State of Ala. v. United States Army Corps of Eng'rs

• Docket Number: Civil Action 15-696 (EGS),15-699 (EGS),15-696
• Decision Date: 09 November 2023
• Parties: STATE OF ALABAMA, et al., Plaintiffs v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and WATER WORKS AND SANITARY SEWER BOARD OF THE CITY OF MONTGOMERY, ALABAMA, et al., Plaintiff-Intervenors, and STATE OF GEORGIA, et al., Defendant-Intervenors. ALABAMA POWER COMPANY, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

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STATE OF ALABAMA, et al., Plaintiffs and WATER WORKS AND SANITARY SEWER BOARD OF THE CITY OF MONTGOMERY, ALABAMA, et al., Plaintiff-Intervenors, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, and STATE OF GEORGIA, et al., Defendant-Intervenors. ALABAMA POWER COMPANY, Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

Civil Action Nos. 15-696 (EGS), 15-699 (EGS), 15-696

United States District Court, District of Columbia

November 9, 2023

MEMORANDUM OPINION

Emmet G. Sullivan United States District Judge.

Table of Contents

I. Introduction 1

II. Background 4

A. Statutory and Regulatory Background ....................... 4

1. Clean Water Act ......................................... 4

2. National Environmental Policy Act ...................... 11

B. Factual Background ....................................... 17

1. Authorized Project Purposes of the Corps' Reservoir Projects in the ACT Basin and the Development of Governing Water Control Manuals ..................................... 17

2. The Allatoona Reservoir Project, Its History, and Its Authorized Project Purposes ............................... 20

3. Prior Versions of the Allatoona Project's Water Control Manual: 1951, 1962, 1968, and a 1993 Draft Version ........ 27

4. The Process for Revising and Adopting the Updated 2015 Master Manual, the Allatoona Project Water Control Manual, and the FEIS .............................................. 34

5. Key Features of the Updated Master Manual and the Allatoona Project Water Control Manual, and the Specific Changes to Which the Alabama Plaintiffs and Intervenor-Plaintiffs Object ......................................... 38

C. Procedural Background .................................... 43

III. Legal Standard ........................................... 48

IV. Analysis ................................................. 53

A. Defendants Did Not Violate the CWA or the Corps' Implementing Engineer Regulations, and the Alabama Plaintiffs' Water Quality Claims Must Fail .............................. 54

1. Issue Preclusion Does Not Apply to Bar the Alabama Plaintiffs' Water Quality Claims .......................... 61

a. The Issue Preclusion Criteria Are Satisfied as Against the State of Alabama for Its Water Quality Claims Involving the CWA and ER 1110-2-8154 ............................... 71

b. Although the Issue Preclusion Criteria Are Satisfied as Against the State of Alabama's CWA and ER 1110-2-8154 Water Quality Claims, the Doctrine Is Inapplicable Here ........ 74

i. The “Unmixed Questions of Law” Exception to Issue Preclusion Applies Here ................................ 75

ii. Policy Considerations and the Presence of Non-Mutual Parties Also Weigh Against the Application of Issue Preclusion Here ........................................ 83

2. The Alabama Plaintiffs' Water Quality Claims Fail on the Merits .................................................... 97

a. Section 313(a) of the CWA (33 U.S.C. § 1323(a)) ....... 97

b. ER 1110-2-8154 ....................................... 118

c. The Duty Under the APA to Engage in Reasoned Decision-Making and Not Arbitrarily Depart from Precedent ........ 129

B. Defendants Did Not Violate NEPA ......................... 133

1. The Corps Reasonably Defined the No-Action Alternative in the FEIS Using the 1993 Draft Allatoona Manual ........... 136

a. Issue Preclusion Does Not Apply to Bar the Alabama Plaintiffs' NEPA No-Action Alternative Claim ............ 137

b. The Alabama Plaintiffs' NEPA No-Action Alternative Claim Fails on the Merits ..................................... 143

2. The Corps Took a “Hard Look” at Environmental Impacts of the Master Manual and Adequately Analyzed and Disclosed Those Impacts in the FEIS ...................................... 155

a. Parameters of NEPA's “Hard Look” Doctrine ............ 156

b. The FEIS Adequately Analyzes and Discloses Impacts of the Proposed Action Alternative on Hydropower Generation.... 163

c. The FEIS Adequately Analyzes and Discloses Impacts of the Proposed Action Alternative Associated with the CC-MWA's Water Supply Withdrawals ................................ 169

d. The FEIS Adequately Analyzes and Discloses Impacts of the Master Manual on Water Quality at Montgomery, Alabama... 176

e. The FEIS Adequately Analyzes and Discloses Impacts of the Master Manual on Salt Water Intrusion from Mobile Bay... 188

f. The FEIS Adequately Analyzes and Discloses Impacts of the Master Manual on Recreation and Economic Development at Lake Martin ............................................. 200

3. The Corps Adequately Considered All Reasonable Alternatives in the FEIS ................................. 222

C. Defendants Did Not Violate the APA ...................... 232

1. The Master Manual Complies with the Corps' Statutory Obligations and Properly Balances the Authorized Project Purposes of the ACT Basin, Including at the Allatoona Project ......................................................... 232

a. The Master Manual Does Not “Deemphasize” Hydropower at the Allatoona Project ................................... 243

i. Hydropower Was Not Abandoned or Reordered for the Sake of Recreation, Which Was Appropriately Considered Among Allatoona's Other Project Purposes .................... 250

ii. Reductions in Hydropower Are Not So “Substantial” or “Significant” So as to Have the Effect of Materially Altering the Size of Allatoona's Hydropower Purpose ... 260

b. The Master Manual Does Not “Deemphasize” Navigation at the Allatoona Project ................................... 279

2. The Master Manual Is Not an “Unexplained and Arbitrary Departure from Established Operations” ................... 287

V. Conclusion 294

I. Introduction

Following decades of litigation spanning numerous courts, on May 4, 2015, the United States Army Corps of Engineers (the “Corps”) adopted its updated Master Water Control Manual (the “Master Manual”) governing management of its various dams and reservoir projects in the Alabama-Coosa-Tallapoosa (“ACT”) River Basin. See Administrative Record (“A.R.”), ECF No. 61 at D-00053477-80.^[1] The Master Manual, supplemented with separate manuals for individual basin projects, is the Corps' first revised version of the manual since 1951, and was promulgated pursuant to the public notice and comment process of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq., and the requirements of the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4347. Id. at D-00043862.

Plaintiffs the State of Alabama and Alabama Power Company (“APC”) (collectively, the “Alabama Plaintiffs”) have sued the Corps and various U.S. Army and Corps officers in their official capacities (collectively, “Defendants”) to challenge the Master Manual, specifically its updates to operation of the Corps' federal dam and reservoir project at Allatoona Lake in Georgia, alleging that it violates the APA, NEPA, and the Clean Water Act (“CWA”), 33 U.S.C. § 1251, et seq. See Pls.' Joint Mot. for Summ. J. (“Pls.' Mot.”), ECF No. 83 at 11-12. The Alabama Plaintiffs ask that the Court set aside the Master Manual as unlawful and direct the Corps to develop a revised manual consistent with its statutory authority and operational precedents under the APA, pursuant to a proper environmental analysis as required by NEPA, and in accordance with the CWA's requirements. Id.; Compl., ECF No. 1 at 27-28. The Water Works and Sanitary Sewer Board of the City of Montgomery, Alabama (“Montgomery Board”), the Board of Water and Sewer Commissioners of the City of Mobile (“Mobile Water”), Lake Martin Resource Association, Inc. (“LMRA”), and Russell Lands, Inc. (“Russell Lands”) (collectively, “Intervenor-Plaintiffs”) filed complaints as intervenors, see ECF Nos. 34-35, 75; and have also jointly moved for summary judgment, see Joint Mot. for Summ J. of Intervenor-Pls. (“Intervenor-Pls.' Mot.”), ECF No. 85 at 1.

Defendants have filed a Cross-Motion for Summary Judgment (“Defs.' Cross-Mot.”), arguing that the Master Manual “is neither arbitrary nor in excess of Congressional authorizations” pursuant to the APA and complies with the Corps' statutory obligations under the CWA and NEPA. See Defs.' Cross-Mot., ECF No. 95 at 9-10.

Intervening alongside the Corps as defendants are the State of Georgia, the Atlanta Regional Commission (“ARC”), and the Cobb County-Marietta Water Authority (“CC-MWA”) (collectively, “Intervenor-Defendants” or the “Georgia Parties”), and they have also jointly filed a cross-motion for summary judgment. See Georgia Parties' Joint Cross-Mot. for Summ. J. & Opp'n to Pls.' & Intervenor-Pls.' Mots. for Summ J. (“Intervenor-Defs.' Cross-Mot.”), ECF No. 97 at 1.

Pending before the Court are the Alabama Plaintiffs' Joint Motion for Summary Judgment, ECF No. 83; Intervenor-Plaintiffs' Joint Motion for Summary Judgment, ECF No. 85; Defendants' Cross-Motion for Summary Judgment, ECF No. 96;^[2] and Intervenor-Defendants' Joint Cross-Motion for Summary Judgment, ECF No. 98.^[3]Also pending is Intervenor-Defendants' supplemental motion for summary judgment alleging issue preclusion based on an intervening judgment entered against Alabama by the District Court for the Northern District of Georgia (“Northern District of Georgia”) in what they call “parallel litigation challenging a similar action by the same defendants in an adjacent river basin.” See Suppl. Mot. for Summ. J. by Intervenor-Defs. (“Intervenor-Defs.' Suppl. Mot.”), ECF No. 129 at 6.

Upon careful consideration of the Alabama Plaintiffs'...