F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

I D A H O C O N S E R

V A T I O N L E A G

U E , P etitioner
,

v

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B O N N E V I L L E P O W

E R A D M I N I S T R A T I O N , Respondent. N o. 12-70338

OPI NI ON

O n Petition for Review of an Order of the B onneville Power Administration

A rg ued and Submitted October 6, 2014

Portland, Oreg on

F iled J une 21, 2016

B efore: Alex Koz inski, F e r dinand F . F e rnandez and Andre M. Davis, * Circuit J udg es.

O pinion by

J udg e Koz inski

* T h e Ho n o rab le A n d r e M

. D a v i s, S en i o r Circu it J u d g e f or th e U .S. Co u rt o f A p peals f o r th e Fo u rth Circu i t, sittin g b y d esig n atio n

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SUMMARY * *

Environm ental Law

The panel denied a p etition for review of a decision of the B onneville Power Adminis t r a t ion to move forward with a p r o p o sal to chang e how the Albeni F alls Dam in the Pacifi c Northwest operates durin g winter months without first preparing an environmental impact statement under the National Environmental Policy Act.

L ake Pend Oreille, w h i c h serves as the dam’s reservoir, is jointly manag ed b y the Army Corps of Eng ineers, the B onneville Power Administration, a n d the B ureau o f Reclamation. I n the initial winte r months of the dam’s operation, starting in the late 1950s, the Corps fluctuated the level of the lake, but in some y ears the Corps held the lake’s level c onstant. F rom 1997 to 2011, the Corps held the lake’s level c onstant. I n 2011, the ag encies confirmed in an environmental assessment that they planned to r e turn to a more flex ible approach and allow the lake level to fluctuate.

NEPA only requires the preparation of an environmental impact statement when a proposed federal action is major, but “where a proposed federal action w ould not chang e the status quo,” an envir o nmental impact statement is not required. Upper Snake River Chapter of Trout Unlimited v. Hodel

, 921 F .2d 232, 235 (9th Cir. 1990).

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

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f f o r th e co n v en i en ce o f

th e read er.I D A H O C O N S E R

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The panel held that the a g encies complied wi t h N EPA when they finaliz ed their 2011 decision without p reparing an environmental impact statement. The panel held that holding lake levels constant fr o m 1 9 9 7 to 2 011 did not chang e the
status quo, and reverting to the previous reg ime of fluctuating the lake levels did not chang e the status quo either.

The panel held that be c au s e the ag encies’ decision adopting flex ible winter operations did not trig g er NEPA’s requirement to publish an env i ronmental impact statement, petitioner’s challeng es to the environmental assessment’s find i n g o f n o sig nificant impact were moot. T he panel h eld that petitioner did n ot properly r a ise a challeng e to the B onneville P ower Administration’s failure to prepare a supplemental e nvironmental impact statement addressing the effects of the flowering

rush on the dam’s operation.

COUNSEL

B ry a n Hurlbutt (arg

ued), Advocates for the W est, B o ise, I daho, for Petitioner.

H u b V. Adams (arg

ued), Attorney ; J acily

n R. Marg e son, Assist a n t Attorney General; Randy A. Roach, General Counsel; B onneville Power Administration, Portland, Oreg on; David J

. Adler, Special A s s i s t ant United States Attorney ; S. Amanda Marshall, United States Attorney ; Stephen J

. Odell, Assistant U nited S t a t e s Attorney ; United States Attorney ’s O ffice, Portland, Oreg on; for Respondent.I D A H O C O N S E R

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OP INION

KOZ I NSKI , Circuit J udg e:

Operated by the A rmy Corps of E ng ineers (Corps), the Albeni Falls Dam helps p rovide power to the Pacific Northwest. The B onneville Power Administration (B PA) is charg e d w ith marketing the power g enerated f rom the dam. I n 2011, the ag encies decide d t o chang e how they operated the dam during the winter months. W e consider whether they complied with the Nat i o nal Environmental Policy A ct (NEPA) when they

finaliz ed this decision without preparing an environmental impact statement.

F ACTS

The Albeni F alls Dam straddles th e Pend Oreille River, which connects L ake Pend O reille a nd the Columbia River. Completed in 1957 as part of the F ederal C olumbia River Power Sy stem, it is jointly manag ed by t h e C orps, B PA a nd the B ureau of Reclamation. L ike othe r d ams in the Sy stem, the Albeni F alls Dam is operated to b alance a va r i e t y o f

c o mpeting objectives, such as flood control, po w e r g eneration, navig ation and wildlife conservation.

L ake Pend Oreille serves as the dam’s r ese r v o i r

. W h en water is released from the lake, it drives turbines that g enerate electricity

. T his decreases the reservoir’s depth and causes its shoreline to r e c e de. F or decades, the Corps maintained the flex ibility to g e nerate power during the winter months. I n the initial winters of the d am’s operation, starting in the late 1950s, the Corps fluctua t e d the level of the lake to g enerate power as needed. I n some y ears, however, the Corps held the lake’s level constant, often near 2051 feet.I D A H O C O N S E R

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I n 1995, the Corps determined t hat allowing the lake’s elevation to drop during the winter months had adverse effects on the kokanee salmon population and so beg inning in 1 9 97 beg an holding the lake’s e levation constant. B ut in 200 9
, BPA urg ed the Corps to r eturn to a more flex ible approach t o winter dam manag ement. After two y ears o f d i s c ussions and a public comment period, the ag encie s confirmed in a 2011 environmental a ssessment (EA) that they planned to follow throug h with B PA’s proposal. The plan for “flex ible w inter power operations” g ives the Corps the option each winter to store water in the reservoir and then release it throug h the dam according to power needs. Thus, instead o f keeping the lake’ s l e v e l constant, the Corps may allow it to rise and fall by

as much as five feet during the winter.

The EA concludes that the p roposed winter fluctuations will h ave no sig nificant environmental impact. A c cording ly

, the ag encies decided to move forward wit h t h e proposal without preparingan environmental impact statement (EI S). See 40 C.F .R. §§ 1501.4(b)–(c), 1508 .9. Petitioner challeng es this decision as a violation of NEPA and asks us to require BP A t o prepare an EI S. W e have orig inal jurisdiction pursuant to the Northwest Power Act. 16 U .S.C. § 839f(e)(5).

D ISCUSSION

NE P A
, w hich applies to all federal ag encies, 42 U .S.C. § 4332, doesn’t dictate particular policy outcomes; instead, it
reg ulates the ma n n er in which ag encies arrive at them. Specifically

, for all “majo r F ederal actions sig nificantly affecting the quality

of the human environment,” the ag ency must p repare an EI S, which is a detailed study ex amining the

e n v ironmental conseq u e n c e s o f i t s d e ci s i o n

. I d

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§ 4332(2)(C). An EA is meant to briefly document t h e

reasons for the ag e ncy ’s d etermination whether an EI S is required. 40 C.F .R. § 1508.9; see Cascadia W ildlands v. Bureau o f Indian A

ffai r s , 801 F .3d 1105, 1111 (9th Cir. 2015). The E A here c oncludes that n o E I S is r equired because the p roposed action will n o t “result in any new sig nificant impacts to the human environment.”

1. NEPA o nly requires the preparation of an EI S w hen a proposed federal action is major. See Upper Snake River Chapter of Trout Unlimited v. Hodel , 921 F .2d 232, 234–35 (9th Cir. 1990). A fe d e r a l action that may have sig nificant

e nvironmental impacts need not “also be ‘major’ in an economic o r some other n o n e nvironmental sense to trig g er the EI S r equirement.” City of D avis v. Coleman

, 521 F .2d 661, 673 n.15 (9th Cir. 1 9 7 5 ) ; s e e 40 C.F .R. § 1508.18 (“Major reinforces but does not have a meaning independent of sig n ificantly .”). B ut w hen an ag ency , responding to chang ing conditions, makes a decision to operate a completed facility “ within the rang e orig inally available” to it, the action is not major. Upper Snake River
, 9 2 1 F. 2d at 235 (quoting Cty. of Trinity v. Andrus

, 438 F

. Supp. 1368, 1388 (E.D. Cal. 1977)). I n other words, “where a proposed f e deral action would not c hang e the status quo, a n E I S is not necessary

. ” Id. ; accord San Luis & Delta-Mendota W ater Auth. v

. Jewell

, 747 F .3d 581, 646 (9th Cir. 2014).

Upper Snake River involved a challeng e to the B ureau o f Reclamation’s manag ement of the Palisa d es Dam. Upper Snake River
, 921 F .2d at 233. Reclamation ty pically ensured that water flowed into the Snake River at a r at e o f a t least 1,000 c ubic feet per second. Id. I n response to a droug ht, the
ag ency reduced water flow below that rate in two consecutive
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E I S

. Id. at 233 & n.1, 234. W e acknowledg ed that, “if a n ong oing project under g o e s c h a n g es which themselves amount to ‘major F ederal actions,’ the operating ag ency must p repare

a n E I S.” Id. at 234. B ut Reclamation was n ot e ffecti n g a substantial operational c h ang e or ex p anding the Palisades Dam’s orig inal facilities. I nstead, the a g ency was doing what it had alway s done: “from time to time and depending on the river’s flow level, adjust[ ing ] u p or down the volume o f water released from the Dam.” I d. at 235. According ly , we found that Reclamation did not need to prepare an EI S. Id. at 236.

I f the ag encies in o u r c a se have consistently fluctuated winter lake levels, formaliz ing that a pproach would not be a major f e deral action because the age n cies would be “ doing nothing n ew, nor mo r e e x t ensive, nor other than that contemplated when the [ A lbeni F alls Dam] w a s first operational.” Id. at 235. The Corps f luctuated the elevation of L ake Pend Oreille in many winters prior to 1997, a nd various dam manag ement strateg ies considered in a 1995 E I S included elements o f what is n ow the proposal for flex ible winter operations. According ly

, the question i s whether holding lake levels constant from 19 9 7 to 2011 chang ed the
status q u o. I f not, then r everting t o t h e previous reg ime doesn’t chang e the status quo either.

The Corps discussed holding winter lake levels constant in an EA published i n 1995. This document reviewed a proposal for a t h r ee-winter test to hold the lake at a hig h minimum a

nd found that doing so would have no sig nificant environmental im p a cts. B PA and the Corps subsequently published Records of Decision putting this plan i n t o action. W e have ex plained that the time for an EI S is when an ag ency undertakes a “sig nificant shift o f d irection in oper a t i ng policy .” Grand Canyon Trust v. U.S. Bureau of Reclamation

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691 F .3d 1008, 1022 (9th Cir. 2012) (as amended). A nd, for
purposes of NEPA, the term “[ m] ajor reinforces but d oes not have a meaning independent of sig nificantly .” 4 0 C .F .R. § 1508.18. Thus, this short-term decision, which was found to have no sig n ificant environmental impact, could not have constitute d a major federal action because it w a sn’t a sig nificant o r long -term chang e in operating policy

. I n short, it did not chang e the status quo.

Actions t a k en w ith r espect to winter dam manag ement since 1995 r einforce the conclusion that there was no chang e to the status quo. As mentioned, the plan to hold winter lake levels constant beg an as a three

- y e a r test. The ag encies
manag ing the dam twice decided to carry forward this
manag ement strateg y a t the urg ing of the U.S. F ish a nd W ildlife Service. I t’s also notabl e t h a t , since 2 000, an interag ency team has met each y ear to recommend the lake’s
constant elevation for the coming w inter

. I n four w inters from 1996 to 2011, L ake Pend Oreille was h eld near 2051 feet; the lake was also held near that e l evation in eig ht winters between 1980 and 1995. See Upper Snake River
, 921 F .2d at 235 (finding that e ven if an ag ency h a d o n l y eng ag ed in a p roposed action s p oradically in the past, that

was enoug h to show that repeating that action did not chang e the status quo). As in U

pper S nake River
, the ag encies here considered each y e a

r h o w t o manag e the Albeni F alls Dam based on that y e a

r’s conditions. The Corp s never relinquished its authority to f luctuat e t h e lake’s elevation in
response to power demands: The Corps’ 2002 W ater Control Manual n otes that L ake Pend Oreille “is usually o p e r ated” within a one-foot rang e above the winter minimum, but that “storag e above [ that minimum] may be us e d f o r

. . . un s cheduled hy dropower operations.” Thus, from 1 997 to 2011, the ag encies maintained the discretion they haveI D A H O C O N S E R

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alway s had to respond annually to chang ing conditions. See id. Continuing to do so did not chang e the status quo.

B e cause the period w hen t h e ag encies held winter lake levels constant d id n ot chang e the o p erational status q uo, neither does the decision to revert to flex ible winter operations. Power g eneration h as alway s been among the central concerns in operating the dam. F or ex ample, a 1948 Army report on plans for the dam ex p lained that, “ [ d ] uring the fall and w inter period w hen reg ional power supply is lowest and power loads are g reatest, the stored water [at L ake Pend Oreille] will be drawn upon for power purposes.” The EA echoes that report, noting that “ [t] he purpose of [ flex ible

w inter operations] is to more efficiently use the availab l e water storag e capabilities a t AF D to g enera t e power during the winter” and that “[ s] toring water in the near t e r m will provide power benefits at a future date w h e n t hat water is released[ ,]

. . . depend[ ing ] on power p rices

, load demand, and conditions at [another dam] .” As the EA f urther

ex p lains: “ Historically

, winter p ower operations have been

a s s o c iated with [ releasing ] water for power. Water w a s stored for power operations during t h e winter in the 1980s and early 1990s.” Thus, in some wint e r s the lake has fluctuated, and in others it hasn’t. According ly

, the ag encies will b e doing “nothing new, n or more ex tensi v e , n o r other than that contemplated w hen the project was first operational.” Upper Snake River

, 921 F .2d at 235.

Petition e r arg ues that Upper Snake River is disting uishable because “[ u ] nder ex isting operati ons, the Corps maintains steady lake levels throug hout winter,” while under f lex ible winter operations, “lake levels would be raised and lowered over a five-f o o t r ang e up to three times every winter for the life of t h e D a m.” B ut Petitioner’s view o fI D A H O C O N S E R

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“ e xi s ting operations” is incorrectly limited to operations since the pub l ication of the 1995 E A. Moreover, Petitioner mischaracteriz es the p roposal. According to the current E A
, it’s “unlikely ” that lake levels would rise and fall over a fivefoot rang e three times every winter—a variety of f actors, such

as power demand and weather conditions, will influence h ow the ag encies operate the dam each y ear. Additi o n a lly

, there
may still be winters where the ag encies hold the lake’s level
constant in order to facilitate k okan e e r eproduction. Thus, the flex ible winter operations p r oposal comprises elements o f both earlier a

nd more recent manag ement strategi e s

. These details support the conclusion that the ag encies charg e d with operating the Albeni F alls Dam will do so in a ccordance with the status quo. Id. ; see a lso G rand Canyon Trust
, 691 F .3d at 1022.

P e titioner finally arg ues that implementing flexi b l e w i n t e r operations requires an EI S because the continued operation o f the Albeni F a lls Dam is itself a major f e d eral a ction that sig nificantly a ffects the human e nviron m e n t

. See 40 C.F .R. § 1508.18(a) (“Actions include new and continuing activities

. . . .”). B ut decisions made as a p art of the ong oing operation of a federal project must themselve s “ r i se to the level o f major federal actions to w arrant p reparation of an E I S

. ” Upper Snake R iver
, 921 F .2d at 235 n.3. Requiring an ag ency to prepare a

n EI S every time it takes an a ction consistent with past conduct would g rind a g ency decisionmaking to a halt. Cf. M a rsh v. Or. Nat. Res. Council

, 490 U.S. 360, 373 (1989) (ex plaining that requiring a supplemental EI S every time new i n f o r m a t i o n i s a v a i l a b l e “ w o u l d r e n d e r a g e n c y decisionmaking intractable”); Grand Canyon Trust
, 691 F .3d
at 1022 (noting it would be n either prag matic nor realistic to require an ag ency to prepare an EI S w h e n i t e ng ag es in “routine and required annual reporting ”).I D A H O C O N S E R

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2. Pet i t i o ner claims the EA arbitrarily concludes that flex ible winter operations w ill have only an i ncremental impact on the spr ea d o f the flowering rush, an invasive species that was disco v ered around L a ke Pend Oreille in 2008. B ecaus e the decision adopting flex ible winter operations doesn’t trig g er NEPA’s requirement to publish an EI S, this and Petitioner’s other challeng es to the EA’s finding of no sig nificant impact are moot. See Upper Snake River
, 921 F .2d at 234.

Petitioner also a

rg ue s i n passing that, because the flowering r

ush has never been co n s i dered in a N EPA document, “B PA a

r bitrarily limited its analy sis of f lowering rush impacts t o only the incremental impacts attributable to the new winter flu c t u ations; B PA n ever considered the sig nificance of the spread of flowering rush in relation to the Dam’s y e ar-round operation.” Ag e n cies have a continuing duty to “ prepare supplements to

. . . f i n al environmental i m p a c t s t at em en t s ” i f t h e r e a r e “ s i g n i f i c a n t n e w

c i r cumstances or information relevant to environmental concerns” that were n o t c o n sidered in an earlier EI S. 40 C.F .R. § 1502.9(c)(1); Marsh

, 490 U.S. at 372–74. The relevant EI S in this case is the 19 9 5 C o lumbia River Power Sy stem Operation Review Environmental I mpact Statement (SOR EI S), a progr a mmatic EI S that evaluated a rang e o f alternative manag ement strateg ies for the 14 federal dams a nd

r eservoirs in the Columbia River Power Sy stem. T h e EA here acknowledg es that the SOR E I S did not consider the effect of the dam’s operation on the flowering rush a nd characteriz es the rush’s spread as “new informati on.” I t nevertheless concludes that there are “no sig n ific an t n ew circumstances or information” warranting preparatio n of a supplemental EI S.I D A H O C O N S E R

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Petitioner may well have a colorable claim t h a t t h e ag encies manag ing the A lbeni F alls Da m must supplement
t h e SOR EI S with an analy sis of how y ear-round d a m operations, a s compare d w ith f lex ible winter operations specifically

, affect the “seem i n g l y inevitable spread o f this invasive species.” B ut t h is q uestion is outside the scope o f this case; Petitioner soug ht review of “the final d e c i sion

. . . adopting the ‘F lex ible W int e r Power Operations’ at Albeni F alls D am.” Petitioner’s opening bri e f similarly f rames the issue as whether B PA violated NEPA by “approving the new winter operations w ithout preparing an up-to-da t e E I S” a nd concludes by asking us to “reverse a n d remand the

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a pproving the F lex ible W inter Operations.” Petitioner only mentions in a foo t n ote that B PA mig ht need to prepare a supplemental E I S addressing the impact of y ear-round d am operations on the flowering r u s h

. W e do not “ordinarily consider matters o n appeal that are n ot specifically a nd distinctly arg ued” in an opening brief, L a b o a v. Calderon

, 224 F

. 3d 972, 985 (9th Cir. 2000), including those raised only i n a footnote, see id. at 985 n.8. A later ag ency dec i s i o n o r action may provide Petitioner occasion t o challeng e B PA’s failure to prepare a supplemental EI S addres sing the flowering rush. B ut the time has passed to do so as part of a challeng e to this EA.

W e address Petitioner’s remaining c laims in a memorandum disposition filed concurrently herewith.

DENIED

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