Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Audubon Society of Greater Denver v. United States Army Corps of Engineers

United States District Court, D. Colorado

December 12, 2017




         This matter is before the Court on petitioner's Petition for Review of Agency Action [Docket No. 1] and Petitioner's Opening Brief for Review of Agency Action [Docket No. 49] challenging respondent's actions in approving the Chatfield Reallocation Project. Petitioner's claims arise under the federal Administrative Procedures Act (“APA”), the National Environmental Policy Act (“NEPA”), and the Clean Water Act (“CWA”). The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 5 U.S.C. § 702.

         I. BACKGROUND

         Petitioner Audubon Society of Greater Denver (“the Audubon Society”) challenges respondent United States Army Corps of Engineers' (“the Corps”) plan to reallocate 20, 600 acre-feet of water in Chatfield Reservoir from flood control to storage for municipal and industrial use. Docket No. 1.

         Chatfield Reservoir is a reservoir located in Chatfield State Park along the South Platte River southwest of Denver, Colorado. The reservoir was constructed as part of the Chatfield Dam and Lake Project, which Congress authorized in 1950. See Flood Control Act of 1950, Pub. L. No. 81-516, 64 Stat. 163, 175; R. at 036125. T he Corps began construction of the dam used to create the reservoir in 1967. R. at 036141. In 1974, the Corps leased the area to the State of Colorado to form Chatfield State Park. R. at 036142. The reservoir is surrounded by open space containing forests and rolling plains that are home to a variety of plants and wildlife. R. at 036154. Chatfield State Park has numerous recreation facilities including hiking trails, picnic areas, and boating facilities. Id.; R. at 036142.

         In 1986, Congress legislated modifications to the reservoir that authorized the Secretary of the Army (“the Secretary”), “in coordination with the Colorado Department of Natural Resources [(“CDNR”)] and upon the Chief of Engineers' finding of feasibility and economic justification, to reassign a portion of the storage space in the Chatfield Lake.” Water Resources Development Act of 1986 (“WRDA”), Pub. L. No. 99-662, § 808, 100 Stat. 4082, 4168.2. Under the W RDA, the storage space is to be reassigned “to joint flood control-conservation purposes, including storage for municipal and industrial water supply, agriculture, and recreation and fishery habitat protection and enhancement.” Id. Congress conditioned the reassignment on the non-federal participants' agreement to reimburse the Corps for the associated costs. Id. The non-federal participants are the water providers, who would supply the water to be stored in the added storage capacity and who include intervenor-respondents. See Docket No. 17; Docket No. 17-2 at 5-9; R. at 035125. In 2009, Congress authorized the CDNR to perform mitigation and modifications of the reservoir to reallocate reservoir capacity to storage space provided that the Secretary and the CDNR “determine costs to be repaid for storage that reflects the limited reliability of the resources and the capability of non-Federal interests to make use of the reallocated storage space in Chatfield Reservoir, Colorado.” Omnibus Appropriations Act of 2009, Pub. L. No. 111-8, § 116, 123 Stat. 524, 608.

         The Corps and the Colorado Water Conservation Board (“CWCB”) formed the Chatfield Reservoir storage reallocation study (“the study group”) to research possibilities for the reallocation project. R. at 036127. Beginning in 2007, the Audubon Society participated in the study group as a special technical advisor. R. at 006932.

         The study group developed objectives for the project in light of “the main problem being defined as increasing water demand in the Denver Metro area.” R. at 036153. “The purpose and need” of the project was determined to be “to increase availability of water, providing an additional average year yield of up to approximately 8, 539 acre-feet of municipal and industrial (M&I) water, sustainable over the 50-year period of analysis, in the greater Denver Metro area so that larger proportion of existing and future water needs can be met.” Id. The “average year yield” was defined as the “the average amount of water per year that the water providers (not including Hock Hocking or Parker WSD) would have been able to store in ChatfIeld during the 1942-2000 period of record (POR) if Chatfield Dam had existed during the entire POR.” Id. The project was not intended to be a comprehensive solution, but a “component in the overall effort to meet the water supply needs of the greater Denver Metro area and . . . contribute to meeting portion of those needs.” Id. Some constraints on the project were the need to avoid compromising the reservoir's original flood protection purpose, to maintain the park's recreation facilities, and to maintain the “diverse array of habitats that are important to many fish and wildlife species, including the federally-protected Preble's meadow jumping mouse.” R. at 036154; see also R. at 036176-77 (identifying various constraints “unique to the project that alternative plans should avoid”).

         The study group performed an “initial screening” of an “initial set of concepts [that] was identified based on problems and opportunities . . . to increase the water supplies for the South Platte River Basin.” R. at 036179. Applying criteria based on the purpose, need, and identified constraints, the study group narrowed a group of thirty-eight initial concepts to a set of four alternative plans (“the Alternatives”) that would be evaluated in detail. R. at 036181. The four Alternatives were:

1. No Action-Penley Reservoir combined with Gravel Pit Storage. Under the No Action Alternative flood control storage space within Chatfield Reservoir would not be reallocated to joint flood control-conservation storage (hereafter referred to as conservation or water supply storage/pool), and the operation of the reservoir would remain the same. For this alternative it was assumed the water providers would use Penley Reservoir and gravel pit storage to meet their future water needs. The water providers would newly construct Penley Reservoir and would install the infrastructure needed to convert existing gravel pits for water storage.
2. Least Cost Alternative to Chatfield Reservoir storage reallocation-NTGW[1] combined with Gravel Pit Storage. Normally the No Action Alternative is also the Least Cost Alternative. However, the water providers participating in the Chatfield Reservoir reallocation study are opposed to long-term use of NTGW due to water supply management strategies of becoming less dependent on non-renewable water supplies. For this study, it is assumed that NTGW could provide water to a significant part of upstream water providers through the 50-year planning period, and downstream water providers would be served by the development of gravel pits for water storage.
3. Reallocation to allow an additional 20, 600 acre-feet of Water Supply Storage. The 20, 600 Acre-Foot Reallocation Alternative would reallocate storage from the flood control pool to the conservation pool. The additional storage would be used for M&I water supply, agriculture, recreation, and fishery habitat protection and enhancement purposes. Under this alternative, the base elevation of the flood control pool would be raised from 5, 432 to 5, 444 feet msl[2] but the reallocation of storage for this proposal involves only the volume between 5, 432 and 5, 444 feet msl.
4. Reallocation to allow an additional 7, 700 acre-feet of Water Supply Storage combined with NTGW and Gravel Pit Storage. The 7, 700 Acre-Foot Reallocation Alternative, like Alternative 3, would reallocate storage from the flood control pool to the conservation pool for multiple purposes. Again the additional storage would be used for M&I water supply, agriculture, recreation and fishery habitat protection and enhancement purposes. Because the average year yield from Chatfield Reservoir storage reallocation for Alternative 4 is less than the average year yield for Alternative 3, additional water supply sources (NTGW and downstream gravel pit storage) are also included in Alternative 4 so that the total average year yield equals 8, 539 acre feet, but the reallocation of storage for this proposal involves only the volume between 5, 432 and 5, 437 feet msl.

R. at 036132-036133.

         In July 2013, the Corps issued its Final Integrated Feasibility Report/Environmental Impact Statement (“FR/EIS”) and invited public comment. R. at 036105. The Corps selected Alternative 3, reallocation of 20, 600 acre-feet of reservoir capacity to storage, “because it is the alternative that minimizes the cost of supplying water, ” R. at 036557, and because it “would fully meet the purpose of and need for the project, which is to increase the availability of water sustainable over the 50-year period of analysis, in the greater Denver Metro area so that larger proportion of existing and future water needs can be met.” R. at 036567.[3]

         Because Alternative 3 raises the maximum water level of the reservoir by twelve feet, areas along the previous shoreline will be submerged. R. at 036567. Trees and large plants in the newly flooded areas would be removed before the water level is increased because they would pose a hazard to boats if they were left behind. R. at 036374, 036429. Additionally, recreation facilities set to be submerged would be removed and rebuilt at higher elevations. R. at 036568. This relocation of recreational facilities would require some dredging and result in a discharge of fill material into the reservoir. R. at 036569. The increase in water levels is expected to “primarily result in greater and more frequent reservoir pool fluctuations at Chatfield Reservoir, ” i.e., that the elevation of the reservoir's surface will vary more widely than before. R. at 036105. This is expected to lead to a reduced recreational enjoyment of the park because the “unvegetated shoreline, ” as it is called in the FR/EIS, or “unappealing and unusable mudflats, ” as it referred to by petitioner, will be visible more often. R. at 036549; Docket No. 49 at 16.

         Alternative 3 includes a compensatory mitigation plan that provides for environmental mitigation within the park and at off-site locations by, for example, protecting additional habitat and planting trees. R. at 036570, 036573-84. The Corps found that the impacts to environmental resources will be “fully compensated” by the proposed mitigation. R. at 036573. In a separate analysis, contained in Appendix W to the FR/EIS, the Corps determined that Alternative 3 complied with Section 404 of the CWA. R. at 038956-86. The Corps found that the “discharges and impacts to waters of the U.S. including wetlands of these reasonably foreseeable actions are minor and when combined with discharge of dredge and fill material for the relocation of recreation facilities and environmental mitigation would have minor cumulative effects on the aquatic ecosystem of Chatfield Reservoir and its watershed.” R. at 038978

         On May 24, 2014, the Corps issued a Record of Decision (“ROD”) formally approving its selection of Alternative 3 as the plan for the project going forward. R. at 041875-76.


         Pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., the Court must determine whether an agency action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of this review is narrow. See Colo. Wild, Heartwood v. U.S. Forest Service, 435 F.3d 1204, 1213 (10th Cir. 2006) (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). “An agency's decision is arbitrary and capricious if the agency (1) ‘entirely failed to consider an important aspect of the problem, ' (2) ‘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, ' (3) ‘failed to base its decision on consideration of the relevant factors, ' or (4) made ‘a clear error of judgment.'” New Mexico ex rel. Richardson v. Bureau of Land Management, 565 F.3d 683, 704 (10th Cir. 2009) (citation omitted). When reviewing an agency's factual determinations, the Court “ask[s] only whether the agency took a ‘hard look' at information relevant to the decision.” Id.

         “In addition to requiring a reasoned basis for agency action, the ‘arbitrary or capricious' standard requires an agency's action to be supported by the facts in the record.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994). An agency's decision, therefore, is arbitrary if not supported by “substantial evidence.” Id. “Evidence is substantial in the APA sense if it is ‘enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact.'” Id. (citation omitted).

         A presumption of validity attaches to the agency action and the burden of proof rests with the appellants who challenge such action. Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir. 2008). The deference given to an agency action “is especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise.” Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739 (10th Cir. 2006).


         A. Standing

         Neither respondent nor intervenors challenge the standing of petitioner to bring this appeal. However, even when standing is uncontested, the party seeking redress bears the burden of establishing standing. Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). To carry this burden, petitioner must show “(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable decision.” Id. at 543 (internal quotation marks and alteration marks omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). As an organization with members, petitioner can establish standing either in its own right or on behalf of its members. Sierra Club v. Morton, 405 U.S. 727, 739 (1972). The Court finds that petitioner has established standing at least with respect to member Ann Bonnell, who specifically identifies how her recreational and aesthetic interests would be harmed by the proposed alterations to Chatfield State Park. Docket No. 49-4 at 5, ¶ 11; see also Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (“While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.” (citing Morton, 405 U.S. at 734-36)).

         B. National Environmental Policy Act

         1. Statutory Framework

         NEPA declares the federal government's policy to “use all practicable means and measures, including financial and technical assistance . . . to create and maintain conditions under which man and nature can exist in productive harmony.” 42 U.S.C. § 4331(a). To that end, NEPA imposes a requirement on federal entities to take a “hard look” at the environmental impact of a proposed action. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). NEPA was intended to ensure that agencies “consider environmentally significant aspects of a proposed action, and, in so doing, let the public know that the agency's decisionmaking process includes environmental concerns.” Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152, 1162 (10th Cir. 2002).

         Before an agency may take a “major Federal action[] significantly affecting the quality of the human environment, ” it must prepare an in-depth environmental impact statement (“EIS”). 42 U.S.C. § 4332(C); see also Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 780 (10th Cir. 2006).[4] Agencies must begin the NEPA evaluation process as early as possible so that the EIS serves to ensure incorporation of environmental values into the decisionmaking process, instead of rationalizing it after the fact, and to avoid downstream delays. 40 C.F.R. §§ 1501.2, 1502.5. An EIS is an “action-forcing” device with two primary purposes: (1) to ensure that the decisionmaker “will have available, and will carefully consider, detailed information concerning significant environmental impacts, ” and (2) to make information available to the public, which “may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson, 490 U.S. at 349. An EIS must address the environmental impact of the proposed action; adverse effects that cannot be avoided; mitigation measures; alternatives to the proposed action, including a no-action alternative; direct, indirect, and cumulative impacts of the proposed action; and any “irreversible and irretrievable commitments of resources” entailed in implementing the proposed action. 42 U.S.C. § 4332; see also 40 C.F.R. § 1508.25; 40 C.F.R. § 1502.14 (the discussion of alternatives “is the heart of the environmental impact statement” and it “should present the environmental impacts of the proposal and the alternatives, ” including the “alternative of no action, ” and the agency must identify its “preferred alternative”).

         Although NEPA imposes procedural requirements on federal agencies, NEPA does not dictate the substantive results of an agency's analysis, and “[s]o long as the record demonstrates that the agencies in question followed the NEPA procedures, which require agencies to take a ‘hard look' at the environmental consequences of the proposed action, the court will not second-guess the wisdom of the ultimate decision.” Utahns for Better Transp., 305 F.3d at 1163 (quoting Robertson, 490 U.S. at 350).

         2. Alleged NEPA Violations

         Petitioner alleges that the Corps violated NEPA by (1) using the term “average year yield” as the measure of water that would become available due to the project; (2) relying on water rights assumptions that were outdated when the FR/EIS was issued; and (3) failing to evaluate reasonable alternatives to the chosen project. Docket No. 49 at 7.

         a. “Average Year Yield”

         Petitioner argues that the Corps' use of the term “average year yield” in the FR/EIS to discuss the project's goals “violated NEPA's requirement for informed public participation” because it is an “arbitrarily creation” that the Corps “made up.” Docket No. 49 at 48-49. Instead, petitioner claims that the Corps should have used the “standard industry” term “safe yield” to describe how much water the project would reliably provide. Id. at 48. In petitioner's view, the use of novel terminology was deceptive to the public because use of the standard terminology “would have made plain that the project would reliably increase water storage in the region by 0 acre feet.” Id. at 48-49 (emphasis removed).

         The Corps' Handbook on Water Supply Planning and Resource Management (“Handbook”) does not use the term “average year yield.”[5] R. at 00849. The Handbook defines the term “yield” as the “quantity of water which can be taken, continuously, for any particular economic use. For municipal and industrial water supply purposes, this is normally taken as the flow which can be guaranteed during the 50-year drought on 98% dependability.” R. at 00883. The Handbook defines the term “safe yield” as the “maximum quantity of water which can be reliably available throughout the most severe drought of record, or some other ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.