Court Upholds Issuance of Special Use Permit for City Utility

A court recently upheld a Forest Service decision to issue a special use permit which allowed a city to replace a water diversion pipe in a creek running through the city.

The plaintiffs argued that the Forest Service failed to take into account that the amount of water diverted may grow in the future, but the court held that the agency did not need to address potential growth “if the project is exclusively intended to serve a much more limited need.”  The court further held that the Forest Service was not required to analyze, as a potential cumulative impact, the effect of diverting more water should the city seek to do so in the future because that was speculative, noting that the National Environmental Policy Act does not require a “crystal ball” inquiry.  The court also noted that, while the plaintiffs’ experts had a different approach to analyzing climate change, the court was not required to resolve disagreements among various scientists.  As long as the agency’s experts had completed a sufficient analysis, the agency would prevail.