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Central Arizona Water Conservation District v. United States Army Corps of Engineers

United States District Court, D. Arizona

February 28, 2019

Water Conservation District, Plaintiff,
v.
United States Army Corps of Engineers, Defendant.

          ORDER

          Douglas L. Rayes United States District Judge

         Before the Court is Defendant United States Army Corps of Engineer's (“Corps”) motion to dismiss for lack of subject matter jurisdiction (Doc. 29), which is fully briefed. Plaintiff Central Arizona Water Conservation District (“District”) requested oral argument, but after reviewing the parties' briefing and the record, the Court finds oral argument unnecessary. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). For the reasons stated below, the Corps' motion is granted.

         I. Background

         The Alamo Dam (“Dam”) is owned, operated, and maintained by the Corps. The Dam is located between Alamo Lake and the Bill Williams River. Thirty-nine miles downstream from the Dam, the mouth of the Bill Williams River empties into Lake Havasu. The District owns and operates the Mark Wilmer Pumping Plant (“Pumping Plant”), a water intake and pumping plant, in Lake Havasu.

         In late 2017, the Corps announced plans to conduct a flushing-flow release from the Dam for mid-March 2018 to decrease water levels in Alamo Lake and allow for maintenance work on the Dam. (Docs. 7-1 ¶ 36; Docs. 17 ¶¶ 27-28.) More specifically, the release's objective was twofold: (1) removal of accumulated sediment from the Dam's sill to ensure all structures were visible by the dive inspection team, and (2) lowering the water surface elevation to reduce the depth of the required dive and increase diver safety. (Doc. 7-4 at 6.) In early 2018, the Corps issued a draft Environmental Assessment (“EA”) for its proposed release, to which the District submitted comments. On March 2, 2018, the Corps issued an EA and a Finding of No. Significant Impact (“FONSI”) for the Alamo Dam Flushing Release (“Release”). As proposed, the Release was scheduled to last 19 days, starting at 8:00 a.m. on March 12, 2018.

         On March 6, 2018, the District filed a complaint alleging violations of the National Environmental Policy Act (“NEPA”). Concurrent with the complaint, the District moved for a temporary restraining order (“TRO”) enjoining the Corps from initiating the scheduled release, arguing that the Corps violated NEPA in narrowly defining the project area, failing to consider reasonable alternatives to the Release, and in failing to prepare an Environmental Impact Statement (“EIS”). (Doc. 1 ¶¶ 94-125.) The District alleged that the Release would increase turbidity downstream, causing “long-lasting adverse impacts” on its Pumping Plant and to its water users.[1] (Doc. 7 at 20.) After holding a hearing on the TRO, the Court orally denied the District's motion, finding that the District failed to meet its burden of showing irreparable harm if the Release proceeded.[2] (Doc. 22.) The District did not appeal this order.

         Prior to the commencement of the Release, the District issued a statement to its “water users” that it intended to “cease pumping at Lake Havasu in an effort to avoid pumping any initial turbidity spike from Lake Havasu.” (Doc. 29-5 at 2.) As scheduled, on March 12, 2018, the Corps commenced the Release. (Doc. 29-7 ¶ 6.) During the Release, the flow reached peak velocity of just under 5, 000 cubic feet per second (“cfs”) on the evening of March 14, and tapered off to approximately 500 cfs 24 hours later. (Docs. 7-4 at 31-33; 29-4.) The Release was completed on March 29, 2018, and the flow returned to the base level rate of 25 cfs. (Docs 29-4; 29-7 ¶ 8.)

         The District monitored turbidity levels throughout Lake Havasu during the Release, including at the Pumping Plant's intake. (Doc. 29-6.) According to the District's data, turbidity at the intake never exceeded 15 NTUs, well below the District's self-proclaimed “operational threshold” of 20 NTUs.[3] (Id.; Doc. 7-3 at 24.) Even though the turbidity level never reached the “operational threshold, ” the District decided to reduce pumping at the Pumping Plant late in the afternoon on March 16, completely curtail pumping on March 17, remain at no flow until March 21, and resume full pumping on March 25. (Doc. 30-1 ¶ 10.)

         Presently before the Court is the Corps' motion to dismiss for lack of subject-matter jurisdiction, which argues that the District's claims are moot because the Release has been completed.

         II. Legal Standard

         The Court must dismiss an action if, at any time, it determines that it lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(h)(3). Mootness “pertain[s] to a federal court's subject-matter jurisdiction under Article III, [and is] properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A moot case is one which has “lost its character as a present, live controversy.” Hall v. Beals, 396 U.S. 45, 48 (1969). In the context of a NEPA claim, “the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244-45 (9th Cir. 1988) (internal quotation and citation omitted). The burden of demonstrating mootness in NEPA cases is a “heavy one” and is born by the party claiming the case is moot. See, e.g., Cantrell v. City of Long Beach, 241 F.3d 674, 678 (9th Cir. 2001).

         III. Discussion

         A. The District's Claim is Moot

          NEPA and its implementing regulations require federal agencies to file an EIS before undertaking “major Federal actions significantly affecting the quality of the human environment.” 42 USC § 4332(C). An agency that believes its action is not a “major Federal action, ” and therefore does not require the preparation of a full EIS, may prepare a more limited environmental review, or EA, to determine whether the full EIS is necessary. 40 CFR § 1501.4(b), (c). If the proposed action “will not have a significant effect on the human environment, ” the agency may issue a FONSI and need not complete an EIS. 40 CFR § 1508.13. NEPA is purely a procedural statute: “[it] does not mandate particular results but simply provides the necessary process to ensure ...


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