March 14, 2017 | EnviroStructure

Water Project Secures Appellate Win in Arduous NEPA Journey

When politicians seek to target NEPA as the primary culprit for delays in major infrastructure projects, I am consistently one of the voices urging caution. Many realities create delay, most often, the lack of funding to get large-scale projects off the ground. We know that most federal projects get through the NEPA compliance by issuance of a “categorical exclusion,” a process that can usually be concluded in a matter of a few weeks. Large scale development? No, that takes longer, but they also represent the vast minority of projects with some sort of federal nexus.

The voices seeking further NEPA reform are out in force once again, as the new Congress and the new Administration try to find ways to expedite project planning and delivery. That’s laudable, but leaders should look first to all the effective tools available to federal agencies through the FAST Act (specifically Title 41 of that Act) and many other administrative reforms championed by the last two Administrations, Republican and Democrat.

Yet every now and then, a project serves as a poster child for how NEPA and its procedural mandates can be misused by those seeking to derail desperately needed infrastructure, further fueling cries for undercutting NEPA’s mostly positive legacy. I have been involved with one such project for over a decade, and most recently, the D.C. Circuit provided a glimmer of hope for the citizens who would benefit from its final construction.

The Northwest Area Water Supply project (or “NAWS”) has been planned and in various stages of design and development for decades. The project would provide a reliable and safe drinking water source for thousands of North Dakota’s citizens who have suffered with severe water quantity and quality issues for years. The basics of the project are simple: water would be withdrawn from the Missouri River Basin, treated, and then transported via pipeline into the Hudson Bay Basin to provide a new water source for communities in and around Minot, North Dakota.

NEPA compliance began in the late 1990’s and culminated when the Bureau of Reclamation issued an environmental assessment and Finding of No Significant Impact in 2001. The Province of Manitoba, Canada, led the opposition to NAWS, primarily on the basis that water withdrawn from the Missouri River Basin and transferred to the Hudson Bay Basin had the potential to introduce invasive, microscopic biota, which could cause terrible damage in Canada. (The State of Missouri subsequently joined the fight against NAWS, opposing any withdrawal of water from the Missouri River.)

The merits of these challenges will not be re-litigated here. It’s enough to say that the agency’s first EA, and then a full, updated Environmental Impact Statement were challenged and found wanting in certain respects. A new Supplemental EIS was prepared and a Record of Decision was issued in August 2015. These documents were, of course, challenged again by Manitoba and Missouri. Through all this time, my children were born, celebrated their B’nai Mitzvot (Mazel Tov!), and made their way to college. Wonderful achievements for my kids, but still no new drinking water source for the citizens of North Dakota.

Following completion of the Supplemental EIS, the State decided to seek a modification of the pending injunction, simply to allow paper engineering work to proceed while the most recent NEPA challenge was litigated. This relief was necessary, we argued, because engineering design for the NAWS water treatment plant was complicated business and could take almost two years alone, and then would be followed by two years of construction. In other words, no water would be withdrawn from the Missouri River and no water transferred to the Hudson Bay Basin for about four years. If the State could not engage in even the engineering design, water delivery could be delayed for several years beyond that planning and construction horizon.
That request was first denied by the district court, but on March 3, the D.C. Circuit reversed that ruling and ordered the lower court to grant the State’s request to modify the injunction. The Supplemental EIS challenge is still pending, so NAWS’ final chapter is still to be written.

Oral argument before the D.C. Circuit (conducted beautifully by my former colleague Nessa Coppinger) was remarkable. Judge Harry Edwards got to the heart of the debate over NEPA and how projects suffer from delay as a result of litigation like that North Dakota has defended for almost 20 years. Edwards pressed counsel for Manitoba about what harm could be suffered simply by allowing paper design work to move forward. Not satisfied by the answers he heard, the Judge said something along the lines of: “I know how this works. You’ll challenge any NEPA work done on this project for however long it takes, and it will be another decade before any work on the project can commence. Meanwhile, the people who need water won’t get any.”

It took all my self-control to not shout “Amen!” from the gallery. But Judge Edwards truly grasped the problem faced by the State as it sought to prevent what the Court called “an imminent public health crisis faced by its citizens.” NEPA must be followed, of course. But when is “enough, enough,” and when has an agency done all that it could to identify reasonably foreseeable risk? The State now has some interim relief, as it waits to see if the latest NEPA analysis passes muster.

Cases like these and North Dakota’s NAWS experience don’t help those who extol the benefits of NEPA review to produce well-considered infrastructure projects across the country. While it may be the exception to the rule, it is a disturbing enough exception to encourage the ongoing effort currently underway to further undercut NEPA’s goals of reasoned decision-making and an informed public. We can and should have both, together with prompt project planning and development. I’ll drink (good clean water) to that.