State of Missouri, ex rel. Attorney General Andrew Bailey v. United States Department of Interior, Bureau of Reclamation

United States Court of Appeals
For the Eighth Circuit
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No. 21-3408
___________________________
State of Missouri, ex rel. Attorney General Andrew Bailey
Plaintiff - Appellant
v.
United States Department of Interior, Bureau of Reclamation; United States Army
Corps of Engineers; Debra Haaland, Secretary of the Interior, in her official
capacity; M. Camille Calimlim Touton, Bureau of Reclamation Commissioner,
in her official capacity; Christine Wormuth, Secretary of the Army, in her official
capacity; Brigadier General Geoff Van Epps, Northwest Division Commander,
in his official capacity; Joseph E. Hall, Bureau of Reclamation Dakotas Area
Manager, in his official capacity; Brent C. Esplin, Bureau of Reclamation Missouri
Basin Regional Director, in his official capacity; North Dakota Garrison Diversion
Conservancy District; State of North Dakota1
Defendants - Appellees
____________
Appeal from United States District Court
for the Western District of Missouri
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Submitted: November 16, 2022
Filed: July 10, 2023
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1 Andrew Bailey has been elected to the Office of Missouri Attorney General,
and Debra Haaland, M. Camille Calimlim Touton, Christine Wormuth, and
Brigadier General Geoff Van Epps, have been appointed to serve in their respective
capacities, and they are substituted as parties pursuant to Federal Rule of Appellate
Procedure 43(c).

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Before COLLOTON, SHEPHERD, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
In September 2018, the United States Department of the Interior, Bureau of
Reclamation (“the Bureau”) decided to move forward with a water project in North
Dakota. The State of Missouri challenged the decision under the Administrative
Procedure Act (“APA”), 5 U.S.C. §§ 701–706, the National Environmental Policy
Act (“NEPA”), 42 U.S.C. §§ 4321–4347, and the Water Supply Act of 1958 (“Water
Supply Act”), 43 U.S.C. § 390b. The district court2 granted summary judgment in
favor of the Defendants. We affirm.
I. Background
The project at the heart of this dispute is the Central North Dakota Water
Supply Project. Under the proposed action, the Bureau would enter into a contract
with Garrison Diversion Conservancy District to provide Garrison Diversion with
access to a certain amount of water. Garrison Diversion is a North Dakota
“governmental agency, body politic and corporate.” N.D. Cent. Code § 61-24-02.
It was established by the state’s legislature to make Missouri River water available
for various uses in North Dakota. See id. § 61-24-01.
Consistent with this mandate, Garrison Diversion is developing water supply
projects in central and eastern North Dakota. Although the main project at issue in
this appeal is the Central North Dakota Project, it is not the only project we need to
discuss. The state-sponsored Red River Valley Water Supply Project is also
relevant. We begin first with details about the Central North Dakota Project before
2 The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

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turning to the Red River Valley Project. And lastly, we discuss the relevant portions
of the Bureau’s findings from the administrative record.
A. Water Supply Projects
The Central North Dakota Project began with Garrison Diversion’s request
for twenty cubic feet per second (“cfs”) of water from the McClusky Canal
(approximately 14,489 acre-feet of water per year). McClusky Canal is in central
North Dakota. It originates at Lake Audubon, which is fed by water pumped from
Lake Sakakawea. Lake Sakakawea is a Missouri River mainstem impoundment
constructed by a dam on the river, and it is regulated by the Army Corps of Engineers
(the “Corps”). Lake Audubon is a “sub-impoundment” of Lake Sakakawea and is
regulated by the Bureau.
Under the proposed action, Garrison Diversion would divert water from the
McClusky Canal to the Red River Valley Project’s main transmission pipeline. The
required facilities include an intake on the McClusky Canal, a “wet well,” a pump
station, and a six-mile pipeline connecting the canal with the Red River Valley
Project.3 To facilitate Garrison Diversion’s request, the Bureau proposed:
(1) entering into a forty-year water service contract with Garrison Diversion for
twenty cfs of water; (2) approving authorization of the Pick-Sloan Missouri Basin
Program preference power contract with Garrison Diversion; and (3) issuing the
necessary permits for Garrison Diversion’s use of the Bureau’s land, including a
twenty-five-year special use permit for the pipeline and other required facilities.
Now we turn to the Red River Valley Project. This project began as a
statutorily authorized federal project. See Dakota Water Resources Act of 2000,
Pub. L. 106–554, § 608(b), 114 Stat. 2763A–281, 287. Pursuant to the statute’s
requirements, the Bureau completed an environmental impact statement (“EIS”) for
the project in 2007, but the necessary federal authorization was never finalized.
3 Only 0.10 miles of the pipeline would be on the Bureau’s land.

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Instead, North Dakota decided to independently pursue a separate, but similar,
state-sponsored project under the same name. One change was that the project
increased in volume from 122 cfs to 165 cfs.
The state-sponsored project is planned and coordinated by Garrison
Diversion, and the Bureau maintains that it will be completed without the approval
or involvement of the Bureau. Its purpose is to provide water from the Missouri
River to central and eastern North Dakota during times of water scarcity. The main
transmission pipeline will travel west to east and transport water across the
continental divide from the Missouri River Basin into the Hudson Bay Basin. This
is known as an “inter-basin transfer,” and the administrative record suggests such a
transfer could implicate the 1909 Boundary Waters Treaty between the United States
and Canada.
B. Administrative Reports
The Bureau issued the Environmental Assessment for the Central North
Dakota Project in July 2018 and a Finding of No Significant Impact in September
2018. Two parts of the Environmental Assessment that are particularly relevant are
the Bureau’s analysis of Missouri River depletions and its explanation for why the
Central North Dakota Project does not involve an inter-basin transfer. We first
provide a brief overview of the Environmental Assessment findings before
discussing the Bureau’s Finding of No Significant Impact.
For its Missouri River depletions analysis, the Bureau determined it was
“sufficient and appropriate” to rely on a 2013 study conducted for the Northwest
Area Water Supply Project and an accompanying supplemental EIS. According to
the Bureau, the final cumulative effects report for the Northwest Area Project was
“the most recent and comprehensive analysis of its kind within the Missouri River
Basin and included historic, existing and reasonably foreseeable future actions . . . .”
In addition, the Bureau updated the reasonably foreseeable actions list by including

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the state-sponsored Red River Valley Project and taking into account the project’s
increase in volume from 122 cfs to 165 cfs.
The Bureau found “the net change in the volume of . . . future action
depletions is nearly zero.” Thus, the Bureau determined it was “reasonable to
conclude that the potential impacts of the [Central North Dakota Project] on the
Missouri River Mainstem System would be very similar to the potential impacts
disclosed in the [Northwest Area Project Supplemental EIS] and those impacts were
negligible.” The Bureau also observed the Central North Dakota Project would
increase annual depletions of the Missouri River above Garrison Dam by about one-
fifth of one percent and “the effects on reservoir levels and dam releases would likely
not be measurable.”
The Bureau has maintained that the Central North Dakota Project will not
have “inter-basin impacts.” To support this conclusion, the Bureau relied on two
primary features of the project. The first feature is that Garrison Diversion requested
the water for use only within the Missouri River Basin. Indeed, the proposed
contract between the Bureau and Garrison Diversion will include a condition to that
effect. The second feature is its proposed infrastructure. Technology at the canal
intake pump station will adjust the withdrawal rate to match the delivery need within
the basin, and “flow meter[s] and control valve[s]” will be used “to monitor and
regulate the flow leaving the” Red River Valley pipeline. According to the Bureau,
this technology ensures no more water will be withdrawn from the canal than is
actually used in the Missouri River Basin.
After completing the Environmental Assessment, the Bureau issued a Finding
of No Significant Impact, considering the project’s context and intensity consistent
with the factor-based analysis in 40 C.F.R. § 1508.27 (2018). The Bureau stated the
Central North Dakota Project had “no predicted long-term effects” and “no
significant effects on public health or safety.” Construction of the facilities at the
McClusky Canal would permanently impact approximately 0.20 acres of land, and
construction impacts from the six-mile pipeline would be temporary. In addition,

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the Bureau did not identify effects on the quality of the human environment that
could be “considered highly controversial.” Nor were there effects on the human
environment that could be considered “highly uncertain or to involve unique or
unknown risks.”
The Bureau decided to move forward with the Central North Dakota Project
and enter into a water service contract with Garrison Diversion. The State of
Missouri sued various federal and state entities and officials under the APA, 5 U.S.C.
§§ 701–706. Missouri alleged the Bureau violated NEPA, 42 U.S.C. §§ 4321–4347,
and the Water Supply Act, 43 U.S.C. § 390b. The State of North Dakota intervened
as a defendant. The parties filed cross-motions for summary judgment. The district
court denied Missouri’s motion and granted the Defendants’ cross-motion as to each
count. Missouri appeals.
II. Analysis
On appeal, Missouri asserts the district court erred by granting summary
judgment in favor of the Defendants and that it should have instead granted summary
judgment in Missouri’s favor. “We review the district court’s summary judgment
decision de novo, applying the same standards that the district court employed.”
Sierra Club v. Kimbell, 623 F.3d 549, 558 (8th Cir. 2010). “The court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
The parties agree the APA is the appropriate vehicle for Missouri to obtain
review of the Bureau’s action under NEPA and the Water Supply Act. See Sierra
Club, 623 F.3d at 558–59 (applying the APA to review a claim under NEPA); In re
ACF Basin Water Litig., 554 F. Supp. 3d 1282, 1294–95, 1299–1301 (N.D. Ga.
2021) (applying the APA to review a claim under the Water Supply Act). When a
court reviews an agency’s action under the APA, it will not set that action aside
unless the challenger can show the action is “arbitrary, capricious, an abuse of

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discretion, or otherwise not in accordance with law.” Sierra Club, 623 F.3d at 559
(quoting 5 U.S.C. § 706(2)(A)); South Dakota v. U.S. Dep’t of Interior, 423 F.3d
790, 800 (8th Cir. 2005) (burden of proof rests with the plaintiff).
An agency action is arbitrary and capricious if:
the agency has relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.
Cent. S.D. Co-op Grazing Dist. v. Sec’y of U.S. Dep’t of Agric., 266 F.3d 889, 894
(8th Cir. 2001) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983)).
A. Water Supply Act
Missouri first argues the Bureau violated the Water Supply Act when it
decided to move forward with the Central North Dakota Project without first getting
approval from Congress. The Water Supply Act clarifies that federal water
infrastructure may be used to assist states and local interests in developing domestic,
municipal, and industrial water supplies. See 43 U.S.C. § 390b(a). To carry out that
policy, the Water Supply Act “provided that storage may be included in any reservoir
project surveyed, planned, constructed, or to be planned, surveyed and/or
constructed by the Corps of Engineers or the Bureau of Reclamation to impound
water for present or anticipated future demand or need for municipal or industrial
water . . . .” Id. § 390b(b).
The Water Supply Act has an important limitation, though. Congressional
approval is required for certain modifications of reservoir projects. Subsection (e)
states:

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Modifications of a reservoir project heretofore authorized, surveyed,
planned, or constructed to include storage as provided in subsection (b)
which would seriously affect the purposes for which the project was
authorized, surveyed, planned, or constructed, or which would involve
major structural or operational changes shall be made only upon the
approval of Congress as now provided by law.
Id. § 390b(e).
In Missouri’s view, the Central North Dakota Project involves a change to a
reservoir project that “would seriously affect the purposes” of the Missouri River
Mainstem Reservoir System; therefore, the statute required the Bureau to consult
Congress before moving forward with the project. The Defendants respond that they
had adequate project-specific authorization under the Garrison Diversion Unit Act
of 1965, Pub. L. 89–108, 79 Stat. 433, as first amended by the Garrison Diversion
Unit Reformulation Act of 1986, Pub. L. 99–294, 100 Stat. 418, and then later
amended by the Dakota Water Resources Act of 2000, Pub. L. 106–554, 114 Stat.
2763A–281 (collectively, the “Garrison Diversion Act”).
Missouri’s first rebuttal to the Defendants’ argument is that the Bureau’s
authority to enter into the water service contract is irrelevant to whether the Bureau
needed to obtain Congressional approval under the Water Supply Act. This line of
reasoning begins from the premise that the Water Supply Act’s requirements are
free-standing from other federal laws. This premise is flawed. Subsection (e) of the
Water Supply Act requires an agency to obtain Congressional approval for certain
“modifications of a reservoir project heretofore authorized, surveyed, planned, or
constructed to include storage . . . .” See 43 U.S.C. § 390b(e). There is no
requirement that water storage be authorized specifically under the Water Supply
Act itself. Simply put, Congressional approval is Congressional approval. If the
Bureau and the other defendants had sufficient project-specific authorization, they
need not seek additional approval again under the Water Supply Act.

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Missouri’s second rebuttal is that the Garrison Diversion Act does not provide
the Bureau adequate authority. We understand Sections 1 and 8 of the Garrison
Diversion Act to be the primary relevant sections. Section 1(a)(2) states that one of
Congress’s purposes was to “meet the water needs within the State of North Dakota,
including municipal, rural and industrial water needs, as identified in the Garrison
Diversion Unit Commission Final Report.” Garrison Diversion Unit Reformulation
Act of 1986, Pub. L. 99–294, 100 Stat. 418, 418, amended by Dakota Water
Resources Act of 2000, Pub. L. 106–554, § 602, 114 Stat. 2763A–281, 281. Section
1(b) states the Secretary “is authorized to plan and construct, jointly with the State
of North Dakota, a multi-purpose water resource development project within the
State of North Dakota providing for irrigation, municipal, rural, and industrial water”
among other things, if those plans are “substantially in accordance with the plans set
out in the Garrison Diversion Unit Commission Final Report dated December 20,
1984, as modified by the Dakota Water Resources Act of 2000.” Id. Section 8(a)
directs the Secretary of the Interior to construct the Red River Valley Water Supply
Project. See Dakota Water Resources Act of 2000, Pub. L. 106–554 § 608(b), 114
Stat. 2763A–281, 287–89. Authorizations under Section 8 are limited to projects
that do not involve an out-of-basin transfer. See id.
Missouri points out that Congress’s purpose was not to provide the Bureau
unlimited authority to do whatever it wanted to meet the water needs of North
Dakota. Instead, as Missouri notes, the authorization is limited by the scope of the
specific final report mentioned in the Garrison Diversion Act. Furthermore,
Missouri implies Section 8 does not provide adequate authorization because
out-of-basin transfers were not authorized under that section. Although we agree
with Missouri’s observations generally, we conclude Missouri has not met its burden
to show the Bureau’s reliance on the Garrison Diversion Act was erroneous here.
See South Dakota, 423 F.3d at 800 (placing burden of proof on the plaintiff).
First, Missouri has not shown the Central North Dakota Project is outside the
scope of the 1984 Garrison Diversion Final Report. Second, Missouri’s only
argument that the Central North Dakota Project involves an out-of-basin transfer is

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to point to its connection with the Red River Valley Project’s main transmission
pipeline. Missouri has not, however, attempted to explain why the conditions in the
contract and the technology associated with the project—“flow meter[s] and control
valve[s]” that “monitor and regulate the flow leaving the” Red River Valley
pipeline—will not prevent an out-of-basin transfer. Cent. S.D. Co-op. Grazing Dist.,
266 F.3d at 894–95 (providing that if “the resolution of the dispute involves
primarily issues of fact and analysis of the relevant information ‘requires a high level
of technical expertise, we must defer to the informed discretion of the responsible
federal agencies’”) (quoting Friends of the Boundary Waters Wilderness v.
Dombeck, 164 F.3d 1115, 1128 (8th Cir. 1999)). Without more, we are unable to
conclude the Bureau’s action was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A).
B. National Environmental Policy Act
Next, Missouri argues the Bureau did not comply with NEPA, 42 U.S.C.
§§ 4321–4347. “NEPA does not establish rules governing the substantive content
of” federal water plans. See Sierra Club, 623 F.3d at 559. “Instead, NEPA’s
mandate ‘is essentially procedural.’” Id. (quoting Vt. Yankee Nuclear Power Corp.
v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)); see also Wise v. Dep’t of
Transp., 943 F.3d 1161, 1163 (8th Cir. 2019) (“NEPA itself does not mandate
particular results, but simply prescribes the necessary process.” (quoting Robertson
v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)).
NEPA obligates agencies “to consider every significant aspect of the
environmental impact of a proposed action” and “ensures that the agency will inform
the public that it has indeed considered environmental concerns in its
decisionmaking process.” Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462
U.S. 87, 97 (1983) (quoting Vt. Yankee, 435 U.S. at 553). It is not about preventing
“unwise” agency action—just “uninformed” action. See Robertson, 490 U.S. at 351.
For that reason, so long as an “agency take[s] a ‘hard look’ at the environmental
consequences before taking a major action,” NEPA is not violated, even if the

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agency action could have a harmful environmental impact. Sierra Club, 623 F.3d at
559 (quoting Balt. Gas & Elec., 462 U.S. at 97).
1. Environmental Impact Statement
Missouri argues the Bureau should have issued an EIS for the Central North
Dakota Project. An EIS serves as “the primary procedural vehicle” to ensure an
agency takes a “hard look” at an action’s environmental consequences. Id. (citing
42 U.S.C. § 4332). However, “[i]f an agency takes a ‘hard look’ and determines that
the proposed action has no ‘significant’ environmental impact, an EIS is
unnecessary.” Heartwood, Inc. v. U.S. Forest Serv., 380 F.3d 428, 431 (8th Cir.
2004). A “hard look” in this context, means “identify[ing] the ‘relevant areas of
environmental concern,’ mak[ing] a ‘convincing case that the impact was
insignificant,’ and, if the impact is determined to be significant, convincingly
establish[ing] that changes in the project will sufficiently reduce that impact.” Id.
(quoting Audubon Soc’y of Cent. Ark. v. Dailey, 977 F.2d 428, 434 (8th Cir. 1992)).
The Bureau did not issue an EIS for the Central North Dakota Project because
it found the environmental impact of the project was insignificant. Missouri argues
this was a violation of the Bureau’s obligations under NEPA. Our role then is limited
to asking whether the Bureau identified the “relevant areas of environmental
concern” and made “a convincing case” the impact of the project on the environment
really is insignificant. Id.; accord Del. Riverkeeper Network v. Fed. Energy Regul.
Comm’n, 45 F.4th 104, 113 (D.C. Cir. 2022) (“The court’s role in reviewing an
agency’s decision not to prepare an [EIS] is a limited one, designed primarily to
ensure that no arguably significant consequences have been ignored.” (internal
quotation marks omitted)).
We understand the linchpin of Missouri’s argument to be that the Bureau’s
cumulative effects analysis needed to consider the Red River Valley Project together
with the Central North Dakota Project. In Missouri’s view, to do otherwise results
in an improper segmentation of a former federal project. This argument stems from

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the federal regulation that clarifies how agencies determine the appropriate scope of
an EIS. The regulation states, “[t]o determine the scope of [an EIS], agencies shall
consider . . . [c]onnected actions, which means that they are closely related and
therefore should be discussed in the same impact statement.” 40 C.F.R.
§ 1508.25(a)(1) (2018). The D.C. Circuit has referred to this as the “connected-
actions doctrine.” See Big Bend Conservation All. v. Fed. Energy Regul. Comm’n,
896 F.3d 418, 423–24 (D.C. Cir. 2018).
The connected-actions doctrine does not compel a conclusion in Missouri’s
favor. The purpose of the doctrine is “prevent[ing] the government from segmenting
its own federal actions into separate projects and thereby failing to address the true
scope and impact of the activities that should be under consideration.” Id. at 423–
24 (emphasis added) (internal quotation marks omitted). Therefore, the “doctrine
does not require the aggregation of federal and non-federal actions.” Id. at 424. The
Red River Valley Project is a state-sponsored project that will be completed without
the Bureau’s approval or involvement. Thus, the Bureau’s decision to limit the
scope of the Environmental Assessment to the Central North Dakota Project was not
arbitrary and capricious.
Missouri also argues the Bureau should have prepared an EIS for the Central
North Dakota Project because an EIS was prepared for another North Dakota project
that involved a comparable volume of water: the Northwest Area Project. We
disagree. Although the volume of water involved is certainly a consideration of a
proposed project’s environmental impact, it is not the only consideration. As the
administrative record in this case shows, other considerations may include the
impacts on endangered species, air quality, noise, recreation, public safety,
transportation, paleontological resources, wildlife disruptions, and visual resources,
just to name a few. The agency takes all these things into account when it considers
a project’s impact on the environment. For this reason, comparison of two
projects—even two projects involving a comparable amount of water—may be
unhelpful in determining whether a project has a significant environmental impact.

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Based on the arguments presented, Missouri has not met its burden to show
the Bureau’s decision to forgo an EIS for the Central North Dakota Project was
arbitrary and capricious. The Bureau appropriately identified the “relevant areas of
environmental concern” and made “a convincing case” the impact of the project on
the environment really is insignificant. See Heartwood, 380 F.3d at 431.
2. Environmental Assessment
Next, Missouri takes issue with the Environmental Assessment the Bureau
completed for the Central North Dakota Project. Missouri argues the cumulative
effects analysis was inadequate and that the Bureau failed to adequately consider the
Central North Dakota Project’s downstream impacts. We ultimately find both
arguments unpersuasive.
An environmental assessment is a preliminary report prepared by an agency
to determine if an EIS is required by NEPA. See Del. Riverkeeper Network, 45 F.4th
at 108. Federal regulations provide that an environmental assessment shall:
“[b]riefly provide sufficient evidence and analysis for determining whether to
prepare an [EIS] or a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1)
(2018). In responding to a challenge to the substance of an environmental
assessment’s cumulative effects analysis, we have explained an environmental
assessment “will be ruled deficient only if it does not include a cumulative impact
analysis or is not tiered to an EIS that contains such an analysis.” See Ark. Wildlife
Fed’n v. U.S. Army Corps of Eng’rs, 431 F.3d 1096, 1101 (8th Cir. 2005). We
recognized, however, that tiering may not cure every defect. Id.
Missouri argues the Bureau failed to consider the cumulative effects and the
downstream impacts of the Central North Dakota Project in conjunction with the
expanded Red River Valley Project. The record does not support this claim. The
incorporated supplemental EIS from the Northwest Area Project shows the Bureau
considered the downstream impacts of depletions by taking into account historic
depletions, present level depletions, net depletions, and future water project

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depletions. Furthermore, the Environmental Assessment for the Central North
Dakota Project expressly included the state-sponsored Red River Valley Project in
the list of reasonably foreseeable actions. And it stated that it had taken into account
that the state-sponsored project had increased in volume from 122 cfs to 165 cfs.
Missouri also asks us to second-guess the Bureau’s analysis of the no-action
depletions scenario based on alleged discrepancies between the current storage
capacity of the Missouri River system and the future storage capacity in the studies,
as well as the relationship to drought cycles. But we have said, “when the resolution
of the dispute involves primarily issues of fact and analysis of the relevant
information requires a high level of technical expertise, we must defer to the
informed discretion of the responsible federal agencies.” Cent. S.D. Co-op. Grazing
Dist., 266 F.3d at 894–95 (cleaned up). Based on our careful review of the record,
we are unable to conclude the Bureau acted arbitrarily and capriciously when it
found the Central North Dakota Project’s potential impacts were “negligible.”
3. Consideration of Alternative Projects
Lastly, Missouri argues the Bureau did not take a “hard look” at the Central
North Dakota Project because it considered only one alternative to the proposed
action—a no-action alternative.4 Again, we disagree. First, the range of alternatives
the Bureau needed to consider was diminished because of its finding that the project
would have a minimal environmental effect. See id. at 897. Furthermore, the Central
North Dakota Project was, at best, of a modest size, involving just one-eighth the
water quantity of the state-sponsored Red River Valley Project and permanently
impacting less than a quarter-acre of land from the pump station and canal facilities.
In addition, the Bureau considered the project based on the request of Garrison
4 The first part of Missouri’s argument on this point is that the Bureau’s
purpose and need statement was inadequate because it did not consider the Red River
Valley Project. Because we have concluded the agency’s decision to limit its
analysis to the Central North Dakota Project was not arbitrary and capricious, this
argument is without merit.

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Diversion, which specifically sought a long-term water contract for twenty cfs.
These facts suggest a long list of alternatives was simply unnecessary. Cf. Missouri
Mining, Inc. v. I.C.C., 33 F.3d 980, 984 (8th Cir. 1994) (“The Commission did not
waive its obligation to study appropriate alternatives; rather, it merely determined
that the two [specific] proposals were the only alternatives that reasonably needed
to be evaluated.”).
Missouri also argues the Bureau should have considered a contract for a
shorter period of time, a smaller volume of water, and alternative sources of water.
We conclude these arguments were not preserved for judicial review. The Supreme
Court has indicated that objections to an environmental assessment on the basis of
failing to adequately discuss potential alternatives may be forfeited if those
alternatives were not identified during the administrative process. Dep’t of Transp.
v. Public Citizen, 541 U.S. 752, 764–65 (2004). Our careful review of the record
has not revealed any place these alternatives were identified during the
administrative process, and Missouri has not argued such alternatives were raised.
Instead, Missouri argues that considering a contract for a shorter period of time or a
smaller volume of water was so obvious they did not need to be raised below to be
preserved for judicial review. See id. at 765 (stating, “an [environmental
assessment’s] or an EIS’ flaws might be so obvious that there is no need for a
commentator to point them out specifically in order to preserve its ability to
challenge a proposed action”). For the same reasons explained above, we disagree.
The Bureau’s decision not to consider other alternatives beyond the no-action
alternative was not arbitrary and capricious.
III. Conclusion
The judgment of the district court is affirmed.
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