The State of Georgia v. The United States Army Corps of Engineers et al

Cross MOTION for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment with Brief In Support

N.D. Ga.November 30, 2016

i UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE STATE OF GEORGIA, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants. CIVIL ACTION NO. 1:14-cv-03593-RWS DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT Defendants the United States Army Corps of Engineers; Jo-Ellen Darcy, Assistant Secretary of U.S. Army for Civil Works; Thomas P. Bostick, Chief of Engineers; C. David Turner, Division Commander for South Atlantic Division and Jon J. Chytka, District Commander for Mobile District (hereinafter collectively “Defendants”) hereby move for summary judgment as to all claims asserted in the First Amended Complaint of the State of Georgia (ECF No. 12) and the First Amended Complaint of the Atlanta Regional Commission and Cobb County- Marietta Water Authority (ECF No. 13).1 As grounds for this Cross-Motion, Defendants offer the attached brief in support. 1 Defendants note that Plaintiffs have advanced no argument or evidence as to Claim VI of the First Amended Complaint of the Atlanta Regional Commission Case 1:14-cv-03593-RWS Document 43 Filed 11/30/16 Page 1 of 3 The attached brief is also offered in response to Plaintiffs’ Motion for Summary Judgment (ECF No. 40). For the reasons stated therein, Defendants respectfully request the Court to deny Plaintiffs’ Motion. Respectfully submitted this 30th day of November 2016. JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division /s/ Laura Duncan LAURA DUNCAN /s/ Ruth Ann Storey RUTH ANN STOREY United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, D.C. 20044 Tel. (202) 305-0466 (202) 305-0493 Fax (202) 305-0506 laura.duncan@usdoj.gov ruth.ann.storey@usdoj.gov Attorneys for Defendants and Cobb County-Marietta Water Authority (ECF No. 13), “Violation of the Freedom of Information Act,” and that they expressly exclude that Claim from their Motion for Summary. See ECF No. 40 (“Br.”). The Court should therefore grant Defendants summary judgment as to that Claim. Case 1:14-cv-03593-RWS Document 43 Filed 11/30/16 Page 2 of 3 CERTIFICATE OF SERVICE I hereby certify that on this 30th day of November 2016 a copy of Defendants’ Cross-Motion for Summary Judgment and Defendants’ Brief in Support of Their Cross-Motion for Summary Judgment and in Response to Plaintiffs’ Motion for Summary Judgment was electronically filed with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. /s/ Laura Duncan LAURA DUNCAN Case 1:14-cv-03593-RWS Document 43 Filed 11/30/16 Page 3 of 3 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION THE STATE OF GEORGIA, et al., Plaintiffs, v. U.S. ARMY CORPS OF ENGINEERS, et al., Defendants. CIVIL ACTION NO. 1:14-cv-03593-RWS DEFENDANTS’ BRIEF IN SUPPORT OF THEIR CROSS-MOTION FOR SUMMARY JUDGMENT AND IN RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 1 of 61 i TABLE OF CONTENTS Introduction ................................................................................................................ 1 Factual Background ................................................................................................... 3 Legal Standard ........................................................................................................... 6 I. The Administrative Procedure Act (“APA”) ........................................ 6 II. National Environmental Policy Act (“NEPA”) .................................... 7 III. Summary Judgment ............................................................................... 9 Argument.................................................................................................................... 9 I. The Corps has not unreasonably delayed any duty with respect to Plaintiffs’ reallocation requests which can be judicially compelled .............................................................................................. 9 A. The WSA imposes no duty to respond to Plaintiffs’ requests, and thus no such duty can be compelled under APA § 706(1) ............................................................................11 B. The Corps has not unreasonably delayed its response under APA § 555(b), and thus that response cannot be compelled ..................................................................................13 1. The delay in response to the 1981 request is not attributable to the Corps. ................................................14 2. The Corps has not unreasonably delayed action on Plaintiffs’ new, 2013, request. ........................................18 a. The “Rule of Reason.” .........................................19 b. Agency priorities and resources. ..........................24 c. Statutory timetable or indication of speed. ..........25 d. Impact of the delay on human health and extent of prejudice. ...............................................26 Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 2 of 61 ii e. Good faith. ............................................................29 II. The Corps has not unreasonably delayed updating the Water Control Plan for Allatoona Lake to reflect current conditions and current water supply needs ..................................................................30 A. Neither the Flood Control Act of 1944 nor the implementing regulations impose a duty to update the Water Control Manuals as Plaintiffs allege. .............................31 B. The Corps decision not to include water supply reallocation in the water control manual does not violate any duty. ....................................................................................31 C. The Corps’ decision not to include water supply reallocation is not prejudicial to Plaintiffs’ interests. ...............32 III. The Corps fully complied with NEPA ................................................33 A. The Corps’ Purpose and Need for and Scope of its WCMs Update Comply with NEPA......................................................34 1. The Corps properly defined the purpose and need of the action. ........................................................................35 2. The Corps was not required to address reallocation in this update. ..................................................................36 3. While the Corps properly addressed current water storage operations in its analysis, it has no duty to “meet” water needs .........................................................39 B. The Corps Appropriately Selected, Reviewed and Eliminated Alternatives ............................................................40 1. The Corps’ consideration and evaluation of alternatives, consistent with its purpose and need for the action, was proper. ....................................................42 2. The Corps properly excluded Plaintiffs’ proposed alternatives from detailed evaluation. .............................43 Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 3 of 61 iii C. The Corps Took a Hard Look at the Effects of its WCMs Update .......................................................................................46 1. The Corps’ analysis of the effects of its proposed action and alternatives satisfy NEPA’s requirements. ..................................................................47 2. The Corps’ analysis appropriately limits Allatoona Lake water storage to currently contracted storage amounts ...........................................................................48 3. The Corps only has to analyze the effects of its actions under NEPA, not choose an alternative based on the effects it analyzes.......................................50 Conclusion ...............................................................................................................50 Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 4 of 61 iv TABLE OF AUTHORITIES Cases Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F. Supp. 2d 230 (D.D.C. 2003) .....................................................................39 Badier v. Gonzales, 475 F. Supp. 2d 1294 (N.D. Ga. 2006) ......................................................... 11, 12 Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977 (9th Cir. 2015) ................................................................................13 Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533 (11th Cir. 1990) ................................................................... 6, 9, 41 Camp v. Pitts, 411 U.S. 138 (1973) ............................................................................................... 9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................................... 9 Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991) ...................................................... 8, 34, 35, 41, 43 Citizens for Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203 (11th Cir. 2012) ......................................................... 34, 35, 42, 46 City of Alexandria, Va. v. Slater, 198 F.3d 862 (D.C. Cir. 1999) .............................................................................41 Ctr. for Biological Diversity v. Kempthorne, 498 F. Supp. 2d 293 (D.D.C. 2007) .....................................................................27 Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242 (11th Cir. 2012) ........................................................................8, 34 Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ............................................................................................... 9 Florida Wildlife Federation v. McCarthy, 2015 WL 3818941 (M.D. Fla. 2015) ....................................................................18 Fund for Animals, Inc. v. Rice, 85 F.3d 535 (11th Cir. 1996) .................................................................................. 8 Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 5 of 61 v HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222 (9th Cir. 2014) ..............................................................................35 In re Am. Fed’n of Gov't Employees, 837 F.2d 503 (D.C. Cir. 1988) .............................................................................30 In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d 1160 (11th Cir. 2011) ......................................................... 17, 18, 22, 38 Interstate Nat. Gas Ass'n of Am. v. FERC, 285 F.3d 18 (D.C. Cir. 2002) ...............................................................................18 Latin Am. for Soc. & Econ. Dev. v. Adm’r of Fed. Hwy. Admin., 756 F.3d 447 (6th Cir. 2014) ................................................................................45 Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105 (D.D.C. 2005) .....................................................................23 Loughrin v. United States, 134 S. Ct. 2384 (2014) .........................................................................................13 Marsh v. Or. Nat. Res. Council, 490 U.S. 360 (1989) ............................................................................................... 6 Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ................................................................................................. 7 Myers v. Bethelehem Shipbuilding Corp., 303 U.S. 41 (1938) ...............................................................................................25 Nat. Res. Def. Council, Inc. v. Sec. & Exch. Comm'n, 606 F.2d 1031 (D.C. Cir. 1979) ...........................................................................25 Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229 (11th Cir. 2003) ............................................................................17 Nat'l Parks Conservation Ass'n v. U.S. Dep't of Interior, 794 F. Supp. 2d 39 (D.D.C. 2011) .......................................................................28 Norton v. S. Utah Wilderness, All., 542 U.S. 55 (2004) ................................................................. 6, 10, 11, 12, 31 Orabi v. Chertoff, 562 F. Supp. 2d 1377 (N.D. Ga. 2007) ................................................................12 Pub. Citizen Health Research Grp. v. Comm’r, 740 F.2d 21 (D.C. Cir. 1984) ...............................................................................30 Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 6 of 61 vi Ren v. Mueller, 2008 WL 191010 (M.D. Fla. 2008) ......................................................................18 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .........................................................................................7, 50 Russello v. United States, 464 U.S. 16 (1983) ........................................................................................ 13, 17 S. Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir. 2003) ..............................................................................39 Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209 (11th Cir. 2002) ..........................................................................7, 9 Sierra Club v. U.S. Army Corps of Eng’rs, 935 F. Supp. 1556 (S.D. Ala. 1996) .....................................................................45 Sierra Club v. Van Antwerp, 526 F.3d 1353 (11th Cir. 2008) .............................................................................. 7 Telecomm. Research & Action Ctr. v. Fed. Commc’n Comm’n (TRAC), 750 F.2d 70 (D.C. Cir. 1984) .......................................... 18, 19, 20, 24, 25, 26, 30 Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66 (D.C. Cir. 2011) ...............................................................................48 Tongass Conservation Soc’y v. Cheney, 924 F.2d 1137 (D.C. Cir. 1991) ...........................................................................41 Webster v. USDA, 685 F.3d 411 (4th Cir. 2012) ................................................................................35 WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178 (10th Cir. 2013) ............................................................................45 Statutes 5 U.S.C. §§ 551–706 .................................................................................................. 6 5 U.S.C. § 555(b) ........................................................................................ 10, 14, 25 5 U.S.C. § 706(1) .................................................................................................6, 10 5 U.S.C. § 706(2)(A) .................................................................................................. 6 33 U.S.C. § 709 ........................................................................................... 31, 37, 39 42 U.S.C. § 4332(2)(C) .............................................................................................. 8 Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 7 of 61 vii 42 U.S.C. §§ 4321–4370m-12 ................................................................................... 7 43 U.S.C. § 390b ..................................................................................................4, 37 43 U.S.C. § 390b(a) .................................................................................... 10, 11, 12 43 U.S.C. § 390b(b) .................................................................................................40 43 U.S.C. § 390b(c) .................................................................................................26 43 U.S.C. § 390b(c)(1) .............................................................................................13 Rules Fed. R. Civ. P. 56(a)................................................................................................... 9 Regulations 33 C.F.R. 222.5(f)(f)(4) ...........................................................................................37 33 C.F.R. § 222.5(f)(1) ............................................................................................31 33 C.F.R. § 222.5(f)(2) ............................................................................................35 40 C.F.R. §§ 1502.15–16 ........................................................................................... 8 40 C.F.R. § 1502.13 .............................................................................................8, 34 40 C.F.R. § 1502.14(a) ...................................................................................... 42, 43 40 C.F.R. § 1502.9(a) ................................................................................................. 8 40 C.F.R. § 1508.8(a) ...............................................................................................46 40 C.F.R. § 1508.8(b) ..............................................................................................46 Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 8 of 61 viii TABLE OF ABBREVIATIONS Abbreviation Definition 1992 MOA 1992 Memorandum of Agreement Add. A Addendum A APA Administrative Procedure Act ACT Basin Alabama-Coosa-Tallapoosa River Basin ACF Basin Apalachicola-Chattahoochee-Flint River Basin CCMWA Cobb County Marietta Water Authority DSOF Defendants’ Statement of Additional Material Facts DEIS Draft Environmental Impact Statement EIS Environmental Impact Statement FEIS Final Environmental Impact Statement FY Fiscal Year NEPA National Environmental Policy Act PSOF Plaintiffs’ Statement of Undisputed Material Facts ROD Record of Decision WCMs Water Control Manuals WSA Water Supply Act Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 9 of 61 Figure 2.0-1 represents the ACT Basin. FEIS at 2-2 (D-00043909). ix Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 10 of 61 1 INTRODUCTION The United States Army Corps of Engineers (“Corps”) manages several dams and reservoir projects in the Alabama-Coosa-Tallapoosa (“ACT”) Basin, including Allatoona Lake, which is the reservoir at the center of Plaintiffs’ claims. In these projects, and, in particular, in Allatoona Lake, the Corps balances the availability of water for various mandated uses, including allocation of water storage that can be accessed by municipal and regional entities, pursuant to contracts between those entities and the Corps. Under the Corps’ regulations, management of these projects individually and as a basin-wide system is governed by water control manuals (“WCMs”). But before the recent update challenged by Plaintiffs, those WCMs were heavily outdated. Having been last updated in 1951, they no longer reflected current operations or circumstances in the basin. To remedy this situation, in 2007 the Corps initiated an update of the ACT Basin WCMs. At that time, the agency was in the midst of what would become more than two decades of litigation between the States of Alabama, Georgia, and Florida and the Corps—as well as the other Plaintiffs here—over allocation of water in the ACT Basin. That litigation was triggered by the Corps’ earlier report proposing a reallocation of the contractual storage volume in Allatoona Lake in response to Plaintiffs’ request to reallocate and increase that storage volume. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 11 of 61 2 In its WCM update that began in 2007, the Corps reasonably elected not to address reallocation of water storage. There is no legal requirement that obligates Corps to consider water supply storage reallocation in its WCM update, and given the ongoing litigation over allocation, the Corps informed Plaintiffs that it would take the separate action of considering the water supply storage reallocation request once the ACT Basin WCM update was complete. The Corps then proceeded with the update to the ACT Basin WCMs, and, as part of that action, it completed the required National Environmental Policy Act (“NEPA”) analyses before rendering a final decision to adopt the updated WCMs in 2015. As the Corps made clear from the start, the updated ACT Basin WCMs did not address water supply storage reallocation, and that is the heart of Plaintiffs’ claims here. For one, Plaintiffs assert that the Corps has unreasonably delayed action on their water supply storage reallocation requests. But they fail to attribute any delay to the multi-decade litigation over allocation, and the Corps has acted reasonably since the conclusion of that litigation by focusing its limited resources on completing the ACT Basin WCMs update before addressing Georgia’s request. Plaintiffs also assert that the Corps unreasonably delayed fully updating its WCMs, because the current update does not consider water supply storage reallocation. But the ACT Basin WCMs update is not delayed—it is now complete. And the Corps was not required to consider water supply storage reallocation or Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 12 of 61 3 any pending reallocation requests when it updated the WCMs. Finally, Plaintiffs assert the Corps’ NEPA analysis is flawed because it did not include water supply storage reallocation. But the Corps was not required to consider water supply storage reallocation when it considered water supply in its NEPA analysis, and the Corps’ extensive analyses more than satisfied NEPA. Those analyses appropriately defined the scope of its action, considered alternatives to the action, and evaluated the environmental effects of those alternatives. The Corps made a reasonable decision, within its discretion, to complete its ACT Basin WCMs Update before it addressed Georgia’s water supply storage reallocation requests. Plaintiffs may not like the Corps’ decision, but the decision and actions flowing from it were reasonable and appropriate. For these reasons, the Court should grant Defendants’ Cross-Motion for Summary Judgment and deny Plaintiffs’ Motion for Summary Judgment. FACTUAL BACKGROUND The ACT Basin spans Georgia and Alabama. Defendants’ Statement of Additional Material Facts ¶1 (D-00043862), Attachment B to this filing (“DSOF”). The Corps owns and operates six dam projects in the ACT Basin. Id. ¶ 2 (D- 00044178). Eleven additional private dam projects exist in the basin. Id. The authorized purposes of the Corps projects include flood risk management; hydropower; navigation; fish and wildlife conservation; recreation; water quality; Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 13 of 61 4 and water supply.2 DSOF ¶ 4 (D-00043779). The Corps must operate its projects in a system-wide context to serve their authorized purposes. Id. To do this, the Corps develops WCMs for the basin and for each individual project to guide these operations. Id. ¶25 (D-00044186). In 2007, the Corps began to update all of the ACT Basin WCMs, in part because the basin-wide WCM had not been updated since 1951, before many of the individual projects in the basin had been completed. Id. ¶24 (D-00043862); ¶26 (D-00044187); ¶28 (D-00043862); ¶29 (D-00043862–63). While updating the ACT Basin WCMs, the Corps developed an Environmental Impact Statement (“EIS”) to comply with the National Environmental Policy Act (“NEPA”). After the EIS was complete, the Corps finalized its decision to update the ACT Basin WCMs on May 4, 2015 in a Record of Decision. Id. ¶22 (D-00053477–480). One of the projects operated by the Corps in the ACT Basin is Allatoona Lake. Georgia Parties’ Statement of Undisputed Material Facts ¶ 1, ECF No. 40-2 (“PSOF”). There, the Corps has entered into contracts—including with Plaintiff Cobb County Marietta Water Authority (“CCMWA”)—to provide for the use of water supply storage in the reservoir. Id. ¶ 7–8. In 1981, Plaintiffs requested the 2 The term “water supply” in this context refers to the inclusion of storage for water supply pursuant to the Water Supply Act of 1958, 43 U.S.C. § 390b. DSOF ¶ 5 (D-0006430). The Corps does not actually “supply” any water from Allatoona Lake or Carters Lake to end users in the ACT Basin. Id. ¶ 4. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 14 of 61 5 Corps reallocate storage in Allatoona Lake and modify CCMWA’s contracts to increase its volume of storage. Id. ¶ 17. The Corps initiated the necessary studies and prepared a draft report recommending such a reallocation in 1989, but before it was able to finalize this report or take action pursuant to its recommendations, the State of Alabama filed suit over water uses in the ACT Basin and sought an injunction against reallocation. PSOF ¶¶ 18-22, 25-26; DSOF ¶ 9. Several attempts at resolving the dispute failed, and the litigation was not concluded until late 2012. DSOF ¶ 11–17. In 2013, at the conclusion of the litigation, Plaintiffs submitted a new reallocation request for water storage in Allatoona Lake. Id. ¶ 19. However, the Corps stated that a reallocation would have to wait on completion of the then- ongoing WCMs update. Id. ¶ 20. That update was completed in May 2015, but the Corps explained that typical preconditions to a reallocation study—which contains the information necessary for the Corps to determine whether to reallocate storage under the Water Supply Act (“WSA”)—have not been met. Id. ¶ 23. In 2014, Plaintiffs filed this litigation, challenging the WCMs updates and their underlying NEPA analyses, and alleging that the Corps has illegally delayed responding to the reallocation request and updating its WCMs for water supply. Id. ¶ 21. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 15 of 61 6 LEGAL STANDARD I. The Administrative Procedure Act (“APA”) The APA, 5 U.S.C. §§ 551–706, supplies the scope and standard of judicial review of final agency action and, in some instances, failure to act. With respect to the latter, APA § 706 states in relevant part that “[t]he reviewing court shall--(1) compel agency action unlawfully withheld or unreasonably delayed . . . .” 5 U.S.C. § 706(1). To obtain judicial relief under that provision, Plaintiffs must point to a “specific, unequivocal command” at law which is mandatory and non- discretionary, but with which the Corps has not complied. See Norton v. S. Utah Wilderness All., 542 U.S. 55, 63–64 (2004) (citations omitted). And once they have identified such a duty, they must establish that the Corps has delayed taking the necessary action and that its delay is “unreasonable,” or that the duty has been “unlawfully withheld.” 5 U.S.C. § 706(1). With respect to judicial review of final agency action, APA § 706 also provides in relevant part that “The reviewing court shall--(2) hold unlawful and set aside agency action, findings, and conclusions found to be--(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. § 706(2)(A). A court’s review of agency action under the APA, although “searching and careful,” is narrow and deferential. N. Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1538 (11th Cir. 1990) (quoting Marsh v. Or. Nat. Res. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 16 of 61 7 Council, 490 U.S. 360, 378 (1989)). “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 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Furthermore, an “[a]dministrative action . . . comes before the courts clothed with a presumption of regularity” and the Plaintiffs bear the “difficult” and “heavy” burden of proving that the agency decision was arbitrary, capricious, or otherwise not in accordance with the law. Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 1209, 1222–23 (11th Cir. 2002) (quotation omitted). Review under the “arbitrary and capricious” standard of APA § 706(2) applies to, among others, agency action taken pursuant to the National Environmental Policy Act. Sierra Club v. Van Antwerp, 526 F.3d 1353, 1359 (11th Cir. 2008). II. National Environmental Policy Act (“NEPA”) NEPA, 42 U.S.C. §§ 4321–4370m-12, serves the dual purpose of informing agency decision-makers of the environmental effects of proposed federal actions and ensuring that relevant information is made available to members of the public so that they “may also play a role in both the decisionmaking process and the implementation of that decision.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). NEPA does not “mandate particular results, but simply prescribes the necessary process” to insure an informed decision. Id. at 350. NEPA requires federal agencies to prepare an EIS for all “major Federal actions Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 17 of 61 8 significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). When an agency prepares a draft EIS, 40 C.F.R. § 1502.9(a), it presents the EIS to the public and other agencies for comment. Id. § 1503.1(a). After an agency evaluates and responds to the comments it receives, it prepares and circulates a final EIS. Id. § 1502.9(b). Several elements are required in an EIS. For one, it must “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13. The purpose and need statement of an agency’s proposed action “delimit[s] the universe of the action’s reasonable alternatives.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991). A NEPA analysis must then take a “hard look” at the environmental and other effects of the proposed action and those reasonable alternatives, including a “no action” alternative that would maintain the status quo. See 40 C.F.R. §§ 1502.15–16, 1508.8. Judicial review of a NEPA analysis under the APA’s “arbitrary and capricious” standard of review is “extremely deferential.” Defs. of Wildlife v. Bureau of Ocean Energy Mgmt., 684 F.3d 1242, 1249 (11th Cir. 2012) (citation omitted). The court’s only role is to ensure the agency took a hard look at the environmental effects of the proposed action, not substitute its judgment for that of the agency. Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546 (11th Cir. 1996); N. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 18 of 61 9 Buckhead Civic Ass’n, 903 F.2d at 1539. Therefore, a court can only overturn an agency’s decision if 1) it did not rely on factors that Congress intended it to consider; 2) it failed to consider an important aspect of the problem; 3) its explanation runs counter to the evidence; or 4) its decision is so implausible that agency expertise or different viewpoints do not explain it. Sierra Club, 295 F.3d at 1216 (citation omitted). III. Summary Judgment To succeed on summary judgment, the moving party must demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In claims under the APA, like this one, “the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973) (per curiam). Therefore, “courts are to decide, on the basis of the record the agency provides, whether the action passes muster under the appropriate APA standard of review.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985). ARGUMENT I. The Corps has not unreasonably delayed any duty with respect to Plaintiffs’ reallocation requests which can be judicially compelled Plaintiffs allege that, since 1981, the Corps has failed to respond to their requests for reallocation of water supply storage in Allatoona Lake and that this Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 19 of 61 10 amounts to agency action “unreasonably delayed,”3 and therefore should be compelled by this Court, per § 706(1) of the APA. Br. 21-29. To obtain judicial relief under that provision, Plaintiffs must point to a “specific, unequivocal command” at law which is mandatory and non-discretionary, and with which the Corps’ delay in compliance is “unreasonable.” See Norton, 542 U.S. at 63–64; 5 U.S.C. § 706(1). Plaintiffs fail to do so. They point to two provisions which, they claim, compel the Corps to respond to a request for reallocation: the subsection of the Water Supply Act that declares Congressional policy, 43 U.S.C. § 390b(a), and a provision of the APA directing agencies to conclude matters presented to them, 5 U.S.C. § 555(b). Br. 21-22. But the former provision imposes no such duty on the Corps, expressly or otherwise, that could be compelled under APA § 706(1), and Plaintiffs have not shown that the latter provision applies here. Further, with respect to the latter provision, the facts demonstrate both that (i) any delay in action on requests for water supply storage prior to the October 2012 conclusion of the ACT basin litigation cannot be attributed to the Corps, and (ii) the Corps’ 3 Plaintiffs’ section headings also state that the Corps’ response has been “unlawfully withheld,” Br. 21, 23, but Plaintiffs’ arguments exclusively address the alleged “unreasonable delay” in response and identify no argument or evidence supporting an allegation that the Corps has “unlawfully withheld” a response. See id. 21–29. For the same reasons addressed below, the Corps also has not “unlawfully withheld” any duty under law. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 20 of 61 11 subsequent deferral of action on a new, January 2013, request has been reasonable. Particularly given the highly deferential standard of review under APA § 555(b), Plaintiffs have failed to establish any violation that warrants the Court to compel agency action under APA § 706(1). A. The WSA imposes no duty to respond to Plaintiffs’ requests, and thus no such duty can be compelled under APA § 706(1) Plaintiffs argue that the WSA imposes a duty on the Corps to respond to their requests, theorizing that, because 43 U.S.C. § 390b(a) of that Act “directs the Army to ‘participate and cooperate with States and local interests in developing such water supplies in connection with the . . . operation of . . . multiple purpose projects[,]’” such cooperation “implies” a duty to respond to a reallocation requests. Br. 22 (quoting 43 U.S.C. § 390b(a)). However, there is no such duty in the WSA, and thus no remedy under APA § 706(1) on this basis. Like the power to grant writs of mandamus, “§ 706(1) empowers a court only to compel an agency ‘to perform a ministerial or non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act.’” Norton, 542 U.S. at 64 (quoting Attorney General's Manual on the Administrative Procedure Act 108 (1947)); see also Badier v. Gonzales, 475 F. Supp. 2d 1294, 1297 (N.D. Ga. 2006). The court’s authority is “normally limited to enforcement of a specific, unequivocal command,” and “the ordering of a precise, definite act . . . about which an official ha[s] no discretion whatever[.]” Norton, 542 U.S. at 63 (internal Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 21 of 61 12 quotation marks and citations omitted); see also Orabi v. Chertoff, 562 F. Supp. 2d 1377, 1382 (N.D. Ga. 2007) (citation omitted). Absent such a clear, discrete, and non-discretionary duty, a court lacks jurisdiction to compel the agency under APA § 706(1). See, e.g., Badier, 475 F. Supp. 2d at 1297–98. The provision cited by Plaintiffs meets none of these requirements. The provision sets forth Congress’ “Declaration of Policy” for the WSA “to recognize the primary responsibilities of the States and local interests in developing water supplies . . . and that the Federal Government should participate and cooperate with States and local interests in developing such water supplies.” 43 U.S.C. § 390b(a). This provision contains no discrete or unequivocal command for which an order compelling its performance is possible. Rather, the terms by which this policy are to be implemented are set forth in the next subsection, which also makes no mention of the duty Plaintiffs allege, see id. § 390b(b). Nor does inclusion of the word “cooperate” transform this statement of policy into a discrete duty to take final action on storage reallocation requests. Similar to the provision here, the Ninth Circuit recently upheld the reading of a declaration of policy in another statute as “a non-operative statement of policy that ‘does not create an enforceable mandate for some additional procedural step’” and expressly rejected the argument that the provision’s statement that “Federal agencies shall cooperate with State and local agencies to resolve water resource Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 22 of 61 13 issues in concert with conservation of endangered species” imposed any duties on federal agencies. Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 987 (9th Cir. 2015), cert. denied, 136 S. Ct. 799, (2016). The Ninth Circuit also rejected the argument that the use of the words “shall cooperate” transformed the provision into anything other than “a general policy goal that is” implemented in requirements elsewhere in the statute. Id. at 987–88. While Plaintiffs’ alleged duty appears nowhere in the WSA, it does contain an express requirement and deadline for agency responses to another type of request. See 43 U.S.C. § 390b(c)(1), (c)(3)(A) (setting deadline for Corps to make recommendations as to release to United States of state and local rights to future water storage). If Congress intended also to require responses to reallocation requests, it seemingly would have done so explicitly. See, e.g., Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014) (“[W]hen ‘Congress includes particular language in one section of a statute but omits it in another’—let alone in the very next provision—this Court ‘presume[s]’ that Congress intended a difference in meaning.”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). B. The Corps has not unreasonably delayed its response under APA § 555(b), and thus that response cannot be compelled Plaintiffs also assert that the APA entitles them to a response to their reallocation requests. Br. 21-29. APA § 555(b) provides “ancillary” requirements on rulemakings and adjudications, including that, “within a reasonable time, each Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 23 of 61 14 agency shall proceed to conclude a matter presented to it,” 5 U.S.C. § 555(b). As a threshold matter, Plaintiffs have not shown that this provision, which applies to rulemakings and adjudications, also imposes a duty with respect to the request at issue here. Even if it did, the Corps has not failed to meet that obligation, because the Corps is not responsible for the 1981 request not being addressed and has not unreasonably delayed action on Plaintiffs new, 2013, request. Thus, there is no basis for compelling the Corps’ response under APA § 706(1). 1. The delay in response to the 1981 request is not attributable to the Corps. Plaintiffs blame the Corps for “a thirty-five year delay” in responding to their 1981 request for reallocation of water storage in Allatoona Lake. Br. 21, 23. On the contrary, the facts show that the Corps initiated studies and prepared a draft report addressing a potential reallocation of storage in the 1980s following Plaintiffs’ request, but factors outside of the Corps’ control were the reason that the 1981 request was not resolved. Those factors include being subject to litigation seeking to enjoin any such reallocation (litigation in which Plaintiffs participated), a court order directing the Corps to take no such action to reallocate, interim agreements among the litigating parties which expressly barred any such reallocation, and a Congressionally-approved interstate Compact that was intended (but ultimately failed) to result in a comprehensive allocation of waters in the ACT Basin. Nor is that request still pending—Plaintiff State of Georgia itself joined Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 24 of 61 15 1991 and 1992 agreements among the litigants that expressly “superseded” the Corps’ proposed response to the 1981 request and required the Corps to abandon and cease further consideration of that request. DSOF ¶ 11–12. First, in the 1980s, the Corps in its discretion reviewed the 1981 request, studied reallocation, conducted environmental studies, repeatedly communicated to Plaintiffs its plans and progress, and, ultimately, developed a proposed reallocation report and draft contract modification. See PSOF ¶¶18-22, 25-26. However, as Plaintiffs recount, “[b]efore the Army could finalize its proposed actions, the State of Alabama filed suit” over water use in the ACT and ACF basins, including to enjoin any reallocation of storage in Allatoona Lake, id. ¶ 28, litigation in which the Corps remained entangled until late 2012. See DSOF ¶¶ 9-17. That litigation was stayed for more than ten years to allow settlement discussions, but in granting the parties’ 1990 joint request for a stay, the court ordered the Corps and other defendants not to take any action on reallocation during the pendency of the stay absent written approval of the States of Alabama and Florida. Id. ¶ 10. Settlement discussions broke down, and the parties returned to litigation in 2003. See, e.g., id. ¶ 14; see also PSOF ¶ 75. Despite the failure of the parties to reach an agreement, the Corps confirmed in 2005 that it would not preempt the outcome of the litigation by acting on reallocation until the suit was resolved. See DSOF ¶ 15 (D-00064368–69). Subsequently, the parties to the ACT litigation were Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 25 of 61 16 subject to court-ordered mediation of the dispute from March 2006 to September 2007. See id. ¶ 16 (D-00044188). The 1990 lawsuit was not concluded until the court issued a final order of dismissal of claims in late October 2012. See id. ¶ 17; see also PSOF ¶ 78. The Corps was barred for much of this period from taking action on reallocation. Even in the remaining years of the litigation, it was reasonable for the Corps to postpone any such action on reallocation until the lawsuit’s conclusion. Second, from 1991 to 2004, the Corps joined the other parties in agreements which either expressly barred it from taking action on Plaintiffs’ reallocation request or for which unilateral reallocation of storage in Allatoona Lake would have been contrary to the purposes of the agreements. DSOF ¶¶ 11–13. The States of Georgia, Florida, and Alabama and the Corps all signed a 1991 letter agreement which expressly “superseded” “the proposals for reallocation of water” that the Corps had created in 1989, in response to Plaintiffs’ request, and required the Corps “to cease further processing of [this] [document] and shall withdraw [it] from further consideration.” Id. ¶ 11 (D-00006489.0004); see also PSOF ¶ 29. Those same parties subsequently entered into a Memorandum of Agreement (“1992 MOA”) which sought a comprehensive study of the water needs of all users in the ACT and ACF basins prior to any reallocation, DSOF ¶ 12; PSOF ¶¶ 30-31. As with the 1991 Letter Agreement, the 1992 MOA mandated withdrawal of and Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 26 of 61 17 cessation of action on the Corps’ proposal to reallocate storage to Plaintiffs in Allatoona Lake. DSOF ¶ 12 (D-00062262–63). That MOA was extended several times, until the end of 1997, see id. (D-00062242), when the States of Georgia and Alabama and the United States entered into an Interstate Water Compact for the ACT basin. Id. ¶ 13 (SUPPAR007126). Although the 1997 Interstate Compact did not expressly bar reallocation, doing so would have been contrary to the purpose of the agreement, which was to develop an agreed apportionment of water resources in the ACT basin. See generally 1997 Interstate Compact (SUPPAR007126–39). Despite these steps, no such agreement was ever reached among the parties, and in 2004, the Interstate Compact expired. See PSOF ¶ 33. And as noted above, the litigation continued until late 2012. In short, factors outside of the Corps’ control were the reason that Plaintiffs’ reallocation request remained unresolved until late 2012. In addressing a similar context facing the Corps in parallel litigation over allocation in the ACF basin, the Eleventh Circuit in 2011 concluded that “the lack of a definitive allocation of storage for water supply is explained by factors beyond the agency's control, rather than the Corps' inaction,” i.e., the inaction was due to “legal and practical barriers to administrative action.” In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d 1160, 1183–84 (11th Cir. 2011) (citing Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1238–39 (11th Cir. 2003). In that case, as with the ACT basin, Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 27 of 61 18 those factors included more than two decades of litigation involving the States of Georgia, Florida, and Alabama and other water users disputing allocation of a Corps-operated reservoir. See id. at 1165–78. And as with the ACT basin, the parties there executed the 1992 MOA and an Interstate Compact, both of which, the Eleventh Circuit concluded, “restricted the Corps’ ability to consummate a decisionmaking process on its water allocation policy.” See id. at 1182–83. 2. The Corps has not unreasonably delayed action on Plaintiffs’ new, 2013, request. Even if the Corps were required to make a decision with respect to Plaintiff’s January 2013 request to reallocate storage in Allatoona Lake, there has been no unreasonable delay as a matter of law. A court’s “review is highly deferential” to the agency where, as here, a plaintiff seeks to compel under APA § 706(1) a response required by APA § 555(b). Interstate Nat. Gas Ass'n of Am. v. FERC, 285 F.3d 18, 57 (D.C. Cir. 2002) (citations omitted). “In determining whether a delay is reasonable, courts have frequently cited the six factor test developed by the District of Columbia Circuit Court of Appeals in Telecommunications Research & Action Center v. Federal Communications Commission (TRAC), 750 F.2d 70, 79-80 (D.C. Cir. 1984).” Ren v. Mueller, 2008 WL 191010, at *10 (M.D. Fla. 2008); see also Florida Wildlife Federation v. McCarthy, 2015 WL 3818941, at *1 (M.D. Fla. 2015). That is the test that Plaintiffs’ use for their argument, Br. 23-29. As addressed below, the six factors— Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 28 of 61 19 viewed as part of the TRAC test or separately—confirm the reasonableness of the Corps’ delay in acting. The Court thus should reject Plaintiffs’ motion to compel the Corps’ response under APA § 706(1). These factors are addressed in detail below. a. The “Rule of Reason.” “[T]he time agencies take to make decisions must be governed by a ‘rule of reason,’” TRAC, 750 F.2d at 79-80 (quotation omitted). It was reasonable for the Corps to initiate an update to the ACT Basin WCMs that included only operational elements, excluding water storage allocation, when litigation regarding water storage was still pending. When that litigation ended, it was still reasonable for the Corps to complete that update prior to addressing reallocation. And it was and is reasonable for the Corps to defer taking final action on Plaintiffs’ reallocation requests in the absence of the usual predicates to such reallocation, including the absence of appropriated funding or cost-sharing. First, the Corps’ decision in 2007 to initiate an update of the WCMs’ operational elements before addressing water storage allocation was reasonable. Specifically, when the parties to the 1990–2012 litigation failed to reach agreement on water use in the ACT basin—and while the litigation was ongoing—the Corps determined that it would move forward with legally-required and long-delayed revisions to the WCMs to update operational elements before addressing Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 29 of 61 20 reallocation. DSOF ¶ 18 (D-00053482). “Under those circumstances—continued disagreement among the States and litigation that persisted until the last remaining claims were ultimately dismissed in July and October 2012—[the Corps] made the decision to focus on updating the water control manuals to reflect . . . existing allocations of storage to water supply in Allatoona Lake,” and postponed consideration of changes to allocation, the subject of the litigation. See id. (D- 00053481). Second, it was also reasonable for the Corps to continue work on its WCMs update, even after the 1990–2012 litigation ended, and complete that process before addressing Plaintiffs’ 2013 reallocation request. In January 2013, after the conclusion of the ACT basin litigation, Governor Deal of Georgia sent the Corps a new request for reallocation of Plaintiffs’ storage in Allatoona Lake and modification of their storage contracts, among other requests. DSOF ¶ 19 (D- 00065085). In its April 2013 response, the Corps explained that it was currently in the midst of updating the ACT Basin WCMs’ operational elements, including preparing the required technical, environmental, and other studies, and thus “not in a position to take final action on” the requests made by Governor Deal “prior to the completion of the updated ACT water control manuals . . . .” Id. ¶ 20 (D- 00066808). The Corps also communicated that until the WCMs update was completed, action on Plaintiffs’ request would not be initiated. Id. (D-00066809). Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 30 of 61 21 That process was completed on May 4, 2015, with the signing of the ROD. Id. ¶ 22 (D-00053477–480). However, Plaintiffs initiated this litigation in November 2014, id. ¶ 21, before the completion of the process, and less than two years after Governor Deal submitted Georgia’s new water supply request. Third, it was also a reasonable exercise of the Corps’ discretion to defer consideration of reallocation, in light of the absence of appropriations or a cost- sharing agreement to fund the predicate studies needed for reallocation. After the Corps completed the update to the ACT WCMs in 2015, the Corps’ South Atlantic Division Commander, Brigadier General C. David Turner, wrote to Governor Deal in response to his January 2013 storage request, acknowledging that the completion of the ACT manual update made it possible for the Corps to “turn its attention to” Georgia’s water supply request. DSOF ¶ 23 (Attach. B, Ex. 1). However, as General Turner’s letter stated, the Corps had not included funding requests in its budget requests to Congress for the current or following fiscal years, and Congress had not specifically appropriated funds for such an effort. Id. Specific appropriations are not a per se requirement for the Corps to carry out reallocation studies. However, as a matter of general policy and practice, the Corps conducts studies to consider potential reallocations of storage for water supply under the authority of the WSA. Id. These studies are often initiated with the support of a non-federal, cost-sharing partner. Id. Plaintiffs have not entered Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 31 of 61 22 into any cost-sharing agreement with the Corps for such a study. If a potential reallocation is warranted, and does not require additional study or Congressional authorization, at its discretion the Corps may use available general funds to complete a reallocation study. However, the Corps has not yet chosen to exercise that discretion and dedicate its limited resources to undertake an ACT reallocation study at full federal expense. 4 While these facts demonstrate the reasonableness of any delay in the Corps’ response on reallocation, Plaintiffs argue to the contrary on the bases that (i) the delay is measured in years, (ii) there is no firm deadline by which the Corps will respond, (iii) and the Corps allegedly lacks defensible and consistent reasons for 4 The Corps has taken a different approach to considering Georgia’s request for storage in Lake Lanier in the ACF Basin as part of the ongoing ACF WCM update effort, based on important distinctions in the procedural status and litigation posture in that basin. In litigation challenging the Corps’ denial of Georgia’s request for water supply storage in Lake Lanier, the U.S. Court of Appeals for the Eleventh Circuit set aside the Corps’ denial and directed that the case be remanded with instructions for the Corps to reconsider the extent of its authority to accommodate Georgia’s water supply request at Lake Lanier in the ACF basin. In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d at 1200–01; DSOF ¶ 63. In response to this order, the Corps concluded in a 2012 legal opinion that it could accommodate Georgia’s request without reallocation, but that it also had authority, specific to the ACF Basin, for a specific volume of reallocation if needed. Id. ¶ 64 (D-00066700–04, 47). Georgia subsequently updated its request to ask for more water supply from Lake Lanier, but only within the confines of the storage the Corps had determined was legally authorized. Id. Thus, in the ACF Basin, the Corps had already determined, prior to initiating the WCMs updates that are currently in process in that Basin, that it had authority, specific to that basin, to accommodate Georgia’s water supply request—but also that a decision to take action on Georgia’s request would require a separate analysis. See id. ¶¶ 63–64. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 32 of 61 23 the delay. See Br. 23-26. For the reasons addressed above, there is no merit to Plaintiffs’ attempt to attribute to the Corps delay for “thirty-five years,” or any period prior to the conclusion of the 1990–2012 litigation. Nor is there a bright line rule that a delay of a year or more is per se unreasonable. Even though there is language in some decisions suggesting that there is a threshold at which delay is per se unreasonable, “subsequent cases in [the D.C.] Circuit have made clear that measuring the delay by years alone cannot establish unreasonable delay.” Liberty Fund, Inc. v. Chao, 394 F. Supp. 2d 105, 115 (D.D.C. 2005) (citations omitted). The Corps was unable to act, either as a practical or as a legal matter, on Georgia’s earlier storage requests during much of the pendency of litigation between 1990 and 2012. To the extent that the Corps could have undertaken a reallocation study either during that period or after, the Corps has explained its reasoning for prioritizing the update of operational elements of its WCMs before addressing changes in storage allocation in Allatoona Lake, and its position is reasonable and entitled to deference. The Corps has not foreclosed the possibility of undertaking such a study since the ACT WCM update was completed, but it is not unreasonable that the Corps, in the absence of a cost-sharing agreement or specific Congressional appropriations, has not chosen to direct its limited resources immediately towards that effort, especially in light of the continued ACT litigation, Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 33 of 61 24 the ongoing ACF WCMs update, and the Corps’ many other important responsibilities. Finally, the fact that there are several rationales supporting the Corps’ decision, and that these have evolved over a period of more than a decade, means only that the Corps has carefully considered its obligations and limitations through changing circumstances—not the Corps “has struggled to explain its reasons,” as Plaintiffs contend, see Br. 23-24. The “rule of reason” weighs in favor of the Corps here. b. Agency priorities and resources. Next, the same facts also support the reasonableness of the Corps’ actions with respect to the TRAC factor that “the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority,” TRAC, 750 F.2d at 79-80. As discussed above, the Corps explained that, while litigation challenging reallocation continued, the agency initiated an update of the WCMs, and that, when the litigation concluded and the Corps was several years’ work into that update, “[i]n view of the extensive effort already expended to complete the WCM manual update to reflect current conditions, as well as the urgent need to update operations for all authorized purposes, not water supply alone, [the Corps] continued with the current WCM process” and reasonably postponed initiating “the additional, discretionary action of considering Georgia’s Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 34 of 61 25 water supply request[.]” DSOF ¶ 20 (D-00053482). Having the benefit of the Corps’ explanation of its decision to defer final action on reallocation of storage in Allatoona Lake and in light of what the agency has explained are its priorities and resources, the Court should reject Plaintiffs’ argument that the agency should have conducted these activities in the reverse order, see Br. 27. It is up to the agency to order its own priorities, and be “master of its own house,” within the discretion permitted under law. See, e.g., Nat. Res. Def. Council, Inc. v. Sec. & Exch. Comm'n, 606 F.2d 1031, 1055–56 (D.C. Cir. 1979) (citing Myers v. Bethelehem Shipbuilding Corp., 303 U.S. 41 (1938)). c. Statutory timetable or indication of speed. In this case there is no Congressional “timetable or other indication of the speed with which it expects the agency to proceed[,]” see TRAC, 750 F.2d at 79- 80, to supply context for the rule of reason. APA § 555(b) provides no statutory deadline, directing only that agencies conclude matters presented to them “within a reasonable time[.]” 5 U.S.C. § 555(b). And, as noted above, there is no duty under the Water Supply Act for the Corps to respond on take final action on a request to reallocate water storage—and thus no possibility that Congress indicated a deadline for a requirement that is itself absent from the statute. Plaintiffs concede that “there is no directly applicable statutory deadline,” but nevertheless assert that Congress has expressed an intent about how quickly the Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 35 of 61 26 agency must respond to such requests. Br. 26. They claim that this intent is expressed in a separate deadline in the WSA, by which the Corps’ must make recommendations as to the release to the United States of state and local rights to future water storage. Id. (citing 43 U.S.C. § 390b(c)). But Plaintiffs concede that neither this requirement nor this deadline apply to the requests at issue in this case. See id. And Plaintiffs fail to explain why such a deadline would reveal Congress’ intent with respect to the only potentially applicable response requirement, in another statute—APA § 555(b). d. Impact of the delay on human health and extent of prejudice. The next TRAC factor directs courts to “take into account the nature and extent of the interests prejudiced by delay” and consider that “delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake . . . .” TRAC, 750 F.2d at 79-80. There is no merit to Plaintiffs’ allegations that the Corps’ delay in response either imperils human health and welfare or significantly prejudices Plaintiffs’ interests, and thus these factors do not demonstrate a lack of reasonableness in the Corps’ actions. Plaintiffs’ only argument as to the impact of delay on “human health and welfare” is that “[i]f [CCMWA] experiences water supply shortages . . . taps for the residents, businesses, schools, hospitals, and fire departments that rely on [CCMWA] could run dry.” Br. 26–27. This argument is both unsupported by facts Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 36 of 61 27 and irrelevant to the Corps’ only legal obligation in this case. Moreover, it is undercut by Plaintiffs’ argument on prejudice—i.e., that the lack of a response on additional storage in Allatoona Lake has made it impossible for Plaintiffs to rely on such additional storage, and thus forced Plaintiffs to construct two other reservoirs, Br. 28–29. With respect to that alleged prejudice, Plaintiffs have not shown that a deferred Corps response has prevented them from making arrangements to secure their long-term water supply, or that a response would have resolved that issue. First, Plaintiffs have failed to establish any rational connection between their claim in this case—that the Corps has unreasonably delayed a final response on their requests for reallocation of water storage in Allatoona Lake—and the allegation that the Corps’ actions will result in “schools, hospitals, and fire departments” running out of water, and thus endangering human health and welfare. Id. 26-27. Plaintiffs have not asserted any legal entitlement to future water storage allocation in Allatoona Lake above their currently contracted amount. Rather, the only thing to which they are entitled as a result of their reallocation requests is a response from the Corps. Any response—including denying reallocation, or granting it, but at a quantity less than that desired by Plaintiffs— would fully satisfy the agency’s only responsibility under APA § 555(b). See, e.g., Ctr. for Biological Diversity v. Kempthorne, 498 F. Supp. 2d 293, 296-97 (D.D.C. 2007) (dismissing as moot suit alleging agency unreasonably delayed response to Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 37 of 61 28 plaintiff’s request, under APA §§ 555(b), 706(1), where agency subsequently denied plaintiff’s request during litigation); Nat'l Parks Conservation Ass'n v. U.S. Dep't of Interior, 794 F. Supp. 2d 39, 44-46 (D.D.C. 2011) (same). And even so, Plaintiffs acknowledge that a storage allocation is no guarantee or entitlement to a particular volume of water supply, because the Corps’ role is limited to contracting for storage space only, and amount of water supplied from a given quantity of storage (the “yield”) can vary considerably over time based on factors outside the Corps’ control. See Br. 3; PSOF ¶¶ 11-12, 14-15. Second, the undisputed facts do not support Plaintiffs’ contention that CCMWA will run out of water if it does not have access to greater storage volumes in Allatoona Lake. Allatoona Lake is not Plaintiff CCMWA’s only source of water supply—they acknowledge that Lake Lanier, in the ACF basin, is also a “primary” source of water supply. Br. 3 & n.2. In addition, Plaintiffs have constructed another reservoir for water supply, Hickory Log Creek Reservoir, and have begun construction on a third reservoir, Paulding Reservoir.5 Further, the record belies the 5 PSOF ¶¶ 51, 58. While Plaintiffs blame the Corps for their inability to access supply from Hickory Log Creek Reservoir, id. ¶¶ 55-58, they have not disputed that they would be able to access the supply from that reservoir if they built the necessary infrastructure to connect it to their water supply system, see id. ¶ 58, infrastructure that they originally contemplated when they applied for a permit to construct the reservoir, DSOF ¶¶ 7–8 (D-00064353–54, D-00048230–31, 35). Indeed, Plaintiff CCMWA has already stated that it can and will extract water in this way if unable to obtain additional storage volume in Allatoona Lake. Id. ¶ 8 (D-00066546). Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 38 of 61 29 claim that CCMWA risks inadequate water supply unless its storage allocation is increased. Plaintiffs make no allegations that they were rendered short—let alone hazardously short—of water supply during 2007, see PSOF ¶¶ 60-68, which was, in their own words, “by far the worst drought on record” in the ACT basin. Id. ¶ 60. Likewise, they make no such allegation for a 2012 drought that they also reference. See id. ¶¶ 69-74. Third, for similar reasons, Plaintiffs have not shown that any delay in response to their reallocation requests for Allatoona Lake prejudices them by preventing them from making long-term plans to meet water supply needs. Plaintiffs admit that they are already making such arrangements, including, as noted above, through construction of two additional reservoirs. Moreover, Plaintiffs began (and completed) construction of Hickory Log Creek Reservoir during the ACT basin litigation, see PSOF ¶¶ 51, 54, and thus years before any delay attributable to the Corps. Consequently, the prejudice Plaintiffs allege on the basis of their decision to construct that reservoir, see Br. 28-29, cannot be attributed to the Corps’ delay in response to their reallocation requests. e. Good faith. Finally, the Corps has acted in good faith in its approach to allocation of Allatoona Lake storage. As addressed above, the Corps worked cooperatively with Plaintiffs here and the other parties to the 1990–2012 litigation, in an attempt to Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 39 of 61 30 resolve disagreements among them. Subsequently, in communications with Plaintiffs, the Corps has conveyed its approach to the reallocation requests and explained its reasoning. While the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed’” TRAC, 750 F.2d at 80 (quoting Pub. Citizen Health Research Grp. v. Comm’r, 740 F.2d 21, 34 (D.C. Cir. 1984)), “the good faith of the agency in addressing the delay weighs against mandamus.” Liberty Fund, Inc., 394 F. Supp. 2d at120 (citing In re Am. Fed’n of Gov't Employees, 837 F.2d 503, 507 (D.C. Cir. 1988)). The Corps’ good faith efforts here weigh in favor of the reasonableness of any deferral in responding to Plaintiffs’ requests. II. The Corps has not unreasonably delayed updating the Water Control Plan for Allatoona Lake to reflect current conditions and current water supply needs Plaintiffs allege that the Corps has a duty to update the WCM for Allatoona Lake. Br. 29. Plaintiffs further allege that by excluding current requirements for water supply in the WCMs update, the Corps has failed to comply with that alleged duty. Br. 3. Finally, Plaintiffs assert that the decision not to consider additional water supply storage at Allatoona Lake is prejudicial to water supply interests. Br. 33-34. Plaintiffs are wrong on all counts and have failed to establish that this Court should compel any such action under APA § 706(1). Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 40 of 61 31 A. Neither the Flood Control Act of 1944 nor the implementing regulations impose a duty to update the Water Control Manuals as Plaintiffs allege As argued above, APA § 706(1) only authorizes the court to compel an agency to perform a ministerial or non-discretionary act but cannot direct the agency how to act. Norton, 542 U.S. at 64. The duty referenced in the Flood control Act of 1994 is only to “prescribe regulations for the use of storage allocated for flood control or navigation at all reservoirs constructed wholly or in part with Federal funds provided on the basis of such purposes . . . .” 33 U.S.C. § 709. The Corps has implemented that duty by adopting regulations, and while those regulations do provide that the Corps will develop water control plans and manuals for the reservoirs controlled by the Corps, they also give the Corps discretion to update the WCMs “as necessary.” 33 C.F.R. § 222.5(f)(1), (2). Plaintiffs point to nothing in those regulations that establishes the kind of discrete, unequivocal commend that which is mandatory and nondiscretionary. Norton, 542 U.S. at 63-64. B. The Corps decision not to include water supply reallocation in the water control manual does not violate any duty Plaintiffs argue that the failure to include water supply, and specifically water storage reallocation, violates a duty to keep the WCMs up to date. Br. 31-33. As argued below, however, the Corps did consider water supply, it simply did not Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 41 of 61 32 consider reallocation of water storage as a management measure. Also, as explained below, Plaintiffs produce no authority that requires the Corps to consider water supply reallocation as part of the WCMs update. Plaintiffs themselves acknowledge this by arguing that the Corps has “abused its discretion” by not updating the manuals to reflect water supply reallocation. See Br. 32. Again, Plaintiffs have not established that the Corps failed to comply with any mandatory, non-discretionary duty in the update of the WCMs. C. The Corps’ decision not to include water supply reallocation is not prejudicial to Plaintiffs’ interests Finally, Plaintiffs argue that the failure to include water supply reallocation in the WCMs update is prejudicial to Plaintiffs’ interest. Br. 34-35. However, as argued above, Plaintiffs have no right or entitlement to any storage amount beyond the amount currently contracted. It is entirely within the Corps’ discretion to respond to any future water supply reallocation, and in so doing it must balance the project purposes, as required by the regulations. Plaintiffs cannot establish at this time that they will be prejudiced by the exercise of that discretion. In sum, Plaintiffs have failed to establish that the Corp’s decision not to include water supply reallocation in the WCM update violates any duty or mandate that can be enforced under APA § 706(1). Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 42 of 61 33 III. The Corps fully complied with NEPA In addition to alleging that the Corps has unlawfully delayed taking the actions addressed above, Plaintiffs also allege that the final action taken by the Corps is legally deficient under NEPA and should be set aside. In particular, Plaintiffs assert that the NEPA analyses and decision documents prepared for the update of the ACT Basin WCMs, the Final EIS (“FEIS”) and ROD, fail to satisfy the requirements of that statute. Br. 34–49. A close look at these assertions shows they are simply variations of Plaintiffs’ argument that the Corps should have considered reallocation of water storage when it updated its WCMs. As explained below, the Corps’ decision to complete its update of the WCMs before considering reallocation of water storage in the ACT Basin does not invalidate the Corps’ NEPA analysis with respect to the WCMs. The Corps has no duty to consider reallocation requests at the same time it updates a basin’s WCMs. And Plaintiffs’ disagreement with a discretionary decision is not a sufficient basis on which to challenge a NEPA analysis. The Corps’ work more than satisfies NEPA. The Corps appropriately defined the purpose and need of the updated WCMs; the Corps analyzed reasonable alternatives for the updated WCMs and explained why it eliminated certain alternatives; and the Corps analyzed the environmental effects of the Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 43 of 61 34 update. The Corps’ NEPA analyses deserve extreme deference from the Court. Defs. of Wildlife, 684 F.3d at 1249. A. The Corps’ Purpose and Need for and Scope of its WCMs Update Comply with NEPA The Corps defined the scope of its action as updating the operational elements of its WCMs for the ACT Basin. This is reasonable and complies with NEPA. Plaintiffs’ contrary arguments—that it was arbitrary and capricious for the Corps not to include reallocation of water storage in the update and that the Corps had a duty to meet, rather than simply consider, water supply needs in the update— are without merit and fail to demonstrate any deficiency in the purpose and need defined by the Corps for this action. An EIS must “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13. An agency may not define an action so narrowly that only one alternative accomplishes the agency’s goals, making the EIS a “foreordained formality;” but it also may not frame the action so broadly that the project would “collapse under the weight of the possibilities.” Citizens for Smart Growth v. Sec’y of Dep’t of Transp., 669 F.3d 1203, 1212 (11th Cir. 2012) (quoting Busey, 938 F.2d at 196). Courts review an agency’s consideration of relevant factors and its ultimate scope of the project under a rule of reason. Citizens for Smart Growth, 669 F.3d at 1212. And, “[a]gencies enjoy considerable discretion in defining the Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 44 of 61 35 purpose and need of a project . . . .” HonoluluTraffic.com v. Fed. Transit Admin., 742 F.3d 1222, 1230 (9th Cir. 2014) (internal quotation omitted); Webster v. USDA, 685 F.3d 411, 422 (4th Cir. 2012). 1. The Corps properly defined the purpose and need of the action. The Corps defined the purpose and need of its update to the ACT Basin WCMs to focus on updating the manuals’ operational elements for current operations. DSOF ¶¶ 30–31 (D-00043863–64). An operational update was needed both as a practical matter and to satisfy the Corps’ legal obligations. Corps regulations require that “[n]ecessary actions will be taken to keep approved water control plans up-to-date[,]” and an update to comprehensively reflect the basin was badly needed. 33 C.F.R. § 222.5(f)(2). The existing basin-wide WCM had not been updated since 1951, before many of the 17 projects in the basin had even been built. DSOF ¶¶ 1, 28 (D-00043862, 44178). Population, demands, and laws had changed significantly in the more than half of a century since the last update, and there was a specific need for a basin-wide drought contingency plan. DSOF ¶ 29 (D-00043862–63). But the Corps’ action also needed boundaries. Citizens for Smart Growth, 669 F.3d at 1212 (agency cannot frame an action so broadly that the project would “collapse under the weight of the possibilities”) (quoting Busey, 938 F.2d at 196). Therefore, the Corps also adopted ten different limiting criteria—termed Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 45 of 61 36 “screening criteria”—to ensure the action was feasible. DSOF ¶ 37 (D-00044197). The screening criteria included limitations such as not increasing flood risk above the current level, not considering reallocation, and ensuring that management measures considered would not exceed the physical limitations of projects. DSOF ¶¶ 40–42 (D-00043867–68). Based on the legal and factual context it faced, the public input it received, and the limitations it defined, the Corps developed five objectives for updated ACT Basin WCMs, summarized as: 1) more accurately define flow requirements for Alabama Power Company projects to support navigation on the Alabama River; 2) develop a drought management plan as required by [Corps] regulations; 3) improve conditions for downstream fish and wildlife; 4) improve system performance to achieve congressionally authorized project purposes; and 5) incorporate changes in Alabama Power Company project operations into the updated WCMs. DSOF ¶ 34 (D-00044196). The Corps reasonably defined the action it took in updating the ACT Basin WCM, and in so doing, complied with NEPA. 2. The Corps was not required to address reallocation in this update. Plaintiffs claim that the Corps is required to consider reallocation when it updates a WCM, and because it did not do so here, the scope of the action was too narrow and therefore the analyses were deficient. Br. 38. Plaintiffs are mistaken. There is no requirement for the Corps to consider reallocation in the update of its Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 46 of 61 37 WCMs, and in 2007 the Corps reasonably exercised its discretion to defer Plaintiffs’ reallocation request until after the Corps completed the ACT Basin WCMs update. The Corps’ NEPA analysis was appropriately focused on the specific decision the Corps was undertaking. Plaintiffs’ disagreement with the Corps’ decision does not render the NEPA analysis of the decision flawed. Plaintiffs fail to identify authority that requires the Corps to consider reallocation of water storage as part of this update to the WCMs. Neither Section 7 of the Flood Control Act nor the Water Supply Act of 1958 contain any such requirement. See 33 U.S.C. § 709; 43 U.S.C. § 390b. The only regulatory language Plaintiffs cite is a phrase buried in a provision in the “general policies” section of the Corps’ water control management regulations.6 But the subsection where this language exists merely encourages the use of efficient water management measures. As one of the many examples, the subsection explains that the Corps should examine the possible need for reallocation within existing authority and constraints. 33 C.F.R. 222.5(f)(f)(4) (emphasis added). This language is loaded with discretion. For starters, the language on which Plaintiffs rely is contained in a “general policy” provision. This provision is not a requirement; therefore, the 6 Plaintiffs also reference Section 2-02(c) of the Corps water manual preparation guidance in passing to support its position that the Corps was required to consider reallocation when it updated the ACT Basin WCM, Br. 40, but that section merely states that a manual should list the authorized purposes of the projects in the basin. ER 1110-2-8156, ¶2-02(c). Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 47 of 61 38 provision does not create a duty for the Corps to act in a specific way at a certain time. See supra Sec. I.A. Plus, in 2007 the Corps was in the midst of multi-decade litigation challenging reallocation of storage in Allatoona Lake, rendering action on such reallocation untenable. See supra, Sec. I.B.1; DSOF ¶18 (D-00053481). Finally, as explained below, the Corps’ authority to make a particular reallocation has not yet been determined. The Corps may as a general matter consider a storage reallocation request. In re MDL-1824 Tri-State Water Rights Litig., 644 F.3d at 1197. But whether the Corps has authority to grant a particular reallocation request requires analysis of the reservoir project at issue and the specific reallocation requested—information that is normally addressed through a reallocation study—to determine if the requested reallocation would “seriously affect the purposes for which the projects was authorized, surveyed, planned or constructed” or if the reallocation “would involve major structural or operational changes . . . .” Tri-State Water Rights, 644 F.3d at 1171 (quoting 43 U.S.C. § 390b(3)). If any of these impacts exist, the Corps must seek Congressional authority before granting the reallocation request. As discussed supra, Sec. I.B.2.a, the Corps has not budgeted for an ACT reallocation study, plaintiffs have not entered into a cost-sharing agreement for such a study, and Congress has not appropriated specific funds for that purpose. Plaintiffs are thus mistaken that the Corps’ general discretion to consider Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 48 of 61 39 reallocation requests meant that it was capable of addressing reallocation in this WCMs update—let alone that reallocation must be included in the update. An update to a basin’s WCM and a request for reallocation at a particular project are two separate actions. FEIS at ES-19 (D-00043790). Whether to address reallocation in this action or separately is entirely within the Corps’ discretion. The Corps’ water managers have discretion under Corps regulations and a Congressional delegation of authority to develop WCMs that reflect each basin and the authorized purposes of the individual projects within a basin. 33 U.S.C. § 709; FEIS at 3-6 (D-00044183). The Corps’ role in managing the 17 federal and non- federal projects in the basin for the many authorized purposes necessarily requires balancing of those purposes when there are conflicts. See DSOF ¶¶ 1–3 (D- 00044178–79); see also S. Dakota v. Ubbelohde, 330 F.3d 1014, 1027 (8th Cir. 2003) (“The Flood Control Act clearly gives a good deal of discretion to the Corps in the management of the River.”); Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F. Supp. 2d 230, 252 (D.D.C. 2003) (Corps has sufficient discretion under Flood Control Act to balance interests in the basin). 3. While the Corps properly addressed current water storage operations in its analysis, it has no duty to “meet” water needs. Plaintiffs also claim that the update of the ACT Basin WCMs did not consider the current water storage operations, and asserts that the Corps has a duty to “meet” water needs. Br. 37–38. Neither claim is true. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 49 of 61 40 The scope of the update of the ACT Basin WCM considered current water storage operations as they exist under current contracts. DSOF ¶ 56 (D-00043868, 43986, 44352, 44495, 44505). This is appropriate given that a WCM must address authorized uses, but, as addressed above, it need not consider a reallocation of storage. Contrary to Plaintiffs’ assertion, see, e.g., Br. 43-44, the Corps has no duty to “meet” water supply needs in the basin. Nowhere do Plaintiffs cite a source for such a duty, and no such duty exists. While the WSA provides that the Corps of Engineers can provide water storage in its reservoirs to a State or local interest if that entity pays the expense of such storage, it does not require the Corps to “meet” local supply needs. See 43 U.S.C. § 390b(b). And the Plaintiffs themselves recognize that the Corps has no authority to grant rights to, or to guarantee availability of, water for States. PSOF ¶ 11; FEIS at 1-9 (D-00043870) (“Securing local sources of water supply for various cities in the basin “is a local responsibility, not a [Corps] responsibility.”). Therefore, Plaintiffs’ repeated reference to the Corps’ failure to “meet” current and future water supply needs of the region is inapposite, because the Corps is not required to do so. B. The Corps Appropriately Selected, Reviewed and Eliminated Alternatives Plaintiffs claim that they presented four alternatives to the Corps—two involving requests to reallocate storage to meet water needs, and two requests to Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 50 of 61 41 change the water storage accounting methods—that were allegedly improperly eliminated from consideration. Br. 36–37. But the Corps’ range of reasonable alternatives was delimited by the purpose and need of the action. The Corps fully considered three alternatives and the no action alternative, after properly rejecting eight alternatives. DSOF ¶¶ 53–54 (D-00044230, 44233, 44234, 44235, 44237, 44238, 44239, 44240, 44252, 44256, 44258). The purpose and need statement specifically excluded Plaintiffs’ proposals, and the Corps explained why they were not considered. DSOF ¶¶ 40–44 (D-00043867–68, 44198, 44226). The purpose and need statement of an agency’s proposed action “delimit[s] the universe of the action’s reasonable alternatives.” Busey, 938 F.2d at 195. Agencies are permitted to eliminate alternatives from further study when they do not meet the reasonable objectives for the project. City of Alexandria, Va. v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999) (An agency can properly exclude an alternative from an EIS if the agency can reasonably “conclude that the alternative does not ‘bring about the ends of the federal action.’” (quoting Busey, 938 F.2d at 195)); N. Buckhead Civic Ass’n, 903 F.2d at 1541-42; see also N. Buckhead Civic Ass’n, 903 F.2d at 1541-43; Tongass Conservation Soc’y v. Cheney, 924 F.2d 1137, 1140-42 (D.C. Cir. 1991) (upholding an agency’s decision to eliminate 13 of 14 alternatives after preliminary analysis for failing to meet the propose and need). Courts review an agency’s choice and analysis of alternatives presented in an EIS under a rule of Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 51 of 61 42 reason. Citizens for Smart Growth, 669 F.3d at 1213. And “[w]hen alternatives are rejected from consideration in an EIS, there is no duty to perform in-depth analyses of [those] alternatives.” Id. Agencies need only “briefly discuss the reasons for their having been eliminated.” 40 C.F.R. § 1502.14(a). 1. The Corps’ consideration and evaluation of alternatives, consistent with its purpose and need for the action, was proper. After the Corps established a valid and supported purpose and need for its action, the Corps formulated and considered eleven different alternatives for the ACT Basin WCM update, based on different formulations of management measures, as well as the no-action alternative that was the based on current operations. The Corps followed a detailed process to develop the various alternatives it analyzed. DSOF ¶ 32 (D-00044194). First, the Corps identified the challenges it sought to address with the updated Master WCM, and based on those challenges, public scoping, and limiting factors, it defined the objectives of the project. DSOF ¶ 33 (D-00044194–96). Then the Corps developed the no action alternative based on existing operations. DSOF ¶ 32 (D-00044194). Next, the Corps formulated the various alternatives by considering the categories of management measures, all consistent with the authorized purposes of the projects in the basin. DSOF ¶ 35 (D-00044196). The Corps filtered any proposed measures based on its objectives and the screening criteria. DSOF ¶ 37 (D-00044197). The remaining management measures were added together one at a time to create each Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 52 of 61 43 of the alternatives. DSOF ¶ 38 (D-00043790). Accordingly, the alternatives build one on another, ultimately establishing the recommended plan for water management in the ACT Basin. Id. This analysis and formulation shows that the Corps developed several different reasonable alternatives to compare to its proposed action that were within the stated purpose and need of the action. Busey, 938 F.2d at 195. And once the alternatives were developed, the FEIS briefly described why eight of the alternatives were rejected because other alternatives better met the needs of the project. 40 C.F.R. § 1502.14(a); DSOF ¶¶ 53–54 (D- 00044230, 44233, 44234, 44235, 44237, 44238, 44239, 44240, 44252, 244256, 44258). Three alternatives, Plan D, Plan F, and Plan G, as well as the no-action alternative, were analyzed and evaluated in depth. 2. The Corps properly excluded Plaintiffs’ proposed alternatives from detailed evaluation. Plaintiffs argue that the Corps’ EIS is deficient in failing to evaluate various alternatives relating to reallocation and alternate methods for storage accounting— but these alternatives were properly dismissed based on their inconsistency with the stated purpose and need for the action. To begin, Plaintiffs complain that alternatives to meet current water supply needs were not evaluated in the EIS, even though the Corps was required to keep the WCMs up to date for all authorized purposes to reflect current conditions. Br. 37–38. But the Corps has no duty to “meet” water supply needs, as addressed Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 53 of 61 44 above, and the alternatives that the Corps evaluated all considered water supply and incorporated current water supply contracts. See, e.g., DSOF ¶ 45 (D- 00043790), ¶ 56 (D-00044352–53). Such incorporation ensured that the WCMs were updated for current conditions and operations, that they addressed the authorized purpose of water supply, and that they reflected currently contracted storage allocations. Plaintiffs’ disagreement with the Corps’ decision to address water supply in this way demonstrates no legal failings in the analyses. Next, Plaintiffs complain that the Corps did not evaluate alternatives that included Plaintiffs’ requests for storage reallocation or changes in storage accounting practices, and they allege the Corps provided no explanation of why it did not consider the alternatives. Br. 42. However, the purpose and need of the project made clear that reallocation and accounting methodology changes would were outside the scope of the project. Id. ¶ 48 (D-00043891). The Corps also explained that reallocation or changes to the water storage accounting methodology “involve a separate analysis as part of a separate process, which would follow the completion of the WCM update process.” Id. ¶ 50 (D-00043790). The Corps further explained in its Addendum to the ROD that although it considered actual and projected water supply uses at Allatoona Lake, its action was not considering reallocation or accounting changes. Id. ¶ 60 (D-00053481). In sum, the Corps explained that Plaintiffs’ proposed alternatives would not be considered Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 54 of 61 45 in the update of the ACT Basin WCM, and it properly handled Plaintiffs’ proposed alternatives. Plaintiffs also claim that even if the Corps did not have authority to implement its proposed alternatives, the Corps should have considered the alternatives. Br. 41. But the Corps determined that the Plaintiffs’ proposed alternatives would not achieve the purpose and need of the action, and for that reason it did not have to analyze them further. Further, an agency need not analyze alternatives that it has in good faith rejected as impractical, ineffective or not likely to be approved. See WildEarth Guardians v. Nat’l Park Serv., 703 F.3d 1178 (10th Cir. 2013); Latin Am. for Soc. & Econ. Dev. v. Adm’r of Fed. Hwy. Admin., 756 F.3d 447, 469 (6th Cir. 2014), cert. denied, Detroit Int’l Bridge Co. v. Nadeau, 135 S.Ct. 1411 (2015); see also Sierra Club v. U.S. Army Corps of Eng’rs, 935 F. Supp. 1556, 1576 (S.D. Ala. 1996). Finally, Plaintiffs make the related argument that their proposed alternatives fit within the purpose and need statement, and should have been considered on that basis. Br. 36. But Plaintiffs ignore the entirety of the statement that sets the limits of the purpose and need of the project as well as the screening criteria that expressly exclude Plaintiffs’ proposals from the scope of the update. The purpose and need statement makes clear that the update is based on measures within existing congressional authorizations and not those that would require further Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 55 of 61 46 studies. DSOF ¶ 41 (D-00043867); see also supra, Sec. I.B.2.a. And the screening criteria expressly exclude reallocation of storage and the changes to storage accounting sought by Plaintiffs. DSOF ¶ 42 (D-00043867), ¶ 48 (D-00043891). C. The Corps Took a Hard Look at the Effects of its WCMs Update NEPA requires the Corps to take a hard look at the effects of its action— including the proposed alternative, “no action” alternative, and other reasonable alternatives—and the Corps did so in its EIS. That evaluation includes an analysis of alternatives based on water supplies and currently contracted amounts for storage, and discussion of the possibility of future shortages in water supply— despite Plaintiffs’ claim that such analysis is missing from the EIS. Having examined those effects, however, NEPA does not require the Corps to select an alternative that would avoid such shortages, contrary to Plaintiffs’ suggestion. In an EIS, an agency must examine direct effects—those “caused by the action [that] occur[ed] at the same time and place[,]” See 40 C.F.R. § 1508.8(a); indirect effects—those “reasonably foreseeable long-term effects of the proposed action[,]” Citizens for Smart Growth, 669 F.3d at 1214 (citing 40 C.F.R. § 1508.8(b)); and cumulative effects—which “result[] from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. . . .” See id. (emphasis added) (quoting 40 C.F.R. § 1508.8(b)). Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 56 of 61 47 1. The Corps’ analysis of the effects of its proposed action and alternatives satisfy NEPA’s requirements. As required under NEPA, the Corps took a “hard look” at the environmental and other effects of its proposed action, Plan G, the no action alternative, and the other alternatives that it concluded satisfied the purpose and need of the action: Plan D and Plan F. The Corps analyzed dozens of effects across hundreds of pages of analysis. See generally DSOF ¶ (D-00043804, 44260–44473). The types of effects analyzed included water resources such as drought management and water withdrawals; water quality; geology and soils; climate change; land use; biological resources; vegetation; wildlife; fish and aquatic resources; estuaries; and protected species. Id. The Corps also looked at socioeconomic issues including municipal and industrial water supply; navigation; hydropower; flood risk management; recreation; property values and taxes; environmental justice; and protection of children. Id. The Corps also conducted a sensitivity analysis on Proposed Action Plan G to analyze the environmental effects under three additional future scenarios, such as increased future water demands. Id. ¶ 55 (D-00044478, 44509, 44537). Finally, the Corps analyzed the cumulative effects of the WCMs update with other related actions. Id. ¶ 55 (D-00044551). In sum, the Corps thoroughly analyzed the environmental and other effects of its proposed action and alternatives, as NEPA requires. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 57 of 61 48 2. The Corps’ analysis appropriately limits Allatoona Lake water storage to currently contracted storage amounts. Plaintiffs assert that the Corps’ impacts analysis is flawed because it did not analyze the effects of capping withdrawals at Allatoona Lake to the levels in the existing contracts for storage. Br. 46. That assertion is simply wrong. Each of the alternatives uses water storage amounts based on existing contracts, the amounts Plaintiffs deem as “capped” storage amounts. And Plaintiffs recognize this. PSOF ¶ 104 (“[T]he Army’s analysis of each of the Alternative Plans assumes that [CCMWA’s] water supply withdrawals will be “constrained”). Plaintiffs also more specifically allege that the Corps did not acknowledge or analyze the frequent water supply shortages that CCMWA will experience under the Army’s storage accounting scheme.7 Br. 45. But Plaintiffs’ own citation to the FEIS shows that the Corps acknowledges that its alternatives will not be able to meet all of the water 7 To the extent Plaintiffs are asserting that the NEPA analysis should have contained a stand-alone section considering CCMWA’s inability meet its water supply needs through storage at Allatoona Lake, such an assertion is misplaced. First, the Corps has no duty to meet CCMWA’s water needs. CCMWA is one of several entities that use water storage at Allatoona Lake; Allatoona Lake is but one of the 17 federal and non-federal projects in the ACT Basin which the Corps must consider in its update of the WCM; and water supply storage is but one of the multiple congressionally authorized purposes in the ACT Basin. The Corps properly considered the environmental effects of its alternatives throughout the basin, and often even at reservoir or river level. The Court should resist Plaintiffs’ invitation to “flyspeck” the Corps’ environmental analysis, looking for any alleged deficiency, no matter how minor. Theodore Roosevelt Conservation P'ship v. Salazar, 661 F.3d 66, 75 (D.C. Cir. 2011). Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 58 of 61 49 supply needs of CCMWA. PSOF ¶106; DSOF ¶ 58 (D-00048230). And the Corps acknowledges that under each of the plans analyzed that the water supply under existing water supply agreements may not be sufficient to meet all needs if a record drought, like the one in 2006, occurred. DSOF ¶ 58 (D-0004438 -42). Therefore, the NEPA analysis does consider effects of alternatives that maintain water storage levels at currently contracted rates, and which may not meet all water supply needs in the basin or at Allatoona Lake. Plaintiffs also claim that the Corps has made an improper assumption in the effects analysis because it has never been “capped” before, so if the withdrawals will not actually be capped then the alternatives should not have reflected capped amounts. Br. 47-49. But the Corps’ alternatives reflect the existing contracts for water storage and assume that these storage amounts will be followed, which is a reasonable approach. DSOF ¶ 62 (D-00043790). The Corps was not required to formulate alternatives that assume parties to water storage agreements would violate the terms of their water storage agreements. Put differently, Plaintiffs effectively want the Corps to analyze the effects of them utilizing some unknown amount of storage beyond what they are currently legally allowed to store. The Corps’ environmental effects analysis is not flawed because it does not accommodate such an amorphous request. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 59 of 61 50 3. The Corps only has to analyze the effects of its actions under NEPA, not choose an alternative based on the effects it analyzes. Plaintiffs also argue that the “likely” effects of updated WCMs that include the current water storage allocations are that taps could run dry and CCMWA could be forced to build additional infrastructure, implying these effects should have led the Corps to choose different alternatives. Br. 46–47. But NEPA’s requirements are solely procedural. See, e.g., Robertson, 490 U.S. at 350. Although NEPA requires agencies to analyze and to disclose any significant environmental effects of proposed major federal actions, it does not require agencies to choose the most environmentally benign alternative. See id. The Corps need only analyze the effects of the reasonable alternatives before it and provide a rational, supported basis for its choice of alternatives. Theodore Roosevelt Conservation P’ship, 661 F.3d at 75. The EIS does so. DSOF ¶ (D-00043804, 44260–44473); see also supra Sec. III.B. The Corps does not have to choose a particular alternative based on its environmental effects, and it certainly does not have to formulate alternatives that meet CCMWA’s water needs. Because the Corps comprehensively considered the environmental effects of the alternatives before it and explained and justified its choice of alternatives, NEPA has been met. CONCLUSION For the reasons stated above, the Court should deny Plaintiffs’ Motion for Summary Judgment and Grant Defendants’ Cross-Motion for Summary Judgment. Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 60 of 61 51 Respectfully submitted this 30th day of November 2016. JOHN C. CRUDEN Assistant Attorney General Environment & Natural Resources Division /s/ Laura Duncan LAURA DUNCAN /s/ Ruth Ann Storey RUTH ANN STOREY United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, D.C. 20044 Tel. (202) 305-0466 (202) 305-0493 Fax (202) 305-0506 laura.duncan@usdoj.gov ruth.ann.storey@usdoj.gov Attorneys for Defendants Case 1:14-cv-03593-RWS Document 43-1 Filed 11/30/16 Page 61 of 61 Attachment A Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 1 of 24 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Civil Action No. 1:14-cv-03593-RWS DEFENDANTS’ RESPONSE TO GEORGIA PARTIES’ STATEMENT OF UNDISPUTED MATERIAL FACTS Pursuant to Local Rule 56.1(B)(2) and Paragraph 13 of the Court’s Standing Order Regarding Civil Litigation, Defendants submit their responses to the Georgia Parties’ Statement of Undisputed Material Facts, ECF No. 40-2 (“Plaintiffs’ SOF”). The numbered paragraphs of below correspond to the numbered paragraphs of the Plaintiffs’ SOF, but because this response includes only those Plaintiffs’ asserted facts that Defendants dispute, the footnote numbers in this document are not the same as those in Plaintiffs’ SOF. STATE OF GEORGIA, et al., v. THE UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 2 of 24 2 Defendants further observe that several of Plaintiffs’ section headings in its SOF go beyond merely identifying the topic to be addressed, to include assertions and arguments. Defendants did not include the section headings in this response. Plaintiffs’ section headings are unsupported, and therefore Defendants understand that the Court will not consider them as statements of fact pursuant to Local Rule 56.1(B). However, to the extent that Plaintiffs offer such headings as statements of undisputed fact, Defendants object to the following section headings in Plaintiffs’ SOF as lacking in support or substantiation, as containing conclusions of law, and/or as argumentative statements, all of which are not properly included in a statement of undisputed facts: Sections II.B., III.A., IV., V., VI., VII., and IX. RESPONSES TO GEORGIA PARTIES’ STATEMENT OF UNDISPUTED MATERIAL FACTS 5. As further described below, Allatoona Lake is a primary water supply source for the metropolitan Atlanta area.1 Today, the Cobb County- Marietta Water Authority (“Cobb-Marietta”) and the State of Georgia depend on Allatoona Lake to provide a safe and dependable public water supply to more than 915,000 people and businesses residing in Cobb, Paulding, Cherokee, Douglas, Bartow, and Fulton Counties, as well as numerous local municipalities within 1 Letter from Governor Nathan Deal, Georgia, to Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works), Turner Affidavit at 2 (Jan. 24, 2013) (D- 00065085, -088). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 3 of 24 3 these jurisdictions. 2 RESPONSE: To the extent this statement could be read to mean that Allatoona Lake is the only primary water supply source for the metropolitan Atlanta area, Plaintiffs themselves acknowledge elsewhere that it is not. Plaintiffs’ Brief in Support of its Motion for Summary Judgment 3, n.2, ECF No. 40-1 (“Br.”), (“Allatoona Lake is one of two primary water supply sources for the metropolitan Atlanta area” . . . “[t]he other is Lake Lanier on the Chattahoochee River in the ACF River Basin.”). 10. Cobb-Marietta has made all payments required to date under the 1963 Contract.3 As such, Cobb-Marietta has a permanent right under the Water Supply Act to use its storage in Allatoona Lake “so long as the space designated for that purpose may be physically available.”4 RESPONSE: The facts asserted in Paragraph 10 are immaterial. The facts asserted in the first sentence of Paragraph 10 are not supported by citation to evidence. The letter cited (D-00066794), and which was written on November 20, 2012, states that “CCMWA’s initial payments for the first 2 Id. at Turner Affidavit at 1 (D-00065087). 3 See Letter from Col. Steven Roemhildt, USACE, to Glenn Page, Cobb-Marietta (Nov. 20, 2012) (D-00066794) (recognizing Cobb-Marietta’s permanent right to water supply storage based in part on Cobb-Marietta’s continuing contract payments). 4 Public Law No. 88-140, 58 Stat. 891, 43 U.S.C. § 390e. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 4 of 24 4 increment of storage to which use was granted under the Contract are scheduled to be completed in 2016.” Therefore, that source does not support the statement that Cobb-Marietta has made all payments required to date under the 1963 Contract. The assertions in the second sentence of Paragraph 10 are a legal conclusion, and thus not properly included in a statement of undisputed facts. 15. The Army has acknowledged that since Cobb-Marietta’s contract was executed in 1963, the anticipated yield of Cobb-Marietta’s storage space during critical low-flow has decreased due to increased “severity and frequency of droughts.”5 As such, the Army now estimates the critical yield of Cobb- Marietta’s storage space might be as low as 22 mgd.6 RESPONSE: The proposition that “the Army now estimates the critical yield of Cobb-Marietta’s storage space might be as low as 22 mgd” is not substantiated by the source cited, which is a letter from the State of Alabama’s Congressional Delegation to the United States Army Corps of Engineers (“the Corps”), expressing concern regarding Plaintiff CCMWA’s water withdrawals from Allatoona Lake in excess of its contracted storage 5 2014 Allatoona Manual at 7-13 (D-00044960). 6 Letter from Alabama Delegation to Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) (April 11, 2012) (D-00065028). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 5 of 24 5 volumes. (D-00065028–29). No source for the proposition cited is contained in the referenced letter. 23. By 1986, the Army still had not taken action on Cobb-Marietta’s request. As predicted, Cobb-Marietta’s gross water supply withdrawals began exceeding 34.5 mgd.7 RESPONSE: To the extent that this statement could be read to mean that Cobb-Marietta’s water supply withdrawals have exceeded 34.5 mgd at all times since 1986, such an assertion is unsupported and is contradicted by other sources. Cobb-Marietta only occasionally makes withdrawals that exceed their allocated storage at Allatoona Lake. See, e.g., Final Environmental Impact Statement (“FEIS”), App. C, Allatoona Lake HEC- ResSlim Analysis for Allatoona Lake at 20 (D-00048235). 40. In 2009, Ms. Jo-Ellen Darcy replaced Mr. Woodley as the Assistant Secretary of the Army for Civil Works. Ms. Darcy has committed to one or more members of Alabama’s Senate delegation that the Army would not consider a reallocation of storage to water supply when it updated the water control manual for the ACT Basin.8 7 Letter from Philip R. Karr, Cobb-Marietta, to Lex Lawrence, USACE (Sept. 16, 1987) (D-00013403). 8 See Letter from Alabama Delegation to Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) (Apr. 11, 2012) (D-00065028). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 6 of 24 6 RESPONSE: Plaintiffs’ citation does not support the facts asserted. The letter cited (D-00065028) does not reference when Ms. Jo-Ellen Darcy became the Assistant Secretary of the Army for Civil Works, nor does it address updates to the water control manual for the ACT basin or commitments made to Alabama Senate delegates. 41. The Army has refused to address water supply issues at Allatoona Lake in the updated Master Water Control Manual for the ACT Basin because of commitments made to members of Alabama’s Senate delegation.9 RESPONSE: Plaintiffs’ citation does not support the facts asserted. The letter cited (D-00065028) does not address updates to the water control manual for the ACT basin or commitments made to Alabama’s Senate delegation. 44. Under Georgia law, “made inflows” include both engineered “return flows” and delivery flows from upstream reservoir projects that meet certain requirements.10 RESPONSE: Plaintiffs’ assertion is a purely legal conclusion, not a statement of fact, and is therefore not properly included in a statement of undisputed facts. Furthermore, this assertion is immaterial. 9 Id. 10 GA. COMP. R. AND REGS. R. 391-3-6-.07(2)(o). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 7 of 24 7 45. Return flows consist of highly treated wastewater that has been withdrawn from Allatoona Lake and discharged from a wastewater reclamation facility back into the reservoir as part of a plan approved by Georgia EPD to increase flows into the reservoir.11 This water supply strategy is known as “indirect potable reuse.”12 It has been identified by the Metropolitan North Georgia Water Planning District as “critical to meeting future water supply needs in Lake Lanier and Allatoona Lake.”13 RESPONSE: In support of the assertions in the first sentence of Paragraph 45, Plaintiffs cite only a legal provision. To the extent that those assertions constitute conclusions of law, they are not properly included in a statement of undisputed facts. Moreover, the source cited does not support the assertions made in the first sentence of Paragraph 45. 46. Under Georgia law, the Director of Georgia EPD is authorized to allocate made inflows to specific water users provided certain requirements are met.14 11 See id. 12 Metropolitan North Georgia Water Planning District, Water Supply and Water Conservation Management Plan, 6-3 (May 2009), available at, http://northgeorgiawater.org/plans-manuals/water-supply-and-water-conservation- management-plan/. 13 Id. 14 Ga. Comp. R. And Regs. R. 391-3-6-.07(16)(a). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 8 of 24 8 RESPONSE: Plaintiffs’ assertion is a purely legal conclusion, not a statement of fact, and is therefore not properly included in a statement of undisputed facts. 58. Because the Army has taken no action on Cobb-Marietta’s request, Cobb-Marietta is unable to use Hickory Log Creek Reservoir.15 Unless the Army recognizes Georgia’s allocation of made-inflows, Cobb-Marietta would have to spend approximately $100 million on additional infrastructure to bypass Allatoona Lake and transfer water from the Reservoir to its water treatment facility.16 RESPONSE: To the extent Plaintiffs are asserting in the first sentence of Paragraph 58 that the Corps’ inaction is the only reason they have not been able to use Hickory Log Creek Reservoir, such an assertion is inaccurate and contradicted by the source cited. The letter cited (D-00066546) states that the Hickory Log Creek Reservoir is usable without action by the Corps if Cobb-Marietta constructs water withdrawal facilities. 59. Due to the Army’s inaction, Cobb-Marietta has had to support the development of an new water supply reservoir by Paulding County, its second 15 Letter from Glenn Page, CCMWA, and Katherine Zitsch, ARC, to Col. Steven Roemhildt, USACE, 4 (May 31, 2013) (D-00066543, 546). 16 Id. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 9 of 24 9 largest wholesale customer.17 This was necessary because Cobb-Marietta is unable to ensure that it can reliably supply water to Paulding County from Allatoona Lake.18 RESPONSE: The statements in Paragraph 59 are not supported by record evidence, as there is no citation to the record. To the extent that Plaintiffs are implying that the Corps has a duty to supply a certain amount of water to Cobb-Marietta or meet Cobb-Marietta’s water needs, that is a legal conclusion, which is not proper to include in a statement of undisputed facts. In addition, that conclusion is also incorrect. See, e.g., Pls’ SOF ¶ 11 (explaining the Corps contracts for the use of water storage not water supply, and the Corps does not guarantee a certain yield of water). 60. In 2007, the ACT Basin experienced record drought conditions.19 According to the Army, this “drought was by far the most devastating drought recorded in Alabama and western Georgia.”20 This drought highlighted the many unresolved issues regarding Cobb-Marietta’s 17 Letter from Glenn Page, Cobb-Marietta, to Ed Johnson, USACE, (Mar. 25, 2014). 18 Id. 19 U.S. Army Corps of Engineers, Federal Storage Reservoir Critical Yield Analyses, Alabama-Coosa-Tallapoosa and Apalachicola-Chattahoochee-Flint River Basins, E-1 (Feb. 2010) (D-00035812, -949). 20 Id. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 10 of 24 10 water supply withdrawals from Allatoona Lake. RESPONSE: The second sentence of Paragraph 60 is not supported by record evidence, as there is no citation. Furthermore, that statement is vague and ambiguous. 66. Cobb-Marietta’s responses also raised numerous technical and legal objections to the Army’s draft storage accounting system. These included the Army’s failure to account properly for return flows and other made inflows that had been allocated to Cobb-Marietta by the State of Georgia, as well as technical objections to other aspects of the Army’s proposed accounting scheme.21 RESPONSE: Defendants note that to the extent that the second sentence of Paragraph 66 is offered only for the proposition that Plaintiff Cobb-Marietta made such assertions, it has no objection. However, to the extent that Plaintiffs offer the second sentence for the truth of underlying assertions— i.e., as to the Corps alleged failure to properly account for return flows and other made inflows—those assertions are not supported by the evidence 21 Id. at 3-4, 7 (D-00013392.003 to -.004, -.007); Letter from Glenn Page, Cobb- Marietta, to Col. Byron Jorns, USACE, 2-3, 6-7, Appendices C and G (Dec. 5, 2007) (D-00064740 to -741, -744 to -745, -746, -801). [Plaintiffs’ SOF citation was an id., but for purposes of understanding the “id.” citation, the prior citation was: Letter from Glenn Page, Cobb-Marietta, to Col. Byron Jorns, USACE, 2 (Nov. 19, 2007) (D-00013392.0002).] Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 11 of 24 11 cited. 68. The Army never responded to Cobb-Marietta’s November 19, 2007, and December 5, 2007, submissions. RESPONSE: To the extent Paragraph 68 can be read as implying that the Corps had a duty to respond to Cobb-Marietta’s letter on November 19, 2007 or December 5, 2007, that is a legal conclusion, and is not properly included in a statement of undisputed facts. 69. Similar scenarios occurred in subsequent droughts. For example, in 2012, Alabama’s congressional delegation complained to the Army that Cobb- Marietta’s water supply withdrawals were exceeding the yield of its 1963 Contract.22 Alabama’s delegation accused the Army of “evad[ing] the [Army’s] commitment to [Alabama] that it would enforce the provisions of its contracts.”23 RESPONSE: The first sentence of Paragraph 69 cites to no supporting evidence and is vague and ambiguous. While this statement makes an assertion regarding “subsequent droughts” after the 2007 drought, Plaintiffs in these and following paragraphs only describe correspondence between Plaintiff CCMWA and the Corps regarding CCMWA’s withdrawal 22 Letter from Alabama Delegation to Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) (Apr. 11, 2012) (D-00065028). 23 Id. at 2 (D-00065029). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 12 of 24 12 exceedances in 2012. There is no discussion of or reference to specific droughts after the 2007 drought, or even exceedances in those subsequent years. 78. In the ACT Basin, the Alabama Court issued its decision in 2012.24 The Alabama Court dismissed all challenges by Alabama and others to the Army’s ongoing operations at Allatoona Lake, finding that the Army had failed to take final agency action regarding its water supply operations.25 Unlike the Eleventh Circuit, however, the Alabama Court’s order did not compel the Army to take action regarding water supply issues at Allatoona Lake and it did not retain jurisdiction to ensure the Army moved forward on water supply issues.26 RESPONSE: Plaintiffs’ assertions in the second and third sentences of Paragraph 78 purport to characterize the Alabama court’s July 3, 2012 order, and as such, are conclusions of law that are not proper for inclusion in a statement of undisputed facts. 92. The Army acknowledged that it had “discretionary authority” to consider the long-pending water supply requests for Allatoona Lake. The Army stated, however, that it considered this to be “a separate and distinct 24 Alabama v. U.S. Army Corps of Engineers, Civil Action No. 90-1331, Doc. 771 (Order, July 3, 2012). 25 Id. 26 See id. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 13 of 24 13 discretionary authority that the Army [was] not pursuing as part of [the] WCM update.”27 The Army stated that it was not exercising its authority to address water supply needs because “there is no conceivable proposal that both states [Alabama and Georgia] would support.”28 RESPONSE: Plaintiffs’ statement mischaracterizes the cited source. The referenced portion of the Corps’ Draft EIS did not state that the Corps was not exercising its authority “because” “there is no conceivable proposal that both states would support.” Instead, the complete response by the Corps is as follows: The Corps has the discretionary authority to consider such requests; however, this is a separate and distinct discretionary authority that the Corps is not pursuing as part of this WCM update, and there is no conceivable proposal that both states would support. Further, such a measure would not meet the purpose and need which is to determine how the Corps projects in the ACT Basin should be operated for their authorized purposes, in light of current conditions and applicable law, and to implement those operations through an updated WCM of the ACT Basin. ACT Basin DEIS at ES-4 (D-00050228) (emphasis added). 93. The State of Georgia, ARC, and Cobb-Marietta (collectively the 27 Id. at ES-4 (D-00050228) [Plaintiffs’ SOF citation was an id., but for purposes of understanding the “id.” citation, the prior full citation was: Draft Environmental Impact Statement, Update of the Water Control Manual for the Alabama-Coosa- Tallapoosa River Basin in Georgia and Alabama (Mar. 2013) (D-00050187).] 28 Id. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 14 of 24 14 “Georgia Parties”) submitted comments to the Army on the Draft EIS.29 In these comments: (a) The Georgia Parties objected to the Army’s decision “to give Alabama the power to veto Georgia’s [water supply] request,”30 explaining that the Army had a legal duty to consider all reasonable alternatives to meet Georgia’s water supply needs at Allatoona Lake.31 RESPONSE: Plaintiffs assertion in Paragraph 93(a) that the Corps has a duty to meet Cobb-Marietta’s water needs is a legal conclusion, which is not proper for inclusion in a statement of undisputed facts. (b) The Georgia Parties provided a range of reasonable alternatives to accomplish this objective. These alternatives included, among other things, a reallocation of storage to meet present and future water supply needs, recognizing Georgia’s allocation of made inflows to Cobb- 29 Letter from Jud Turner, Director, Georgia Environmental Protection Division, to Col. Steven Roemhildt, USACE (May 31, 2013) (D-00066562); Letter from Glenn Page, Cobb-Marietta, and Katherine Zitsch, ARC, to Col. Steven Roemhildt, USACE (May 31, 2013) (D-00066543). 30 Letter from Glenn Page, Cobb-Marietta, and Katherine Zitsch, ARC, to Col. Steven Roemhildt, USACE, 8 (May 31, 2013) (D-00066550). 31 Id. at 7-8 (D-00066549 to -550); Letter from Jud Turner, Director, Georgia Environmental Protection Division, to Col. Steven Roemhildt, USACE, 3-7 (May 31, 2013) (D-00066564 to -568). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 15 of 24 15 Marietta, and changes to the Army’s 2007 storage accounting methods.32 Specifically, (1) reallocating additional storage to water supply to meet current needs; (2) reallocating additional storage to meet projected future needs; (3) adopting alternative methods of storage accounting; and (4) adopting alternative methods of allocating “made inflows” in other words, giving Cobb-Marietta credit for water that it treats and returns to Allatoona Lake and for water that it collects and releases from Hickory Log Creek. (c) The Georgia Parties explained that they lacked any reasonable alternative sources of water supply to meet immediate water supply needs.33 Further, the Georgia Parties explained that they would be forced to undertake unnecessary and potentially environmentally damaging alternatives to replace water supply storage currently provided by Allatoona Lake.34 RESPONSE: The first sentence of Paragraph 93(b) asserts that Plaintiffs 32 Id. 33 Letter from Glenn Page, CCMWA, to Col. Byron Jorns, USACE, 3-5 (Dec. 5, 2007) (D-00064741 to -743); Letter from Glenn Page, CCMWA, and Katherine Zitsch, Atlanta Regional Commission, to Col. Steven Roemhildt, USACE (May 31, 2013) (D-00066543). 34 Letter from Glenn Page, CCMWA, to Col. Steven Roemhildt, USACE (Aug. 26, 2010) (D-00063567, -582); see Letter from Heinz Mueller, US EPA, to Chuck Sumner, USACE (May 31, 2013) (D-00046486, -487). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 16 of 24 16 “provided a range of reasonable alternatives to accomplish this objective,” which is a legal conclusion and not properly included in a statement of undisputed facts. In addition, the evidence Plaintiffs cite does not support the asserted fact in the first sentence of Paragraph 93(c) that the Plaintiffs “lacked any reasonable alternative sources of water supply to meet immediate water supply needs.” The letter cited (D-00064741) specifically states that Lake Lanier is another practical alternative available for increasing water supply. 95. In November 2014, the Army released its Final Water Control Manual and Environmental Impact Statement for the ACT Basin (“Final EIS”).35 The Final EIS fails to address current or future water supply needs at Allatoona Lake. RESPONSE: The second sentence in Paragraph 95 is not supported by citation to evidence. And to the extent that it suggests that the Corps has a duty to meet water supply needs at Allatoona Lake, that is a legal conclusion, which is not proper for inclusion in a statement of undisputed facts. 96. The Final EIS includes a purpose and need statement that is materially 35 Final EIS (D-00043724). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 17 of 24 17 identical to the purpose and need statement in the Draft ACF EIS.36 The Final EIS states: Section 7 of the Flood Control Act of 1944 provides that, “On and after December 22, 1944, it shall be the duty of the Secretary of the Army to prescribe regulations for the use of storage allocated for flood control or navigation at all reservoirs constructed wholly or in part with federal funds provided on the basis of such purposes, and the operation of any such project shall be in accordance with such regulations:...” (33 U.S.C. 709). The purpose of the proposed action is to update the WCM for the ACT Basin as directed by Secretary of the Army Pete Geren on October 18, 2007. Specifically, the purpose and need for the federal action is to determine how the federal projects in the ACT Basin should be operated for their authorized purposes, in light of current conditions and applicable law, and to implement those operations through updated water control plans and manuals. Conditions in the basin (population, socio-economic, land use, infrastructure, demand for water resources, etc.) have changed substantially since the federal reservoirs were authorized and constructed, and a variety of applicable federal and state environmental laws have been passed and implemented. Operation of the federal reservoir projects in the basin both affect, and are affected by, current conditions in the basin and must comply with current laws and regulations. This action will result in updated plans and manuals that comply with existing USACE regulations and reflect operations under existing congressional authorizations, taking into account changes in basin hydrology and demands from years of growth and development, new/rehabilitated structural features, legal developments, and environmental issues.37 RESPONSE: Plaintiffs’ contention that the purpose and need statement is materially identical to the purpose and need statement in the Draft ACF EIS 36 Compare id. at ES-1 to ES-2 (D-00043772 to -773), with Draft ACF EIS at ES. 37 Final EIS at ES-1 (D-00043772). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 18 of 24 18 is immaterial. 97. The Final EIS states that the Army “must operate and manage [its] projects . . . to meet their authorized purposes,”38 and that “[o]ne of the principal focus areas for the proposed ACT WCM update is management of the conservation storage in the reservoirs to meet authorized project purposes.”39 The Final EIS expressly recognizes that water supply is an authorized purpose of Allatoona Lake.40 Furthermore, the Final EIS expressly recognizes that “the available storage under existing water supply agreements at USACE reservoirs may not be sufficient to accommodate” Cobb-Marietta’s current level of withdrawal.41 As described below, however, the Army excluded from consideration every alternative to address water supply needs at Allatoona Lake. RESPONSE: The third sentence of Paragraph 97 misrepresents the cited evidence. Plaintiffs quote a portion of the No Action Alternative paragraph of page ES-53 (D-00043824), but the full sentence states that “the available storage under existing water supply agreements at USACE reservoirs may not be sufficient to accommodate the 2006 level of water supply withdrawals 38 Id. 39 Id. at 2-21 (D-00043928). 40 Id. at ES-7 (D-00043778). 41 Id. at ES-53 (D-00043824). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 19 of 24 19 under all conditions.” Plaintiffs’ statement equates Cobb-Marietta’s current level of withdrawal with the 2006 level of water supply withdrawals under all conditions, which is not supported by evidence. In addition, the fourth sentence of Paragraph 97 is not supported by evidence and is incorrect. The Corps’ ACT Basin WCM updates did address water supply at Allatoona Lake. FEIS at 5-12–5-13 (D-00044257–8) (describing the Proposed Action Alternative Plan G, which was adopted as the WCM for the ACT Basin, and which addresses water supply contracts at Allatoona Lake). 99. The Final EIS did not consider or evaluate a reallocation of storage to meet current or future water supply needs from Allatoona Lake.42 Similarly, the Final EIS did not consider or evaluate any other alternative to meet water supply needs at Allatoona Lake, including alternatives suggested by the Georgia Parties that would not require a reallocation of storage in the reservoir, such as recognizing Georgia’s allocation of made-inflows or making the requested technical corrections to the Army’s storage accounting method.43 The Army did not explain why these alternatives were eliminated from consideration.44 42 Id. [Plaintiffs’ SOF citation was an id., but to understand this “id.” cite, the prior citation was Final EIS at ES-4 (D-00043775), 1-7 (D-00043868), 1-10 (D- 00043871)]. 43 Id. at 4-5 (D-00044198). 44 See id. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 20 of 24 20 RESPONSE: Plaintiffs’ assertions in Paragraph 99 that the Corps has a duty to meet Cobb-Marietta’s water needs is a legal conclusion. In addition, the fourth sentence of Paragraph 99 is incorrect. The Corps explained why Plaintiffs’ proposed alternatives were eliminated from further consideration. FEIS 4-5 (D-00044198) (“Management measures eliminated from consideration,” such as allocation, “were those that do not pass the screening criteria.”); id. 1-7 (D-00043868) (screening criteria describing why reallocation was not considered); 1-30 (D-00043891) (applying screening criteria to show why updates to water storage accounting methods were not considered; Record of Decision Addendum at 1–4 (D-00053481-84). 100. Despite these findings, the Final EIS states that the Army “did not consider changes to . . . existing [water storage] contracts, e.g., an additional reallocation of storage, or changes to the current storage accounting methodology.”45 RESPONSE: To the extent Plaintiffs’ assertions in Paragraph 100 imply that the Corps has a duty to meet Cobb-Marietta’s water needs, that is a legal conclusion, and is not properly included in a statement of undisputed facts. 101. The Final EIS contains no meaningful analysis of the human, 45 Final EIS at ES-19 (D-00043790). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 21 of 24 21 environmental, or public health effects that would occur if Cobb-Marietta’s water supply withdrawals were “constrained” as the Final EIS describe. RESPONSE: Plaintiffs have not supported this assertion with a citation to evidence. The Corps considered a range of socioeconomic effects of its alternatives, all of which limited Cobb-Marietta’s water supply to existing contracted amounts. FEIS at 6-179–6-217 (D-00044438-476) (Socioeconomics effects analysis); id. at 5-9 (D-00044254) (Plan D); FEIS at 5-11 (D-00044256) (Plan F); id. at 5-13 (D-00044258) (Proposed Alternative Plan G). 114. The Georgia Parties have been prejudiced by the Army’s failure to address water supply needs at Allatoona Lake. As described elsewhere, the Georgia Parties have spent in excess of $100 million on the permitting and development of reservoir projects that would likely have been unnecessary if the Army had acted in a timely manner on the water supply requests at Allatoona Lake.46 RESPONSE: Plaintiffs’ assertion in the first sentence of Paragraph 114 is unsupported by evidence. To the extent that the first sentence of Paragraph 114 is an assertion regarding the legal element of prejudice, that is a legal 46 Letter from Glenn Page, Cobb-Marietta, to Col. Steven Roemhildt, USACE (Aug. 26, 2010) (D-00063570, -582). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 22 of 24 22 conclusion, which is not properly included in a statement of undisputed facts. 115. As described above, as a result of inaction by the Army, Cobb- Marietta has had no choice but to support the development of an new water supply reservoir by Paulding County, its second largest wholesale customer.47 This was necessary because Cobb-Marietta is unable to ensure that it can reliably supply water to Paulding County from Allatoona Lake.48 As Cobb-Marietta explained in a letter to the Army: On behalf of the Cobb County-Marietta Water Authority (CCMWA), I am writing to support Paulding County’s application for a permit to construct the Richland Creek Reservoir. As a result of legal and political challenges that are yet to be resolved, CCMWA cannot provide any guarantees about the amount of water that it can supply to Paulding County, either now or in the future. Therefore, I have informed Paulding County that it would be prudent for it to develop alternative sources of supply as expeditiously as practicable.49 RESPONSE: The statements in Paragraph 115 are not supported by record evidence, as there is no citation to the record. To the extent that Plaintiffs are implying that the Corps has a duty to supply a certain amount of water to Cobb-Marietta or meet Cobb-Marietta’s water needs, that is a legal 47 Letter from Glenn Page, Cobb-Marietta, to Ed Johnson, USACE, (Mar. 25, 2014). 48 Id. 49 Id. Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 23 of 24 23 conclusion, which is not properly included in a statement of undisputed facts. Such a conclusion is also incorrect. See Pls’ SOF ¶ 11 (explaining the Corps contracts for the use of water storage not water supply, and the Corps does not guarantee a certain yield of water). Plaintiffs likewise offer no substantiation for their assertions that they had “no choice” but to develop Paulding Reservoir or that such an outcome was “a result” of the Corps’ inaction. 117. As of the date of this filing, the Army has not stated when it will take action to address water supply issues at Allatoona Lake. RESPONSE: The Corps objects that this assertion is not supported by a citation to evidence. Further, to the extent that Plaintiffs are asserting that the Corps has not addressed water supply issues at Allatoona Lake generally, such an assertion is immaterial. And, to the extent that Plaintiffs are asserting that the Corps’ ACT Basin WCM updates did not address water supply at Allatoona Lake, such an assertion is incorrect. FEIS at 5-12–5-13 (D-00044257–8) (describing the Proposed Action Alternative Plan G, which was adopted as the WCM for the ACT Basin, and which addresses water supply in Allatoona Lake). Case 1:14-cv-03593-RWS Document 43-2 Filed 11/30/16 Page 24 of 24 Attachment B Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 1 of 32 1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Civil Action No. 1:14-cv-03593-RWS DEFENDANTS’ STATEMENT OF ADDITIONAL UNDISPUTED MATERIAL FACTS Pursuant to Local Rule 56.1(B)(2), Defendants submit this Statement of Additional Undisputed Material Facts. Defendants’ Cross Motion for Summary Judgment is not a traditional motion as contemplated in Rule 56.1(B)(1)—it is a cross-motion for summary judgment, and Plaintiffs have already submitted a detailed statement of undisputed facts (ECF No. 40-2) largely based on the Administrative Record. Defendants agree that many of the asserted facts are undisputed, except those addressed in their Response to Plaintiffs’ Statement of Undisputed Material Facts, which is filed as Attachment A to Defendants’ Cross- Motion. To increase judicial efficiency, and reduce the burden on the parties, STATE OF GEORGIA, et al., v. THE UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 2 of 32 2 Defendants have only submitted a Statement of Additional Undisputed Material Facts. Defendants also rely on the Plaintiffs’ Statement of Undisputed Material Facts throughout Defendants’ briefing, where appropriate. I. Allatoona Lake and the ACT Basin 1. The Alabama-Coosa-Tallapoosa River Basin (“ACT Basin”) comprises 22,739 square miles (“sq mi”) in Georgia and Alabama. Final Environmental Impact Statement (“FEIS”) at 1-1 (D-00043862). And the ACT Basin contains 17 large dams on the mainstream rivers. FEIS at 3-1 (D-00044178). 2. The United States Army Corps of Engineers (“the Corps”) owns and operates six projects in the ACT Basin; the remaining 11 are privately-owned and operated. See id. The Corps is responsible for flood risk management operations at four of the APC projects; Weiss Lake, H. Neely Henry Lake, Logan Martin Lake, and R.L. Harris Lake projects. Id. Section 2 of the River and Harbor Act of 1945 (P.L. 79-14) authorized the initial and ultimate development of the Alabama and Coosa Rivers for navigation, flood risk management, power development, and other purposes. Id. 3. The Corps currently operates projects in the ACT Basin for various purposes. FEIS at ES-8 (D-00043779). Federal legislation authorizing project purposes in the ACT Basin has been added over time. Id. As explained above, Section 2 of the River and Harbor Act of 1945 (P.L. 79-14) approved the initial Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 3 of 32 3 plan for developing flood risk management, hydropower, and navigation in the ACT basin. Those purposes are often referred to as expressly authorized project purposes. Other operational objectives derive from authorities that generally apply to all Corps reservoirs, such as fish and wildlife conservation (Fish and Wildlife Coordination Act of 1958 [P.L. 85-624]), recreation (Flood Control Act of 1944 [P.L. 78-534]), water quality (Water Pollution Control Act Amendments of 1972 [P.E. 92-500]), and water supply (Water Supply Act of 1958 [P.L. 85-500]). Operations are also conducted in line with other applicable legal authorities, such as the Endangered Species Act of 1973 [P.L. 93-205]. Id. 4. The combined list of purposes for which the Corps’ various projects are operated are flood risk management; hydropower; navigation; fish and wildlife conservation; recreation; water quality; and water supply. FEIS at ES-8 (D- 00043779). While Corps projects in the ACT Basin, operating in a system-wide context, serve these authorized purposes identified, each individual project might not operate for all seven purposes. Id. For example, Robert F. Henry Lock and Dam, Millers Ferry Lock and Dam, and Claiborne Lock and Dam do not operate for the purpose of flood risk management, and Claiborne Lock and Dam does not include hydropower facilities. Id. Further, only Carters Lake and Allatoona Lake are operated for water supply purposes. FEIS at 2-71 (D-00043978). 5. The authorized purpose of water supply, however, is a misnomer Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 4 of 32 4 because the Army has no authority to grant rights to water; the states grant water rights and regulate water use. (D-00064300). Under the Water Supply Act, the Corps contracts with other entities for water storage in its projects, but disclaims any and all responsibility for ensuring availability of water. Id. 6. The Corps accommodates a portion of the overall basin water supply demand through water supply storage agreements at Carters Lake and Allatoona Lake. FEIS at ES-19 (D-00043790). The Corps has employed a storage accounting methodology that tracks multiple storage accounts at those reservoirs, applying a proportion of inflows and losses, as well as direct withdrawals by specific users, to each account. Id. This accounting indicates how much storage is available in each account at any particular time. Id. II. Hickory Log Creek Reservoir (“HLCR”) 7. On September 4, 2003, Dargan Scott Cole, representing Cobb County Marietta Water Authority, submitted a letter to Gary Craig at the Corps of Engineers, Savannah District. Letter from Dargan Scott Cole to Gary Craig (Sept. 4, 2003) (D-00064353–54). In the letter, Mr. Craig explained that Cobb County- Marietta Water Authority (“CCMWA”) would build an intake on the Etowah River near the City of Canton. Id. When releases are made from the Hickory Log Creek Reservoir, CCMWA would withdraw its water from the Etowah River intake. See id. Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 5 of 32 5 8. The Corps has indicated that infrastructure enabling CCMWA to withdraw water from the Etowah River and HLCR without routing the water through Allatoona Lake was originally contemplated when CCMWA first applied for the permit to construct HLCR, but CCMWA has not constructed that necessary infrastructure. See, e.g., FEIS Add., Responses to Comments, at 16 (D-00048231) (“Releases can be made from CCMWA’s account at HLCR, but the Authority does not currently hold the permits and infrastructure necessary for withdrawals and conveyance of water from intake facilities on the Etowah River, upstream of Allatoona, as contemplated in the original HLCR permit application.”) (emphasis added); id. at 20 (D-00048235) (“HLCR was constructed . . . based on a plan for CCMWA to build infrastructure to convey water from the City of Canton to CCMWA’s water treatment plants. While Canton has an intake on the Etowah River, the infrastructure to convey water to CCMWA’s treatment plants does not currently exist.”). More recently, CCMWA has stated that it can and will extract water in this way if unable to obtain additional storage volume in Allatoona Lake. Letter from Glenn Page, CCMWA, and Katherine Zitsch, ARC, to Col. Steven Roemhildt, Corps, at p. 4 (May 31, 2013) (D-00066546). III. The 1990 – 2012 ACT Litigation 9. On June 28, 1990, the State of Alabama filed suit in the U.S. District Court for the Northern District of Alabama over water use in the ACT and Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 6 of 32 6 Apalachicola-Chattahoochee-Flint (“ACF”) basins, including, among others, to enjoin any reallocation of storage in Allatoona Lake. See State of Alabama, et al., v. U.S. Army Corps of Engineers, et al., Civil Action No. 90-1331 (N.D.Ala.) (hereinafter “Alabama v. Corps”) (ECF No. 1; Complaint for Declaratory Judgment, Preliminary and Permanent Injunction by State of Alabama). The State of Georgia, CCMWA, and the Atlanta Regional Commission were all parties to this lawsuit, participating as intervenor-defendants. See generally Alabama v. Corps. The State of Florida, among others, also intervened as plaintiff. See generally id. 10. On September 19, 1990, the Court granted the parties’ requested stay to pursue settlement discussions. See Alabama v. Corps (ECF No. 46; Sept. 19, 1990 Joint Stay Order). However, in granting the parties’ joint request for a stay, the court ordered the Corps and other defendants in that action not to take any action on reallocation during the pendency of the stay absent written approval of the States of Alabama and Florida. See Alabama v. Corps, ECF No. 132 (Order, Jan. 31, 2003) (citing Joint Stay Order, Doc. 46, Sept. 19, 1990). 11. The States of Georgia, Florida, and Alabama and the Corps were party to an April 29, 1991 letter agreement. (D-00006489–6489.0006). “In the spirit of interstate cooperation, and in furtherance of the desire of the State of Georgia and the State of Alabama to work together toward the management and development of Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 7 of 32 7 regional interstate water resources,” the letter agreement “set[] forth the terms and conditions pursuant to which Alabama has agreed that [the Georgia cities of] Cartersville’s and Chatsworth’s water supply requirements may be fulfilled prior to the completion of a comprehensive, basin-wide study of” the ACT and ACF basins envisioned as the outcome of the settlement discussions then taking place among the States and the Corps. 1991 Letter Agreement at p. 1 (D-00006489). Therefore, under this agreement the Corps was permitted to evaluate and execute water supply contracts with Cartersville and Chatsworth—“in consideration” for which “the State of Georgia [] agreed to participate fully in all elements of the Comprehensive Study regarding the ACT Basin” to be conducted by the parties to the agreement. Id. at pp. 1–3 (D-00006489–6489.0003). However, the agreement expressly “superseded” “the proposals for reallocation of water” set forth in the Corps’ proposed November 1989 Allatoona Lake Water Supply Reallocation Report and required the Corps “to cease further processing of [the reallocation proposal] and . . . withdraw [it] from further consideration.” Id. at p. 4 (D-00006489.0004). 12. The States of Georgia, Florida, and Alabama and the Corps subsequently entered into a January 3, 1992 Memorandum of Agreement (“1992 MOA”). (D-00062260–67). Like the 1991 letter agreement, the 1992 MOA envisioned an agreement among the parties for a comprehensive study of the water needs of all users in both the ACT and ACF basins prior to any reallocation. Id. at Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 8 of 32 8 p. 1 (D-00062261). And similar to the 1991 Letter Agreement, the 1992 MOA mandated withdrawal of and cessation of action on the Corps’ proposal to reallocate storage to Plaintiffs in Allatoona Lake. 1992 MOA at pp. 2–3 (D- 00062262–63). Subsequent Memoranda of Agreement signed by these parties on January 18, 1994 (D-00062255–59), April 7, 1995 (D-00062248–52), and September 30, 1996 (D-00062239–43) extended these terms until the end of 1997, see 1996 MOA (D-00062242). 13. In 1997, the States of Georgia and Alabama and the United States entered into an Interstate Water Compact for the ACT basin. (SUPPAR007126– 39). The stated purposes of the 1997 ACT Interstate Water Compact were “for the purposes of promoting interstate comity, removing causes of present and future controversies, equitably apportioning the surface waters of the ACT, engaging in water planning, and developing and sharing common data bases.” 1997 ACT Interstate Water Compact at p. 1 (SUPPAR007126). 14. Litigation reinitiated in 2003. In January, and again in September, 2003, the State of Alabama moved, among others, to preliminarily enjoin the Corps from issuing any water storage allocation decisions in the ACT basin. See e.g., Alabama v. Corps (ECF Nos. 129 & 156; Jan. 27, 2003 & Sept. 2, 2003). 15. On April 25, 2005, the Corps sent a letter to Senator Richard Shelby to address Senator Shelby’s concerns regarding the Corps proposed updates to Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 9 of 32 9 water control plans. See Letter from J.P. Woodley, Jr. to Senator Richard Shelby (Apr. 25, 2005) (D-00064368–69). The Corps stated that its proposed updates would not address reallocation of storage in the ACT basin, and particularly, confirmed that “[i]t is not the Government’s intention to preempt a court ruling on the ACT and ACF issues” in then-pending litigation before that litigation was resolved. Id. at p. 1 (D-00064368). In other words, the proposed updates were “not intended to address or resolve the issues related to water supply for North Georgia or resolve the water rights issues among the States” and “will not allocate or reallocate water rights within the ACT and ACF river basins.” Id. While the letter “disclaim[ed] any purpose on the part of the Army to legitimize through interim water storage contracts any water rights in Georgia that Alabama and Florida regard as illegitimate,” it confirmed “that the Corps will operate federal projects in the ACT and ACF river basins consistent with all Congressional authorizations, specific and general, and will strive to strike the most appropriate balance of project purposes.” Id. at p. 2 (D-00064369). 16. From March 2006 to September 2007, the parties to the ACT litigation were subject to court-ordered mediation of the dispute. FEIS at 3-11 (D- 00044188); see also Alabama v. Corps (ECF No. 444; April 20, 2006 Order appointing mediator); id. (ECF No. 583; June 26, 2007 Order extending stay for mediation until September 10, 2007). Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 10 of 32 10 17. The 1990 lawsuit was not concluded until the court issued a final order of dismissal of claims in late October 2012. See Alabama v. Corps, (ECF No. 786; Final Order of Dismissal, October 23, 2012) IV. Decision to Pursue ACT Basin Water Control Manuals (“WCMs”) Update 18. The Corps in 2007 determined that it would move forward with legally-required and long-delayed revisions to the WCMs to update operational elements before addressing reallocation. See, e.g., Record of Decision (“ROD”), Addendum A (“Add. A”) at 2 (D-00053482). At the time, the litigation over water allocation in the ACT Basin had not concluded. “Under those circumstances— continued disagreement among the States and litigation that persisted until the last remaining claims were ultimately dismissed in July and October 2012—[the Corps] made the decision to focus on updating the water control manuals to reflect . . . existing allocations of storage to water supply in Allatoona Lake,” and postponed consideration of changes to allocation. Id. at 1 (D-00053481). V. Communications Regarding Georgia’s 2013 Water Storage Request 19. On January 24, 2013, after the conclusion of the ACT basin litigation, Governor Deal of Georgia sent the Corps a new request for reallocation of Plaintiff CCMWA’s storage in Allatoona Lake and modification of its storage contracts, among other requests. Letter from Governor Nathan Deal, Georgia, to Jo-Ellen Darcy, Assistant Secretary of the Army (Jan. 24, 2013) (D-00065085–86). Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 11 of 32 11 Specifically, Governor Deal requested a final agency action response under 5 U.S.C. §702 by the Army Corps of Engineers on its requests with respect to reallocation of water storage in Allatoona Lake and crediting to CCMWA for return flows and inflows into Allatoona Lake of releases from HLCR, among other requests. Id. 20. Jo-Ellen Darcy, Assistant Secretary of the Army, responded to this letter with an April 29, 2013 letter to Governor Deal. Letter from Jo-Ellen Darcy, Assistant Secretary of the Army, to Governor Nathan Deal (April 29, 2013) (“2013 Darcy Letter”) (D-00066808–09). In her response, Assistant Secretary Darcy explained that “[t]he Corps is currently updating the water control plans and manuals for the Alabama, Coosa, and Tallapoosa (ACT) Basin” to update operational elements, and was in the midst of preparing environmental and other analyses required by law. Id. at p. 1 (D-00066808). That effort had been initiated in 2007. See e.g., ROD, Add. A at 1 (D-00053481). Assistant Secretary Darcy also indicated that such work “will provide information that is relevant to the requests [Plaintiffs] have made . . . .” 2013 Darcy Letter at p. 1 (D-00066808). However, due the ongoing work on the WCMs updates, “the Corps [was] not in a position to take final action on” the requests made by Governor Deal, including for reallocation of water storage in Allatoona Lake, “prior to the completion of the updated ACT water control manuals . . . .” Id.; see also ROD, Add. A, at 2 (D- Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 12 of 32 12 00053482) (“In view of the extensive effort already expended to complete the WCM manual update to reflect current conditions, as well as the urgent need to update operations for all authorized purposes, not water supply alone, [the Corps] continued with the current WCM process, without undertaking the additional, discretionary action of considering Georgia’s water supply request at that time.”). In addition, Assistant Secretary Darcy indicated that a prerequisite to Georgia’s requested reallocation of storage and contract modification for Allatoona Lake would be “a reallocation of storage study pursuant to the Water Supply Act of 1958, or other specific legislative authority.” 2013 Darcy Letter at p. 2 (D- 00066809). 21. Plaintiff State of Georgia filed suit in the instant case on November 13, 2014. State of Georgia v. The United States Army Corps of Engineers, et al. (Case No. 1:14-cv-3593) (N.D. Ga.) (ECF No. 1; Complaint of the State of Georgia). Plaintiffs CCMWA and Atlanta Regional Commission filed suit in the consolidated case on November 7, 2014. Atlanta Regional Commission, et al. v. U.S. Army Corps of Engineers, et al. (Case No. 1:14-cv-3594) (N.D. Ga.) (ECF No. 1; Complaint). In a later, amended complaint, Plaintiffs challenge the WCM updates and their underlying NEPA analyses, and allege that the Corps has illegally delayed responding to the reallocation request and updating its WCMs for water supply. (ECF No. 12). Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 13 of 32 13 22. The process of study and updating of the operational aspects of the ACT Basin WCMs was completed on May 4, 2015, with the signing of the Record of Decision (“ROD”). See ROD at 1–4 (D-00053477–480). 23. Brig. General C. David Turner, Assistant Secretary of the Army, sent a response to Governor Nathan Deal of Georgia on May 4, 2015. See, e.g., Letter from C. David Turner, Assistant Secretary of the Army, to Governor Nathan Deal (May 4, 2015) (attached as Ex. 1 to this document). In that letter, General Turner first recalled that the Corps had previously communicated to the State of Georgia that the Corps "was unable to take action on” the State’s reallocation request “because [the Corps] had not yet completed its update of water control plans and manuals for the [ACT] Basin.” Id. General Turner then explained that, because that update had just then been completed, “the Corps [could] turn its attention to [the] request.” Id. However, General Turner explained, a precondition to consideration of the request is “that a reallocation study be conducted in accordance with established procedures.” Id. He further explained that such a study had not been budgeted for and no appropriations had been made for that purpose in Fiscal Year (“FY”) 2015 or FY16. Id. While specific appropriations are not a prerequisite for the Corps to carry out reallocation studies, as a matter of general policy and practice, the Corps conducts studies to consider potential reallocations of storage for water supply under the authority of the Water Supply Act. These studies are Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 14 of 32 14 often initiated with the support of a non-federal, cost-sharing partner. See, e.g., Engineer Regulation (ER) 1105-2-100, Planning Guidance Notebook at E-218 (April 22, 2000) (SUPPAR025816). VI. Final Environmental Impact Statement for ACT Basin WCMs Update 24. On October 18, 2007, Secretary of the Army Peter Geren directed the Corps to update the ACT WCMs. FEIS at 1-1 (D-00043862). 25. A WCM is a guidance documents that helps the Corp operate individual and multiple, interdependent, federal and non-Corps reservoirs on the same river system. FEIS at 3-9 (D-00044186). A WCM provides technical, historical, hydrological, geographic, demographic, policy, coordination and other information that guides the proper management of reservoirs during times of high water, low water, and normal conditions. Id. A WCM contains water control plans for each of the reservoirs in a basin system and specifies how the various reservoir projects will be balanced as a system. Id. The manuals also contain drought plans and storage zones to help federal water managers know when to reduce or increase reservoir releases and conserve storage in Corps reservoirs and how to provide for proper water control regulation and coordination to ensure the safety of dams during extreme conditions, such as floods. Id. 26. The update the Corps undertook involved a Master WCM for the entire ACT River Basin, and individual WCMs for nine individual projects in the Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 15 of 32 15 basin, attached to the Master WCM as appendices. FEIS at 3-10 (D-00044187). 27. To comply with NEPA, the Corps developed an EIS to evaluate its proposal to adopt an updated WCM for the ACT Basin. FEIS at 1-1 (D-00043862). A. The Purpose and Need for the Action Informs the Alternatives Analyzed 28. The master operating manual for the ACT Basin dates to 1951 and does not include WCMs for any projects completed after the Allatoona Lake project. FEIS at 1-1 (D-00043862). The individual reservoir manuals were completed as the projects came online. Id. 29. The Corps stated the purpose and need of its action to be the following: [T]he purpose and need for this federal action is to determine how the federal projects in the ACT Basin should be operated for their authorized purposes, in light of current conditions and applicable law, and to implement those operations through updated water control plans and manuals. Conditions in the basin (population, socio-economic, land use, infrastructure, demand for water resources, etc.) have changed substantially since the federal reservoirs were authorized and constructed, and a variety of applicable federal and state environmental laws have been passed and implemented. Operation of the federal reservoir projects in the basin both affect, and are affected by, current conditions in the basin and must comply with current laws and regulations. This action will result in updated plans and manuals that reflect operations under existing congressional authorizations taking into account changes in basin hydrology and demands due to years of growth and development; new/rehabilitated structural features; and environmental issues []. There is also a need for a comprehensive basin-wide drought contingency plan in accordance with pertinent USACE regulations. Both the WCM and the drought contingency plan are needed to accomplish specific Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 16 of 32 16 congressionally authorized and general statutory project purposes in the basin. Updated WCMs are also needed to • Capture project and system operations that have been refined over the years because of changes in basin hydrology and withdrawals/consumption that resulted from years of growth and development • Reflect drought contingency requirements to account for new data and operational changes • Update data reflecting basin conditions • Account for new or rehabilitated project structural features • Meet environmental objectives for water quality, endangered species, and fish spawns • Capture and use real-time data provided by additional gages and monitoring devices installed since the last manual updates • Use the latest computer models and techniques to evaluate and establish guidelines for project operations • Improve and streamline methods for data exchange between USACE and other agencies Any proposed changes to the ACT Basin water control operations that would significantly affect other project purposes or require substantial structural modifications would require feasibility-level studies and congressional authorization. Such studies are not consistent with the purpose and need of updating the WCM. Accordingly, this EIS does not address any proposed changes to water management practices that exceed existing congressional authority. Further, to the extent that existing operations must be adjusted to come into compliance with applicable law, such changes will be included as part of any proposed action. FEIS 1-1 to 1-2 (D-00043862–63). 30. The Corps also underwent a scoping process to determine the range of issues to be addressed and to identify the significant issues to be analyzed in depth with respect to the proposed action. FEIS at 1-2 (D-00043863). The process also Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 17 of 32 17 helps to deemphasize insignificant issues, thereby allowing Corps to identify the range of actions, alternatives, and impacts to be considered in the EIS for the update of the Master WCM. Id. 31. As a result of the scoping process, the EIS considers only operational changes within existing congressional authorities and does not consider operational changes that would require additional authority. FEIS at 1-3 (D-00043863-64). Therefore, the EIS for the update to the WCMs does not consider major operational changes to flood risk management storage or reallocation of storage to meet future water supply needs. Id. (D-00043864). 32. The Corps developed its alternatives using a six step planning process that involved re-iterations of steps as necessary. FEIS at 4-1 (D-00044194). The multi-step process is outlined in Figure 4.0-1 on page 4-2 of the FEIS. In this process, the Corps first identified problems and challenges in the basin and defined its objectives. Id. The Corps also inventoried and forecasted critical resources and developed the No-Action Alternative. Id. The No-Action Alternative represents no change from the current management direction or level of management intensity. FEIS at ES-22 (D-00043793). Next, the Corps formulated, then evaluated and compared, alternative plans. FEIS at 4-1 (D-00044194). Finally, the Corps selected a plan, also known as the proposed action alternative. Id. at 4-1 to 4-2 (D- 00044194-95). Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 18 of 32 18 33. As part of this process, the Corps identified various challenges in the basin, including 1) defining flow requirements upstream of Alabama Power Company (“APC”) Projects to provide for navigation; 2) addressing the lack of a basin-wide drought management plan; 3) modifying releases as needed to aid fish and aquatic resources; 4) balancing hydropower operations with other project purposes at Allatoona lake during drought conditions; and 5) incorporating APC project changes into the Corps’ WCMs. FEIS at 4-1, 4-3 (D-00044194, –96). 34. From those challenges the Corps identified, it adopted several objectives for the WCM update: 1) More accurately define flow requirements for APC projects to support navigation on the Alabama River downstream of Claiborne Lock and Dam 2) Develop a drought management plan as required by Corps regulations 3) Improve conditions downstream of Carters Reregulation Dam for fish and wildlife conservation, including threatened and endangered species 4) Improve system performance to achieve congressionally authorized project purposes 5) Incorporate appropriate changes in APC project operations into the updated WCM. FEIS at 4-1 at (D-00044196). 35. After the Corps identified its challenges and objectives, it identified numerous management measures to meet the identified objectives for possible consideration in the updated WCMs. See id. 36. A “management measure” was defined as a feature or activity that can be implemented at a specific geographic site to address one or more of the Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 19 of 32 19 objectives. FEIS at 4-3 at (D-00044196). The measures considered in updating the WCMs included things such as variations for revising reservoir guide curves and conservation storage action zones; revising hydropower generation plans for water control regulation; revising drought procedures and environmental flows; and developing navigation-specific operations. Id. 37. Then the Corps considered whether each management measure passed the screening criteria it developed. FEIS at 4-4 (D-00044197). Measures failing to pass the screening criteria were eliminated from further consideration. Id. Measures carried forward for further evaluation were refined, if required, and then combined to form basin-wide alternative plans. Id. 38. The formulation strategy employed to develop alternatives involved adding one management measure at a time, determining the operation for that measure that may best satisfy the objectives, and then developing another alternative by adding another measure or, in some instances, considering a variation of the last added management measure. FEIS at ES-19 (D-00043790). Accordingly, these alternatives build one upon another, ultimately establishing the recommended plan for water management in the ACT Basin. Id. 39. During the scoping process, and in considering the purpose and need for this EIS, the Corps developed screening criteria to guide information gathering, to help identify solutions, and to formulate alternative plans. FEIS at 1-6 (D- Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 20 of 32 20 00043867). Further, the screening criteria helped define the scope of proposed updates to the Master WCM EIS and to identify relevant public/agency issues and concerns to be addressed in the EIS. Id. 40. The Corps summarized the screening criteria as: Any proposed water management measure (or alternative) considered in the update process for the ACT WCM EIS 1) Should meet the purpose and need of the proposed federal action 2) Should address one or more of the congressionally authorized project purposes 3) Should not require a reallocation of storage for water supply 4) Should not increase flood risk above the current level 5) Should be consistent with the contemporary water resources needs of the basin to the extent practicable 6) Should support the operation of the projects in the ACT Basin as a system 7) Should not increase the risks to public safety in the facility or downstream of the project 8) Should not exceed the physical limitations of or increase the risks to the structural integrity of the projects 9) Should not violate the Corps responsibilities under the Endangered Species Act (ESA) FEIS at 1-7 (D-00043868). The Corps also further explained what each of these screening criteria meant. FEIS at 1-7 to 1-8 (D-00043868-69). 41. The first screening measure, “A measure (or alternative) should meet the purpose and need of the proposed federal action,” was explained as the following: As explained in Section 1.2, the purpose of the proposed action is to update the WCM for the ACT Basin to determine how federal projects should be operated for their congressionally authorized purposes, taking into account Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 21 of 32 21 changes in basin hydrology and demands from years of growth and development; new/rehabilitated structural features; and environmental issues. Any proposed changes that would require feasibility-level studies and congressional authorization such as changes that would significantly affect other project purposes or require substantial structural modifications are not consistent with the purpose and need of updating the WCM. FEIS at 1-7 (D-00043868). 42. The third screening measure, “A measure (or alternative) should not require a reallocation of storage for water supply,” was explained as the following: USACE has the discretionary authority to consider such requests; however, this is a separate and distinct discretionary authority that USACE is not pursuing as part of this WCM update. Further, such a measure would not meet the purpose and need, which is to determine how the federal projects in the ACT Basin should be operated for the projects’ authorized purposes, in light of current conditions and applicable law, and to implement those operations through an updated Master WCM of the ACT Basin. Id. 43. The Corps recognized that a number of the public scoping comments it received suggested various means of addressing water supply needs in the ACT Basin. FEIS at 4-5 (D-00044198). But the Corps did not carry forward for further consideration management measures—such as additional reallocation of storage in Allatoona Lake, rainfall recycling, eliminating interbasin transfer, increasing the yield of Allatoona Lake by dredging or other means, and desalination—which would address the future water supply needs for the Atlanta region. Id. Additionally, scoping comments suggesting that the Corps establish broad-based water conservation measures, impose surcharges on water supply storage used to Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 22 of 32 22 supply needs outside the ACT Basin, or limit growth in the Atlanta area, are outside the Corps’ authority to implement and were not carried forward for further consideration. Id. While the Corps recognizes the water needs of entities downstream of its reservoirs, the authorized purposes of the federal ACT system do not include making specific releases to satisfy those needs. Id. 44. The Corps explained that any reallocation of storage to water supply would require a separate analysis and a separate final agency action. FEIS at 4-33 (D-00044226). 45. The Corps did, however, consider measures for water supply operations. FEIS at ES-19 (D-00043790). The measures considered for water supply operations were based upon current water supply demand throughout the basin, and existing water supply storage agreements at Corps reservoirs. Id. 46. The Corps also specifically explained that water supply for the basin, including the Atlanta region, was not a Corps responsibility; rather, it was a local concern. FEIS at 1-9 to 1-11 (D-00043870–72). 47. For the purposes of the ACT Basin WCM, the Corps analyzed its management of storage in the reservoirs using its existing storage accounting methodology that tracks multiple storage accounts, applying a proportion of inflows and losses, as well as direct withdrawals by specific users, to each account. FEIS at 4-32 (D-00044225). Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 23 of 32 23 48. In that vein, the Corps also addressed requests that the court update the accounting methodology that it used to calculate water storage, explaining that such a measure was outside the scope of the project. FEIS at 1-30 at (D- 00043891). 49. In a letter from Assistant Secretary of the Army for Civil Works to Governor Deal, the Assistant Secretary explained that credits for return flows and other accounting policy questions would require a national policy review. 2013 Darcy Letter at p. 1 (D-00066808). 50. In sum, in the update to the ACT Basin WCM, the Corps did not consider changes to its existing storage contracts—e.g., an additional reallocation of storage—or changes to the current storage accounting methodology. FEIS at ES-19 (D-00043790). Such actions would involve a separate analysis as part of a separate process, which would follow the completion of the WCMs update process. Id. Instead, for purposes of the ACT WCM update, the Corps took into account the then-current (2006) demand, as well as the availability of storage under existing water supply storage agreements at Corps reservoirs, in evaluating the alternatives in this EIS. Id. B. Alternatives Analyzed 51. After the Corps established a valid and supported purpose and need for its action, the Corps formulated and considered eleven different alternatives for Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 24 of 32 24 the ACT Basin WCM update, based on different formulations of management measures, as well as the No-Action Alternative that was the based on current operations. FEIS at 4-34 to 4-35 (D-00044227–28). 52. The Corps explained that some management measures were eliminated from consideration as part of the alternatives because they did not meet the screening criteria established to help define the scope of the action. FEIS at 4-5 (D-00044198). 53. After analysis of eight of the alternatives, the Corps concluded that they should not be carried forward for additional analysis and explained why that was the case. FEIS at 4-37 (D-00044230) (Drought Plan); FEIS at 4-38 (D- 00044231) (Burkett); FEIS at 4-40 (D-00044233) (Drago A); FEIS at 4-41 (D- 00044234) (Drago B); FEIS at 4-42 (D-00044235) (Alternative A); FEIS at 4-44 (D-00044237) (Alternative B); FEIS at 4-45 (D-00044238) (Alternative C); FEIS at 4-47 (D-00044240) (Alternative E). 54. The Corps carried forward three alternatives for further analysis, as those alternatives better met the purpose and need of the action than the other, rejected alternatives. See FEIS at 5-7 (Plan D) (D-00044252); 5-10 (Plan F) (D- 00044255); 5-13 (Plan G) (D-00044257). C. Environmental Effects Analyzed Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 25 of 32 25 55. The Corps considered the environmental effects of Plan D, Plan F, and Plan G—the alternatives carried forward for detailed analysis—as compared to the No-Action Alternative. FEIS at 6-1 (D-00044260) (environmental effects analysis); FEIS at ES-33 (D-00043804) (summary of impacts table). For example, under the category of water resources, the Corps considered effects such as stream flow conditions for rivers in the basin; drought management; navigation flow targets for the Alabama River; and water withdrawals. FEIS at 6-3 to 6-94 (D- 00044262–353). The Corps also considered effects on water quality, geology and soils, climate change, and land use. FEIS at 6-94 to 6-147 (D-00044353–406). The Corps further analyzed and compared the effects the Corps’ proposed and alternative actions would have on biological resources including vegetation, wildlife, fish and aquatic resources, reservoirs, estuaries, protected species and fish and wildlife management facilities. FEIS at 6-148 to 6-179 (D-00044407–438). Additionally, the Corps analyzed socioeconomic issues including municipal and industrial water supply, navigation, hydropower, flood risk management, recreation, property values and taxes, environmental justice, and protection of children. FEIS at 6-179 to 6-214 (D-00044438–473). Then, once the proposed action alternative—Plan G—was chosen, the Corps also conducted a sensitivity analysis on Plan G to analyze the environmental effects under three additional future scenarios: 1) increased future water demands (FEIS at 6-219) (D- Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 26 of 32 26 00044478); 2) reduced basin inflows (6-250) (D-00044509); and 3) air temperature increases (6-278) (D-00044537). Finally, the Corps analyzed the cumulative effects of the Update to the Master WCM with other related actions. FEIS at 6-292 (D-00044551). 56. For the ACT Basin WCMs, the Corps’ alternatives considered current water storage operations as they exist under current contracts. FEIS at 1-7 (D- 00043868); FEIS at 2-79 (D-0043986) (water management and use, including water withdrawals, in no-action alternative); FEIS at 6-93 to 94 (D-00044352) (effects of each alternative on municipal and industrial water withdrawal); FEIS at 6-236 (D-00044495), 6-246 (D-00044505) (water withdrawals and municipal and industrial water supply under a scenario with increased future water demands). 57. The Corps acknowledges that, under each of the plans analyzed, current water supply under existing water supply agreements may not be sufficient to meet all needs if a record drought, like the one in 2006, occurs. FEIS at 6-179 to 183 (D-00044438–42). 58. The Corps’ analysis acknowledges that it will not be able to meet all of the water supply needs of Cobb-County Marietta Water Authority during a year like 2006 with a record drought. See, e.g., FEIS, Appendix C, Alabama-Coosa- Tallapoosa Watershed HEC-ResSim Modeling of Reservoir Operations in Support of Water Control Manual Update at 15 (D-00048230). Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 27 of 32 27 59. CCMWA is but one of the entities that hold water supply contracts at Allatoona Lake. ES-23 (D-00043794). 60. The Corps took into account actual and projected water supply uses at Allatoona Lake in its modeling of alternatives in the EIS and in the water control manuals, but did not consider allocating additional water supply storage in Allatoona Lake, or making final policy decisions on certain outstanding policy issues—such as water storage accounting—that were raised in public comments on the draft and final documents. FEIS at 1-40 (D-00043901); ROD Add. at 1 (D- 00053481). 61. As part of the water supply considerations, water supply usage in 2006, which was the year of highest net withdrawals from the ACT Basin, was identified as representative of current water supply demand in the basin. FEIS at ES-19 (D-00043790); ES-31 to 33 (D-00043802–04); ROD Add. at 3 (D- 00053482). Annual demands fluctuate, and the Corps considered it prudent to use the highest net withdrawals in estimating current demand, in order to estimate potential effects on system operations from basin-wide water supply uses. FEIS at ES-19 (D-00043790). Accordingly, analysis of the no action alternative included the water supply withdrawals that were actually reported throughout the basin in 2006. ROD Add. at 3 (D-00053482) 62. Thus, for purposes of the ACT WCM update, the no action alternative Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 28 of 32 28 reflects the water supply usage that actually occurred in 2006. FEIS at ES-19 (D- 00043790). The measures for water supply operations considered in all other alternative plans assume water supply withdrawals to be based upon those that occurred throughout the basin in 2006, except that withdrawals from Corps reservoirs (Allatoona and Carters Lakes) would be limited for purposes of modeling to the amount of storage available in existing water supply storage agreements according to the Corps storage accounting methodology currently employed at those reservoirs. Id. VII. ACF Basin EIS 63. The Corps is also updating its WCMs in the ACF Basin, and has completed its Draft Environmental Impact Statement (“DEIS”) for that update. The ACF DEIS is available at http://www.sam.usace.army.mil/Portals/46/docs/planning_environmental/acf/docs/ ACF%20DEIS%20Vol1.pdf. The Final EIS for that update is pending. Prior to initiating this update, the Corps was involved in litigation—with the States of Georgia, Alabama, Florida, and others—regarding water use of the ACF Basin. In that litigation, challenging the Corps’ denial of Georgia’s request for water supply storage in Lake Lanier in the ACF Basin, the U.S. Court of Appeals for the Eleventh Circuit set aside the Corps’ denial and directed that the case be remanded with instructions for the Corps to reconsider the extent of its authority to Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 29 of 32 29 accommodate Georgia’s water supply request at Lake Lanier. In Re MDL-1824 Tri-State Water Rights Litig., 644 F.3d 1160, 1200–01 (11th Cir. 2011); see also ACF DEIS at 3-11 to 3-12. 64. The Corps concluded in a June 2012 legal opinion that it could accommodate Georgia’s water supply request without reallocation in light of its existing legal authorities for the ACF Basin and that it also had authority for a specific volume of reallocation under those authorities, if needed. Office of the Chief Counsel, Memorandum for the Chief of Engineers Re: Authority to Provide for Municipal and Industrial Water Supply from the Buford Dam Lake Lanier Project Georgia (25 June 2012) (“June 2012 Legal Opinion”) at 1–5, 48 (D- 00066700–04, 47); see also ACF DEIS at 3-12. However, that June 2012 Legal Opinion also determined that a decision to take action on Georgia’s request would require separate and additional studies. See, e.g., June 2012 Legal Opinion at 48 (D-00066747); see also ACF DEIS at ES-4-ES-5. Georgia subsequently updated its request to ask for more water supply from Lake Lanier, but only within the confines of the storage the Corps had already determined was legally authorized. ACF DEIS at ES-4. Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 30 of 32 EXHIBIT 1 Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 31 of 32 Case 1:14-cv-03593-RWS Document 43-3 Filed 11/30/16 Page 32 of 32