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

United States Court of Appeals, Tenth Circuit

November 5, 2018

AUDUBON SOCIETY OF GREATER DENVER, Petitioner-Appellant,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Respondent-Appellee, and CASTLE PINES METROPOLITAN DISTRICT; CASTLE PINES NORTH METROPOLITAN DISTRICT; CENTENNIAL WATER AND SANITATION DISTRICT; CENTER OF COLORADO WATER CONSERVANCY DISTRICT; CENTRAL COLORADO WATER CONSERVANCY DISTRICT; TOWN OF CASTLE ROCK; COLORADO DEPARTMENT OF NATURAL RESOURCES, Intervenors Respondents - Appellees.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:14-CV-02749-PAB)

          Kevin Lynch, Environmental Law Clinic, University of Denver, Sturm College of Law, Denver, Colorado, appearing for Appellant.

          Sommer H. Engels, Attorney, Environment and Natural Resources Division, United States Department of Justice, Washington, DC (Jeffrey H. Wood, Acting Assistant Attorney General, United States Department of Justice, Washington, DC; Eric Grant, Deputy Assistant Attorney General, United States Department of Justice, Washington, DC; Jennifer Scheller Neumann, Michael Gray, Phillip R. Dupre, Dustin J. Maghamfar, Attorneys, Environment and Natural Resources Division, United States Department of Justice, Washington, DC; Catherine E. Grow, Of Counsel, Office of Counsel, United States Army Corps of Engineers, Omaha District, Omaha, Nebraska; Daniel Inkelas, Of Counsel, Office of the Chief Counsel, United States Army Corps of Engineers, with her on the brief), appearing for Appellee United States Army Corps of Engineers.

          Cynthia H. Coffman, Attorney General, Denver, Colorado, and Scott Steinbrecher, Assistant Solicitor General, Denver, Colorado, on the brief for Appellee Colorado Department of Natural Resources.

          Bennett W. Raley, Deborah L. Freeman, William Davis Wert, and Trout Raley, Denver, Colorado, on the brief for Appellees Castle Pines Metropolitan District, Castle Pines North Metropolitan District, Centennial Water and Sanitation District, Center of Colorado Water Conservancy District, Central Colorado Water Conservancy District, and Town Of Castle Rock.

          Before BRISCOE, LUCERO, and MATHESON, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         This is an Administrative Procedure Act challenge to the Army Corps of Engineers' approval of a project to store more water in the Chatfield Reservoir in Colorado. Petitioner Audubon Society of Greater Denver sought review of the Corps' decision, arguing that the Corps' review and approval of the project failed to comply with the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370m-12, and the Clean Water Act, 33 U.S.C. §§ 1251-1388. The district court denied the petition for review after concluding that the Corps' decision was not arbitrary or capricious. Audubon also moved to supplement the administrative record. The district court denied the motion because it found that the administrative record sufficiently informed the Corps' analysis. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

         I

         A. Statutory Background

         In this case, we must decide whether the Corps complied with NEPA and the CWA when it approved the Chatfield Storage Reallocation Project, which will allow certain water providers in the Denver metropolitan area to store 20, 600 acre-feet of water in the Chatfield Reservoir. "In NEPA, Congress codified rules designed to focus both agency and public attention on the environmental effects of proposed actions and thereby facilitate informed decisionmaking by agencies and allow the political process to check those decisions." WildEarth Guardians v. U.S. Fish & Wildlife Serv., 784 F.3d 677, 690 (10th Cir. 2015) (quotation marks and alteration omitted). "NEPA itself does not mandate particular results, but simply prescribes the necessary process." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

         NEPA requires the Corps to "include" an Environmental Impact Statement "in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). An EIS "provide[s] full and fair discussion of significant environmental impacts and . . . inform[s] decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment." 40 C.F.R. § 1502.1. At issue in this appeal is whether the Corps adequately addressed and discussed the identified reasonable alternatives.

         The discussion of alternatives "is the heart of the" EIS. Id. § 1502.14. "[I]t should present the environmental impacts of the proposal and the alternatives in comparative form, thus sharply defining the issues and providing a clear basis for choice among options by the decisionmaker and the public." Id. The Corps was required to:

(a) Rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.
(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their comparative merits.
(c) Include reasonable alternatives not within the jurisdiction of the lead agency.
(d) Include the alternative of no action.
(e) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference.
(f) Include appropriate mitigation measures not already included in the proposed action or alternatives.

Id. As long as "the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs." Robertson, 490 U.S. at 350. "Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed-rather than unwise-agency action." Id. at 351 (footnote omitted).

         Unlike NEPA, which focuses on process, the CWA imposes substantive requirements on the Corps. Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng'rs, 702 F.3d 1156, 1166 (10th Cir. 2012). With certain exceptions, the CWA prohibits the "discharge of dredged or fill material into the" "waters of the United States." 33 U.S.C. §§ 1311(a), 1344(a), 1362(7). But the Corps "may issue permits, after notice and opportunity for public hearings for the discharge of dredged or fill material into the navigable waters at specified disposal sites." Id. § 1344(a). This permitting process is governed by the Section 404(b)(1) Guidelines, which are contained in Part 230 of Title 40 of the Code of Federal Regulations. 40 C.F.R. §§ 230.1-230.98. When the Corps decides whether it may itself "discharge[] . . . dredged material or fill material," it does not issue a permit, "but does apply the 404(b)(1) [G]uidelines and other substantive requirements of the CWA and other environmental laws." 33 C.F.R. § 335.2.

         The 404(b)(1) Guidelines state that "no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the alternative does not have other significant adverse environmental consequences." 40 C.F.R. § 230.10(a). "An alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes." Id. § 230.10(a)(2). In other words, the Corps may authorize a proposed discharge when it is the least environmentally damaging practicable alternative ("LEDPA"). Id. § 230.10(a).

         B. Factual Background

         In 1973, the Corps constructed the Chatfield Reservoir by erecting a dam across the South Platte River southwest of Denver. PAA0643. The Reservoir was primarily built for flood control, but Congress also authorized the Corps to develop recreational facilities at the Reservoir. PAA0643-44. In 1974, the Corps leased the land surrounding the Reservoir to the State of Colorado, which opens the area to the public as Chatfield State Park. PAA0644. Chatfield State Park is currently one of the most popular state parks in Colorado. PAA0628-29.

         In 1986, Congress authorized the Corps to study whether it would be feasible and economically justifiable to reallocate part of Chatfield Reservoir's storage capacity from flood control to municipal, industrial, and agricultural water storage. See Water Resource Development Act of 1986, Pub. L. No. 99-662, ยง 808, 100 Stat. 4082, 4186. The resulting study predicted that, even taking into account water conservation programs, water providers will need approximately 50% more water in 2050 because of population growth in the Denver metropolitan area. PAA0629-30, 0656, 0658. Under current conditions, absent the development of additional water supply, the Denver metropolitan area will have "approximately 90, 000 acre-feet of unmet [water] needs" in 2050. PAA0658. In 2009, Congress "authorized . . . ...


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