NEPA procedural violation has deprived agency decisionmakers of an informed awareness of significant environmental consequences. Nor does the claim fall within the APA's limited grant of sovereign immunity since there has been no final agency action.