Central Arizona Water Conservation District v. United States Army Corps of Engineers, No. 2:2018cv00724 - Document 23 (D. Ariz. 2018)
Court Description: ORDER denying 7 Motion for TRO. The parties are to confer and, within 7 days of the date of this order, submit either a proposed preliminary injunction briefing and hearing schedule or a status report indicating how the parties wish to proceed. Signed by Judge Douglas L Rayes on 3/15/2018. (MMO)
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Central Arizona Water Conservation District, 10 Plaintiff, 11 12 13 14 No. CV-18-00724-PHX-DLR ORDER v. United States Army Corps of Engineers, Defendant. 15 16 Before the Court is Plaintiff Central Arizona Water Conservation District’s 17 (“District”) motion for a temporary restraining order (TRO). (Doc. 7.) The motion is 18 fully briefed (Doc. 17) and the Court heard oral argument on March 9, 2018. At the 19 hearing, the Court denied the District’s motion and informed the parties that this written 20 order would follow. 21 I. Background 22 The Alamo Dam (“Dam”) is owned, operated, and maintained by Defendant 23 United States Army Corps of Engineers (“Corps”). The Dam is located between Alamo 24 Lake and the Bill Williams River. On March 2, 2018, the Corps issued an Environmental 25 Assessment (EA) and a Finding of No Significant Impact (FONSI) for the Alamo Dam 26 Flushing Release. The release, which is the first step in the Corps’ efforts to conduct 27 long overdue maintenance on the Dam, is intended to remove accumulated sediment from 28 the Dam and lower the water elevation in Lake Alamo so as to increase diver safety. The 1 proposed release is scheduled to last 19 days, starting at 8:00 a.m. on March 12, 2018. 2 The District owns and operates a water intake and pumping plant in Lake Havasu, 3 adjacent to the mouth of the Bill Williams River, approximately 39 miles downstream 4 from the Dam. Concerned that the Corps failed to take into account the environmental 5 impact of its release, specifically increased downstream turbidity, the District filed this 6 lawsuit on March 6, 2018, alleging violations of the National Environmental Policy Act 7 (NEPA).1 Concurrent with the complaint, the District filed the motion at issue, which 8 requests that the Court temporarily enjoin the Corps from initiating the scheduled release. 9 II. Legal Standard 10 The standard for issuing a TRO is identical to the standard for issuing a 11 preliminary injunction. Whitman v. Hawaiian Tug & Barge Corp./Young Bros., Ltd. 12 Salaried Pension Plan, 27 F. Supp. 2d 1225, 1228 (D. Haw. 1998). A plaintiff seeking a 13 TRO must establish that he is likely to succeed on the merits and to suffer irreparable 14 harm in the absence of preliminary relief, that the balance of equities tips in his favor, and 15 that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 16 U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 17 2009). These elements are balanced on a sliding scale, whereby a stronger showing of 18 one element may offset a weaker showing of another. See Alliance for the Wild Rockies 19 v. Cottrell, 632 F. 3d 1127, 1131, 1134-35 (9th Cir. 2011). The sliding-scale approach, 20 however, does not relieve the movant of the burden to satisfy all four prongs for the 21 issuance of a TRO. Id. at 1135. Instead, “‘serious questions going to the merits’ and a 22 balance of hardships that tips sharply towards the plaintiff can support issuance of a 23 [TRO], so long as the plaintiff also shows that there is a likelihood of irreparable injury 24 and that the [TRO] is in the public interest.” Id. at 1135. The movant bears the burden of 25 proof on each element of the test. Envtl. Council of Sacramento v. Slater, 184 F. Supp. 26 27 28 1 Turbidity is the cloudiness or haziness of water and is a key test of water quality. The metric for measuring turbidity levels is called nephelometric turbidity units (NTUs). According to the District, turbidity levels between 20 and 50 NTUs can require it to shut down its pumping plant. (Doc. 7 at 24.) -2- 1 2d 1016, 1027 (E.D. Cal. 2000). 2 III. Discussion 3 A. Likelihood of Success on the Merits 4 The purpose of NEPA is “to establish procedural mechanisms that compel 5 agencies, such as the Corps, to take seriously the potential environmental consequences 6 of a proposed action. [Courts] have termed this crucial evaluation a ‘hard look.’” Ocean 7 Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 864 (9th Cir. 2005) (citation 8 omitted). Under NEPA, a federal agency is required to prepare, “to the fullest extent 9 possible,” an environmental impact statement for “every . . . major Federal actio[n] 10 significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). 11 An agency, however, is not required to prepare a full Environmental Impact Statement 12 (EIS) if it determines, based on the EA, that the proposed action will not have a 13 significant impact on the environment. 40 C.F.R. §§ 1508.9(a), 1508.13. 14 Plaintiff’s primary contention is that the Corps’ failure to conduct an EIS was a 15 result of its arbitrary and capricious decision to limit the project area in the EA to the 16 mouth of the Bill Williams River and to not consider the effects of the release on Lake 17 Havasu. Specifically, the District contends that the Corps erred in its position that it need 18 not conduct a new EIS with respect to the Lake Havasu area because its effects “have 19 been previously evaluated in the 1999 EIS.” (Doc. 7-4 at 10.) The District challenges 20 the accuracy of this position and asserts that the proposed agency action is unlawful 21 because the Corps’ failed to consider its foreseeable effects. (Doc. 7 at 15-16.) 22 23 24 25 26 27 28 In support of its contention, the District cites to the 1999 EIS, which states in relevant part, Larger discharges into the Bill Williams River would result in substantial benefits to downstream riparian vegetation, while increasing turbidity and sedimentation within the river. Since these releases would be generally short term in nature and would mimic the natural conditions in the river before construction of Alamo Dam, this impact is not considered (Doc. 7-9 at 4.) The District argues the Corps’ reliance on the 1999 EIS is misplaced -3- 1 because the 1999 EIS did not expressly discuss the Lake Havasu area. In response, the 2 Corps contends that Lake Havasu is included in the term “downstream” because it is 3 located downstream from the Bill Williams River. (Doc. 17 at 18.) 4 Given the ambiguous language of the 1999 EIS, the District has raised some 5 questions going to the merits of its underlying claim, though the Court is not confident 6 that these questions are serious enough to support the issuance of a TRO. Regardless, 7 however, the District’s motion for a TRO is denied because it has not demonstrated a 8 likelihood of irreparable harm or that the balance of equities tips sharply in its favor. 9 B. Irreparable Harm 10 The District argues that the Corps’ planned release will significantly increase 11 turbidity at the intake for its pumping plant, and that the increased turbidity will persist 12 for a week or more. As a result, the District will face increased maintenance costs 13 stemming from pumping water with elevated turbidity. Additionally, when the turbidity 14 elevates beyond a certain threshold, the District will be forced to completely shut down 15 its plant until the elevated turbidity abates. (Doc. 7 at 23-24.) 16 The District’s concern over elevated turbidity levels is too speculative to support 17 the issuance of a TRO. In support of its claim, the District cites United States Geological 18 Survey (USGS) studies that document water releases from the Dam in the spring of 2005, 19 2006, and 2010. (Doc. 7-3 at 39, 45.) The 2005 release caused the District’s intake to 20 experience turbidity levels exceeding 20 NTUs, which persisted for significant periods of 21 time. The conditions of the 2005 release, however, were so unlike the conditions of the 22 Corps’ current proposed release that it offers little comparative value. For example, the 23 duration and velocity of the 2005 release far exceeded the Corps’ proposed release. The 24 2005 release flowed at a velocity ranging from 6,000-7,300 cubic feet per second (cfs) for 25 168 hours, whereas the Corps’ planned release peaks at 5,000 cfs for only 12 to 13 hours. 26 Additionally, in 2005 the conditions between the Dam and Lake Havasu were not 27 conducive to absorbing the water flow because of recent rainfall and earlier releases. 28 These same conditions do not exist here. -4- 1 Instead, the 2006 and 2010 releases offer better evidence of the likely result of the 2 Corps’ release. Much like the proposed release, the 2006 and 2010 releases confined 3 their peak flow to a shorter duration.2 Moreover, unlike the 2005 release, the conditions 4 between the Dam and Lake Havasu in 2006 and 2010 were better suited to absorb the 5 increased water flow. The result: the 2006 release did not cause excessive turbidity 6 increases and, although the 2010 release did, the elevated turbidity levels abated to a safe 7 level within a day or two.3 8 allegations of harm are too speculative. 9 For these reasons, the Court finds that the District’s C. Balance of the Equities 10 When balancing the equities, the Court “must balance the competing claims of 11 injury and must consider the effect on each party of the granting or withholding of the 12 requested relief.” Winter, 555 U.S. at 24 (citation omitted). Here, the balance of equities 13 tips in the Corps’ favor. 14 The Corps provided evidence that it would lose approximately $150,000 if the 15 scheduled release is enjoined. Moreover, if the TRO were granted and later dissolved 16 after a more thorough preliminary injunction hearing, the Corps likely would be required 17 to traverse the administrative approval process anew. Finally, given that dam 18 maintenance is already long overdue, further delays will perpetuate ongoing concerns 19 about dam integrity. When weighing the Corps’ concrete harms with the speculative 20 concerns of the District, the balance weighs in the Corps’ favor. Accordingly, 21 // 22 // 23 // 24 // 25 // 26 2 27 In 2010, the peak flow was 3,000 cfs for 36 hours. 3 28 The USGS placed turbidity measuring stations throughout Lake Havasu. Station 25 was located at the intake of the District’s pumping plant. The turbidity measurements discussed above correspond with those taken at station 25. -5- 1 IT IS ORDERED that the District’s motion for a TRO (Doc. 7) is DENIED. 2 Given that the Corps’ scheduled release is already underway, it appears likely that further 3 proceedings are moot. The parties are therefore ordered to confer and, within 7 days of 4 the date of this order, submit either a proposed preliminary injunction briefing and 5 hearing schedule or a status report indicating how the parties wish to proceed. 6 Dated this 15th day of March, 2018. 7 8 9 10 11 Douglas L. Rayes United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-
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