ELR Citation: ELR 20347
No(s). 89-35142 (9th Cir. Dec 17, 1990)

The court holds that the National Environmental Policy Act (NEPA) does not require the Bureau of Reclamation to prepare an environmental impact statement (EIS) before periodically adjusting the flow of water from the Palisades Dam in Idaho. Idaho recreational organizations brought suit against the Secretary of the Interior and the Chief of the Bureau of Reclamation seeking injunctive and declaratory relief concerning the Bureau's decision to reduce, below 1,000 cubic feet per second (cfs), the flow of water from the Palisades Dam and Reservoir, potentially damaging the downstream fishery. The court holds that the district court properly concluded that NEPA did not require the Bureau to prepare an EIS before periodically adjusting the flow of water, since that action does not constitute a "major federal action." The facts reveal that although the Bureau's standard operating procedure since 1956 is to maintain the flow above 1,000 cfs, during previous dry periods. Moreover, although this reduction will have negative impact on the downstream fishery, the fluctuation of flows below the dam is an ongoing operation by the Bureau and is outside NEPA's EIS provisions. The court notes that the dam project was completed and in operation before NEPA was enacted, and because NEPA does not apply retroactively, an EIS cannot be required on the basis of the project's construction. While an ongoing project that undergoes changes amounting to "major federal action" is subject to EIS preparation, the Bureau's decision to reduce water flow from the dam was a routine managerial action. The Bureau's action was not unexpected, nor more extensive, nor other than that contemplated when the dam project was first operational. Particular flow rates will vary over time as changing weather conditions dictate.

[The district court opinion is published at 19 ELR 20832.]

Counsel for Plaintiffs-Appellants
Russell E. Webb
Radin & Webb
P.O. Box 50939, Idaho Falls, ID 83405
(208) 523-9808

Counsel for Defendants-Appellees
George W. Van Cleve
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000