from the United States District Court for the District of
Colorado (D.C. No. 1:14-CV-02749-PAB)
Lynch, Environmental Law Clinic, University of Denver, Sturm
College of Law, Denver, Colorado, appearing for Appellant.
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
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
BRISCOE, LUCERO, and MATHESON, Circuit Judges.
BRISCOE, CIRCUIT JUDGE.
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.
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).
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
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
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.
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. §
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.
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, § 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 . . . ...