Opinion
No. SA-03-CA-0993-RF.
September 22, 2004
ORDER GRANTING DEFENDANTS' AND INTERVENOR'S MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are cross motions for summary judgment (Docket Nos. 25, 28, 29), filed by all parties, along with the various responses and replies. On May 27, 2004, the parties appeared before the Court for oral argument. After careful consideration of the presentations at oral argument, the record, and applicable law, the Court is of the opinion that Plaintiff's motion for summary judgment (Docket No. 25) must be DENIED and Defendants' and Intervenor's motions (Docket Nos. 28 and 29) must be GRANTED. Thus, the Court DENIES Plaintiff's request for permanent injunction (Docket No. 1).
In a related motion (Docket No. 34), Defendants requests that the Court strike from the record portions of evidence presented in support of Plaintiff's motion. For the reasons stated herein, the Court GRANTS IN PART and DENIES IN PART Defendants' motion to strike.
Factual and Procedural Background
Plaintiff is Friends of Canyon Lake ("Friends"), a nonprofit corporation including homeowners, property owners and business owners concerned with the area surrounding Canyon Lake in Comal County, Texas. The purpose of Friends is to protect the quality of life and recreational opportunities in and around Canyon Lake. Defendants are Les Brownlee, in his official capacity as Secretary of the Army, Colonel John Minahan, as District Engineer of the U.S. Army Corps of Engineers-Forth Worth District, and the U.S. Army Corps of Engineers ("the Corps"). Intervenor is the Guadalupe Blanco River Authority ("GBRA"), a political subdivision of the State of Texas, charged by the Texas Legislature with responsibility for water resource management within ten counties of central Texas.Plaintiff seeks a preliminary injunction to prevent the diversion of water from Canyon Lake as proposed by the Defendants' and Intervenor's plans (Docket No. 1). Friends also seeks permanent injunctions by the Court requiring the Defendant Corps to prepare a Supplemental Environmental Impact Statement ("SEIS") or in the alternative to supplement an Environmental Assessment ("EA") completed by the Corps in 2002. The EA reviewed a plan by the Intervenor GBRA to build a raw water intake facility on Corps property on Canyon Lake. Plaintiff complains that in preparing the EA, the Corps failed to sufficiently analyze the environmental impacts of that easement on Canyon Lake and the surrounding ecosystem.
In order to understand Plaintiff's complaint and requested relief, some history of the lake is necessary as background. Canyon Lake's creation was originally authorized by the River and Harbor Act of 1945, later modified by the Flood Control Act of 1954. The lake was created by the Corps, with substantial funds for the project contributed by GBRA. Under contract with the United States, GBRA enjoys the right to storage space within Canyon Lake between the elevations of 800 feet above mean sea level (msl) and 909 feet msl for the purposes of impounding water and making such diversions as granted by the State of Texas. Under this contract, the design and location of GBRA facilities used to divert water are subject to the regulation and approval of the federal government. The only contractual limitation on GBRA's right to divert water is the condition that the lake level must remain above 800 feet msl. In 1964, GBRA began impounding water from the lake.
In 1975, the Corps prepared an Environment Impact Statement ("EIS") regarding the operation of Canyon Lake. The 1975 EIS contemplated releases of water from Canyon Lake, "based on needs for water supply and irrigation by downstream users," (Administrative Record, 00261) and specifically contemplated reduction in lake levels due to withdrawals ("drawdowns") by GBRA and others under the water contract. The EIS discussed how various conditions would affect the reservoir — including the presence of flooding conditions and drought — and forecast that the level would vary between 918 and 892 feet msl in a five-year period. The EIS noted that lake levels could not be completely controlled since the level of the lake depended on water contracts and available rainfall. The EIS further noted numerous adverse effects of drawdowns, including environmental, biological, cultural, and other types of consequences.
Cites to the Administrative Record that was filed with the Court will hereinafter take the form "AR", followed by the appropriate page reference.
In 1997, GBRA filed an application with the Texas Natural Resource Conservation Commission ("TNRCC"), which is now known as the Texas Commission on Environmental Quality ("TCEQ"), to dramatically increase the annual take from the lake. The previously authorized take was 62,900 acre-feet of water, and GBRA's application sought to increase that number to 120,000 acre-feet. The previous limit over five consecutive years was 250,000 acre-feet, and the proposed limit over five years was 450,000 acre-feet.
Throughout this opinion, the Court uses "TCEQ" to refer to this entity, regardless of the time referenced. This choice was made for the sake of simplicity, as the omission of TNRCC will not likely cause confusion, while the inclusion of both acronyms to describe one body could do so.
On August 9, 2001, Texas issued GBRA an amendment to its Certification of Adjudication (No. 18-2074E). The amendment permitted an additional increase in the amount of water GBRA could divert from the lake. Plaintiff claims that this amendment constitutes a major changed condition in the operation of the lake, specifically because the amended diversion permitted was not discussed in the 1975 EIS. In September 2001, the Corps and GBRA signed a Memorandum of Understanding to process GBRA's request for an easement to construct a water intake structure.
GBRA applied to the Corps for an easement to construct a raw water intake facility to remove water from the lake. The intake facility comprises a wet well, reservoir taps, pump equipment, a building, utilities and communications, and site improvements and access. Also, a pipeline is proposed to transport water underground to a water treatment plant and delivery site. GBRA plans to deliver this water to water customers, including those in Bulverde, southern Comal County, Boerne, and to two San Antonio Water System sites in Bexar County.
In July 2002, the Corps prepared an Environmental Assessment ("EA") pursuant to Section 102 of NEPA for the proposed construction of the facility. Plaintiff alleges the Corps failed to fully disclose in the EA the cumulative impacts of the facility along with other components of Canyon Lake operations, in violation of the National Environmental Policy Act ("NEPA"). The scope of the EA was limited to the boundaries of the Corps' Comal Park, located on the south side of Canyon Lake. Plaintiff further claims this scope is insufficient to evaluate the full range of environmental impacts associated with the facility and the lake and that this insufficiency violates federal law.
42 U.S.C. § 4321 et seq.; see also 40 C.F.R. § 1508.7.
The 2002 EA discusses in detail several alternatives to the proposed easement for the intake facility, including a no action alternative. The EA identified numerous aspects of the environment that would be affected by the intake facility and pipeline, along with the cumulative effects of actions that would be reasonably foreseeable results of the grant of the easement. In particular, the EA conducted an analysis of the cumulative impacts of the proposed increased withdrawals of water from Canyon Lake, both on the levels of the lake and on downstream river flows. The EA noted that even with the additional withdrawals by GBRA, "the lake will be full (at the conservation pool elevation of 909 feet msl) about 42% of the time, and it will be between elevations 890 and 909 feet msl about 49% of the time." (AR 0027) Indeed, the EA concluded that the lake would dip below elevation 890 feet msl "only during a drought as severe as the drought of the 1950's[sic]." ( Id.)
Based on the findings in the EA, the Corps issued a draft Finding of No Significant Impact ("FONSI") for the intake facility, made available to the public for comment in June 2002. The public review period, which began July 17, 2002, was extended an additional thirty days into September 2002. After review and consideration of the public comments, the Corps on September 17, 2002, issued a FONSI for the intake facility, stating that the potential cumulative impacts would not have significant adverse impacts and therefore the construction of the facility did not warrant the preparation of an EIS.
In addition to the complaints related to the EA, Plaintiff complains that changed conditions, since 1975 generally but specifically since 2001 — not limited to the water intake facility — require a supplemental EIS under 40 C.F.R. § 1502.9. In July 2003, Plaintiff requested that the Corps prepare an SEIS to the 1975 EIS in order to evaluate the changed conditions alleged by Plaintiff. The Corps subsequently granted the easement for the GBRA intake facility about August 2003 and thereafter declined to prepare the SEIS requested by Plaintiff.
Plaintiff filed this cause asking the Court to enter a preliminary injunction preventing Defendants' approval of GBRA's permit for a raw water intake structure, unless and until the cumulative impacts associated with the structure are clearly evaluated and until the Corps assesses whether significant impacts exist requiring the preparation of an EIS. All parties agree that the motions do not seek a determination, as in the usual case, of whether material facts remain in dispute, but rather ask the Court to determine whether the agency properly analyzed the facts in light of controlling law.
Pltf's Mot. for Summ. J., at 30.
Discussion
I. Summary Judgment Standard
All parties have moved for summary judgment in this case. Summary judgment is appropriate if, after adequate time for discovery, there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Summary judgment is appropriate for review of a federal agency's administrative decision when review is based upon the administrative record, since the Court is reviewing the legality of the agency action, not acting as the initial fact finder. In such an instance, this Court's "review has the function of determining whether the administrative action is consistent with the law — that and no more'" II. Standard of Review Under NEPA
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir. 2002).
Girling Health Care v. Shalala, 85 F.3d 211, 214-15 (5th Cir. 1996). See also Davis Mountains Trans-Peco Heritage Ass'n v. United States Air Force, 249 F. Supp.2d 763, 773 (N.D. Tex. 2003).
Girling, 85 F.3d at 215; CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CICIL 2d § 2733 (1983).
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321- 4370d.
Plaintiff complains that the Corps must prepare a supplemental EIS in order to account for and consider significant changed circumstances, including but not limited to the raw water intake facility. Plaintiff also complains that the Corps' FONSI determination was arbitrary, capricious and an abuse of discretion. The parties do not dispute that it was within the discretion of the Corps to first prepare an EA. Plaintiff does not object to this first step. Rather, Plaintiff complains that the Corps did not do enough. This Court reviews these complaints under both the appropriate summary judgment standard and the appropriate standard of review of agency decision making under NEPA.
See 40 C.F.R. §§ 1501.3 1501.4(a)-(c).
Although the issues presented are before the Court on cross motions for summary judgment, the issues arise in the context of the National Environmental Policy Act and the regulations promulgated thereunder. However, NEPA does not provide an independent, private right of action; instead, the Administrative Procedures Act (APA) provides for judicial review of agency actions. The APA provides federal courts with jurisdiction over NEPA challenges.
5 U.S.C. § 702; Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988).
Environmental Defense Fund v. TVA, 468 F.2d 1164, 1171 (6th Cir. 1972).
Under the APA, courts must uphold agency decisions unless they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." "Thus, the issue is not whether material facts are disputed but whether the agency properly dealt with the facts. The Court `must find that the evidence before the agency provided a rational and ample basis for its decision.'" As a result, the Court is confined here to deciding the narrow question of whether the Corps' decision finding no significant impacts from the grant of the easement was arbitrary and capricious. The Court may not engage in a determination of whether the easement and any associated effects would have significant impacts on the environment of Canyon Lake or even whether the Corps' FONSI was reasonable. The Fifth Circuit emphasizes that under this highly deferential standard of review, courts have the least latitude in finding grounds for reversal of an agency decision.
5 U.S.C. § 706(2)(A). See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-17 (1971); Girling, 85 F.3d at 215; Davis Mountains, 249 F. Supp.2d at 773.
Davis Mountains, 249 F. Supp.2d at 773 (internal citations omitted).
Marsh v. Oregon Nat. Res. Council, 490 U.S. 360 (1989) (agency decision reviewable under arbitrary and capricious standard); Sabine River Authority v. United States Dep't of Interior, 951 F.2d 669, 677 (5th Cir.), cert. denied, 506 U.S. 823 (1992) (abandoning "reasonableness" standard in light of the Supreme Court's holding in Marsh); Spiller v. Walker, 2002 U.S. Dist. LEXIS 13194, *15 (W.D. Texas 2002), aff'd, 352 F.3d 235 (5th Cir. 2003).
Spiller v. Walker, 2002 U.S. Dist. LEXIS at *15-16 (quoting Sabine River, 951 F.2d at 678).
NEPA's structure provides a process-based system of review rather than substantive remedies. And as such, the Court may not find that the agency's decision was in error simply because it disagrees with the result reached by the agency. In tension with this deference, the Supreme Court has held that courts must conduct a "searching and careful inquiry" into an agency's decision under NEPA. The court must ask whether the agency took the requisite "`hard look' at the salient problems." Both under the appropriate summary judgment standard and under the standard authorized by NEPA, "the only role for a court is to insure that the agency has taken a `hard look' at environmental consequences; it cannot `interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Thus, the Court's role in this case is to determine under NEPA whether the Corps' determination provided sufficient process and whether the agency's determination was arbitrary and capricious or otherwise contrary to law. III. Motion to Strike
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) ("it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process"); Spiller v. White, 352 F.3d 235, 238 (5th Cir. 2003).
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) ("Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.").
Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851 (D.C. Cir. 1970). The "hard look" phrase and principle first adopted by the D.C. Circuit and has since appeared throughout federal courts' treatment of NEPA litigation. See DANIEL MANDELKER, NEPA LAW LITIGATION § 3:7 (1992).
Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976) (internal citations omitted).
See 5 U.S.C. § 706(2)(A). See also Overton Park, 401 U.S. at 415-17; Girling, 85 F.3d at 215; Davis Mountains, 249 F. Supp.2d at 773.
Rule 12(f) permits the Court to strike from the record allegations or information that are legally insufficient or immaterial. It is well-established that, in cases where parties are seeking judicial review under the APA, the scope of that review is properly limited to the administrative record that was before the agency at the time that it made its decisions. The rationale for thus limiting review to the administrative record is that the reviewing court must determine agency compliance with the law solely on the record before the agency, rather than conducting a de novo trial and substituting its opinion for that of the agency.
Florida Power Light Co. v. Lorion, 470 U.S. 729, 743-44 (1985) (citing Overton Park).
Overton Park, 401 U.S. at 419; Sierra Club v. Glickman, 67 F.3d 90, 96 (5th Cir. 1995).
Defendants move under Rule 12 to strike Appendices A, B, C and D to Plaintiff's Motion for Summary Judgment because Defendants complain the information contained therein was not included in the Administrative Record before the agency at the time the Environmental Assessment was issued in July 2002 and the FONSI was issued in September 2002.
Appendices A-D are letters dated July 15 through September 11, 2003. During this narrow time frame, Friends and experts supporting its position submitted letters relating to the EA for the intake facility, which make up Appendices A-C. Appendix D is a letter from the Corps responding to Plaintiff's request that the Corps prepare an SEIS or revisit the EA's cumulative impacts analysis. Plaintiff concedes that the whole of the four appendices were not in fact before the agency as part of the Administrative Record. For this reason, the Court will not consider the facts and arguments contained in the appendices for the purpose of deciding whether Defendants' 2002 decision to issue a FONSI was arbitrary and capricious or otherwise not in accordance with the law. For this reason, the Motion to Strike shall be GRANTED to the extent that it relates to Plaintiff's first claim.
Confusion related to the issue on which Plaintiff had submitted the four appendices emerged at the hearing in this matter; Defendant Corps maintained that it had moved to strike the appendices as they related to Plaintiff's first claim. Plaintiff responded by conceding that the records were not before the agency during the relevant time period and thus were not properly to be considered by the Court in rendering its decision on the merits of Plaintiff's first claim. In the alternative then, Defendants' Motion to Strike these appendices should be DENIED as moot. Regardless of the form, the Court will not consider these documents in reviewing the Corps' decision to issue a FONSI.
Plaintiff claims instead that the information contained in the four appendices are presented only as to their second claim, that a supplemental EIS should be conducted because of the insufficiency of the 1975 EIS. A close read of the documents contained in the appendices to Plaintiff's motion reveal that they primarily dispute the adequacy of the EA and seek to introduce arguments challenging the Corps' FONSI determination. The letter from Plaintiff in Appendix A urged that the Corps issue an SEIS, which forms the basis for Plaintiff's second claim. The letter also briefly suggested several changed conditions, such as the development and number of residences around Canyon Lake and the GBRA's increased allotment of water. Since the evidence that Plaintiff points to is relevant to the task of deciding the merits of Plaintiff's second claim, the Motion to Strike those aspects shall be DENIED. However, much of the remainder of the letter identified as Appendix A, as well as the experts' reports identified as Appendices B and C, raise challenges to the scope or adequacy of the EA. As such, these attachments to Plaintiff's motion relate only to the first claim, and the Motion to Strike these aspects must be GRANTED.
IV. Substantive Claims under NEPA
NEPA provides that agencies must prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." NEPA created the Council on Environmental Quality (CEQ), which has published regulations that are binding on federal agencies. The CEQ regulations provide a broad framework for compliance with NEPA and direct federal agencies to promulgate their own implementing regulations and to list actions that normally require preparation of an EA or an EIS. Pursuant to this mandate, the Corps has determined that regulatory permits are actions "normally requiring an EA, but not necessarily an EIS."
42 U.S.C. § 4332(C). See also 40 C.F.R. § 1502.1 (stating the purpose of an EIS and stating that an EIS "shall inform decisionmakers and the public of the reasonable alternatives which would avoid or minimize adverse impacts or enhance the quality of the human environment.").
42 U.S.C. § 4342. NEPA regulations are codified at 40 C.F.R. pt. 1500.
Fritiofson v. Alexander, 772 F.2d 1225, 1236 (5th Cir. 1985) (citing 40 C.F.R. § 1507.3).
Id. (citing 33 C.F.R. § 230.7(e)).
Thus, prior to preparing any EIS, an agency may perform an EA, "a more limited document," to determine whether a project, such as construction of the raw water intake facility at issue here, will significantly impact the environment. "The EA is to be a `concise public document' that `briefly provides sufficient evidence and analysis for determining whether to prepare an [EIS].'" The Fifth Circuit has provided guidance on the scope of an EA: "The EA is a rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary." The EA is also intended to be brief, normally not exceeding fifteen pages, so long as it includes brief discussions of the project and its alternatives, their environmental consequences, and a list of persons consulted.
Dept. of Transportation v. Public Citizen, 124 S. Ct. 2204, 2209-10 (June 7, 2004).
40 C.F.R. § 1508.9(a); Public Citizen, at 2210.
Spiller v. Walker, 352 F.3d at 237-38 (quoting Sabine River, 951 F.2d at 677).
Fritiofson, 772 F.2d at 1236; 33 C.F.R. § 230.10(c).
The ultimate purpose of the EA is to lead to one of two findings: either due to a significant environmental impact, the project requires the preparation of an EIS to detail this impact, or the project will have no significant impact, requiring no further study through an EIS. In determining the significance of the impact, CEQ regulations require the agency to consider, among other factors, the cumulative impacts of the project. If, on the basis of the EA, the agency finds the project's impact will not be significant, then the agency may appropriately issue a FONSI, completing its duties under NEPA. Plaintiff claims that the Corps failed to adhere to this requisite structure on two counts. First, Friends claims that the EA underlying the Corps' FONSI determination was inadequate under NEPA regulations and as a result the FONSI was arbitrary, capricious or an abuse of discretion. Second, Friends claims that due to changed circumstances, the 1975 EIS requires a supplement in the form of an SEIS. The Court will address each claim in turn.
40 C.F.R. §§ 1508.27(b)(7), 1508.7 ("impacts on the environment which results from the incremental impact of the action when added to past, present, or reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions").
Spiller v. Walker, 352 F.3d at 238.
A. The FONSI Determination
Plaintiff challenges the propriety of the Corps' FONSI determination, but focuses on the adequacy of the underlying EA. Primarily, Plaintiff argues that the EA for the raw water intake facility was inadequate under NEPA's requirements for failing to address the cumulative impacts of reasonably foreseeable future actions. Implicit in this argument, and more fully developed at oral argument, is Plaintiff's objection to the scope of the EA.
1. Scope of the Environmental Assessment
The Corps and GBRA argue that the EA's scope was correct, although both also disagree with each other about the proper scope of analysis for the decision before the Corps. The Corps argues that, under NEPA regulations, it was required to analyze the relevant federal action (its grant of an easement to GBRA) along with the cumulative impacts of reasonably foreseeable actions. On the other hand, GBRA argues that since the water rights are determined by the State of Texas and GBRA's withdrawals permitted by the TCEQ can thus be considered action by the state as opposed to federal action, the impacts to the lake levels and other "non-federal impacts" need not be included.
GBRA argues in its summary judgment motion and supporting briefs that NEPA was inapplicable to the GBRA's permitted diversions and that the Corps had no duty to analyze these diversions in the context of the EA for the intake facility. GBRA argues that since the aim of NEPA is to require federal decision makers to consider environmental consequences of their actions prior to proceeding — and since Congress did not intend NEPA to apply to state, local, or private actions — the Corps should not have considered GBRA's increased withdrawals in determining the environmental consequences of granting GBRA an easement to build the intake facility. GBRA reasons that since the permitted diversions are not direct "products of the Corps permit action," but rather creatures of Texas water law and thus outside the purview of a federal agency conducting an EA on its action granting an easement to a state agency. For support, GBRA relies upon cases where the Corps was not required under NEPA to consider the total impact of large industrial complexes or massive projects involving significant non-federal components in determining the environmental consequences of its permit grant. GBRA further points to NEPA regulations providing that when faced with federal and non-federal components in a project, the NEPA document need only address the federal components of the project in support for its argument that the proper scope of the EA here did not include GBRA's withdrawals.
Atlanta Coalition on Transp. Crisis, Inc. v. Atlanta Reg. Comm'n, 599 F.2d 1333, 1344 (5th Cir. 1979).
See Save the Bay, Inc. v. U.S. Corps of Engineers, 610 F.2d 322 (5th Cir. 1980); see also Winnebago Tribe of Nebraska v. Ray, 621 F.2d 269 (8th Cir. 1980).
See 33 C.F.R. § 325, App. B, subd. 7(b)(1); 33 U.S.C. § 1251(g).
Friends counters that GBRA's analysis is irrelevant and that the cases cited by GBRA were decided under the basis of an enablement or secondary impact theory, rather than the cumulative impact theory, focusing on the distinction raised in the cases of a "veto" rather than an "enabling" permit, which implicates the degree of federal control in the actions at issue in those cases. While this distinction itself is not controlling here, a close look at the facts of these cases reveals important distinctions between them and the case before the Court.
See Save the Bay, 610 F.2d at 327; Winnebago, 621 F.2d at 272-73.
In both cases cited by GBRA, the Corps had relatively limited authority over the details of the whole state or private project, with little relationship between the federally permitted aspects and the substance of the larger project. In Save the Bay, the Corps had reviewed an application for a permit to build a pipeline that would divert industrial wastewater from a massive DuPont manufacturing facility. Plaintiff in that case argued that the environmental consequences of the industrial facility should be taken into consideration in the Corps' decision whether or not to prepare an EIS. Reviewing the district court's refusal to require the Corps to prepare an EIS for the pipeline permit, the Fifth Circuit distinguished the situation from earlier cases where federal action "enabled" state or private projects having a significant impact on the environment, finding that approval of the pipeline did not require an analysis of the entire plant and its potential environmental impacts.
Save the Bay, 610 F.2d at 323-24.
Id. at 327.
In Winnebago, the Eight Circuit confronted arguments based on the "enablement" theory — providing that an entire project was subject to NEPA review because federal action is a condition precedent to accomplishment of the entire non-federal project — and found that the theory did not apply on the facts before it. Instead, the court held that considering the entire project in Winnebego would require the Corps to exceed its jurisdiction and was not necessary.
Winnebago, 621 F.2d at 272.
Id.
Canyon Lake presents a different picture. First, there is a continuing federal presence in Canyon Lake, controlled by numerous federal statutes. There is also a contract, already mentioned, between the GBRA and the United States, providing the GBRA's right to withdraw water. Further, the federal government owns the lake bed and Comal Park, the site of the proposed intake facility. Thus, the situation at Canyon Lake is factually distinguishable from that in the cases cited by GBRA. The Corps recognized the possibility that GBRA could accomplish its withdrawals without the intake facility on Corps' property at Comal Park (AR 00013); as a result, the facts before the Corps here present a situation squarely between those discussed in the case law distinguishing between "veto" and "enablement" permits. The GBRA's withdrawals are permitted by the TCEQ, a creature of the State of Texas; thus, they are outside the Corps' direct regulatory control. Since the GBRA was able to withdraw its allotment of water using means other than the proposed intake facility, the Corps did not have total control over the GBRA's withdrawals, as typified in the "enablement" scenario, where federal action is a legal condition precedent to accomplishment of an entire non-federal project.
Id.
When these factors are viewed together, it is clear that the water in Canyon Lake — and thus the question before the Corps — presents intertwined state and federal rights and duties. Considered alone, withdrawals of water by the GBRA pursuant to its contract with the United States and its allocation by the TCEQ do constitute action by the State of Texas and not the federal government. However, the very nature of the resource and the interconnected regulatory and proprietary relationships that apply to the water in Canyon Lake and animate the instant case require that this Court recognize the inextricable link between federal and non-federal action here. As a result, in considering the impacts of the grant of an easement for a water intake facility, the Corps should consider the effects of related actions that are reasonably foreseeable, regardless of who undertakes the action. The impact of GBRA's withdrawals were thus properly before the Corps in analyzing the environmental consequences of granting GBRA an easement to build the intake facility.
See 40 C.F.R. §§ 1508.27, 1508.7.
2. Evaluation of "Cumulative Impacts" in the Environmental Assessment
With the proper scope of the EA in mind, the Court turns to the question of whether the Corps fulfilled its duty to analyze the environmental consequences of the proposal to grant an easement to GBRA for the intake facility. Specifically, the question pressed by Plaintiff is whether the Corps considered the cumulative impacts of reasonably foreseeable actions related to the requested easement.
Plaintiff argues that the Corps did not take a "hard look" at GBRA's proposed intake facility on Canyon Lake by failing to address cumulative impacts in the 2002 EA. In analyzing cumulative impacts, agencies should consider:
(1) the area in which effects of the proposed project will be felt;
(2) the impacts that are expected in that area from the proposed project;
(3) other actions — past, proposed, and reasonably foreseeable — that have had or are expected to have impacts in the same area;
(4) the impacts or expected impacts from these other actions; and
(5) the overall impact that can be expected if the individual impacts are allowed to accumulate.
Fritiofson, 772 F.2d at 1245.
In particular, Plaintiff argues that the Corps failed to discuss lake level fluctuations adequately. Plaintiff alleges that the Corps failed to consider the amended water rights granted to GBRA by TCEQ and that the Corps should have addressed the impact of drawdowns on a number of factors, including recreation, navigation, the surrounding residential community, and water quality. Plaintiff argues that the Corps failed to analyze the impacts of drawdowns on these uses in either the 2002 EA or the earlier EIS. In fact, Plaintiff alleges that Defendants could not have analyzed the impact of drawdowns on many of the uses of Canyon Lake, since they were not in existence in 1975 when the EIS was completed.
Defendants respond that they did analyze the cumulative impacts associated with grant of the easement to GBRA and refer to sections 4.2.15.1 and 4.2.15.2 of the EA, which discuss cumulative impacts. Review of these sections reveals that the Corps did consider the cumulative impacts of the GBRA's increased water allotment, and made specific references to these impacts in the EA. Indeed, the cumulative impacts section in the EA explicitly discusses withdrawals by the GBRA and potentially declining lake levels. In this section of the EA, the Corps made the findings that appear throughout parties' briefs before the Court: "the lake will be full . . . about 42% of the time, and it will be between elevation 890 msl and 909 msl about 49% of the time." (AR 00027)
In relating these findings, the Corps referred to modeling done by GBRA hydrologists, which supported the Corps' eventual finding that the easement — even when considered in light of the cumulative impacts from the increased diversions by the GBRA — would not result in a significant environmental impact. Plaintiff complains that the underlying technical or scientific reports were not produced with the EA, deriding the Corps' decision based on them as arbitrary and capricious. Plaintiff further alleges that the Corps' statements about the impacts were insufficient, citing case law holding merely conclusory statements to be inadequate in the context of an EA.
See Fritiofson, 772, F.2d at 136; Citizen Advocates for Responsible Expansion (I-CARE) v. Dole, 770 F.2d 423, 434 (5th Cir. 1985).
However, the agencies' analyses in those cases present a clear contrast with the facts of this case. Here, the statements about the impacts that the easement and related actions would have were based upon studies that had been completed by the GBRA. The Corps' discussion of the significance of these impacts is a far cry from the conclusory agency pronouncements held to be insufficient under the cases cited by Plaintiff. Here, the EA considered potential environmental effects of granting the GBRA's requested easement, considering several alternatives, including a no action alternative. The EA discussed each of these proposed alternatives in detail. The EA also identified precise environmental concerns related to the proposal and each of the alternatives, including water quality, vegetation, wildlife, cultural resources, air quality, noise, hazardous, toxic, and radioactive wastes, aesthetics, environmental justice, and socioeconomic conditions. (AR 00012-20) Therefore, the EA presents a much fuller administrative record than those discussed in the cited cases, and Plaintiff's reliance on their holdings is misplaced.
Further, Defendants and Intervenor point out that the impacts of the drawdowns of Canyon Lake, about which Plaintiff argues most strenuously, were already considered in the context of the 1975 EIS. Indeed, the EIS explicitly considered the residential community (AR 00263); recreation (AR 00262 et seq); navigation (00262A); dam safety (AR 00271); and water quality (AR 00265). Further analysis of the 1975 EIS reveals that under the 1957 water contract, Texas was allowed to allocate the entire conservation pool, which could effectively draw the lake down to its minimal level of 800 feet msl. (AR 00261) Indeed, as the Court has already noted, Texas had the right under its 1957 water contract with the United States to draw the lake down to 800 feet msl. As counsel for GBRA conceded at the hearing in this matter, GBRA has enjoyed the right to essentially "drain the lake," both under the 1957 contract and the recently revised permit granted by TCEQ. This right and its potential impacts were analyzed in the 1975 EIS, which took into account a number of adverse environmental effects related to drawdowns, including exposure of litter, uncut trees, deprivation of shoreline aesthetics, unpleasant odors, decreased water quality, and biological impacts. (AR 00271) The EIS also notes that the lake levels "could not be completely controlled as they depend on water contracts and available rainfall." (AR 00270). The adequacy of the EA should not be evaluated without reference to the Corps' earlier environmental analyses in the context of its 1975 EIS, since those studies represent the agency's existing knowledge about many of the potential impacts that Plaintiff claims the Corps failed to evaluate.
Plaintiff also argues that Corps failed to analyze the cumulative impacts of increasing the seasonal pool elevation by one foot, criticizing the Corps' treatment of the issue as failing to take a "hard look" at the impact of the increase in the seasonal pool. However, the Corps made clear in its EA that it was currently conducting a study with several other relevant agencies about the potential creation of a seasonal pool, which the Corps characterized as a "reasonably foreseeable future action." (AR 00028) The Corps indicated that it did not yet have enough information to determine whether the seasonal pool would bring about significant adverse impacts. In spite of this lack of information, however, the Corps engaged in a discussion of the potential impacts in the EA, which belies Plaintiff's assertions that the Corps failed to analyze this cumulative impact. The EA stated that the seasonal pool would be the subject of a later EA to fully examine the environmental impacts of raising the pool by one foot. Thus, the Corps appears to have put all of the information available to it at the time into the discussion of the seasonal pool study. Further, the Corps indicated its intent to supplement the public record with fuller information pursuant to the joint study of the proposal upon completion of the study.
3. The Corps' Finding of No Significant Impact
The Court is mindful of the significant deference owed to the agency's decision in cases disputing the adequacy of an EA or a FONSI. The Court may not substitute its judgment for that of the agency. The Court is unable, on the facts and the administrative record before it, to determine that the Corps' assessment and FONSI were contrary to law. The Corps engaged in an informed discussion of numerous potential environmental consequences, a series of proposed alternatives, and the cumulative impacts of the proposed easement, its alternatives, and other foreseeable actions. The Corps' analysis spanned thirty pages, in spite of regulatory direction that fifteen pages is generally sufficient and that an EA can provide the required "hard look" at the potential environmental effects within twenty-five pages.
Spiller, 352 F.3d at 240, 244 n. 5; Sabine River, 951 F.2d at 678; Kleppe, 427 U.S. at 410 n. 21.
Texas Oil Gas Ass'n v. United States E.P.A., 161 F.3d 932, 933-34 (5th Cir. 1998).
Further, when viewed in light of the EIS that was before the Corps while it made its decision, the EA shows that the Corps had contemplated and documented a range of environmental impacts related to drawdowns of Canyon Lake. The "cumulative impact" regulation requires that the agency analyze the consequences to the environment resulting from the incremental impact of the grant of the easement when added to the other reasonably foreseeable actions. NEPA required the Corps to analyze the incremental impact of the easement, in the context of GBRA's increased water allotment and the potential for a seasonal pool. However, the cumulative impact requirement does not require that the Corps treat the increased allotment itself, its consequences, or the development of the seasonal pool as a direct effect of the grant of the easement to build the intake facility.
Public Citizen, 124 S. Ct. at 2216.
See id. at 2216-17.
See id.
Viewed in this light, the Court cannot find any basis upon which to support a determination that the Corps' finding of no significant impact was arbitrary and capricious or contrary to law. Demanding more of the Corps for the purposes of this EA would obliterate the distinction between an EIS and an EA, and is not supported by NEPA or its regulations. Further, to find the Corps' FONSI decision inadequate would require this Court to interject itself into the Corps' area of discretion, a clear violation of NEPA, the APA, and the case law decided thereunder. The Court is not allowed decide the question of whether it believes that the intake facility and the related actions will have a significant impact or even whether the Corps' finding was reasonable. Nor may the Court substitute its own judgment for that of the Army Corps of Engineers in finding no significant impact from the grant of the easement. On the facts before it, the Court thus concludes that the Corps' determination on the information before it was sufficient under the standards set out in NEPA and the APA and was not arbitrary, capricious, or otherwise contrary to law.
Kleppe, 427 U.S. at 410 n. 21.
Spiller, 2002 U.S. Dist. LEXIS at *15 (citing Marsh, 480 U.S. 360, and Sabine River, 951 F.2d at 677(abandoning "reasonableness" standard in response to Supreme Court's holding in Marsh).
Spiller, 352 F.3d at 240.
B. Claim that Supplemental EIS is Required
Agencies have a duty to gather and evaluate new information relevant to the environmental impacts of their actions, which continues even after issuance of an EIS. CEQ and Corps regulations require in relevant part that agencies prepare supplements to environmental impact statements if (i) "The agency makes substantial changes in the proposed action . . ." or (ii) "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." Agencies must supplement an existing EIS when the major Federal action or change will affect the quality of the human environment to a significant extent not already considered.
Association Concerned About Tomorrow, Inc. v. Dole, 610 F. Supp. 1101, 1112 (N.D. Tex. 1985).
40 C.F.R. § 1502.9(c)(1); 33 C.F.R. § 230.13(b) (requiring Corps to prepare SEIS when required under 40 C.F.R. § 1502.9(c)).
Marsh, 490 U.S. at 374.
In exercising their discretion whether to supplement an existing EIS because of new information, a principal factor agencies should consider is "the extent to which the new information presents a picture of likely environmental consequence associated with the proposed action not envisioned by the original EIS." The question before the agency is whether the new information alters the project's landscape so much that another "hard look" at the environmental consequences is necessary. An agency need not supplement an EIS whenever new information about a project comes to light or portions of the EIS become outdated — the agency is required to prepare a supplement only when significant new circumstances relevant to environmental concerns or bearing on the proposed action or its impacts arise.
Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987).
Marsh, 490 U.S. at 374; Froehlke, 816 F.2d at 210.
Coker v. Skidmore, 941 F.2d 1306, 1310 (5th Cir. 1991). Significance of the circumstances or information is to be judged on the basis of context and intensity. 40 C.F.R. § 1508.27.
Courts review an agency decision regarding the need for a supplemental EIS under the arbitrary and capricious standard. The decision whether to prepare an SEIS is highly factual, and should not be set aside unless clearly contrary to law. Under this narrow standard of review, the court may not weigh the evidence in the record, but must merely decide whether the agency considered the relevant factors in making its decision and whether there was a clear error of judgment. In determining whether an agency's action was arbitrary and capricious, a court should review the administrative record.
Id. at 374, 377.
State of Louisiana v. Verity, 853 F.2d 322, 326-27 (5th Cir. 1988) (quoting Motor Vehicles Mfrs. Ass'n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
Harris v. United States, 19 F.3d 1090, 1096 (5th Cir. 1994).
Review of the parties' pleadings reveals a dispute about the extent of the agency record relevant to this claim. Plaintiffs argue that the appropriate administrative record for its second claim comprises the appendices to its Motion for Summary Judgment, the 1975 EIS for Canyon Lake, as well as the administrative record for the intake facility EA. Defendants counter that the administrative record should only include the documents contained in the administrative record before it during the period leading up to its FONSI determination, and not the materials in the appendices to Plaintiffs motion, relying on its arguments it its Motion to Strike. Because of the Court's resolution of that issue above, the Court will consider those aspects of the appendices that truly support Plaintiff's second claim and disregard those relating solely to Plaintiff's first claim. Thus, the Court determines that the appropriate administrative record against which to judge the propriety of the Corps' action includes the record discussed in relation to Plaintiff's first claim together with the portions of the relevant appendices that allege significant new circumstances not covered in the 1975 EIS for Canyon Lake. 1. Changed Circumstances Alleged By Plaintiff
Attached to Plaintiff's Motion for Summary Judgment was a letter requesting the Corps prepare an SEIS, along with letters from experts supporting Friends' position on this issue. The experts' letters raised concerns related to water quality and shoreline vulnerability, and were forwarded to the Corps for consideration along with Friends' letter requesting an SEIS.
Plaintiff argues that the Corps must supplement the 1975 EIS regarding the maintenance and operation of Canyon Lake, pointing to circumstances that it alleges constitutes significant changes in the lake. Friends argues that the lake did not exist in its current form when the EIS was completed, and that public uses of the lake have greatly changed. Specifically, Friends argues that GBRA's increased allotment of water, leading to potentially higher withdrawals than in previous years and possibly to drawdowns in the level of the lake; the potential for better quality water to be withdrawn from the lake; and changes in wastewater discharge into the lake all constitute changed circumstances requiring a supplement to the 1975 EIS.
Defendants and Intervenor GBRA counter Plaintiff's claims, arguing that there are no significant new circumstances or information that presents an entirely different picture of the environmental situation. In its letter responding to Friends' request for a supplemental EIS, the Corps agreed with Friends that significant changes to the lake must be considered pursuant to NEPA. However, the Corps disagreed with Friends, arguing that grant of the easement to GBRA for construction of the intake facility represents neither a substantial change nor a significant new circumstance in the operation of Canyon Lake.
This letter is attached to Plaintiff's Motion for Summary Judgment (Docket No. 26) as Appendix D.
Plaintiff argues first that the potential increased drawdown of Canyon Lake's water is a significant new circumstance requiring an SEIS. Plaintiff maintains that the GBRA's increased allotment could not have been contemplated by the original 1975 EIS, and as such, must now be addressed in an SEIS. Plaintiff insists that the additional drawdown creates a seriously different picture of the landscape, requiring another "hard look" by the Corps.
As described above, the Corps considered the additional drawdown in the context of its EA for the GBRA intake facility easement and found that the lake will remain between 890 and 909 feet msl roughly half of the time, and would only fall below 890 feet msl in the event of a severe drought. (AR 00027, 00484) In the 1975 EIS, the Corps had found that the lake was anticipated to be below 909 feet msl 60 percent of the time, and that GBRA could draw the lake down to elevation 800 feet msl (virtually "draining" the lake). (AR 00336, 00348) In considering the increased drawdown, the Corps explicitly found that "GBRA's use of 90,000 acre feet for water supply, as granted under the Certificate of Adjudication [from the TCEQ], is in line with the aforementioned water storage contract." (AR 01083, tab 131) Thus, the Corps found based on its analysis of the facts before it that the additional withdrawals were not significant new circumstances or developments that would affect the human environment to a significant extent not already considered. The Corps had clearly considered drawdowns of the lake pursuant to GBRA withdrawals, both in the context of the 1975 EIS and in preparing the EA for the GBRA's intake facility. As a result, the Corps was correct in finding that it was not required to prepare an SEIS based on the drawdown associated with increased withdrawals, and its decision not to prepare a supplement was directly in line with NEPA's regulatory requirements.
Plaintiff also argues that the new withdrawals from Canyon Lake — and in particular the new method of withdrawal through the intake facility — constitute a significant new circumstance because they pose a threat to the water quality of the lake. Since GBRA withdrawals via the proposed intake facility will occur nearer the lake's surface, Plaintiff argues that the resulting water will significantly decline. In arguing this claim before the Corps, Plaintiff included the report of a water quality expert that supports this view. However, Defendant Corps points out that in addition to the intake existing in the dam which removes the lower-quality water near the bottom of the lake, there are also two intake structures on the lake that take water directly from the lake. (AR 00066) Further, GBRA points out that both the 1975 EIS and the 2002 EA specifically addressed the potential impact to water quality. The EIS specifically recognized that the 1957 water contract between GBRA and the United States granted GBRA the right to divert water directly from the lake from one or more points of diversion, without limitation as to the rate of withdrawal or level of the lake from which water was taken. The EIS also explicitly recognized potential impacts to the reservoir water itself, noting that withdrawal of the water nearer the surface would have the same impacts described by Plaintiff's water quality expert.
FEIS, Section 4.11 (AR 00352B (Article 8)).
The Corps has known since at least the completion of the 1975 EIS that impacts to water quality could result from GBRA's exercise of its right under the federal water contract could impact the water quality of Canyon Lake. The Corps explicitly recognized these potential impacts from 1975 to the present and included them in its 2002 environmental assessment. The EA discussed three different alternatives for the intake facility — one of which was not located on Corps' property — and specifically addressed the impacts to water quality associated with each. In this setting, the decision that potential impacts to water quality described by Plaintiff's expert were not significant new circumstances appears to be directly supported by the information in the administrative record. Indeed, the record shows that the potential for water quality impacts was not new at all — it was one that the Corps had contemplated and explicitly recognized since at least 1975. Thus, on these facts, there was no need for the Corps to prepare an SEIS, since the potential for water quality impacts was neither new nor of substantially graver consequence than those already contemplated and included in the record.
Plaintiff further argues that the Corps should prepare an SEIS because of the potential impacts of increased lake drawdowns on the recreational and developmental uses of Canyon Lake and that the Corps' failure to do so was arbitrary and capricious. Plaintiff also argues that the potential for increased drawdowns threatens the safety of the Canyon Dam, which is supported by Friends' expert in Appendix C to its motion for summary judgment. Friends argues that many of the recreational and navigational uses did not exist in 1975, so they could not have been considered in the original EIS. Plaintiff states that "Canyon Lake, as it is today, did not exist." Again, reference to the administrative record reveals that these uses were indeed existing and were specifically address in the 1975 EIS. Thus, the uses to which Plaintiff points were around prior to the preparation of the 1975 EIS, and the Corps considered them before Plaintiff's letter in July 2003 asked it to do so. For this reason, the decision of the Corps not to prepare an SEIS must be evaluated in light of the Corps' existing knowledge and the years of experience the Corps has had with day-to-day operations on Canyon Lake. Simply because the exact pattern of lake usage has not existed since 1975 does not mean that any change, no matter how small in the context of ongoing operations at the lake, will be deemed significant enough to require the Corps to prepare an SEIS.
Plaintiff's Resp. at 9 (Docket No. 30).
The 1975 EIS explicitly addressed the residential community (AR 00263); recreation (AR 00262 et seq); navigation (AR 00262A); and dam safety (AR 00265).
2. Corps' Decision Not to Prepare an SEIS
Particularly considering its limited role in determining whether the Corps acted arbitrarily or capriciously when it declined to prepare an SEIS, this Court can find no evidence that the Corps violated NEPA when it made this decision. The proposed easement and the various related impacts do not constitute changed circumstances not already considered sufficient to trigger the need for the Corps to take another "hard look" at the operation of Canyon Lake. In considering its decision, the Court finds that the information and arguments submitted by Plaintiff simply do not present evidence of a seriously different picture of the environmental landscape of Canyon Lake, requiring an SEIS. Simply because there is a possibility that the existing EIS is outdated in the context of recent development, without real evidence in the record supporting Plaintiff's assertions that substantially changed circumstances exist at Canyon Lake, the Corps is not in derogation of its NEPA duties for failing to supplement the 1975 EIS.
Froehlke, 816 F.2d at 210.
Coker, 941 F.2d at 1310.
The Court is aware that Plaintiff believes very strongly in its position and would have reached a different decision than the Corps had it been given the responsibility for maintaining Canyon Lake and making decisions about its operation, including the GBRA's new intake facility. Indeed, had this Court been vested with the obligation to operate and maintain the lake, it may have made a different decision or come to a different conclusion as well. However, neither scenario exists. This Court's only role here is to decide, pursuant to the standards in NEPA and the APA, whether the Corps' decision finding no significant environmental impact and decision not to issue a supplemental EIS for Canyon Lake were arbitrary and capricious. On the record before the Defendant agency, the Court is unable to say that the Corps acted in violation of these standards.
The Court is mindful of the truth that NEPA provides only procedural — and not substantive — rights. In the matter before the Court, Plaintiff is very much like the plaintiff in Spiller, supra, about which the Fifth Circuit noted:
They really don't want more process . . . What they really desire is a substantive result: convinced that it poses a great threat to the health and safety of its citizens and the environment in general, [the plaintiffs] want this project killed. Unfortunately for their case, and whatever merits of that position, this outcome cannot be secured in this federal court proceeding."
Spiller, 352 F.3d at 245.
Like in Spiller, the agency here has complied with NEPA. They conducted an assessment considering many factors and concluding that the effects from the grant of the easement were not significant. As the Fifth Circuit put it, "whether we agree or disagree with the conclusion, we cannot call it arbitrary and capricious. Accordingly, we have no ability to disturb it."
Id.