Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 17-cv-2563-REB SAVE THE COLORADO, et al. Petitioners, v. UNITED STATES BUREAU OF RECLAMATION, et al. Respondents. PETITIONERS’ MOTION TO SUPPLEMENT THE ADMINISTRATIVE RECORDS INTRODUCTION The Windy Gap Firming Project is an apt example of inadequate analysis and poor decision-making that will ultimately result in significant new diversions from the Colorado River to provide the Front Range with an unneeded water supply. The Bureau of Reclamation and the Army Corps of Engineers, each responsible for decisions approving the Firming Project, failed to engage in sound decision-making during the entire course of their federal review. This review took fourteen years. Yet, throughout the entire process, both agencies continued to justify the Firming Project’s need based on water demand projections that were prepared at the very beginning of the federal review in 2005. Compare BOR0004553 (2005 Projections) with BOR0015266 (Reclamation’s 2011 Final Environmental Impact Statement) with COE0018538 (Corps’ 2017 Record of Decision). As the years passed, actual demand data for the years that the agencies 1 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 2 of 15 had been using projections for became available, yet the agencies continued to rely on their projections. Both agencies received comments that their demand projections were overinflated and should be adjusted to better reflect actual demand. Reclamation, however, repeatedly asserted that actual data would only differ “slightly.” BOR0008578; BOR0015267. The administrative records designated by both agencies demonstrate that neither agency explained how these differences were “slight.” Courts can consider documents and data that demonstrate “gaps or inadequacies in the NEPA process” and those materials that agencies did not consider during the decision-making process, but should have. Colo. Wild v. Vilsack, 713 F. Supp. 2d 1235, 1239–41 (D. Colo. 2010). Save the Colorado hired an expert to compile actual water use data to fill in gaps in the records. Ex. 1, at i. This report (the “Buchanan Report”) compiles the actual demand data that would have been available to the agencies during the decision-making process. The Buchanan Report shows that just six years after the demand projections on which the agencies relied were made, those projections were 31% higher overall than actual water demands. Ex. 1, at 4. For the City of Evans, the projections were 96.7% higher than actual water demands. Ex. 1, at 4. Ten years after the demand projections were made, still two years before the Corps’ final decision, the projections were 47.04% higher overall than actual water demands. Ex. 1, at 4. For the City of Evans, the projections were now 119.6% higher than actual water demands. Ex. 1, at 4. Neither Reclamation nor the Corps ever explained why they continued to rely on the original projections given the significant differences between the projections and the actual demands. 2 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 3 of 15 Most of the actual demand data compiled in the Buchanan Report was available prior to the release of Reclamation’s 2011 Final Environmental Impact Statement (“Final EIS”) and its 2014 Record of Decision. Ex. 1, at 3. All of this data was available before the Corps’ 2017 Record of Decision. Ex. 1, at 3. Because the Buchanan Report demonstrates that both federal agencies approved the Firming Project without taking an independent and hard look at actual water demand—calling into question much of the decision-making process—Petitioners request that this Court supplement both of the agencies’ records with this report. CERTIFICATE OF CONFERRAL Pursuant to D.C.COLO.LCivR 7.1(a), Petitioners conferred with counsel for the Respondents on April 23, 2018, who indicated that they oppose this motion. This conferral process began on March 26, 2018. While counsel for the Respondents oppose this Motion, they agreed to voluntarily add sixteen documents to one or both of the administrative records. The list of these documents can be found in Exhibit 2. Counsel for the Respondents indicated that these documents would be added within two to three weeks following our April 23 phone call. BACKGROUND I. Legal background A. National Environmental Policy Act NEPA promotes informed decision-making. WildEarth Guardians v. U.S. Bureau of Land Mgmt., 870 F.3d 1222, 1237 (10th Cir. 2017). It requires an agency to identify the underlying purpose and need of a project. 40 C.F.R. § 1502.13. When defining a 3 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 4 of 15 project’s purpose and need, the agency must conduct an independent analysis. Davis v. Mineta, 302 F.3d 1104, 1119–20 (10th Cir. 2002). An agency must give a reasoned and independent explanation for its conclusions. Colo. Envtl. Coal. v. Salazar, 875 F. Supp. 2d 1233, 1252 (D. Colo. 2012). If commenters raise significant concerns, an agency must “demonstrate that it has considered [them] by explaining why it disagrees with them; it may not dismiss them without adequate explanation.” All. to Save the Mattaponi v. U.S. Army Corps of Eng’rs, 606 F. Supp. 2d 121, 132 (D.D.C. 2009). B. Clean Water Act When issuing a Section 404 Clean Water Act permit, the Corps “will in all cases, exercise independent judgment in defining the purpose and need for the project. . . .” 33 C.F.R. § 325 App. B § 9(b)(4). If information is provided by the applicant, the “Corps also must ‘document in the record the . . . independent evaluation of the information [submitted by the applicant for the EIS] and its accuracy, as required by [NEPA CEQ regulations] 40 C.F.R. 1506.5(a).’” Sierra Club v. Van Antwerp, 709 F. Supp. 2d 1254, 1263 (S.D. Fla. 2009) (quoting 33 C.F.R. § 325 App. B(8)(f)(2)). A court found a Corps’ permitting decision that relied on eight-year-old water demand projections to be arbitrary and capricious because the Corps failed to address the fact that water need had decreased substantially. All. to Save the Mattaponi, 606 F. Supp. 2d at 129-30. C. Administrative Procedure Act When reviewing final agency action, the Administrative Procedure Act directs courts to “review the whole record” meaning the “full administrative record that was before the [agency] at the time [it] made [the] decision.” 5 U.S.C. § 706; Overton Park, 4 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 5 of 15 Inc. v. Volpe, 401 U.S. 402, 420 (1971). Courts supplement the record when there are “materials which were not considered by the agency, but which are necessary for the Court to conduct a substantial inquiry.” Ctr. For Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1274 (D. Colo. 2010). D. Supplementing the Record 1. The NEPA Exception Under its NEPA exception, Tenth Circuit courts supplement an agency’s record when there are “gaps or inadequacies in the NEPA process.” Colo. Wild v. Vilsack, 713 F. Supp. 2d 1235, 1241 (D. Colo. 2010). The District of Colorado has stressed the “importance of extra-record evidence in the NEPA context where a party challenges not the merits of the agency’s decision, but the sufficiency of the process followed in reaching it.” Id. “[E]xtra-record evidence ‘may illuminate whether an [agency] has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism . . . under the rug.’” Citizens for Alts. to Radioactive Dumping v. U.S. Dep’t of Energy, 485 F.3d 1091, 1096 (10th Cir. 2007) (citation omitted) (alterations in original). Supplementing is warranted when the material “seeks to illuminate a broad section of analysis that is wholly lacking in the record.” Colo. Wild, 713 F. Supp. 2d at 1241–42. 2. Failure to Consider Relevant Factors Additionally, Tenth Circuit courts supplement the record when “the record is deficient because the agency ignored relevant factors it should have considered in making its decision. . . .” Custer Cty. Action Ass’n v. Garvey, 256 F.3d 1024, 1027 n.1 5 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 6 of 15 (10th Cir. 2001). Evidence an agency failed to consider “[b]y its very nature . . . is frequently not in the record.” Ctr. for Native Ecosystems, 711 F. Supp. 2d at 1280. Supplementing when “an agency fails to consider evidence relevant to the final decision” is “often properly included in the Administrative Record” because it may be necessary “for determining whether the agency considered all relevant factors, including evidence contrary to the agency’s position.” Id. Such evidence should be included regardless of whether the agency deliberately chose not to consider it or negligently failed to consider it. Id. at 1281. 3. Failure to Adequately Explain Agency Action Courts also supplement the record when an “agency action is not adequately explained and cannot be reviewed properly without considering the cited materials. . . .” Custer Cty., 256 F.3d at 1027 n.1. In these cases, “in order to allow for meaningful, indepth, probing review, such extra-record evidence is often properly included in the Administrative Record.” Ctr. For Native Ecosystems, 711 F. Supp. 2d at 1280. II. Factual Background Completed in 1985, the Original Windy Gap Project diverts water from the Colorado River and pumps it to the Front Range. BOR0015247. This water was meant to meet the participants’ projected water demands for the year 2000. COE0000007. Since its completion, however, the Original Project has not delivered the water supplies originally planned. BOR0015256. This failure is due to a number of reasons, including lack of demand. BOR0015256. In 2003, the Municipal Subdistrict, Northern Colorado Water Conservancy District, proposed the Windy Gap Firming Project. BOR0000657. 6 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 7 of 15 The purpose of the Firming Project “is to deliver a firm annual yield of about 30,000 [acre-feet] of water from the existing Windy Gap Project.” BOR0015250. According to Reclamation, this water is needed “to meet the participants’ current and future needs.” BOR0009200. Because the Firming Project requires a connection to Reclamation’s Colorado-Big Thompson Project, NEPA required Reclamation to prepare an Environmental Impact Statement before approving this connection. BOR0015248. Throughout the review process, Reclamation justified the need for the Firming Project with water demand projections from the project’s 2005 Purpose and Need Report, prepared by ERO Resources Corporation on behalf of Reclamation. BOR0004489; BOR0015267. Reclamation used these same demand projections nearly seven years later in its Final EIS (released December 2011) and nearly ten years later in its Record of Decision (released December of 2014). Compare BOR0004553 (2005) with BOR0015266 (2011) with BOR0017708–09 (2014). The Corps, now nearly twelve years later, also adopted these demand projections. COE0018538. Despite its duty to independently verify the need, the Corps provided one conclusory sentence justifying its adoption: “Upon review the Corps agrees with the Applicant’s stated project need.” Id. There were many reasons why Reclamation and the Corps should have updated the 2005 demand projections, or at the very least, taken a hard look at actual demand and explained their reasoning for not updating them. Early on, commenters suggested that the demand projections were overinflated and were “nothing more than the desires of the participating members,” not the actual water demand. See, e.g., BOR0001559. Leading up to the release of the Draft EIS, commenters continued to suggest that the 7 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 8 of 15 demand projections were overinflated. The EPA urged Reclamation to take a harder look at demand because “future water use efficiencies should increase, not decline.” BOR0004812. Western Resource Advocates suggested re-evaluating demand because of the “marked downward trend [in water use] in recent years—call[ing] into question the need for the Windy Gap Firming Project.” BOR0004852. Grand County asked how the project is “needed for existing demand yet no water has been diverted in seven out of the past 20 years because of ‘limited demand.’” BOR0004054 (emphasis in original). However, in its Draft EIS, Reclamation simply noted that “[c]urrent water projections may vary slightly from the estimates in 2005, but the need to firm Windy Gap water supplies has not changed.” BOR0008578. Comments on the Draft EIS flooded in, urging Reclamation to re-evaluate its demand projections. See, e.g., BOR0011886 (EPA urging both agencies to re-examine demand and conduct “an independent review of the Participants’ estimated and future water requirements”); BOR0012156–57 (Western Resource Advocates explaining that actual demand is much lower than projected). Other commenters noted issues with the projected increase in demand compared to the actual current demand and emphasized that conservation would reduce supply needs. BOR0009237–39; BOR0009248–49. However, in its 2011 Final EIS, Reclamation again simply noted that “[w]hile Participant water supply and demand conditions may have changed slightly since the studies for the Draft EIS were completed, the water supplies and projected demands still provide a reasonable representation of the water needs for the 13 Participants.” BOR0015267. 8 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 9 of 15 In its 2014 Record of Decision, Reclamation reasserted that the Firming Project was “needed to meet . . . existing and future demands of the Participants.” BOR0017709. The Corps adopted Reclamation’s Final EIS, including all of the previously mentioned comments. COE0018535. The Corps also received additional comments encouraging it to reevaluate demand in light of reduced water use rates of participating municipalities, improved conservation, and changing population. COE0018630–31. Despite these comments, and the passage of more than a decade since the Project’s 2005 Purpose and Need Report, the Corps adopted Reclamation’s 2005 demand projections in its 2017 Record of Decision. COE0018538. ARGUMENT A. The Court should supplement Reclamation’s and the Corps’ records with the Buchanan Report that compiles the actual demand data of Firming Project participants because the report contains information that the agencies should have considered. Courts supplement an agency’s record when there are (1) “gaps or inadequacies in the NEPA process” that demonstrate a procedural problem in an agency decision, (2) when the agency ignored relevant factors it should have considered, or (3) when the agency action is not adequately explained and cannot be properly reviewed without the material. Colo. Wild, 713 F. Supp. 2d at 1239–41. The Firming Project is meant to provide a water supply to its participants, however, Reclamation and the Corps never updated the demand projections that they used to justify the need for this water supply. The Buchanan Report (Ex. 1) provides actual demand data that the agencies could have accessed to update their projections. Because the agencies left this gap in their process, ignored the relevant factor of the need for the project, and did not adequately 9 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 10 of 15 explain why the project is necessary, the Court should supplement both agencies’ records with the Buchanan Report. 1. The Buchanan Report fills major procedural gaps in the NEPA process. The Buchanan Report should supplement Reclamation’s and the Corps’ records under the NEPA exception because there are “gaps” and “inadequacies” that cast serious doubt on the sufficiency of the process followed by the agencies in reaching their decisions. Rather than including actual demand data, or explaining why it was unnecessary to do so, or explaining why its demand projections were still appropriate, Reclamation simply noted the projections may differ “slightly.” Reclamation used demand projections that were three years old for its Draft EIS, seven years old for its Final EIS, and nearly ten years old for its Record of Decision. The Corps used these same projections, now nearly twelve years old, for its 2017 Record of Decision. Because the stated purpose and need of the Firming Project is to provide a firm water supply to meet participant water needs, Reclamation and the Corps should have confirmed that those water needs continued to exist. This would have required considering the available actual demand data and explaining why their projections remained suitable. At the very least, the agencies should have explained why it was unnecessary to do so. Instead, both agencies continued relying on old projections. As a result, the agencies’ NEPA processes contain a major analysis gap: support for the continued need of the project. The Buchanan Report illustrates that both agencies “swept [this] stubborn problem[] [and] serious criticism under the rug.” 10 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 11 of 15 City Broomfield Erie Evans Greeley LTWD Longmont Loveland Superior Total Table 1-2 : Summary Comparison of Actual Versus WGFP Projected Water Demand 2005 2010 2015 % % % WGFP WGFP WGFP Actual Actual Actual Diff. Projected Diff. Diff. Projected Use Projected Use Use (AF) 14300 2500 4600 27700 6000 25900 14400 2500 97900 (AF 12522 3132 3079 26853 5550 20357 12040 1900 85433 14.2 -20.2 49.4 3.2 8.1 27.2 19.6 31.6 14.59 (AF) 17300 4400 5900 32400 7000 28100 15900 3000 82900 (AF) 12819 3623 3000 24635 6450 3 NA 12752 3 NA 63279 35.0 21.5 96.7 31.5 8.5 3 NA 24.7 3 NA 31.0 (AF) 19400 5900 7000 37800 8200 30300 17800 3300 115600 (AF) 12906 3 NA 3187 25743 3 NA 20611 14232 1939 78618 50.3 3 NA 119.6 46.8 3 NA 47.0 25.1 70.2 47.04 Table 1-2 of the Buchanan Report, above, shows the Firming Project’s water demand projections for the years 2005, 2010, and 2015 (from Table 1-5 of the Final EIS, BOR0015266), compares those projections to the actual water demand from those participants for the same years, and provides the percent difference between the two. Ex. 1, at 4. The Buchanan Report contains the actual demand data—compiled from Water Conservation Plans and the Colorado Water Conservation Board—that commenters repeatedly urged Reclamation and the Corps to look at, and compares the 2005 demand projections with the actual demand data of most project participants. Ex. 1, at 1. According to the report, “[m]ost data presented here were available prior to release of the Bureau of Reclamation ROD in December, 2014 and all data were available prior to release of the Corps of Engineers ROD on May 16, 2017.” Ex. 1, at 3. Both agencies could have accessed this data when preparing the EIS or before issuing their Records of Decision. In 2005, overall projections were 14.59% higher than actual demand; by 2010, overall projections were 31% higher than actual demand; and by 11 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 12 of 15 2015, overall projections were 47.04% higher than actual demand. Ex. 1, at 4. These differences are not “slight.” Because the Buchanan Report fills a major procedural gap in the agencies’ NEPA process, it should supplement both records. 2. The Buchanan Report shows that the agencies ignored relevant facts that should have been considered. Additionally, the Court should supplement the agencies’ records with the Buchanan Report because it demonstrates that the agencies ignored relevant facts that they should have considered in making their decisions. The records are deficient without the report because it contains actual demand data that was available to the agencies regarding the amount of water the municipalities actually needed. In 2011, Reclamation asserted that the differences between the projections and actual data were only slight, yet the Buchanan Report shows that at the time of this assertion, projected demands were already 30% higher than actual demands. Ex. 1, at 4. For the City of Evans, demand projections were over 96% higher than the actual demands. Ex. 1, at 17. To support Reclamation’s assertion that the differences were slight, actual demand data should have been included, or at the very least, Reclamation should have provided a reasoned explanation for why the differences were only slight. Despite the availability of actual demand information, both agencies stopped using actual demand data in 2004 and relied on demand projections from 2005 on. Reclamation had at least six years of actual demand data available to it prior to issuing the Final EIS and nine years of data prior to issuing its Record of Decision. Even more alarmingly, there were twelve years of actual demand data that the Corps could have incorporated into its decision. 12 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 13 of 15 An agency cannot skew the data by failing to include information that may be negative to its decision, especially when the agencies have independent duties to define the underlying need for a project. This is a water supply project, and in light of all the comments about overinflated demand projections, Reclamation and the Corps should have considered actual demand data, or, at the very least, explained why it chose not to update the demand projections. Instead, without explaining why, Reclamation asserted that the “water supplies and projected demands still provides a reasonable representation of the water needs for the 13 participants.” 3. The Buchanan Report provides information that is necessary for the Court’s review of the agencies’ decision-making. Finally, the agencies’ decisions cannot be properly reviewed or adequately explained without considering the Buchanan Report. The Buchanan Report provides the Court with a more complete picture of one of the most important issues in these decisions: the need for the Firming Project. This is critical because both agencies maintain that the Firming Project is needed to meet existing and future water supply needs and the entire project’s analysis hinges on this need. Despite the availability of actual water demand data, neither Reclamation nor the Corps used up-to-date demands or explained why it was unnecessary to do so. This report demonstrates why a reasoned explanation was necessary. The Court would be handicapped without this report because it would not have all the necessary information to review Petitioners’ argument that both agencies failed to independently verify the actual need for the Firming Project. 13 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 14 of 15 The Court should supplement both Reclamation’s and the Corps’ records with the Buchanan Report which sets forth actual use data that the agencies could and should have considered, because (1) there are gaps and inadequacies in the NEPA process that are not properly explained without this report, (2) the report shows that the agencies ignored relevant factors that they should have considered when making their decisions, and (3) the report provides the Court with a full picture of the decisions to aid it in its review. CONCLUSION Because Reclamation’s and the Corps’ records, as currently designated, are inadequate to provide meaningful judicial review of the two agency decisions, Petitioners respectfully request that this Court supplement both Reclamation’s and the Corps’ records with the Buchanan Report (Ex. 1). Respectfully Submitted, /s/ Kevin J. Lynch Kevin J. Lynch Timothy Estep Leigh Horton, Student Attorney Rioux Jordan, Student Attorney Zach Lass, Student Attorney Environmental Law Clinic University of Denver Sturm College of Law 2255 E. Evans Ave., Ste. 335 Denver, Colorado 80208 Telephone: 303-871-6140 E-mail: klynch@law.du.edu Attorneys for Petitioners Dated: May 3, 2018. 14 Case 1:17-cv-02563-REB Document 33 Filed 05/03/18 USDC Colorado Page 15 of 15 CERTIFICATE OF SERVICE I certify that on May 3, 2018, I electronically filed the foregoing motion with the Clerk of Court using the ECF system, which will send notification of such filing to all Counsel of Record. /s/ Kevin J. Lynch Kevin J. Lynch 15