Audubon Soc'y Denver v. U.S. Army Corps of Eng'rs

• Decision Date: 12 December 2017
• Docket Number: Civil Action No. 14-cv-02749-PAB
• Parties: AUDUBON SOCIETY OF GREATER DENVER, Petitioner, v. UNITED STATES ARMY CORPS OF ENGINEERS, Respondent, 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, and COLORADO DEPARTMENT OF NATURAL RESOURCES, Intervenor Respondents.
• Court: U.S. District Court — District of Colorado

AUDUBON SOCIETY OF GREATER DENVER, Petitioner, v. UNITED STATES ARMY CORPS OF ENGINEERS, Respondent,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, and COLORADO DEPARTMENT OFNATURAL RESOURCES, Intervenor Respondents.

Civil Action No. 14-cv-02749-PAB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

December 12, 2017

Judge Philip A. Brimmer

ORDER

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. The 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 WRDA, 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 protectionand 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 ParkerWSD) 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 storagereallocation—NTGW¹ 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 msl² 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 FeasibilityReport/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...