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Case 4:18-cv-00352-ALM Document 1 Filed 05/11/18 Page 1 of 44 PageID #: 1

IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

Dustin Knight; Ronald Chad Knight; §


Ronnie Knight; Wes Reed; Cathy Ryser; §
Nathan Ryser; Wayne Ryser; H.D. §
“Thump” Witcher, Jr.; Michael §
Yarbrough; and John E. Yarbrough, §
§
Plaintiffs, §
§
v. § Case No. _________________
§
U.S. Army Corps of Engineers; and Col. §
Christopher A. Hussin, in his Official §
Capacity as Commander and District §
Engineer for the U.S. Army Corps of §
Engineers for the Tulsa District, §
§
Defendants. §

Original Complaint

INTRODUCTION

1. Plaintiffs Dustin Knight, Ronald Chad Knight, Ronnie Knight, Cathy

Ryser, Nathan Ryser, Wayne Ryser, H.D. “Thump” Witcher, Jr., Michael

Yarbrough, and John E. Yarbrough (collectively “Plaintiffs”) bring this action in

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

consequences by the actions of defendants U.S. Army Corps of Engineers (“Corps”)

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

federal statutes. The construction and operation of the Reservoir, as authorized by

the Corps, threatens Plaintiffs’ environmental and economic well-being, as well as

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.

2. Specifically, on January 29, 2018, the Corps issued a permit, pursuant

to § 404 of the Clean Water Act (“CWA”), authorizing dredge and fill activities

needed to construct the Reservoir, which will significantly impact federally

protected aquatic resources, including 4,602 acres of forested wetlands, 1,223 acres

of emergent wetlands, 49 acres of scrub shrub wetlands, 78 acres of open waters,

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

Water District (“NTMWD”).

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

the preparation of an Environmental Impact Statement (“EIS”). The Corps prepared

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

(“NEPA”), and their governing regulations.

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

decision pending full compliance with the law.

JURISDICTION AND VENUE

6. This case states a claim under the Administrative Procedure Act, 5

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

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706. Jurisdiction

arises under 28 U.S.C. § 1331 (federal question jurisdiction) and § 2201 (declaratory

relief).

7. Venue in this district is appropriate under 28 U.S.C. § 1391(e)

because it is the district in which the Plaintiffs reside and in which a “substantial

part of the events or omissions giving rise to the claim occurred.”

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

zoning restrictions on the remainder of his land and homesites.

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

animals with water.

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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,

assessed these acres of vegetation as much higher quality compared to the

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

effect on her way of life.

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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14. Plaintiff Wayne Ryser owns property at 13909 E. FM 1396, Wisdom,

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

personally, financially, and emotionally.

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

have been ignored.

16. Plaintiffs Charles Michael Yarbrough and John E. Yarbrough own

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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by the construction of the reservoir. Approximately 250 to 300 acres of the

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

varieties. The reservoir will significantly reduce their future production.

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

taken by condemnation to facilitate the construction and operation of the reservoir

project. Their ways of life and economic livelihoods will be significantly impacted, if

not eliminated entirely, by this project.

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.

19. Defendant U.S. Army Corps of Engineers is a federal regulatory

agency that is organized under the U.S. Department of Defense. It is authorized by

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

served through Lieutenant General Todd. T. Semonite, Commanding General and

Chief of Engineers of the U.S. Army Corps of Engineers at 441 G. Street NW,

Washington, D.C. 20314.

20. Defendant Colonel Christopher A. Hussin is sued in his official

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.

STATUTORY AND REGULATORY BACKGROUND

I. THE CLEAN WATER ACT

21. Congress enacted the CWA to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To

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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authorized by a permit. Id. § 1311(a). Unless exempt by statute, all discharges of

dredged or fill material into waters of the United States must be authorized under a

permit issued by the Corps. Id. § 1344(a)–(e).

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

determination. 33 C.F.R. § 322.3; see generally 33 C.F.R. Parts 323, 325.

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

perspective, the “degradation or destruction of special aquatic sites, such as filling

operations in wetlands, is considered to be among the most severe environmental

impacts covered by [the] Guidelines.” 40 C.F.R. § 230.1(d).

24. The Guidelines require that only the least environmentally damaging

practicable alternative may be pursued. Under the Section 404(b)(1) Guidelines, “no

discharge of dredged or fill material shall be permitted if there is a practicable

alternative discharge which would have less adverse impact on the aquatic

ecosystem, so long as the alternative does not have other significant adverse

environmental consequences.” 40 C.F.R. § 230.10(a). An alternative is practicable if

“it is available and capable of being done after taking into consideration cost,

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existing technology, and logistics in light of overall project purposes.” 40 C.F.R. §

230.10(a)(2).

25. Similarly, the 404(b)(1) compliance evaluation procedures “vary to

reflect the 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.

26. Section 404 permits are subject to mitigation. The requirements for

compensatory mitigation make clear that the “level of information and analysis

needed to support” a watershed approach to mitigation “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 of those impacts.” 40 C.F.R. § 230.93(c)(3)(iii). The

2008 Compensatory Mitigation Rule provides requirements for mitigation. Other

Corps’ guidance predating this rule also describe the requirements for mitigation for

earlier applications.

II. THE NATIONAL ENVIRONMENTAL POLICY ACT

27. NEPA, 42 U.S.C. §§ 4231–4370f, is the “basic national charter for

protection of the environment.” 40 C.F.R. § 1500.1(a). It makes environmental

protection a part of the mandate of every federal agency. 42 U.S.C. § 4332(1).

28. NEPA seeks to ensure that federal agencies take a “hard look” at

environmental issues. One of its primary purposes is to ensure that an agency, in

reaching its decision, will have available, and will carefully consider, detailed

information concerning significant environmental impacts.

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29. NEPA requires agencies to fully disclose all of the potential adverse

environmental impacts of its decisions before deciding to proceed. 42 U.S.C. §

4332(C).

30. NEPA requires agencies to use high quality, accurate scientific

information and to ensure the scientific integrity of the analysis. 40 C.F.R. §§

1500.1(b), 1502.24.

31. If an agency action has adverse effects that are significant, then these

effects must be analyzed in an environmental impact statement. 40 C.F.R. § 1501.4.

32. NEPA’s governing regulations define what “range of action,

alternatives, and impacts [must] be considered in an environmental impact

statement.” 40 C.F.R. § 1508.25. This is part of what is known as the “scope” of an

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

distance, but are still reasonably foreseeable.” 40 C.F.R. § 1508.8(b).

33. An agency must also analyze and address the cumulative impacts of a

proposed project. 40 C.F.R. § 1508.25(c)(3). Cumulative impacts are the result of

any past, present, or future actions that are reasonably certain to occur.

34. Federal regulations require that any EIS be prepared directly by or by

a contractor selected by the lead agency. 40 C.F.R. § 1506.5(c). Contractors must

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.

III. THE ADMINISTRATIVE PROCEDURE ACT

35. The Administrative Procedure Act (APA) creates a cause of action

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.

See 5 U.S.C. §§ 701-706.

36. The APA authorizes a reviewing court to “hold unlawful and set aside

agency action, findings, and conclusions found to be—(A) arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law . . .” 5 U.S.C. §

706(a)(2).

37. Under the APA, courts “shall” “hold unlawful and set aside agency

action” that is found to be arbitrary or capricious. 5 U.S.C. § 706(2)(A).

FACTUAL BACKGROUND

I. PROCEDURAL HISTORY

38. On June 3, 2008, the North Texas Municipal Water District

(“NTMWD”) submitted an incomplete application to the Tulsa District of the Corps

for a Department of the Army Permit under Section 404 of the CWA to construct the

Reservoir. In this application, NTMWD stated that it was currently completing an

Environmental Report that would be subsequently delivered to the Tulsa District

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

public notice was issued on October 14, 2008.

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

the preparation of an EIS.

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

21, 2015. Nearly 600 comments were received on the DEIS.

41. The Environmental Protection Agency (“EPA”) rated the DEIS as “3-

Inadequate.” This meant that the DEIS did not adequately assess the potentially

significant environmental impacts of the proposal or the reviewer has identified

reasonably available alternatives that should be analyzed to reduce the potentially

significant environmental impacts.

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.

45. The Corps selected Solv LLC as a third-party contractor to help

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

Appendices C, D, E, G, I, J, M, Q, and R found in Volume 2 of the FEIS.

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.

II. THE PROPOSED PROJECT

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

River Basin, approximately 15 miles northeast of the City of Bonham.

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

reduced-availability situations.” FEIS at 1-23. The “overall project purpose,” which

is used to identify and assess practicable alternatives, is to develop “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.

49. To meet this alleged need, NTMWD proposed the construction of a

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

the conservation pool of the reservoir.

50. The project would also include construction of a raw water

transmission pipeline from the reservoir site on Bois d’Arc Creek to a planned

North WTP near Leonard, Texas.

51. This larger reservoir project was analyzed as “Alternative 1” in the

RDEIS and FEIS, and it was NTMWD’s preferred alternative.

52. Importantly, the Corps also analyzed a smaller reservoir project that

would be supplemented with water from Lake Texoma as “Alternative 2” in the

RDEIS and FEIS.

53. The downsized LBCR project, which would impact 9,390 acres at the

same LBCR site as Alternative 1, would result in an estimated 86,100-AFY firm

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.

III. IMPACTS TO AQUATIC RESOURCES AND FAILURE TO SELECT


THE LEAST DAMAGING PRACTICABLE ALTERNATIVE

57. The proposed Reservoir project would have significant adverse impacts

on the environment. These impacts will not be sufficiently mitigated by NTMWD.

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

FM 1396 outside of the reservoir footprint.

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

waters; and 651,140 linear feet of streams.

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

d’Arc Creek as possessing significant biological and hydrologic functions.

Nationwide, the overall area of bottomland hardwoods has been reduced to 40

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

to aquatic resources within Texas.

61. The EPA identified the bottomland hardwood forested wetlands in the

project area as a diminishing habitat in the region and as an Aquatic Resource of

National Importance (ARNI). The EPA issued a letter to the Corps stated that this

project “will effect” these resources of national importance.

62. NTMWD proposed to mitigate for unavoidable adverse impacts to the

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

wetlands in shallow areas around the lake.

63. However, the proposed mitigation plan arbitrarily relies on assessment

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

Monitoring Guidelines, and the Corps’ 2002 Mitigation Guidelines.

65. That is, in the DEIS, the proposed mitigation plan used a Habitat

Evaluation Procedure (HEP), instead of a hydrogeomorphic functional assessment

method, to evaluate losses to all wetlands. In response to critical comments from

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many individuals and state and federal agencies, the Corps eventually required a

functional assessment for a subset of wetlands in the RDEIS and FEIS.

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

measured in “Habitat Units” or “HUs”); the Modified East Texas Hydrogeomorphic

Method (Modified East Texas HGM) to assess the functions of forested wetlands

(impacts measured in “Functional Capacity Units” or “FCUs”); and the Rapid

Geomorphic Assessment (RGA) to assess stream quality (impacts measured in

“Stream Quality Units” or “SQUs”). See FEIS at 2-38.

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

wetlands; 78 acres of open water; and 192,377 SQUs of streams. According to

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

SQUs for streams.

68. In terms of acres of aquatic resources impacted and mitigated, the

Revised Mitigation Plan incorporated in the RDEIS and FEIS provides for the

enhancement and/or protection of 1,026 acres of forested wetlands, 1,377 acres of

emergent wetlands, 98 acres of shrub wetlands, 50 acres of open water, and 263,957

feet of streams; restoration of 4,775 acres of forested wetlands, 1,100 acres of

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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.

69. As described below in Causes of Action 1 and 2, pivotal mitigation

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

were not satisfied.

70. Due to these and other inadequacies with NTMWD’s revised

mitigation plan, the project will cause or contribute to significant degradation of

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

the mitigation plan.

71. Additionally, as described below in Causes of Action 3 and 4, the

record is clear that the Corps conducted an insufficient alternatives analysis, and

ultimately did not ensure that the least environmentally damaging practicable

alternative was selected.

72. Among other concerns, the overall project purpose was defined overly

narrowly to exclude viable alternatives that would have less impact on aquatic

resources. Additionally, the Corps failed to adequately consider combinations of

available alternatives that would meet the project’s purpose and need statement.

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73. The administrative record reveals that, at a minimum, so-called

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

I. CAUSE OF ACTION NO. 1, UNDER APA, NEPA, & CLEAN WATER


ACT: FAILURE TO COMPLY WITH THE 2008 COMPENSATORY
MITIGATION RULE.

74. Plaintiffs hereby allege, incorporate, and restate all previous

paragraphs of this Complaint.

75. On April 10, 2008, the EPA and the Corps jointly promulgated

regulations revising and clarifying the requirements regarding compensatory

mitigation. See Dep’t of Defense & Environmental Protection Agency,

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

C.F.R. Part 332.

76. The effective date of the rules is June 9, 2008.

77. The Corps has erroneously stated that NTMWD’s Section 404 permit

application is not subject to the 2008 Compensatory Mitigation Rule because the

application was submitted prior to the implementation of the rule.

78. The FEIS states that NTMWD submitted an application to the Corps

for its permit on June 3, 2008. FEIS at 1-1.

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79. However, the application was incomplete. This application stated that

“NTMWD is in the process of completing an Environmental Report supporting this

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

USACE. This Environmental Report is referenced throughout the RDEIS, FEIS,

and Revised Mitigation Plan.

80. The Environmental Report that was submitted to the Corps on or after

July 1, 2008, contained information necessary for a complete application. See 33

C.F.R. § 325.1. Specifically, this Report, and not the application, discusses how

impacts would be avoided, minimized, or mitigated. Without this information, the

original permit application, regardless of when it was first received, was incomplete.

81. The Corps maintains a public database for all pending permits, issued,

permits, and jurisdictional determinations entitled the OMBIL Regulatory Module

(“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.

82. Additionally, NTMWD continued to submit multiple technical reports

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,

NTMWD revised its plan to include a modified East Texas Hydrogeomorphic

Method to assess the functions of forested wetlands.

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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

Corps and EPA regulations.

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

applicant would have had to provide an avoidance and minimization statement.

This did not happen. Thus the FEIS, Revised Mitigation Plan, and ROD do not

comply with the Corps’ regulations governing compensatory mitigation.

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

avoid new regulatory requirements.

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.

87. Plaintiffs hereby allege, incorporate, and restate all previous

paragraphs of this Complaint.

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88. The regulations governing compensatory mitigation implement the

national policy for “no overall net loss” of wetlands.

89. Under the 2008 Compensatory Mitigation Rule, the 2002 U.S. Army

Corps of Engineers Regulatory Guidance Letter, and the Tulsa District’s own

Aquatic Resource Mitigation and Monitoring Guidelines (2004), mitigation must be

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

chemical, physical, and biological integrity of the nation’s water.

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

of those impacts.” 40 C.F.R. § 230.93(c)(3)(iii).

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

information and analysis” required is commensurately significant.

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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regulations and guidance documents.

A. The Corps’ use of the Habitat Evaluation Procedure (HEP) for


non-forested wetlands is unjustifiable, arbitrary and
capricious, and an abuse of discretion.

93. As stated above, the Revised Mitigation Plan uses three separate

assessment tools: the Habitat Evaluation Procedure (HEP) to assess terrestrial

habitats and emergent and shrub wetland habitats; the Modified East Texas

Hydrogeomorphic Method (Modified East Texas HGM) to assess the functions of

forested wetlands; and the Rapid Geomorphic Assessment (RGA) to assess stream

quality.

94. The use of HEP for non-forested wetlands is scientifically unjustifiable,

arbitrary, and insufficient to comply with regulations governing compensatory

mitigation.

95. Applicable regulations and guidance documents for compensatory

mitigation make clear that mitigation must replace functional losses to aquatic

resources, including wetlands. The 2002 Guidance, for example, assumes that

functional capacity units will be determined by a hydrogeomorphic assessment

methodology in order to offset the loss of environmental functions.

Hydrogeomorphic assessment methodologies typically measure wetland ecosystem

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

functional losses”—including physical, chemical, and biological losses—to the

impacted wetlands.

97. After the DEIS was published, a number of federal and state resource

agencies, along with non-governmental entities and individuals, requested that

NTMWD use a functional assessment tool to assess impacts and mitigation for

wetlands. In recognition of the mitigation plan’s deficiencies, NTMWD worked with

consultants to develop the Modified East Texas HGM to assess six functions

associated with forested wetlands. However, no such functional assessment

methodology was developed and/or applied to the non-forested wetlands.

98. The HEP methodology was developed by the U.S. Fish and Wildlife

Service (USFWS) as a basic tool to evaluate project impacts to wildlife habitat. In

an April 21, 2015 letter to NTMWD, the USFWS stated that HEP is not appropriate

to assess impacts to wetlands in the Section 404 permitting context.

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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,

including removing pollutants, storing water, maintaining stream flows, supporting

food webs through carbon processing, assessing chemical and nutrient uptake,

erosion control, water quality filtration, etc. This methodology is insufficient to

evaluate functional wetland losses and failed to reasonably quantify the actual

impacts to these important aquatic resources.

100. It is arbitrary and capricious, or an abuse of discretion, for the Corps to

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.

B. The proposed amount of mitigation is legally insufficient.

101. The Corps’ approval of the Revised Mitigation Plan is arbitrary,

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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102. As described above, the Reservoir project will directly impact

thousands of acres of wetlands and 651,140 linear feet of streams. The amount of

mitigation proposed to offset these losses is insufficient.

103. For example, the plan results in the following mitigation ratios (i.e.,

replacement FCUs/HUs : impacted FCUs/HUs): 1.16 : 1.0 for forested wetlands;

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

several terrestrial resources. See generally FEIS, App. C at ES-6.

104. These ratios fall grossly short of those in the Tulsa District’s 2004

Mitigation and Monitoring Guidelines. These Guidelines were developed to ensure

that permit applicants provided appropriate, viable, adequate, and practicable

mitigation proposals that will successfully replace lost functions and the values of

the aquatic ecosystem.

105. These guidelines recognize that mitigation activities “have inherent

risks against success, delays in achieving ecological function, and often are located

in a position where the entire suite of functions cannot be replicated. Therefore,

one-for-one mitigation is rarely acceptable.” See 2004 Tulsa District Guidelines at 7.

The guidelines provide for specific mitigation ratio floors and factors that increase

these required mitigation ratios.

106. First, for wetlands, the Tulsa District states that it will typically

require a “minimum mitigation ratio of 1.5 replacement acres to 1.0 acre of

impacted aquatic resource . . . This is the base minimum, and this ratio may be

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increased based on the USACE consideration of factors relevant to a specific

mitigation proposal.” Id. at 7.

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,

such as mature bottomland hardwood wetlands, have a higher minimum mitigation

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

(+50-100%); length of time necessary to achieve functional maturity at the

mitigation site (+20-300%); situating the mitigation site in a different watershed

(+50%); time lag between construction impacts and completion of mitigation (+20%

for each year); reliance on enhancement as opposed to restoration (+20-50%);

reliance on preservation strategy (increase ratio to minimum 8:1); use of out of kind

mitigation for impacts (+100%).

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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

approving the mitigation plan for this project.

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.

116. Based on Corps’ guidance, there should be a base minimum mitigation

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

mitigation ratio should be corrected upwards due to the ecological significance of

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

factors could easily require the ratio to be increased by 400-500%.

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

associated with this project will be mitigated.

III. CAUSE OF ACTION NO. 3, UNDER APA, NEPA, & CLEAN WATER
ACT: FAILURE TO ADEQUATELY CONSIDER REASONABLE
ALTERNATIVES.

118. Plaintiffs hereby allege, incorporate, and restate all previous

paragraphs of this Complaint.

119. Under NEPA, the alternatives analysis is the “heart of the

environmental impact statement.” 40 C.F.R. § 1502.14. Agencies are required to

“[r]igorously explore and objectively evaluate all reasonable alternatives” and

“[d]evote substantial treatment to each alternative considered in detail including

the proposed action so that reviewers may evaluate their comparative merits.” 40

C.F.R. § 1502.14(a), (b).

120. Under the Section 404(b)(1) Guidelines of the CWA, an alternatives

analysis is also required, because “no discharge of dredged or fill material shall be

permitted if there is a practicable alternative discharge which would have less

adverse impact on the aquatic ecosystem, so long as the alternative does not have

other significant adverse environmental consequences.” 40 C.F.R. § 230.10(a).

121. The 404(b)(1) compliance evaluation procedures “vary to reflect the

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

EPA/USACE Memorandum to the Field Concerning the Appropriate Level of

Analysis Required for Evaluating Compliance with the Section 404(b)(1) Guideline

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Alternatives Requirements (1993). Given the seriousness of the adverse impacts

posed by the Reservoir project, the 404(b)(1) compliance evaluation procedures must

be rigorously applied.

122. The Corps acted arbitrarily, capriciously, contrary to the evidence

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.

A. The Corps defined the project’s overall purpose too narrowly,


illegally eliminating practicable alternatives.

123. Defining the purpose of a project is critical to enable the Corps to

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

purpose is used to identify and assess practicable alternatives.

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

F.3d 664, 666 (7th Cir. 1997).

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

purpose and need statement represents results-oriented decisionmaking.

127. In the FEIS, the Corps stated that the “purpose and need of the

proposed federal action is to develop a new water supply to accommodate the

projected near-term and long-term supply deficit within the NTMWD service area,

including under drought and other reduced-availability situations.” FEIS at 1-23.

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

same statement found in the RDEIS.

128. The basic project purpose is not water dependent. Thus, practicable

alternatives that do not involve special aquatic sites are “presumed to be available,

unless clearly demonstrated otherwise.” 40 C.F.R. § 230.10(a)(3).

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

needed. Through the adoption of an overly narrow, specific, and more-difficult-to-

justify project purpose, alternatives are considered and rejected simply because they

cannot meet the Applicant’s own unjustifiable demand projections by a specific date.

130. Importantly, Alternative 2—the smaller reservoir project—meets the

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.

132. According to NTMWD’s own calculations, they “need” an additional

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.

B. The Corps’ inclusion of a “recommended reserve supply” is


unjustified, speculative, and inconsistent with the 404(b)(1)
regulatory requirements.

133. A proposed discharge must “include all appropriate and practicable

measures to minimize potential harm to the aquatic ecosystem.” 40 C.F.R. §

230.12(a)(3)(iii).

134. The Corps’ purpose and need statement is also arbitrary, capricious,

inconsistent with the evidence, and an abuse of discretion because it relies on

NTMWD’s supply and demand calculations that are unreliable, inflated (in terms of

demand), and include a system-wide reserve supply.

135. NTMWD’s summary of the supply and demand calculations include a

“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.

137. The “reserve supply” appears to address potential risks to NTMWD’s

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

the near- and long-term needs.

139. Increasing significant and adverse impacts to aquatic resources in

order to create a non-mandatory “reserve supply” is prohibited given the

requirement to “avoid and minimize” impacts to aquatic resources under Section

404 of the Clean Water Act and the 404(b)(1) Guidelines. See, e.g., 40 C.F.R. §

230.12(a)(3)(iii). Avoiding and minimizing impacts to aquatic resources necessarily

includes water districts seeking “reserve supplies” from sources that do not include

the destruction of thousands of acres of wetlands.

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140. The Corps acted arbitrarily, capriciously, inconsistent with the

evidence, abused its discretion, and failed to require compliance with the 404(b)(1)

Guidelines when it allowed the Applicant to include a non-mandatory, system-wide

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

and undertaken an alternatives analysis without the inclusion of this reserve

supply.

C. The FEIS’ supply-demand calculations are arbitrary,


capricious, an abuse of discretion, and represent a clear error
of judgment.

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

future need without the Reservoir project at all.

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

Capital Improvement Plan.

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.,

regional population must be held constant).

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144. In its Capital Improvement Plan, NTMWD reject these assumptions

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

savings from low-flow water fixtures.

145. Despite these comments, NTMWD elected to use the “highest per

capita water use between 2006 and 2011” when they calculated their demand

projections. Consequently, these calculations are unreliable and inflated.

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

without this project to meet its 2025 demand.

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

from Lake Texoma.

149. NEPA requires agencies to use high quality, accurate scientific

information and to ensure the scientific integrity of the EIS analyses. 40 C.F.R. §§

1500.1(b), 1502.24. The TWDB

150. NEPA requires agencies to use high quality, accurate scientific

information and to ensure the scientific integrity of the analysis. 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

on NTMWD’s water supply and demand calculations. More accurate projections

demonstrate that this project, which will adversely impact thousands of acres of

wetlands, should not be approved because there is no water-deficit need in 2025.

D. The Corps failed to analyze combinations of alternatives that


would meet the proposed action’s purpose.

152. As noted above, the amount and detail of information in an

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

cost of the project.

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

105,804 AFY and is available by 2025).

154. If two or three alternatives can be combined to satisfy the demand, and

the combination of these alternatives is reasonable, practicable, and results in less

adverse impact to the aquatic ecosystem, then that combination alternative strategy

would be required under the 404(b)(1) Guidelines.

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

Chapman Reallocation, desalination, George Parkhouse Lake South, and/or the

Marvin Nichols Reservoir).

156. Here, the Corps failed to include analyses of combinations of

alternatives and/or combinations of other water management strategies that could

cumulatively meet NTMWD’s future water demands.

157. This failure to consider combinations of alternatives is arbitrary,

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

quantity of water sufficient to meet NTMWD’s needs.

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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

material shall be permitted if there is a practicable alternative discharge which

would have less adverse impact on the aquatic ecosystem, so long as the alternative

does not have other significant adverse environmental consequences.” 40 C.F.R. §

230.10(a).

159. This requirement is sometimes referred to as the Least

Environmentally Damaging Practicable Alternative (the “LEDPA”). The Corps

cannot issue a permit for an alternative if it is not the LEDPA.

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

sites are presumed to be available, unless clearly demonstrated otherwise.” 40

C.F.R. § 230.10(a)(3).

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162. Further, “all practicable alternatives to the proposed discharge which

do not involve a discharge into a special aquatic site are presumed to have less

adverse impact on the aquatic ecosystem, unless clearly demonstrated otherwise.”

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

environmental impacts. The Corps has not met its burden.

164. First, the smaller reservoir project (Alternative 2) is a practicable

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

project would not be complete until 2026.

167. The Corps acted arbitrarily, capriciously, abused its discretion, and

contrary to the evidence before it when it dismissed this alternative.

168. The Corps has arbitrarily defined the purpose and need statement to

specifically exclude Alternative 2.

40
Case 4:18-cv-00352-ALM Document 1 Filed 05/11/18 Page 41 of 44 PageID #: 41

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

lawyers, Mr. Martin C. Rochelle and Ms. Sara R. Thornton.

170. This estimated one-year difference somehow justifies excluding a

practicable alternative that will supply water exceeding NTMWD’s own demand

calculation and justifies the destruction of an additional 8,000 acres, including

1,500 additional acres of forested wetlands, an additional 600 acres of emergent

wetlands, and 22 acres of additional shrub wetlands.

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

from the smaller reservoir project by 2025.

172. Even if the project would not be completed until 2026, it is a

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

or water management strategies. Based on the evidence in the record, it is

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

significantly exceeds NTMWD’s actual need.

41
Case 4:18-cv-00352-ALM Document 1 Filed 05/11/18 Page 42 of 44 PageID #: 42

174. The Corps’ list of reasons to dismiss Alternative 2 in the ROD are

otherwise unconvincing, contrary to the evidence, and legally insufficient.

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

determine if the downsized reservoir project alternative can be further reduced in

size and impact.

176. Given NTMWD’s stated need, it is unreasonable to assume that a

project with less impact on aquatic resources (i.e., a smaller reservoir) could not be

studied, developed, and implemented.

177. Third, the Corps acted arbitrarily, capriciously, abused its discretion,

and contrary to the evidence when it dismissed other practicable alternatives from

further consideration in the FEIS and ROD.

178. For example, the Toledo Bend Reservoir is an existing impoundment

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

an existing impoundment, the environmental impacts would be limited and would

be significantly less than the proposed Reservoir project.

179. The DEIS, the State Water Plans, and Regional Water Plans indicate

that NTMWD intends to pursue obtaining water from Toledo Bend.

180. The Corps rejects the Toledo Bend Reservoir because of higher capital

costs, greater long-term energy usage, and higher long-term operating costs.

42
Case 4:18-cv-00352-ALM Document 1 Filed 05/11/18 Page 43 of 44 PageID #: 43

Additionally, the FEIS notes that the water could not be supplied by 2025 to meet

the purpose and need.

181. The rejection of Toledo Bend due to costs or long-term energy usage is

arbitrary, capricious, and contrary to the evidence because every indication

suggests that NTMWD will in fact pursue this supply strategy in the future. It is

unreasonable to assume that cost precludes this alternative in the near-term if

NTMWD actually intends to pursue it in the coming decades.

182. The Corps should be required to undertake additional study to

determine if a combination of water management strategies could bridge-the-gap

until Toledo Bend, a practicable alternative, is available in 2030.

183. As another example, the Corps improperly dismissed the use of partial

desalination of water from Lake Texoma as a practicable alternative that is

available and would have less adverse impact on the aquatic ecosystem. The cost

estimates that form the basis of dismissing this alternative from further

consideration are way out of line from other studies.

184. The Corps’ alternative analysis in the FEIS and ROD are

fundamentally flawed and is arbitrary, capricious, an abuse of discretion, and

contrary to the evidence before the agency. The Corps’ analysis does not sufficiently

and independently evaluate the available information. Because alternatives exist

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

the Corps erred when it issued the Section 404 permit.

43
Case 4:18-cv-00352-ALM Document 1 Filed 05/11/18 Page 44 of 44 PageID #: 44

PRAYER FOR RELIEF

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

implementing regulations, and the APA;

2. Vacate the permit, and the underlying NEPA review, pending full

compliance with the law;

3. Retain jurisdiction over this matter to ensure that the Corps complies

with the law;

4. Award Plaintiffs reasonable fees, costs, expenses, and disbursements,

including attorneys’ fees, associated with this litigation; and

5. Grant Plaintiffs such further and additional relief as the Court may

deem just and proper.

IRVINE & CONNER PLLC

by: /s/ Charles W. Irvine


Charles W. Irvine, Lead Attorney
TBN 24055716
Mary B. Conner
TBN 24050440
Michael P. McEvilly
TBN 24088017
4709 Austin Street
Houston, Texas 77004
713.533.1704 / 713.524.5165 (fax)
charles@irvineconner.com

Attorneys for Plaintiffs

44
Case 4:18-cv-00352-ALM Document 1-1 Filed 05/11/18 Page 1 of 2 PageID #: 45
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS


Knight, Dustin; Knight, Ronald C.; Knight, Ronnie; Reed, Wes; Ryser, U.S. Army Corps of Engineers; Col. Christopher A. Hussin, in his
Cathy; Ryser, Nathan; Ryser, Wayne; Witcher, H.D. "Thump" Jr.; official capacity as Commander and District Engineer for the U.S.
Yarbrough, Michael; Yarbrough, John E. Army Corps of Engineers for the Tulsa District
(b) County of Residence of First Listed Plaintiff Fannin County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Charles W. Irvine, Irvine & Conner, PLLC, 4709 Austin Street, Houston,
Texas 77004, 713.533.1704.

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
’ 1 U.S. Government ’ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ’ 1 ’ 1 Incorporated or Principal Place ’ 4 ’ 4
of Business In This State

’ 2 U.S. Government ’ 4 Diversity Citizen of Another State ’ 2 ’ 2 Incorporated and Principal Place ’ 5 ’ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a ’ 3 ’ 3 Foreign Nation ’ 6 ’ 6


Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
’ 110 Insurance PERSONAL INJURY PERSONAL INJURY ’ 625 Drug Related Seizure ’ 422 Appeal 28 USC 158 ’ 375 False Claims Act
’ 120 Marine ’ 310 Airplane ’ 365 Personal Injury - of Property 21 USC 881 ’ 423 Withdrawal ’ 376 Qui Tam (31 USC
’ 130 Miller Act ’ 315 Airplane Product Product Liability ’ 690 Other 28 USC 157 3729(a))
’ 140 Negotiable Instrument Liability ’ 367 Health Care/ ’ 400 State Reapportionment
’ 150 Recovery of Overpayment ’ 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS ’ 410 Antitrust
& Enforcement of Judgment Slander Personal Injury ’ 820 Copyrights ’ 430 Banks and Banking
’ 151 Medicare Act ’ 330 Federal Employers’ Product Liability ’ 830 Patent ’ 450 Commerce
’ 152 Recovery of Defaulted Liability ’ 368 Asbestos Personal ’ 835 Patent - Abbreviated ’ 460 Deportation
Student Loans ’ 340 Marine Injury Product New Drug Application ’ 470 Racketeer Influenced and
(Excludes Veterans) ’ 345 Marine Product Liability ’ 840 Trademark Corrupt Organizations
’ 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY ’ 480 Consumer Credit
of Veteran’s Benefits ’ 350 Motor Vehicle ’ 370 Other Fraud ’ 710 Fair Labor Standards ’ 861 HIA (1395ff) ’ 490 Cable/Sat TV
’ 160 Stockholders’ Suits ’ 355 Motor Vehicle ’ 371 Truth in Lending Act ’ 862 Black Lung (923) ’ 850 Securities/Commodities/
’ 190 Other Contract Product Liability ’ 380 Other Personal ’ 720 Labor/Management ’ 863 DIWC/DIWW (405(g)) Exchange
’ 195 Contract Product Liability ’ 360 Other Personal Property Damage Relations ’ 864 SSID Title XVI ’ 890 Other Statutory Actions
’ 196 Franchise Injury ’ 385 Property Damage ’ 740 Railway Labor Act ’ 865 RSI (405(g)) ’ 891 Agricultural Acts
’ 362 Personal Injury - Product Liability ’ 751 Family and Medical ’ 893 Environmental Matters
Medical Malpractice Leave Act ’ 895 Freedom of Information
REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS ’ 790 Other Labor Litigation FEDERAL TAX SUITS Act
’ 210 Land Condemnation ’ 440 Other Civil Rights Habeas Corpus: ’ 791 Employee Retirement ’ 870 Taxes (U.S. Plaintiff ’ 896 Arbitration
’ 220 Foreclosure ’ 441 Voting ’ 463 Alien Detainee Income Security Act or Defendant) ’ 899 Administrative Procedure
’ 230 Rent Lease & Ejectment ’ 442 Employment ’ 510 Motions to Vacate ’ 871 IRS—Third Party Act/Review or Appeal of
’ 240 Torts to Land ’ 443 Housing/ Sentence 26 USC 7609 Agency Decision
’ 245 Tort Product Liability Accommodations ’ 530 General ’ 950 Constitutionality of
’ 290 All Other Real Property ’ 445 Amer. w/Disabilities - ’ 535 Death Penalty IMMIGRATION State Statutes
Employment Other: ’ 462 Naturalization Application
’ 446 Amer. w/Disabilities - ’ 540 Mandamus & Other ’ 465 Other Immigration
Other ’ 550 Civil Rights Actions
’ 448 Education ’ 555 Prison Condition
’ 560 Civil Detainee -
Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original ’ 2 Removed from ’ 3 Remanded from ’ 4 Reinstated or ’ 5 Transferred from ’ 6 Multidistrict ’ 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
5 U.S.C. 706 (Administrative Procedure Act)
VI. CAUSE OF ACTION Brief description of cause:
Unlawful final agency action by the Corps for issuing a Section 404 permit.
VII. REQUESTED IN ’ CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ’ Yes ’ No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
05/11/2018 Charles W. Irvine
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

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Case 4:18-cv-00352-ALM Document 1-1 Filed 05/11/18 Page 2 of 2 PageID #: 46
JS 44 Reverse (Rev. 06/17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44


Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.

IV. Nature of Suit. Place an "X" in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code
that is most applicable. Click here for: Nature of Suit Code Descriptions.

V. Origin. Place an "X" in one of the seven boxes.


Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation – Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C.
Section 1407.
Multidistrict Litigation – Direct File. (8) Check this box when a multidistrict case is filed in the same district as the Master MDL docket.
PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
changes in statue.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service

VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.

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