Missouri River Injunction Still in Effect

(CN) - A federal judge advanced part of a controversial water diversion plan, but continued a 2005 injunction that prohibits the project from fully proceeding.

Click here to read Courthouse News' Environmental Law Review.

The Northwest Area Water Supply (NAWS) project is designed to bring several billion gallons of Missouri River water across the continental divide into the Hudson Bay in Canada and into homes in North Dakota.

In the face of a consolidated lawsuit from Missouri and the province of Manitoba, a federal judge issued an injunction in 2005 pending a full environmental impact study.

Missouri claims that the plan would damage transportation, shipping, agriculture and other industries, while the Manitoba claiming that the project fails to consider the risks of transferring fish and other microscopic organisms into the Hudson Bay Basin.

In October 2012, both parties filed a joint status report with the Washington, D.C., court in which they claimed that construction proposed for the project this year could impact the environmental impact study (EIS), violating the National Environmental Policy Act (NEPA).

U.S. District Judge Rosemary Collyer ruled that North Dakota can proceed with a treatment plant upgrade but banned any new pipeline construction from the Department of Interior's Bureau of Reclamation, pending completion of the study.

"North Dakota has been an impatient participant," Collyer wrote. "It now reminds the court most vociferously that NEPA is merely a procedural statute that only requires certain analyses before a project may proceed. While the court well appreciates - and shares - the state's impatience, it is wrongly directed towards any but Reclamation which has not yet fulfilled its statutory duty. Properly understood, NEPA requires an environmental analysis of the full consequences of a large federal project - with the inevitable, and necessary, possibility that those consequences will result in a no-project determination. Not having received any semblance of a full EIS on NAWS, the Court has no opinion on the validity of future analyses or whether, with full analyses, NAWS should or should not proceed. The court's duty, however, is to ensure that a no-go option receives the complete consideration it requires without undue influence from North Dakota's impatience.

"This conclusion is especially pertinent now that the state of Missouri has complained that the reduction of upstream water from the Missouri River, as required by the NAWS design, will have deleterious environmental impacts downstream in Missouri. While the case brought by Manitoba focused on water treatment, the addition of the state of Missouri adds the fundamental question of the water source for NAWS.

"The purpose of the court's injunction in April 2005 was to fashion 'a more tailored remedy ... that permits the project to move forward in 2005 while preserving the opportunity for sound decision-making under NEPA,'" Collyer added (ellipses in original). "While none of us expected the NEPA process to take so long, the court's purpose remains identical today. When it authorized limited construction in 2005, the court also ordered that '[b]efore any other NAWS construction may proceed, the government must return to the court to demonstrate why the proposed additional construction would not influence or alter the agency's ability to choose between water treatment options.' ... Federal defendants are advised that this injunction remains in place and the status of construction cannot influence or alter the choice between water treatment options."

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