On June 21, 2016, a three-judge panel of the Ninth Circuit denied a petition for review of a decision of the Bonneville Power Administration to proceed with a change in the operation of the Albeni Falls Dam during the winter months without first preparing an environmental impact statement under the National Environmental Policy Act. Idaho Conservation League v. BPA, __ F.3d __ (9th Cir., Case No. 12-70338).

Completed in the 1950s, the Albeni Falls Dam is operated by the Army Corps of Engineers to help provide power to the Pacific Northwest. The Albeni Falls Dam straddles the Pend Oreille River, which connects Lake Pend Oreille and the Columbia River. Like other dams in the Federal Columbia River Power System, the Albeni Falls Dam is operated to balance a variety of competing objectives, such as flood control, power generation, navigation, and wildlife conservation.

Lake Pend Oreille serves as the dam’s reservoir. When water is released from the lake, it drives turbines that generate electricity, decreasing the reservoir’s depth and causing its shoreline to recede. For decades, the Corps maintained the flexibility to generate power during the winter months. In the initial winters of the dam’s operation, starting in the late 1950s, the Corps fluctuated the level of the lake to generate power as needed. In some years, however, the Corps held the lake’s level constant.

In 1995, the Corps determined that allowing the lake’s elevation to drop during the winter months had adverse effects on the kokanee salmon population and so beginning in 1997 began holding the lake’s elevation constant. In 2009, however, the BPA urged the Corps to return to a more flexible approach to winter dam management. After two years of discussions and a public comment period, the agencies confirmed in a 2011 environmental assessment that they planned to implement the BPA’s proposal.

The EA concluded that the proposed winter fluctuations will have no significant environmental impact. Accordingly, the agencies decided to implement the proposal without preparing an EIS. The Idaho Conservation League challenged the decision as a violation of NEPA and asked the Ninth Circuit (which has original jurisdiction under the Northwest Power Act, 16 U.S.C. § 839f(e)(5)) to require BPA to prepare an EIS.

NEPA only requires the preparation of an EIS when a proposed federal action is major. In particular, NEPA provides that for all “major Federal actions significantly affecting the quality of the human environment,” the agency must prepare an EIS. For purposes of NEPA, the term “[m]ajor reinforces but does not have a meaning independent of significantly.” 40 C.F.R.§ 1508.18.  Thus, where a proposed federal action would not change the status quo, an EIS is not required.

Given that the Corps fluctuated the elevation of Lake Pend Oreille in many winters prior to 1997, the question was ultimately whether holding lake levels constant from 1997 to 2011 changed the status quo.  Although the plan to hold winter lake levels constant began as a three-year test in 1995, the Ninth Circuit held that holding lake levels constant did not change the operational status quo and could not have constituted a major federal action because it was not a significant or long-term change in operating policy. Thus, reverting to flexible winter operations likewise did not change the status quo.

The Ninth Circuit also rejected the Idaho Conservation League’s contention that implementing flexible winter operations requires an EIS because the continued operation of the Albeni Falls Dam is itself a major federal action that significantly affects the human environment. Decisions made as a part of the ongoing operation of a federal project must themselves rise to the level of major federal actions to warrant preparation of an EIS. “Requiring an agency to prepare an EIS every time it takes an action consistent with past conduct would grind agency decisionmaking to a halt.”

Because the decision adopting flexible winter operations does not trigger NEPA’s requirement to publish an EIS, the Ninth Circuit held that the Idaho Conservation League’s other challenges to the EA’s finding of no significant impact are moot.


Questions? Please contact Bryan W. Wenter, AICP of Miller Starr Regalia.

For more than 50 years, Miller Starr Regalia has served as one of California’s leading real estate law firms. Miller Starr Regalia has expertise in all types of real property matters, including full-service litigation and dispute resolution, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, exactions, title insurance, environmental law, and land use.  Miller Starr Regalia attorneys also write Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  For more information, visit www.msrlegal.com.

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Photo of Bryan W. Wenter, AICP Bryan W. Wenter, AICP

Bryan W. Wenter, AICP, is a shareholder in Miller Starr Regalia’s Walnut Creek office and co-chair of the firm’s Land Use Department. For nearly 20 years, his practice has centered on land use and local government law, with a focus on obtaining…

Bryan W. Wenter, AICP, is a shareholder in Miller Starr Regalia’s Walnut Creek office and co-chair of the firm’s Land Use Department. For nearly 20 years, his practice has centered on land use and local government law, with a focus on obtaining and defending land use entitlements for a wide range of complex development projects including, in-fill, mixed-use, residential, retail/commercial, and industrial. His areas of expertise include general plans and specific plans, planned development zoning, vested rights, subdivision maps, development impact fees and exactions, conditional use permits, variances, initiatives and referenda, RLUIPA, CEQA, Ralph M. Brown Act, and Public Records Act. He previously served as City Attorney and Assistant City Attorney for the City of Walnut Creek.