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WildEarth Guardians v. U.S. Army Corps of Engineers

United States District Court, D. New Mexico

December 20, 2019

WILDEARTH GUARDIANS, Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS and U.S. FISH AND WILDLIFE SERVICE, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON PETITION FOR AGENCY REVIEW

         THIS MATTER comes before the Court following a hearing on Plaintiff's Opening Merits Brief on Petition for Agency Review (Doc. 30)/ Motion for Summary Judgment (Doc. 42, filed 10/27/17).[1] Having heard oral arguments, reviewed the pleadings and the record, and reviewed the applicable law, the Court finds that Plaintiff's Motion is not well-taken and, therefore, is DENIED.

         INTRODUCTION

         From its headwaters in the San Juan Mountains of southern Colorado, the Rio Grande River (“Rio Grande”) flows approximately 1, 865 miles south through the entire State of New Mexico, along the border between the State of Texas and the Republic of Mexico and to the Gulf of Mexico. See National Park Service (“NPS”), New Mexico: Elephant Butte Dam and Spillway, NPS Travel Bureau of Reclamation's Historic Water Project (Jan 13, 2017), https://www.nps.gov/articles/new-mexico-elephant-butte-dam-and-spillway.htm. The Newlands Reclamation Act of 1902 was enacted by Congress to fund and construct large irrigation projects in the arid lands of the American West. The United States Reclamation Service was established to build and administer the irrigation projects funded by the Newlands Reclamation Act of 1902. Elephant Butte Dam on the Rio Grande in southern New Mexico was one of the earlier irrigation projects built by the Reclamation Service, now the United States Bureau of Reclamation (“Bureau of Reclamation”). Construction on Elephant Butte Dam began in 1911 and when it was completed in 1916, Elephant Butte Lake became the largest irrigation reservoir in the world at that time.

         According to the Complaint, Plaintiff WildEarth Guardians (“WEG”) “is a non-profit environmental advocacy and conservation organization based in Santa Fe, New Mexico. [WEG] has more than 66, 500 members and activists. More than 1, 410 of these members and activists reside in New Mexico. [WEG] and its members are dedicated to protecting and restoring the wildlife, wild places, wild rivers, and health of the American West.” Doc. 1 para 16. On its website, under the subheading “Rivers, ” WEG details its devotion to and efforts towards river conservation and within this subheading is an entire section discussing the Rio Grande. See WildEarth Guardians, A River Stretched Beyond Its Means, WildEarth Guardians: Rivers (last visited Dec. 19, 2019), https://wildearthguardians.org/rivers/rio-grande-americas-great-river/. This section contains the only significant reference to levees on the WEG website that the Court could find and the reference to levees is within this section and is part of the discussion under a subheading “Tear It Down” referencing WEG's efforts “…to ensure that unnecessary infrastructure-including dams, levees and other man-made obstacles-do not prevent large-scale restoration of the Rio [Grande] and its vast floodplain in the Tiffany Basin south of Socorro, New Mexico.” Id. Neither the Complaint nor the WEG website claims that WEG has any expertise in levee construction or maintenance.

         Defendant United States Army Corps of Engineers (“Corps”) “is an agency of the United States within the Department of the Army. The 1948 Flood Control Act authorized the Corps to construct dams and levees for flood control purposes in the Rio Grande Basin. The Corps is responsible for ensuring compliance with [the National Environmental Protection Act] and other federal laws that apply to levee construction projects undertaken pursuant to the Flood Control Act.” Doc. 1 para 22. On its website under the heading “Missions, ” there is a subheading “Civil Works” which then references the Corps flood management program and levee safety program, all part of the Corps Civil Works Mission to manage flood risk challenges. See Civil Works Mission, U.S. Army Corps of Engineers, https://www.usace.army.mil/Missions/Civil-Works/ (last visited Dec. 19, 2019).

         Defendant United States Fish and Wildlife Service (“FWS”) “is an agency of the United States. The [FWS's] responsibilities include administration of the [Endangered Species Act] for terrestrial species that include the Rio Grande silvery minnow and Southwestern willow flycatcher. As part of its statutory duty to administer the [Endangered Species Act] for terrestrial species, the [FWS] has a mandatory duty to prepare biological opinions that fully comply with relevant laws and regulations.” Doc. 1 para 23.

         STATEMENT OF THE CASE[2]

         WEG seeks to overturn the agency decisions by the Corps and FWS (collectively, “Federal Defendants”) to proceed with the replacement of existing spoil bank, also known as earthen bank, levees along a portion of the Rio Grande by constructing engineered levees that are more durable and better able to protect the surrounding area from potential flooding.

         WEG contends that the actions by the Federal Defendants threaten three endangered species and that Federal Defendants failed to properly examine the impacts on the environment in the area involved in this litigation. The endangered species at issue are: the Southwestern Willow Flycatcher (“flycatcher”), listed as endangered in 1995; the Rio Grande Silvery Minnow (“minnow”), listed as endangered in 1994; and the Yellow-Billed Cuckoo (“cuckoo”), listed as endangered in 2014 (collectively, the “three endangered species”). WEG contends that the Corps violated the procedures required under the National Environmental Policy Act (“NEPA”) and that FWS violated the duties imposed on it by the Endangered Species Act (“ESA”). Federal Defendants contend that their decisions and procedures complied with the respective statutes and that WEG is not entitled to an injunction or any other requested relief.

         The portion of the Rio Grande at issue is known as the Middle Rio Grande. Within this area, the Corps has proposed to construct 43 miles of permanent engineered levees to replace the existing spoil bank levees erected in the 1950s (the “Levee Project” or the “Project”). The Project impacts a portion of the Middle Rio Grande area called the San Acacia Reach (“SAR”), which is home to and contains designated critical habitat for the three endangered species. The SAR spans 58.2 miles from the San Acacia Diversion Dam (“SADD”), located just north of Socorro, New Mexico, to San Marcial, New Mexico, located just north of Elephant Butte Lake. WEG claims that the SAR is one of the last remaining relatively wild reaches of the Rio Grande in New Mexico. The City of Socorro is the largest population center within the SAR.

         The SAR has a history of flooding, which is the reason the spoil bank levees were constructed in the 1950s. The Corps estimates that a 100-year flood could cause $98.4 million in damages in the SAR. The Project consists of replacing the existing non-engineered, earthen spoil bank levees with structurally sound, permanently engineered levees. The goal of the Project is to provide protection to areas within the SAR from high and low frequency flood events. The timeline of relevant events is as follows:

1974: NEPA: Corps produces the initial Environmental Impact Statement (“EIS”) for the Project
1992: NEPA: Corps produces the Supplemental Environmental Impact Statement (“1992 SEIS”)
2011: ESA: Corps prepares 2011-12 Biological Assessment (“2011 BA”)
2012: ESA: Corps prepares Programmatic Biological Assessment to clarify 2011 BA (“2012 PBA”)
2013: ESA: FWS produces the Feb. 2013 Biological Opinion, which includes an Incidental Take Statement (“2013 BiOp”)
2013: NEPA: Corps releases the Oct. 2013 Second Supplemental Environmental Impact Statement (“2013 SEIS”)
2014: NEPA: Corps produces the May 2014 Record of Decision (“2014 ROD”)
2014: ESA: Cuckoo is added to the Endangered Species List
2015: This Court grants an unopposed stay in litigation from Apr. 2015-Apr. 2016 because of ongoing consultation between the Corps and FWS under ESA (Doc. 17; Doc. 25 extends stay to 9/30/16)
2015: ESA: Corps prepares revised Sept. 2015 Programmatic Biological Assessment (“2015 PBA”) as product of reinitiated consultation with FWS, which was triggered by listing of the Cuckoo
2015: NEPA: Corps determines that no supplementation to the 2013 SEIS is necessary (“2015 General Counsel Memorandum”)
2016: ESA: FWS concludes consultation and produces the Sept. 2016 Biological Opinion (“2016 BiOp”)
2017: Construction of first segment of project implementation concluded

         DISCUSSION

         I. Standard of Review Under Administrative Procedure Act

         Courts review agency compliance with NEPA and ESA pursuant to the Administrative Procedure Act (“APA”), which provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, ” or that are not supported by “substantial evidence.” 5 U.S.C. § 706(2)(A). As the United States Court of Appeals for the Tenth Circuit has explained, “[a]gency action is arbitrary and capricious if the agency ‘has relied on factors which Congress has not intended it to consider, entirely failed to consider an importance aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency,' or if the agency action ‘is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.'” Wyoming v. USDA, 661 F.3d, 1209 1227 (10th Cir. 2011) (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)). Essentially, the arbitrary and capricious standard requires a court to “determine whether the agency considered all relevant factors and whether there has been a clear error of judgment.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994).

         Thus, the “scope of review under the [APA] is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n, 463 U.S. at 43. The “[d]eference to the agency is especially strong where the challenged decisions involve technical or scientific matters within the agency's area of expertise.” Utah Envtl. Cong. v. Dale Bosworth, 443 F.3d 732, 739 (10th Cir. 2006) (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378 (1989)).

         II. Factual and Procedural Background

         As previously noted, the 1948 Flood Control Act gave the Corps authority to construct dams and levees for flood control purposes on and within the Rio Grande Basin. By statute, FWS is authorized to administer the ESA.

         Also previously noted, WEG's “Wild Rivers Program” aims to restore riverine ecosystems and its “Rio Grande: America's Great River” campaign has in part focused on the United States Government's management policies for the Rio Grande River. The SAR is home to the minnow, the flycatcher, and the cuckoo, all of which are protected as endangered species under the ESA. WEG asserts that the Levee Project “threatens any plan for large-scale restoration of this unique segment of the Rio Grande and will further imperil the handful of listed species already struggling to survive.” Doc. 42 at 1.

         The San Acacia to Bosque del Apache Unit has two types of structures that control the water flow of the Rio Grande: the Low Flow Conveyance Channel (“LFCC”) and the spoil bank levees.[3] The Flood Control Acts of 1948 and 1950 authorized the Rio Grande Floodway, San Acacia to Bosque del Apache Unit Project, which implemented fifty-eight miles of earthen levees from the SADD to the headwaters of the Elephant Butte Reservoir. USACE 8486, 8493, 8495.[4]The Flood Control Acts also authorized the construction of the LFCC in the 1950s, which was built by the Bureau of Reclamation to aid in New Mexico's water delivery obligation to Texas under the Rio Grande Compact. USACE8494-95. The existing spoil banks were built using the earthen material generated from digging the LFCC. USACE8550; D5906.

         The Levee Project would remove approximately 43 miles of existing levee (non-engineered spoil bank) adjacent to the Rio Grande Floodway and replace it with engineered levees capable of containing at least a one hundred year flood event. USACE8429. The Levee Project has been divided into phases and segments that will be constructed over a 20-year period (2014-2034). USACE8429. The functional life of the Levee Project is considered 50 years (until 2084). USACE8429. The “[e]nlargement of existing levees and construction of new levees were seen as necessary to accomplish the flood control objectives. The levees were not uniform as to grade, section or standard of construction.” USACE8502.

         Historically, the SAR flooded approximately every three years until the mid-twentieth century. USACE8488, 8496. Socorro is the main city within the SAR, along with eight small agricultural villages on the floodplain. USACE8493. FWS maintains that a 100-year-flood (a 1% chance flood) could cause multi-million-dollar damages within the Levee Project area, and that even relatively low flood levels could cause large economic losses and land destruction, as detailed in Table 1.1. USACE8488, 8497-8498. There have been several recorded floods that the Corps maintains would have exceeded the estimate protection afforded by the existing spoil bank levee, such that “[a] recurrence of any of these floods would have devasting effects downstream in the study area.” USACE8488 (“In addition, there have been numerous flood events in recent years, more specifically, 1976, 1979, 1995, and 2005, when the MRGCD [Middle Rio Grande Conservancy District] and the Bureau of Reclamation had to conduct flood fights [engineered flood fighting measures] to prevent levee failure. Without these actions, the existing spoil bank would have failed several times in the past 35 years.”).

         WEG relies on the fact “[e]ven with the alleviation of the drought cycle and onset of a 7-year wet cycle in 1979, there have not been any large magnitude floods in the SAR equivalent to those that frequently occurred in the first half of the twentieth century.” USACE 9496, 8499. WEG concedes, however, that in the event of a recurrence of the pre-1942 flood frequency and severity, the existing levees could fail. Doc. 42 at 6.

         WEG challenges the decision-making supporting the Levee Project by the Corps as stated in the 2013 SEIS, and the determinations in the 2013 and 2016 Biological Opinions issued by FWS. WEG requests that this Court: (1) declare that the Corps violated NEPA and that FWS violated the ESA and APA; (2) remand the Levee Project authorization to the Corps for compliance with NEPA; (3) remand the 2013 and 2016 Biological Opinions to FWS for compliance with the ESA and APA; and (4) enjoin the Corps from proceeding with any levee construction beyond the two phases currently underway to protect the town of Socorro, until the Corps complies with NEPA and FWS issues a new, valid biological opinion. Doc. 42 at 48.

         III. NEPA Analysis

         NEPA “requires federal agencies to pause before committing resources to a project and consider the likely environmental impacts of the preferred course of action as well as reasonable alternatives.” N.M. ex rel. Richardson v. BLM, 565 F.3d 683, 703 (10th Cir. 2009) (hereinafter Richardson). In “focusing both agency and public attention on the environmental effects of proposed actions, NEPA facilitates informed decisionmaking by agencies and allows the political process to check those decisions.” Id. By not imposing a substantive duty on the agencies, “NEPA itself does not mandate particular results, but simply prescribes the necessary process.” WildEarth Guardians v. United States Fish & Wildlife Serv., 784 F.3d 677, 690 (10th Cir. 2015) (hereinafter WEG v. FWS) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). NEPA has dual aims: “[f]irst, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action. Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decision-making process.” Wyoming v. United States Dep't Agr., 661 F.3d 1209, 1236-37 (10th Cir. 2011) (hereinafter Wyoming v. USDA).

         The process begins when “an agency announces its intent to study a proposed action through a process called scoping, during which the agency solicits comments and input from the public and other state and federal agencies with the goal of identifying specific issues to be addressed and studied.” Id. at 1237 (10th Cir. 2011) (citing 40 C.F.R. § 1501.7). If the agency proposes “a major Federal action[] significantly affecting the quality of the human environment, ” then the agency must prepare a draft environmental impact statement (“EIS”). 42 U.S.C. § 4332(2)(C). NEPA provides that the federal agency must

include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and]
(iii) alternatives to the proposed action.

Wildearth Guardians v. United States BLM, 870 F.3d 1222, 1226 (10th Cir. 2017) (hereinafter WEG v. BLM) (quoting 42 U.S.C. § 4332(C)) (citations omitted). In the EIS, the agency “must analyze direct effects, reasonably foreseeable indirect effects, and effects that are cumulative over time or aggregated with other forces outside the agency's proposed action.” Id. (citing 40 C.F.R. §§ 1508.7, 1508.8). As the Tenth Circuit has noted, “[w]ithout substantive, comparative environmental impact information regarding other possible courses of action, the ability of an EIS to inform agency deliberation and facilitate public involvement would be greatly degraded.” Id. The EIS must “briefly discuss” reasons for which alternatives are eliminated. Id. at 703-04. After the closing of the public notice and the opportunity for public comment, the agency prepares a final EIS (“FEIS”). Wyoming v. USDA, 661 F.3d at 1237.

         A supplemental EIS (“SEIS”) is required if “[t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns; or there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(i)(c)(1)(i)-(ii). A supplemental EIS may be required after the draft EIS or the final EIS. As the Tenth Circuit has explained, when “the relevant environmental impacts have already been considered earlier in the NEPA process, no supplement is required.” Richardson, 565 F.3d at 708 (citation and quotation marks omitted); Wyoming v. USDA, 661 F.3d at 1257-58 (“[E]ven if a change made will have a significant environmental impact, the failure to issue a supplemental EIS is not arbitrary or capricious [if] the relevant environmental impacts have already been considered during the NEPA process.” (citations omitted)). Notably, “an agency is generally entitled to deference when it determines that new information or a change made to the proposed action does not warrant preparation of a supplemental EIS.” Wyoming v. USDA, 661 F.3d at 1258.

         A. Consideration of Alternatives Under NEPA

         Every EIS under NEPA must “[r]igorously explore and objectively evaluate all reasonable alternatives.” Richardson, 565 F.3d at 708. The “‘heart' of an EIS is its exploration of possible alternatives to the action an agency wishes to pursue.” 565 F.3d at 708 (citations omitted). As the Tenth Circuit has pointed out, “[a]n agency's obligation to consider reasonable alternatives is operative even if the agency finds no significant environmental impact.” Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1277 (10th Cir. 2004) (citation omitted). Because NEPA imposes a procedural obligation on the agencies, “[w]ithout substantive, comparative environmental impact information regarding other possible courses of action, the ability of an EIS to inform agency deliberation and facilitate public involvement would be greatly degraded.” Richardson, 565 F.3d at 708. Therefore, the “goal is to ensure that the agency gathered information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned.” Id. (citation and quotation marks omitted). The Tenth Circuit has explained that, unlike the imposition of a substantive duty, review of the alternatives analysis under NEPA is to “only consider whether an agency's decisions regarding which alternatives to discuss and how extensively to discuss them were arbitrary, keeping in mind that such decisions are necessarily bound by a rule of reason and practicality.” Flowers, 359 F.3d at 1277 (citation and quotation marks omitted).

         WEG's argument about the Corps' reasonable alternatives analysis revolves around whether WEG suggested its “Middle Ground Alternative” in its public comments, and whether the Corps had to consider-and if so, whether it did consider-the Middle Ground Alternative. In its brief, WEG argues that the Corps failed to consider a reasonable alternative of using a combination of structural and non-structural flood control measures, which WEG calls the Middle Ground Alternative. Doc. 42 at 10. The Corps responds that WEG (1) waived this argument by not including it in the public comments, and (2) that the Corps complied with NEPA by considering a reasonable range of alternatives that did not include WEG's Middle Ground Alternative because it failed to meet what the Corps determined to be the purpose and needs of the Project. Doc. 46 at 7.

         1. Public Comments on the Middle Ground Alternative

         The Corps first argues that the Court should not entertain WEG's argument about the Middle Ground Alternative because WEG failed to identify the Middle Ground Alternative in its public comments. Doc. 46 at 10. WEG argues that it “encouraged the Corps to substantively analyze a ‘Middle Ground Alternative' consisting of a combination of structural (levees) and non-structural flood control measures that included levee setbacks, flowage easements, relocation and elevation of structures, and other non-structural flood control measures along the 43-mile Project corridor.” Doc. 47 at 1. WEG admits it did not reference this alternative by the label it now uses (“Middle Ground Alternative”) but contends that “the Corps' argument that [WEG] did not use the term itself elevates form over substance.” Doc. 47 at 9.

         The United States Supreme Court has explained that “[p]ersons challenging an agency's compliance with NEPA must ‘structure their participation so that it . . . alerts the agency to the [parties'] position and contentions,' in order to allow the agency to give the issue meaningful consideration. Dep't of Trans. v. Pub. Citizen, 541 U.S. 752, 764-65 (2004) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 553 (1978)). If a party fails to adequately offer an alternative for the agency's consideration, it has “forfeited any objection to the [environmental assessment] on the ground that it failed adequately to discuss potential alternatives to the proposed action.” Id.

         WEG submitted the following in its public comments on the 2013 SEIS draft, under the heading “Overarching National Environmental Policy Act Issues” in the Section labeled “b. The alternatives analysis should consider nonstructural alternatives in detail”:

The Corps dismissed alternatives too quickly and without justification. WildEarth Guardians recommends the Corps afford meaningful treatment to alternatives that contemplate levee setbacks, flowage easements, and other non-structural, potentially environmentally friendly alternatives.

         USACE010430. In the same section, two paragraphs later, under the bold letters “Alternatives eliminated from consideration”-

By eliminating non-structural alternatives, the Corps improperly limited the range of alternatives to an unreasonable range. In addition, the Corps fails to consider a combination of non-structural alternatives, rather than each in isolation.

         USACE010431. The Court agrees with WEG that it adequately raised this alternative in its public comments, even though it never explicitly referenced the name “Middle Ground Alternative.” WEG maintains that it labeled the “Middle Ground Alternative” as a matter of convenience for the Court and for litigation. While it certainly would have been helpful to all concerned had WEG used the term “Middle Ground Alternative” from the beginning, WEG was only required to “bring sufficient attention to an issue” to alert the Federal Defendants during public comment, Vermont Yankee, 435 U.S. at 550, and WEG's presentation in its public comment was adequate to do so.

         2. Reasonable Alternatives Analysis

         i. Relevant Law

         The Tenth Circuit has explained that there is a two-goal “rule of reason” analysis to “determine whether an EIS analyzed sufficient alternatives to allow [the agency] to take a hard look at the available options.” Richardson, 565 F.3d at 709; see Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999) (“[W]e employ the ‘rule of reason' to ensure the environmental impact statement contained sufficient discussion of the relevant issues and opposing viewpoints to enable the [agency] to take a hard look at the environmental impacts of the proposed expansion and its alternatives, and to make a reasoned decision.”). “First, when considering agency actions taken pursuant to a statute, an alternative is reasonable only if it falls within the agency's statutory mandate. Second, reasonableness is judged with reference to an agency's objectives for a particular project.” Id. at 709.[5] The Tenth Circuit has noted that “[i]t follows that an agency need not consider an alternative unless it is significantly distinguishable from the alternatives already considered.” Id. at 708. The EIS must “briefly discuss” reasons for which alternatives are eliminated. Id. at 703-04. NEPA “does not require agencies to analyze the environmental consequences of alternatives it has in good faith rejected as too remote, speculative, or . . . impractical or ineffective.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999). NEPA does require “information sufficient to permit a reasoned choice of alternatives as far as environmental aspects are concerned.” Id.

         ii. Contents of the 2013 SEIS

         The purpose of the Levee Project as stated in the 2013 SEIS is for the Corps to handle the implementation of protection against inundation by flash floods, i.e. flood control/flood risk management. USACE8487. The objectives of the Levee Project are explained as: (1) reducing the risk that flooding poses to human health and safety; (2) reducing the risk of flood damage to existing property and infrastructure in the floodplain by 90%; (3) increasing capacity of the floodway throughout the study area by 90%; and (4) preventing damage to flood management infrastructure (such as levees) from erosion. USACE008578; Doc. 46 at 19. The Corps also identified constraints on its range of actions, including that: (1) the Project should not adversely affect flooding or environmental resources outside of the study area; (2) the Project benefits must equal or exceed costs; (3) water delivery capabilities must be maintained; (4) the Project must be within the ability of the nonfederal sponsor's ability to support; and (5) the Project “cannot significantly impact” listed species. USACE008580; Doc. 46 at 19.

         The purpose of the Levee Project has always been to reduce the risk of flood damages because a recurrence of the magnitude of some of the historically recorded floods in the area “would have devasting effects downstream in the study area.” USACE8488. Still, the Levee Project has changed significantly since the 1974 EIS and the 1992 SEIS because those flood control measures were no longer feasible. USACE8488-89. The Corps considered the alternatives in the 2013 SEIS and found that they did not warrant further evaluation because the Corps concluded that “individually and collectively they are impracticable since they do not meet planning objectives and therefore, do not fulfill the purpose and need of the project.” USACE8581. These alternatives included:

• floodplain management regulations (determined to “do little to alleviate flood damage occurring to existing structures, infrastructure and agriculture”). USACE8585.
• flood warning systems (determined to be ineffective and incomplete because of high residual damages and flood threat to federal properties and other infrastructure). USACE8586.
• floodproofing (USACE8586) including:
o relocation of existing structures (determined to have significant negative environmental impacts on the floodplain and ineffective for reducing risk of flood to agricultural lands, public and federal properties)
o buyouts or acquisitions (determined to have no effect on removing agriculture or properties from floodplain)
o retrofitting/dry flood proofing (not applicable to areas subject to flash flooding or where flow velocity is greater than 3ft/second)
• localized levees or floodwalls (disadvantages detailed in report). USACE8587.
• elevation of structures (determined that the value exceeds the per square foot depreciated replacement cost of most of the structures in the floodplain, so infeasible). USACE8587- 88.
• elevation of San Marcial bridge (in-depth analysis and possible benefits provided but ultimately concluded it is not within the authority of the Corps to replace the bridge absent induced damages from a federal project). USACE8588-90.
• local levees (“not recommended because of its lower net economic benefits due to inability to protect structures, agricultural land, and infrastructure outside of urbanized locations as well as the LFCC. This alternative also requires extensive land acquisition, extensive partitioning of land, and causes internal drainage problems.”). USACE8590.
• intermittent levee replacement (“consists of not replacing or rebuilding those embankment sections that were determined to be structurally sound. This alternative was found to be impractical in previous reevaluations that did not account for long term inundation. No. part of the existing spoil bank would meet current criteria for levee performance; therefore, this alternative is not considered further.”). USACE8590.

         Based on its analysis, the Corps determined that none of these non-structural flood control measures fulfilled the purpose and need of the Project. USACE8581. The Corps narrowed the remaining alternatives to the engineered levee described in Alternative A (43-mile engineered levee), but in several different dimensions: Alternative A, Alternative A , Alternative K, and Alternative K . USACE8622-23. These options were the final alternatives given consideration in the environmental impact analysis. USACE8622-23.

         The Corps also gave consideration to levee setbacks in several locations. USACE8617-19. Of the proposed setback locations, the Corps eliminated the second proposed setback location after considering the perch of the river channel.[6] USACE8621. The Corps then noted that the second setback location was “not compatible with refuge goals due to potential changes in local groundwater and resulting effects to vegetation as a result of repositioning the LFCC.” USACE8621. A modified, shorter levee in the first proposed setback location, however, was carried on to environmental impact analysis, despite the notation that

additional cost for excavating and constructing a new segment of LFCC exceeds the savings in hauling of spoil material and abandonment of a portion of the existing spoil bank. Additional uncaptured costs are anticipated in the form of reclamation of the abandoned sections of LFCC and mitigation of habitat removed for the footprint of the new levee and LFCC sections.

USACE8620; USACE8622-23. The River Mile (RM)-108 Setback alternative (“the Setback Alternative”) is described as a “slight modification in the alignment of any of the four levee-construction alignments.” USACE8623. The Setback Alternative provides that “the alignment of the new levee, LFCC, and associated maintenance roads would be shifted to the west, thus reconnecting approximately 80 acres of the floodplain with the floodway.” USACE8623. The Corps concluded that “[t]his levee setback has a higher cost than Alternative A alone and does not produce additional Flood Risk Management benefits, therefore is not included in the recommended plan.” USACE8647 (emphasis added). Still, the Corps continued to analyze the Setback Alternative to determine the potential change in the floodway area. USACE8663-64.

Regarding the system of analysis and presentation of options, the 2013 SEIS explains,
Alternative project plans are evaluated for their potential to meet specified objectives and constraints, effectiveness, efficiency, completeness, and acceptability. The impacts of alternative plans are evaluated using the system of accounts framework (National Economic Development [NED], Environmental Quality [EQ], Regional Economic Development [RED], and Other Social Effects [OSE]) specified in the Corps' Principles and Guidelines and ER 1105-2-100.
Alternative plans are compared with one another and with the No. Action Alternative. Results of analyses are presented (e.g., benefits and costs, potential environmental effects, trade-offs, risks and uncertainties) to prioritize and rank flood risk management alternatives. For the current study thus far, benefits and costs have been evaluated for the final array of alternatives, and a rationale is provided to justify selection of a recommended plan.

USACE8576. The National Economic Development account (“NED Plan”) is defined as:

For all project purposes except ecosystem restoration, the alternative plan that reasonably maximizes net economic benefits consistent with protecting the Nation's environment will be selected. The Assistant Secretary of the Army for Civil Works may grant an exception when there are overriding reasons for selecting another plan based on other Federal, State, local, and international concerns. Because the purpose of this study is to reduce risk of flooding, the plan formulation and selection process for this reevaluation study is primarily driven by NED plan selection criteria.

USACE8610. After considering the range of alternatives, the Corps concluded that the non-structural options and the Setback Alternative did not satisfy the Project objectives, and that Alternative A ft, which met the criteria for the National Economic Development Plan (“NED Plan”), would be the recommended plan. USACE8625; 8713; 8697 (“As stated at the start of this chapter, Alternative A at the Base Levee ft height emerges as the recommended plan. It is the NED plan that meets all Corps planning criteria. It provides significant reduction in flooding risk from the 1%-chance and 10%-chance flood events while avoiding the potentially detrimental effects of isolating Tiffany Basin and incurring associated high mitigation costs for doing so.”).[7]

         iii. Legal Discussion of Alternatives Analysis

         WEG argues that the Corps “adopted an unreasonably narrow interpretation of a fairly broad purpose and need that led the agency to arbitrarily conclude that only a continuous engineered levee would satisfy the Project's purpose.” Doc. 42 at 20. WEG also criticizes the Corps' examination of each non-structural alternative individually and not in any combination, which WEG says resulted in a piecemeal analysis that led the Corps to conclude the continuous engineered levee was the only viable option. Id. The Corps responds that in consideration of its detailed analysis, it eliminated all but the engineered levees because the eliminated alternatives did not satisfy the overall purpose of the Project. Doc. 46 at 20.

         For reasons explained below, the Court draws the following three conclusions: first, the Corps did not interpret the Project objectives so narrowly as to unreasonably restrict the alternatives it could consider; second, the Corps considered a reasonable range of alternatives; and third, the Corps did not have to consider a combination of ...


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