10th Circuit Upholds Army Corps Approval Of Colorado Water Storage Project
On November 5, 2018 the 10th Circuit Court of Appeals ruled in favor of the U.S. Army Corps of Engineers' approval to store more water in Colorado's Chatfield Reservoir. The Audubon Society had challenged the Corps' decision under the National Environmental Policy Act and the Clean Water Act, arguing that the Corps decision was arbitrary and capricious.
The project proposes to raise the water level in Chatfield Reservoir to store an additional 20,600 acre-feet of water, thereby flooding hundreds of acres of the adjacent Chatfield State Park.
NEPA Challenge
Of the 38 potential alternatives, the Corps conducted a detailed analysis of only four alternatives. They determined that most of the alternatives did not warrant further study. In addition to selecting the alternative of raising the water level in Chatfield by 12 feet, the Corps considered a no-action alternative in which water providers would use a combination of alternative storage facilities and groundwater to meet demand and an alternative that would raise the water level in Chatfield by only five feet.
The Audubon Society argued that the Corps should have analyzed a number of other alternatives that had been dismissed in initial stages. The court rejected these arguments, finding that the Corps had supplied sufficient reasons to reject these alternatives from the start.
CWA Challenge
The Audubon Society also argued that the Corps should have conducted a more searching Clean Water Act analysis related to the need to discharge dredged materials into regulated waters. Specifically, Audubon argued that under the Clean Water Act's "404(b) guidelines" the Corps should have analyzed a wider range of alternatives to the contemplated discharge. The Court recognized that the scope of analysis under this part of the regulations implementing the Clean Water Act is ambiguous, and gave deference to the Corps' interpretation of the...
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