Professional Documents
Culture Documents
Original Complaint
INTRODUCTION
Ryser, Nathan Ryser, Wayne Ryser, H.D. “Thump” Witcher, Jr., Michael
connection with the issuance of a federal permit relating to the construction of the
“Lower Bois d’Arc Creek Reservoir” (the “Reservoir”) project in Fannin County,
Texas. Plaintiffs are all landowners who are dedicated to the protection and
preservation of Bois d’Arc Creek, and who will suffer significant adverse
and Col. Christopher A. Hussin, in his official capacity as Commander and District
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Engineer for the U.S. Army Corps of Engineers for the Tulsa District. The Corps
has authorized the Lower Bois d’Arc Creek Reservoir’s construction in violation of
their basic livelihood, as each plaintiff lives within the footprint of the proposed
project and will lose his or her property as a result of the Reservoir’s construction.
to § 404 of the Clean Water Act (“CWA”), authorizing dredge and fill activities
protected aquatic resources, including 4,602 acres of forested wetlands, 1,223 acres
219 acres of intermittent and ephemeral streams, and upland habitats. The
Reservoir is expected to cover 16,641 acres at its full conservation elevation. The
permit applicant for this enormous reservoir project is the North Texas Municipal
3. The Corps determined that the issuance of such a permit may have a
significant impact on the quality of the human environment and, therefore, required
a Draft EIS (“DEIS”), which was released to the public in February 2015. In light of
substantive agency and public comments, the Corps then decided to prepare a
Revised DEIS (“RDEIS”) in March 2017. The Final EIS (“FEIS”) was issued in
November 2017.
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4. Plaintiffs bring this challenge because the Corps’ authorization for the
Reservoir was made in violation of the CWA, the National Environmental Policy Act
5. Plaintiffs seek judicial review finding that the Corps violated the CWA
and NEPA when it issued the permit, as reflected in the January 29, 2018 Record of
Decision (“ROD”) and administrative record, and a court order vacating this
U.S.C. § 701 et seq. (“APA”), which authorizes a federal court to find unlawful and
set aside any final agency action that is “arbitrary and capricious, an abuse of
arises under 28 U.S.C. § 1331 (federal question jurisdiction) and § 2201 (declaratory
relief).
because it is the district in which the Plaintiffs reside and in which a “substantial
PARTIES
8. Plaintiff Dustin Knight lives at 1037 CR 2950, Dodd City, Texas 75438.
He has lived within a mile of the reservoir project his entire life. His land has been
used for farming since his granddad bought it in the 1950s. He continues to use this
land to this day, and the project would end his way of life on his property forever.
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9. Plaintiff Ronald Chad Knight lives at 489 CR 2950, Dodd City, Texas
75438. The land that will be taken for this project has been in his family for almost
70 years. He raises cattle on this land and the loss will effectively put him out of
business. He will not have enough land left to raise cattle, and all of his hay
production is in the bottomland that will be taken. He will also lose land to the
highway that is being put in as part of this project and will have to be subject to
10. Plaintiff Ronnie Knight owns and lives at 317 CR 290, Dodd City, TX
75438. His parents purchased this property in the early 1950s and began a dairy
farm on it. He began dairying with his dad in the middle 1960s and, in 1980, he
took over the dairy and continued until 2005. He has continued to raise dairy cattle
as a source of income and intended to leave this land to his kids to continue the
family legacy on the property. NTMWD will take 172 acres associated with this
project. Of that acreage, approximately 100 acres is used for hay production and the
rest is used for cattle grazing. A portion of the land used for grazing will also be
taken, leaving him with only about 45 acres for grazing. The hay land is the best
and most productive and provides the hay necessary to feed his cattle. He currently
runs about 70 cattle on the land; this will have to be reduced to a maximum of 25
head. The loss of grazing and hay production land will be devastating. Finally, there
are pecan trees on the land that will be taken along with a pool that provides the
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11. Plaintiff Wes Reed owns multiple properties with Joe Reed and Justin
Reed, including 702 CR 2955, Honey Grove, Texas 75446, and some adjoining
properties. His family has been in the cow-calf business for four to five generations.
If the project is constructed, they will have to cease their operations as it presently
exists. NTMWD will take the most productive portion of his property, which is
currently used to grow hay to feed their cattle. In 2005, an independent study was
conducted on the Reed Ranch along Bois d’Arc Creek. This study of the riparian
vegetation on the property, which was attached to comments on the draft EIS,
assessment undertaken by the Defendants’ consultant. Mr. Reed does not believe
that the Defendants or their consultant responded to these comments or this study.
12. Plaintiff Cathy Ryser lives at 4097 CR 2765, Honey Grove, Texas
75446. She is a 70-year old widow landowner who relies on leasing her very
productive bottomland farmland as her main source of income. The majority of her
farmland will be taken by NTMWD for this project, which will have a devastating
13. Plaintiff Nathan Ryser owns property at 602 Oak Street, Honey Grove,
Texas 75446. The project will affect him by taking over 1,300 acres of prime
farmland from his current operation. The fertile bottomland has been the
foundation of his operation for decades. The loss of land will cause a significant
reduction in the quality of crops raised and revenue generated by his farming
operation.
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Texas 75492. The project will affect him by taking over 1,300 acres of prime
farmland from Ryser Farms. He will be losing most of his childhood home place that
has been in the family since 1898. The loss of land will negatively impact him
15. Plaintiff H.D. “Thump” Witcher, Jr., owns land and lives at 972 CR
2705, Telephone, Texas 75488. The reservoir project will inundate all of his land
and his home. He has a small ranch that he operates on land that has been in his
family since 1960 and has 150 acres of farmland that has been in his family since
1920. He has just retired and his long-term plan was to have the ranch and farm
income as a supplement. The land is part of his legacy and he worked his entire life
to hold onto it. After working and planning for decades, he will now be forced to sell
his beloved land against his will. He feels as if the individual landowners who will
be impacted by the reservoir have been denied due process and their property rights
approximately 1,050 acres of land in six separate tracts in Fannin County, Texas, in
and around the proposed reservoir. Mr. Charles Yarbrough lives at 2325 CR 2765,
Honey Grove, Texas, 75446. Mr. John Yarbrough lives at 3576 CR 2765, Honey
Grove, Texas, 75446. The Yarbroughs’ six properties are within a few miles of each
other and they lie along Ward Creek, Allen’s Creek, and Honey Grove Creek, all of
which are tributaries of Bois d’Arc Creek. Land along these creeks will be inundated
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Yarbroughs’ land will be inundated by the reservoir at normal pool elevation. The
reservoir will remove all of their most fertile and productive hay meadows that
normally produce approximately 60% of their hay. Because hay is the main winter
feed for their cow herd, they will have to cut their herd back significantly or begin
fertilizing and fencing and hoping for sufficient rain to produce more forage on hill
land. Their income will be significantly affected by the reservoir’s construction and
operation. The Yarbroughs also harvest pecans. Most of their mature trees, some of
which were present dating back to the 1830s, are planted along the creeks. Pecan
trees grow best where they have a lot of water available in the soil profile. The
reservoir will inundate 204 of 266 of their native and grafted improved variety
pecan trees, 70 bearing age trees, and 134 young trees all grafted to improved
17. The Plaintiffs each have aesthetic, environmental, economic, and other
personal interests that will be adversely impacted by the proposed project and the
Defendants’ issuance of the permit to NTMWD. Plaintiffs have property that will be
project. Their ways of life and economic livelihoods will be significantly impacted, if
18. Plaintiffs have participated throughout the public NEPA and CWA
processes. Some or all of the Plaintiffs attended public meetings, commented for
purposes of the scoping report, commented on the draft and revised draft EISs, and
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commented on the FEIS. They have also regularly engaged with local officials and
state and federal agencies to understand the issues associated with the reservoir
project and to protest its approval. Many advocated for available alternatives to the
project or a configuration of the reservoir project that would have less impact on
aquatic resources.
federal law to issue permits and authorizations for activities involving dredge and
fill of waters of the United States upon satisfaction of certain conditions. It can be
Chief of Engineers of the U.S. Army Corps of Engineers at 441 G. Street NW,
capacity as the Commander and District Engineer for the U.S. Army Corps of
Engineers for the Tulsa District. He can be served at 2488 E. 81st Street, Tulsa,
Oklahoma 74137.
21. Congress enacted the CWA to “restore and maintain the chemical,
accomplish this goal, the CWA prohibits the discharge of any pollutant, including
dredged spoil or other fill material, into waters of the United States unless
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dredged or fill material into waters of the United States must be authorized under a
22. The Corps is authorized to issue two types of permits under Section
404: individual permits and general permits. The corps issues individuals permits
on a case-by-case basis. Id. § 1344(a). Individual permits are issued after a review
involving, among other things, site specific documentation and analysis, public
notice and opportunity for a hearing, public interest analysis, and formal
23. Section 404 permits are subject to the 404(b)(1) Guidelines (40 C.F.R.
Part 230). The purpose of these Guidelines is to restore and maintain the chemical,
physical, and biological integrity of waters of the United States. From a national
24. The Guidelines require that only the least environmentally damaging
practicable alternative may be pursued. Under the Section 404(b)(1) Guidelines, “no
alternative discharge which would have less adverse impact on the aquatic
ecosystem, so long as the alternative does not have other significant adverse
“it is available and capable of being done after taking into consideration cost,
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230.10(a)(2).
reflect the seriousness of the potential for adverse impacts on the aquatic
§ 230.10.
26. Section 404 permits are subject to mitigation. The requirements for
compensatory mitigation make clear that the “level of information and analysis
with the scope and scale of the proposed impacts requiring a DA permit, as well as
Corps’ guidance predating this rule also describe the requirements for mitigation for
earlier applications.
28. NEPA seeks to ensure that federal agencies take a “hard look” at
reaching its decision, will have available, and will carefully consider, detailed
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29. NEPA requires agencies to fully disclose all of the potential adverse
4332(C).
1500.1(b), 1502.24.
31. If an agency action has adverse effects that are significant, then these
EIS. The EIS must consider direct and indirect effects. The direct effects of an
action are those effects “which are caused by the action and occur at the same time
and place.” 40 C.F.R. § 1508.8(a). The indirect effects of an action are those effects
“which are caused by the action and are later in time or farther removed in
33. An agency must also analyze and address the cumulative impacts of a
any past, present, or future actions that are reasonably certain to occur.
execute a disclosure statement prepared by the lead agency specifying that the
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contractor has “no financial or other interest in the outcome of the project.” Id. The
lead agency has a responsibility to independently evaluate the EIS prior to its
approval and to take responsibility for its scope and contents. Id.
against agencies of the federal government acting under federal law. The Act
authorizes judicial review of a final agency action, and describes the scope of review.
36. The APA authorizes a reviewing court to “hold unlawful and set aside
706(a)(2).
37. Under the APA, courts “shall” “hold unlawful and set aside agency
FACTUAL BACKGROUND
I. PROCEDURAL HISTORY
for a Department of the Army Permit under Section 404 of the CWA to construct the
Regulatory Office. On July 1, 2008, NTMWD sent this report to the Corps. The
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Corps’ ORM database states that the application was received on July 8, 2008, and
39. The Corps determined that the issuance of a permit may have a
significant impact on the quality of the human environment and, therefore, required
40. The Corps released a DEIS to the public in February 2015. The public
and agency comment period for the DEIS extended for 60 days and closed on April
41. The Environmental Protection Agency (“EPA”) rated the DEIS as “3-
Inadequate.” This meant that the DEIS did not adequately assess the potentially
42. The Corps did not respond to the comments made on the DEIS.
43. In response to the issues raised during the DEIS comment period, the
Corps revised the DEIS and recirculated it for review in the form of the RDEIS.
This RDEIS, dated March 27, 2017, included one additional action alternative.
44. The FEIS was prepared and published for public comment in
November 2017.
prepare the FEIS. However, much of the content of the EIS was prepared by Freese
and Nichols, Inc., NTMWD’s engineering and consulting firm for the Reservoir
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project. In the FEIS, Freese and Nichols is listed as conducting thirty-three (33)
studies for the FEIS. They also drafted significant technical materials at
46. Plaintiffs in this action commented on the DEIS, RDEIS, and FEIS. In
their comments, Plaintiffs have repeatedly stated that the EISs were seriously
flawed and fell short of the legal requirements found in the CWA, NEPA, and
applicable regulations.
47. In 2008, NTMWD applied for a permit to build a new dam, reservoir,
and associated facilities in Fannin County, Texas, on Bois d’Arc Creek in the Red
48. In the FEIS, the Corps states the purpose and need of the action is to
“develop a new water supply to accommodate the project near-term and long-term
supply deficit within the NTMWD service area, including under drought and other
and reliable water supply of at least 105,804 AFY by 2025, including under drought
16,641 acre reservoir that would store 367,609 acre-feet of water. The reservoir
would produce an estimated firm yield of 120,665 AFY. The dam would be
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approximately 10,400 feet long and would be approximately 19.5 feet higher than
transmission pipeline from the reservoir site on Bois d’Arc Creek to a planned
52. Importantly, the Corps also analyzed a smaller reservoir project that
53. The downsized LBCR project, which would impact 9,390 acres at the
yield of water. If water from this smaller reservoir was blended with water from
Lake Texoma, then “it could meet the purpose and need” for the project. FEIS at 2-
28.
54. Water from the downsized LBCR project (Alternative 2) would be high
quality and would have an acceptable total dissolved solids concentration. The firm
yield of 86,100 AFY of water could be blended with 28,700 AFY of Lake Texoma
water with elevated TDS concentration at a ratio of three parts LBCR water to one
part Lake Texoma water, resulting in a combined reliable supply of 114,800 AFY.
55. The Corps did not analyze any other alternatives in detail in the FEIS.
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56. The ROD concluded that Alternative 1, the larger reservoir project,
was the only practicable alternative because it was the only alternative that met
both “the near term and long term purpose and need of the applicant.” ROD at 20.
57. The proposed Reservoir project would have significant adverse impacts
58. The overall footprint of the project consists of 17,068 acres for the dam
and reservoir on the Creek, including 16,641 acres of open water surface area and
427 acres for the dam embankment, spillway, and associated structures; 206 acres
for the proposed raw water pipeline; and 86 acres associated with the relocation of
59. In a scale rarely seen in Section 404 permits, the project would directly
impact 5,874 acres of forested, shrub, and emergent wetlands; 78 acres of open
60. The destruction of these acres of wetlands will result in significant loss
to wildlife habitat. The Texas Parks and Wildlife Department has classified Bois
percent of what existed 200 years ago. The U.S. Forest Service has identified Lower
Bois d’Arc Creek as the longest remaining un-impounded reach of the Red River
drainage system with this type of habitat. The loss of over 17,000 acres of land,
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including 5,874 acres of wetlands, would make this one of the single largest impacts
61. The EPA identified the bottomland hardwood forested wetlands in the
National Importance (ARNI). The EPA issued a letter to the Corps stated that this
water of the United States through wetland restoration and enhancement and
stream restoration and enhancement at nearby mitigation sites, Riverby Ranch and
the Upper Bois d’Arc Creek (BDC) mitigation site. NTMWD also proposed to
mitigate through the creation of the reservoir lake and the creation of emergent
tools that should not be used to assess wetland impacts in the Section 404
permitting context.
64. Also, the proposed plan fails to meet the requirements found in the
2008 Compensatory Mitigation Rule, the Tulsa District’s own 2004 Mitigation and
65. That is, in the DEIS, the proposed mitigation plan used a Habitat
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many individuals and state and federal agencies, the Corps eventually required a
66. The FEIS uses three separate assessment tools to evaluate the impacts
to and mitigation for aquatic resources: the Habitat Evaluation Procedure (HEP) to
assess terrestrial habitats and emergent and shrub wetland habitats (impacts
Method (Modified East Texas HGM) to assess the functions of forested wetlands
67. NTMWD’s mitigation plan seeks to mitigate for impacts to: 4,035
FCUs of forested wetlands; 514 HUs of emergent wetlands; 23 HUs of scrub shrub
NTMWD’s Revised Mitigation Plan, they would mitigate these impacts through the
creation or restoration of 4,675 FCUs for forested wetlands; 957 HUs for emergent
wetlands; 103.5 HUs for scrub shrub; 16,036 acres for open water; and 175,476
Revised Mitigation Plan incorporated in the RDEIS and FEIS provides for the
emergent wetlands, 98 acres of shrub wetlands, 50 acres of open water, and 263,957
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emergent wetlands, 150 acres of shrub wetland, and 128,668 linear feet of streams;
and the creation of 605 acres of littoral zone wetlands, 32,597 linear feet of stream,
and open water in the proposed reservoir. See FEIS, App. C, ES-5.
rules apply; and under all governing regulations, mitigation must be sufficient to
replace lost aquatic resource functions. Further, the methodology for mitigation
must be scientifically justifiable. The applicant NTMWD did not meet its burden
and the Corps acted arbitrarily in issuing a permit when mitigation regulations
waters of the United States. For this reason, the project should have been denied,
and the Corps acted arbitrarily when it issued the ROD approving the project and
record is clear that the Corps conducted an insufficient alternatives analysis, and
ultimately did not ensure that the least environmentally damaging practicable
72. Among other concerns, the overall project purpose was defined overly
narrowly to exclude viable alternatives that would have less impact on aquatic
available alternatives that would meet the project’s purpose and need statement.
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Alternative 2 exists, which also could satisfy the purpose and need of the project
and would be far less damaging, and have significantly fewer adverse impacts, to
the environment.
CAUSES OF ACTION
75. On April 10, 2008, the EPA and the Corps jointly promulgated
Compensatory Mitigation for Losses of Aquatic Resources; Final Rule, 73 Fed. Reg.
19,594 (Apr. 10, 2008) (“Compensatory Mitigation Rule”); 40 C.F.R. Part 230; 33
77. The Corps has erroneously stated that NTMWD’s Section 404 permit
application is not subject to the 2008 Compensatory Mitigation Rule because the
78. The FEIS states that NTMWD submitted an application to the Corps
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79. However, the application was incomplete. This application stated that
application that will be delivered to the Tulsa District Regulatory Office “in the
near future.” On July 1, 2008, NTMWD sent this Environmental Report to the
80. The Environmental Report that was submitted to the Corps on or after
C.F.R. § 325.1. Specifically, this Report, and not the application, discusses how
original permit application, regardless of when it was first received, was incomplete.
81. The Corps maintains a public database for all pending permits, issued,
(“ORM”). According to the ORM database, the application for the LBCR Section 404
permit was received on July 8, 2008 (i.e., after the effective date of the
Compensatory Mitigation Rule). The public notice was issued on October 14, 2008.
and memoranda that form the basis of the mitigation plan over the past eight years.
Due to alleged deficiencies in the mitigation plan submitted in support of its DEIS,
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83. It was arbitrary and capricious action for the Corps to determine that
the NTMWD application was submitted “before” the 2008 Rule, and it was arbitrary
and capricious action for the Corps to refuse to require that NTMWD’s mitigation
plan comply with the 2008 Compensatory Mitigation Rule, in clear contravention of
84. This error is not harmless. The 2008 Compensatory Mitigation Rule is
a touchstone of the Corps’ authority over Section 404 permits. The ROD, for
example, acknowledges that if the Compensatory Mitigation Rule did apply, the
This did not happen. Thus the FEIS, Revised Mitigation Plan, and ROD do not
85. Because NTMWD’s permit application was only complete after the
effective date of the Compensatory Mitigation Rule, the application must be subject
to this 2008 Rule. The Corps cannot allow an applicant to submit a placeholder
application for a new permit, before an effective date of new regulations, in order to
86. The Corps acted arbitrarily and capriciously, and abused its discretion,
when it failed to require NTMWD to comply with the Corps’ own regulations.
II. CAUSE OF ACTION NO. 2, UNDER APA & CLEAN WATER ACT:
ARBITRARY AND CAPRICIOUS MITIGATION PLAN.
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89. Under the 2008 Compensatory Mitigation Rule, the 2002 U.S. Army
Corps of Engineers Regulatory Guidance Letter, and the Tulsa District’s own
sufficient to replace lost aquatic resource functions. This is consistent with the
ultimate goal of the Clean Water Act, which is to restore and maintain the
90. Under the 404(b)(1) Guidelines, the “level of information and analysis
needed” for a mitigation plan “must be commensurate with the scope and scale of
the proposed impacts requiring a DA permit, as well as the functions lost as a result
91. The proposed permit has very significant impacts, including direct
impacts to 5,874 acres of forested, shrub, and emergent wetlands; 78 acres of open
waters; and 651,140 linear feet of streams. According to a review undertaken by the
Corps, the EPA, and the Institute for Water Resources, the total yearly average
wetlands impacts for all Section 404 permits nationwide is 13,338 acres. The
proposed permit application will impact approximately half the average number of
acres for all wetlands impacted nationwide on an annual basis. Thus, the “level of
92. The Revised Mitigation Plan incorporated in the FEIS and the ROD
fails to meet this high level of analysis and fails to comply with applicable
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93. As stated above, the Revised Mitigation Plan uses three separate
habitats and emergent and shrub wetland habitats; the Modified East Texas
forested wetlands; and the Rapid Geomorphic Assessment (RGA) to assess stream
quality.
mitigation.
mitigation make clear that mitigation must replace functional losses to aquatic
resources, including wetlands. The 2002 Guidance, for example, assumes that
functions and values across a broad range of categories, including physical (e.g.,
storage of surface water), chemical (e.g., removal of elements and compounds), and
biological (e.g., topography, depth of water, vegetation). See also 33 C.F.R. Part 332;
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2004 Tulsa District Guidance; 1990 Memorandum of Agreement between EPA and
the Department of the Army (calling for use of a functional assessment tool).
96. In the Revised Mitigation Plan prepared by Freese and Nichols, Inc.
and accepted by the Corps, the HEP methodology used for non-forested wetlands
specifically assesses impacts to wildlife habitat, but does not assess impacts of the
many functions and values that wetlands have. The HEP method simply abstracts
from one limited assessment of wildlife habitat to compensate for wildlife impacts to
specific indicator species of birds and mammals. The Mitigation Plan, therefore,
does not support a finding that the proposed compensatory mitigation will “replace
impacted wetlands.
97. After the DEIS was published, a number of federal and state resource
NTMWD use a functional assessment tool to assess impacts and mitigation for
consultants to develop the Modified East Texas HGM to assess six functions
98. The HEP methodology was developed by the U.S. Fish and Wildlife
an April 21, 2015 letter to NTMWD, the USFWS stated that HEP is not appropriate
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99. Other entities and individuals criticized the use of the HEP
methodology for this permit application, including the Texas Parks and Wildlife
Department and the EPA. The common thread throughout these comments was
that the HEP methodology does not assess the full suite of aquatic functions,
food webs through carbon processing, assessing chemical and nutrient uptake,
evaluate functional wetland losses and failed to reasonably quantify the actual
require a functional assessment tool for forested wetlands and to fail to require a
functional assessment tool for non-forested wetlands. Both resources offer valuable
physical, chemical, and biological functions. The justifications offered in the FEIS
(e.g., that a functional assessment was required for forested wetlands simply
because there were more forested wetlands than non-forested wetlands (see App. X
at 282)) are unreasonable, arbitrary, and fail in the light of clear regulatory
requirements.
capricious, and an abuse of discretion because the mitigation ratios are grossly
inadequate and the plan, therefore, fails to ensure that the environmental losses
will be mitigated.
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thousands of acres of wetlands and 651,140 linear feet of streams. The amount of
103. For example, the plan results in the following mitigation ratios (i.e.,
4.50 : 1.0 for shrub wetlands; 1.86 : 1.0 for emergent wetlands; and 0.94 : 1.0 for
streams. The plan also proposes less than a 1.0 : 1.0 mitigation ratio for impacts to
104. These ratios fall grossly short of those in the Tulsa District’s 2004
mitigation proposals that will successfully replace lost functions and the values of
risks against success, delays in achieving ecological function, and often are located
The guidelines provide for specific mitigation ratio floors and factors that increase
106. First, for wetlands, the Tulsa District states that it will typically
impacted aquatic resource . . . This is the base minimum, and this ratio may be
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107. This base minimum mitigation ratio is not met in the mitigation plan.
108. Second, mitigation for impacts to wetlands that are difficult to replace,
ratio.
109. The Reservoir project will impact 1,738 acres of bottomland hardwood
wetlands and 4,602 acres of forested wetlands. These are difficult to replace
wetlands, but the Corps is not requiring a higher minimum mitigation ratio.
110. Third, a minimum mitigation ratio of 1.0 : 1.0 is typically required for
streams.
111. This minimum mitigation ratio is not met in the mitigation plan.
112. Fourth, the Tulsa District states that it will consider the following
factors in evaluating plans to drive the required mitigation ratios upward from
these minimums: high biological diversity at the impact site (+50-100%); physical
complexity of the impact site (+20-50%); ecological uniqueness of the impact site
(+50%); time lag between construction impacts and completion of mitigation (+20%
reliance on preservation strategy (increase ratio to minimum 8:1); use of out of kind
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113. It could take twenty years for the forested wetlands to mature and
provide the wetland functions that form the basis of the proposed mitigation.
114. Nothing in the mitigation plan suggests that the Corps considered or
applied these factors to drive the mitigation ratios for purposes of developing and
115. An agency acts arbitrarily when it ignores its own rules. An agency is
not entitled to deference when its actions defy its own guidelines.
ratio of 1.5 replacement units for each unit of impacted forested wetlands; this ratio
should be higher due to impacts to wetlands that are difficult to replace; and this
these aquatic resources, the length of time required for functional maturity on the
mitigation site (approximately 20 years) and the time lag between construction
impacts and completion of mitigation, and the use of preservation and enhancement
for portions of the mitigation credit. According to the Corps’ own guidance, these
117. For these reasons, the Corps’ approval of the mitigation plan in the
FEIS and ROD is arbitrary, capricious, and an abuse of discretion. The plan fails to
even require a 1.0 : 1.0 ratio for stream impacts. The plan’s proposed mitigation for
wetland impacts is grossly inadequate and is in defiance of the Corps’ guidance and
regulatory requirements. The plan fails to ensure the “no net loss” of aquatic
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resource functions and fails to ensure that the significant environmental losses
III. CAUSE OF ACTION NO. 3, UNDER APA, NEPA, & CLEAN WATER
ACT: FAILURE TO ADEQUATELY CONSIDER REASONABLE
ALTERNATIVES.
the proposed action so that reviewers may evaluate their comparative merits.” 40
analysis is also required, because “no discharge of dredged or fill material shall be
adverse impact on the aquatic ecosystem, so long as the alternative does not have
seriousness of the potential for adverse impacts on the aquatic ecosystems posed by
specific dredged or fill material discharge activities.” 40 C.F.R. § 230.10; see also
Analysis Required for Evaluating Compliance with the Section 404(b)(1) Guideline
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posed by the Reservoir project, the 404(b)(1) compliance evaluation procedures must
be rigorously applied.
before it, and in violation of NEPA and the CWA in its alternatives analysis in the
FEIS and ROD, and in its failure to recognize the least damaging practicable
alternative.
evaluate the project’s compliance with the Section 404(b)(1) Guidelines. The Corps
defines the basic project purpose and the overall project purpose. The project
124. The Corps’ regulations state that the “Corps, will in all cases, exercise
independent judgment in defining the purpose and need for the project from both
the applicant’s and the public’s perspective.” 33 C.F.R. § 325 App. B § 9(c)(4).
125. It is a violation of NEPA and the APA to define the project’s purpose in
a way that limits consideration of reasonable alternatives. In such cases, the EIS
“cannot fulfill its role.” See Simmons v. United States Army Corps of Eng’rs, 120
126. In issuing the permit, the Corps did not consider all reasonable
alternatives to the proposed action. To the extent that it did consider alternatives,
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this consideration was unlawfully truncated, arbitrary, and one-sided. The project’s
127. In the FEIS, the Corps stated that the “purpose and need of the
projected near-term and long-term supply deficit within the NTMWD service area,
The Corps states that it “considers the overall project purpose to be developing an
additional and reliable water supply of at least 105,804 AFY by 2025, including
under drought and other reduced-availability situations.” Id. at 1-24. This is the
128. The basic project purpose is not water dependent. Thus, practicable
alternatives that do not involve special aquatic sites are “presumed to be available,
129. The Corps has defined the overall purpose of the action in terms of a
specific amount of water and a specific date by which that quantity of water is
justify project purpose, alternatives are considered and rejected simply because they
cannot meet the Applicant’s own unjustifiable demand projections by a specific date.
basic purpose and need for the project, but is rejected because it will not be ready,
according to the Applicant’s own consultant, until 2026. This is one year ‘too late’ to
meet the narrow overall project purpose. The Corps, therefore, concludes this
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alternative, which would have significantly less impact to aquatic resources, is not
practicable.
131. Neither NTMWD nor the Corps provides justification for this arbitrary
2025 date used in purpose and need statement and in the alternatives analysis.
supply of 49,051 AFY in the year 2020. If the project’s purpose and need statement
included meeting this near-term need deficit by 2020, no proposed alternative would
meet the project’s purpose. If a later date of 2030 was used to define the project
purpose, then many more sources would become readily available and practicable.
The 2025 date is arbitrary, too specific, and is used to exclude practicable
alternatives.
230.12(a)(3)(iii).
134. The Corps’ purpose and need statement is also arbitrary, capricious,
NTMWD’s supply and demand calculations that are unreliable, inflated (in terms of
“recommended reserve supply” that grows from 43,020 in 2020 to 66,540 in 2060.
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These reserve supply numbers inflated the Applicant’s purported supply needed.
136. This “recommended reserve supply” was not included in the DEIS for
this proposed action. It was plainly added in the RDEIS in order to arbitrarily and
artificially inflate the supply-demand gap in support of the purpose and need for the
project.
entire water supply system, but providing this supply through the Reservoir project
results in the impacts being borne by one local ecosystem that includes valuable
aquatic resources.
138. In other words, the reserve supply inflates the supply-demand gap,
artificially, though not actually, justifying the project’s purpose and need. Without
the inclusion of this reserve supply, other alternatives with less impact could be
practicable and available to NTMWD because less water is actually needed to meet
404 of the Clean Water Act and the 404(b)(1) Guidelines. See, e.g., 40 C.F.R. §
includes water districts seeking “reserve supplies” from sources that do not include
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evidence, abused its discretion, and failed to require compliance with the 404(b)(1)
reserve supply as part of the calculations that resulted in the purpose and need
statement. The Corps should be required to revise its purpose and need statement
supply.
141. The purpose and need statement includes a specific predicted deficit
within the NTMWD service area. The deficit projections are erroneous. More
accurate projections show that there is no actual supply deficit and no actual need
for the proposed project in 2025. Practicable alternatives exist that could meet
142. The DEIS used the 2011 Region C Water Plan as its source for
projected demands. The RDEIS and FEIS, however, rely on NTMWD’s own 2013
143. The Texas Water Development Board (TWDB), which creates the
Texas Regional Water Plans and the State Water Plans, requires that demand
calculations included in the regional water plans include certain assumptions (e.g.,
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and use other assumptions that fail to adhere to TWDB standards and which
increase their demand calculations. For example, the FEIS notes that TWDB staff
do not agree with NTMWD basing dry-year per capita demands on the highest per
capita use in recent years and then reducing these demands over time to reflect
145. Despite these comments, NTMWD elected to use the “highest per
capita water use between 2006 and 2011” when they calculated their demand
146. By the time the RDEIS was released, the 2016 Regional Water Plan for
Region C was available on the TWDB website. The projected demands for NTMWD
were significantly lower than those found in the RDEIS and FEIS: for 2020 alone,
NTMWD’s demand calculation exceeds that found in the Regional Water Plan by
50,401 AFY; for 2030, NTMWD’s demand calculation exceeds those in the Regional
Water Plan by 69,719 AFY; and for 2040, it exceeds it by 69,143 AFY.
147. If the 2016 Regional Water Plan demand calculations were used in the
FEIS, then no supply deficit would exist in 2020. And, more importantly, using
NTMWD’s own supply calculations, NTMWD would actually have enough supplies
148. The Corps’ supply and demand calculations are otherwise seriously
flawed because the NEPA documents understate the firm yield of Lake Lavon,
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understates the supply from Lake Tawakoni, and understates the supply available
information and to ensure the scientific integrity of the EIS analyses. 40 C.F.R. §§
1500.1(b), 1502.24. In this case, that means using available TWDB data, which is
less biased, relies on more reliable methodology, and is not artificially inflated
through the use of the highest per capita use between a five year period.
151. The Corps acted arbitrarily, capriciously, abused its discretion, and
contrary to the evidence before it, in violation of NEPA and the APA when it relied
demonstrate that this project, which will adversely impact thousands of acres of
alternatives analysis and the level of scrutiny required by the 404(b)(1) Guidelines
is commensurate with the severity of the environmental impact and the scope and
153. In its alternatives analysis, the Corps considers whether each proposed
alternative, as a single alternative to the proposed action, meets the purpose and
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need of the proposed action (i.e., whether the quantity of water available is at least
154. If two or three alternatives can be combined to satisfy the demand, and
adverse impact to the aquatic ecosystem, then that combination alternative strategy
155. For example, some combination of bridging efforts, including, but not
limited to, storing imported water in Lavon, using additional Tawakoni SRA water,
using a New Dallas Lake Fork Transport contract, temporarily overdrafting Lavon,
and altering the Texoma water blend ratio could meet near-term need until
additional larger sources become available in or around 2030 (e.g., Toledo Bend,
Toledo Bend with Lake Texoma Blending, Lake Lavon Reallocation, Lake Jim
capricious, and an abuse of discretion. The alternatives analysis should consider all
available water sources because the purpose of the project is to provide a specific
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IV. CAUSE OF ACTION NO. 4, UNDER APA & CLEAN WATER ACT:
FAILURE TO DENY THE PERMIT BECAUSE THERE IS A
PRACTICABLE ALTERNATIVE WHICH WOULD HAVE LESS
ADVERSE IMPACT.
158. Under the Section 404(b)(1) Guidelines, “no discharge of dredged or fill
would have less adverse impact on the aquatic ecosystem, so long as the alternative
230.10(a).
160. Corps’ guidance states that “[t]he mere fact that an alternative may
cost somewhat more does not necessarily mean it is not practicable.” “Guidelines for
Specification of Disposal Sites for Dredged or Fill Material,” 45 Fed. Reg. 85,336
(Dec. 24, 1980); see also § 230.5(c) (mandating that the Corps “examine practicable
alternatives to the proposed discharges, that is, not discharging into the waters of
the U.S. or discharging into an alternative aquatic site with potentially less
damaging alternatives”).
161. Where, as here, the discharge is proposed for a special aquatic site and
is not water dependent, “practicable alternatives that do not involve special aquatic
C.F.R. § 230.10(a)(3).
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do not involve a discharge into a special aquatic site are presumed to have less
Id.
163. The Corps’ regulations place a high bar on permit issuance for special
aquatic sites and for projects that are not water dependent. The regulations also
place a higher burden on the analysis needed for larger projects with greater
alternative that would have a less adverse impact on the aquatic ecosystem.
165. The downsized project would provide an estimated 86,100 AFY firm
yield and 114,800 AFY if blended with Lake Texoma water. This amount of water
meets NTMWD’s specific demand calculation of 105,804 AFY (including the 47,110
AF reserve supply).
166. The Corps dismisses this alternative simply because it would not
supply the requisite acre-feet of water by 2025. They state that the Alternate 2
167. The Corps acted arbitrarily, capriciously, abused its discretion, and
168. The Corps has arbitrarily defined the purpose and need statement to
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169. The Corps relies on a single study stating that the project will be
complete by 2026 instead of 2025. This study was prepared by NTMWD’s own
practicable alternative that will supply water exceeding NTMWD’s own demand
171. A study in 2015 concluded that water could be available from the
smaller reservoir by 2022 and that the TCEQ’s technical review of the project could
be delayed by one year. Another study in 2015 concluded water could be available
practicable alternative and the Corps has not sufficiently analyzed it or explained
why NTMWD could not bridge-the-gap of any water demand through other projects
unreasonable and arbitrary to assume that NTMWD can meet its demands in 2024,
but somehow cannot suddenly meet its demand in 2025 until Alternative 2 is
complete.
173. Further, as described, the actual demand in 2025 is much lower than
that calculated by NTMWD. The 120,665 AFY firm yield beginning around 2025
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174. The Corps’ list of reasons to dismiss Alternative 2 in the ROD are
175. Second, the Corps acted arbitrarily, capriciously, abused its discretion,
and contrary to the evidence before it when it failed to undertake further study to
project with less impact on aquatic resources (i.e., a smaller reservoir) could not be
177. Third, the Corps acted arbitrarily, capriciously, abused its discretion,
and contrary to the evidence when it dismissed other practicable alternatives from
located in the Sabine River Basin. It would provide 130,000 AFY beginning as soon
as 2030 and could provide 195,000 AFY if blended with Lake Texoma. Because it is
179. The DEIS, the State Water Plans, and Regional Water Plans indicate
180. The Corps rejects the Toledo Bend Reservoir because of higher capital
costs, greater long-term energy usage, and higher long-term operating costs.
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Additionally, the FEIS notes that the water could not be supplied by 2025 to meet
181. The rejection of Toledo Bend due to costs or long-term energy usage is
suggests that NTMWD will in fact pursue this supply strategy in the future. It is
183. As another example, the Corps improperly dismissed the use of partial
available and would have less adverse impact on the aquatic ecosystem. The cost
estimates that form the basis of dismissing this alternative from further
184. The Corps’ alternative analysis in the FEIS and ROD are
contrary to the evidence before the agency. The Corps’ analysis does not sufficiently
that are practicable and would have less adverse impact on the aquatic ecosystem,
Alternative 1 cannot and should not have been the recommended alternative and
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Plaintiffs respectfully request that this Court grant the following relief:
1. Declare that the permit issued by the United States Army Corps of
Engineers for the Lower Bois d’Arc Reservoir Project violates NEPA, CWA, their
2. Vacate the permit, and the underlying NEPA review, pending full
3. Retain jurisdiction over this matter to ensure that the Corps complies
5. Grant Plaintiffs such further and additional relief as the Court may
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