A Pipeline, A North Dakota Community’s Water, and the End of a NEPA Saga?

This pipeline will be carrying water—and what else?

Unless you’re one of the 80K+ residents of northern North Dakota who’s been waiting on this project, you’d be forgiven for thinking we mean that other pipeline that got hung up on NEPA. This pipeline is a straw moving water from one watershed (the Missouri River basin) to another (the Hudson Bay basin). The proposal was to take about 3.5 billion gallons of water annually to quench a growing thirst in places like Minot, ND (pop. 48K) – a thirst that is gradually worsening as that area’s ground water supplies dry up and toxify. This post unpacks the tale and unwinds the NEPA cases it spawned.

Interbasin Transfers Are Never Cheap or Easy—But They Might Beat the Alternatives

As Minot’s water situation worsened, the Safe Drinking Water Act was going to force its hand. As the aquifers on which it relied receded, arsenic and other metals’ concentrations were rising.  Eventually, that water wouldn’t be SDWA compliant. Total filtration of the local Souris River would be expensive. So North Dakota and the US Bureau of Reclamation came up with a plan: pipe a (relatively) modest annual sip of water from the enormous Missouri River system north, blend it with the native supplies after treating it for any residual biota, and . . . it’d be cheaper than solving the problem within the watershed. Therein lay the questions, though: what would be the effect on the environment of transferring billions of gallons of water from one side of the Laurentian Divide to the other? The two basins have been divided for at least 10K years.

Enter the Province of Manitoba which, along with some friends like the State of Missouri, sued in 2005. Manitoba alleged that the Bureau of Reclamation was required to prepare an Environmental Impact Statement (EIS), specifically with a focus on the straw’s likely introduction of nonnative (and invasive) species to the Hudson Bay watershed. The district court agreed and essentially ordered that EIS in 2005. See Gov’t Province of Manitoba v. Norton, 398 F. Supp.2d 41 (D.D.C. 2005). “The parties agree[d],” after all: “such a transfer could have catastrophic consequences.” Id. at 47. Transfer the wrong microorganisms, for example, and whole fish species and the relationships in which they’re embedded could be abruptly wiped out.  Just ask Great Lakes’ communities how they’re doing with all of the invasive biota people have introduced into that system.

Interbasin Transfers: Troubles on Both Ends?

Map of NAWS Project

To the neutral observer, this much was obvious. North Dakota and the Bureau both agreed they would have to disinfect the water from the beginning. The dispute grew into how to do so, how much it would cost to do so perfectly, how much risk would attend doing so on the cheap, etc. One big wrinkle became the side effects—for drinking water purposes—of disinfection. Disinfection’s residues become their own public health risks (hence the plan to blend the supplies). US EPA’s comments on the various NEPA drafts made it clear that treatment options were, pursuant to the SDWA, constrained.

Another wrinkle became the effects on Lake Sakakawea—the reservoir on the Missouri River where the straw would be—and projected changes on the river (more “turbidity”) as climate change progresses. Missouri filed a separate challenge in 2009 alleging that the completed EIS failed to consider adequately the “cumulative effects” of the withdrawals on the Missouri River system.

So back and forth they went: one with a new or supplemented impact statement and treatment plans, the other with a sympathetic district judge that insisted the NEPA process be completed properly. See Gov’t Province of Manitoba v. Salazar, 691 F. Supp.2d 37, 51 (D.D.C. 2010); Gov’t Province of Manitoba v. Zinke, 849 F.3d 1111, 1117 (D.C. Cir. 2017).

At least as to NEPA, things seem to have come to closure just this week. The Bureau’s document archive is here.

A Court of Appeals Intervenes

When North Dakota’s motion to amend the 2005 injunction came up for review in 2016, the context had shifted. Flint had happened. The fight over Standing Rock Sioux Indian waters (on the Missouri River) had made national headlines. The arsenic concentrations in Minot’s water supply were worsening. And it had been decades since the plan to move water to northern North Dakota had been hatched.

Perhaps most importantly, the district court’s 2005 injunction had permitted construction to proceed. By 2017, most of the pipeline had been built. So when the district court denied North Dakota’s motion to lift the injunction, the Court of Appeals heard the plea of a rural community in need of water. The D.C. Circuit’s opinion in March was unequivocal:

For at least twenty years, North Dakota and the [U.S] Bureau of Reclamation . . . have attempted to design and construct . . . a project designed to ameliorate North Dakota’s longstanding difficulties in obtaining sufficient quantities of high-quality drinking water.

Gov’t Province of Manitoba, 849 F.3d at 1114.

With that, after noting that the Northwest Area Water Supply Project (NAWS to its friends) would cost an estimated $145 million to build, the D.C. Circuit Court of Appeals (per soon to retire) Judge Janice Rogers Brown, pushed aside the district court’s 2005 injunction, remanding the motion so that it could, in sound exercise of its discretion, reconsider whether the NAWS plan had finally, in a decade of public process involving an environmental assessment, an EIS, and a supplemental EIS with a record of decision, been fully analyzed. That was in March. On August 10th, the district court’s response was noticeably more subdued.

Be Careful What You Ask For?

Manitoba began its campaign against NAWS by insisting that disinfection at the point of origin (in the Missouri Basin) was essential. When NAWS’ backers finally came to that conclusion in the 2015 SEIS & Record of Decision (ROD), the tune grew a bit more nuanced, focusing on the relative efficiencies of different filtration and disinfection configurations. But after the Court of Appeals’ remand on the injunction in March, this spelled it out to the district court: “this Court’s work is done because the Bureau of Reclamation has finally done its work. The policy debate is legitimate and has strong advocates on each side but it cannot be decided by a court.” Gov’t Province of Manitoba v. Zinke, 2017 WL 3437658 at *1 (D.D.C. 2017).

It is worth reflecting on this saga, however, given the changes in the plan that were forced and the residual risks the Hudson Bay watershed will face with an operational NAWS. As the district court found, NAWS’ backers proceeded through their decade-long NEPA process intent on the outcome from the beginning: bring water over the divide. Did that render the NEPA “hard look” at alternatives and at more granular information about the risks and benefits pointless? Hardly. And it didn’t have to take a decade.  As the district court traced in detail in its opinion this week, the Interior Department can take much of the blame for that. Most of its NEPA steps were taken only after long pauses having nothing to do with NEPA—indicating other considerations operating off the record.

So too with the line between a “hard look” at the plan and alternatives and the discretion to choose the ultimate course of action. “[T]he fact that [the Bureau of] Reclamation started with a preference for the outcome does not require rejection of its 2015 SEIS and ROD, as long as those documents demonstrate the full consideration of environmental consequences and avoidance of those consequences, as mandated by the law.” Gov’t Province of Manitoba, 2017 WL 3437658, at *12. The court then lifted the injunction. Id. at *17. If the procedure itself fulfilled NEPA, there’s no ‘probing the mind of the administrator,’ to echo an old administrative law chestnut.

Beyond the process values the NEPA drafts, commenting, and finalization elevated here, what real value did our National Environmental Policy Act add? Surely having the 2015 SEIS ROD imparts a certain formality to the mitigation planning that can help it weather (1) personnel changes, (2) later, unforeseen contingencies (fiscal or otherwise), and/or (3) new information tending to undermine the premises of the original idea. NEPA has a tendency to sober everyone up to confront, first and foremost, the fact that there is a problem—there is a risk or risk set that must be handled which is going to burden some people and not others.

And there is no doubt that U.S. District Judge Collyer’s presence in the NAWS saga brought the risks of inter-basin invasive species transfers front and center in that decision-making. With most of the receiving watershed in Canada, we might reasonably surmise that North Dakota and Interior Department officials would be predisposed to discount those risks faced by, well, Canadians. And that would not only be insensitive. It would be risky. Canada and the US share several vitally important watersheds and reciprocity in their respective duties of care toward those watersheds is in everyone’s best interest.

Finally, there may be more of a NEPA parallel in the pipeline saga just south of NAWS, still in progress at the Standing Rock Sioux Tribe’s Lake Oahe water intakes, than the accidents of physical proximity. In the SRST’s case, the essence of the dispute is what one group thinks has been the cavalier attitude toward environmental risks they will bear and the judiciary’s place in sorting out who’s being responsible and who’s not. NEPA offers those judges a path to discharging that duty without first having to cast off their judicial robes and dive into the political mess it so often governs. That is worth pausing for and protecting in its own right.

{Image: Perth/Kalgoorlie Water Supply Pipeline, Western Australia © Wikimedia Commons}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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