Save the Colorado et al v. Semonite et al

.IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Christine M. Arguello
Civil Action No. 18-cv-03258-CMA
SAVE THE COLORADO,
THE ENVIRONMENTAL GROUP,
WILDEARTH GUARDIANS,
LIVING RIVERS,
WATERKEEPER ALLIANCE, and
SIERRA CLUB,
Petitioners,
v.
TODD T. SEMONITE, in his official capacity as the Chief of the U.S. Army Corps of
Engineers,
RYAN ZINKE, in his official capacity as Secretary of the Interior, and
MARGARET EVERSON, in her official capacity as Acting Director of the U.S. Fish and
Wildlife Service,
Respondents, and
CITY AND COUNTY OF DENVER, ACTING BY AND THROUGH ITS BOARD OF
WATER COMMISSIONERS,
Respondent-Intervenor.
ORDER ON PETITION FOR REVIEW OF AGENCY ACTION
This matter is before the Court on a “Supplemental Petition for Review of Agency
Action” filed by Save the Colorado, The Environmental Group, WildEarth Guardians,
Living Rivers, Waterkeeper Alliance, and the Sierra Club (“Petitioners”). (Doc. # 45-1.)
The parties’ positions are fully briefed. See (Docs. ## 134, 137–38, 143.) For the
reasons explained below, this Court finds that the dredge-and-fill permit issued by the
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U.S. Army Corps of Engineers to the City and County of Denver’s Board of Water
Commissioners (“Denver Water”) is in violation of the Clean Water Act and the National
Environmental Policy Act.
I. 	BACKGROUND
This case arises from Denver Water’s desire to expand the Gross Dam and
Reservoir (“the Proposed Action”).1 The Proposed Action would allow Denver Water to
divert at least 18,000 acre-feet per year (“AFY”)2 of water from the Fraser River,
Williams Fork River, and South Boulder Creek into the Gross Reservoir. E.g., AR
1323781–82.3 Impounding that much additional water would triple the size of the Gross
Reservoir, which would require laying enough concrete to enlarge the Gross Dam by
125 vertical feet. Id. Approximately 400 acres of mostly forested land would become
inundated, which would require the excavation of 1.6 million tons of rock and destroy
more than 500,000 trees. (Doc. # 134 at 10–11); cf. AR 123782. Much of that
construction has already taken place, and the Proposed Action is presently at risk of
becoming a fait accompli despite no pronouncement from this Court yet on whether the
Proposed Action is lawful. (Doc. # 145.)
1 Throughout the parties’ briefs and the administrative record, the Proposed Action is also
referred to as the “Moffat Collection System Project.”
2 One acre-foot of water equals approximately 325,851 gallons of water—the amount of water
needed to cover an acre of land with one square foot of water. AR 123690.
3 The Gross Reservoir is approximately thirty-five miles northwest of the City of Denver and six
miles south of the City of Boulder. Id.
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To accomplish the Proposed Action required that Denver Water do two things:
(1) amend its permit issued by the Federal Energy Regulatory Commission (“FERC”),4
and (2) discharge fill material into wetlands, which requires a permit from the U.S. Army
Corps of Engineers (“the Corps”). The instant case is about the latter—namely, the
Corps’ decision-making process in issuing that discharge permit.
Understanding this case’s facts requires a degree of familiarity with the
administrative procedures established by several federal environmental statutes. For
that reason, before delving into the administrative procedures that Petitioners challenge,
the Court begins with a primer on the first principles of the National Environmental
Policy Act (“NEPA”), the Clean Water Act (“CWA”), and the Endangered Species Act
(“ESA”).
Both NEPA and the CWA impose mandatory burdens on the Corps to fashion its
administrative record in certain particular ways. Under NEPA, the record must show that
the Corps meaningfully considered relevant issues, and the record must contain the
Corps’ reasoning as to why practicable alternatives to the Proposed Action are not
worth pursuing. Under the CWA, however, the Corps’ administrative record must
support a factual finding—the Corps must clearly demonstrate that the Proposed Action
is the “Least Environmentally Damaging Practicable Alternative” (“LEDPA”), which
requires comparisons to practicable alternatives and process of elimination. In the
4 The Gross Dam and its related facilities sit within land reserved for hydropower production
regulated by FERC. To tamper with the Gross Dam and Reservoir requires amending the
hydropower license issued by FERC to Denver Water. E.g., AR 000017; see also (Doc. # 138 at
18).
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explanation of law that follows, what must be kept in mind is that both of the Corps’
mandatory obligations under these laws turn on discussions of practicability, and
practicability derives in part from whether the alternative can satisfy the purpose and
need of the proposed project. Thus, the alternatives selected for further study and, by
extension, the sufficiency of the agency’s administrative record, depend on the level of
abstraction that the agency chooses to use in framing the project’s purpose. This
observation must be kept in mind while reading the explanation below because this
case, at its core, began because the Corps inappropriately framed the Proposed
Action’s purpose-and-need statement, which unduly constrained the definition of
“practicability.” That strategic choice wholly relieved the Corps of its burdens to explore
and discuss certain alternatives to enlarging the Gross Dam and Reservoir.
A. 	SUBSTANTIVE ENVIRONMENTAL LAW
1. 	The Clean Water Act
The basic objective of the CWA is to “restore and maintain the chemical,
physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1311(a). To
“restore and maintain” water quality, the CWA creates a permit system whereby, under
§ 404 of the Act, the Corps can authorize, via permit, the discharge of fill material into
waters of the United States (“WOTUS”). 33 U.S.C. §§ 1251(a); 1311(a); 1344; see also
40 C.F.R. § 230.3 (defining WOTUS to include certain wetlands).5 The Corps’
§ 404(b)(1) permitting process begins with a “public interest review” triggered by a
5 The Court’s administrative citations refer to the regulations in effect at the time the challenged
agency action occurred, which are CEQ’s 1978 regulations as amended in 1986.
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project proponent’s application for a discharge permit. The Corps must thoroughly
examine the applicant’s project proposal and produce written findings that comply with
regulations drafted by the EPA—the “§ 404(b)(1) guidelines.” 33 C.F.R. § 323.6 (“The
[Corps] will review applications for [§ 404(b)(1) permits] in accordance with guidelines
promulgated by [the EPA] . . . . [A] permit will be denied if the discharge . . . would not
comply with the 404(b)(1) guidelines.”); see generally 40 C.F.R. § 230.12 (conditioning
Corps permits on the satisfaction of the guidelines); accord 33 U.S.C. § 1344(b)
(making the guidelines binding on the Corps). Critically, the CWA substantively limits
the Corps’ authority by mandating compliance with the guidelines.6 The guidelines, in
turn, require that the Corps’ administrative record proves that “there is [no] practicable
alternative to the proposed discharge which would have less adverse impact on the
aquatic ecosystem.” 40 C.F.R. § 230.10(a) (emphasis added) (the “LEDPA”
determination). Unless the administrative record “clearly” demonstrates that the action
authorized by the permit is in fact the LEDPA, the guidelines deprive the Corps of
authority to issue said permit. 40 C.F.R. § 230.10(a)(3); see also 40 C.F.R. § 230.12.
The LEDPA finding requires comparison to “practicable” alternatives, but the
definition of “practicability” depends on the context of each permit application. The
guidelines generally define a practicable alternative as one that “is available and
capable of being done after taking into consideration cost, existing technology, and
6 Indeed, these substantive requirements make sense; plants can be propagated but—
especially in the arid American West—water cannot. See 40 C.F.R. 230.1(d) (“[T]he degradation
or destruction of . . . wetlands . . . is considered to be among the most severe environmental
impacts . . . . The guiding principle should be that degradation or destruction of [wetlands] may
represent an irreversible loss.” (emphasis added)).
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logistics in light of overall project purposes.” 40 C.F.R. § 230.3(l) (emphasis added); see
also 40 C.F.R. § 230.10(a)(2) (defining practicability to include areas not presently
owned by the permit applicant if they could “reasonably be obtained, utilized, expanded
or managed in order to fulfill the basic [project] purpose” (emphasis added)). Although
the parties heavily dispute the meaning of “practicability,” as detailed below, at least this
much is clear: “practicability” turns in part on the purpose of the project.
What counts as a “practicable” alternative under the CWA also depends on two
presumptions set forth by the guidelines. The first presumption, the “water-dependent”
presumption, expands the universe of practicable alternatives. If the activity associated
with the proposed discharge necessarily involves “the special aquatic site in question to
fulfill [the project’s] basic purpose,” the Corps must presume that practicable
alternatives exist that do not involve the special aquatic site—unless the record “clearly”
demonstrates otherwise. 40 C.F.R. § 230.10(a)(3). Thus, if the activity is “water
dependent,” the Corps must consider and dismiss even more alternatives in order to
support its LEDPA finding. The second presumption, the “no-discharge” presumption,
forces the Corps to reason by process of elimination. If the proposed project involves
discharge into wetlands, the Corps must presume that “all practicable alternatives . . .
which do not involve a discharge . . . have less adverse impact on the aquatic
ecosystem.” 40 C.F.R. § 230.10(a)(3) (emphasis added). In other words, the non-
discharge alternatives must be the LEDPA “unless clearly demonstrated otherwise.” Id.
Thus, if the proposed activity requires discharge into wetlands, the Corps by law cannot
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find that its preferred alternative is the LEDPA unless it considers and validly dismisses
every practicable alternative that avoids discharge into wetlands.
In sum, under the CWA and the EPA’s § 404(b)(1) guidelines, the Corps cannot
issue a permit authorizing the discharge of fill material into WOTUS unless the
administrative record clearly demonstrates that said discharge is the LEDPA. To find
that a proposed discharge is the LEDPA, the Corps must first frame the project’s
purpose and determine whether said purpose is water dependent. That preliminary
framing of project purpose, along with the water-dependent presumption, determines
the meaning of practicability and may expand the number of alternatives that the Corps
must examine, i.e., the Corps must validly dismiss by process of elimination any of said
practicable alternatives that might be the LEDPA.
2. 	The National Environmental Policy Act
Under NEPA, “procedural mechanisms” are established that ensure agencies at
least give “proper consideration [to] environmental concerns.” City of Carmel-by-the-Sea
v. U.S. Dep’t of Transp., 123 F.3d 1142, 1150 (9th Cir. 1997) (citing Vt. Yankee Nuclear
Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 558 (1978)). Essentially,
NEPA requires all federal agencies to prepare a written document known as an
“environmental impact statement” (“EIS”) that records the agency’s deliberative process
whenever said agency considers doing something that could constitute a “major federal
action” that might “significantly affect[ ] the quality of the human environment.” 42 U.S.C.
§ 4332(2)(C). When a proposed agency action implicates WOTUS and could constitute
a major federal action significantly affecting the quality of the environment, the CWA
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and NEPA converge. The Corps can produce an EIS and, separately, provide all the
written findings required of its CWA public interest review. Or the Corps can satisfy both
statutes at once by including the CWA’s public interest review findings in its EIS. See,
e.g., 40 C.F.R. § 230.10(a)(4) (allowing the Corps to satisfy its CWA obligations by
using the information contained in an EIS).7 In the instant litigation, the Corps chose the
latter.
Before setting forth what NEPA requires, it is worth explaining what it does not.
Unlike the CWA, NEPA does not dictate a substantive outcome—at most, it requires
that agencies make “fully informed and well-considered decision[s].” E.g., Vt. Yankee,
435 U.S. at 558 (“its mandate to the agencies is essentially procedural”). This
procedural mandate, however, is not a judicial license for the court to substitute its
judgment for that of the agency. Rather, the court’s review of an agency’s NEPA
compliance is bound by a “rule of reason.” WildEarth Guardians v. U.S. Bureau of Land
Mgmt., 870 F.3d 1222, 1233 (10th Cir. 2017) (citations omitted). Under this “rule of
reason,” agencies violate NEPA not by making questionable decisions, but by offering
explanations in support of those decisions that are so inexplicably arbitrary or capricious
that the action amounts to an abuse of discretion. See id. For example, an agency
violates NEPA when the agency’s reasoning in the EIS can be characterized as (1) a
7 In addition to the statutory provisions of NEPA, NEPA has concomitant regulations that “must
be read together as a whole in order to comply with [the Act].” 40 C.F.R. § 1500.3. The Council
on Environmental Quality (“CEQ”) has regulations about how other agencies should implement
NEPA, and those regulations are “binding on all federal agencies.” 40 C.F.R. § 1500.3; see
generally §§ 1500–08. Each federal agency has its own regulations that explain how said
agency incorporates the NEPA process into said agency’s other processes. The Corps is no
exception. See generally 33 C.F.R. Pt. 325 App’x B.
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perfunctory, conclusory explanation devoid of sound logical reasoning or (2) a rationale
that clashes with a considerable volume of credible, materially contradictory evidence
without an explanation to soundly resolve the inconsistency. See, e.g., id. at 1236–37
(rejecting agency’s EIS for giving climate change no serious consideration when climate
change is “a scientifically verified reality” and “climate modeling technology exists” that
“is available for the [agency] to use”); Ctr. for Biological Diversity v. U.S. Dep’t of the
Interior, 72 F.4th 1166, 1179–80 (10th Cir. 2023) (noting such modeling available in
2017 and 2018).
This abstract explanation of NEPA’s normative thrust does not clarify what an
EIS must look like to satisfy NEPA. To satisfy NEPA, an agency’s EIS must prove that
the agency took a “hard look” at the environmental impacts of the proposed action and
practicable alternatives. E.g., id. at 1233. A proper EIS must include a detailed report
covering: (1) the “environmental impact” of the agency’s proposed action, (2)
unavoidable “adverse environmental effects,” and (3) “alternatives to the proposed
action.” Id.; see also City of Carmel, 123 F.3d at 1150 (detailing the required contents of
an EIS). Of these three, the significance of the alternatives analysis cannot be
overstated. See, e.g., Colo. Env’t Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir.
1999). To prove that the agency actually gave a “hard look” to the proposed action and
its practicable alternatives, the EIS must “rigorously explore all reasonable alternatives
to the [project proposal] in comparative form[ ] and give each alternative substantial
treatment in the [EIS].” Id. The comparative discussion of alternatives defines issues
more clearly and “provid[es] a clear basis for choice among options by the
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decisionmaker and the public.” This makes the alternatives analysis the “heart” of the
EIS. 40 C.F.R. § 1502.14. However, an agency need not consider an infinite range of
alternatives—only reasonable or feasible ones. 40 C.F.R. § 1502.14(a)–(c). The agency
determines which alternatives are reasonable or feasible by including within the EIS a
“Purpose and Need” section, which defines “the underlying purpose and need to which
the agency is responding in proposing the alternatives.” 40 C.F.R. § 1502.13. The goal
of a project determines what is a “reasonable” alternative worth considering, so NEPA
jurisprudence forbids an agency from defining a project’s objectives in unreasonably
narrow terms. See, e.g., Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195
(D.C. Cir. 1991).
3. 	The Endangered Species Act
The ESA embodies “an explicit congressional decision to require agencies to
afford first priority to the declared national policy of saving endangered species.” Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 185 (1978). 16 U.S.C. § 1532(16). Two federal
agencies are charged with administering the ESA, although only one is implicated
here—the United States Fish and Wildlife Service (“USFWS”).8
Whether a “species” is “listed” as “endangered” or “threatened” requires an
official determination by the USFWS. 16 U.S.C. § 1533.9 That official determination
8 Congress delegated the authority to implement the ESA with respect to terrestrial species to
the Secretary of the Interior, which is the parent department in which the USFWS sits. The
Secretary of the Interior delegated its ESA responsibilities to USFWS. 50 C.F.R. § 402.01(b).
9 For context, a “species” is defined under the Act as “any subspecies of fish or wildlife or plants,
and any distinct population segment of any species of vertebrate fish or wildlife which
interbreeds when mature.” 16 U.S.C. § 1532(16). The distinction between “endangered” and
“threatened” status, however, is not particularly relevant to the instant case.
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takes the form of an informal administrative rulemaking process that begins with a
general notice published in the Federal Register. 50 C.F.R. § 424.16(c)(1)(i); accord 16
U.S.C. § 1533(b)(5)(A)(i); 5 U.S.C. § 553. When USFWS contemplates listing a species
(or delisting a listed species), the ESA requires that USFWS use the “best available
scientific evidence” taken from “the biological expertise of the Department [of the
Interior] and the scientific community.” To ensure that USFWS’s consideration relies on
the best available scientific evidence, the USFWS has “a consistent and rigorous
practice of undertaking and managing peer review.” U.S. Fish & Wildlife Serv.,
Director’s Memorandum: Peer Review Process 1 (Aug. 2, 2016),
https://www.fws.gov/media/directors-memorandum-peer-review-process
[https://perma.cc/C9TD-KLNW]. Per USFWS’s Peer Review Process Memorandum,
USFWS’s listing and delisting decisions must solicit independent peer review as to the
following three issues: (1) whether USFWS has assembled and considered the best
available scientific and commercial information, (2) whether USFWS’s analysis of said
information is correct and properly applied to the proposed action, and (3) whether
USFWS’s scientific conclusions are reasonable. Id. at 2.
Section 7 of the ESA places an affirmative obligation on agencies to ensure they
do not jeopardize listed species. When a proposed agency action might affect a listed
species, Section 7 of the ESA obligates the USFWS to consult with the acting agency to
assess and mitigate the impact of the proposed action on said species and their critical
habitat. 16 U.S.C. § 1536(a)(2). This inter-agency consultation process requires
USFWS to produce a written report known as a “biological opinion.” 50 C.F.R. §
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402.14(g)–(h). The biological opinion must set forth factual findings on whether the
proposed action “is likely to jeopardize the continued existence of [a] listed species or
[its critical habitat].” Id. at (g)(4). Like listing decisions, biological opinions must rely on
the “best scientific and commercial data available.” Id. at (g)(8).
B. 	FACTS ABOUT THE CHALLENGED ADMINISTRATIVE PROCEDURES
Denver Water is a municipal water utility that dispenses water to over 1.1 million
entities around the Colorado Front Range metropolitan area. AR 173953. Denver
Water’s infrastructure is comprised of two delivery systems, which are referred to as the
“North System,” or the “Moffat Collection System,” and the “South System.” AR 123782.
There is no infrastructure to convey water between the systems. AR 123788.
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In 2002, Denver Water hired the private consulting firm, BBC Research and
Consulting, to update Denver Water’s water management planning document, which led
to the production of a “2002 IRP demand forecast.” See AR 177569–792. A demand
forecast, for context, is a planning document used to “define[ ] how much additional
water a utility will need beyond its existing supply and when that water will be needed.”
AR 177575. The 2002 IRP demand projection postulated that, in 2016, Denver Water’s
customers will demand more water than Denver Water can currently supply. AR
177576, 177616. To that end, in January 2003, Denver Water contacted the Corps to
request a CWA § 404(b)(1) permit. AR 177294–95.
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When Denver Water contacted the Corps about beginning the permit application
process, Denver Water contextualized its request by asserting that the permit would
solve “a water supply reliability problem in Denver’s Moffat Collection System and a
vulnerability problem in Denver’s entire collection system.” AR 177294. From the very
beginning—and twenty-one years later, at oral argument10—Denver Water recognized
that this project sought to remedy two conceptually distinct issues. See AR 177294–95
(January 23, 2003 letter from Denver Water to the Corps). The first issue was that
Denver Water simply needed more water. Id. The second problem, however, had to do
with Denver Water’s desire to enhance the efficiency of its water treatment and
distribution infrastructure. According to Denver Water, its South System serves 90% of
Denver Water’s service area, whereas the North System only reaches 10% of Denver
Water’s customer base, which creates an imbalance in the system. This imbalance
creates inefficiencies and puts the entire system at risk of failure in the event of a
megadrought. See, e.g., id.; see also AR 177289–90 (explaining the “Moffat Collection
System Water Supply Reliability and the Entire Collection System’s Vulnerability to a
Disaster”); see generally AR 123788, 123804 (depicting and quantifying the imbalance).
According to Denver Water, the system imbalance can be meaningfully improved
by targeting one component of the North System: the Moffat Water Treatment Plant.
The plant “has never run out of water,” but there were several instances in the last sixty
years where it almost did—save for Denver Water taking emergency measures, which
10 At oral argument, counsel for Respondents implicitly acknowledged as much. “[The discharge
permit] was to solve two general problems; water supply shortages, and overreliance on the
[S]outh [S]ystem.” Hr’g Tr. at 32 (emphasis added).
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included “constructing infrastructure and pumping treated water from the South
System.” AR 129541.11 According to Denver Water, the issue is that the Moffat Water
Treatment Plant shuts down from mid-October to April of every year, and bringing the
plant online on short notice is either extremely inefficient or nigh impossible. See AR
00131 (noting that bringing the plant online requires “prim[ing] the chemical feeds and
prepar[ing] the filters”); see also Hr’g Tr. at 46–47. To operate the plant year-round,
Denver Water must pipe enough water through the plant to maintain the “minimum idle
rate.” (Doc. # 147 at 1) (defining “minimum idle rate” as “the lowest volume of water at
which the plant can operate” to meet applicable regulatory requirements on the quality
of drinking water).12 The plant’s minimum idle rate is approximately 30 million gallons
per day—approximately 90 acre-feet per day. See AR 123871–72; see generally (Doc.
# 147 at 1–2). However, according to Denver Water, during dry periods, there is not
enough water stored in the reservoirs that feed the North System to meet the Moffat
Water Treatment Plant’s minimum idle rate. AR 123803; but see Hr’g Tr. at 47 (“I would
suspect there’s plenty of water in Gross Reservoir to keep an idle rate going.”). The
minimum idle rate is a problem referenced in the record, albeit poorly explained. See
AR 000131; but cf. (Doc. # 147) (explaining that failing to maintain the minimum idle
rate “effectively requires a full shutdown of the plant[ ]”). Although this information is not
11 It strikes this Court as particularly ironic that Denver Water has apparently built infrastructure
to move water from the South to North System before—yet claims any iteration of that solution
would be impracticable as applied to the instant case.
12 At this Court’s request, Denver Water filed a supplemental letter briefly expounding on the
technical minutiae of the “minimum idle rate” concept. (Doc. # 147.)
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apparently in the record, Denver Water’s supplemental filing explains that the plant’s
start-up protocols require such precise choreography that a full plant shutdown cannot
be undone for days, sometimes up to a week. (Doc. # 147 at 1–2.) So, Denver Water’s
second goal—besides obtaining more water—was to feed the Moffat Water Treatment
Plant enough water to keep it running perennially. Id. The Corps took note of Denver
Water’s objectives, as the law requires, and initiated a combined NEPA and CWA
process.
1. 	Pre-EIS Scoping
On September 17, 2003, as required by NEPA,13 the Corps issued a notice of
intent to prepare an EIS for the Moffat Collection System Project, seeking public
comment on the scope of the proposed project. See AR 175761; accord 68 Fed. Reg.
54432 (Sept. 17, 2003); 40 C.F.R. § 1501.3. In the scoping notice, the Corps
characterized the project as a “water supply project” yet articulated four distinct needs to
be solved by the proposed discharge permit:
The Reliability Need: Existing water demands served by Denver Water’s
Moffat Collection System exceed available supplies . . . during a drought,
causing a water supply reliability problem. In a severe drought, even in a
single severe dry year, the Moffat Treatment Plant—one of three treatment
plants in Denver’s system—is at a significant level of risk of running out of
water.
The Vulnerability Need: Denver Water's collection system is vulnerable to
manmade and natural disasters because 90 percent of available reservoir
storage and 80 percent of available water supplies rely on the unimpeded
operation of . . . Denver Water’s South System.
13 NEPA regulations require that federal agencies, as a “threshold determination” assess
whether any given activity or decision they propose triggers NEPA by issuing a public scoping
notice.
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The 	Flexibility 	Need: 	Denver 	Water's 	treated 	water 	transmission,
distribution, and water collection systems are subject to failures and
outages caused by routine maintenance, pipe failures, treatment plant
problems, and a host of other unpredictable occurrences that are inherent
in operating and maintaining a large municipal water supply system. These
stresses to Denver Water's ability to meet its customers’ water supply
demands require a level of flexibility within system operations that is not
presently available.
The Firm Yield Need: Denver Water's near-term water resource strategy
and water service obligations . . . 	has resulted in a need for 18,000 acre-
feet of new near-term water supplies.14
E.g., AR 176962 (alteration in original); see also AR 176962.
The scoping notice received mixed reactions from the public. Denver Water
agreed with the Corps that the project can and should address both the need for more
water and the need to correct the system’s geographical imbalances. AR 173948–988
(addressing both issues as separate subsections). Other stakeholders, however,
disagreed. Multiple environmental organizations, for example, submitted public
comments urging the Corps to frame the scope of the project in a way that would
consider Denver Water’s needs separately, because doing so would avoid the need to
install or enlarge a major dam. E.g., AR 176258, 176263. For instance, “Conduit X,” one
proposed alternative highlighted by the organization “Colorado Trout Unlimited,”
proposed bridging the South and North Systems via pipeline, which would theoretically
address Denver Water’s desire to fortify its system through rebalancing without the
need for a massive dam construction project. AR 176261.
14 “Firm yield” refers to water that can be reliably supplied during drought periods. AR 123692.
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Of all the commenters, the EPA’s particularly skeptical comments deserve
emphasis because the EPA—the agency that wrote the § 404(b)(1) guidelines—warned
the Corps that its application of said guidelines was legal error. The EPA advised the
Corps that the scope of the project need not and should not seek to resolve both of
Denver Water’s demands simultaneously because doing so would lead the Corps to
ignore alternatives that “could resolve the needs in[dependently].” AR 176393; see also
AR 176394 (suggesting alternatives that addressed shortage concerns using means
that do not necessarily require a § 404(b)(1) permit).
In December 2003, the Corps produced a “Scoping Summary” document
reflecting its analysis of Denver Water’s proposed project and consideration of public
comments thus far. See AR 175578–6043. Despite the myriad comments begging the
Corps not to uncritically adopt Denver Water’s framing of the project purposes, the 2003
Scoping Summary concluded that the purpose of the Moffat Collection System Project
should simultaneously solve all four of Denver Water’s alleged needs. AR 175760–61.
Following the conclusion of the scoping inquiry, the Corps next assembled and
led a coalition of federal and state agencies to begin the Herculean task of drafting an
EIS. AR 000017.15
15 This coalition was comprised of the Corps, the EPA, FERC, the Colorado Department of
Public Health and Environment, and the Colorado Department of Natural Resources. Grand
County, Colorado, was also permitted “Consulting Agency status” to opine on the project’s
potential “effects on county resources.” AR 000016–17.
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2. 	2009 Draft Environmental Impact Statement
On October 30, 2009, the Corps released a draft EIS for public review. AR
173948–4007 (“DEIS”).
a. 	The DEIS’s Contents and Reasoning.
The DEIS’s purpose-and-need statement provided that the Moffat Collection
System Project’s purpose was “to develop 18,000 acre-feet per year of new, annual firm
yield [and deliver that water] to the Moffat Treatment Plant and raw water customers
upstream.” AR 159083; see also AR 158908 (listing two distinct concerns: obtaining
new firm yield between 2016 and 2030 (“timeliness”) and correcting for the system’s
overall imbalance (“location”)). The DEIS’s purpose-and-need statement reflected the
same four needs articulated by Denver Water in 2003. AR 159081–83. Many scoping
comments urged the Corps to reconsider adopting this multifaceted purpose because
doing so would set the threshold for practicability as only those alternatives that could
simultaneously satisfy all facets of said purpose. The Corps explained its formulation of
purposes by simply asserting its view that the EPA’s § 404(b)(1) guidelines contemplate
two types of project purposes—an “overall project purpose[ ]” and a “basic [project]
purpose”—where each type of purpose was defined differently and governed different
aspects of the Corps’ public interest review. AR000022–23.
This multifaceted project purpose animated the DEIS’s alternatives analysis,
which began with a “preliminary” alternatives screening process that whittled down 303
potential alternatives to five—all of which involved some degree of tampering with the
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Gross Dam. AR 159084–85; AR 159124.16 Ultimately, after further consideration of
these five “practicable” alternatives and their cumulative impacts on the environment,
the DEIS recommended expanding the preexisting Gross Dam to accommodate an
additional 72,000 AFY of storage—i.e., the Proposed Action. AR 159085; see generally
AR 159093–159127. The fact that all five alternatives that received a “hard look”
involved tampering with the Gross Dam was not by coincidence—because an
alternative’s practicability derives in part from its capacity to serve the project’s purpose.
As for the Corps’ obligation under NEPA to discuss all relevant considerations,
the alternatives analysis referenced climate change. However, rather than venture into
any qualitative or quantitative analyses, the Corps explained that it would not consider
climate change’s potential effects on the practicability of the alternatives that survived
screening. According to the Corps, no “accepted scientific method [for] transforming the
general concept of increasing temperatures into incremental changes [to] stream flow or
reservoir levels” existed that equipped the Corps to analyze how possible hydrologic
changes might affect the Proposed Action. See AR 159572.
b. 	Public Comments on the DEIS.
The Corps’ DEIS fomented a torrent of criticism. See generally AR 128487–
134705 (documenting and responding to at least 2,500 submissions containing nearly
5,000 individual comments). The EPA, one of the many DEIS commenters, raised at
16 Alternative 1(a) enlarged the Gross Reservoir by 72,000 AFY, while the other four alternatives
suggested enlarging the Gross Reservoir by an amount less than 72,000 AFY alongside either
implementing other storage methods or purchasing agricultural users’ existing water rights.
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least two issues that require specific mention because said issues bear directly on
Petitioners’ claims.
First, the EPA questioned the validity of the DEIS’s purpose-and-need statement.
The EPA explained that the regulatory phrases “basic project purpose” and “overall
project purposes” are synonymous and interchangeable. By treating them as different
terms, applicable to distinct parts of the CWA’s public interest review, the Corps’
reasoning rested on an erroneous interpretation of the guidelines—and using that
framework as a rigid screening criterion would violate the guidelines. AR 014684–85.
The EPA also criticized the narrowness of the purpose-and-need statement under
NEPA. AR 014684–85 (citing 40 C.F.R. § 230.10(a)(2)), and warned that such an
approach would violate NEPA:
“Despite [EPA’s] comments detailing the independent nature of these
project purposes, the [DEIS] identifies the same four project needs” as one
purpose “and has also specified the two underlying major issues of
timeliness 	and 	location 	as 	additional 	considerations 	in 	defining 	and
analyzing alternatives, all of which inappropriately limit the alternatives
evaluated.”
AR 014685 (emphasis added). The EPA invited the Corps to “clearly defend [its]
assertion and provide additional rationale” on why Denver Water’s four “needs” are not
independent. See AR 014685 (warning that “Denver Water’s desire to resolve all four
problems with one federal action” might “preclude[ ] identification of available, less
damaging practicable alternatives” (emphasis added)).
Second, the EPA criticized the DEIS for such superficial climate change
considerations insofar as climate-change-driven hydrological aberrations would
undercut the practicability of the Proposed Action or alternatives. AR 014680–81. The
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EPA emphasized that the DEIS should at least consider the extent to which climate
change might make it so there is no new water for the enlarged Gross Dam to impound.
See, e.g., AR 159570 (noting that climate change could significantly diminish the
available raw water because increasing temperatures would hasten snowmelt and
increase the volume of stream flows lost to evapotranspiration). The EPA asserted that,
irrespective of the difficulty quantifying the magnitude of future hydrological changes,
the Corps must better develop the administrative record to account for those changes
given that at least some negative impact on stream flows is reasonably foreseeable. AR
014680. Ergo, the climate change considerations go to practicability. For example, the
EPA highlighted the irony of the Corps’ own observation that the project’s water
throughput would decrease, thereby reducing the days that Denver Water’s water rights
were in priority—priority being a necessary prerequisite for Denver Water to divert
18,000 AFY of water to the Moffat Collection Project in the first place. AR 158570–71.17
As another example of inappropriate considerations, the EPA noted that the applicant’s
preferred timeframe is generally an inappropriate basis to exclude potential alternatives
under the guidelines. AR 041685–86 (“A project proponent’s decision to pursue a permit
should not dictate time frames [sic] in which a project is considered because it artificially
eliminates alternatives that may otherwise be available.” (emphasis added)).
17 Colorado, like many western states, regulates water resources using an appropriative system
of rights where, under the tenet of “first in time, first in right,” senior water rights holders are
protected from injury by diversions caused by junior rights holders. Aspen Wilderness Workshop
v. Hines Highlands Ltd. Pshp., 929 P.2d 718, 725 (Colo. 1996); see also Central Colo. Water
Conservation Dist. v. Simpson, 877 P.2d 335, 345 (Colo. 1994). Junior water rights holders are
not prohibited from diverting water—they cause no “injury” if they exercise their right when it is
“in priority.” Simpson, 877 P.2d at 345.
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3. 	Final Environmental Impact Statement
On April 18, 2014, the Corps published its Final Environmental Impact Statement
(“FEIS”). E.g., AR 000030; see generally AR 123688–AR 134705. The summary of the
FEIS requires discussing the conclusions and reasoning set forth in the FEIS and,
separately, the Corps’ decisions to make (or ignore) changes based on DEIS
comments.
a. 	The FEIS’s Contents and Reasoning.
The FEIS’s purpose-and-need statement was essentially the same as what was
presented in the DEIS. AR 123781.18 The Corps justified its adoption of Denver Water’s
issue framework despite the persistent objections of the EPA and others. It did not
provide the “additional rationale” that the EPA suggested. AR 014685. Instead, the FEIS
emphasized that the Corps independently corroborated Denver Water’s purpose and
need for 18,000 AFY of firm yield to the North System. AR 129309. The Corps’
purportedly independent review, for context, considered five documents: two
memoranda prepared by Denver Water and three reports by a consulting firm, Harvey
Economics. AR 126008–33, 125968–6005, 126036–41. Harvey Economics reviewed
the data on which the 2002 IRP demand projection models relied—twenty-seven years
of economic demographic data that Harvey Economics “believed to be . . . sound and
appropriate [variables] for projecting water demands in 2011.” AR 126037.
18 The only change was, for purposes of the instant motion, immaterial—an acknowledgment
that Denver Water’s mitigatory efforts necessitated amendment to the date of the projected
annual water shortfall, from 2016 to 2022. AR 123781.
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The FEIS adopted the DEIS’s project purpose, and the DEIS’s “preliminary”
alternative screening process, so the FEIS produced the same outcome as the DEIS:
five alternatives received a “hard look,” all five of which involved some variation of
enlarging the Gross Dam. AR 123818–42. Because the Corps declined to change the
“preliminary” alternatives screening process, the Court pauses to explain it in greater
detail here. The “preliminary” alternatives screening process proceeded in two phases:
“Screen 1” and “Screen 2.” Screen 1—which itself was broken down into three
subphases—initially contemplated 303 potential options and evaluated them relative to
existing technological limitations, logistics, costs, environmental consequences, and the
purpose and need statement. AR 123820.
The Screen 1A subphase eliminated 261 potential alternatives because they
were “[in]capable of meeting the basic Project Purpose and Need” or had some other
“fatal flaw[ ].” Id.; see also AR 123821–24 (eliminating alternatives that would “require
Congressional action,” “require relocation of an interstate highway,” or require “clear
violation of state or federal environmental statutes”). Table 2-1 of the FEIS listed sixteen
screening criteria; Table 2-3 broke down how these criteria were used to eliminate
potential alternatives. Id.; AR 123826. Notably, the three purpose-and-need criteria—
“must provide new firm yield,” “must supply water to Moffat Collection System,” and the
2016 deadline—preliminarily eliminated 37 possible alternatives without meaningful
consideration. Id. 94 possibilities were rejected because they could not impound enough
water, and another 58 options were excluded because they would require building a
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new dam on a major waterway. Id. In total, Screen 1A reduced the practicable
possibilities from 303 to 42.
The 42 remaining alternatives proceeded to Screen 1B, wherein the Corps
sought to develop project alternatives by pairing “potential water supply source[s] with
water storage and conveyance components . . . that would meet the Project Purpose
and Need.” AR 123827. By “matching a potential water source with water storage and
conveyance components,” Screen 1B paired all the remaining water supply sources,
water storage options, and water conveyance infrastructure into possible combinations
for the next subphase of preliminary screening. See AR 123827–32. Thus, Screen 1B
transmuted 42 alternatives into 34.
The 34 remaining alternatives advanced to the Screen 1C subphase. During
Screen 1C, the Corps first determined each alternative’s “relative major capital cost”
and converted each alternative into a ratio. AR 123832–33. According to the Corps,
“relative major capital costs” consisted of “[r]ough order-of-magnitude (ROM) and
[r]elative [d]evelopment [c]ost (RDC) estimates.” Id. ROM costs referred to the
estimated costs of a potential alternative’s principal elements—e.g., tunnel length,
pipeline length/diameter, and impoundment capacity. Id. ROM costs did not, however,
“represent the expected total project cost” because they did not account for the variable
costs associated with permitting and mitigation. AR 123832–33.19 Rather than attempt
to estimate permitting and mitigation costs, the Corps instead concocted “RDC
estimates,” which purportedly reflected “a more representative cost estimate” by taking
19 Dam operation and maintenance costs were also excluded.
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50% of each alternative’s projected ROM cost “to account for unknowns, contingencies,
and total development cost escalation.” Id. Each alternative’s “relative major capital
cost” was converted to a ratio, which was then ranked in a relative cost index with a cost
threshold of 5.0. AR 123833. Alternatives with cost indices above the 5.0 threshold were
rejected, which reduced the available alternatives to 14.
Finally, the 14 remaining alternatives reached Screen 2, which focused on
“environmental consequences to the aquatic environment, other ecosystems, and other
natural environmental values” in light of permanent consequences such as construction
and reservoir inundation. AR 123836 (listing evaluation criteria). “Each evaluation
category was treated as having equal weight, i.e., wetlands [were] not considered as
being more or less important than aquatic habitat.” AR 123837. Screen 2 reduced the
possible alternatives from 14 to the 5. Ultimately, the FEIS recommended a preferred
alternative: the Proposed Action, “Alternative 1(a)”—expanding the Gross Dam to
impound an additional 72,000 acre-feet of water.
As for climate change, the FEIS added a qualitative analysis but rejected the
numerous comments demanding quantitative analysis. AR 124638–39; but see, e.g.,
AR 015445–46. The FEIS acknowledged that “firm yield is controlled by drought
periods,” and that “[m]ost climate models” predict rising air temperatures in the West.
AR 124638; AR 123798 (emphasis added). The FEIS even discerned a possible
regional trend—“Colorado[ ] air temperatures have increased about 2 degrees
Fahrenheit in the past 30 years[,] and future winter projections indicate fewer extreme
cold months, more extreme warm months, and more strings of consecutive warm
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winters.” See AR 124638. Moreover, the FEIS noted that “[m]any scientific studies have
predicted an increase in air temperatures, resulting in changes in the composition of
winter precipitation and the timing of spring snowmelt.” Id. The FEIS further observed
that forward-shift in snowmelt runoff timeframes would decrease firm yield potential by
minimizing “the number of days [that] Denver Water’s water rights are in priority to divert
water” to the North System. Id. However, because “hydrological modeling of the impact
of rising temperatures on water resources in mountainous western regions var[ies]
widely,” the Corps concluded that there is no “generally-accepted [sic] scientific method
to correlate” rising air temperature with changes in stream flow or reservoir levels. AR
124638–40 (citation omitted). Thus, the Corps declined to perform any quantitative
analysis or even provide an estimate.
As for costs, the FEIS remained faithful to the RDC estimate cost metric as
defined in the DEIS. AR 123832–33. Although the Corps acknowledged that RDC
estimates “[did] not represent the expected total” cost of each alternative, the FEIS
offered no new insight as to what made RDC estimates “a more suitable representative
cost estimate . . . for use in comparing alternatives.” AR 123832.
b. 	The FEIS’s Public Reception.
The Corps received thousands of comments on the FEIS. See generally AR
128487–134704. Related to the § 404(b)(1) guidelines, again, multiple comments
warned the Corps that the purpose-and-need statement would violate the guidelines
and NEPA. AR 005832–33 (Save the Colorado’s critique); AR 015444–45 (Boulder
County’s critique); AR 129310 (the EPA’s critique). For example, the EPA, warned the
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Corps that its insistence in separately defining “overall project purposes” would lead to
CWA violations because the Corps’ definition lacked any basis in the guidelines. AR
129310–11. The EPA also questioned the legitimacy of the Corps’ LEDPA finding
because the Corps’ multifaceted purpose created a distorted practicability standard that
left unexplored alternatives that had to be presumed the LEDPA until disproven. See
AR 129312. The Corps, however, responded simply by reiterating Denver Water’s
framing of the issue—without explaining why adopting that characterization made
sense—and reasserting the Corps’ idiosyncratic interpretation of “overall project
purposes.” AR 129310, 129311–13 (concluding that Denver Water’s needs are
“interconnected” without explaining how).
As for NEPA, commenters denounced the Corps’ failure to articulate a rationale
for marrying the new firm yield need and the need to fortify the Moffat Water Treatment
Plant. Given that the project purposes were so impactful on the definition of
“practicability,” commenters argued that the extent to which that dispositive factor led to
the dismissal of multiple alternatives made the missing premise a critical link that must
be articulated to justify its narrowing of the alternatives analysis. See, e.g., AR 008390–
91, 97; cf. AR 129311–13 (concluding without explanation that the Corps validly
embraced Denver Water’s entire wish list).
Commenters also questioned the FEIS’s purpose-and-need statement by
substantively challenging the legitimacy of Denver Water’s underlying needs.
Commenters claimed that the Corps erred in concluding Denver Water even needs new
firm yield. AR 005831–48 (asserting that the 2002 IRP models utilized water-use data
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so antiquated that it no longer resembles the region’s hydrology or actual water use
trends); see also AR 005856–57. Commenters expressed skepticism over whether the
Proposed Action would even remedy Denver Water’s purported vulnerability and
flexibility problems because the Moffat Collection System Project would be a drop in the
proverbial bucket given the ratio of imbalance between the North and South Systems.
E.g., AR 008391–92 (calculating a total imbalance reduction of 4%). Other commenters
questioned whether the Proposed Action would even work. Pointing to the Corps’
climate change acknowledgments, commenters argued that the region’s current and
projected future aridity belies the conclusion that an enlarged Gross Dam will see—let
alone impound—18,000 AFY of new firm yield. E.g., AR 008394 (citing FEIS App’x H-1).
Relatedly, many comments separately focused on the Corps’ strategic avoidance
of meaningful climate change considerations. Boulder County, for example, stressed
that climate change’s effect on precipitation must be quantified if not at least estimated
because dams rely on the occurrence of precipitation. See, e.g., AR 015445. Although
some commenters—Denver Water among them—defended the Corps’ decision to limit
its climate change considerations to a qualitative analysis,20 other commenters fervently
20 Denver Water asserted that climate model projections “are not predictions of future
conditions” such that “historical hydrology” offers “the best planning tool.” AR 007445. Denver
Water apparently convinced the Corps that “[t]here is no actionable science that would justify a
conclusion that the enlarged Gross Reservoir will not fill as necessary to produce the intended
18,000 [AFY] of yield.” But cf. Ctr. for Biological Diversity, 72 F.4th at 1179–80 (citing three
peer-reviewed studies published in 2017 and 2018 that establish declining flow rates in the
Colorado River and American West as a whole); AR 015445–46 (quoting CEQ’s 2010
interpretive guidance document on NEPA considerations of climate change) (“The level of detail
in the analysis and NEPA documentation of [climate change] will vary among affected resource
values. For example[,] if a proposed project requires significant quantities of water, changes in
water availability associated with climate change may need to be discussed in greater detail.”
(emphasis added)). Needless to say, the CEQ’s interpretive guidance document, when read
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disagreed. Several offered peer-reviewed methods for predicting climate-change-
induced stream flow reductions and noted that the majority of methods all but guarantee
at least a 15–30% reduction in future stream flows. AR 015445–47; AR 014571–73.
The FEIS’s cost representations also elicited public rebuke. Commenters cited
records of conflicting cost representations and demanded that the Corps address the
discrepancy. Compare AR 123936 (estimating the Proposed Action’s cost at $148.7
million), with AR 004011–12 (representing to FERC that the Proposed Action will cost
approximately $380 million).
Notwithstanding the public’s significant concerns, rather than consider
supplementing the FEIS, the Corps ratified it instead.21
4. 	Record of Decision
In July 2017, the Corps issued its Record of Decision (“ROD”). AR 000008–90.
The ROD certified the FEIS and adopted its findings, which included (1) that the
Proposed Action “is compliant with NEPA Section 101” and “the Section 404(b)(1)
Guidelines [of the CWA]” and (2) the Proposed Action “is the LEDPA.” AR 000049–50.22
alongside observations of the American West’s current aridity concerns, make the Corps’
assumption dubious at best.
21 Both the CEQ and the Corps’ regulations authorize EIS supplementation to account for new
information. 40 C.F.R. § 1502.9(d)(1)(ii); 33 C.F.R. § 230.13(b).
22 The ROD also obligated Denver Water to offset the Proposed Action’s harms through an
approved mitigation plan, but the adequacy of mitigation is not challenged by the petition for
review. That said, the mitigation plan is not a valid excuse for the CWA violations articulated
below. However, in the interest of building a thorough record, the Court notes that the ROD
obligates Denver Water to offset environmental impacts through an approved mitigation plan
that focused on the South Boulder Creek and the headwaters of the Colorado River. However,
the fact remains that construction of the Project will affect 2.24 acres of wetlands and 3.54 acres
of other WOTUS. AR 000044, 47.
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The ROD ossified the project’s “basic” purpose as “to provide supplemental water
supply,” AR 000023, which is not “water dependent” in the Corps’ view. AR 000023. The
ROD also set forth a separate, “overall project purpose”—a much narrower goal
incorporating many more restrictions—which formed the basis of the alternatives
analysis. AR000023.
The ROD enabled the Corps to move the CWA process forward and issue
Denver Water its § 404(b)(1) permit. With permit in-hand, Denver Water began
construction in 2022; construction is expected to conclude by mid-2027. (Doc. # 138 at
19); see also (Doc. # 138-1 at 5). At present, the Gross Dam has been partly
deconstructed in preparation for expansion, and Denver Water already dumped fill
material as authorized by the Corps’ discharge permit. (Doc. # 138 at 19 (describing the
status of the Project’s construction as of December 2023).) Denver Water has been
pouring concrete on a near-continual basis. Hr’g Tr. at 50. The Gross Dam has not yet
been fully expanded, however, which means the land surrounding the Gross Reservoir
is not yet inundated.
5. 	ESA Process
The ESA ties into this case because of the “green lineage cutthroat trout”—a fish
that lives in the Gross Reservoir as well as four streams that feed the reservoir: the
Little Vasquez Creek, the Hamilton Creek, the Bobtail Creek, and the Steelman Creek.
FWS 00021–22. The green lineage cutthroat trout is allegedly related to the ESA-listed
species of fish known as the “greenback cutthroat trout.” FWS 00010 (first citing 32 Fed.
Reg. 4001 (Mar. 11, 1967), then citing 43 Fed. Reg. 16343 (Apr. 18, 1978)).
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To fill the Gross Reservoir’s enlarged capacity would require additional
diversions of water from the four creeks listed above. Water diversion canals that lack
“fish screens” can sometimes sweep fish into new areas along with the diverted water;
this is called “entrainment.” See FWS 00026.23 On June 17, 2016, USFWS published a
biological opinion and incidental take statement recognizing the possibility that the
Proposed Action could harm green lineage cutthroat trout. AR 007833; see generally
AR 00786–007858. In that biological opinion, USFWS promised to maintain “interim
protection under the ESA” for the greenback lineage cutthroat trout because “[s]tudies
have not been conducted specifically on the green lineage cutthroat trout” and because
“several of [the green lineage cutthroat trout’s] populations were previously identified as
greenback cutthroat trout.” FWS 007795–96; see also FWS 00013 (emphasis removed
from original) (asserting that “threats described for the greenback cutthroat trout . . . [are
considered] a surrogate for the threats to the green lineage cutthroat trout”); see
generally FWS 00137 (explaining why USFWS provided interim protections). USFWS
further promised to maintain “all protection that is currently afforded to [greenback
cutthroat trout], including green lineage cutthroat trout . . . on the eastern slope and . . .
on the western slope of Colorado . . . until rulemaking occurs, if necessary.” FWS 00020
(emphasis added).
23 The effects of entrainment are “difficult to assess and quantify without specific on-site
entrainment studies.” FWS 00027. USFWS struggles to “assess[ ] the number of fish lost from a
population due to entrainment” and, as a result, USFWS “consider[s] the amount of water
diverted from a given stream to be a surrogate for fish lost . . . due to entrainment.” Id.
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At the time, USFWS’s 2016 promise of interim protections was supported by a
white paper authored in 2012 by USFWS’s in-house experts. FWS 00132. USFWS
sought to revisit that promise based on a forthcoming “meristic study” reported in 2013
and published following peer review in 2019. Id. (first citing Metcalf et al., 2012, then
citing Bestgen et al., 2019). In the 2016 biological opinion, USFWS also acknowledged
that the Colorado Parks and Wildlife state agency (“CPW”) was preparing a report on
the status of green lineage cutthroat trout forthcoming in the spring of 2020. Id. This
forthcoming CPW report was promised to be “the foundation of [USFWS’s]
comprehensive review of this cutthroat lineage” because USFWS expected CPW’s
report to resolve the taxonomy of the green lineage cutthroat trout. See id. Upon receipt
of CPW’s forthcoming report, USFWS promised to “initiate a comprehensive review of
this fish, subject to funding and availability of agency resources.” Id.
On October 3, 2019, the Corps requested that USFWS revisit the ESA § 7
consultation process vis-à-vis Denver Water’s proposed Moffat Collection System
Project. FWS 00137. As a direct result of the Corps request, on April 17, 2020, USFWS
issued a biological opinion finding that green lineage cutthroat trout are genetically,
morphologically, and geographically distinct from the greenback cutthroat trout. FWS
00137; see FWS 00133; 00135. USFWS determined that the green lineage cutthroat
trout can be protected only as a separately listed species under the ESA, which requires
formal rulemaking procedures. FWS 00132. Consequently, in the 2020 biological
opinion, USFWS withdrew its 2016 biological opinion and incidental take statement. Id.
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Thus, the green lineage cutthroat trout no longer posed a bar to the Moffat Collection
System Project. Id.
That 2020 biological opinion addressed USFWS’s 2016 promise to maintain
interim protections. It stated USFWS’s reason for departing from the expectations it set
four years prior. The USFWS reviewed the meristic studies mentioned above and
apparently determined that “further scientific information and data . . . casts additional
certainty on the divergence of the green lineage cutthroat trout (and other lineages)
from the greenback cutthroat trout subspecies.” FWS 00133. This led USFWS to
conclude that the green lineage cutthroat trout cannot piggyback off the greenback
cutthroat trout’s ESA protections absent the conclusion of a separate listing process.
FWS 00133.
C. 	PROCEDURAL HISTORY
Petitioners began this lawsuit on December 19, 2018, by filing a petition for
review that they supplemented on August 13, 2020. (Docs. ## 1, 45-1.) On March 31,
2021, this Court dismissed the petition for lack of jurisdiction because of confusion
related to the FERC permit attached to the Gross Dam, (Doc. # 70), but on September
30, 2022, the Tenth Circuit reversed and remanded this case for further proceedings.
(Doc. # 77-1.) In late January and early February of 2023, the parties jointly filed almost
200,000 pages of administrative records. See (Docs. ## 83–103, 105–17, 119–124.) On
September 20, 2024, the Court heard oral argument on the merits of the petition for
review.
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II. 	STANDARD OF REVIEW
The Administrative Procedure Act (“APA”) directs courts to “hold and set aside”
agency action deemed “arbitrary, capricious, an abuse of discretion, or not in
accordance with law” including actions found to be “without observance of procedure
required by law.” 5 U.S.C. § 706(2)(A), (D).
Petitions for review invoking APA § 706(2) essentially turn on the quality of the
agency’s reasoning. The “arbitrary or capricious” standard mandates reversal or vacatur
under § 706 when an agency acts without first “examin[ing] the relevant data and
articulat[ing] a satisfactory explanation for its action[,] including a ‘rational connection
between the facts found and the choices made.’” Motor Vehicle Mfrs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (internal citation omitted) (emphasis
added). That explanation must be “based on a consideration of the relevant factors” and
cannot exhibit “a clear error of judgment.” Id.; see also Colo. Wild, Heartwood v. U.S.
Forest Serv., 435 F.3d 1204, 1220 (10th Cir. 2006). Quintessential examples of arbitrary
and capricious agency reasoning include situations where an agency relied on an
explanation that “runs counter to the evidence before the agency” or is “so implausible
that [the explanation] could not be ascribed [as] a difference in view or the product of
agency expertise” or if the agency “failed to consider an important aspect of the
problem.” Id.
A “presumption of validity attaches to the agency action,” and, especially when
the agency’s challenged decision is within its area of expertise, the Court’s review must
be “highly deferential.” Citizens’ Comm. to Save our Canyons v. Krueger, 513 F.3d
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1169, 1176 (10th Cir. 2008) (internal citations and quotations omitted); see also San
Juan Citizens All. v. Stile, 654 F.3d 1038, 1057 (10th Cir. 2011). However, the
presumption of validity does not shield an agency’s conclusions simply because said
agency acts within its area of expertise. The agency must “follow required procedures”
in reaching substantive conclusions because, if it does not, the APA requires reversal or
vacatur. See Krueger, 513 F.3d at 1176.
III. 	INTRODUCTION AND ANALYSIS
The debate over the Gross Dam and Reservoir expansion proposal is both public
and passionate. The administrative record makes abundantly clear that a plethora of
stakeholders in the Colorado River and Front Range’s water resources are deeply
concerned about any proposal that tampers with the region’s already precarious water
management system and uncertain hydrological future. And rightfully so—there is a
massive and ongoing intersectional discussion about the “Law of the Colorado River.”
Considerable public discourse persists because the Colorado River supports seven
states—Colorado, Wyoming, Arizona, Utah, New Mexico, Nevada, and California—and
multiple federally recognized Indian tribes, including the massive Navajo Nation. See
generally Charles J. Meyers, The Colorado River, 19 Stan. L. Rev. 1 (1966–1967).24
24 This footnote provides information that, while not necessarily explicit in the administrative
record, is a prerequisite for any legitimate discussion of western water resource management.
The American West’s viability rests in large part on the Colorado River, which is an undeniably
overutilized water source. The Colorado River’s over-allocation is due to a fatal flaw baked into
the 1922 Colorado River Compact—the bedrock-level agreement that forms the basis of the
various overlapping management systems dictating the River’s death by a thousand cuts. The
Colorado River Compact rests on a politically unpalatable truth—the Compact promised the
basin states water that simply does not exist. According to water experts, the Compact’s
apportionment scheme draws from deliberately misleading hydrological modeling of the
Colorado River’s flow rates. See generally Eric Kuhn & John Fleck, Science Be Dammed: How
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To summarize the analysis that follows: Petitioners have standing, and this case
is not moot. The Corps’ issuance of Denver Water’s § 404(b)(1) permit contravened the
CWA and violated NEPA, but the USFWS’s decision to withdraw interim protections did
not violate federal law.
A. 	JURISDICTIONAL ARGUMENTS
At the outset, the Corps and USFWS (collectively “Respondents”) and Denver
Water challenge Petitioners’ right to even bring this lawsuit for two reasons. First,
Respondents argue that Petitioners lack standing. (Doc. # 137 at 63–66.) Second,
Denver Water contends that the case is mooted by the current progress of the dam
construction. (Doc. # 138 at 20–27.) However, neither argument is availing.
Ignoring Inconvenient Science Drained the Colorado River 1 (Univ. Ariz. Press 2019). That fatal
error now sits enshrined within the Compact, and all of the basin states’ various agreements
with each other (and with the Department of the Interior) are forced to overcorrect for the
Compact’s flawed hydrology because revisiting the agreement would require a virtually
unthinkable amount of time, energy, money, and political will. However, should Colorado River
diversions exceed the river’s available water supply—which appears inevitable, at this rate—the
1922 Compact provides a “compact call” mechanism whereby the upper basin states are bound
to curtail their water users’ diversions to ensure enough water reaches the lower basin states
and Mexico to satisfy the artificially inflated water delivery obligations set forth in the Compact.
This Court emphasizes this context for good reason: the cracked foundation of the Colorado
River’s management system all but demands skepticism over any proposal that will affect the
hydrology of the Colorado River basin. In the instant case, the Corps noted in its FEIS that its
reasoning rests on the assumption that there will be no compact call. AR 159092; but see AR
0014667. However, considering the American West’s last few decades of severe aridity, such
an assumption warrants considerable scrutiny. See, e.g., Anne Castle & John Fleck, The Risk of
Curtailment under the Colorado River Compact 5, 34–35, 40 (2019) (emphasis added) (“Even if
the risk of curtailment of Colorado River rights were assumed to be low, the consequences are
not. Cities, and farmers and ranchers on the West Slope, would lose economic activity, jobs,
income, and community benefits.”); Cherokee Water Dist. v. City of Colo. Springs, 519 P.2d
339, 340–41 (1974) (“Water is essential to the existence of a community.” (emphasis added)). In
light of this context, it is perplexing to this Court that the Corps dismissed the possibility of a
compact call in its analysis of a proposed water management project.
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1. 	Standing
“[U]nder Article III, a federal court may resolve only ‘a real controversy with real
impact on real persons.’” W. Watersheds Project v. Interior Bd. of Land Appeals, 62
F.4th 1293, 1297 (10th Cir. 2023) (quoting TransUnion LLC v. Ramirez, 594 U.S. 413,
424 (2021)). “[T]o establish standing, a plaintiff must show (i) that he suffered an injury
in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was
likely caused by the defendant; and (iii) that the injury would likely be redressed by
judicial relief.” Id. at 1296 (citations omitted). A plaintiff (or, in this case, petitioner),
bears the burden of establishing these elements, and they must do so for each claim
and form of relief sought—and they must maintain that interest at all stages of litigation.
Id.; Davis v. Fed. Election Comm’n, 554 U.S. 724, 733 (2008).
Respondents’ standing arguments revolve around the ESA. Respondents argue
that: (1) Petitioners’ declarations are not specific enough to prove injury-in-fact, (Doc. #
137 at 64–66); (2) Petitioners cannot show redressability because USFWS lacks
jurisdiction over the green lineage cutthroat trout, id. at 64–65; and (3) Petitioners
cannot sue under Section 4 of the ESA because they failed to submit citizen petitions
for listing, id. at 73. In response, Petitioners append to their reply brief the declaration of
Geoffrey Elliott, which asserts additional details about Petitioners’ relationship to the
green lineage cutthroat trout. (Doc. # 143 at 37 (citing Doc. # 143-1).)
Considering the facts of the instant case, Petitioners have adequately alleged an
injury-in-fact that is concrete, particularized, and actual or imminent. “Courts must afford
due respect to Congress’s decision to impose a statutory prohibition or obligation on a
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defendant, and to grant a [petitioner] a cause of action to sue over the [respondent’s]
violation of that statutory prohibition or obligation.” TransUnion, 594 U.S. at 425.
Petitioners’ appended declarations allege both procedural harm—violations of the
various environmental statutes that dictate how an agency goes about making decisions
affecting the environment in which Petitioners’ members live—and concrete injuries—
harm to the environment which, as the declarations also establish, are places in the
world that Petitioners’ members have visited and will visit again soon. (Doc. # 134-1,
134-2.)25 Next, Petitioners have shown that their alleged injuries were caused by
Respondents. Petitioners’ members allege harms that are a direct result of the actions
permitted by the Corps and USFWS. Id.; see also (Doc. # 134 at 38). Finally, Petitioners
have articulated injuries that would be redressable by judicial relief. Petitioners allege
that USFWS has jurisdiction over the green lineage trout as evidenced by its ability to
extend interim protections, and Petitioners adequately defend that assertion with
citations to the administrative record showing that the USFWS indeed considered itself
authorized to extend interim protections once before. E.g., (Doc. # 143 at 37 (citing
FWS 000335–37).) Moreover, although USFWS changed its mind after citing several
peer-reviewed studies, it did promise to wait until CPW released its spring 2020 report.
FWS 00020. Nonetheless, for purposes of determining standing, this Court “must
assume” that Petitioners’ claim has “legal validity,” i.e., they are able to prove that fact.
25 Although part of Petitioners’ proof comes from declarations appended to a reply brief, the
Court accepts this submission without issue because binding precedent allows it, if not implicitly
requires it. See Davis, 554 U.S. at 733; U.S. Magnesium, LLC v. EPA, 690 F.3d 1157, 1164
(10th Cir. 2012) (considering affidavit attached to reply brief for standing purposes); accord
Pennell v. City of San Jose, 485 U.S. 1, 8 (1988).
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Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006).
Respondents’ arguments to the contrary “put the merits cart before the standing horse.”
Id. at 1093 (quoting McConnell v. FEC, 540 U.S. 93 (2003) (“[S]tanding in no way
depends on the merits of the plaintiff’s contention that particular conduct is illegal.”
(emphasis added)).
2. 	Mootness
“Mootness usually results when a plaintiff has standing at the beginning of the
case but, due to intervening events, loses one of the elements of standing during
litigation[.]” WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th
Cir. 2012). If “events so overtake a lawsuit that the anticipated benefits of a remedial
decree no longer justify the trouble of deciding the case on the merits, equity may
demand not decision but dismissal.” Winzler v. Toyota Motor Sales U.S.A., Inc., 681
F.3d 1208, 1210 (10th Cir. 2012). At bottom, the inquiry is essentially whether
“circumstances have changed since the beginning of litigation that forestall any
occasion for meaningful relief.” S. Utah Wilderness All. v. Smith, 110 F.3d 724, 727–28
(10th Cir. 1997) (emphasis added) (citation omitted). The burden of showing mootness
rests with a defendant—or in this case, a respondent/intervenor—and requires showing
that intervening events make it “impossible for the court to grant any effective relief
whatever.” See, e.g., Church of Sci. of Cal. v. United States, 506 U.S. 9, 12 (1992)
(emphasis added) (quotations omitted). For that reason, a showing that partial remedies
remain available typically defeats a claim of mootness. See, e.g., Airport Neighbors All.,
Inc. v. United States, 90 F.3d 426, 428 – 29 (10th Cir. 1996) (“However, courts still
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consider NEPA claims after the proposed action has been completed when the court
can provide some remedy if it [finds a NEPA violation].”); cf. Caddo Nation of Okla. v.
Wichita & Affiliated Tribes, 877 F.3d 1171, 1176 (10th Cir. 2017) (internal citations and
quotations omitted) (finding mootness not of a case, but of a “specific request for an
injunction”).
Intervenor urges this Court to declare moot Petitioners’ claims for three reasons.
First, Denver Water already discharged all the fill material into WOTUS that its §
404(b)(1) permit allowed. (Doc. # 138 at 26.) Second, the case is allegedly moot
because Petitioners declined to move for injunctive relief. Id. at 25 & n.6. Third, the
environmental impacts that remain—namely, the inundation of land caused by the
Gross Dam’s newfound storage capacity, the destruction of trees on said land, and the
excavation of additional rock—do not implicate the § 404(b)(1) permit. Id. at 26–27.
Denver Water’s arguments are unavailing. For one, the record is replete with
evidence that a live “case” or “controversy” remains. 690 F.3d at 1182. Although
construction is underway, and filling of WOTUS has regrettably already occurred, the
Gross Reservoir has yet to impound excess water, which means the shoreline of the
reservoir at its pre-enlargement levels has not yet changed, and the majority of the
500,000 trees remain alive. Hr’g Tr. at 51, 60–61 (promising to quarry additional
aggregate material for the dam’s concrete and remove the trees); see generally (Doc. #
145) (explaining the status of construction as of September 12, 2024). The trees remain
alive, water diversions have yet to occur, and wildlife has not been impacted by the
sudden loss of land. Ergo, this Court’s decision can affect said trees, water, and
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wildlife—which are partial remedies that could undeniably offer Petitioners some relief.
To the extent Denver Water disagrees, it has only itself to blame—because Denver
Water chose to proceed with construction despite the obvious risk posed by pending
federal litigation that could lead to vacatur of the permits authorizing said construction.26
Denver Water cannot “evade judicial review” or “defeat a judgment” through its own
“questionable behavior.” Unified Sch. Dist. No. 259, Sedgwick Cnty., Kan. v. Disability
Rights Ctr. of Kan., 491 F.3d 1143, 1149 (10th Cir. 2007 (internal quotations omitted).
B. 	SUBSTANTIVE ARGUMENTS
Petitioners’ arguments reduce themselves to seven legal claims—two violations
of the CWA, four violations of NEPA, and one ESA violation. Rather than summarize
each argument here, the Court recites each of Petitioners’ positions sequentially, below.
1. 	The Clean Water Act
Petitioners claim that, for two reasons, the Corps violated the CWA and the
Corps’ own regulations—specifically, the Corps’ Part 325 regulations, in which the
Corps agrees to follow the EPA’s § 404(b)(1) guidelines. First, Petitioners assert that,
because the record does not “clearly” demonstrate that the alternatives rejected by the
Corps are not actually available, the Corps failed to rebut the guidelines’ presumption
that “practicable alternatives” are available which do not require disturbing wetlands..
(Doc. # 134 at 42–47 (citing 40 C.F.R. § 230.10(a)(3)); Doc. # 143 at 21–27.) Second,
Petitioners contend that, because the record does not contain sufficiently “detailed,
26 Let the costs associated with Denver Water’s litigation of this matter and the ramifications of
possible permit vacatur serve as a lesson to future permit applicants that seek to hastily
complete their project goals on a questionably valid permit before it gets vacated.
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clear and convincing information” proving that all available alternatives are otherwise
impracticable, the Corps failed to prove that the Proposed Action is in fact the LEDPA.
(Doc. # 134 at 54–63 (first citing 40 C.F.R. § 230.10(a), then citing Utahns for Better
Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1186–87 (10th Cir. 2002).) Both
arguments rest on the premise that the Corps improperly excluded alternatives as
impracticable based on an erroneous interpretation of the guidelines. (Doc. # 137 at 55–
57); accord AR 000022–23 (defining “basic project purpose” and “overall project
purposes” as mutually exclusive).
As explained below, this Court finds that the record supports Petitioners on both
points. Implicit within the Court’s conclusion is a determination that the Corps’
idiosyncratic interpretation of the guidelines is unlawful and, to the extent the Corps
disagrees, its rationale is unconvincing.
a. 	Threshold Question: What Does “Overall Project Purposes” Mean?
When a party challenges an agency’s interpretation of the text of a regulation, the
Court must first clarify what the regulation means before applying it to the instant case.
See, e.g., Kisor v. Wilkie, 588 U.S. 558, 566–74 (2019). If a regulation is truly
ambiguous or vague, a court typically defers to the interpretation of the agency
responsible for drafting it—absent a showing that said agency’s interpretation is “plainly
erroneous or inconsistent with the regulation [itself]” or “countervailing reasons
outweigh” the need for deference. See, e.g., Auer v. Robbins, 519 U.S. 452, 461 (1997)
(Scalia, J.) (internal citations and quotations omitted); Kisor, 588 U.S. at 573. If an
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agency’s interpretation receives no deference, it can still be considered persuasive.
Kisor, 588 U.S. at 573 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
To contextualize the interpretive dispute, the guidelines’ “practicability” definition
section mentions “overall project purposes,” but not “basic purpose[s].” Compare 40
C.F.R. § 230.10, with 40 C.F.R. § 230.1(l). Yet the § 404(b)(1) guidelines instruct the
Corps to ascertain the “basic [project] purpose” to determine whether the “water-
dependency” presumption applies. According to the Corps, the different wording implies
that the two phrases must mean different things, so the Corps created its own definition
of “overall project purposes” and used that definition to dictate what makes an
alternative “practicable.” See (Doc. # 138 at 47 n.11 (citing U.S. Army Corps of Eng’rs,
Updated Standard Operating Procedures for the U.S. Army Corps of Engineers (July 1,
2009), at 15–16, [hereinafter “2009 Standard Operating Procedures”] https://www.
spd.usace.army.mil/Portals/13/docs/regulatory/qmsref/eis/Regulatory%20SOP%20July
%202009.pdf [https://perma.cc/Y788-Z526])); see also AR 000022–23. Consequently,
the ROD sets forth two project purposes—a “basic project purpose” and an “overall
project purpose.”
Petitioners challenge the Corps’ notion that the phrase “overall project purpose”
should have its own definition with operative legal effect. Petitioners insist that “basic
project purpose” and “overall project purpose” must mean the same thing, e.g., (Doc. #
143 at 13–14), because the EPA says they do, and the EPA wrote the guidelines. For
support, Petitioners cite (1) the EPA’s public comments on the DEIS and FEIS that
insist the terms were meant to be used interchangeably and (2) the EPA’s 1980 final
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rule promulgating the § 404(b)(1) guidelines, in which the phrase “basic project
purpose” was used exclusively with respect to the practicability of alternatives. (Doc. #
143 at 16–21); accord AR at 12930; 45 Fed. Reg. 85336, 85339 (1980).
Before this Court can consider the parties’ positions, it must first determine
whether the regulation’s text exhibits a plain meaning. Auer deference is only
appropriate when a regulation is “genuinely ambiguous”—i.e., the regulation remains
ambiguous despite exhaustive use of the traditional tools of statutory interpretation.
Wilkie, 588 U.S. at 573. Consequently, this Court must first deploy “all the standard
tools of interpretation” before considering whether Auer deference is warranted. Id.
i. 	The Regulation is “Genuinely Ambiguous.”
The Court’s analysis begins with the text of the regulation itself. Looking at the
phrases in context, the guidelines have a definition section that mentions one of the two
phrases—“overall project purposes”—as a component of the definition of practicability.
40 C.F.R. § 230.3(l) (“The term practicable means available and capable of being done
after taking into consideration cost, existing technology, and logistics in light of overall
project purposes.” (emphasis added)). However, elsewhere, the guidelines further
modify the definition of practicability: if an alternative requires use of an area not
presently owned by the applicant, the definition of practicability expands to include
areas that can “reasonably be obtained, utilized, expanded[,] or managed in order to
fulfill the basic [project] purpose of the proposed activity.” 40 C.F.R. § 230.10(a)(2)
(emphasis added). Further, the water-dependency presumption conditions practicability
on a project’s “basic purpose.” If the project “does not require access or proximity to or
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siting within the special aquatic site in question to fulfill its basic [project] purpose,” the
presumption applies, which requires presuming that practicable alternatives exist that
avoid the need for discharging fill into WOTUS. Id. at (a)(3) (emphasis added).
At face value, nothing about the context in which these phrases appear suggests
that the EPA intended for both phrases to be mutually exclusive. The only difference
between the two phrases appears to be the use of different modifier terms. See 40
C.F.R. §§ 230.10(a)(2)–(3). Although neither party elects to cite to dictionaries, the
Court’s colloquially understands the modifiers “basic” and “overall” to both mean the
same thing: the general gist. If anything, the seemingly arbitrary way they are used
interchangeably undercuts any conclusion that the EPA intended to imbue the two
phrases with different meanings. Thus, context alone does not appear to diffuse the
agencies’ interpretive conflict.
Because the interpretive inquiry remains unresolved, the Court next considers
canons of construction. See generally Antonin Scalia & Bryan A. Garner, Reading the
Law: The Interpretation of Legal Texts (2012). Four canons that appear pertinent are
mentioned below.
Naturally, the most fitting canon to begin with is the “presumption of consistent
usage” canon, which would direct the Court to conclude that the phrases “basic project
purpose” and “overall project purposes” must mean different things because the
phrases use different words. The logic goes that if the EPA wanted “basic purpose” and
“overall project purposes” to mean the same thing, the EPA could have simply picked
one phrase and used it consistently. See id. at 170 (“[W]here the document has used
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one term in one place, and a materially different term in another, the presumption is that
the different term denotes a different idea.”). However, the underlying premise is that
the textual inquiry is a search for plain meaning, and it is anything but “plainly” clear that
the words mean different things simply because different words were used. “[T]he mere
fact that the words are used in each instance” does not, by itself, necessarily justify
concluding that the EPA’s use of two different phrasings necessarily implies that the
EPA meant to create two terms with distinct definitions and concomitant operative legal
effects. Id. at 172 (citation and internal quotations omitted). Although a material variation
can sometimes suggest a drafter’s intent to create different meaning, nothing in the
guidelines emphasizes the distinction in a way to suggest the difference in word choice
is material. Without more, that omission belies the inference that the modifier terms
“basic” and “overall” are properly considered mutually exclusive. Moreover, as a
practical matter, this Court remains mindful of the time at which the regulation was
drafted. The guidelines were finalized in 1980—well before legislators and agencies
truly began heeding the late Justice Antonin Scalia’s call to draft laws with less
ambiguity.27 Given the relatively lax drafting standards at the time the regulations were
promulgated, it becomes particularly apparent that the consistent usage canon is not
dispositive in the instant case because:
more than most other canons, this one assumes a perfection of drafting
that, as an empirical matter, is not often achieved. Though one might wish
27 See, e.g., Lamie v. U.S. Trustee, 540 U.S. 526 (2004) (Scalia, J.) (citation omitted) (“It is
beyond our province to rescue Congress from its drafting errors[.]”); see also Ass’n of Data
Processing Serv. Orgs., Inc. v. Bd. of Govs. of Fed. Rsrv. Sys., 745 F.2d 677, 685–86 (D.C. Cir.
1984) (Scalia, J.) (expressing frustration with Congress’s “unpropitious use” of a special term of
art in a case involving competing standards of review under the APA).
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it were otherwise, drafters more than rarely use the same word to denote
different 	concepts, 	and 	often 	(out 	of 	a 	misplaced 	pursuit 	of 	stylistic
elegance) use different words to denote the same concept.
Id. Hence, the unfortunate reality of imprecise regulatory drafting—especially when the
drafter is a collective, such as a federal agency—discourages this Court from
considering the parties’ interpretive dispute resolved by the consistent usage canon.
The Court next turns to the surplusage canon, which counsels against “revis[ing
a regulation] by subtraction.” Id. at 174. Applied to § 230.10, the surplusage canon
would guide this Court away from reading “overall project purposes” out of the statute.
See Hr’g Tr. at 15. However, as with most canons of construction, the proposition
underlying the surplusage canon is not invariably true—sometimes, agencies “do
include words that add nothing of substance,” and agencies “are not likely to waste time
or energy arguing to remove redundancy [or sloppiness] when there are more important
issues to address.” Id. at 179 (internal quotations and citation omitted). This observation
is particularly pertinent considering that the EPA was created to extinguish one
(sometimes literal) ecological dumpster fire after another since its inception. The
Sisyphean nature of the EPA’s role supports an inference that the EPA would rather
retroactively clarify the guidelines to avoid dedicating resources to revisiting the
guidelines. “[T]he presumptions [underlying this canon] simply do not match political
reality,” especially in the context of an agency in the 1980s, which leads this Court to
continue its exhaustive search for meaning. Id. (alteration in original) (internal
quotations and citation omitted).
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The Court next considers the “harmonious meaning” canon, which suggests that
the “provisions of a text should be interpreted in a way that renders them compatible,
not contradictory.” Id. at 180. Here, the phrases “basic purpose” and “overall project
purposes” are not necessarily in conflict, because “basic” and “overall” are both
modifiers that refer to the core or fundamental requirements of a thing. The harmonious
meaning canon would lead this Court to interpret the two phrases in a manner that
allows them to peacefully coexist, which is exactly what the drafter of the regulation at
issue, the EPA, suggests. AR 129310–11.
Relatedly, the “associated words” canon encourages the assignment of similar
meaning to when words are associated in a context “in such a way as to indicate that
they have some quality in common.” Id. at 195–96. Here, both “basic project purpose”
and “overall project purpose” are used in the same context—dictating an alternative’s
practicability. See 40 C.F.R. § 230.10(a)(2) (using both phrases in the same provision
when explaining an alternative’s practicability). So, at the very least, this canon
suggests that “basic project purpose” should have some effect on the definition of
practicability—in spite of the Corps’ efforts to keep the phrase quarantined to the water-
dependency determination.
Thus, this Court holds that there is no plain meaning discernible from the
regulation on its face and, unsurprisingly, the canons are inconclusive. Yet, because the
Corps interprets the phrases differently and offers a prima facie valid construction for
each phrase, this Court concludes that the regulation remains “genuinely ambiguous”
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notwithstanding the exhaustive application of the panoply of traditional tools of legal
interpretation. Wilkie, 588 U.S. at 573.
ii. 	Auer Deference Is Warranted.
If Petitioners want this Court to defer to the EPA’s interpretation of “basic project
purpose” and “overall project purpose” over the Corps’ competing view, Petitioners must
satisfy all the prerequisites necessary to justify Auer deference. As explained below,
Petitioners satisfy the prerequisites to trigger Auer deference but, even were that not the
case, the EPA’s interpretation is nonetheless persuasive enough to justify rejecting the
Corps’ contradictory construction.
Auer deference requires not only that the regulation remains “genuinely
ambiguous” after exhausting the traditional tools of legal interpretation, but also that the
proffered interpretation is reasonable. Id. at 576. Moreover, the drafting agency’s
proffered interpretation of its own regulation must be: (1) the agency’s “actual”
position—not an ad hoc statement; (2) within the agency’s substantive expertise; and—
not “or”—(3) reflective of the agency’s “fair and considered” judgment as opposed to a
“convenient litigation position”, a “post hoc rationalization advanced” in preparation for
trial, or an interpretation that postdates the litigation in which the regulation’s meaning is
challenged. Id. at 577–80.
First, Petitioners insist that the EPA’s interpretation in this case is the agency’s
“actual position,” and the EPA’s interpretation has been consistent for over forty years.
(Doc. # 143 at 20); Hr’g Tr. at 64; (Doc. # 148 at 2–13 & nn.1, 6). In support, Petitioners
point to four types of evidence: (1) public comments filed by the EPA in the instant
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administrative proceeding that assert the two phrases are synonymous, (2) the EPA’s
final rule promulgating the guidelines in the Federal Register, (3) a proverbial sea of
written representations from EPA officials to others—including the Corps—
demonstrating forty years of the EPA consistently asserting that practicability turns on a
project’s “basic purpose,” and (4) a separate EPA regulation where the EPA explicitly
made the phrases interchangeable by defining “practicability” as “the basic or overall
purpose of the project.” (Doc. # 143 at 16–21) (emphasis added) (citing 45 Fed. Reg.
85336, 85339 (Dec. 24 (1980)); (Doc. # 148 at 2–13 & nn.1, 6) (citing 67 Fed. Reg.
31129, 31133 (May 9, 2002)) (collecting sources); see also AR 014684–85, 129310–11.
The evidence thus consists of a promulgated regulation that predates the FEIS and
ROD, interpretive guidance documents, and longstanding and consistent official
representations of the same interpretation—clearly not an ad hoc statement, but an
“actual” position.
Next, the EPA’s interpretation of the § 404(b)(1) guidelines are within the
agency’s “substantive expertise.” The meaning of the guidelines is the EPA’s domain.
The EPA wrote the guidelines at Congress’s instruction, and Congress tasked the EPA
with ultimate authority in administering the CWA. See, e.g., Memo. of Benjamin R.
Civiletti, 43 Op. Att’y Gen. 197, 201–02 (Sept. 5, 1979),
https://www.epa.gov/sites/default/files/2015-08/documents/civiletti_memo.pdf
[https://perma.cc/33GZ-9YSK] (noting that neither the CWA’s own terms nor the act’s
legislative history suggests that the Corps is the CWA’s final administrative authority);
accord 33 U.S.C. § 1251(d).
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Last, as Petitioners’ supplemental letter has made abundantly clear, the EPA’s
interpretation is far from a “convenient litigation position.” 588 U.S. at 578. The EPA is
not a party to this litigation, so it has not crafted this interpretation in an attempt to affect
this litigation. Moreover, its interpretive position predates the Moffat Collection System
Project’s administrative procedures by decades. Further, the EPA’s interpretation
accords with the operative and normative thrusts of the CWA. Such an interpretation is
properly considered the product of the agency’s “fair and considered” judgment. 519
U.S. at 462.
In sum, the EPA has made its view known for over forty years in contexts ranging
from (1) simple correspondence on EPA letterhead to (1) public comments directed at
the Corps to (3) official regulations evidencing the exact interchangeability asserted in
the instant case. (Doc. # 148 at 2–13 & nn.1, 6). Although it is true that the EPA could
have formalized its interpretation of these conflicting phrases, Petitioners have
established that the EPA’s reasoning is “reasonably discernible” enough to warrant
deference. Licon v. Ledezma, 638 F.3d 1303, 1308 (10th Cir. 2011).
iii. 	The EPA’s Interpretation Is Persuasive.
Even assuming arguendo that this Court erred in its Auer analysis, the EPA’s
interpretation of its own regulation is nevertheless sufficiently persuasive to overcome
the Corps’ contrary view. First, the Corps’ interpretation of another agency’s regulations
deserves no deference given that the agency that wrote said regulations condemned
the Corps’ interpretation. Mindful that “the authority to construe [practicability] amounts
to the authority to determine the scope of the § 404 permit program,” this Court sees
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considerable reason to deny the Corps’ competing view any deference. See, e.g.,
Memo. of Benjamin R. Civiletti, 43 Op. Att’y Gen. 197, 200 (Sept. 5, 1979),
https://www.epa.gov/sites/default/files/2015-08/documents/civiletti_memo.pdf
[https://perma.cc/33GZ-9YSK]. Second, structurally, the CWA bestowed the
responsibility of promulgating the CWA § 404’s standards to the EPA—not the Corps.
Id. at 199–200 (citation omitted). Obviously, the EPA should be the agency whose
intent—or, more precisely, the lack thereof—governs the interpretation of said
regulations. Third, textually, the Corps’ definition is based solely off of non-dispositive
semantic canons of construction. The mere fact that the phrases about project purpose
use functionally equivalent modifier terms does not entitle the Corps to conjure mutually
exclusive definitions that carry separate, operative legal meaning without at least
something in the administrative record, the Federal Register, or the Code of Federal
Regulations suggesting that the EPA intended for the guidelines to do so. Hr’g Tr. at
12–13 (acknowledging that there is no definition of “overall project purposes” in the
Corps’ Part 325 regulations).28
28 Although there is some weight behind Respondents’ emphasis that the Corps can create two
project purposes because the phrase “overall project purposes” is plural, the Federal Register
offers no reason to infer that the pluralization evinces intent to imbue separate meaning.
Moreover, the Corps’ interpretation would create a material inconsistency in the CWA whereby
the Corps would have to create two possibly inconsistent definitions of practicability. For
example, the Corps could conclude that an alternative is impracticable for failing to meet the
“overall project purposes” of supplying 18,000 AFY of firm yield to the Moffat Water Treatment
Plant because it would impound water at Leyden Gulch, but then have the Corps assess the
practicability of impounding water at Leyden Gulch based on whether acquiring, utilizing,
expanding, or managing the Leyden Gulch furthers the “basic [project] purpose.” See (Doc. #
148 at 2 n.1.)
The obvious drawback of condoning such inconsistency is exemplified by the instant case,
whereby the Corps used one project definition to completely avoid serious consideration of all
alternatives that avoided tampering with the Gross Dam.
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Although Respondents disagree, the context of their legal authorities reveals the
futility of their position. Respondents point not to the Code of Federal Regulations or the
Federal Register but, rather, their own 2009 Standard Operating Procedures. The 2009
Standard Operating Procedures are merely the Corps’ own interpretive guidance
document, which (1) was never subjected to notice-and-comment rulemaking and (2)
contradicts the Corps’ prior interpretive position. E.g., (Doc. # 137 at 38–39; Doc. # 138
at 45–50); cf. Memo. on Plantation Landing Resort Permit from Lance D. Wood, Asst.
Chief Counsel, U.S. Dep’t of Army Corps 8 (May 9, 1989), https://www.epa.gov/sites/
default/files/2015-05/documents/2006_04_19_wetlands_plantationlandingelevation
request.pdf [https://perma.cc/T7W4-3V8R] (“the Guidelines’ mandate [is] to use every
project’s basic purpose for the Guidelines’ practicability review” (emphasis in
original)).29
29 Respondents and Intervenor also point to several federal courts that have recognized a legal
distinction between “overall project purposes” and “basic [project] purpose,” but the reliance on
those cases is sorely misplaced. None of those courts had this interpretive issue squarely
presented to them, and without adequate briefing on that issue, those courts took the 2009
Standard Operating Procedures at face value. (Doc. # 137 at 15 (citing Fla. Clean Water
Network, Inc. v. Grosskruger, 587 F. Supp. 2d 1236, 1243 (M.D. Fla. 2008) (citing All for Legal
Action v. U.S. Army Corps of Eng’rs, 314 F. Supp. 2d 534, 548–49 (M.D.N.C. 2004)).) However,
as explained above, the Standard Operating Procedures deserve no deference. For that reason,
to the extent that other federal district and circuit courts cite Grosskruger and All for Legal
Action, those cases are equally invalid. See generally Gouger v. U.S. Army Corps of Eng’rs, 779
F. Supp. 2d 588, 606 (S.D. Tex. 2011); Del. Riverkeeper Network v. U.S. Army Corps of Eng’rs,
869 F.3d 148, 157–58 (3rd Cir. 2017); Friends of Santa Clara River v. U.S. Army Corps of
Eng’rs, 887 F.3d 906, 912 (9th Cir. 2018). Beyond that, Respondents and Intervenor cite cases
whose technical holdings did not squarely address and approve of the Corps’ dual-purpose
strategy. See generally Sylvester v. U.S. Army Corps of Eng’rs, 882 F.2d 407, 409 (9th Cir.
1989); Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1270 (10th Cir. 2004); Hillsdale
Env’t Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1170 (10th Cir. 2012).
None of the aforementioned cases forced a court to examine the validity of the Corps’
interpretation of the guidelines, and, for that reason, they are simply inapposite.
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Because the Corps’ newfound definition is noticeably devoid of persuasive
authority (textually, structurally, logically, or otherwise), the Corps’ interpretation cannot
stand. Concluding otherwise would not only contradict the agency that wrote the
guidelines but also, given the context of the instant case, undercut the CWA’s
substantive protections. Cf. AR 129310–11.
Respondents and Intervenor disagree, but their counterarguments rely on a
distinction without difference. They fail to adequately support their argument’s implicit
premise that the distinction between “overall” and “basic” is material. Ockham’s Razor
counsels that the simplest explanation is most likely true and, here, the simplest
explanation is that the word variation appears to be no more than sloppy drafting.
Critically, neither Respondents nor Intervenor offers any evidence suggesting otherwise.
Cf. 45 Fed. Reg. 85336, 85339 (Dec. 24, 1980). The Corps’ definition comes from a
paper-thin source of authority that escaped notice-and-comment rulemaking—the
Corps’ 2009 Standard Operating Procedures. Given the choice between the two
interpretations, this Court opts for the view of the regulation’s drafter, which accords
with the thrust of the CWA, over the informal memorandum of the Corps, which is “not a
state water agency.” Hr’g Tr. at 33.
Thus, the Court finds that the EPA’s interpretation is persuasive—at the very
least, far more persuasive than the Corps’ definition. The EPA never intended to imbue
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the phrases “basic [project] purpose” and “overall project purposes” with mutually
exclusive definitions.30
b. 	The Corps Failed to Prove that Wetlands Must Be Destroyed.
With the guidelines’ meaning clarified, the Court now turns to the merits of
Petitioners’ arguments. Petitioners contend that the Corps failed to produce an
administrative record that rebuts the water-dependent presumption because the Corps
prematurely rejected alternatives based on its unlawful interpretation of practicability.
(Doc. # 134 at 42–43.) As detailed below, this Court agrees.
According to the Corps, the Proposed Action’s goal of “providing supplemental
water supply” by enlarging the Gross Dam is not water dependent. AR 000022–23.
Because the Proposed Action is not water dependent, the Corps must (per the
guidelines) presume that practicable alternatives exist that do not involve disturbing
wetlands. 40 C.F.R. § 230.10(a)(3). Ergo, the Corps cannot lawfully issue Denver
Water’s discharge permit without “clearly” disproving that there are practicable
alternatives available that avoid the use of wetlands. See id.
Turning to the administrative record, the Corps’ erroneous practicability definition
led it to reject “sixteen storage sites [with] corresponding water supplies, two water
supply management strategies, and one conveyance component” that avoided the
30 It makes sense that the Corps can consider a permit applicant’s stated purpose. However,
nothing in the CWA’s statutory scheme supports exalting the applicant’s project goals above the
purpose of the statute—minimizing the degradation of WOTUS. Congress expressly conditioned
discharge permits on the EPA’s guidelines and directed the EPA to harmonize its forthcoming
guidelines with seven enumerated factors. 33 U.S.C. § 1343(c). Notably, the permit applicant’s
goals are listed nowhere among them.
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disturbance of wetlands See, e.g., AR 123826; AR 167619. Those nineteen alternatives
were rejected entirely because they could not provide supplemental water supply to the
Moffat Water Treatment Plant. AR 167619. However, as explained above, the definition
of practicability in the instant case is “providing supplemental water supply” because the
Corps’ “overall project purposes” definition, which injected the geographic preference
into the practicability standard, is legally indefensible. Because the water-dependency
presumption applies, the Corps was required to presume that at least some of those
alternatives could have produced 18,000 AFY of firm yield without disturbing precious
wetlands. See, e.g., Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254, 1260 (S.D. Fla.
2009). Yet the record does not provide much meaningful detail about the practicability of
these 19 alternatives insofar as they can provide supplemental water supply—due to
the Corps preliminarily excluding them. AR 123826. Although this Court would prefer
citing to the administrative record in support of its conclusion that the Corps gave short
shrift to said alternatives, there is nothing to cite, which is precisely the issue raised by
Petitioners’ claims. Mindful that the Corps, by law, must disprove every potentially
practicable alternative that does not disturb special aquatic sites, the dearth of
information on these nineteen alternatives leads this Court to presume that all of them
were practicable and available. See 40 C.F.R. § 230.10(a)(3).
Consequently, the administrative record cannot “clearly” disprove that any of
those nineteen alternatives were both practicable and available based on such a scant
record. This Court thus finds that the Corps failed to disprove that the Proposed Action
required disturbing wetlands in violation of 33 C.F.R. § 323.6.
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c. 	The Corps Failed to Prove that the Proposed Action is the LEDPA.
Next, Petitioners assert that the Corps’ LEDPA finding violated the guidelines
because the Corps (1) unlawfully excluded alternatives based on its unsupported
definition of “practicability”, (2) failed to “clearly” support its LEDPA finding insofar as
practicability depends on project costs, and (3) failed to “clearly” support its LEDPA
finding by ignoring the foreseeable effects of climate change on precipitation. E.g., (Doc.
# 134 at 54–57.) The Court agrees on all three points.
i. 	Rejected Alternatives Could Be the LEDPA.
As mentioned above, the § 404(b)(1) guidelines prohibit the Corps from issuing a
permit unless the administrative record clearly demonstrates that “there is [no]
practicable alternative to the proposed discharge which would have less adverse impact
on the aquatic ecosystem.” 40 C.F.R. § 230.10(a) (emphasis added) (the “LEDPA”
determination). The “no-discharge” presumption adds to that burden—the Corps must
further disprove the possibility that any practicable alternative not involving filling
WOTUS could be the LEDPA. 40 C.F.R. § 230.10(a)(3).
Those legal standards in mind, this Court finds that the administrative record has
not satisfied the burdens imposed by the guidelines. In the instant case, the Corps’
alternatives analysis formed the basis of the Corps’ LEDPA finding. By law, the
alternatives analysis was obligated to disprove that any practicable alternative not
involving discharge into WOTUS could be the LEDPA. However, because the Corps’
definition of practicability is inherently unlawful, the Corps’ preliminary screening of
alternatives was invalid. Those alternatives, under the guidelines, are presumed the
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LEDPA until proven otherwise. Id. On these facts, the administrative record simply
cannot “provide detailed, clear and convincing information proving impracticability.”
Utahns, 305 F.3d at 1186 (emphasis in original). Thus, the Corps’ flawed alternatives
analysis left many stones unturned, which invalidates its LEDPA finding in violation of
33 C.F.R. § 323.6.
ii. 	RDC Estimates Cannot Support a LEDPA Determination.
Irrespective of whether the limited range of alternatives considered necessarily
invalidates the LEDPA finding, Petitioners next argue that the uncertainty created by the
Corps’ inexplicably formulated cost metric also undermines its LEDPA finding. E.g.,
(Doc. # 134 at 57.)
Cost must be considered when assessing the practicability of an alternative. 40
C.F.R. § 230.3(l). Although the guidelines do not expressly mandate a particular cost
metric or list of cost-related factors, the Corps’ discretion to choose a cost methodology
depends on the agency first explaining “why it is reliable.” Hillsdale Env’t Loss
Prevention, Inc. v. U.S. Army Corps of Eng’rs, 702 F.3d 1156, 1177–78 (10th Cir. 2012).
Provided the Corps’ cost assessment is reasonable, a court generally upholds the cost
assessment. See, e.g., Friends of Santa Clara River v. U.S. Army Corps of Eng’rs, 887
F.3d 906, 912 (9th Cir. 2018). Typically, the default cost metric is “overall scope and
cost,” which is notably not defined as a random subset of costs. 45 Fed. Reg. 85339
(1980), 61 Fed. Reg. 39999 (1996).
In the instant case, the Corps chose to represent the costs of the mitigation and
permitting necessary to implement each alternative with a dollar amount that accounted
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for permitting and mitigation by merely multiplying each alternative’s expected
construction costs by 1.5. AR 123832–33. However, as Intervenor’s cited case law
acknowledges, the reasonableness of an agency’s chosen cost metric rests on the
predicate condition that the agency explained “why [the metric] is reliable.” (Doc. # 138
at 41–42, 51–52 (citing Hillsdale Env’t Loss Prevention, Inc., 702 F.3d at 1177–78).
Neither Respondents nor Intervenor—nor the record itself, for that matter—offers an
adequate explanation as to why it is reasonable to assume that 50% of each
alternative’s cost realistically represents the costs of permitting and mitigation.31 Nor
has Intervenor identified a single instance where the Corps—or any federal agency, for
that matter—has used RDC estimates to account for the permitting and mitigation costs
associated with a construction project.32 Petitioners, by contrast, have identified Tenth
Circuit case law rejecting the use of such sweeping cost assumptions to account for
permitting and mitigation. Utahns, 305 F.3d at 1187. Instead, Intervenor relies on the
unremarkable observation that the guidelines do not obligate the Corps to conduct a
“formal ‘cost-benefit analysis’” and conclude (without explanation) that the Corps’
comment defending its cost metric is a “rational” response. (Doc. # 138 at 41.) 33
However, Intervenor’s argument misses the point. Petitioners’ claim does not demand a
31 In fact, Respondents do not even bother addressing this problem in their brief—and they
represent the Corps.
32 Not that it matters—neither Intervenor nor the Corps can defend its cost metric with reasoning
formulated post hoc. Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 395 (D.C. Cir.
1973).
33 Intervenor also attempts to shift the burden to Petitioners by accusing them of failing to
specify alternatives that were excluded based on cost. (Doc. # 138 at 42.) Yet, according to
Petitioners, twenty alternatives were excluded by cost. E.g., Hr’g Tr. at 73.
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formal cost-benefit analysis. The problem is the inexplicable nature of choosing to
ignore massive costs that vary considerably by circumstance. If costs go to
practicability, and the cost analysis ignores such a significant category of costs (or
neglects to explain why doing so is reasonable), then the record cannot “clearly”
demonstrate that any given alternative is the LEDPA because the record cannot
conclusively determine that said alternative is even financially viable after accounting for
permitting and mitigation.
Thus, the Corps’ failure to prove the financial feasibility of the Proposed Action
means the Corps has not met its burden of “clearly” demonstrating that the Proposed
Action is the LEDPA in violation of 33 C.F.R. § 323.6.
iii. 	Ignoring Climate Change Undermines the LEDPA Finding.
As for Petitioners’ final CWA argument, they assert that the Corps’ burden of
“clearly” demonstrating the LEDPA cannot possibly be met without considering some
quantification of climate change’s effects on precipitation. (Doc. # 134 at 60–63.)
Needless to say, a dam’s storage function depends on precipitation. It follows
that the practicability of a dam as a water storage solution depends on precipitation and
losses due to evapotranspiration as the water sits in storage. The Corps certainly
recognizes as much, as does Denver Water. See AR 124638–40; AR 173975–77
(recognizing that climate dictates evapotranspiration rates for water sitting in a reservoir,
which is why one acre-foot of water does not equal an acre-foot of “firm yield”). Ergo,
“clearly” demonstrating that a dam is the LEDPA in the context of a water supply project
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requires confirming that there will even be additional water to impound. See 40 C.F.R. s
230.3(l) (“[P]racticable means . . . taking into consideration . . . logistics”).
Both the DEIS and the FEIS acknowledged that climate change could decrease
or eliminate firm yield. The Corps observed that “firm yield is controlled by drought
periods” and that climate change will undeniably shift the timing of snowmelt, which can
decrease stream flows which, in turn, reduces the North System’s ability to collect and
deliver raw water at a time when Denver Water can actually exercise its right to divert
said water. AR 123798, 124638–40, 159570–71. Incredibly, the Corps even recognized
that climate change’s impact on hydrology might render the Proposed Action ineffective
enough to warrant the need for “additional replacement sources [of water] to ensure an
adequate supply.” AR 124638–40, 159570–71. Yet, despite acknowledging that future
climate conditions might neuter the Gross Dam’s value as a water storage solution, the
Corps expressly declined to attempt to quantify the impacts of climate change—or even
provide an educated guess, for purposes of discussion. AR 000130. This proves fatal to
the Corps’ LEDPA finding because, if the Gross Reservoir has no extra water to
impound, or that water is lost to the sun or flora, the Proposed Action cannot possibly be
practicable in a logistical sense. As the Corps provided no quantitative assessment—or,
at the very least, only an educated guess—to disprove those possibilities, the LEDPA
determination rests partly on guesswork. It is therefore inconceivable that the Corps
could “clearly demonstrate” that the Proposed Action is the LEDPA without at least
examining a single hypothetical scenario where future climate conditions prevent the
Gross Reservoir from reaching or maintaining its newfound capacity.
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Respondents fervently disagree in two respects, but neither counterargument
withstands scrutiny. First, Respondents argue that the Corps’ assessment of “potential
cumulative impacts . . . included an analysis of climate change.” See (Doc. # 137 at 23,
58–62.) Respondents’ assertion, however, is half-true at best. The Corps’ analysis was
entirely qualitative—the mere recognition of relevant variables. However,
acknowledging that variables exist does not justify ignoring any scenario where said
variables render the Proposed Action impotent. Second, Respondents insist that the
Corps was entitled to avoid quantitative climate-change analysis based on the
uncertainty of the Corps’ in-house expertise. Id. at 61–62. Respondents’ contention
ignores the strict burden of proof set by the guidelines to support a LEDPA
determination. The Corps in this case was required to examine the extent to which
climate change would undercut the practicability of the Proposed Action. Such is the
nature of a substantive requirement that hinges on proving a fact. Further, this Court
cannot help but highlight the irony that the Corps claims it cannot find a way through the
uncertainty of future hydrological modeling. For one, the “firm yield” concept inherently
requires accounting for losses due to evapotranspiration which, per the Corps, will vary
as the climate changes. AR 173975–77. Also, as explained above, the Corps was more
than willing to account for uncertainty when it came to permitting and mitigation costs.
To conclude, this Court finds that the record’s utter failure to consider climate
change’s impact on hydrology belies the Corps’ determination that the Proposed Action
is the LEDPA in violation of 33 C.F.R. § 323.6.
2. 	The National Environmental Policy Act
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Petitioners advance four NEPA claims. The first two claims concern the Corps’
purpose-and-need statement, and the second two claims involve relevant
considerations that never received a “hard look” in the administrative record. As detailed
below, the Court agrees with three of Petitioners’ four theories.
a. 	The Record Supports Both Needs, Albeit Separately.
Petitioners first claim the Corps violated its own NEPA implementing regulations
by failing to substantiate Denver Water’s purported need for (1) 18,000 AFY of new firm
yield and (2) that water being routed through the North System. (Doc. # 134 at 47–54);
accord 33 C.F.R. Pt. 325 App’x B. Although Petitioners acknowledge that the Corps
reviewed the materials underlying Denver Water’s purported needs, Petitioners contend
that the Corps’ review failed to satisfy NEPA because it papered over significant factual
inconsistencies and ignored a potential conflict of interest between Denver Water and
the Corps’ consultant agency, Harvey Economics. Id.; (Doc. # 143 at 27–29). However,
as explained below, this Court finds that the record supports the Corps’ determination
that Denver Water needs at least some amount of new firm yield.
i. 	Denver Water’s Need for New Firm Yield.
An agency has discretion to define a project’s purposes, and a court should
uphold said agency’s definition where reasonable. E.g., Wyo. v. U.S. Dep’t of Ag., 661
F.3d 1209, 1244 (10th Cir. 2011); accord Citizens Against Burlington, 938 F.2d at 196.
When formulating an EIS’s purpose-and-need statement, an agency must at least
consider a project proponent’s objectives, but said agency must exercise independent
judgment in doing so. E.g., Colo. Env’t Coal., 185 F.3d at 1174–75. The agency’s
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independent judgment must strike a balance between wholly adopting the project
proponent’s proffered purpose and ignoring them entirely. Id. At bottom, the agency
must produce a purpose-and-need statement “from both the applicant’s and the public’s
perspective.” However, an agency’s discretion is not without limit. NEPA prohibits
agencies from framing a project’s purpose “so narrowly that it foreclose[s] a reasonable
consideration of alternatives.” Davis v. Mineta, 302 F.3d 1104, 1119–20 (10th Cir. 2002)
(citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 19 (2008)), abrogated in part
by Dine Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276 (10th Cir. 2016)
(focusing on preliminary injunctions). Moreover, NEPA forbids agencies from ignoring
significant data discrepancies. See, e.g., All. to Save the Mattaponi v. U.S. Army Corps
of Eng’rs, 606 F. Supp. 2d 121, 129–30 (D.C. Cir. 2009); see also Shawnee Tribe v.
Mnuchin, 984 F.3d 94, 102 (D.C. Cir. 2021) (vacating based on an agency’s decision to
ignore data outdated by six years); Landwatch v. Connaughton, 905 F. Supp. 2d 1192,
1197 (D. Or. 2012) (finding NEPA violations due to an agency having more recent data
yet choosing to rely on outdated data without explaining why the older data was
adequate).
Petitioners dispute that 18,000 AFY is the volume of water needed.34 Denver
Water reached this figure based on the 2002 IRP demand projection produced by BBC
34 Denver Water’s representations at oral argument strongly suggest that the Moffat Water
Treatment Plant could obtain enough water to maintain its minimum idle rate without first
securing new water supply. Hr’g Tr. at 47 (“I would suspect there’s plenty of water in Gross
Reservoir to keep an idle rate going.”). This observation is especially ironic considering (1) the
Corps took pains to avoid consideration of Conduit X or similar system-bridging solutions, and
(2) Denver Water itself acknowledged that it has built infrastructure in the past to re-route water
where necessary. AR 129541 (noting that Denver Water previously built infrastructure to avoid
an unplanned North System shutdown).
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Research and Consulting. See generally AR 177569–792. The Corps had an obligation
to corroborate that need and, to that end, the Corps delegated that responsibility to a
consulting firm, “Harvey Economics.” AR 125970–71; AR 158890. The Corps’
independent assessment is therefore that of Harvey Economics, which documented its
analysis in a 2012 report that Petitioners challenge. See id. Petitioners’ argument
challenges the 2012 Harvey Economics report, which uncritically endorsed the 2002
IRP demand projection’s precipitation and water-use data despite the availability of
newer, relevant data. (Doc. # 134 at 50–51); accord AR 005811, 006768–71, 008475.
Petitioners question the legitimacy of the 2012 report’s conclusion that the Corps can
rely on data sets spanning the years 1971 to 2000 and 1973 to 1999 when there was in
fact more recent data available, and said newer data contradicted the older data. (Doc.
# 134 at 50); AR 125972.
The administrative record reveals that Harvey Economics reaffirmed the
legitimacy of antiquated data without much reasoning—only the conclusion that the
allegedly antiquated data remained sufficient. AR 126037. However, the newer data
contradicts the older data. The older data predicted greater water use demands,
whereas the newer data suggested that water conservation initiatives were proving
even more successful than anticipated. E.g., Hr’g Tr. at 80–81 (explaining that in 2011,
six years before the ROD issued, the Corps’ primary data source, the National Oceanic
Atmospheric Administration released an updated data set based on much hotter, drier
climate conditions). Yet, Harvey Economics failed to explain this contradiction, which
renders what could otherwise have been a valid assertion of expertise little more than a
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bald conclusion. NEPA does not require that an agency always use the newest data,
provided it offers an explanation as to why older data remains viable, but an agency
cannot satisfy NEPA without addressing such discrepancies. See, e.g., All. to Save the
Mattaponi, 606 F. Supp. 2d at 129–30. Without that explanation, the administrative
record would not support Harvey Economics’ conclusion that Denver Water’s need for
new firm yield must be exactly 18,000 AFY.
However, Denver Water’s need for more firm yield is not necessarily driven by its
consumer base alone. The record explains that the 18,000 AFY of firm yield is
necessary to convert the Moffat Water Treatment Plant from part-time operation to year-
round operation. Doing so would improve the efficiency of the Moffat Water Treatment
Plant. Irrespective of Petitioners’ substantive critiques of the 2002 IRP demand
projection, the fact that the Moffat Water Treatment Plant must process a certain
volume of water per day to maintain its “minimum idle rate” creates a need for however
much water is necessary to meet that threshold. AR 000132 (discussing minimum idle
rate); AR 125970–71 (corroborating the 2002 IRP demand projection); see also Hr’g Tr.
at 45–46 (positing that the Gross Reservoir’s pre-enlargement capacity could not
sustain the Moffat Water Treatment Plant’s minimum idle rate through a drought). At the
outset, it must be recognized that the record does a poor job of clarifying how much
water that “minimum idle rate” actually requires—for two reasons. First, again, the
Corps neglected to even estimate let alone quantify climate-change-induced aridity’s
effect on precipitation. Second, as Intervenor acknowledged at oral argument, the
Moffat Water Treatment Plant’s minimum idle rate is only impossible to maintain during
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a drought. Hr’g Tr. at 28, 47. Regardless, NEPA does not require absolute mathematical
certainty, and the record contains information that supports the Corps’ belief that
Denver Water needs to fortify its North System in the near-certain event of future
drought. Per the record, if enough water flowed through the Moffat Water Treatment
Plant to perennially maintain its “minimum idle rate,” the plant could stop wasting the
considerable resources consumed whenever the plant is brought online after a
shutdown. See, e.g., AR 000131; see also (Doc. # 147). Regardless of Petitioners’
complaints regarding how inaccurately Denver Water might have predicted future water
customer needs, at an infrastructural level, the administrative record shows that the
plant itself needs more water to reap the benefits of maintaining the minimum idle
rate.35 The record thus contains adequate support for the notion that Denver Water
actually needs some volume of firm yield.
ii. 	Ed Harvey’s Alleged Conflict of Interest.
Although Harvey Economics provided no real explanation as to what made the
2002 IRP demand projection’s antiquated data sufficient, Petitioners supply a theory.
They accuse Harvey Economics of bias—blindly supporting the 2002 IRP demand
projection—because the founder of Harvey Economics, Mr. Ed Harvey, worked at BBC
35 Petitioners insist that the Proposed Action would not meaningfully address the imbalance
issue because the Moffat Collection System Project would only decrease the imbalance ratio by
approximately 1%. (Doc. # 134 at 53.) However, Petitioners’ argument is too narrow. The issue
is not changing the number of water users that draw from the North System relative to the South
System—it is bringing the Moffat Water Treatment Plant online perennially to avoid the waste
associated with its annual winter shutdown. AR 000131.
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Research and Consulting when it produced the 2002 IRP demand projection. E.g.,
(Doc. # 143 at 27–28.)
If an EIS is prepared by a contractor, the agency must “independently evaluate”
that the contractor has “no financial or other interest in the outcome of the project.” 40
C.F.R. § 1506.5(c). The “responsible Federal official shall . . . take responsibility for [the]
scope and contents [of the contractor’s denouncement of bias.]” Id. A contractor with
“‘an agreement, enforceable promise[,] or guarantee of future work’ has a conflict of
interest under [40 C.F.R.] § 1506(c).” Ass’ns Working for Aurora’s Residential Env’t v.
Colo. Dep’t of Transp., 153 F.3d 1122, 1128 (10th Cir. 1998).36 When an EIS is
challenged on the basis of an alleged conflict of interest known to the agency, “the
Court can evaluate the oversight that the agency provided to the [EIS] process as a
factual matter and make a determination [on] the [EIS].” Id. at 1129 (quotations and
citations omitted). When reviewing an EIS prepared by an agency that substituted its
judgment for that of a contractor, “the ultimate question for the court is thus whether the
alleged breach compromised the ‘objectivity and integrity of the NEPA process.’” Id.
(quotations and citations omitted).
The record shows that Harvey Economics executed a written “no conflict of
interest statement that disclosed historic work products as well as the promise of future
work from Denver Water.” AR 000125. The “Harvey Economics staff member who led
the model evaluation [of BBC’s 2002 IRP demand projection] never previously worked
36 On its face, 40 C.F.R. § 1506.5 does not specify whether the prohibition it creates reaches
seminal documents prepared by a contractor that form the basis of a critical aspect of the FEIS.
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on th[at report].” AR 176801. Ed Harvey himself personally asserted that he did not
prepare or supervise the creation of the 2002 IRP demand projection while he worked at
BBC and that the Harvey Economics employee who reviewed the IRP never worked at
BBC. AR 178853. Moreover, the Corps successfully dissuaded Harvey Economics from
bidding on other Denver Water work opportunities pending finalization of the ROD. AR
008060. Although certainly not dispositive, these facts cut against a conclusion that
Harvey Economics is intractably biased in favor of the Proposed Action.37
Petitioners urge this Court to discern a conspiracy behind a façade of perfunctory
paperwork denying the existence of a conflict. To their point, it is perhaps fair to
acknowledge that the promise of no future work does not fully address bias given that
Mr. Harvey might have a personal interest in preserving the reputation of his work
product from his time at BBC Research and Consulting. Yet, the mere theoretical
possibility of Ed Harvey’s professional pride is not the smoking gun that Petitioners
need to prove this NEPA claim. None of the parties cite case law suggesting that such a
scenario is a conflict of interest per se and, although this Court can see why this
circumstance begat Petitioners’ suspicion, without more inculpatory evidence, this Court
is unwilling to go so far as to conclude Mr. Harvey lied to the federal government in
writing.
b. 	Nothing Justifies Merging Two Distinct Purposes.
37 Petitioners also paint this NEPA process as corrupt by pointing to vague accusations of
whistleblowers fired from Denver Water, but, without more information, Petitioners’ allegations
of other general corruption appear too attenuated to help their Ed Harvey bias theory across the
finish line. Cf. (Doc. # 134 at 15 n.4.)
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Petitioners next assert that the Corps violated NEPA by aggregating conceptually
distinct project purposes without articulating a rationale for doing so. In Petitioners’ view,
the conceptually distinct objectives inappropriately raised the standard of practicability
and enabled the Corps to avoid truly considering alternatives that could have
accomplished the basic project purpose—Denver Water’s desire for more water. (Doc. #
134 at 39–42.) At its core, Petitioners’ argument challenges the reasonableness of the
extent to which the Corps embraced a near-identical version of Denver Water’s
proposed project purpose statement.
It is unavoidably apparent that, at a conceptual level, supplying more water to
Denver Water’s customer base and buttressing the North System are two distinct, albeit
somewhat overlapping, purposes. As Intervenor implicitly conceded at oral argument,
the 18,000 AFY of new firm yield is not technically necessary to bring the Moffat Water
Treatment Plant perennially online at present—the 18,000 AFY of new firm yield is only
to safeguard the plant from dropping below the minimum idle rate during a drought or
South System emergency. Hr’g Tr. at 45–46; see also (Doc. # 148). The fact that
Denver Water could benefit from more firm yield specifically in the North System says
nothing about why the Corps must limit its “hard look” review to alternatives that meet
both objectives simultaneously. Although the record arguably supports the Corps’
conclusions that Denver Water needs 18,000 AFY of new firm yield in the North
System, the record lacks any cogent explanation as to why the Corps can and should
address both needs simultaneously. Tellingly, neither Respondents nor Intervenor
points to anywhere in the record where the Corps actually articulates an explanation as
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to why the two purposes are inextricably interconnected to the point that they must be
resolved simultaneously, and, for that reason alone, the Corps’ purpose-and-need
statement is unduly narrow in violation of NEPA.38
Respondents and Intervenor attempt to defend the Corps’ purpose-and-need
statement, but their arguments are neither availing nor supported by law. At the outset,
both Respondents and Intervenor repeatedly assert that NEPA affords the Corps wide
discretion to frame a project’s purpose. (Docs. ## 137 at 34, 138 at 29); see also Hr’g
Tr. at 15. However, the mere observation that binding precedent affords the Corps
discretion does not, without more, convince this Court that the Corps’ discretion in these
circumstances deserves deference.
Although Intervenor attempts to buttress the Corps’ choice with citations to case
law involving NEPA, drawing analogies to inapposite legal authority is hardly
persuasive. Intervenor claims their case law establishes that the Corps’ discretion under
NEPA includes the right to consolidate multiple distinct objectives into one, but the legal
authorities on which they rely are materially distinguishable for several reasons.39
38 The lack of explanation is especially troubling in light of the myriad factual inconsistencies
highlighted by Petitioners regarding the validity of Denver Water’s claimed needs. However,
because Petitioners characterize those discrepancies as indicia of a separate NEPA violation,
the Court will not recount those points here.
39 For example, Intervenor cites a case where an agency’s purpose-and-need statement that
heavily deferred to the project proponent’s geographical preferences because federal law
directed the permitting agency to do so with respect to highway projects. See
HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1230–31 (9th Cir. 2014) (citing 23
U.S.C. § 139(f)(3)). Similarly, Intervenor cites a case where an agency’s purpose-and-need
statement deferring to a project proponent’s geographic preference, but said project was within
federally managed public lands governed by a NEPA-proofed Forest Plan. The Forest Plan
designated the land for recreational development, which artificially tipped the scales towards the
applicant. See Colo. Env’t Coal., 185 F.3d at 1175 & n.15. Intervenor also cites a case where
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Simply put, NEPA cases that do not involve the CWA are materially distinguishable.
What must be kept in mind is that an agency trips NEPA by avoiding relevant
considerations, and relevance is a relative term. See, e.g., Or. Nat. Desert Ass’n v.
Bureau of Land Mgmt., 625 F.3d 1092, 1109 (9th Cir. 2010). When a “major federal
impact” intersects with a specific statute, the statute’s objectives define the agency’s
“analytic obligations.” Id.; see also Nancy H. Sutley, Draft NEPA Guidance on
Consideration of the Effects of Climate Change and Greenhouse Gas Emissions 6–7
(Feb. 18, 2010), https://ceq.doe.gov/docs/ceq-regulations-and-guidance/20100218-
nepa-considerations-effects-ghg-draft-guidance.pdf [https://perma.cc/4B3R-DE5X].
Mindful that the Corps’ FEIS was prepared for a project that might jeopardize WOTUS,
the FEIS’s consideration of relevant factors should correspond to the CWA’s
substantive focus—minimizing the degradation of WOTUS. Instead, the record shows a
purpose-and-need statement that limited its “hard look” to alternatives that all tampered
with the Gross Dam and, by extension, the WOTUS at the dam’s base.
Respondents, for their part, defend the purpose-and-need statement with a flurry
of counterarguments, none of which find the mark. Respondents insist that the Corps in
fact considered options that did not involve tampering with the Gross Dam, which is
brazenly misleading in light of the record. “Considered” is only correct in a colloquial
sense; in the context of a NEPA claim, consideration requires a “hard look,” which is
the issue of a multifaceted project purpose arose in the context of scoping and the plaintiffs
conceded that both projects constitute “major federal action” whereas, in the instant case,
Petitioners strenuously object to the notion that Denver Water’s geographic preference could
invoke federal jurisdiction by itself. Compare Coal. for Advancement of Reg’l Transp. v. Fed.
Highway Admin., 959 F. Supp. 2d 982, 1000 (W.D. Ky. 2013), with Hr’g Tr. at 60–61.
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something the Corps did not give to proposals unless they involved expanding the
Gross Dam, so none of the alternatives from the Corps’ “preliminary screening” process
count towards its NEPA obligations. Respondents also emphasize the Corps’ discretion
to define the project’s purpose and need, but again, merely observing the fact that
NEPA affords the Corps discretion to define the purpose and need of a project has no
persuasive force when the relevant inquiry is not whether discretionary authority exists
but the scope of that discretion. See (Doc. # 137 at 32 (citing Wyo. v. U.S. Dep’t of Ag.,
661 F.3d 1209, 1244 (10th Cir. 2011).) Respondents contend that the Corps adequately
justified its purpose-and-need statement as exhibited in the Corps’ responses to public
comments. Although it is true that the Corps responded to public comments, responding
itself does not support a conclusion that the comment response is necessarily sound.
The Court’s review of the comment responses reveals that the Corps’ responses
exhibited reasoning that was perfunctory at best and, as explained above with respect
to the CWA, in direct contradiction of the § 404(b)(1) guidelines. AR 129310 (concluding
that “it is appropriate to integrate several underlying needs into one defined purpose,
since the multiple needs of the applicant are not ‘independent’ but rather are
‘interconnected’” without any further explanation). Finally, Intervenor highlights the
Corps’ responses to the EPA’s public comments challenging the purpose-and-need
statement and insists that the Corps need not agree with the EPA simply because the
EPA suggested changes to the FEIS. (Doc. # 138 at 32.) However, while true that the
Corps need not agree with the EPA, the ultimate issue is whether the Corps’
disagreement is reasonable and supported by the record and, here, the Corps’
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response could hardly be called a paragon of sound reasoning. E.g., Fuel Safe Wash. v.
FERC, 389 F.3d 1313, 1326 (10th Cir. 2004). At most, the Corps asserted in conclusory
fashion that it has the discretion to define the project purpose however narrowly or
broadly it wants without meaningfully addressing the link between the two purposes.
See AR 129311–13.
In sum, nothing in the record explained what justified “federalizing” Denver
Water’s system imbalance concerns by lumping them into their desire for more water.
The Corps’ amalgamation of these conceptually distinct criteria led to the premature
rejection of at least nineteen alternatives that apparently satisfied the new firm yield
need, which meant the public and the Corps lost the benefit of a “hard look” and
concomitant informed choice. NEPA “prohibits uninformed—rather than unwise—
agency action,” and the record shows that the Corps’ downright refusal to even consider
alternatives incapable of threading the needle between Denver Water’s wish list items is
not just “unwise” agency action—it is objectively “uninformed.” Roberts v. Methow
Valley Citizens Council, 490 U.S. 332, 351 (1989).40 Given the record contains relatively
little if any analysis of those nineteen alternatives, it is precisely this type of analytical
gap that NEPA is meant to obviate. The Corps violated NEPA based on its inability to
40 Although Intervenor at oral argument emphasized the efficiency of utilizing pre-existing dam
structures to minimize environmental impact, Intervenor’s brief cited no portion of the
administrative record making this point. (Doc. # 138 at 40 (citing AR 000030)); but see AR
000030 (not making this point explicitly); 463 U.S. at 50 “([C]ourts may not accept appellate
counsel’s post hoc rationalizations for agency action.”) Thus, the soundness of this rationale, by
law, cannot be used in defense of the Corps’ deficient NEPA record.
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identify where in the record the Corps ever articulated a sound explanation for marrying
two conceptually distinct project purposes. 463 U.S. at 50.
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c. 	The Corps Failed to Give Relevant Issues a “Hard Look.”
Petitioners’ final three NEPA claims go hand-in-hand because they highlight
relevant considerations that the Corps declined to give a “hard look.” (Doc. # 134 at 54–
59.) The first argument challenges the scope of the alternatives analysis and, as with
the CWA, is a direct consequence of the Corps’ unlawful purpose-and-need statement.
The second and third contentions highlight two salient considerations—climate change
and projected costs.
i. 	The Alternatives Analysis Is Unreasonably Narrow.
Petitioners aver that the Corps’ alternatives analysis violated NEPA because the
FEIS considered effectively indistinguishable alternatives. (Doc. # 134 at 57–63.)
Under NEPA, an agency must at least consider alternatives to a proposal, and
those alternatives must span a wide enough range to show the public that the agency
made a “real, informed choice.” Friends of Yosemite Valley v. Kempthorne, 520 F.3d
1024, 1038 (9th Cir. 2008) (“the range of action alternatives is unreasonable narrow
because the alternatives are virtually indistinguishable from each other”). NEPA does
not require agencies to consider all alternatives—but those that are ignored must be
“impractical or ineffective,” which requires that the agency “appropriately define[ ] the
objectives of [the] action.” Wyo. v. U.S. Dep’t of Ag., 661 F.3d 1209, 1244 (10th Cir.
2011).
The downstream effects of the Corps’ unduly narrow purpose-and-need
statement are, unfortunately, unsalvageable. Because the Corps chose to exclude from
further consideration multiple alternatives that, on their face, at least could have
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possibly been practicable, the Court concludes that the FEIS’s alternatives analysis fails
to satisfy NEPA’s requirement that the agency demonstrate it made a “real, informed
choice”—that choice being based on the dubious assumption that the Corps had to
accommodate Denver Water’s location and timeliness preferences. Friends of Yosemite
Valley, 520 F.3d at 1038. The Corps in the instant case failed to “appropriately define
the objectives of [the] action.” 661 F.3d at 1244. For that reason, the Court finds that the
Corps’ narrow alternatives analysis violates NEPA.
Respondents’ counterarguments change nothing about this conclusion.
Respondents argue that the Corps considered other actions, including constructing new
reservoirs, expanding other reservoirs, agricultural water transfer, municipal water
recycling, storage options, and “other strategies.” (Doc. # 137 at 50–55.) However, that
is only partly true—the Corps “considered” these alternatives in a merely colloquial
sense, but NEPA requires “hard look” consideration of seemingly practicable
alternatives and, here, the Corps excluded all of the aforementioned possibilities simply
because they could not meet all of Denver Water’s demands. Separately, Respondents
also highlight that the Corps considered denying the permit—the “No Action” alternative.
Id. However, NEPA’s regulations require every agency always consider “No Action,” so
Respondents’ argument merely recharacterizes the bare minimum into a “hard look,”
which it is not. Considering “No Action” does not change the fact that the Corps only
considered options that relied entirely on expanding the Gross Dam and praying for rain
to fill it. Even though Respondents emphasize that each alternative involved different
environmental effects stemming from variations in how much water the Gross Dam’s
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enlargement would accommodate, that distinction is immaterial when each alternative’s
commonality depends on precipitation. NEPA cannot possibly allow such willful
blindness.
ii. 	The Corps’ Cost Metric Is Inexplicably Arbitrary.
“There can be no ‘hard look’ at costs and benefits unless all costs are disclosed.”
Scis. Inst. for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079, 1097 (D.C. Cir.
1973). Indeed, without a clear understanding of costs, neither the Corps nor the public
can possibly obtain what NEPA exists to facilitate—an informed decision. The Tenth
Circuit agrees—having previously rejected liberal Corps’ assumptions downplaying
mitigation and permitting costs in the NEPA context. Utahns, 305 F.3d at 1165–66.
In the instant case, the Court’s assessment of the Corps’ RDC estimates above
with respect to the LEDPA determination applies with equal force to the Corps’ NEPA
obligations. To reiterate, the Corps inexplicably chose to represent the widely variable
costs of permitting and mitigation by adding 50% of the cost of building each alternative
to that construction cost. No one has bothered to explain to this Court why or how the
Corps chose 50% as a percentage that validly approximated the costs associated with
permitting and mitigation. The record does not even provide a universe of possible
comparators for this Court (and, by extension, the public) to consider what permitting
and mitigation would cost, i.e., whether this metric has been used by the Corps before,
and to what extent that challenges to the seemingly arbitrary nature of that metric have
failed before other Article III courts. Such an artificially myopic cost assessment cannot
possibly satisfy NEPA’s “hard look” requirement.
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Intervenor disagrees but fails to articulate a persuasive defense for the Corps’
puzzlingly unorthodox cost estimates. Intervenor cites no authority for the proposition
that the Corps can arbitrarily choose a percentage to account for undeniably variable
mitigation and permitting fees without explaining what makes 50% a reasonable
placeholder. The approximation becomes even more suspect when compared to the
fact that, as Petitioners point out, the record contains contradictions as to what these
alternatives actually cost—Denver Water gave the Corps one cost, yet reported to
FERC a much, much higher number. AR 123936; cf. AR 004011–12. This inconsistency
further underscores the need for skepticism as to the Corps’ chosen cost metric.
In short, the Court finds that the Corps violated NEPA by failing to adequately
explain its “RDC estimate” cost metric.
iii. 	Climate Change Deserved a “Hard Look.”
Finally, Petitioners fault the Corps for failing to quantify climate change’s impact
on precipitation. (Doc. # 134 at 50–54.) According to Petitioners, despite the Corps’
apparent willingness to shoot from the hip with considerably laissez-faire permitting and
mitigation cost estimates, the Corps’ ironic unwillingness to consider the same approach
for climate change’s effects on precipitation underscores the insufficiency of the Corps’
qualitative analysis. (Doc. # 134 at 50–54.)
Looking to the administrative record, the Corps acknowledged the scientific
community’s prediction that climate change would raise air temperatures, which will, in
turn, worsen aridity conditions and increase the magnitude of evapotranspiration—
which means less water. AR 000231, 124638–40. The Corps even understood these
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issues back in 2008. AR 159570–71 (acknowledging in the DEIS that climate change
was “reasonably foreseeable” and would reduce new firm yield). However, the Corps
provided no figure to quantify, much less estimate, whether proposals reliant on a dam’s
inherent ability to impound rain and snowmelt would remain viable solutions in the likely
event that aridity worsens for extended periods of time after acknowledging that
scenario would affect precipitation and snowmelt. There can be no better example of
arbitrary reasoning than this. The Corps’ refusal to provide even an estimate on future
hydrology is indefensible, an abject violation of NEPA.
Respondents insist that uncertainty justifies avoidance. At the outset, it is worth
noting that the Corps’ conspicuous inability to find a sufficient climate precipitation
estimation model is questionable in light of the Bureau of Reclamation’s ability to
produce climate precipitation estimates. Ctr. for Biological Diversity v. U.S. Dep’t of
Interior, 74 F.4th 1166, 1179–82 (10th Cir. 2023). Because climate change modeling
remains a nascent art form, the Corps claims that it satisfied NEPA by simply
acknowledging relevant and foreseeable effects of climate change. (Doc. # 137 at 50–
53; Doc. # 149 at 2–3.) Although binding precedent permits the Corps to justify
indecision given a lack of accepted methodology, the particular facts of the instant case
discourage deference to the Corps on this point. The Corps in this case considered the
practicability of a dam—a construction project entirely dependent on storing water. The
salience of the consideration makes it absolutely critical to at least explore whether
increased aridity due to climate change will undermine the construction project’s
capacity to store water.
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Respondents and Intervenor disagree, but to no avail. Intervenor, for its part,
emphasizes that climate change projections show both increases and decreases in
precipitation. (Doc. # 138 at 42–44 (citing AR 000117, 130126.) How that justifies the
Corps’ failure to simply pick at least one means of projecting precipitation changes,
however, remains to be seen—a quintessential non sequitur. Intervenor also contends
that the Proposed Action will produce the water that Denver Water wants regardless of
climate change. See id. (citing AR 000125–27, 130–32). However, the Court fails to see
how the record supports Intervenor’s idealistic assertion when the Corps specifically
declined to consider, much less establish, the very outcome that Intervenor insists will
come to pass. Given that the Corps declined to adopt any methodology to analyze
climate change, Intervenor cannot credibly claim that the Proposed Action will withstand
the increasing aridity looming on the horizon. Cf. AR 124640, 130306 (presenting peer-
reviewed studies predicting future precipitation variability in either direction).
In sum, this Court “cannot defer to a void.” Or. Nat. Desert Ass’n, 625 F.3d at
1121. The Corps might not have been required to quantify the effects of climate change
on hydrology with precision, but at the very least, NEPA obligated the Corps to at least
consider whether the practicability of a given alternative would change if the negative
consequences identified in its qualitative analysis came to pass.
3. 	The USFWS Did Not Violate the ESA
Finally, Petitioners accuse the USFWS of violating the ESA by extending but
later withdrawing “interim” protections for the green lineage cutthroat trout despite
promising to maintain protections until USFWS completed its established peer-review
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process. (Doc. # 134 at 63–69; Doc. # 143 at 38 & n.15.) Petitioners’ argument targets
the validity of the USFWS’s reasoning. They argue that USFWS acted capriciously by
withdrawing the green lineage cutthroat trout’s interim protections based on several
peer-reviewed studies despite promising to wait until CPW released its 2020 report
before making any changes to the fish’s interim protections. (Doc. # 143 at 37–38); Hr’g
Tr. at 87–89; see also FWS 00129–38.41
An agency does not violate the APA by reconsidering its stance on an issue and,
in the face of new information or changing circumstances, choosing to change course—
provided that the agency adequately explains the basis of reconsideration. E.g., Nat’l
Ass’n of Homebuilders v. Defs. of Wildlife, 551 U.S. 644 (2007); but see Portland
Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 395 (D.C. Cir. 1973) (forbidding an
agency from defending its actions with the reasons that it did not contemporaneously
assert when the action occurred).
The peer-review process is and has been an official position of the agency for
decades. See, e.g., Notice of Interagency Cooperative Policy for Peer Review in
Endangered Species Act Activities, 59 Fed. Reg. 34270, 34270 (July 1, 1994). Per the
41 Respondents accuse Petitioners of shoehorning Section 4 delisting procedural requirements
into a claim of Section 7 violations. See, e.g., (Doc. # 137 at 66.) To the extent that
Respondents are correct—i.e., insofar as Petitioners intend to argue that USFWS’s withdrawal
of interim protections amounts to a delisting violation, such a position is indefensible. The green
lineage cutthroat trout has never been listed under the ESA. Petitioners neglected to formally
request USFWS initiate a listing consultation on the green lineage cutthroat trout. See, e.g.,
(Doc. # 137 at 73.) They offer no authority for the notion that interim protections are legally
equivalent to a listing such that withdrawing interim protections counts as a delisting. Without
such authority, Petitioners fail to explain how the ESA’s delisting procedural requirements apply.
See, e.g., WildEarth Guardians v. U.S. Env’t Prot. Agency, 759 F.3d 1196, 1208–09 (10th Cir.
2014).
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peer-review policy, USFWS pointed to specific peer-reviewed studies that, in USFWS’s
view, at the time, clarified that the green lineage cutthroat trout is taxonomically,
genetically, and geographically distinct from the listed greenback cutthroat trout. FWS
00133, 258.
The USFWS in this case, however, provided an explanation for why it withdrew
interim protections notwithstanding its promise to maintain protections until CPW
released its forthcoming 2020 report: the currently available science sufficiently
convinced the USFWS that the green lineage cutthroat trout was not a greenback
subspecies. The USFWS’s “further refinement of [its] knowledge” of the two fish led it to
conclude it “appropriate [to] confine the protections of the ESA to . . . the greenback.”
FWS 00140; accord FWS 00132 (concluding that the green lineage cutthroat trout has a
distinct genetic identity and native range). For that reason, the USFWS determined that
rulemaking was “not necessary”—a caveat made in the agency’s 2012 promise—so the
USFWS withdrew interim protections. This decision, although less than ideal
considering it appears to have been hastened by the Moffat Collection System Project,
“considered the relevant factors and articulated a rational connection between the facts
found and the choice made.” Colo. River Cutthroat Trout v. Kempthorne, 448 F. Supp.
2d 170, 174 (D.D.C. Sept. 7, 2006); FWS 00129 (noting reconsideration began with the
Corps’ request regarding the Moffat Collection System Project). Although Petitioners
substantively disagree with the USFWS’s factual conclusion—that the two fish are
unrelated—that does not make the underlying rationale arbitrary or capricious. See
generally Ass’n of Data Processing Serv. Orgs., 745 F.2d at 683–84 (distinguishing the
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“substantial evidence test” used to challenge factual findings and the “arbitrary or
capricious standard” applicable to agency decision-making challenges despite
recognizing that both rest on the same premise).
Thus, this Court finds that the USFWS adequately justified its decision to
withdraw interim protections.
4. 	Remedy Briefing Is Required
Respondents and Intervenor request remedy briefing. (Doc. # 137 at 75–76);
(Doc. # 138 at 55); Hr’g Tr. at 58–59. Petitioners do not oppose. Hr’g Tr. at 89–90. The
parties’ stipulation aside, the Court also notes several equity concerns. First, Denver
Water is about to halt construction due to weather conditions, which undercuts the
urgency of ordering a remedy without the benefit of briefing. (Doc. # 147 at 2 (stating
that construction will halt from November 2024 to approximately April 2025).) Second,
the dam’s integrity could become compromised by fully halting construction. Hr’g Tr. at
58 (noting that interrupting the pouring of concrete could compromise the dam’s
structural integrity, which would risk an unplanned discharge of a catastrophically
powerful amount of water).42 Therefore, this Court finds it prudent to limit its holding to
finding that the Corps violated the CWA and NEPA and will defer the matter of a specific
remedy until the parties have adequately briefed the Court on the scope of its authority
in this context.
42 Intervenor also emphasizes the wasted taxpayer dollars if construction were to halt. Hr’g Tr.
at 59. It strikes this Court as ironic, however, that Denver Water complains of fiscal inefficiency
when it was the one which chose to immediately begin construction despite repeated warnings
from Petitioners that they intended to challenge the Corps’ discharge permit.
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IV. 	CONCLUSION
For the reasons set forth above, the Court concludes that:
1. 	The U.S. Army Corps of Engineers violated the CWA, the § 404(b)(1) guidelines,
33 C.F.R. § 323.6, and § 706(2) of the APA.
2. 	The U.S. Army Corps of Engineers violated NEPA, its concomitant regulations,
and § 706(2) of the APA; and
3. 	Petitioners shall have fourteen (14) days from the date of entry of this Order their
to file their Bill of Costs with the Clerk of this Court in accordance with the procedures
set forth in Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
The Court DEFERS a final ruling on the remedies until further briefing is submitted.
It is ORDERED that counsel for all parties shall confer and attempt in good faith to
reach an agreement as to remedies concerning the issues on which The Corps was not
in compliance. If an agreement is not reached, the parties may submit briefs. This
briefing will consist of one brief from each party, including Intervenor-Respondent, not
exceeding ten pages. Simultaneous briefing shall be filed with the Court on or before
November 15, 2024.
DATED: October 16, 2024
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
Senior United States District Judge
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