Why it matters: In a decision involving an Environmental Impact Statement (EIS) prepared to analyze the impact of Colorado River water transfers on the Salton Sea, the Court upheld the determination not to file a supplemental EIS to address late changes to the project and also concluded that consideration of just one alternative (the “no action” alternative) was acceptable given that the water transfer agreement was “hard fought” and discussing hypothetical alternatives would be unhelpful. The Court also reinforced the rule that a court should not “fly speck” an EIS for inconsequential technical deficiencies.

Facts: Several water districts negotiated agreements to reduce the use of Colorado River water and to authorize inter-district transfers of conserved Imperial Irrigation District water to urban areas. Before ratifying the agreements in 2003, the U.S. Department of the Interior (DOI) prepared an EIS under the National Environmental Policy Act (NEPA). After the Final EIS was filed, but before the agreements were approved, DOI prepared an environmental evaluation of several last-minute changes to the master implementation agreement and concluded that a supplemental EIS was not necessary. Plaintiffs Imperial County and the Imperial County Air Pollution Control District brought an action under NEPA and the Clean Air Act challenging the EIS on several grounds, including the failure to supplement the EIS to address the amendments and the limited consideration of alternatives.

Decision: After concluding that the plaintiffs had standing to sue, the Ninth Circuit Court of Appeal upheld the EIS. Most important among those plaintiff’s challenges were that: (1) the EIS did not properly incorporate other environmental review documents; (2) the EIS impermissibly tiered to non-NEPA documents; (3) the EIS improperly segmented the subject water agreements from other water transfer agreements; (4) the EIS failed to analyze alternatives other than the no-action alternative; and (5) DOI failed to complete a supplemental EIS for amendments to the master implementation plan.

Tiering: With regard to the incorporation of and tiering to other environmental documentation, the court held that despite a scrivener’s error, the EIS did not tier to any of the external documents, but merely incorporated them by reference. Importantly, the court reinforced the rule that it will not “fly speck” an EIS for inconsequential, technical deficiencies.

Segmentation: Rejecting the segmentation argument, the court easily found that the water agreements had independent utility because they could take place with or without the other water transfer agreements that were not addressed in the EIS.

Supplement: As to DOI’s failure to prepare a supplemental EIS, the court recognized that a new alternative does not require a supplemental EIS if it falls within the range of alternatives analyzed in the EIS. The changes to the master implementation plan only involved changes to the mitigation mechanism. Therefore, since the changes were qualitatively considered through a no-mitigation alternative and the changes reduced the overall adverse impact, no supplemental document was required.

Alternatives: Finally, perhaps the most significant holding by the court was its conclusion that the EIS did not need to review any alternatives other than the proposed action and the no-action alternative. The court focused on the fact that the proposed action was a hard-fought negotiated agreement. “Discussing a hypothetical alternative that no one had agreed to (or would likely agree to) would have been unhelpful.”

Practice Pointers:

  • If changes are made to the proposed action after the Final EIS is submitted, the agency should prepare a short analysis showing that impacts resulting from the changes would fall within the range of alternatives considered in the EIS.
  • If the project involves an extensively negotiated agreement, the range of reasonable alternatives may be limited to the proposed action and the no-action alternative. Hypothetical alternatives proposed by project proponents may be considered unhelpful in this context.