Wednesday, May 21, 2014

Ninth Circuit issues decision on the fate of the Salton Sea

The latest decision in the epic battle over the Colorado River came down this week in the Ninth Circuit's ruling on California ex rel. Imperial County Air Pollution Control Dist. v. U.S. Dept. of Int., 12-55856, 2014 WL 2038234 (9th Cir. 2014).  From the opinion:

The Salton Sea—the largest inland body of water in California—is a creature of accident. In 1905, water from the Colorado River breached an irrigation canal and flooded the then-dry Salton Basin. After the initial flood, irrigation runoff from the Imperial and Coachella Valleys—supplied by the Colorado River—sustained the Sea for more than a century. The Sea has become a unique attraction for water-based recreation in the harsh southern California desert.

The Sea's continued access to Colorado River water is in jeopardy. Over the last few decades Arizona and Nevada began to claim their full entitlements to the stream. California, which has long used more than its share, has been required to conserve. The affected California water districts ultimately agreed to transfer some Colorado River water from the Imperial Valley to urban areas in southern California. The Secretary of the Interior—who controls the delivery of River water—prepared an environmental impact statement (“EIS”), which, among other things, analyzed the effect of these agreements on the Salton Sea. Despite noting some potentially serious environmental consequences, the Secretary eventually approved the agreements and implemented a new water delivery schedule.
Plaintiffs Imperial County and the Imperial County Air Pollution Control District (the “Air District”) then sued the Secretary, claiming that the EIS did not comply with either the National Environmental Policy Act (“NEPA”) or the Clean Air Act (“CAA”). The Imperial Irrigation District (“Imperial Irrigation”), San Diego County Water Authority (“San Diego Water”), Coachella Valley Water District (“Coachella”), and Metropolitan Water District of Southern California (“Metropolitan”), parties to the transfer agreements, intervened as defendants. The district court granted summary judgment to the defendants, finding that neither plaintiff had standing to sue. We disagree as to standing, but nonetheless affirm the judgment, because the district court correctly found in the alternative that the Secretary did not violate NEPA; the record below also makes plain that the Secretary did not violate the CAA.

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