State of Alabama v. U.S. Army Corps of Engineers

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STATE OF ALABAMA, et al.,

Plaintiffs,

and

WATER WORKS AND SANITARY
SEWER BOARD OF THE CITY OF
MONTGOMERY, ALABAMA, et
al.,

Plaintiff-Intervenors,

v. Civil Action No. 15-696 (EGS)

UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,

Defendants,

and

STATE OF GEORGIA, et al.,

Defendant-Intervenors.

ALABAMA POWER COMPANY,

Plaintiff,

v. Civil Action No. 15-699 (EGS)
(Consolidated with No. 15-696)
UNITED STATES ARMY CORPS OF
ENGINEERS, et al.,

Defendants.

MEMORANDUM OPINION

i
 Table of Contents

I. Introduction ............................................... 1

II. Background ................................................. 4

A. Statutory and Regulatory Background....................... 4

1. Clean Water Act ......................................... 4

2. National Environmental Policy Act ...................... 11

B. Factual Background....................................... 17

1. Authorized Project Purposes of the Corps’ Reservoir

Projects in the ACT Basin and the Development of Governing

Water Control Manuals ..................................... 17

2. The Allatoona Reservoir Project, Its History, and Its

Authorized Project Purposes ............................... 20

3. Prior Versions of the Allatoona Project’s Water Control

Manual: 1951, 1962, 1968, and a 1993 Draft Version ........ 27

4. The Process for Revising and Adopting the Updated 2015

Master Manual, the Allatoona Project Water Control Manual,

and the FEIS .............................................. 34

5. Key Features of the Updated Master Manual and the

Allatoona Project Water Control Manual, and the Specific

Changes to Which the Alabama Plaintiffs and Intervenor-

Plaintiffs Object ......................................... 38

C. Procedural Background.................................... 43

III. Legal Standard........................................... 48

IV. Analysis................................................. 53

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A. Defendants Did Not Violate the CWA or the Corps’

Implementing Engineer Regulations, and the Alabama Plaintiffs’

Water Quality Claims Must Fail .............................. 54

1. Issue Preclusion Does Not Apply to Bar the Alabama

Plaintiffs’ Water Quality Claims .......................... 61

a. The Issue Preclusion Criteria Are Satisfied as Against

the State of Alabama for Its Water Quality Claims Involving

the CWA and ER 1110-2-8154............................... 71

b. Although the Issue Preclusion Criteria Are Satisfied as

Against the State of Alabama’s CWA and ER 1110-2-8154 Water

Quality Claims, the Doctrine Is Inapplicable Here........ 74

i. The “Unmixed Questions of Law” Exception to Issue

Preclusion Applies Here ................................ 75

ii. Policy Considerations and the Presence of Non-Mutual

Parties Also Weigh Against the Application of Issue

Preclusion Here ........................................ 83

2. The Alabama Plaintiffs’ Water Quality Claims Fail on the

Merits .................................................... 97

a. Section 313(a) of the CWA (33 U.S.C. § 1323(a)) ....... 97

b. ER 1110-2-8154 ....................................... 118

c. The Duty Under the APA to Engage in Reasoned Decision-

Making and Not Arbitrarily Depart from Precedent........ 129

B. Defendants Did Not Violate NEPA......................... 133

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1. The Corps Reasonably Defined the No-Action Alternative in

the FEIS Using the 1993 Draft Allatoona Manual ........... 136

a. Issue Preclusion Does Not Apply to Bar the Alabama

Plaintiffs’ NEPA No-Action Alternative Claim............ 137

b. The Alabama Plaintiffs’ NEPA No-Action Alternative Claim

Fails on the Merits..................................... 143

2. The Corps Took a “Hard Look” at Environmental Impacts of

the Master Manual and Adequately Analyzed and Disclosed Those

Impacts in the FEIS ...................................... 155

a. Parameters of NEPA’s “Hard Look” Doctrine ............ 156

b. The FEIS Adequately Analyzes and Discloses Impacts of the

Proposed Action Alternative on Hydropower Generation.... 163

c. The FEIS Adequately Analyzes and Discloses Impacts of the

Proposed Action Alternative Associated with the CC-MWA’s

Water Supply Withdrawals................................ 169

d. The FEIS Adequately Analyzes and Discloses Impacts of the

Master Manual on Water Quality at Montgomery, Alabama... 176

e. The FEIS Adequately Analyzes and Discloses Impacts of the

Master Manual on Salt Water Intrusion from Mobile Bay... 188

f. The FEIS Adequately Analyzes and Discloses Impacts of the

Master Manual on Recreation and Economic Development at

Lake Martin............................................. 200

3. The Corps Adequately Considered All Reasonable

Alternatives in the FEIS ................................. 222

iv
 C. Defendants Did Not Violate the APA...................... 232

1. The Master Manual Complies with the Corps’ Statutory

Obligations and Properly Balances the Authorized Project

Purposes of the ACT Basin, Including at the Allatoona Project

......................................................... 232

a. The Master Manual Does Not “Deemphasize” Hydropower at

the Allatoona Project................................... 243

i. Hydropower Was Not Abandoned or Reordered for the Sake

of Recreation, Which Was Appropriately Considered Among

Allatoona’s Other Project Purposes .................... 250

ii. Reductions in Hydropower Are Not So “Substantial” or

“Significant” So as to Have the Effect of Materially

Altering the Size of Allatoona’s Hydropower Purpose ... 260

b. The Master Manual Does Not “Deemphasize” Navigation at

the Allatoona Project................................... 279

2. The Master Manual Is Not an “Unexplained and Arbitrary

Departure from Established Operations” ................... 287

V. Conclusion ............................................... 294

v
 I. Introduction

Following decades of litigation spanning numerous courts,

on May 4, 2015, the United States Army Corps of Engineers (the

“Corps”) adopted its updated Master Water Control Manual (the

“Master Manual”) governing management of its various dams and

reservoir projects in the Alabama-Coosa-Tallapoosa (“ACT”) River

Basin. See Administrative Record (“A.R.”), ECF No. 61 at D-

00053477-80. 1 The Master Manual, supplemented with separate

manuals for individual basin projects, is the Corps’ first

revised version of the manual since 1951, and was promulgated

pursuant to the public notice and comment process of the

Administrative Procedure Act (“APA”), 5 U.S.C. § 551, et seq.,

and the requirements of the National Environmental Policy Act of

1969 (“NEPA”), 42 U.S.C. §§ 4321-4347. Id. at D-00043862.

Plaintiffs the State of Alabama and Alabama Power Company

(“APC”) (collectively, the “Alabama Plaintiffs”) have sued the

Corps and various U.S. Army and Corps officers in their official

capacities (collectively, “Defendants”) to challenge the Master

1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF header page number, not the original page
number of the filed document, with the exception of the
Administrative Record (“A.R.”), which is to the Bates number
assigned to the relevant corresponding document in Defendants’
certified list of contents of the administrative record. See
generally Defs.’ Notice of Filing of Certified List of Contents
of, and Production of, Administrative R., ECF No. 61, Attachment
B, Parts 1-6 [hereinafter cited as A.R., ECF No. 61].
1
Manual, specifically its updates to operation of the Corps’

federal dam and reservoir project at Allatoona Lake in Georgia,

alleging that it violates the APA, NEPA, and the Clean Water Act

(“CWA”), 33 U.S.C. § 1251, et seq. See Pls.’ Joint Mot. for

Summ. J. (“Pls.’ Mot.”), ECF No. 83 at 11-12. The Alabama

Plaintiffs ask that the Court set aside the Master Manual as

unlawful and direct the Corps to develop a revised manual

consistent with its statutory authority and operational

precedents under the APA, pursuant to a proper environmental

analysis as required by NEPA, and in accordance with the CWA’s

requirements. Id.; Compl., ECF No. 1 at 27-28. The Water Works

and Sanitary Sewer Board of the City of Montgomery, Alabama

(“Montgomery Board”), the Board of Water and Sewer Commissioners

of the City of Mobile (“Mobile Water”), Lake Martin Resource

Association, Inc. (“LMRA”), and Russell Lands, Inc. (“Russell

Lands”) (collectively, “Intervenor-Plaintiffs”) filed complaints

as intervenors, see ECF Nos. 34-35, 75; and have also jointly

moved for summary judgment, see Joint Mot. for Summ J. of

Intervenor-Pls. (“Intervenor-Pls.’ Mot.”), ECF No. 85 at 1.

Defendants have filed a Cross-Motion for Summary Judgment

(“Defs.’ Cross-Mot.”), arguing that the Master Manual “is

neither arbitrary nor in excess of Congressional authorizations”

pursuant to the APA and complies with the Corps’ statutory

obligations under the CWA and NEPA. See Defs.’ Cross-Mot., ECF

2
No. 95 at 9-10. Intervening alongside the Corps as defendants

are the State of Georgia, the Atlanta Regional Commission

(“ARC”), and the Cobb County-Marietta Water Authority (“CC-MWA”)

(collectively, “Intervenor-Defendants” or the “Georgia

Parties”), and they have also jointly filed a cross-motion for

summary judgment. See Georgia Parties’ Joint Cross-Mot. for

Summ. J. & Opp’n to Pls.’ & Intervenor-Pls.’ Mots. for Summ J.

(“Intervenor-Defs.’ Cross-Mot.”), ECF No. 97 at 1.

Pending before the Court are the Alabama Plaintiffs’ Joint

Motion for Summary Judgment, ECF No. 83; Intervenor-Plaintiffs’

Joint Motion for Summary Judgment, ECF No. 85; Defendants’

Cross-Motion for Summary Judgment, ECF No. 96; 2 and Intervenor-

Defendants’ Joint Cross-Motion for Summary Judgment, ECF No. 98. 3

Also pending is Intervenor-Defendants’ supplemental motion for

summary judgment alleging issue preclusion based on an

intervening judgment entered against Alabama by the District

Court for the Northern District of Georgia (“Northern District

of Georgia”) in what they call “parallel litigation challenging

2 Although docketed at ECF No. 96, the complete briefing for
Defendants’ Cross-Motion for Summary Judgment is docketed at ECF
No. 95. Therefore, the Court cites to the ECF header page number
of ECF No. 95 when citing to Defendants’ brief.
3 Although docketed at ECF No. 98, the complete briefing for

Intervenor-Defendants’ Joint Cross-Motion for Summary Judgment
is docketed at ECF No. 97. Therefore, the Court cites to the ECF
header page number of ECF No. 97 when citing to Intervenor-
Defendants’ brief.
3
a similar action by the same defendants in an adjacent river

basin.” See Suppl. Mot. for Summ. J. by Intervenor-Defs.

(“Intervenor-Defs.’ Suppl. Mot.”), ECF No. 129 at 6.

Upon careful consideration of the Alabama Plaintiffs’ and

Intervenor-Plaintiffs’ motions, Defendants’ and Intervenor-

Defendants’ cross-motions, Intervenor-Defendants’ supplemental

motion, the oppositions and replies thereto, the arguments of

amicus curiae, the applicable law and regulations, the full

administrative record, and for the reasons set forth below, the

Court upholds the Master Manual as lawful. Accordingly, the

Court DENIES the Alabama Plaintiffs’ and Intervenor-Plaintiffs’

motions for summary judgment, GRANTS Defendants’ and Intervenor-

Defendants’ cross-motions for summary judgment, and DENIES

Intervenor-Defendants’ supplemental motion for summary judgment.

II. Background

A. Statutory and Regulatory Background

1. Clean Water Act

The Federal Water Pollution Control Act, commonly referred

to as the Clean Water Act, “is a comprehensive water quality

statute designed to ‘restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.’” PUD

No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology, 511 U.S.

700, 704, 114 S. Ct. 1900, 128 L. Ed. 2d 716 (1994) (quoting 33

U.S.C. § 1251(a)). The CWA seeks to eliminate the discharge of

4
pollutants into navigable waters and to attain “water quality

which provides for the protection and propagation of fish,

shellfish, and wildlife.” 33 U.S.C. § 1251(a)(1)-(2). To achieve

these goals, the CWA establishes a two-step approach that

assigns some responsibilities to the U.S. Environmental

Protection Agency (“EPA”) and others to the States “in

furtherance of the Act’s stated purpose of promoting cooperation

between federal and state governments.” Anacostia Riverkeeper,

Inc. v. Jackson, 798 F. Supp. 2d 210, 214 (D.D.C. 2011).

The first step, pursuant to section 301 of the CWA,

requires the EPA to promulgate “effluent limitations,” which are

technology-based restrictions on the maximum allowable

discharges into the country’s navigable waters from individual

point sources. Id.; PUD No. 1, 511 U.S. at 704 (citing 33 U.S.C.

§§ 1311, 1314); see also Arkansas v. Oklahoma, 503 U.S. 91, 101,

112 S. Ct. 1046, 117 L. Ed. 2d 239 (1992) (defining effluent

limitations as caps on “quantities, rates, and concentrations of

specified substances which are discharged from point sources”).

Point sources are “any discernable, confined and discrete

conveyance[s] . . . from which pollutants are or may be

discharged[,]” 33 U.S.C. § 1362(14); such as factory pipes or

sewage drains, and thus “constitute ideal starting points for

the monitoring and regulation of water contamination[,]”

Jackson, 798 F. Supp. 2d at 214. Once developed, effluent

5
limitations are incorporated into the National Pollutant

Discharge Elimination System (“NPDES”), which “is a permit

program through which individual entities responsible for

covered point sources receive permits setting the maximum

discharges of particular contaminants via these sources.” Id. at

214 (citing 33 U.S.C. § 1311(b)(2)). In other words, “discharges

of pollutants into the waters of the United States from ‘point

source[s]’ . . . are normally permissible only if made pursuant

to the terms of a [NPDES] permit.” Am. Paper Inst., Inc. v. EPA,

996 F.2d 346, 348-49 (D.C. Cir. 1993).

NPDES permits must be obtained from the EPA, or, in the

nearly 50 states “the EPA has authorized to administer their own

NPDES program, from a designated state agency.” Id. at 349; see

also NPDES State Program Authority, U.S. ENV’T PROT. AGENCY,

https://www.epa.gov/npdes/npdes-state-program-authority (last

visited July 29, 2023) (listing states with NPDES permitting

authority); 33 U.S.C. § 1342(b) (authorizing each State “to

administer its own permit program for discharges into navigable

waters within its jurisdiction[,]” subject to EPA approval). Of

note, nonpoint sources, which are not defined in the CWA but are

viewed as “diffuse sources of pollution, like farms or roadways,

from which runoff drains into a watershed[,]” Am. Farm Bureau

Fed’n v. EPA, 792 F.3d 281, 289 (3d Cir. 2015); are not subject

to NPDES permits or effluent limitations, In re ACF Basin Water

6
Litig., 467 F. Supp. 3d 1323, 1337-38 (N.D. Ga. 2020); see also

Or. Nat. Res. Council v. U.S. Forest Serv., 834 F.2d 842, 849-50

(9th Cir. 1987) (explaining that “[n]onpoint sources, because of

their very nature, are not regulated under the NPDES[,]” and

effluent limitations, “by definition,” apply only to point

sources). Nonpoint sources are discussed in a separate portion

of the CWA, “which encourages states to develop areawide waste

treatment management plans.” Or. Nat. Res. Council, 834 F.2d at

849 (citing 33 U.S.C. § 1288).

Next, “the CWA’s second step in its approach to water

cleanup requires each State to develop water quality standards

for interstate waters within its borders.” Jackson, 798 F. Supp.

2d at 215. Water quality standards are “promulgated by the

States and establish the desired condition of a waterway.”

Arkansas, 503 U.S. at 101 (citing 33 U.S.C. § 1313); see also

Am. Paper Inst., 996 F.2d at 349 (“[W]ater quality standards

referred to in section 301 are primarily the states’

handiwork.”). These standards “supplement effluent limitations

so that numerous point sources, despite individual compliance

with effluent limitations, may be further regulated to prevent

water quality from falling below acceptable levels.” Arkansas,

503 U.S. at 101 (citation and internal quotation marks omitted);

see also Am. Paper Inst., 996 F.2d at 349 (explaining that

section 301 of the CWA requires every NPDES permit to contain

7
both “(1) effluent limitations that reflect the pollution

reduction achievable by using technologically practicable

controls, . . . and (2) any more stringent pollutant release

limitations necessary for the waterway receiving the pollutant

to meet ‘water quality standards’”).

The EPA provides the States “with substantial guidance in

the drafting of water quality standards[,]” Arkansas, 503 U.S.

at 101; but “[i]n keeping with the interactive process

envisioned in the CWA, a State must submit these standards to

the EPA for review and approval[,]” Jackson, 798 F. Supp. 2d at

215; see also 33 U.S.C. § 1313(c)(2). States must review their

water quality standards at least once every three years, see 33

U.S.C. § 1313(c)(1); and “secure the EPA’s approval of any

revisions[,]” Arkansas, 503 U.S. at 101. Whenever the States

adopt new or revised water quality standards, the CWA requires

them to consider such standards’ “use and value for public water

supplies, propagation of fish and wildlife, recreational

purposes, and agricultural, industrial, and other purposes,” as

well as “their use and value for navigation.” 33 U.S.C. §

1313(c)(2)(A). Although the States primarily promulgate water

quality standards, the EPA can “step in and promulgate water

quality standards itself . . . where (1) it determines that a

state’s proposed new or revised standard does not measure up to

CWA requirements and the state refuses to accept EPA-proposed

8
revisions to the standard[,] or (2) a state does not act to

promulgate or update a standard but, in the EPA’s view, a new or

revised standard is necessary to meet CWA muster.” Am. Paper

Inst., 996 F.2d at 349 (citing 33 U.S.C. § 1313(c)(3)-(4)).

The resulting state water quality standards must contain:

(1) designated uses for the water body; (2) information about

the methodology for choosing those uses; (3) water quality

criteria sufficient to protect the designated uses; (4) an

antidegradation policy to prevent clean waters from falling

below applicable standards; (5) a certification by state

authorities that the standards were properly adopted pursuant to

state law; and (6) general information to aid the EPA’s review.

See 40 C.F.R. § 131.6(a)-(f). Of these six elements, “[t]he

‘designated uses of the navigable waters involved and the water

quality criteria for such waters’ are the heart of water quality

standards.” Jackson, 798 F. Supp. 2d at 215 (quoting 33 U.S.C. §

1313(c)(2)(A)); see also 40 C.F.R. § 130.2(d) (defining water

quality standards as “[p]rovisions of State or Federal law which

consist of a designated use or uses for the waters of the United

States and water quality criteria for such waters based upon

such uses”). A designated use is the way the State classifies a

water body for use by “governments, persons, animals, and

plants” and may include “drinking or reservoir purposes, primary

(e.g., swimming) or secondary (e.g., boating) recreation, and

9
the preservation and support of plant and animal life.” Jackson,

798 F. Supp. 2d at 215 (citing 40 C.F.R. § 131.3(f)). And, water

quality criteria “specify[] the maximum concentration of

pollutants that may be present in the water without impairing

its suitability for designated uses.” Am. Paper Inst., 996 F.2d

at 349. These criteria “come in two varieties: specific numeric

limitations on the concentration of a specific pollutant in the

water . . . or more general narrative statements applicable to a

wide set of pollutants . . . .” Id. The EPA has promulgated

recommended numeric criteria for certain pollutants, which the

States often rely on in establishing water quality standards.

Id. “Whether numeric or narrative, the key aspect of water

quality criteria is that they are dependent upon designated uses

associated with them.” Jackson, 798 F. Supp. 2d at 215. Overall,

States must monitor their waters and, when necessary, identify

those “for which current pollution controls ‘are not stringent

enough to implement any water quality standard applicable to

such waters.’” Id. (citing 33 U.S.C. § 1313(d)(1)(A)).

Pursuant to the CWA, the State of Alabama has adopted water

quality standards intended “to conserve the waters of the State

and to protect, maintain and improve the quality thereof.” Ala.

Admin. Code r. 335-6-10.01 (1991). Alabama’s water quality

criteria “covering all legitimate water uses” for waters in the

State are set out in Alabama’s Administrative Code. See id. at

10
r. 335-6-10.01—.12. The following designated “water use

classifications” are listed in the Code: (1) outstanding Alabama

water; (2) public water supply; (3) swimming and other whole

body water-contact sports; (4) shellfish harvesting; (5) fish

and wildlife; (6) limited warmwater fishery; and

(7) agricultural and industrial water supply. Id. at r. 335-6-

10.03. The Code sets forth the “general conditions applicable to

all water quality criteria,” see id. at r. 335-6-10.05; the

“minimum conditions applicable to all state waters,” see id. at

r. 335-6-10.06; the specific numerical “toxic pollutant criteria

applicable to state waters,” which mirror that recommended by

the EPA, see id. at r. 335-6-10.07; and the “specific water

quality criteria” for each of the seven designated uses, see id.

at r. 335-6-10.09. Alabama also has an antidegradation policy

requiring that “[e]xisting instream water uses and the level of

water quality necessary to protect the existing uses [ ] be

maintained and protected.” See id. at r. 335-6-10.04, 335-6-

10.12. Ultimately, Alabama applies its water quality criteria

and water use classification system to every interstate and

intrastate water body in the various river basins that flows

through the State. See id. at r. 335-6-11.01 to 335-6-11.02.

2. National Environmental Policy Act

Congress enacted NEPA “to use all practicable means,

consistent with other essential considerations of national

11
policy, to improve and coordinate Federal plans, functions,

programs, and resources to the end that the Nation may . . .

fulfill the responsibilities of each generation as trustee of

the environment for succeeding generations[.]” 42 U.S.C. §

4331(b); see also Pub. L. No. 91-190, § 2, 83 Stat. 852, 852

(1970) (establishing NEPA “to promote efforts which will prevent

or eliminate damage to the environment”). NEPA “requires that

federal agencies consider fully the environmental effects of

their proposed actions.” Theodore Roosevelt Conservation P’ship

v. Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010). The statute “is

an ‘essentially procedural’ statute, meant to ensure ‘a fully

informed and well-considered decision, not necessarily’ the best

decision.” Id. (quoting Vt. Yankee Nuclear Power Corp. v. Nat.

Res. Def. Council, Inc., 435 U.S. 519, 558, 98 S. Ct. 1197, 55

L. Ed. 2d 460 (1978)). NEPA “does not mandate particular results

in order to accomplish [its] ends[;]” instead, it only

procedurally requires agencies “to undertake analyses of the

environmental impact of their proposals and actions.” Del.

Riverkeeper Network v. FERC, 753 F.3d 1304, 1310 (D.C. Cir.

2014) (quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752,

756–57, 124 S. Ct. 2204, 159 L. Ed. 2d 60 (2004) (some internal

quotation marks omitted)). This analysis does not, however,

“require agencies to elevate environmental concerns over other

appropriate considerations . . . . [I]t require[s] only that the

12
agency take a ‘hard look’ at the environmental consequences

before taking a major action.” WildEarth Guardians v. Jewell,

738 F.3d 298, 303 (D.C. Cir. 2013) (quoting Balt. Gas & Elec.

Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97, 103 S. Ct.

2246, 76 L. Ed. 2d 437 (1983) (some internal quotation marks

omitted)); see also Robertson v. Methow Valley Citizens Council,

490 U.S. 332, 350, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989)

(noting that agencies are “not constrained by NEPA from deciding

that other values outweigh the environmental costs” of a

proposed action).

“To ensure a well-considered decision, NEPA requires that

when an agency proposes a ‘major Federal action[] significantly

affecting the quality of the human environment,’ the agency must

prepare and circulate for public review and comment an

environmental impact statement [(“EIS”)] that examines the

environmental impact of the proposed action and compares the

action to other alternatives.’” Theodore Roosevelt, 616 F.3d at

503 (quoting 42 U.S.C. § 4332(2)(C)). An EIS is a detailed

statement “prepared in consultation with other federal agencies

with special expertise relevant to the proposed action’s

environmental impact.” Id. “It must [ ] assess the impact the

proposed project will have in conjunction with other projects in

the same and surrounding areas—‘cumulative impact analysis’—and

must include past, present, and reasonably foreseeable future

13
actions of any agency or person.” Id. (citing 40 C.F.R. §§

1508.25, 1508.7). The EIS must also “explain in detail ‘any

adverse environmental effects which cannot be avoided should the

proposal be implemented[,]’” see id. (quoting 42 U.S.C. §

4332(2)(C)(ii)) (noting that implicit in this requirement “is an

understanding that the EIS will discuss the extent to which

adverse effects can be avoided” (citation omitted)); and “any

‘alternatives to the proposed action,’” WildEarth, 738 F.3d at

303 (quoting 42 U.S.C. § 4332(2)(C)(iii)). NEPA’s regulations

also require agencies “to discuss possible mitigation measures”

in the EIS. Theodore Roosevelt, 616 F.3d at 503 (citing 40

C.F.R. §§ 1508.25(b)(3), 1502.14(f), 1502.16(h), 1505.2(c)); see

also Robertson, 490 U.S. at 351 (“[O]ne important ingredient of

an EIS is the discussion of steps that can be taken to mitigate

adverse environmental consequences.”). In sum, the EIS “must

include ‘sufficient detail to ensure that the environmental

consequences have been fairly evaluated.’” Theodore Roosevelt,

616 F.3d at 503 (quoting Robertson, 490 U.S. at 352).

“The statutory requirement that a federal agency

contemplating a major action prepare such an [EIS] serves NEPA’s

‘action-forcing’ purpose in two important respects.” Robertson,

490 U.S. at 349. First, it “places upon an agency the obligation

to consider every significant aspect of the environmental impact

of a proposed action,” Vt. Yankee, 435 U.S. at 553; and second,

14
“it ensures that the agency will inform the public that it has

indeed considered environmental concerns in its decisionmaking

process[,]” Balt. Gas, 462 U.S. at 97; see also 40 C.F.R. §

1502.1 (requiring an EIS to (1) “provide full and fair

discussion of significant environmental impacts[,]” and

(2) “inform decision makers and the public of reasonable

alternatives that would avoid or minimize adverse impacts or

enhance the quality of the human environment”).

However, not all decisions require an EIS. Theodore

Roosevelt, 616 F.3d at 503. “If it is unclear whether an action

will ‘significantly affect[] the quality of the human

environment,’ 42 U.S.C. § 4332(2)(C), agencies may [first]

prepare an environmental assessment [(“EA”),]” id. (citing 40

C.F.R. § 1501.4(a)-(b)); which is “a more limited document,”

Pub. Citizen, 541 U.S. at 757. An EA “[b]riefly provide[s]

sufficient evidence and analysis for determining whether to

prepare an [EIS.]” 40 C.F.R. § 1508.9(a)(1). Even if the agency

determines that it need only perform an EA, it must still

briefly discuss the need for the proposed action, the

alternatives, and the environmental impacts of the proposed

action and alternatives. Id. § 1501.5(c). If the agency

determines that a full EIS is not required, it must issue a

finding of no significant impact, “which briefly presents the

reasons why the proposed agency action will not have a

15
significant impact on the human environment.” Pub. Citizen, 541

U.S. at 757-58; see also 40 C.F.R. § 1501.6.

“[I]nherent in NEPA and its implementing regulations is a

‘rule of reason,’ which ensures that agencies determine whether

and to what extent to prepare an EIS based on the usefulness of

any new potential information to the decisionmaking process.”

Pub. Citizen, 541 U.S. at 767. If the agency determines that the

“the preparation of an EIS would serve ‘no purpose’ in light of

NEPA’s regulatory scheme as a whole,” then the rule of reason

dictates that the agency does not need to prepare one. Id. Thus,

in preparing an EA or EIS, the “agency need not foresee the

unforeseeable, but by the same token neither can it avoid

drafting an impact statement simply because describing the

environmental effects of and alternatives to particular agency

action involves some degree of forecasting.” Scientists’ Inst.

for Pub. Info., Inc. v. Atomic Energy Comm’n, 481 F.2d 1079,

1092 (D.C. Cir. 1973). “Reasonable forecasting and speculation

[are] thus implicit in NEPA, and [courts] must reject any

attempt by agencies to shirk their responsibilities under NEPA

by labeling any and all discussion of future environmental

effects as ‘crystal ball inquiry.’” Id. While NEPA does not

demand forecasting that is “not meaningfully possible[,]” the

agency must, pursuant to the rule of reason, fulfill its

16
“statutory duty of compliance with impact statement procedures

to ‘the fullest extent possible.’” Id. (citation omitted).

B. Factual Background

This action arises from the Corps’ operation of several

dams and federal reservoirs in the ACT River Basin, which is

formed by the Alabama, Coosa, Tallapoosa Rivers, and their

tributaries and drainage areas. A.R., ECF No. 61 at D-00044720.

The ACT Basin comprises 22,739 square miles in Alabama and

Georgia, see id.; with the various rivers flowing from northern

Georgia towards southern Alabama and into the Gulf of Mexico,

see id. at D-00043909. There are seventeen large dams located on

the mainstem rivers of the ACT Basin. Id. at D-00044178. The

Corps owns and operates six of these dams, and the remaining

eleven are privately-owned and operated by APC. Id. Two of the

Corps’ dams, Carters Dam and Allatoona Dam, are located in

Georgia upstream from the other dams, which are located in

Alabama. See id. at D-00043909.

1. Authorized Project Purposes of the Corps’
Reservoir Projects in the ACT Basin and the
Development of Governing Water Control Manuals

All Corps’ projects in the ACT Basin operate pursuant to

federal legislation authorizing certain enumerated project

purposes. Id. at D-00043779. In the River and Harbor Act of

1945, Congress authorized the development of the Alabama-Coosa

River and tributaries for three expressly authorized project

17
purposes—(1) navigation, (2) flood risk management, 4 and

(3) power development—as well as for generalized “other

purposes.” Id.; Pub. L. No. 79-14, § 2, 59 Stat. 10, 17 (1945).

“Other operational objectives” that derive from authorities

generally applicable to all Corps reservoirs have been added

over time and include: (4) fish and wildlife conservation (Fish

and Wildlife Coordination Act of 1958, Pub. L. No. 85-624, and

Endangered Species Act of 1973, Pub. L. No. 93-205);

(5) recreation (Flood Control Act of 1944, Pub. L. No. 78-534);

(6) water quality (Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500); and (7) water supply (Water Supply

Act of 1958, Pub. L. No. 85-500). A.R., ECF No. 61 at D-

00043779. While Corps’ projects in the ACT Basin operate in “a

system-wide context” to serve these authorized purposes, “each

individual project might not operate for all seven purposes.” 5

Id.

4 In 2006, the Corps began using the term “flood risk management”
in lieu of the term “flood control” to “more appropriately
characterize[]” its mission. A.R., ECF No. 61 at D-00043862. The
Court does the same unless quoting the administrative record.
5 In 1954, Congress suspended parts of the River and Harbor Act

of 1945 to permit APC to develop its own projects on the Coosa
River under a license issued by the Federal Power Commission
(now the Federal Energy Regulatory Commission). A.R., ECF No. 61
at D-00043985. Today, four APC projects (Weiss Lake, H. Neely
Henry Lake, Logan Martin Lake, and R.L. Harris Lake) are
authorized to operate for navigation and flood risk management
in coordination with the Corps and in accordance with Corps
regulations. Id. at D-00043985-86, D-00044178.
18
 In practice, authorized project purposes often conflict

with one another, requiring the Corps to develop the Master

Manual and separate water control manuals (“WCMs”) for

individual reservoir projects describing how the Corps will

operate the ACT system to balance conflicting purposes,

consistent with congressional direction. Id. at D-00043772; In

re ACF Basin, 467 F. Supp. 3d at 1328; see also 33 U.S.C. § 709

(“[I]t shall be the duty of the Secretary of the Army to

prescribe regulations for the use of storage allocated for flood

control or navigation at all reservoirs . . . , and the

operation of any such project shall be in accordance with such

regulations[.]”); 33 C.F.R. § 222.5(a) (prescribing the policies

and procedures to be followed by the Corps “in carrying out

water control management activities, including establishment of

water control plans for Corps and non-Corps projects”). These

WCMs provide technical information “that guides the proper

management of reservoirs during times of high water, low water,

and normal conditions” and “specify how the various reservoir

projects will be operated as a balanced system.” A.R., ECF No.

61 at D-00043780. Specifically, the Master Manual contains

“drought plans and storage zones to assist federal water

managers to know when to reduce or increase reservoir releases

and conserve storage in the [Corps’] reservoirs” and guidance on

how to provide for proper “water control regulation and

19
coordination for the safety of dams during extreme conditions

such as floods.” Id. The previous official Master Manual for the

ACT system was adopted in 1951, with individual reservoir

manuals being “completed as the projects came on line.” Id. at

D-00043862.

2. The Allatoona Reservoir Project, Its History,
and Its Authorized Project Purposes

The Allatoona Project, at the center of this litigation, is

located on the Etowah River in Georgia. Id. at D-00013496.0024.

The Etowah River flows from Georgia towards the Coosa River,

which joins with the Tallapoosa River downstream near

Montgomery, Alabama to form the Alabama River, which combines

with the Tombigbee River to become the Mobile River, which

ultimately drains through Mobile Bay to the Gulf of Mexico. Id.

The Allatoona Project consists of the reservoir at Allatoona

Lake formed by Allatoona Dam. Id. at D-00044896-98. The drainage

area for Allatoona Lake is 1,122 square miles, which equates to

less than five percent of the ACT Basin. See id. at D-00043778.

Allatoona is the site of one of the Corps’ storage projects,

“meaning that the Corps varies the reservoir level depending on

whether the season typically is ‘wet’ or ‘dry.’” Pls.’ Mot., ECF

No. 83 at 14. “[T]he need for water in the summer and fall often

is greater than the supply of water in the river basin[,]” so an

important function of many of the Corps’ ACT Basin reservoirs

20
“is to store water when there is an abundance of rain and to

release water when there is less rain, ensuring that all water

needs can be met throughout the year.” A.R., ECF No. 61 at D-

00043910. At the Allatoona Reservoir, the Corps generally stores

water during the spring wet period that is released in the late

summer and fall dry periods to generate hydropower, provide

downstream flows, and support water quality, and it keeps lake

levels low during the winter to provide for additional flood

storage. See id. at D-00043910-11, D-00044948-49. At “full

flood-control pool” level, the reservoir has a total storage

capacity of 670,047 acre-feet. Id. at D-00044898.

The idea for the Allatoona Project began circulating in the

early 1900s, see id. at D-00044902; and in 1934, the Corps

submitted a report to Congress, published in House Document No.

66, recommending construction of a dam and reservoir at the top

of the basin at Allatoona “for the purposes of navigation and

efficient development of water power, the control of floods, and

the needs of irrigation[,]” id. at D-00053515 (H.R. Doc. No. 66,

74th Cong. (1935)). At the time of the report, the economic

aspect of the Allatoona Project appeared unfavorable. Id. at D-

00044902. Several years later, however, Congress requested that

the Board of Engineers for Rivers and Harbors review the Corps’

1934 report “with a view to determining the advisability of

constructing” the Allatoona Project “for the development of

21
hydroelectric power and the improvement of the river below the

dams for navigation as well as for other beneficial effects.”

Id. at D-00013497.0002 (H.R. Doc. No. 674, 76th Cong. (1940)).

“After full consideration of the [Corps’] reports,” in a 1940

report, published in House Document No. 674, the Board of

Engineers recommended construction of the Allatoona Reservoir on

the Etowah River “for the control of floods, regulation of

stream flow for navigation, and the development of hydroelectric

power[.]” Id.; see also id. at D-00013497.0004 (assessing the

Corps’ plan “for the construction of a storage reservoir at the

Allatoona site . . . to be operated in the combined interests of

flood control and power development” and noting that the power

storage provided in the reservoir would increase the minimum

stream flow, which would in turn increase capacity at downstream

hydropower developments). Congress then passed the Flood Control

Act of 1941 authorizing the Corps to build and operate the

Allatoona Project. See Pub. L. No. 77-228, 55 Stat. 638, 638-41

(1941). In that Act, Congress “approved” “the recommendation of

the Chief of Engineers in House Document Numbered 674” and

“authorized $3,000,000 for initiation and partial accomplishment

of the [Allatoona P]roject” in accordance with that document.

Id. at 641; see also A.R., ECF No. 61 at D-00053808.

Due to rapid economic expansion in the basin in the late

1930s, and “in response to outstanding Congressional directives

22
calling for review of earlier comprehensive reports to determine

whether any change in previous recommendations was desirable[,]”

A.R., ECF No. 61 at D-00044756-57; in October 1941, the

Secretary of War submitted to Congress an interim report of the

Corps, printed as House Document No. 414, that “developed a

comprehensive plan for navigation, power generation, and flood

control in th[e] basin” as a whole, see A.R., ECF No. 61 at D-

00053819, D-00053821 ¶ 5 (H.R. Doc. No. 414, 77th Cong. (1941));

to be accomplished step-by-step over a period of years in

accordance with plans prepared by the U.S. Army’s Chief of

Engineers, id. at D-00044757. A few months later, in December

1941, the Corps issued to the Chief of Engineers a “Definite

Project Report,” which presented a “project plan” for the

construction of the Allatoona Dam and Reservoir on the Etowah

River. Id. at SUPPAR027125, SUPPAR027127, D-00013496.0020. This

report made recommendations in substantial agreement with the

original plan, “with the exception that a larger amount of

storage [be] allotted to the production of hydroelectric

power[,] with a corresponding decrease in storage reserved for

flood control.” 6 Id. at SUPPAR027125. The plan called flood risk

6 After construction began on the Allatoona Reservoir, storage
allocations were again reconsidered in 1946. A.R., ECF No. 61 at
D-00013496.0020. Congress’ original authorization in 1941 called
for 422,500 acre-feet of flood control storage and 182,500 acre-
feet of power storage. Id. at D-00013497.0018. Then, in the 1941
Definite Project Report, flood control storage decreased to
23
management and power “the dual purpose[s]” of the reservoir and

anticipated that its hydropower plant “would be used primarily

as a peaking plant 7 or for intermittent operation.” Id. at

SUPPAR027127, SUPPAR027131, SUPPAR027186. The plan also

predicted that the “regulated flow from Allatoona Dam would

increase the minimum flow at the downstream plants . . . and

would increase their firm [electric generating] capacity[.]” Id.

at SUPPAR027187. Ultimately, Congress passed the River and

Harbor Act of 1945, incorporating the Allatoona Project into the

overall plan for the ACT Basin’s “[i]nitial and ultimate

development” for “navigation, flood control, power development,

and other purposes, as outlined in House Document Numbered 414,

. . . with such modifications thereof from time to time as . . .

may be advisable for the purpose of increasing the development

of hydroelectric power[.]” Pub. L. No. 79-14, § 2, 59 Stat. 10,

17 (1945). In 1949, the Corps completed construction at

Allatoona, and the reservoir was filled until normal operations

began in June 1950, with the project reaching full conservation

pool on April 3, 1951. A.R., ECF No. 61 at D-00044759.

212,000 acre-feet, and power storage increased to 456,000 acre-
feet. Id. at SUPPAR027127. The 1946 reconsideration resulted in
389,000 acre-feet allocated to flood control and 253,000 acre-
feet for power generation. Id. at D-00013496.0020.
7 A peaking plant releases water through the turbines of a dam

and generates power at times of most, or “peak” demand.
24
 Today, the Allatoona Project operates pursuant to its seven

authorized project purposes: “hydropower, flood risk management,

navigation, recreation, water quality, fish and wildlife

conservation, and water supply.” Id. at D-00044902. To fulfill

the hydropower purpose, the Corps releases water through

turbines at Allatoona Dam to generate daily peak hydropower

during periods of high use, with the number of hours of peaking

operations per day varying based on other system needs. 8 Id. at

D-00043784, D-00043931, D-00013496.0016. These water releases

also “indirectly” benefit navigation, a project purpose for

which Allatoona was authorized but “is not regulated . . .

because it is located distant from the navigation channel[,] and

any releases for that purpose would be captured and reregulated

by the [APC] reservoirs located downstream.” Id. at D-

00013496.0022, D-00044802. Nonetheless, water releases from

Allatoona assist in the creation of downstream flows towards the

Alabama River, which provides an important navigation route for

commercial barge traffic from Montgomery to the Mobile area. Id.

at D-00044801. Additionally, water releases during dry seasons

8 There are eleven daily peaking hours during the winter period
from October 1 through March 31: 5:00 a.m. to 9:00 a.m. and 3:00
p.m. to 10 p.m., Monday through Friday, and six during the
summer period from April 1 through September 30: 1:00 p.m. to
7:00 p.m., Monday through Friday. A.R., ECF No. 61 at D-
00044449. “The maximum daily amount of peak generation for each
plant [is] then defined as the product of the number of daily
peaking hours times the installed capacity of the plant.” Id.
25
provide for an increased water supply and improved water quality

for municipal and industrial uses in downstream metropolitan

areas. Id. at D-00013496.0016. Meanwhile, the Corps also retains

some water in storage, approximately seven percent of

Allatoona’s storage capacity, for local municipal water supply

pursuant to decades-old contracts with the CC-MWA and the City

of Cartersville, Georgia. Id. at 5813, SUPPAR012820. To fulfill

Allatoona’s flood risk management purpose, the Corps maintains

empty space at the top of the reservoir, which is reserved to

store water during flood conditions. Id. at D-00043931. These

operations are intended to provide flood protection at Rome,

Georgia and at APC’s Weiss Dam on the Coosa River. Id. at D-

00013496.0016, D-00044796. Finally, to satisfy Allatoona’s

recreation purpose and allow for activities such as boating,

fishing, and water skiing, lake levels are kept at higher levels

during peak recreation season, generally Memorial Day through

Labor Day, during which time the Corps considers recreational

needs in making water management decisions. Id. at D-00044797.

In sum, as a “multiple purpose project,” the Corps must operate

the Allatoona Project with all seven of its authorized purposes

in mind. Id. at D-00013496.0016.

26
 3. Prior Versions of the Allatoona Project’s Water
Control Manual: 1951, 1962, 1968, and a 1993
Draft Version

Following the Corps’ promulgation of the 1951 ACT Master

Manual, it also adopted finalized versions of a separate WCM for

the Allatoona Project in 1951, 1962, and 1968. Pls.’ Mot., ECF

No. 83 at 20. Of note, the 1951 Allatoona Manual stated that the

project was to be “operated as a peaking plant for the

production of hydroelectric power and during off-peak periods

[would] maintain a flow of about 200” cubic feet per second

(“cfs”) through the Allatoona Dam’s smaller “service unit.”

A.R., ECF No. 61 at D-00011308.0018. That manual also stated

that “[d]uring low-water periods such regulation [would] provide

increased flow downstream for navigation, water supply,

pollution abatement, and other purposes[,]” but that “the

primary purpose of the project [was] flood control[.]” Id. To

accomplish these aims, this manual (and subsequent ones) split

Allatoona’s reservoir storage capacity into two “operating

pools”: (1) the “conservation” or “power” pool that operates for

several purposes, including hydropower generation; and (2) above

that, the “flood pool” that extends the reservoir’s operating

capacity to accommodate high flow and prevent downstream floods.

Defs.’ Cross-Mot., ECF No. 95 at 21-22 (citing A.R., ECF No. 61

at D-00044948); A.R., ECF No. 61 at D-00011308.0010 (explaining

the varying elevations for the “power pool” and the “flood-

27
control pool” and the accompanying storage allocations for flood

control and power). The area that splits the top of the

conservation pool and flood pool is the “rule” or “guide” curve

for power operations, which the 1951 Allatoona Manual created

for the first time, see A.R., ECF No. 61 at D-00011308.0043

(graphically depicting the “rule curve”); thereby giving

engineers “targets for reservoir elevations throughout the

year[,]” including when to fill the reservoir, when to maintain

it at a particular level, and when to release, or “draw down,”

the water, Pls.’ Mot., ECF No. 83 at 22. The 1951 Allatoona rule

curve required filling the reservoir in the spring, maintaining

it at a steady elevation during the summer, and drawing it down

by about twenty feet in elevation from September to December to

facilitate the release of water. Id. (citing A.R., ECF No. 61 at

D-00011308.0019, D-00011308.0021, D-00011308.0043).

Studies conducted in 1952 indicated that the Allatoona

Project’s overall benefits could be increased “by varying the

storage allocations in the reservoir on a seasonal basis.” A.R.,

ECF No. 61 at D-00013501.0014. As result, the revised 1962

Allatoona Manual required raising the top of the power pool

during the summer with a compulsory drawdown prior to the flood

season so as to create “increase[s] in power revenue with no

reduction in flood-control benefits.” Id. Under this operating

plan, the top of the power pool was to be kept at elevation 840

28
feet from May through August, drawn down from 840 to 820 feet

from September through December, and elevated from 820 to 840

feet from January through April. Id. As the 1962 manual

explained, the “storage delineation curve,” developed from a

study of past stream-flow records and then-existing power

contract requirements, showed “the seasonal variation” in the

top of the power pool and represented “a firm division” between

the power and flood pools, normally requiring that the reservoir

level “be maintained at or below the curve except when storing

flood waters.” Id. at D-00013501.0028. The manual further stated

that the principal purpose of the guide curve was “to indicate

when excess energy [was] available and when power declarations

[were to] be limited to minimum contract commitments.” Id. Like

the 1951 version, the 1962 manual also stated that Allatoona was

to be operated as a “peaking power plant,” id. at D-

00013501.0016; and it upped the minimum monthly flow from 200 to

240 cfs, id. at D-00013501.0010.

The Corps again revised the Allatoona Manual in 1968,

modifying the top of the power pool to extend the time that the

maximum elevation level could be held at 840 feet for one month,

or through September, so long as adequate flows were available,

id. at D-00011371.0003; a change which was expected to benefit

recreation, power, low-flow control, and navigation, id. at D-

00013501.0015, D-00044904; and provide “more flexibility in the

29
operation of the plant in the system[,]” id. at D-00011371.003.

Under this plan, the revised top-of-power-pool curve had a top

level at elevation 840 feet during May through September

(assuming favorable flow conditions); varied uniformly from 840

to 823 feet during October through December 15 (i.e., commenced

the drawdown on October 1); remained at elevation 823 feet from

December 15 through January 15; and then varied uniformly from

823 feet on January 15 to 840 feet at the end of April. Id. at

D-00044904, D-00013501.0015, D-00011371.0003; see also id. at D-

00013501.0067 (depicting the 1968 “guide curve for power

operation,” which included the “top of power pool” curve and the

lower “power guide curve”), D-00013501.0064 (depicting the 1968

operating rules for the power and flood control pools and the

“seasonal curve”). The Corps later prepared a report, based on

then-available data, concluding that there would be “little, if

any, benefit to recreation and no adverse effects due to the

modification of the top of power pool[,]” instead finding that

the higher pool levels during such periods would “provide

additional head for power generation and also benefit downstream

low flow control and navigation by retaining additional water in

storage for release during the normally dry months of October

and November.” Id. at D-00011371.0004. While the Corps was

conducting its ACT operations under the 1951 Master Manual and

this 1968 Allatoona Manual, NEPA was enacted into law in 1969,

30
thereby requiring the Corps to issue an EIS about any “major

Federal actions significantly affecting the quality of the human

environment” as a result of its ACT operations. 42 U.S.C. §

4332(2)(C). In 1974, in accordance with that obligation, the

Corps issued a final environmental impact statement (“FEIS”)

related to its then-existing Allatoona operations. See generally

A.R., ECF No. 61 at D-00004143.

In 1993, the Corps drafted another revised version of the

Allatoona Manual (the “1993 Draft Manual”) but did not finalize

that version or subject it to NEPA’s environmental review. See

generally id. at D-00013496; see also id. at D-00010026.0005;

Pls.’ Opp’n, ECF No. 83 at 23. According to the Alabama

Plaintiffs, the Corps purported to operate the Allatoona Project

under the 1993 Draft Manual, rather than earlier finalized

versions, from 1993 until its adoption of the 2015 Master

Manual, even though the 1993 Draft Manual made five “significant

changes to Allatoona’s operations” that were never properly

reviewed under NEPA. Pls.’ Opp’n, ECF No. 83 at 23-24; Compl.,

ECF No. 1 at 7 ¶¶ 24-25. First, the 1993 Draft Manual divided

the conservation pool into two “action zones” to be “used as a

guide to the generation to be provided from the Allatoona

[P]roject towards meeting the system hydropower contract.” A.R.,

ECF No. 61 at D-00013496.0041; see also id. at D-00013496.0072

(graphically depicting the two 1993 action zones), D-00044761

31
(explaining that “a system of action zones” was initially

developed in 1989 before being “implemented to guide operations

at Allatoona Lake”); Defs.’ Cross-Mot., ECF No. 95 at 22 n.5

(defining action zones as “essentially lake levels at which the

Corps makes various operational changes”). When the pool was in

Zone 1—the highest lake level—project conditions were “normal to

wetter than normal,” allowing “full consideration” to be given

to meeting hydropower contract amounts, while balancing other

project purposes and Allatoona’s drawdown with other lakes in

the basin. A.R., ECF No. 61 at D-00013496.0041. When the lake

was in Zone 1, the Draft Manual required “between two and six

hours of full powerhouse generation.” Id. at D-00013496.0072. As

pool levels declined into Zone 2, indicating “dry or impending

drought conditions[,]” “[m]ore conservative operations” were

required, and “the minimum generation to support dependable

hydropower capacity would generally be run.” Id. at D-

00013496.0041-42. If drought conditions became severe, resulting

in reductions in reservoir releases, Zone 2 was to be “reserved

for emergency needs, either hydropower or downstream water

supply, water quality or other extreme needs.” Id. at D-

00013496.0042. When projected conditions indicated a strong

possibility of exhausting conservation storage, the manual

allowed for routine hydropower generation to be scaled back or

suspended, among other conservative measures, depending on the

32
drought severity. Id. Nonetheless, minimum continuous releases

of 240 cfs, via the small hydropower unit, “plus two hours peak

power generation each weekday” continued to be the operational

objectives when the pool was in Zone 2. Id. at D-00013496.0072.

In addition, the 1993 Draft Manual continued the “compulsory

drawdown to elevation 823 feet in advance of flood season[,]”

providing “467,280 acre-feet of flood control (elevation 823 to

860) as compared to 302,580 acre-feet of storage (elevation 840

to 860) during the summer season[,]” and it required the

conservation pool to be regulated at a minimum elevation of 800

feet. Id. at D-00013496.0041.

In addition to these changes associated with the two action

zones, the Alabama Plaintiffs argue that the 1993 Draft Manual:

(1) reduced the storage available for Allatoona’s authorized

hydropower purpose; (2) decreased navigation support by not

treating navigation as an “operating purpose” despite it being

an “authorized purpose” of Allatoona; (3) reduced the amount of

storage available for flood risk management to achieve higher

lake levels when it designated a portion of the flood control

storage pool where water could be stored “indefinitely” as a

precaution against possible impending drought; and (4) adopted

new “recreation impact levels” for the Corps to consider when

making water management decisions at Allatoona, to be applied

during peak recreation season. Pls.’ Mot., ECF No. 83 at 25

33
(citing A.R., ECF No. 61 at D-00013496.0050, D-00013496.0064, D-

00013496.0022, D-00013496.0073, D-00013496.0045-46). The 1993

Draft Manual was embroiled in years of litigation between the

Corps, the State of Alabama, and APC, among other parties, but

in 2012, the District Court for the Northern District of Alabama

(“Northern District of Alabama”) dismissed the action’s NEPA

claims for lack of subject matter jurisdiction because the draft

was never finalized and therefore did not represent “final

agency action,” as required by the APA. See Order, Alabama v.

U.S. Army Corps of Eng’rs, No. 90-1331 (N.D. Ala. July 3, 2012),

ECF No. 771 at 1-3.

4. The Process for Revising and Adopting the
Updated 2015 Master Manual, the Allatoona
Project Water Control Manual, and the FEIS

In 2007, after the 2004 expiration of a congressionally-

approved interstate compact for the ACT Basin and a period of

court-ordered mediation, and in the “midst of a severe and

extraordinary drought,” the Corps reinitiated the process of

updating the ACT Master Manual by publishing notice in the

Federal Register that it intended to prepare an EIS for the ACT

WCM update pursuant to NEPA’s requirements. A.R., ECF No. 61 at

D-00043781, D-00043862; Defs.’ Cross-Mot., ECF No. 95 at 11, 17.

Thereafter, the Corps began a public “scoping process” to

“identify all the relevant issues and alternatives that should

be addressed in the EIS[.]” A.R., ECF No. 61 at D-00043865.

34
After identifying key challenges, the Corps adopted “objectives”

for the Master Manual update, which included to: (1) define flow

requirements for APC projects to support navigation; (2) develop

a basin-wide drought management plan, as required by Corps

regulations; (3) improve downstream conditions for fish and

wildlife conservation; (4) “[i]mprove system performance to

achieve congressionally authorized project purposes,”

specifically by modifying hydropower operations at Allatoona

Lake, operations which historically had adverse effects on the

Corps’ ability to balance project purposes during drought; and

(5) incorporate changes in APC project operations due to APC’s

relicensing of its Coosa River project. Id. at D-00044194-96.

Overall, the FEIS notes that conditions in the ACT Basin “have

changed substantially since the federal reservoirs were

authorized and constructed,” and it identified as the “purpose

and need” of the update “determin[ing] how the federal projects

in the ACT Basin should be operated for their authorized

purposes, in light of current conditions and applicable law,”

and implementing those operations. Id. at D-00043862-63; see

also 33 C.F.R. § 222.5(f)(3) (allowing water control plans

developed for specific projects and reservoir systems to be

“revised as necessary to conform with changing requirements

resulting from developments in the project area and downstream,

improvements in technology, new legislation and other relevant

35
factors, provided such revisions comply with existing Federal

regulations and established Corps of Engineers policy”).

In light of the update’s enumerated objectives and purpose,

the Corps identified various “management measures,” defined as

“a feature or activity that can be implemented at a specific

geographical site to address one or more of the objectives.” Id.

at D-00044196. The measures considered were: “variations for

revising reservoir guide curves and conservation storage action

zones; revising hydropower generation plans for water control

regulation; revising drought procedures and environmental flows;

and developing navigation-specific operations.” Id. The Corps

then developed nine screening criteria, see id. at D-00043868;

against which to consider each management measure, eliminating

those which failed and carrying forward the ones that passed and

combining them “to form basin-wide alternative plans[,]” id. at

D-00044197, D-00044227. On March 1, 2013, the Corps released a

draft EIS, id. at D-00043776; evaluating twelve management

alternatives, see id. at D-00044228 (summarizing, in chart form,

the “alternative management measures”); starting with the “No-

Action Alternative,” reflecting the “continuation of the current

water control operations at each of the federal projects in the

ACT Basin[,]” and adding one measure at a time, such that the

alternatives built upon each other, id. at D-00044227.

36
 There was a public notice and comment period on the draft

EIS, see 33 U.S.C. § 2319 (requiring the Corps to “provide

significant opportunities for public participation” when

revising WCMs); and on November 7, 2014, the Corps released the

revised ACT Master Manual and a more than 900-page FEIS, which

“included all comments on the Draft EIS and the detailed [Corps]

responses to those comments[,]” A.R., ECF No. 61 at D-00053483.

The Corps also accepted and responded to public comments on the

FEIS. See, e.g., id. at D-00043396, D-00043408, D-00046601, D-

00049511, D-00066475, D-00053483-84. In the FEIS, the Corps used

data models to simulate the effects of the alternative plans

across the entire hydrologic period of record (1939-2011),

“which were then evaluated in terms of project and watershed

criteria (channel availability, generation and capacity,

reservoir recreation impact levels, and other authorized

purposes, intended benefits, and existing uses in the system).”

Id. at D-00053479. The data results led the Corps to briefly

discuss and eliminate eight alternatives, while carrying forward

four for further analysis—the No-Action Alternative and Plans D,

F, and G. See id. at D-00044226-58. The Corps selected Plan G as

its “Proposed Action Alternative” or “Preferred Alternative,”

id. at D-00044246; for consisting “of the combination of water

management measures that are expected to meet the objectives and

best balance system operations[,]” and concluded, based on its

37
analysis, that “[i]mpacts on the human and natural environment

associated with the recommended water management plan compared

to current operations (No-Action Alternative) were found to be

negligible to minor[,]” id. at D-00053479.

On May 4, 2015, the Corps issued its Record of Decision

(“ROD”), thereby formally adopting the revised ACT Master Manual

and individual WCMs and commencing operations under them. See

id. at D-00053477-87. The ROD, representing “final agency

action,” stated that the Corps “took a balanced approach” in

updating the Master Manual and recognized that “there may be

occasions where conflicts exist between the individualized

authorized purposes” for the basin and its various reservoir

projects. Id. at D-00053478-79. Defendants contend that given

“[c]ongressional intent to delegate complex reservoir system

management to the Corps, the agency is entitled to significant

deference” in its revisions to its WCMs. See Defs.’ Cross-Mot.,

ECF No. 95 at 15-16.

5. Key Features of the Updated Master Manual and
the Allatoona Project Water Control Manual, and
the Specific Changes to Which the Alabama
Plaintiffs and Intervenor-Plaintiffs Object

Defendants state that “[i]t is impossible to summarize the

many changes in the expansive Master Manual,” but they note

several “beneficial changes,” including the development of a

drought management plan in coordination with stakeholders

38
(including the Alabama Plaintiffs); seasonal navigation releases

to support commercial navigation; and “adjustments to hydropower

to better match seasonal demands and balance all project

purposes during drought.” Defs.’ Cross-Mot., ECF No. 95 at 17.

The ROD also lists features of the revised water management plan

specific to the Allatoona Project, including: (1) continued

operation of Allatoona Dam to provide for a 240 cfs minimum flow

immediately downstream of the dam; (2) a revised guide curve at

Allatoona Lake to implement a phased fall drawdown period from

early September through December; (3) revised action zones at

Allatoona Lake shaped to mimic the seasonal demands for

hydropower; (4) modifications to the hydropower schedule at

Allatoona Dam to provide greater operational flexibility to meet

power demands while conserving storage; and (5) continued

withdrawal of water from Allatoona Lake by the CC-MWA and the

City of Cartersville, Georgia under existing water supply

storage agreements. A.R., ECF No. 61 at D-00053478.

The FEIS fills in the details regarding Allatoona’s updated

features, stating that “[a] seasonal conservation pool

regulation guide curve and conservation storage action zones

have been developed to guide” the Corps in making balanced water

control management decisions. Id. at D-00044949. The FEIS

explains that Allatoona’s conservation pool is now regulated

between a minimum elevation of 800 feet and a seasonal variable

39
top-of-conservation pool ranging between elevations 823 and 840

feet. Id. at D-00044948. Specifically, the top of conservation

elevation is 840 feet from May 1 to September 5; drawn down to

835 feet by October 1; held steady at 835 feet through November

15; drawn down to 823 feet by December 31 for additional flood

storage; and held steady at 823 feet until the refill period—

back up to 840 feet—begins on January 16. Id. at D-00044949, D-

00044904. This revised guide curve is supplemented by four new

action zones within the conservation storage pool, which are to

be “used as a general guide to the hydropower peaking generation

available from the Allatoona Project to help meet system

hydropower commitments.” Id. at D-00044949. The FEIS describes

the operations for each zone and its accompanying peaking

generation schedule—up to four hours in Zone 1, up to 3 hours in

Zone 2, up to 2 hours in Zone 3, and 0 hours in Zone 4—and

explains that the zones are “used to manage the lake at the

highest level possible within the conservation storage pool

while balancing the needs of all authorized purposes” at

Allatoona. Id. at D-00044949-51. In addition, above the top of

the conservation pool is the flood control pool, divided into

Zones A through E. Id. at D-00045086. “During the fall step down

period the pool may be held at the top of Zone A indefinitely if

all project purposes are met[,]” as Zone A “has the least

urgency for being evacuated.” Id.

40
 The Alabama Plaintiffs take issue with three changes at the

Allatoona Project: “(1) the revised action zones, (2) the fall

phased drawdown (or phased) guide curve, and (3) reduced fall

hydropower generation”—all of which they claim raises lake

levels to benefit recreation, while reducing power generation,

navigation support, and flood risk management. Pls.’ Mot., ECF

No. 83 at 27. They argue that: (1) the new action zones reduce

the storage the Corps can use to generate power; (2) the new

phased guide curve reduces downstream flows during a critical

period in the fall; (3) the operational changes give the Corps

unfounded discretion to eliminate hydropower generation at any

time in all of the action zones; (4) the new Master Manual

eliminates navigation support by disclaiming any obligation to

the “distant” navigation channel; and (5) the Master Manual

reduces flood storage by allowing the Corps to store water in

Zone A of the flood pool “indefinitely,” further reducing

downstream flows. Id. at 28-30. As a result of these changes,

the Alabama Plaintiffs argue that there will be “substantially

decrease[d] flows into Alabama during low-flow and drought

periods[,]” which will result in “reduced hydropower generation,

reduced lake levels at [APC]’s Coosa and Tallapoosa River

projects, [ ] impaired water quality, especially in the Coosa

River and at [APC]’s Weiss Lake[,]” and increased frequency in

drought conditions at the Alabama-Georgia state line. Id. at 33.

41
 Intervenor-Plaintiffs—the Montgomery Board, Mobile Water,

Russell Lands, and LMRA—also argue that they are harmed by the

Master Manual. The Montgomery Board is a public water utility in

Montgomery, Alabama that provides water and wastewater services.

Intervenor-Pls.’ Mot., ECF No. 85 at 9. Its service area is

located within the watershed of the ACT Basin, as it obtains

over sixty percent of its water supply from the Tallapoosa River

and has wastewater facilities on the Alabama and Tallapoosa

Rivers. Id. The Montgomery Board argues that the Master Manual

reduces water flows, thereby causing “the overall degradation of

water quality, impairment of [its] ability to treat wastewater

adequately, [ ] impairment of [its] ability to conduct and rely

upon long range planning and analysis[,]” and forced

modifications to its facilities so as to maintain compliance

with NPDES permits. Id. at 9-10. Mobile Water provides fresh

water unencumbered with salt or brine from tidal influences of

the Mobile Bay for use in industrial processes and as a source

of drinking water for residential and commercial customers. Id.

at 10. Mobile Water argues that reduced flows will result in

salt water intrusions up the Mobile River that will render the

water unacceptable for some industrial uses. Id. at 10-11. Lake

Martin is an APC reservoir on the Tallapoosa River located near

major population centers in Alabama and Georgia. Id. at 12. Lake

Martin offers “outstanding water quality” to Alabama and various

42
economic benefits resulting from major recreational seasons on

the lake in late spring, summer, and fall. Id. Lake Martin is

also important to the members of LMRA, the business of Russell

Lands, and Alabama’s economy generally, for example in terms of

jobs supported by recreation and real estate activity. Id. Both

Russell Lands and LMRA argue that lower flows from Allatoona, as

required by the updated Master Manual, will cause lower water

levels in Lake Martin in the summer and fall that will hurt APC

projects on the Coosa and Tallapoosa Rivers and damage

recreation at the lake. Id. at 12-13.

C. Procedural Background

The State of Alabama filed suit against Defendants on May

7, 2015, alleging that the Corps: (1) unlawfully abandoned and

reordered the Allatoona Project’s authorized project purposes

(Count One); (2) violated the CWA and Corps’ implementing

regulations requiring it to implement a water-quality management

program that complies with federal and state water quality

standards (Count Two); (3) violated NEPA by conducting a flawed

environmental impacts analysis, along with other modeling and

data errors (Count Three); and (4) violated the APA because the

updated Master Manual is contrary to the requirements of the

Flood Control Act of 1941, the CWA, NEPA, Corps’ regulations,

and prior operational precedents, is in excess of the limits

Congress placed on the Corps’ statutory authority without a

43
reasoned basis, does not meaningfully respond to objections

raised by commenters, and is therefore “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law”

(Count Four). See Compl., ECF No. 1 at 22-27 ¶¶ 95-114. On that

same day, APC filed suit against the same defendants, alleging

similar claims under the APA, CWA, and NEPA. See Compl., Ala.

Power Co. v. U.S. Army Corps of Eng’rs, No. 15-699 (EGS) (D.D.C.

May 7, 2015), ECF No. 1 at 36-42 ¶¶ 103-132. On July 25, 2016,

the Court found that these two cases “involve[d] common issues

of fact and gr[e]w out of the same event or transaction,” and

therefore consolidated the cases pursuant to Federal Rule of

Civil Procedure 42(a). See Min. Order, Ala. Power Co. v. U.S.

Army Corps of Eng’rs, No. 15-699 (EGS) (D.D.C. July 25, 2016).

The Alabama Plaintiffs seek relief pursuant to the APA and

the Declaratory Judgment Act. Compl., ECF No. 1 at 27. First,

they ask the Court to set aside as unlawful: (1) the Master

Manual, “including but not limited to the individual [WCM] for

the Allatoona Project[,]” and (2) the FEIS. Id. at 27 ¶¶ 1-2.

Second, they ask the Court to direct Defendants to either revise

the Master Manual or prepare new manuals “consistent with the

congressionally authorized purposes of the ACT River Basin,

including but not limited to the Allatoona Project, and to

ensure that downstream flow conditions in Alabama are consistent

with historic flows[.]” Id. ¶ 3. Third, they ask the Court to

44
direct Defendants to modify, as necessary, the Master Manual to

protect and maintain Alabama state water quality standards. Id.

at 27-28 ¶ 4. Fourth, they ask the Court to direct Defendants to

either revise the FEIS or prepare a new FEIS for any revised or

new manuals for the ACT Basin consistent with federal law. Id.

at 28 ¶ 5. Finally, they seek attorneys’ fees and costs and any

other relief the Court deems just and proper. Id. ¶¶ 6-7.

The Court granted Intervenor-Plaintiffs’ motions to

intervene in this case on April 4, 2016, see Min. Orders (Apr.

4, 2016) (granting the Montgomery Board and Mobile Water leave

to intervene); and on March 31, 2017 (granting LMRA and Russell

Lands leave to intervene), see Min. Order (Mar. 31, 2017). The

Court also granted Intervenor-Defendants’ motions to intervene

on March 31, 2017. See Min. Orders (Mar. 31, 2017) (granting the

State of Georgia, ARC, and the CC-MWA leave to intervene). On

July 22, 2016, the Court denied Defendants’ motion to change

venue, although it recognized that “this case could have been

brought in the Northern District of Georgia.” See Min. Order

(July 22, 2016). Thereafter, on November 18, 2016, Defendants

served a copy of the administrative record and its accompanying

index on all parties. See Defs.’ Notice of Filing of Certified

List of Contents of, and Production of, Administrative R., ECF

No. 61 at 1, 3 (noting that Attachment B, Parts 1-6, is the

45
indices, or, “the certified list of contents of the

Administrative Record”).

The Alabama Plaintiffs filed their joint motion for summary

judgment on May 30, 2017, see Pls.’ Mot., ECF No. 83; and

Intervenor-Plaintiffs filed their joint motion for summary

judgment on June 13, 2017, see Intervenor-Pls.’ Mot., ECF No.

85. Defendants filed their cross-motion for summary judgment on

August 14, 2017, see Defs.’ Cross-Mot., ECF 96; and Intervenor-

Defendants filed their joint cross-motion for summary judgment

on August, 28, 2017, see Intervenor-Defs.’ Cross-Mot., ECF No.

98. The Alabama Plaintiffs and Intervenor-Plaintiffs filed their

replies in support of their motions and in opposition to

Defendants’ and Intervenor-Defendants’ cross-motions on October

12, 2017 and October 26, 2017, respectively. See Pls.’ Reply,

ECF No. 99; Intervenor-Pls.’ Reply, ECF No. 101. Defendants

filed their reply on November 27, 2017, see Defs.’ Reply, ECF

No. 102; and Intervenor-Defendants filed their reply on December

11, 2017, see Intervenor-Defs.’ Reply, ECF No. 103. The Alabama

Municipal Electric Authority (“AMEA”) filed an amicus curiae

brief in support of the Alabama Plaintiffs’ joint motion for

summary judgment on August 2, 2017. 9 See Amicus Br., ECF No. 94.

9 The Court appreciates the analysis provided by amicus curiae.
46
 On August 4, 2020, Intervenor-Defendants filed a notice

informing the Court of a decision by the Northern District of

Georgia that they called “relevant to matters pending before

this Court.” See Intervenor-Defs.’ Notice, ECF No. 119 at 1.

They attached as an exhibit a copy of that court’s 2020 opinion

and order (In re ACF Basin Water Litig., 467 F. Supp. 3d 1323

(N.D. Ga. 2020)), noting that the case presented “a similar

challenge to the Master Manual for a neighboring river basin,

the Apalachicola-Chattahoochee-Flint (“ACF”) River Basin[.]” Id.

at 2. The Alabama Plaintiffs responded to this notice on August

13, 2020, arguing that “[t]he Georgia Court’s reasoning is

erroneous and does not control this challenge to the [WCM] for

the [ACT] River Basin.” See Pls.’ Resp. to Suppl. Authority

Notice, ECF No. 120 at 1. Following another decision in the ACF

case on August 11, 2021, see In re ACF Basin Water Litig., 554

F. Supp. 3d 1282 (N.D. Ga. 2021); Intervenor-Defendants filed a

supplemental motion for summary judgment arguing that these

combined decisions, specifically involving “two legal issues

resolved in the ACF case” relating to the CWA and NEPA, should

be given “preclusive effect” in the instant case. See

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 6-8. On April 11,

2022, the State of Alabama, Intervenor-Plaintiffs, and APC filed

their separate oppositions to the supplemental motion. See

Ala.’s Opp’n to Suppl. Mot., ECF No. 134; Intervenor-Pls.’ Opp’n

47
to Suppl. Mot., ECF No. 135; APC’s Opp’n to Suppl. Mot., ECF No.

137. Intervenor-Defendants replied to these oppositions on April

25, 2022. See Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139. 10

On November 18, 2022, the Court granted the State of

Alabama leave to file a supplemental complaint arising out of

subsequent revisions Defendants made to the ACT Master Manual in

2021. See Min. Order (Nov. 18, 2022). The Court stated that

while the 2015 and 2021 revisions “relate to each other,” the

“legal claims in the original and proposed supplemental

complaint are distinct[,]” and that granting Alabama “leave to

supplement [would] merely result in a second round of cross

motions for summary judgment.” Id. The Court stated its intent

to address the pending motions before addressing any forthcoming

motions arising out of the 2021 revisions. Id. Therefore, the

parties’ motions and cross-motions for summary judgment, and

Intervenor-Defendants’ supplemental motion for summary judgment,

are now ripe and ready for the Court’s adjudication.

III. Legal Standard

Federal Rule of Civil Procedure 56 governs motions for

summary judgment, which are granted “if the movant shows that

there is no genuine dispute as to any material fact and the

10The Court addresses the arguments from Intervenor-Defendants’
supplemental motion for summary judgment, ECF No. 129; where
relevant to the parties’ pending cross-motions for summary
judgment, see ECF Nos. 83, 85, 95 & 96, and 97 & 98.
48
movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). However, where litigants seek review of final agency

action under the APA, see 5 U.S.C. § 706; Rule 56’s standard

becomes inapplicable “because of the limited role of a court in

reviewing the administrative record[,]” Wilhelmus v. Geren, 796

F. Supp. 2d 157, 160 (D.D.C. 2011). “Under the APA, it is the

role of the agency to resolve factual issues to arrive at a

decision that is supported by the administrative record, whereas

the function of the district court is to determine whether or

not as a matter of law the evidence in the administrative record

permitted the agency to make the decision it did.” Sierra Club

v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (citation and

internal quotation marks omitted). “Summary judgment thus serves

as the mechanism for deciding, as a matter of law, whether the

agency action is supported by the administrative record and

otherwise consistent with the APA standard of review.” Id.

The APA provides that “[a] person suffering legal wrong

because of agency action, or adversely affected or aggrieved by

agency action within the meaning of a relevant statute, is

entitled to judicial review thereof.” 5 U.S.C. § 702. The Act

requires courts to “hold unlawful and set aside agency action,

findings, and conclusions found to be . . . arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law[,]” or “in excess of [the agency’s]

49
statutory jurisdiction, authority, or limitations, or short of

statutory right[.]” Id. § 706(2)(A), (C). Under the APA’s

“narrow” standard of review, “a court is not to substitute its

judgment for that of the agency[,]” Motor Vehicle Mfrs. Ass’n of

the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983); and “will defer to

the [agency’s] interpretation of what [a statute] requires so

long as it is rational and supported by the record,” Oceana,

Inc. v. Locke, 670 F.3d 1238, 1240 (D.C. Cir. 2011) (citation

and internal quotation marks omitted). Thus, review of agency

action is generally deferential, Blanton v. Off. of the

Comptroller of the Currency, 909 F.3d 1162, 1170 (D.C. Cir.

2018); so long as the agency examines the relevant data and

articulates a satisfactory explanation for its decision,

including a “rational connection between the facts found and the

choice made[,]” State Farm, 463 U.S. at 43 (citation omitted).

However, an agency’s decision is considered arbitrary and

capricious if the agency: (1) “has relied on factors which

Congress has not intended it to consider,” (2) “entirely failed

to consider an important aspect of the problem,” (3) “offered an

explanation for its decision that runs counter to the evidence

before the agency,” or (4) “is so implausible that it could not

be ascribed to [a] difference in view or the product of agency

expertise.” Advocs. for Highway & Auto Safety v. Fed. Motor

50
Carrier Safety Admin., 429 F.3d 1136, 1144-45 (D.C. Cir.

2005) (quoting State Farm, 463 U.S. at 43). The plaintiff bears

the burden of showing that the agency violated the APA. Banner

Health v. Sebelius, 715 F. Supp. 2d 142, 153 (D.D.C. 2010).

The APA’s deferential standard cannot, however, “permit

courts merely to rubber stamp agency actions, nor be used to

shield the agency’s decision from undergoing a thorough,

probing, in-depth review.” Flaherty v. Bryson, 850 F. Supp. 2d

38, 47 (D.D.C. 2012) (internal citations and quotation marks

omitted). Instead, courts must evaluate “whether the decision

was based on a consideration of the relevant factors and whether

there has been a clear error of judgment[,]” State Farm, 463

U.S. at 43 (citations omitted); and may “not defer to the

agency’s conclusory or unsupported suppositions[,]” Flaherty,

850 F. Supp. 2d at 47 (citation omitted). Reviewing courts also

“may not supply a reasoned basis for the agency’s action that

the agency itself has not given[,]” but may “uphold a decision

of less than ideal clarity if the agency’s path may reasonably

be discerned.” State Farm, 463 U.S. at 43 (quoting Bowman

Transp., Inc. v. Ark.-Best Freight Sys., 419 U.S. 281, 286, 95

S. Ct. 438, 42 L. Ed. 2d 447 (1974)). However, judicial review

is confined to “the administrative record already in existence,

not some new record made initially in the reviewing court.” Camp

v. Pitts, 411 U.S. 138, 142, 93 S. Ct. 1241, 36 L. Ed. 2d 106

51
(1973); see also Jackson, 798 F. Supp. 2d at 222 (highlighting

“the APA’s command” that courts “review the whole record or

those parts of it cited by a party,” and “evaluate that record

as it was when [the agency] published its Decision Rationale”).

Courts review agency decisions under NEPA and the CWA

pursuant to section 706(2) of the APA, i.e., the APA’s judicial

review provisions. See, e.g., Flaherty, 850 F. Supp. 2d at 47;

Loper Bright Enters., Inc. v. Raimondo, 544 F. Supp. 3d 82, 98

(D.D.C. 2021); see also Karst Env’t Educ. & Prot., Inc. v. EPA,

475 F.3d 1291, 1295 (D.C. Cir. 2007) (noting that when statutes,

like NEPA, “create[] no private right of action, challenges to

agency compliance with the statute must be brought pursuant to

the [APA]”); WildEarth, 738 F.3d at 308 (“We apply the arbitrary

and capricious standard of the [APA] . . . to the merits of the

Appellants’ NEPA . . . challenge[.]”); Sackett v. EPA, 556 U.S.

120, 131, 132 S. Ct. 1367, 182 L. Ed. 2d 367 (2012) (finding

that the CWA does not preclude APA judicial review). Agency

decisions under both statutes involve “complex judgments about

sampling methodology and data analysis that are within the

agency’s technical expertise,” and are therefore accorded “an

extreme degree of deference.” Alaska Airlines, Inc. v. TSA, 588

F.3d 1116, 1120 (D.C. Cir. 2009). In other words, deference to

the agency’s judgment is particularly appropriate where, as

here, the decision at issue “requires a high level of technical

52
expertise[.]” Marsh v. Or. Nat. Res. Council, 490 U.S. 360, 377,

109 S. Ct. 1851, 104 L. Ed. 2d 377 (1989) (citation omitted).

IV. Analysis

The Alabama Plaintiffs assert three independent legal

grounds for why the Master Manual should be deemed unlawful.

First, they argue that the Corps violates the CWA in the Master

Manual by cutting back on releases that will impair downstream

water quality while disclaiming any duty to comply with

Alabama’s state water quality standards, instead improperly

passing mitigation responsibility to state permitting

authorities and other downstream entities. Pls.’ Mot., ECF No.

83 at 11-12. Second, they argue, in conjunction with Intervenor-

Plaintiffs, that the Corps conducted an inadequate environmental

review under NEPA that used an improper baseline for comparison

and did not disclose all significant environmental impacts of

the Master Manual. Id. at 12. Third, they argue that the Master

Manual violates the APA by: (1) exceeding the Corps’ statutory

authority by deemphasizing and reordering the congressionally

authorized project purposes of the Allatoona Project—hydropower,

navigation, and flood risk management—for the sake of lake

recreation; and (2) departing, arbitrarily and capriciously,

from Allatoona’s prior operational precedents that served those

53
three originally identified purposes. Id. at 11, 36, 60. The

Court addresses each of these arguments in turn below. 11

A. Defendants Did Not Violate the CWA or the Corps’
Implementing Engineer Regulations, and the Alabama
Plaintiffs’ Water Quality Claims Must Fail

The Alabama Plaintiffs first argue that the Master Manual

is unlawful because it “violates the Corps’ obligations to

maintain water quality and to avoid environmental degradation

throughout the ACT Basin.” Id. at 48. Specifically, they argue

that the Corps is in violation of section 313(a) of the CWA,

codified at 33 U.S.C. § 1323(a), and the Corps’ implementing

Engineer Regulation (“ER”) 1110-2-8154, see ER 1110-2-8154,

Water Quality and Environmental Management (May 31, 1995)

[hereinafter “ER 1110-2-8154”]; because the decision to reduce

flows from the Allatoona Project will cause violations of

Alabama’s state water quality standards, Pls.’ Mot., ECF No. 83

at 50. They contend that, despite acknowledging “‘that its

operational decisions will have [downstream] water quality

impacts’ during low-flow conditions[,]” the Corps has failed to

select the action alternative “‘that complies with water quality

standards to the maximum extent feasible[,]’” instead shifting

responsibility to the States and other downstream entities to

“‘address the consequences of [its] operational decisions[,]’”

11It is uncontested that the Alabama Plaintiffs have standing to
pursue their claims. See Pls.’ Mot., ECF No. 83 at 35-36.
54
id. at 48 (quoting A.R., ECF No. 61 at D-00049709, D-00049711);

by expecting state permitting authorities to reevaluate their

NPDES permits and set more stringent standards on the effluent

concentrations that downstream permit holders can discharge, id.

at 50-51. According to the Alabama Plaintiffs, and the EPA in

its comments on the FEIS, see A.R., ECF No. 61 at D-00049703-14;

this expectation is an unlawful shift in mitigation

responsibility to the States and a violation of the Corps’

duties under the CWA and ER 1110-2-8154, see Pls.’ Mot., ECF No.

83 at 50-51. 12

Defendants argue in response that the Alabama Plaintiffs

have “overstated the Corps’ obligation with respect to the

consideration of state water quality standards under the [CWA].”

Defs.’ Cross-Mot., ECF No. 95 at 10, 53. They argue that the

Corps is only required to give “appropriate consideration” to

these standards, in conjunction with the “many other factors”

from other statutes that apply in updating the Master Manual.

Id. Defendants claim that “[t]he FEIS shows that the Corps did

give consideration to the water quality standards in analyzing

12Intervenor-Plaintiffs also argue that the Corps did not
adequately address water quality issues in the Master Manual.
See Intervenor-Pls.’ Mot., ECF No. 85 at 15-19. Unlike the
Alabama Plaintiffs, they do not advance this argument under the
CWA and ER 1110-2-8154 but under NEPA. See id. at 15-19. The
Court therefore addresses their water quality arguments in the
NEPA section of this Memorandum Opinion. See infra section IV.B.
55
the alternatives[,]” and that “[t]he alternative chosen

represents the Corps[’] decision regarding the balancing of the

factors at issue[,]” which suffices to meet its CWA obligations.

Id. at 53 (citing A.R., ECF No. 61 at D-00044030, D-00058007).

The Georgia Parties also argue that the Alabama Plaintiffs do

not have a valid claim under section 313(a) of the CWA because

Alabama’s “water quality standards are not ‘requirements’ within

the meaning of this provision[,]” Intervenor-Defs.’ Cross-Mot.,

ECF No. 97 at 22; and neither are the non-binding ERs, including

ER 1110-2-8154, Intervenor-Defs.’ Reply, ECF No. 103 at 15-16.

Because they contend Alabama has not pointed to any “enforceable

requirements” that the Corps has violated, Intervenor-Defendants

ask the Court to deny the Alabama Plaintiffs’ CWA and water

quality claims. Id. at 24-25.

The Alabama Plaintiffs seek to rebut the Georgia Parties’

argument, arguing that “[n]othing in [section] 1323(a)’s text

excludes water-quality standards from the ‘requirements’ to

which the Corps must adhere . . . in the same manner, and to the

same extent as any nongovernmental entity.” Pls.’ Reply, ECF No.

99 at 22-23 (quoting 33 U.S.C. § 1323(a)). Further, they contend

that the Corps is “doubl[ing] down,” without any legal support,

“on the position . . . that the ‘risk of non-attainment of

downstream water quality standards’ is not its problem[,]” and

has failed to point to any evidence in the record that it

56
engaged in a “‘balancing’ process that [determined that] water

quality needed to be sacrificed for the sake of other legitimate

project purposes.” Id. at 25-26.

On May 22, 2020, the Northern District of Georgia issued a

decision in which it ruled against Alabama as to its water

quality (and other) claims in an action against the same federal

defendants involving the ACT’s neighboring ACF River Basin,

specifically, dismissing the portions of Alabama’s complaint

relating to the CWA and ER 1110-2-8154 pursuant to a motion for

judgment on the pleadings under Federal Rule of Civil Procedure

12(c). See In re ACF Basin, 467 F. Supp. 3d at 1336-41. The ACT

Basin covers portions of Alabama and Georgia, while the ACF

Basin covers portions of Alabama, Georgia, and Florida.

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 6. Both the ACT

and ACF cases are challenges by Alabama (among other parties) to

the Corps’ updated Master Manuals governing operations in the

respective river basins. Id. While the Corps first issued the

ACT Master Manual and the Allatoona Project WCM in 1951, it

issued the ACF Master Manual in 1958 and a separate WCM for the

Buford Project, located in that basin, in 1959. Ala.’s Opp’n to

Suppl. Mot., ECF No. 134 at 9.

By way of background, the Corps initially proposed draft

updates to the ACT and ACF Master Manuals in 1989 and began

operating pursuant to them without finalizing them or conducting

57
a formal EIS, thereby leading Alabama to challenge both drafts

in a single case before the Northern District of Alabama in

1990, alleging, among other claims, that the Corps did not

comply with NEPA. See Compl., Alabama v. U.S. Army Corps of

Eng’rs, No. 90-1331 (N.D. Ala. June 28, 1990), ECF No. 1 at 1,

14-21. Specific to the ACF Basin, Alabama argued it was unlawful

for the Corps to permit the Georgia Parties to make water

withdrawals from the Buford Project pursuant to interim water

supply contracts because, per the Water Supply Act of 1958,

Congress had to preapprove such withdrawals. Id. at 9-10 ¶ 17.

APC later intervened as a plaintiff, see Alabama v. U.S. Army

Corps of Eng’rs, 229 F.R.D. 669, 676 (N.D. Ala. 2005) (granting

APC intervention as of right); and in 2007, this case was

bifurcated along basin lines, with the ACF claims consolidated

as multidistrict litigation in the District Court for the Middle

District of Florida, while the ACT claims remained with the

Northern District of Alabama, see In re Tri-State Water Rts.

Litig., 481 F. Supp. 2d 1351, 1353 (J.P.M.L. 2007) (concluding

that the ACT and ACF cases did “not share sufficient questions

of fact”).

In 2011, the Court of Appeals for the Eleventh Circuit

dismissed the Alabama Parties’ challenges to the ACF Master

Manual, holding that most of their claims were not final agency

action under the APA and not subject to judicial review. See In

58
re MDL-1824 Tri-State Water Rts. Litig., 644 F.3d 1160, 1185

(11th Cir. 2011). In 2012, the Northern District of Alabama also

dismissed the majority of the Alabama Parties’ ACT claims,

concluding, as well, that the 1993 Draft Manual could not be

construed as “final agency action” under the APA. See Order,

Alabama v. U.S. Army Corps of Eng’rs, No. 90-1331 (N.D. Ala.

July 3, 2012), ECF No. 771 at 2-3; see also Final Order of

Dismissal, Alabama v. U.S. Army Corps of Eng’rs, No. 90-1331

(N.D. Ala. Oct. 23, 2012), ECF No. 786 at 1-2 (dismissing with

prejudice “all remaining claims,” thereby drawing “the saga of

the Water Wars that began [on] June 28, 1990 to a close”).

Following these dismissals, “the way was clear for the

Corps to update both Master Manuals[,]” which it completed,

pursuant to NEPA’s requirements, for the ACT Basin in 2015 and

the ACF Basin in 2017. Intervenor-Defs.’ Suppl. Mot., ECF No.

129 at 9. Alabama challenged both updates, first filing the

instant ACT case in May 2015, see Compl., ECF No. 1; and filing

a second case in this district challenging the ACF Master Manual

in April 2017, see Compl., Alabama v. U.S. Army Corps of Eng’rs,

No. 17-607 (JDB) (D.D.C. Apr. 5, 2017), ECF No. 1; which was

later transferred to the Northern District of Georgia pursuant

to a joint motion by the Corps and the Georgia Parties, see

Alabama v. U.S. Army Corps of Eng’rs, 304 F. Supp. 3d 56, 62, 70

(D.D.C. 2018). Following its earlier 2020 decision denying

59
Alabama’s CWA and ER 1110-2-8154 water-quality claims, on August

11, 2021, that court entered summary judgment in favor of the

Corps, and as relevant here, denied Alabama’s remaining water

quality claim under the APA and all plaintiffs’ NEPA claims. 13 In

re ACF Basin, 554 F. Supp. 3d at 1302-08. Of note, neither APC

nor any of Intervenor-Plaintiffs are parties to the ACF case,

while Intervenor-Defendants all intervened in the ACF case,

along with several Atlanta-based municipalities. Id. at 1287-88;

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 15.

In their supplemental motion for summary judgment, the

Georgia Parties use the Northern District of Georgia’s 2020 and

2021 decisions to argue that their resolution of legal issues as

to the ACF Basin “is correct, preclusive, and dispositive of

claims currently pending before this Court.” Intervenor-Defs.’

Suppl. Mot., ECF No. 129 at 7. They contend that “the Court can

either hold that the ACF Court decided the issues common to

these two cases correctly, or it can apply the doctrine of issue

preclusion to conclude that issues dispositive to the Alabama

Parties’ claims are res judicata.” Id. at 7-8. The Court

addresses these supplemental issue preclusion arguments, first

13An appeal of this decision is currently pending in the Court
of Appeals for the Eleventh Circuit (“Eleventh Circuit”). See
Pl. State of Ala.’s Notice of Appeal, In re ACF Basin Water
Litig., No. 1:18-MI-43 (N.D. Ga. Sept. 10, 2021), ECF No. 236 at
1; Notice of Appeal, In re ACF Basin Water Litig., No. 1:18-MI-
43 (N.D. Ga. Oct. 6, 2021), ECF No. 243 at 1.
60
as to the parties’ water quality claims in this section of the

Memorandum Opinion, and later turns to the remaining preclusion

arguments under the NEPA section of the Memorandum Opinion. 14 See

infra section IV.B.1.a. For the reasons discussed below, the

Court declines to apply issue preclusion to both sets of claims

and will proceed to analyzing their merits.

1. Issue Preclusion Does Not Apply to Bar the
Alabama Plaintiffs’ Water Quality Claims

Issue preclusion, also known as collateral estoppel,

“refers to the effect of a prior judgment in foreclosing

successive litigation of an issue of fact or law actually

litigated and resolved in a valid court determination essential

to the prior judgment, whether or not the issue arises on the

same or a different claim.” New Hampshire v. Maine, 532 U.S.

742, 748-49, 121 S. Ct. 1808, 149 L. Ed. 2d 968 (2001). The

doctrine serves “to conserve judicial resources, avoid

inconsistent results, engender respect for judgments of

predictable and certain effect, and to prevent serial forum-

shopping and piecemeal litigation.” Hardison v. Alexander, 655

F.2d 1281, 1288 (D.C. Cir. 1981). Pursuant to the doctrine’s

rules, “the parties to a suit and their privies 15 are bound by a

14 The pendency of the above-referenced Eleventh Circuit appeal
does not affect the Court’s preclusion analysis. See El-Amin v.
Virgilio, 251 F. Supp. 3d 208, 211 (D.D.C. 2017).
15 “The term ‘privity’ signifies that the relationship between

two or more persons is such that a judgment involving one of
61
final judgment and may not relitigate any ground for relief

which they already have had an opportunity to litigate even if

they chose not to exploit that opportunity[, regardless of]

whether the initial judgment was erroneous or not.” Id. This is

because the objective of issue preclusion is “judicial finality”

and “the conclusive resolution of disputes . . . .” Yamaha Corp.

of Am. v. United States, 961 F.2d 245, 254 (D.C. Cir. 1992)

(citation omitted). Issue preclusion is properly raised on a

motion for summary judgment. See, e.g., Canonsburg Gen. Hosp. v.

Burwell, 807 F.3d 295, 307 (D.C. Cir. 2015).

Three elements must be present for a judgment to preclude

litigation of an issue in a subsequent case: “‘[1], the same

issue now being raised must have been contested by the parties

and submitted for judicial determination in the prior case[; 2],

the issue must have been actually and necessarily determined by

a court of competent jurisdiction in that prior case[; and] [3],

preclusion in the second case must not work a basic unfairness

to the party bound by the first determination.’” Martin v.

DOJ, 488 F.3d 446, 454 (D.C. Cir. 2007) (quoting Yamaha, 961

F.2d at 254). The party invoking issue preclusion “bears the

burden of establishing that the conditions for its application

them may justly be conclusive upon the others, although those
others were not party to the lawsuit.” Gill & Duffus Servs.,
Inc. v. A. M. Nural Islam, 675 F.2d 404, 405 (D.C. Cir. 1982).
62
have been satisfied[,]” Lardner v. DOJ, 638 F. Supp. 2d 14, 22

(D.D.C. 2009) (citation and internal quotation marks omitted);

and once an issue is determined to have preclusive effect, the

court “does not review the merits of the determinations in the

earlier litigation[,]” Consol. Edison Co. of N.Y. v. Bodman, 449

F.3d 1254, 1257 (D.C. Cir. 2006). Indeed, “even a ‘patently

erroneous’ first judgment is insufficient to bar issue

preclusion.” Canonsburg, 807 F.3d at 306 (quoting Otherson v.

DOJ, 711 F.2d 267, 277 (D.C. Cir. 1983)); see also Montana v.

United States, 440 U.S. 147, 162, 99 S. Ct. 970, 59 L. Ed. 2d

210 (1979) (“[A] fact, question or right distinctly adjudged in

the original action cannot be disputed in a subsequent action,

even though the determination was reached upon an erroneous view

or by an erroneous application of the law.” (emphasis in

original)). Furthermore, “it is the prior judgment that matters,

not the court’s opinion explicating the judgment[,]” such that

“once an issue is raised and determined, it is the entire issue

that is precluded, not just the particular arguments raised in

support of it in the first case.” Yamaha, 961 F.2d at 254

(emphasis in original).

Even when collateral estoppel would otherwise apply, courts

have recognized exceptions to the doctrine’s applicability.

Pharm. Care Mgmt. Ass’n v. Dist. of Columbia, 522 F.3d 443, 446

(D.C. Cir. 2008). “Of particular importance in this case[,]”

63
discussed below, “is the exception for cases presenting ‘unmixed

questions of law.’” Id. Under this exception, “[c]ollateral

estoppel does not apply with the same force to unmixed questions

of law as it does to mixed questions of law and fact or to pure

questions of fact.” Id. (citing United States v. Stauffer Chem.

Co., 464 U.S. 165, 170–71, 104 S. Ct. 575, 78 L. Ed. 2d 388

(1984)). “Although the Supreme Court has acknowledged that the

purpose and application of this exception are not entirely

clear, the exception continues to have force.” Id. (citing

Stauffer, 464 U.S. at 171-72).

In addition, while “[t]here is no general public policy

exception to the operation of res judicata[,]” courts have

recognized equitable exceptions to issue preclusion in “limited

circumstances[.]” Apotex, Inc. v. FDA, 393 F.3d 210, 219 (D.C.

Cir. 2004). First, “issue preclusion is inappropriate if there

has been an intervening ‘change in controlling legal

principles.’” Canonsburg, 807 F.3d at 306 (quoting Apotex, 393

F.3d at 219). Second, courts “have recognized that issue

preclusion would be unfair ‘if the party to be bound lacked an

incentive to litigate in the first trial, especially in

comparison to the stakes of the second trial.’” Id. (quoting

Otherson, 711 F.2d at 273). Third, issue preclusion is

inappropriate if the “prior proceedings were seriously

defective.” Martin, 488 F.3d at 455 (quoting Blonder-Tongue

64
Lab’ys, Inc. v. Univ. of Ill. Found., 402 U.S. 313, 333, 91 S.

Ct. 1434, 28 L. Ed. 2d 788 (1971)). The Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) is “reluctant to

expand these equitable exceptions.” Canonsburg, 807 F.3d at 306.

This case involves the defensive use of issue preclusion,

meaning that a defendant is seeking to “preclude[] a plaintiff

from contesting an issue it has previously litigated and lost in

another case[.]” Pharm. Care, 522 F.3d at 446. Here, the Georgia

Parties, intervening as defendants in both the ACF and ACT

cases, argue that Alabama, a plaintiff in both cases, should be

precluded from relitigating issues in the instant case that the

Northern District of Georgia already decided against it. See

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 6-7. This amounts

to defensive, mutual issue preclusion, meaning the defendant

seeking to invoke preclusion and the plaintiff against whom

preclusion is being invoked have both appeared in the first and

second suits. Cf. Menkes v. DHS, 637 F.3d 319, 334 (D.C. Cir.

2011). While the Supreme Court has “emphasize[d] the fundamental

nature of the general rule that a litigant is not bound by a

judgment to which [it] was not [previously] a party[,]” it has

also “endeavored to delineate discrete exceptions that apply in

‘limited circumstances[,]’” Taylor v. Sturgell, 553 U.S. 880,

898, 128 S. Ct. 2161, 171 L. Ed. 2d 155 (2008); i.e., where

“issue preclusion does not require mutuality of parties[,]”

65
Gov’t of Rwanda v. Johnson, 409 F.3d 368, 374 (D.C. Cir. 2005);

see also Blonder-Tongue, 402 U.S. at 328-29 (abandoning the

mutuality requirement in certain situations).

One exception of when “a nonparty may be bound by a

judgment” is when it “was adequately represented by someone with

the same interests who [wa]s a party to the [first] suit.”

Sturgell, 553 U.S. at 894 (citation and internal quotation marks

omitted). Using this exception to “the rule against nonparty

preclusion,” id. at 893; Intervenor-Defendants argue that “[t]he

preclusive effect of the ACF Court’s prior judgments is clear

[not only] as to Alabama,” but “extends to” APC and Intervenor-

Plaintiffs, who, although not parties to the ACF case, are

Alabama municipalities (the Cities of Mobile and Montgomery) or

Alabama-incorporated corporations (APC, Russell Lands, and

LMRA), and are thus “Alabama citizen[s] whose interests were

adequately represented by the State of Alabama in the ACF

Case[,]” Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 29-30.

To determine whether issue preclusion applies to bar the

Alabama Plaintiffs’ water quality claims in this case, the Court

first summarizes Alabama’s three ACF water quality claims and

the Northern District of Georgia’s rulings on those claims. For

its first two claims, Alabama argued that the ACF Master Manual

should be set aside because it would cause violations of

Georgia’s water quality standards contrary to: (1) section

66
313(a) of the CWA; and (2) the Corps’ internal ER 1110-2-8154.

See Compl., Alabama v. U.S. Army Corps of Engr’s, No. 17-607

(JDB) (D.D.C. Apr. 5, 2017), ECF No. 1 at 16-18 ¶¶ 60-67, 23 ¶¶

95-99; In re ACF Basin, 467 F. Supp. 3d at 1336. Third, Alabama

advanced “an independent water-quality claim under the APA[,]”

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 16; based on the

Corps’ “failure to acknowledge and offer a reasoned explanation

for its departure from its own water-quality policy[,]” In re

ACF Basin, 554 F. Supp. 3d at 1303; even if ER 1110-2-8154

“cannot be directly enforced[,]” Intervenor-Defs.’ Suppl. Mot.,

ECF No. 129 at 7; 16 see also Compl., Alabama v. U.S. Army Corps

of Engr’s, No. 17-607 (JDB) (D.D.C. Apr. 5, 2017), ECF No. 1 at

18 ¶¶ 67-68, 24-25 ¶¶ 104-05. In its 2020 decision granting

partial judgment on the pleadings, the Northern District of

Georgia ruled against Alabama on its first two water quality

claims. See In re ACF Basin, 467 F. Supp. 3d at 1336-41. First,

that court concluded that under section 313(a) of the CWA, state

water quality standards are not “requirements” with which

federal agencies must comply, but are instead “limited to

objective state standards of control, such as effluent

limitations in permits,” or State-created programs imposing

16The Georgia Parties call this Alabama’s “fallback” CWA
argument, which they contend Alabama has asserted in the ACT and
ACF cases. Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 7.
67
enforceable conditions. Id. at 1336-38. Second, the Northern

District of Georgia determined that ER 1110-2-8154 is a non-

binding internal guidance document that is unenforceable by

third parties like the State of Alabama. Id. at 1340-41. Lastly,

in its 2021 decision granting summary judgment to the

defendants, that court concluded that “even if the Corps did not

follow its [ER] guidance as Alabama allege[d],” it acknowledged

that guidance and adequately explained its choice “to select the

preferred alternative despite potential impacts to water

quality.” In re ACF Basin, 554 F. Supp. 3d at 1303.

Intervenor-Defendants now argue that the Northern District

of Georgia’s rulings against Alabama are “preclusive” as to

whether: (1) state water quality standards are “requirements”

within the meaning of section 313(a) of the CWA; and (2) ER

1110-2-8154 is legally binding in Corps reservoir operations,

and therefore “dispositive” in answering both questions in the

negative for the purposes of Alabama’s instant ACT water quality

claims. See Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 6-7,

15-16. The Georgia Parties argue that pursuant to the rules of

issue preclusion, these two “issue[] of law” conclusions from

the ACF case lead to the “law application” that “[a] Corps’

Master Manual is not contrary to law” under the CWA or ER 1110-

2-8154 “because it does not ensure that Water Quality Standards

will be achieved[,]” and therefore Alabama has failed to state a

68
claim for relief under those legal theories. Id. at 15-16. Next,

they argue that the Northern District of Georgia’s ruling on

whether the Corps engaged in an “unexplained departure” from ER

1110-2-8154 in violation of the APA when adopting a Master

Manual with acknowledged downstream water quality impacts is

“persuasive,” even if not “preclusive,” “[b]ecause the Corps

provided essentially the same explanations for the ACT [Master

M]anual” as the ACF Master Manual. Id. at 7, 20-23.

In its opposition, Alabama argues that “[t]he differences

between the ACT and ACF cases are more than just ‘place names’

and ‘specific operational details[,]’” as Intervenor-Defendants

argue, but instead involve entirely separate river basins,

different operations manuals, and “vastly different procedural

issues[,]” Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 19—

quoting language from the Georgia Parties’ 2017 reply brief in

support of their motion to transfer venue of the ACF case from

this district to the Northern District of Georgia, see Def.-

Intervenor the State of Georgia’s Reply in Support of its Mot.

to Transfer Venue, Alabama v. U.S. Army Corps of Eng’rs, No. 17-

607 (JDB) (D.D.C. Aug. 11, 2017), ECF No. 35 at 18-19 (arguing

that there is “no overlap between the ACT-manual litigation and

[the ACF] case that would make it convenient or efficient to

litigate them in th[e] same jurisdiction” because the cases are

“so dissimilar”). Alabama further argues that “the specific

69
‘issues’ that the Georgia Parties seek to preclude Alabama from

litigating in this case constitute either pure questions of law,

or mixed questions of law and fact involving dissimilar facts to

which the issue preclusion doctrine does not apply.” Ala.’s

Opp’n to Suppl. Mot., ECF No. 134 at 19.

Next, Alabama argues that policy considerations weigh

against applying issue preclusion because of the broad public

interests at stake in such a case “involving the federal and two

State governments” and because applying the doctrine will not

conserve judicial resources, discourage forum shopping, or

prevent inconsistent results. See id. at 8, 32-36. Instead,

Alabama argues that the Northern District of Georgia’s ACF

rulings are “neither binding nor persuasive” in this ACT case

and that “the Court should bring its own judgment to bear” on

the merits of the issues. Id. at 8-9. Alabama also argues that

APC and Intervenor-Plaintiffs are not barred from litigating the

allegedly precluded issues because they were not parties to the

ACF case, nor were they adequately represented by Alabama in

that suit. See id. at 36-38. Intervenor-Plaintiffs and APC have

adopted Alabama’s opposition to the Georgia Parties’

supplemental motion for summary judgment, each adding a few

arguments of their own, discussed below. See Intervenor-Pls.’

Opp’n to Suppl. Mot., ECF No. 135 at 1-2; APC’s Opp’n to Suppl.

Mot., ECF No. 137 at 1-3.

70
 a. The Issue Preclusion Criteria Are Satisfied
as Against the State of Alabama for Its
Water Quality Claims Involving the CWA and
ER 1110-2-8154

As an initial matter, the Court agrees with the State of

Alabama that issue preclusion need only be analyzed regarding

the first two issues raised in the Georgia Parties’ supplemental

motion for summary judgment. See Ala.’s Opp’n to Suppl. Mot.,

ECF No. 134 at 27-28. On the third issue, whether the Corps

engaged in an “unexplained departure” from ER 1110-2-8154 in

violation of the APA by adopting the ACF and ACT Master Manuals,

see Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 7, 20-23;

Intervenor-Defendants have acknowledged that the Northern

District of Georgia’s ruling that the Corps adequately explained

the reasons for its substantive actions in the ACF Basin

impacting water quality “is not necessarily preclusive here,”

id. at 20-21. Given this admission, the Court declines to engage

in the preclusion analysis as to this issue.

For the remaining two water quality issues involving the

CWA and ER 1110-2-8154, the Court first determines that the

preclusion criteria appear to be satisfied as against the State

of Alabama, a party to both the ACF and ACT cases. In reaching

this conclusion, the Court “does not review the merits of” the

Northern District of Georgia’s earlier rulings. Consol. Edison,

449 F.3d at 1257. Instead, it assesses whether: (1) the same

71
issues now being raised in the ACT case were “contested by the

parties and submitted for judicial determination” in the ACF

case; (2) those issues were “actually and necessarily determined

by a court of competent jurisdiction[;]” and (3) preclusion

would “work a basic unfairness to” Alabama, “the party bound by

the first determination.” See Yamaha, 961 F.2d at 254.

In both the ACF and ACT cases, the parties have contested

and submitted for judicial determination the identical issue of

whether state water quality standards are directly enforceable

“requirements” under section 313(a) of the CWA. Compare In re

ACF Basin, 467 F. Supp. 3d at 1336-39, with Intervenor-Defs.’

Cross-Mot., ECF No. 97 at 21-25, and Pls.’ Reply, ECF No. 99 at

22-25; see also Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 17

(comparing Alabama’s ACT and ACF pleadings, both contending that

the CWA “require[s]” the Corps “to implement a water-quality

management program that” complies with state water quality

standards, and that the Master Manuals are “contrary to” this

statutory requirement). The Northern District of Georgia, “a

court of competent jurisdiction,” “actually and necessarily”

decided this issue against Alabama, Yamaha, 961 F.2d at 254;

concluding, after surveying caselaw from the Supreme Court and

other federal district courts, that water quality standards are

not self-enforcing, substantive legal “requirements” with which

72
federal agencies must comply under section 313(a) of the CWA, 17

see In re ACF Basin, 467 F. Supp. 3d at 1336-39. This conclusion

led the Northern District of Georgia to determine that Alabama

failed to state a claim under 33 U.S.C. § 1323(a), which was

essential to its judgment dismissing that count of Alabama’s ACF

complaint. Id. at 1339, 1341. Finally, because Alabama’s

incentives to litigate this issue “were no less present in the

prior case, nor are the stakes of the present case of ‘vastly

greater magnitude[,]’” Martin, 488 F.3d at 455 (quoting Yamaha,

961 F.2d at 254); and “there is no change in the controlling

law” or “concern about procedural defects in the [ACF]

litigation, the application of issue preclusion is unlikely to

result in a ‘compelling’ showing of unfairness to” the State of

Alabama, Canonsburg, 807 F.3d at 306.

The Court reaches the same conclusion as to the State of

Alabama regarding the identical issue of whether ER 1110-2-8154

creates legally binding duties on the Corps in its reservoir

operations. Compare In re ACF Basin, 467 F. Supp. 3d at 1339-41,

with Pls.’ Mot., ECF No. 83 at 49-50; see also Intervenor-Defs.’

Suppl. Mot., ECF No. 129 at 17 (comparing Alabama’s ACT and ACF

pleadings, both contending that “the Corps’ implementing

17This conclusion did not turn on any specifics about the State
of Georgia’s water quality standards and was therefore intended
to apply to water quality standards across states, including
Alabama’s water quality standards at issue in the ACT case.
73
regulations and guidance require it to implement a water-quality

management program” in line with that guidance and that the

Master Manuals are “contrary to th[o]se regulations and

guidance”). The Northern District of Georgia “actually and

necessarily” decided this issue against Alabama, concluding,

after reviewing the history and purpose of the ERs and caselaw

from “[n]umerous courts,” that those regulations are “not

binding on the agency” and “not enforceable” by third parties.

In re ACF Basin, 467 F. Supp. 3d at 1340. This conclusion was

essential to that court’s judgment dismissing the related counts

of Alabama’s ACF complaint. Id. at 1341. Lastly, as noted, the

State of Alabama “had every incentive to forcefully litigate”

this issue, such that requiring it to adhere to this conclusion

“does not create any basic unfairness.” Robinson v. U.S. Dep’t

of Educ., 502 F. Supp. 3d 127, 135 (D.D.C. 2020).

b. Although the Issue Preclusion Criteria Are
Satisfied as Against the State of Alabama’s
CWA and ER 1110-2-8154 Water Quality Claims,
the Doctrine Is Inapplicable Here

However, even if the three elements of issue preclusion are

met, Alabama argues that the Northern District of Georgia’s 2020

water quality rulings do not bar Alabama’s ACT water quality

clams for two reasons. First, Alabama argues that “an exception”

to the doctrine applies, namely the “unmixed questions of law”

exception, Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 20-21;

74
which dictates that “[c]ollateral estoppel does not apply with

the same force to unmixed questions of law as it does to mixed

questions of law and fact or to pure questions of fact[,]”

Pharm. Care, 522 F.3d at 446. This exception thus requires “a

determination as to whether an ‘issue of fact’ or an ‘issue of

law’ is sought to be relitigated and then a determination as to

whether the ‘issue of law’ arises in a successive case that is

so unrelated to the prior case that relitigation of the issue is

warranted.” Stauffer, 464 U.S. at 171. Second, Alabama argues

that policy considerations, along with the presence of APC and

Intervenor-Plaintiffs as non-mutual parties, weigh against

preclusion. See Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 8-9,

32-38. For the reasons discussed below, the Court agrees with

Alabama on both arguments and declines to apply issue preclusion

to bar the Alabama Plaintiffs’ water quality claims.

i. The “Unmixed Questions of Law”
Exception to Issue Preclusion
Applies Here

“In cases involving mutual collateral estoppel,” as this is

for the State of Alabama, the “unmixed questions of law”

exception “applies only if the issue is one of law and the facts

of the cases are substantially unrelated.” Pharm. Care, 522 F.3d

at 446 (citing RESTATEMENT (SECOND) OF JUDGMENTS § 28(2) (Am. L. Inst.

1982) [hereinafter “RESTATEMENT (SECOND) OF JUDGMENTS”]); see also

Montana, 440 U.S. at 162 (“[W]hen issues of law arise in

75
successive actions involving unrelated subject matter,

preclusion may be inappropriate.”); 18 Charles Alan Wright &

Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 4425 (3d ed. 2023)

[hereinafter “FEDERAL PRACTICE AND PROCEDURE § 4425”] (“[I]ssue

preclusion does not attach to abstract rulings of law, unmixed

with any particular set of facts[.]”). This contrasts with

situations in which “‘the claims in two separate actions between

the same parties are the same or are closely related [such that]

it is not ordinarily necessary to characterize an issue as one

of fact or of law for purposes of issue preclusion . . . . ’”

Stauffer, 464 U.S. at 171 (quoting RESTATEMENT (SECOND) OF JUDGMENTS §

28(2), cmt. b). In such a case, it would be unfair to the

winning party and burdensome on the courts “‘to allow repeated

litigation of the same issue in what is essentially the same

controversy, even if the issue is regarded as one of law.’” See

id. at 171-72 (declining to apply the exception and “allow the

government to litigate twice with the same party an issue

arising in both cases from virtually identical facts” (quoting

RESTATEMENT (SECOND) OF JUDGMENTS § 28(2), cmt. b)). Thus, “where the

legal issue[s are] identical and the factual settings so closely

related, the exception simply does not apply.” Beverly Health &

Rehab. Servs., Inc. v. NLRB, 317 F.3d 316, 323 n.2 (D.C. Cir.

2003).

76
 Since the parameters of the “unmixed questions of law”

exception are “far from clear[,]” Stauffer, 464 U.S. at 172; and

“the journey from a pure question of fact to a pure question of

law is one of subtle gradations[,]” RESTATEMENT (SECOND) OF JUDGMENTS

§ 28(2), cmt. b; the Supreme Court “regularly turns to the

Restatement (Second) of Judgments” when deciding whether to

apply this “challenging” exception to issue preclusion, see B &

B Hardware, Inc. v. Hardis Indus., Inc., 575 U.S. 138, 148, 135

S. Ct. 1293, 191 L. Ed. 2d 222 (2015). The Restatement states

that when: (1) “the issue is one of the formulation or scope of

[an] applicable legal rule[;]” and (2) “if the claims in the two

actions are substantially unrelated,” then the rule of law

declared in the first action between the two parties “should not

be binding on them for all time” because “the more flexible

principle of stare decisis is sufficient to protect [them] and

the court from unnecessary burdens.” RESTATEMENT (SECOND) OF JUDGMENTS

§ 28(2), cmt. b; accord Gruver v. La. Bd. of Supervisors for La.

State Univ. Agric. & Mech. Coll., 959 F.3d 178, 182 n.3 (5th

Cir. 2020).

The first element of this test applies here, as the

Northern District of Georgia addressed two pure questions of

law, i.e., not based on any underlying ACF case facts, to

enunciate legal rules regarding the statutory meaning of the

word “requirements” under section 313(a) of the CWA and the

77
enforceability of the agency’s ERs under the APA. The “unmixed

questions of law” exception applies in such situations “with

particular force[,]” since the issues to be re-litigated involve

“‘the formulation or scope’ of a statute [and an] applicable

legal rule[.]” Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of

Veterans Affs., 260 F.3d 1365, 1373 (Fed. Cir. 2001) (quoting

RESTATEMENT (SECOND) OF JUDGMENTS § 28(2), cmt. b); see also U.S. ex

rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Blue Cross

Blue Shield of Ga., Inc., 755 F. Supp. 1040, 1046 (S.D. Ga.

1990) (“Issue preclusion is least favored where the pure

question of law is one of statutory construction.”); Holland v.

Nat’l Mining Ass’n, 309 F.3d 808, 815 (D.C. Cir. 2002)

(“Allowing one circuit’s statutory interpretation to foreclose

APA review of the question in another circuit would squelch the

circuit disagreements that can lead to Supreme Court review.”);

FEDERAL PRACTICE AND PROCEDURE § 4425 (“It is reasonably clear that

preclusion does not extend to principles of law formulated in

abstract terms that could apply to completely separate fact

settings.”). As Alabama argues, the Northern District of

Georgia’s rulings “did not involve any fact findings” but

instead “turned strictly on [its] interpretation of the CWA’s

statutory scheme and the case law[,]” its understanding of the

history and purpose of the Corps’ ERs, and APA caselaw on

determining whether agency statements have the force of law.

78
Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 22, 26. In fact, it

appears that “[b]oth parties agree that the issues presented

here are legal[,]” Pharm. Care, 522 F.3d at 447; since the

Georgia Parties’ own brief draws a line between “issues of law”

and “law application,” seemingly relegating the Northern

District of Georgia’s two 2020 water quality rulings to the

former camp, while labeling it “law application” to conclude

that Alabama’s complaints in the ACT and ACF cases “fail to

state a claim for relief under [those] legal theories[,]”

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 15-16. Overall,

“[t]o foreclose [the Court’s] reconsideration of [such pure]

legal issues would not aid judicial economy[,]” and would

instead “freeze” the Court’s ability to develop the law “in an

area of substantial public interest.” Pharm. Care, 522 F.3d at

447 (citing RESTATEMENT (SECOND) OF JUDGMENTS § 29, cmt. i).

For the second part of the Restatement’s test, the Court

concludes that the facts of the ACF and ACT cases are

“substantially unrelated,” such that the Northern District of

Georgia’s conclusions should not be binding on the parties “for

all time.” RESTATEMENT (SECOND) OF JUDGMENTS § 28(2), cmt. b. Although

the Supreme Court and the D.C. Circuit have not articulated a

standard for determining when two cases are “substantially

unrelated,” the Court is persuaded by the history of the Water

Wars litigation and by Intervenor-Defendants’ own statements

79
that the two cases not only involve different river basins and

geographical locations but “different contexts.” 18 Intervenor-

Defs.’ Suppl. Mot., ECF No. 129 at 21. In 2007, when the

original ACT and ACF cases were bifurcated, the Judicial Panel

on Multidistrict Litigation (“JPML”) concluded that “claims in

the Northern District of Alabama relating to the conduct of the

Corps vis-à-vis the flow of water in the [ACT] River basin do

not share sufficient questions of fact with claims relating to

the flow of water in the ACF River basin.” In re Tri-State Water

Rts. Litig., 481 F. Supp. 2d at 1353. And in 2017, when the

State of Georgia argued for transferring the ACF case from this

district to the Northern District of Georgia, it cited this

portion of the JPML’s decision when arguing that there is “no

overlap between” the ACT and ACF cases “that would make it

convenient or efficient to litigate them in th[e] same

jurisdiction.” See Def.-Intervenor the State of Georgia’s Reply

in Support of its Mot. to Transfer Venue, Alabama v. U.S. Army

Corps of Eng’rs, No. 17-607 (JDB) (D.D.C. Aug. 11, 2017), ECF

No. 35 at 18-19.

18The Georgia Parties argue that the Court should follow the
Court of Appeals for the Third Circuit’s standard for assessing
when two cases are “substantially unrelated” under the “unmixed
questions of law” exception, as articulated in Burlington
Northern Railroad Co. v. Hyundai Merchant Marine Co., 63 F.3d
1227, 1236 (3d Cir. 1995). See Intervenor-Defs.’ Suppl. Mot.
Reply, ECF No. 139 at 9-10. Given its above analysis, the Court
declines this invitation.
80
 Intervenor-Defendants now argue that Georgia’s earlier

statements in support of its motion to transfer venue are not

inconsistent with its arguments in favor of applying issue

preclusion here because there is still “some overlap [between

the ACF and ACT cases], even if the overlap is not enough to

warrant keeping the cases together.” Intervenor-Defs.’ Suppl.

Mot. Reply, ECF No. 139 at 17. Although they claim that “the law

and facts relating to the[ water quality] issues are exactly the

same,” id. at 18; the Court agrees with Alabama that “[a]s it

relates to the CWA issues in both cases, the affected lakes and

rivers are different, the State water-quality standards that

will be violated are different, and the Corps’ stated

justifications for adopting operations that will violate these

standards are different[,]” see Ala.’s Opp’n to Suppl. Mot., ECF

No. 134 at 23, 24-25, 27-28 (enumerating other factual

differences between the ACF and ACF cases 19); see also Def.-

Intervenor the State of Georgia’s Reply in Support of its Mot.

19Alabama claims that “[o]ne specific and critical factual
difference is that in this case, the Corps’ operations under the
ACT Manual will contribute to violations of water-quality
standards that were incorporated in a ‘Total Maximum Daily
Load,’ or ‘TMDL,’ at Weiss Lake in Alabama.” Ala.’s Opp’n to
Suppl. Mot., ECF No. 134 at 24. The Court agrees that this is a
factual difference between the ACT and ACF cases, as the
Northern District of Georgia did not analyze TMDLs in-depth in
its 2020 decision. See In re ACF Basin Water Litig., 467 F.
Supp. 3d 1323, 1338 (N.D. Ga. 2020). The Court therefore
addresses ACT water quality arguments regarding TMDLs on the
merits. See infra section IV.A.2.a.
81
to Transfer Venue, Alabama v. U.S. Army Corps of Eng’rs, No. 17-

607 (JDB) (D.D.C. Aug. 11, 2017), ECF No. 35 at 18 (arguing that

the ACT case “involves an entirely separate river basin,

challenges a different operations manual, and has vastly

different procedural issues”). Such differences establish that

these actions do not involve “essentially the same controversy”

or “virtually identical facts” and instead involve “factual

differences . . . of . . . legal significance,” Stauffer, 464

U.S. at 172; making them sufficiently unrelated so as to warrant

applying “the unmixed question of law exception to the

collateral estoppel doctrine[,]” Ctr. for Biological Diversity

v. Hamilton, 385 F. Supp. 2d 1330, 1338 (N.D. Ga. 2005).

Furthermore, “[l]ess is required for the exception to apply

in a case of non-mutual estoppel—such as this case.” Pharm.

Care, 522 F.3d at 446. In such a non-mutual case, i.e., where

APC and Intervenor-Plaintiffs were not also parties to the ACF

case, “an issue is not precluded if it is one of law and

treating it as conclusively determined would inappropriately

foreclose opportunities for obtaining reconsideration of the

legal rule upon which it was based.” Id. at 446-47 (citation and

internal quotation marks omitted). As the D.C. Circuit has

concluded, “[t]o apply collateral estoppel under these

circumstances would prevent the [C]ourt from performing its

function of developing the law.” Id. at 447. Thus, contrary to

82
Intervenor-Defendants’ claim that the instant case “stands in

sharp contrast to” the D.C. Circuit’s decision in Pharmaceutical

Care Management Ass’n v. District of Columbia, 522 F.3d 443

(D.C. Cir. 2008), see Intervenor-Defs.’ Suppl. Mot. Reply, ECF

No. 139 at 19; that case supports applying the “unmixed

questions of law” exception when other players, like APC or

Intervenor-Plaintiffs, “could readily avoid the estoppel

consequence of a loss by” instead bringing the lawsuit, Pharm.

Care, 522 F.3d at 447.

ii. Policy Considerations and the
Presence of Non-Mutual Parties
Also Weigh Against the Application
of Issue Preclusion Here

Even if the Court had declined to apply the “unmixed

questions of law” exception, practical and equitable policy

considerations, including the presence of several non-mutual

parties, “counsel against application of collateral estoppel in

this case.” Id.

Issue preclusion “must be evaluated in light of the policy

concerns underlying the doctrine[,]” Stauffer, 464 U.S. at 176

(White, J., concurring); see also PJ United, Inc. v. Camron, No.

7:15-cv-00955, 2016 WL 10100762, at *4 (N.D. Ala. Mar. 23, 2016)

(“Defensive collateral estoppel is largely grounded in several

different policy concerns.”); which include conserving judicial

resources, avoiding inconsistent results across jurisdictions,

83
preventing forum shopping and piecemeal litigation, and

encouraging reliance on adjudication, see Hardison, 655 F.2d at

1288; Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 66 L.

Ed. 2d 308 (1980). “[T]here is no justification for applying

collateral estoppel, which is a flexible, judge-made doctrine,

in situations where the policy concerns underlying it are

absent.” Stauffer, 464 U.S. at 176 (White, J., concurring).

Here, the Court concludes that none of these policy

concerns are implicated so as to warrant applying issue

preclusion to bar the Alabama Plaintiffs’ ACT water quality

claims. First, as Alabama argues, applying the doctrine against

it “will not conserve the parties’ or the Court’s resources”

because the Court is presently ruling on the merits of the

parties’ cross-motions for summary judgment. Ala.’s Opp’n to

Suppl. Mot., ECF No. 134 at 33. Additionally, as discussed

below, APC is a non-mutual party to which preclusion does not

apply, such that the Court “would not save any resources because

it still has to adjudicate [APC’s] same claims.” Id.; see also

PJ United, 2016 WL 10100762, at *4 (“Defendants [still] have to

litigate against the Operating Companies here, meaning they are

already allocating resources to litigating these issues.”); In

re Light Cigarettes Mktg. Sales Prac. Litig., 691 F. Supp. 2d

239, 251 (D. Me. 2010) (“[E]ven if issue preclusion were

appropriate against PM, there is a significant question as to

84
whether it may be used against Altria. Applying issue preclusion

to PM and not to Altria would yield few efficiency

benefits[.]”).

Second, the doctrine’s goals of discouraging forum shopping

and preventing piecemeal litigation are not implicated here, as

Alabama filed the ACT case two years prior to filing the ACF

case, and therefore could not possibly have “adopt[ed] a ‘wait

and see’ attitude, in the hope that the [ACF] action . . .

[would] result in a favorable judgment.” Parklane Hosiery Co. v.

Shore, 439 U.S. 322, 330, 99 S. Ct. 645, 58 L. Ed. 2d 552

(1979). Moreover, forum shopping entails filing suit in

different jurisdictions, but Alabama filed both the ACT and ACF

cases in this district, and the ACF case was only later

transferred to the Northern District of Georgia upon motion by

the State of Georgia, thereby diminishing any concern

Intervenor-Defendants might now have over piecemeal litigation.

See Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 35-36.

Third, because the Court has already determined that the

facts underlying the ACT and ACF cases are sufficiently

unrelated, the Court agrees with Alabama’s contention that

“[a]ny ruling on the fact issues will not result in inconsistent

results because the facts are different[.]” Id. at 33. And

because the Court has also determined that the Northern District

of Georgia’s water quality holdings involved pure questions of

85
law, any collateral estoppel policies are not advanced by

precluding reconsideration of “a legal issue involving different

facts.” Hamilton, 385 F. Supp. 2d at 1335.

In addition, to the extent there is a risk of inconsistent

rulings on pure legal issues affecting the Corps’ management of

its two multi-state river basins, see Intervenor-Defs.’ Suppl.

Mot. Reply, ECF No. 139 at 20 (expressing this concern); other

substantive policy considerations, such as the development of

the law on important questions of national public interest, can

outweigh the “interests of finality and judicial economy.”

United States v. Alcan Aluminum Corp., 990 F.2d 711, 719 (2d

Cir. 1993) (citation omitted); see also Am. Med. Int’l, Inc. v.

Sec’y of Health, Educ. & Welfare, 677 F.2d 118, 122 (D.C. Cir.

1981) (“It can hardly be gainsaid that complex questions of

national import can wholesomely and profitably be explored by

more than a single court.”). “Were this a case involving only

private litigants or only simple issues of fact,” the Court

might hesitate less in the application of issue preclusion. Am.

Med. Int’l, 677 F.2d at 121. However, this is a lawsuit by a

State government (and the State’s largest utility company)

against a federal agency, in which another State government and

numerous municipalities have intervened, about the legality of

operations “in a multi-state river basin that affects tens of

millions of people.” Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at

86
34. In this context of “agency relitigation of legal issues with

substantial public policy implications, inquiry by other

[courts] should not be foreclosed; indeed a conflict among the

[courts in different] circuits could be a healthy matter.” Am.

Med. Int’l, 677 F.2d at 122 (citation and internal quotation

marks omitted); see also United States v. Mendoza, 464 U.S. 154,

160, 104 S. Ct. 568, 78 L. Ed. 2d 379 (1984) (stating that a

rule allowing nonmutual collateral estoppel in cases involving

the government “would substantially thwart the development of

important questions of law by freezing the first final decision

rendered on a particular legal issue”); PJ United, 2016 WL

10100762, at *4 (noting that any potential inconsistencies on

legal issues can be resolved via appeals). Therefore, “with the

aim of producing a sound and well-reasoned decision[,]” the

Court declines, based on these underlying policy considerations,

to preclude consideration of the Alabama Plaintiffs’ water

quality claims. Am. Med. Int’l, 677 F.2d at 123.

A final equitable consideration that also weighs against

the application of issue preclusion in this instance is the

presence of several non-mutual plaintiffs—APC and Intervenor-

Plaintiffs—who were not parties to the ACF case. See Nat’l R.R.

Passenger Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 525 (3d

Cir. 2002) (recognizing the lack of “mutuality of estoppel” as

an “equitable exception” to issue preclusion (citing Blonder-

87
Tongue, 402 U.S. at 328-29)). Intervenor-Defendants nonetheless

argue that like the State of Alabama, “[t]he remaining Alabama

Parties should also be barred from relitigating the issues

decided in the ACF case” because as Alabama citizens, they

cannot “complain that Alabama’s representation of their

interests in the ACF Case was ‘inadequate.’” Intervenor-Defs.’

Suppl. Mot., ECF No. 129 at 29-30. The Georgia Parties claim

that since APC co-signed Alabama’s brief and Intervenor-

Plaintiffs “adopt[ed] and incorporate[d] by reference in toto”

Alabama’s arguments, Intervenor-Pls.’ Mot., ECF No. 85 at 7; the

Alabama Parties have “endorsed” Alabama as an adequate

representative of their interests, Intervenor-Defs.’ Suppl.

Mot., ECF No. 129 at 30.

In response, Alabama argues that APC and Intervenor-

Plaintiffs are not barred from litigating the disputed water

quality issues because there are no indications that Alabama

served as their “legal representative in the ACF case [or] . . .

understood itself to be representing any of them, or that any of

them understood itself to be represented by Alabama.” Ala.’s

Opp’n to Suppl. Mot., ECF No. 134 at 37-38. Intervenor-

Plaintiffs “adopt and incorporate” Alabama’s opposing arguments

to the Georgia Parties’ supplemental motion and add that they

have each “raised distinct issues in this case that were not

present in the ACF litigation.” Intervenor-Pls.’ Opp’n to Suppl.

88
Mot., ECF No. 135 at 1-2. Likewise, APC adopts Alabama’s

arguments but limits its own response “to the non-party

preclusion issue[,]” arguing that: (1) due process bars the

application of collateral estoppel to APC because it was not a

party to the ACF case and had no opportunity to be heard on the

issues; and (2) APC “seeks to vindicate rights in this case that

are separate and apart from those represented by the State of

Alabama, and as such, the State of Alabama does not ‘adequately

represent’ [APC].” APC’s Opp’n to Suppl. Mot., ECF No. 137 at 2,

5. The Court is persuaded by the Alabama Parties’ opposition

arguments and concludes that these circumstances do not warrant

carving out an exception to issue preclusion’s general rule

requiring mutuality of parties. See Proctor v. Dist. of

Columbia, 74 F. Supp. 3d 436, 452 (D.D.C. 2014) (stating the

rule that “[i]ssue preclusion may not be asserted against one

who was not a party in the first case”).

Generally, pursuant to due process principles, a nonparty

to a suit is not deemed to have had “a full and fair opportunity

to litigate the claims and issues settled in that suit” because

of “the deep rooted historic tradition that everyone should have

[their] own day in court.” Sturgell, 553 U.S. at 892-93

(citation and internal quotation marks omitted); see also

Parklane, 439 U.S. at 327 n.7 (“It is a violation of due process

for a judgment to be binding on a litigant who was not a party

89
or a privy and therefore has never had an opportunity to be

heard.”). However, the Supreme Court has noted that “in certain

limited circumstances,” nonparties may be precluded from

litigating issues previously decided where they were “adequately

represented” by a party to the first suit “with the same

interests.” Sturgell, 553 U.S. at 894 (citation and internal

quotation marks omitted). For a party’s representation of a

nonparty to be considered “adequate,” “at a minimum:” (1) the

interests of the nonparty and its representative must be

aligned; and (2) either the party must have understood itself to

be acting in a representative capacity “or the original court

took care to protect the interests of the nonparty.” Id. at 900.

Examples of such “[r]epresentative suits with preclusive effect

on nonparties” include “properly conducted class actions, and

suits brought by trustees, guardians, and other fiduciaries[.]”

Id. at 894 (internal citations omitted).

Here, none of these “limited circumstances” are present,

nor can it be said that the State of Alabama “adequately

represented” APC and Intervenor-Plaintiffs’ water quality claims

in the ACF case. First, legal representatives for preclusion

purposes are “restricted to five specific categories: trustees,

persons authorized by the nonparty, executors, authorized public

officials, and class representatives designated by a court[,]”

In re Salas, No. 18-00260, 2018 WL 4621930, at *12 (Bankr.

90
D.D.C. Sept. 24, 2018); and nothing in the record indicates that

the State of Alabama embodied any of these categories to APC or

Intervenor-Plaintiffs, even though they are Alabama corporations

and municipalities, see Ala.’s Opp’n to Suppl. Mot., ECF No. 134

at 37.

Second, while Intervenor-Defendants claim that the Alabama

Parties’ interests, in relation to both water quality and NEPA

claims, are “perfectly aligned” with the State of Alabama, and

that “the Alabama Intervenors do not identify a single point

where their interests actually diverge from those of their

State[,]” see Intervenor-Defs.’ Suppl. Mot. Reply, 139 at 7, 23-

24; each of the four Intervenor-Plaintiffs has identified

“distinct issues” of particular interest to them that “were not

present in the ACF litigation[,]” see Intervenor-Pls.’ Opp’n to

Suppl. Mot., ECF No. 135 at 2 (noting the Montgomery Board’s

concern that reduced flows caused by the ACT Master Manual

“could adversely affect wastewater discharge assimilation and

its ability to comply with its NPDES permits,” Mobile Water’s

concern that the reduced flows will impact salinity levels in

the Alabama River, and Russell Lands’ and LMRA’s concerns that

the reduced flows will hurt reservoir levels at Lake Martin in

late summer and early fall and hinder economic and recreational

development); as has APC, see APC’s Opp’n to Suppl. Mot., ECF

No. 137 at 14 (noting its “‘unique and substantial’ interests in

91
the broader ACF and ACT litigation as a result of its federal

[Federal Energy Regulatory Commission (“FERC”)] licenses in the

ACT and [its] Nuclear Regulatory Commission license in the ACF—

an interest that especially does not concern the State of

Alabama”). These unique concerns negate the “perfect” alignment

of interests between Alabama, APC, and Intervenor-Plaintiffs on

both water quality and NEPA issues. 20

Third, the Georgia Parties fail to point to anything other

than Alabama’s status as a State to argue that it understood

itself to be “acting in a representative capacity” for APC and

Intervenor-Plaintiffs. Sturgell, 553 U.S. at 900. Although they

argue that courts have found nonparty citizens and “creatures of

the State” to be adequately represented by their States in prior

judgments, see Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139

at 24-25; especially “in cases involving sovereign resources

such as water[,]” see Intervenor-Defs.’ Suppl. Mot., ECF No. 129

at 30-31; they cite no recent, apposite cases from this circuit

to support this argument, see APC’s Opp’n to Suppl. Mot., ECF

No. 137 at 12-13 (demonstrating why each of the cases cited by

the Georgia Parties are “inapplicable here”). 21 Furthermore,

20 As noted above, Intervenor-Plaintiffs do not even make the
same water quality claims as APC and Alabama, instead advancing
those claims solely under NEPA and not the CWA or the Corps’
ERs, as the Alabama Plaintiffs do. See supra note 12.
21 As APC notes in its opposition, “[t]hough they never use the

phrase, the Georgia Parties appear to claim that [APC] was
92
although Alabama stated in its ACF complaint that injury would

befall “its citizens,” Compl., Alabama v. U.S. Army Corps of

Eng’rs, No. 17-607 (JDB) (D.D.C. Apr. 5, 2017), ECF No. 1 at 8 ¶

32; the Court is unpersuaded that this statement alone indicates

that Alabama understood itself to be specifically representing

the interests of the Montgomery Board, Mobile Water, LMRA, and

Russell Lands. See Sturgell, 553 U.S. at 901 (rejecting the

“expansive” idea of “virtual representation” that “would

authorize preclusion based on identity of interests and some

kind of relationship between parties and nonparties”). Finally,

neither did the Northern District of Georgia take “care to

‘adequately represented’ because the State of Alabama was
supposedly appearing as parens patriae.” APC’s Opp’n to Suppl.
Mot., ECF No. 137 at 9. “[U]nder the doctrine of parens patria,
a state is deemed to represent all of its citizens, when the
state is a party in a suit involving a matter of sovereign
interest.” Menzel v. Cnty. Utils. Corp., 501 F. Supp. 354, 357
(E.D. Va. 1979). However, the ACT and ACF cases do not involve
matters of one sovereign’s interest but rather multi-state river
basins controlled not by any one State but by a federal agency.
Further, “a state cannot proceed as parens patriae when the
United States, the superior ‘parent of the country,’ is the
defendant.” Gov’t of Province of Manitoba v. Zinke, 273 F. Supp.
3d 145, 165 (D.D.C. 2017). The D.C. Circuit has “decided that
the extent to which a state may sue as a representative of its
residents ‘must be qualified by [a] statement of the type and
extent of the interests to be represented, and of the defendants
against whom the action is brought.’” Id. at 166 (quoting
Pennsylvania v. Kleppe, 533 F.2d 668, 673 (D.C. Cir. 1976)
(emphasis in original)). Thus, even if the Georgia Parties had
argued for the application of parens patriae, the federal nature
of the Corps and their officers as defendants implicates “policy
concerns, apart from the injury itself,” and prevents the
doctrine from being used here to claim Alabama was fit to
represent the Alabama Parties’ claims in the ACF case. Id.
93
protect the interests of” APC or Intervenor-Plaintiffs in the

ACF case such that it would now be fair to bind them, as non-

parties, to its 2020 and 2021 decisions. See id. at 898, 900

(requiring “special procedures to safeguard the interests of

absentees”).

In its opposition briefing, APC also argues that the

Northern District of Alabama’s decision in 2005 to allow APC to

intervene as a plaintiff in the original Water Wars litigation

based on a finding that APC’s interests were not “adequately

represented” by the State of Alabama, see Alabama, 229 F.R.D. at

672; supports concluding that APC “seeks to vindicate rights” in

this case that “differ” from those represented by Alabama, see

APC’s Opp’n to Suppl. Mot., ECF No. 137 at 7. The Northern

District of Alabama made this finding in the context of various

motions to intervene, where it noted that because Alabama had

explicitly filed suit as parens patriae, see supra note 21

(defining this doctrine); APC, as a citizen of the State of

Alabama, could only intervene as a matter of right if it showed

that Alabama would not adequately protect an interest APC shared

with other citizens of the State, or that APC sought to pursue

an interest apart from a shared interest with the class of all

other Alabama citizens, see Alabama, 229 F.R.D. at 673. The

Northern District of Alabama concluded that APC had demonstrated

that its interest “differ[ed] from that of Alabama[,]” as

94
Alabama was concerned with “the management of all water

resources in the ACF and ACT river basins” and “all its

citizens,” while APC “specifically desire[d] to protect the

supply of water needed for its power generation operations” and

“its interest in obtaining the Corps’ approval for its

development plan.” Id. at 674 (emphasis in original). In

addition to finding that APC’s specific interests “diverge[d]

from Alabama’s general interest[,]” that court also found that

the State would “not adequately represent” APC’s specific

interests, thereby concluding that APC overcame the parens

patriae presumption that Alabama would represent its interests

in the case. Id. at 674-75. APC now argues that “[t]he same is

true here[,]” especially since Intervenor-Defendants were

parties to the Northern District of Alabama’s 2005 ruling. APC’s

Opp’n to Suppl. Mot., ECF No. 137 at 11.

The Court agrees with APC that this 2005 decision provides

persuasive evidence in favor of concluding that the State of

Alabama does not now adequately represent the interests of APC

and Intervenor-Plaintiffs so as to permit defensive non-mutual

issue preclusion. See South Carolina v. North Carolina, 558 U.S.

256, 271-73, 130 S. Ct. 854, 175 L. Ed. 2d 713 (2010) (finding

that Duke Energy, an entity operating dams and reservoirs in

both the plaintiff and defendant States, had “demonstrated

powerful interests” likely to “shape the outcome of [the]

95
litigation” that were separate from the interests represented by

the States). Although the Georgia Parties argue that the

standard for “adequate representation” under a Rule 24(a) motion

to intervene differs from the standard used in the issue

preclusion analysis, see Intervenor-Defs.’ Suppl. Mot. Reply,

ECF No. 139 at 26-27; two of the key authorities relied on in

their briefings, see id. at 24; Intervenor-Defs.’ Suppl. Mot.,

ECF No. 129 at 31; in fact note that “the underlying principle”

of “adequate representation” involved in a motion to intervene

in regard to the doctrine of parens patriae is “applicable” to

preclusion cases, see Menzel v. Cnty. Utils. Corp., 501 F. Supp.

354, 357 (E.D. Va. 1979); United States v. Olin Corp., 606 F.

Supp. 1301, 1304, 1307 (N.D. Ala. 1985) (noting that “the rule

regarding intervention in a parens patriae action [ ] is equally

appropriate” in a res judicata preclusion case). Therefore, the

Court concludes that Intervenor-Defendants have failed to

establish the two requisite criteria for the “carefully

circumscribed ‘adequate representation’ exception to the bar

against nonparty preclusion[.]” Nationwide Mut. Fire Ins. Co. v.

George V. Hamilton, Inc., 571 F.3d 299, 313 (3d Cir. 2009);

Sturgell, 553 U.S. at 893-94, 900.

Accordingly, because the water quality issues raised by

Intervenor-Defendants’ supplemental motion for summary judgment

are “unmixed questions of law” excluded from the application of

96
the issue preclusion doctrine, and because policy and equity

considerations, including the presence of non-mutual parties,

further weigh against its application, the Court declines to

preclude the Alabama Plaintiffs’ water quality claims in the

instant action based on the Northern District of Georgia’s ACF

water quality rulings regarding the CWA and ER 1110-2-8154.

2. The Alabama Plaintiffs’ Water Quality Claims
Fail on the Merits

Because the Court has declined to apply issue preclusion to

the Alabama Plaintiffs’ water quality claims, it will proceed to

analyze the merits. As discussed, the Alabama Plaintiffs argue

that the ACT Master Manual should be set aside because it

violates: (1) section 313(a) of the CWA, 33 U.S.C. § 1323(a);

and (2) ER 1110-2-8154 of the Corps’ water quality guidance. See

supra section IV.A. They also advance a third argument—that by

adopting the Master Manual despite acknowledging its adverse

water quality impacts, the Corps engaged in an “unexplained

departure” from precedent in violation of the APA’s duty to make

reasoned decision-making. See Ala.’s Opp’n to Suppl. Mot., ECF

No. 134 at 13, 28-30; Compl., ECF No. 1 at 25-26 ¶ 114. The

Court addresses each argument in turn.

a. Section 313(a) of the CWA (33 U.S.C. §
1323(a))

The Alabama Plaintiffs argue that operations under the

Master Manual, resulting in reduced flows from the Allatoona

97
Project, will degrade downstream waters and lead to violations

of Alabama’s state water quality standards, see Ala. Admin. Code

r. 335-6-10.01 (1991); including the standards for nutrient

concentrations in Weiss Lake, an APC reservoir located in

Alabama, see Pls.’ Mot., ECF No. 83 at 48-50; Intervenor-Defs.’

Cross-Mot., ECF No. 97 at 21-22. As Defendants note, this

“argument boils down to the assertion that the Corps has an

obligation under 33 U.S.C. §§ 1313 and 1323 [of the CWA] to

avoid operational decisions that could contribute to non-

attainment of the state water quality standards applicable

downstream from the dams[.]” Defs.’ Cross-Mot., ECF No. 95 at

51. Defendants respond that they have fulfilled their duties

under the CWA because they gave the requisite consideration to

water quality standards, in addition to their obligations under

other relevant governing statutes. Id. at 53. The Georgia

Parties add that the Corps could not have violated Alabama’s

water quality standards because these standards are not, within

the meaning of section 313(a), “requirements” with which the

Corps must comply, and thus, the Alabama Plaintiffs’ CWA claim

must fail. Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 22. For

the reasons discussed below, the Court agrees that Alabama’s

water quality standards are not enforceable “requirements” under

the statute and that the Alabama Plaintiffs have failed to state

a claim pursuant to the CWA.

98
 The Alabama Plaintiffs’ argument that the Corps must comply

with state water quality standards is premised on the following

language in the CWA:

Each . . . agency . . . of the Federal
Government (1) having jurisdiction over any
property or facility, or (2) engaged in any
activity resulting, or which may result, in
the discharge or runoff of pollutants, . . .
shall be subject to, and comply with, all
Federal, State, interstate, and local
requirements, administrative authority, and
process and sanctions respecting the control
and abatement of water pollution in the same
manner, and to the same extent as any
nongovernmental entity . . . .

33 U.S.C. § 1323(a) (emphasis added). Using this language, they

argue that because the Corps, a federal agency, has jurisdiction

over the Allatoona Project, it is subject to and required to

comply with State requirements, specifically state water quality

standards. See Pls.’ Mot., ECF No. 83 at 48-50. Section 301 of

the CWA requires the States to establish these standards for all

of their waters. See 33 U.S.C. § 1313.

The Court first concludes that section 313(a) “does not

qualify as a requirement in and of itself.” In re ACF Basin, 467

F. Supp. 3d at 1336; see also New York v. United States, 620 F.

Supp. 374, 381-82 (E.D.N.Y. 1985) (explaining that section

313(a) does “not expand the category of applicable substantive

requirements with which federal facilities must comply”

(citation and internal quotation marks omitted)); Intervenor-

99
Defs.’ Cross-Mot., ECF No. 97 at 22 (agreeing that section

1323(a) does not “impose[] a general duty on the Corps”).

Instead, to state a claim under section 313(a), the Alabama

Plaintiffs must allege that, in updating the Master Manual, the

Corps has violated some applicable “requirement” within the

meaning of that section, which thus requires that the Court

determine whether state water quality standards, as the Alabama

Plaintiffs contend, are themselves such “requirements.” See

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 25 n.5.

The Supreme Court has concluded that “the requirements that

can be enforced against federal agencies under Section 313(a)

are limited to objective state standards of control, such as

effluent limitations in permits, compliance schedules[,] and

other controls on pollution applicable to dischargers.” In re

ACF Basin, 467 F. Supp. 3d at 1337; see EPA v. Cal. ex rel.

State Water Res. Control Bd., 426 U.S. 200, 215, 96 S. Ct. 2022,

48 L. Ed. 2d 578 (1976) (noting that “certain parts of the

legislative history would seem to indicate that the

‘requirements’ language of Section 313 refers simply and solely

to substantive standards, to effluent limitations and standards

and schedules of compliance” (some internal quotation marks

omitted)); 22 New York, 620 F. Supp. at 381 (“[T]he Supreme Court

22The CWA was amended after the Supreme Court’s decision in EPA
v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 96
100
seems to equate ‘requirements’ in § 313 with effluent

limitations and standards.”); see also Hancock v. Train, 426

U.S. 167, 187-89, 96 S. Ct. 2006, 48 L. Ed. 2d 555 (1976)

(concluding that nearly identical “requirements” language from

the Clean Air Act contemplates only “emission standards and

compliance schedules”). As the Northern District of Georgia

noted in its 2020 ACF decision, “most [CWA] requirements

ultimately arise from the foundational requirement to obtain a

permit before discharging any pollutant into waters of the

United States[,]” with each permit including “effluent

limitations and other requirements sufficient to protect water

quality standards.” In re ACF Basin, 467 F. Supp. 3d at 1337

(citing 33 U.S.C. § 1311(a), (b)(1)(C)).

While water quality standards and effluent limitations “are

related, . . . the two are entirely different concepts and the

difference is at the heart of the [Federal Water Pollution

Control Act Amendments of 1972].” Bethlehem Steel Corp. v. EPA,

538 F.2d 513, 515 (2d Cir. 1976). Before the 1972 Amendments,

S. Ct. 2022, 48 L. Ed. 2d 578 (1976), but these amendments
“merely expanded the federal government’s obligation to comply
with both procedural and substantive ‘requirements.’” See
Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 22 n.10 (citing New
York v. United States, 620 F. Supp. 374, 383 (E.D.N.Y. 1985)).
Thus, to the degree the Supreme Court’s ruling “construed the
substantive ‘requirements’ of § 313 to mean effluent
limitations, such ruling was unaffected by the 1977 amendments
enacted by Congress.” New York, 620 F. Supp. at 382.
101
water quality standards “were the keystone of the federal

pollution control program[,]” under which “if wastes discharged

into receiving waters reduced the quality below permissible

standards, legal action could be commenced against the

discharger.” Id. (citation and internal quotation marks

omitted). However, “[t]his program based on water quality

standards . . . proved ineffective[,]” problems which “stemmed

from the character of the standards themselves,” Cal. ex rel.,

426 U.S. at 202; and “[i]t was this dissatisfaction with water

quality standards as a method of pollution control that led to

the proposal that they be replaced or supplemented with

‘effluent limitations[,]’” Bethlehem, 538 F.2d at 515.

Thereafter, the concept of strict technology-based effluent

limitations was “offered as a logical alternative to” water

quality standards, so that “[i]nstead of indirectly measuring

discharges by their effect on water quality, monitoring

equipment would directly measure discharges at their source.”

Id. (citation omitted); Cal. ex rel., 426 U.S. at 204-05. Today,

effluent limitations, established pursuant to sections 301, 304,

and 306 of the CWA, see 33 U.S.C. §§ 1311, 1314, 1316; and

defined as restrictions established by the States “on

quantities, rates, and concentrations” of constituent substances

“discharged from point sources into navigable waters,” id. §

1362(11); are readily distinguishable from water quality

102
standards, which “encompass[] all designated uses of a water

body and all water quality criteria that define pollutant levels

necessary to protect those uses[,]” Jackson, 798 F. Supp. 2d at

227-28; 33 U.S.C. § 1313(c)(2)(A). So while the CWA “provides

for two primary sets of water quality measures: (1) effluent

limitations; and (2) water quality standards[,]” Nat’l Wildlife

Fed’n v. U.S. Army Corps of Eng’rs, 92 F. Supp. 2d 1072, 1074

(D. Or. 2000); the Court concludes that history and precedent

regarding the CWA and its amendments indicate that enforceable

“requirements” within the meaning of section 313(a) include only

the former and not the latter, see Or. Nat. Res. Council, 834

F.2d at 850 (stating that while “effluent limitations may be

derived from state water quality standards[,]” only these

limitations “may be enforced when included in a discharger’s

permit[,]” as opposed to “water quality standards themselves”).

Therefore, the Court rejects the Alabama Plaintiffs’ textual

approach to arguing that “[n]othing in § 1323(a)’s text excludes

water-quality standards from the ‘requirements’ to which the

Corps must adhere.” See Pls.’ Reply, ECF No. 99 at 22-23.

The Court notes that under the CWA, dams in the ACT Basin,

including Allatoona Dam at issue here, are considered “nonpoint

sources,” to which effluent limitations do not apply, and thus

are not subject to NPDES permit requirements, see Or. Nat. Res.

Council, 834 F.2d at 849-50; Nat’l Wildlife Fed’n, 92 F. Supp.

103
2d at 1075; regardless of whether the dams are operated by

private citizens or by the Corps as a federal agency, see, e.g.,

In re ACF Basin, 467 F. Supp. 3d at 1337-38 (concluding that

nonpoint sources, like dams in the ACF Basin “are not subject to

NPDES permits . . . or effluent limitations”); Nat’l Wildlife

Fed’n v. Gorsuch, 693 F.2d 156, 167, 182-83 (D.C. Cir. 1982)

(same); U.S. ex rel. Tenn. Valley Auth. v. Tenn. Water Quality

Control Bd., 717 F.2d 992, 998 (6th Cir. 1983) (same); L.A.

Cnty. Flood Control Dist. v. Nat. Res. Def. Council, 568 U.S.

78, 82, 133 S. Ct. 710, 184 L. Ed. 2d 547 (2013) (explaining

that “discharge of pollutants” does not occur when water “flows

from one portion of a river that is a navigable water of the

United States, through a concrete channel or other engineered

improvement in the river,” and then “into a lower portion of the

same river”). Certification obligations from section 401 of the

CWA, see 33 U.S.C. § 1341 (providing that whenever a federal

agency issues a license or permit for any activity that may

result in a discharge of pollutants into navigable waters, the

State in which the activity occurs may issue a section 401

certification imposing any conditions to ensure compliance with

applicable water quality standards, and the certification is

then incorporated into the license or permit); “often a source

of enforceable ‘requirements’ applicable to federal agencies[,]”

also do not apply to nonpoint sources such as dams, In re ACF

104
Basin, 467 F. Supp. 3d at 1337-38. In sum, the Alabama

Plaintiffs cannot point to: (1) effluent limitations; (2) NPDES

permits; (3) section 401 certification requirements; or

(4) water quality standards as sources of enforceable

“requirements” under the CWA for the Corps’ ACT projects, all of

which involve dams and are governed by the Master Manual’s

operational updates.

The Court’s conclusion is buttressed by the Northern

District of Georgia’s identical conclusion that state “water

quality standards are not directly enforceable under the [CWA,]”

but “rather they provide the basis for specific, enforceable

requirements designed to achieve them.” In re ACF Basin, 467 F.

Supp. 3d at 1337-38; see also Or. Nat. Res. Council, 834 F.2d at

850 (similarly concluding that “it is not the water quality

standards themselves that are enforceable . . . but it is the

‘limitations necessary to meet’ those standards, or ‘required to

implement’ the standards” that are enforceable); Intervenor-

Defs.’ Suppl. Mot., ECF No. 129 at 13 (correctly contending that

although water quality standards “‘establish the desired

condition of a waterway,’” and are foundational to the CWA,

“they do not create ‘requirements’ that can be ‘violated’ within

the meaning of Section 1323(a)” (quoting Arkansas, 503 U.S. at

101)). Despite state water quality standards not being “self-

enforcing,” the Northern District of Georgia concluded that to

105
ensure the attainment of those standards, the States can “create

specific, enforceable ‘requirements’ of nonpoint sources through

programs such as: ‘Best Management Practices’ or ‘BMPs’ to

control runoff and ‘total maximum daily load[s]’ or ‘TMDLs’ that

impose conditions on nonpoint source users.” In re ACF Basin,

467 F. Supp. 3d at 1337-38; see also Tenn. Water Quality Control

Bd., 717 F.2d at 999 (“Water pollution arising from nonpoint

sources is to be dealt with differently, specifically through

the device of areawide waste treatment management by the

states.”); Ctr. for Native Ecosystems v. Cables, 509 F.3d 1310,

1332 (10th Cir. 2007) (concluding that by implementing BMPs to

address water pollution, the agency complied with Wyoming’s

state water quality “requirements” under section 1323(a) of the

CWA); Ctr. for Biological Diversity v. Wagner, No. 08-302, 2009

WL 2176049, at *16, *18 (D. Or. June 29, 2009) (finding that the

agency’s implementation of BMPs “constitutes compliance with”

Oregon’s state water quality “requirements” and thus section

1323(a)), R. & R. adopted by Ctr. for Biological Diversity v.

Wagner, No. 08-302, 2009 WL 2208023 (D. Or. July 22, 2009).

Therefore, once the States create such “requirements” to serve

as the enforcement mechanisms for achieving the underlying water

quality standards, federal facilities must comply with them “to

the same extent as any nongovernmental entity.” 33 U.S.C. §

1323(a); see also Cables, 509 F.3d at 1332 (holding federal

106
agencies to the same water pollution control requirements “as if

they were private citizens”).

In concluding that state water quality standards are not

“requirements” under section 313(a) of the CWA and that the

State of Alabama failed to identify any other “requirement” that

the Corps had violated, the Northern District of Georgia relied

heavily on the Supreme Court’s decision in EPA v. California ex

rel. State Water Resource Control Board, 426 U.S. 200, 96 S. Ct.

2022, 48 L. Ed. 2d 578 (1976), and the District Court for the

Eastern District of New York’s (“Eastern District of New York”)

decision in New York v. United States, 620 F. Supp. 374

(E.D.N.Y. 1985). See In re ACF Basin, 467 F. Supp. 3d at 1337-

38. The New York plaintiffs, like the Alabama Plaintiffs here,

argued that “requirements” under section 313(a) include water

quality standards such that an alleged violation of those

standards is actionable under the CWA. 620 F. Supp. at 381-82.

Using the Supreme Court’s discussion of the meaning of section

313(a)’s “requirements” language in EPA v. California ex rel.,

the Eastern District of New York concluded that state water

quality standards fail to equate to substantively enforceable

“requirements” under that provision because they are not “an

objective, administratively predetermined effluent standard or

limitation or administrative order upon which to measure the

prohibitive levels of water pollution.” See id. at 381-84. While

107
the Georgia Parties label New York “instructive,” Intervenor-

Defs.’ Cross-Mot., ECF No. 97 at 24; the Alabama Plaintiffs call

it “an inapposite non-APA case” because they claim it made

conclusions under the CWA’s citizen-suit provision, section 505

codified at 33 U.S.C. § 1365, that do not apply “to an APA suit

challenging the Corps’ compliance with § 1323(a)[,]” see Pls.’

Reply, ECF No. 99 at 24-25. So too have the Alabama Plaintiffs

claimed that this Court should reject the Northern District of

Georgia’s reasoning in the ACF case because they allege it

erroneously analyzed “Alabama’s water-quality claims as if they

were under the citizen-suit provision of the [CWA,]” as opposed

to being under the APA. See Pls.’ Resp. to Suppl. Authority

Notice, ECF No. 120 at 1. The Court rejects both of these

arguments for the same reason the Northern District of Georgia

did: “The New York court examined both Section 313(a) and

Section 505[,] explicitly holding that the two should be

‘construed as coextensive[,]’ . . . [and] held that water

quality standards do not constitute ‘requirements’ under either

code section.” In re ACF Basin, 467 F. Supp. 3d at 1338 (citing

New York, 620 F. Supp. at 381-84).

The Court is therefore unpersuaded by the contrary cases

the Alabama Plaintiffs cite in their reply, many of which were

also considered by the Northern District of Georgia and duly

rejected because they arose from “violations of Section 401

108
Certification or NPDES requirements, [or] . . . from specific

state regulations adopted by the states to implement these

regulatory programs and not directly from the water quality

standards themselves.” In re ACF Basin, 467 F. Supp. 3d at 1338-

39; see, e.g., S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547

U.S. 370, 374-75, 126 S. Ct. 1843, 164 L. Ed. 2d 625 (2006)

(addressing section 401 certification requirements); Ohio v.

U.S. Army Corps of Eng’rs, 259 F. Supp. 3d 732, 749-52 (N.D.

Ohio 2017) (same); Fla. Wildlife Fed’n, Inc. v. U.S. Army Corps

of Eng’rs, No. 4:12-cv-355, 2013 WL 5436707, at *3 (N.D. Fla.

Sept. 27, 2013) (analyzing a Florida statute creating a private

right of action against individuals who violate the State’s

water quality standards). In addition, although the Court of

Appeals for the Ninth Circuit (“Ninth Circuit”) has stated that

section 313(a) of the CWA requires the Corps to comply with

state water quality standards, Nat’l Wildlife Fed’n v. U.S. Army

Corps of Eng’rs, 384 F.3d 1163, 1167 (9th Cir. 2004); see also

Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 132 F. Supp.

2d 876, 889 (D. Or. 2001); it not only did not actually analyze

whether such standards constitute enforceable “requirements”

within the meaning of the CWA, see Intervenor-Defs.’ Cross-Mot.,

ECF No. 97 at 24; Defs.’ Reply, ECF No. 102 at 34; but it also

noted that the CWA’s directive to agencies to comply with such

standards “must be construed in pari materia with” other

109
congressional statutes governing federal dams, Nat’l Wildlife

Fed’n, 384 F.3d at 1178; as the Corps now argues in defense to

the Alabama Plaintiffs’ CWA claims, see Defs.’ Cross-Mot., ECF

No. 95 at 52-53; see also 33 C.F.R. § 222.5(f)(1) (listing some

of the “applicable Congressional Acts”). 23

The Court is instead persuaded by an earlier Ninth Circuit

case that explicitly analyzed the enforceability of “state water

quality standard violations from nonpoint sources pursuant to

the APA,” as is the case here, in which that court specified

that while the CWA “requires each state to develop and implement

‘water quality’ standards to protect and enhance the quality of

water within the state[,]” federal agencies need only comply

23Another district court has suggested that National Wildlife
Federation v. U.S. Army Corps of Engineers, 132 F. Supp. 2d 876
(D. Or. 2001), can be “significant[ly]” distinguished from cases
like the instant action, since it “involved a series of dams
which were all located in the same state, thus requiring the
enforcement of only one set of water quality standards.” North
Dakota v. U.S. Army Corps of Eng’rs, 270 F. Supp. 2d 1115, 1127
(D.N.D. 2003). That court wrote that when “other downstream
states may assert similar violations of their respective water
quality standards[,] . . . the complexity of the issues
present[ed] . . . appears to lessen the probability of . . .
success on the merits.” Id. It therefore held that “[a]lthough
the Corps of Engineers has been held liable for non-compliance
with state water quality laws in one other reported decision,
the courts have yet to see one state along a major river system
comprised of several dams and reservoirs spread over many states
succeed in a state water quality standards enforcement action.”
Id. at 1128. Applied here, while Allatoona Dam is in Georgia,
operations under the Master Manual can affect Georgia’s, as well
as, Alabama’s water quality standards, thereby limiting the
persuasive effect of National Wildlife Federation in this case.
110
with “state requirements,” and that it is “not the water quality

standards themselves that are enforceable” “requirements” but

rather “the ‘limitations necessary to meet’ those standards[.]”

Or. Nat. Res. Council, 834 F.2d at 848, 850.

The Alabama Plaintiffs cite two more cases which the Court

finds similarly unpersuasive. They point to North Dakota v. U.S.

Army Corps of Engineers, 270 F. Supp. 2d 1115 (D.N.D. 2003), see

Pls. Reply, ECF No. 99 at 24; which they note cites the D.C.

Circuit’s decision in National Wildlife Federation v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982), to argue for “[t]he concept that

state water quality standards should apply to the activities of

the Corps . . . . ” 270 F. Supp. 2d at 1125 n.6 (citing Gorsuch,

693 F.2d at 182-83 n.78). However, in Gorsuch, the D.C. Circuit

merely stated that “it may well be that state areawide water

quality plans are the better regulatory tool” than the NPDES

permit program for nonpoint sources and that “new dams cannot be

built unless they comply with state water quality requirements.”

693 F.2d at 182-83. Nothing in these statements differs from the

Court’s conclusions, as it has already concluded that NPDES

permit requirements do not apply to the Allatoona Dam at issue

and that section 313(a) mandates compliance with applicable

“requirements.” Because the D.C. Circuit did not distinguish

between state water quality standards and the enforceable

“requirements” that lead to attainment of those standards, any

111
dicta in a footnote referencing such standards is not binding

here, see id. at 183 n.78; and in any event, the D.C. Circuit

later stated that “water quality standards by themselves have no

effect on pollution; the rubber hits the road when the state-

created standards are used as the basis for specific effluent

limitations in NPDES permits[,]” Am. Paper Inst., 996 F.2d at

350. Furthermore, the North Dakota court wrote that “[t]here is

no mechanism in the [CWA] for the enforcement of water quality

standards adopted by the states; rather the enforcement is left

to the states[,]” a conclusion shared by this Court and the

Northern District of Georgia. North Dakota, 270 F. Supp. 2d at

1124; see In re ACF Basin, 467 F. Supp. 3d at 1338. And in that

case, North Dakota’s governor signed an emergency bill into law

amending North Dakota’s water quality statute to “enable[]” the

action to be brought by the State against the Corps for

“reduc[ing] the quality of [State] waters below the water

quality standards established,” i.e., creating an enforceable

“requirement.” North Dakota, 270 F. Supp. 2d at 1124. As the

Northern District of Georgia concluded in the ACF case, “Alabama

has not alleged violations of a similar provision in Georgia or

Alabama[,]” and the same is true here in the ACT case. In re ACF

Basin, 467 F. Supp. 3d at 1139.

Since the Court has concluded that Alabama’s water quality

standards are not “requirements,” it next assesses whether the

112
Alabama Plaintiffs have identified any enforceable “requirement”

to state a claim under section 313(a) of the CWA. As the Corps

notes, “the only water body where [the Alabama] Plaintiffs

specifically contend that the Alabama water quality standards

will be exceeded” is Weiss Lake, Alabama. Defs.’ Reply, ECF No.

102 at 36. The Alabama Plaintiffs argue that, as confirmed by

the FEIS, reduced flows under the Master Manual “will exacerbate

nutrient concentrations in Weiss Lake, thus contributing to a

violation of the limits [the Alabama Department of Environmental

Management (“ADEM”)] has placed there[,]” and will also

adversely impact the lake’s water temperature and concentrations

of dissolved oxygen, nitrogen, phosphorous, and chlorophyll a,

which “all affect marine habitat.” Pls.’ Mot., ECF No. 83 at 31,

50 (citing A.R., ECF No. 61 at D-00043827, D-00044389, D-

0004390-44393). They contend that downstream releases “are

important because the EPA has determined that the Coosa River,

including Weiss Lake, has impaired water quality because of

discharges originating mostly in Georgia[,]” and that “[t]o that

end,” there is “a specific Total Maximum Daily Load for the

lake, providing limits on pollutants causing a nutrient problem

in the lake.” Id. at 17-18 (citing A.R., ECF No. 61 at D-

00027171-73, D-00027183); see also A.R. ECF No. 61 at D-00027171

(explaining that this TMDL “addresses impairment due to

nutrients in Weiss Lake by providing an estimate of the total

113
phosphorus concentrations allowable in the lake from the point

sources and non-point sources in the watershed” and functions in

conjunction with Alabama’s established numeric chlorophyll a

criterion for Weiss Lake). The Alabama Plaintiffs argue that

“the ACT Manual will contribute to violations of water-quality

standards that were incorporated in a” TMDL at Weiss Lake,

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 24; and thus appear

to contend that even if Alabama’s water quality standards are

not themselves enforceable “requirements” under section 313(a)

of the CWA, the Weiss Lake TMDL is, see id. at 25 n.5; Pls.’

Mot., ECF No. 83 at 50. The Georgia Parties argue in response

that the “water quality standards for nutrients at Weiss Lake .

. . are not ‘requirements’ within [the CWA’s] framework” with

which the Corps must comply. Intervenor-Defs.’ Cross-Mot., ECF

No. 97 at 22. The Court agrees.

A TMDL specifies “the absolute amount of particular

pollutants the entire water body can take on while still

satisfying all water quality standards.” Jackson, 798 F. Supp.

2d at 216 (citing 33 U.S.C. § 1313(d)(1)(C)). Thus, when a state

identifies an impaired waterbody, it must establish a TMDL for

the pollutants causing the impairment. Nat. Res. Def. Council,

Inc. v. EPA, 301 F. Supp. 3d 133, 137 (D.D.C. 2018). Although

the CWA does not define the phrase “total maximum daily load,”

see generally 33 U.S.C. § 1362; it states that “[s]uch load

114
shall be established at a level necessary to implement the

applicable water quality standards with seasonal variations and

a margin of safety which takes into account any lack of

knowledge concerning the relationship between effluent

limitations and water quality[,]” id. § 1313(d)(1)(C). The

States submit proposed TMDLs to the EPA, which either approves

or rejects them. Id. § 1313(d)(2). Rejection of the proposal

“triggers [the] EPA’s duty to develop a substitute TMDL for the

water body in question[,]” Jackson, 798 F. Supp. 2d at 216

(citing 33 U.S.C. § 1313(d)(2)); but if the EPA approves the

proposal, “the implementation of the TMDL rests largely with the

state[,] . . . [as t]he CWA requires states to engage in a

‘continuing planning process’ to implement their TMDLs,” Nat.

Res. Def. Council, 301 F. Supp. 3d at 137-38 (citing 33 U.S.C. §

1313(e)(3)(C)). TMDLs are thus “not self-implementing

instruments, but instead serve as informational tools utilized

by [the] EPA and the States to coordinate necessary responses to

excessive pollution in order to meet applicable water quality

standards.” Jackson, 798 F. Supp. 2d at 216; see also Anacostia

Riverkeeper, Inc. v. Wheeler, 404 F. Supp. 3d 160, 165 (D.D.C.

2019) (“TMDLs themselves have no self-executing regulatory

force.”); Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir.

2002) (“TMDLs are primarily informational tools that allow the

states to proceed from the identification of waters requiring

115
additional planning to the required plans.”). Even though they

are not themselves requirements, TMDLs are “central” to the CWA

because “they tie together point-source and nonpoint-source

pollution issues in a manner that addresses the whole health of

the water.” Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th

Cir. 2002) (citation and internal quotation marks omitted). “On

the federal side,” they “are incorporated into the NPDES system

through permit regulation of point sources[,]” and “[o]n the

state side, the maximum levels and allocations of pollutants in

a TMDL are incorporated into the State’s water quality

management plan.” Jackson, 798 F. Supp. 2d at 216-17. In sum,

although not self-executing, TMDLs “serve as the cornerstones

for pollution-reduction plans that do create enforceable rights

and obligations[,]” Am. Farm Bureau Fed’n, 792 F.3d at 291; and

provide “information for federal, state and local actors in

furtherance of the cooperative efforts to improve water quality

envisioned in the CWA[,]” Jackson, 798 F. Supp. 2d at 217.

Based on this caselaw, although the Northern District of

Georgia suggested that States can create specific “requirements”

of nonpoint sources through TMDLs, see In re ACF Basin, 467 F.

Supp. 3d at 1338; the Court concludes that the Weiss Lake TMDL

raised by the Alabama Plaintiffs is not a directly enforceable

116
requirement within the meaning of the CWA. 24 Neither are the

chlorophyll a standards for Weiss Lake “requirements,” but are

instead examples of specific numeric water quality criteria,

which are merely a piece of what makes up the unenforceable

water quality standards. See Jackson, 798 F. Supp. 2d at 215;

A.R., ECF No. 61 at D-00027171 (“Alabama has established a

numeric chlorophyll a criterion of 20 ųg/L for Weiss Lake.”);

see also Ala. Admin. Code r. 335-6-10.11 (1991) (“Water Quality

Criteria Applicable to Specific Lakes”); Intervenor-Defs.’

Cross-Mot., ECF No. 97 at 23. Because the Alabama Plaintiffs

have failed to identify an enforceable legal “requirement” under

section 313(a) of the CWA that the Master Manual violates, the

Court concludes, as did the Northern District of Georgia in the

ACF case, that they have failed to state a claim pursuant to 33

U.S.C. § 1323(a). See In re ACF Basin, 467 F. Supp. 3d at 1339.

And, even if operations under the Master Manual end up

causing or contributing to future violations of Alabama’s water

quality standards, the Alabama Plaintiffs will continue to lack

an actionable CWA claim. 25 Intervenor-Defs.’ Cross-Mot., ECF No.

24 The Georgia Parties also correctly note that the Weiss Lake
TMDL only mentions the Corps once and does not purport to impose
specific requirements on the Corps or on any of its operations,
including at Allatoona Lake. See Intervenor-Defs.’ Suppl. Mot.
Reply, ECF No. 139 at 14; A.R., ECF No. 61 at D-00027180-81.
25 The Alabama Plaintiffs seem to distinguish between whether the

Corps has already violated the CWA or whether it will “in the
future.” See Pls.’ Resp. to Suppl. Authority Notice, ECF No. 120
117
97 at 24; see Wagner, 2009 WL 2176049, at *16-18 (viewing the

agency’s implementation of BMPs as compliance with Oregon’s

applicable state “requirements,” even if the agency’s actions

contributed to an existing violation of water quality

standards); Cables, 509 F.3d at 1332-33 (same conclusion for

BMPs under Wyoming’s state “requirements” even though the

agency’s action did not “necessarily stop nonpoint-source

pollution from exceeding water quality standards”). Finally, to

the extent the Alabama Plaintiffs argue that they did not have

to identify any “requirement” at all under section 313(a)

because their cause of action is under the APA, see Ala.’s Opp’n

to Suppl. Mot., ECF No. 134 at 25 n.5; Pls.’ Resp. to Suppl.

Authority Notice, ECF No. 120 at 1; the Court rejects the

argument, as APA review “requires reference to the legal duty

set forth in the governing substantive statute[,]” here being

the CWA, Nat’l Wildlife Fed’n, 132 F. Supp. 2d at 889.

b. ER 1110-2-8154

The Alabama Plaintiffs next argue that the Corps’ own

guidance in ER 1110-2-8154 provides a source of independent

at 2. The Court views this distinction as immaterial since the
Alabama Plaintiffs cannot identify any enforceable CWA
“requirement,” either now or in the future. See North Dakota,
270 F. Supp. 2d at 1126 (“North Dakota has alleged future
violations of the [CWA] and state water quality standards. [Its]
failure to show . . . how the Corps . . . is currently in
violation of the [CWA] or state water quality standards weighs
against its success on the merits . . . .”).
118
“requirements” beyond those in the CWA and mandates that the

Corps “avoid creating water-quality conditions that impair

‘existing instream water uses’ ‘throughout the area’ its dam

operations will affect.” Pls.’ Mot., ECF No. 83 at 49 (quoting

ER 1110-2-8154 at 2 ¶ 6a-b). They argue that ER 1110-2-8154

requires the Corps to “‘[e]nsure that water quality, as affected

by the project and its operation is suitable’ not only ‘for

project purposes,’ but also for ‘existing water uses, and public

health and safety and [is] in compliance with applicable Federal

and state water quality standards.’” Id. (citing ER 1110-2-8154

at 3 ¶ 8a). The Georgia Parties argue—and the Court agrees—that

the ERs, including ER 1110-2-8154, are not binding on the Corps.

See Intervenor-Defs.’ Reply, ECF No. 103 at 15-16.

While “[i]t is axiomatic that an agency is legally bound to

respect its own regulations and commits procedural error if it

fails to abide them[,]” Algonquin Gas Transmission Co. v. FERC,

948 F.2d 1305, 1315 (D.C. Cir. 1991) (citation and internal

quotation marks omitted); it is likewise “axiomatic” that courts

“will not review allegations of noncompliance with an agency

statement that is not binding on the agency[,]” United States v.

Alameda Gateway Ltd., 213 F.3d 1161, 1167 (9th Cir. 2000)

(citation and internal quotation marks omitted); specifically,

what amounts to “a general statement of policy” as opposed to a

binding “substantive rule,” Pac. Gas & Elec. Co. v. Fed. Power

119
Comm’n, 506 F.2d 33, 37 (D.C. Cir. 1974). Whereas substantive

rules are adopted pursuant to the APA’s formal notice and

comment process, see 5 U.S.C. § 553; and have the force of law,

a general statement of policy does not result from a rulemaking

or an adjudication; “it is neither a rule nor a precedent but is

merely an announcement to the public of the policy which the

agency hopes to implement in future rulemakings or

adjudications[,]” Pac. Gas, 506 F.2d at 38. Rather than

establish binding norms that determine issues or rights, a

general statement of policy is “an informational device” by

which an agency expresses its views “prior to their actual

application in particular situations.” Id. Accordingly, the

agency, as well as third parties, cannot rely upon a general

statement of policy as law because it merely announces “the

agency’s tentative intentions for the future[,]” and when

applied in a particular situation, the agency “must be prepared

to support the policy just as if the policy statement had never

been issued.” Id. When determining whether an agency standard

carries the force and effect of law or is instead a non-binding

statement of policy, courts will look to the agency’s expressed

intent, including the “agency’s own characterization of a

particular order,” id.; whether the standard “was meant to

create substantive rights in third parties,” Armstrong v.

Accrediting Council for Continuing Educ. & Training, Inc., 980

120
F. Supp. 53, 66 (D.D.C. 1997); and whether it was promulgated

only after public notice and comment, see Nat’l Mining Ass’n v.

McCarthy, 758 F.2d 243, 250 (D.C. Cir. 2014).

The Court concludes, as did the Northern District of

Georgia in the ACF case, that ER 1110-2-8154 “is an internal

guidance document that cannot be enforced by third parties.” In

re ACF Basin, 467 F. Supp. 3d at 1340. First, the “Purpose”

section of ER 1110-2-8154 states that it “establishes a policy

for the water quality management program at Corps civil works

projects.” ER 1110-2-8154 at 1 ¶ 1. This text indicates that the

purpose of ER 1110-2-8154 is to memorialize the general policy

behind the Corps’ water quality management program and to guide

Corps personnel in working on related civil works projects. See

Alameda Gateway, 213 F.3d at 1168 (reaching the same conclusion

based on similar “Purpose” text in a different ER). The Alabama

Plaintiffs point to excerpts of ER 1110-2-8154 from the “Policy”

section, which states that “[t]he Corps’ policy is to take a

leadership role in carrying out the goals and objectives of the

national policy by managing the nation’s water resources,” ER

1110-2-8154 at 2 ¶ 6(b); and from the “Management” section,

which states that “[d]ivisions should adopt and implement

[certain] general water quality management objectives for all

Corps water resources projects[,]” id. at 3 ¶ 8. However, this

text does not establish a specific plan for any particular Corps

121
project. See Pac. Gas, 506 F.2d at 40. Instead, as the Northern

District of Georgia concluded regarding this language, “[a]n

agency statement regarding factors that should be considered and

‘leaves the agency free to exercise its discretion to follow or

not to follow that general policy in an individual case’ is

merely a general statement of policy without force of law.” In

re ACF Basin, 467 F. Supp. 3d at 1340 (quoting Nat’l Mining

Ass’n v. Sec’y of Lab., 589 F.3d 1368, 1371 (11th Cir. 2009)

(emphasis added)). Second, ER 1110-2-8154 “was not published in

either the Code of Federal Regulations or the Federal Register,

providing further evidence that [it] was not intended to be

binding.” Alameda Gateway, 213 F.3d at 1168. Finally, ER 1110-2-

8154 “does not appear to affect any individual rights or

obligations[,]” In re ACF Basin, 467 F. Supp. 3d at 1340; and

therefore cannot create substantive rights in third parties like

the Alabama Plaintiffs, Alameda Gateway, 213 F.3d at 1168.

While the D.C. Circuit has not considered the issue,

numerous courts have concluded that the ERs are non-binding

general policy statements. See, e.g., Alameda Gateway, 213 F.3d

at 1168 (concluding that ER 1165-2-131 was a policy statement

intended “to guide the practice of district engineers” rather

than a substantive rule); Pearce v. United States, 261 F.3d 643,

648-49 (6th Cir. 2001) (holding that ER 1130-2-341 was “not a

substantive agency regulation” but part of the Corps’ “internal

122
operating manual” and therefore created no enforceable duties);

Slappey v. United States, No. 1:11-cv-93, 2013 WL 5406431, at *5

(M.D. Ga. Sept. 25, 2013) (agreeing that the ERs “provide[]

general objectives and guidelines” and do “not mandate any

particular” features at Corps projects), aff’d, Slappey v. U.S.

Army Corps of Eng’rs, 571 F. App’x 855 (11th Cir. 2014); Jones

v. Rose, No. 00-cv-1795, 2008 WL 552666, at *39 (D. Or. Feb. 28,

2008) (“[T]he [ERs] are not legislative in nature; do not have

the force and effect of law; and, therefore, are not reviewable

by the Court.”). Accordingly, because ER 1110-2-8154 is not

binding, the Corps “retains the discretion and authority to

change its position . . . in any specific case[,]” and the

Alabama Plaintiffs have no right to enforce it as against the

Master Manual’s updates. Ass’n of Flight Attendants v. Huerta,

785 F.3d 710, 716 (D.C. Cir. 2015) (citation omitted).

Instead of pointing to any enforceable “requirements” under

the CWA or the ERs, the Alabama Plaintiffs direct the Court to

public comments the EPA made on the FEIS. See Pls.’ Mot., ECF

No. 83 at 48, 51; A.R. ECF No. 61 at D-00049703-14 (EPA’s

complete letter in the record). However, the EPA’s comment

letter does not identify a legal requirement that the Court can

enforce and instead makes many of the same arguments the Court

has rejected, including claiming that enforceable “requirements

are found in the CWA, Executive Orders, promulgated regulations,

123
and the [Corps’] own guidance.” A.R. ECF No. 61 at D-00049710.

In addition, the language which the Alabama Plaintiffs cite

comes from the “Recommendations” section of the letter, in which

the EPA only “recommend[ed]” that the Corps consider and

maximally comply with water quality standards. Id. at D-

00049711. Further, while the Alabama Plaintiffs highlight EPA

statements that the Corps “cannot, through its operational

decisions, create conditions (e.g., decreased flow) that cause

permittees to fall out of compliance[,]” id. at D-00049704; and

force “States and other [downstream] stakeholders [to] address

the consequences of” these decisions, id. at D-00049709; these

are again comments not grounded in a specific source of legal

obligations, see id. at D-00049705 (contending, without

authority, that the Master Manual “should provide for operations

that comply with state water quality standards”).

And, even if operations under the Master Manual end up

affecting downstream water quality under low flow conditions, as

the FEIS admits could happen, id. at D-00043827; which then

could cause state agencies to adjust their NPDES permits to

impose more stringent effluent limitations on permit holders,

see id. at D-00044390 (explaining that “permit conditions may be

temporarily changed [by the States] during extreme low-flow

conditions”); such a result is not an illicit shift in

mitigation responsibility or an unlawful expectation by the

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Corps, but rather its valid reliance on the actual legal

requirements imposed by the CWA’s statutory permitting scheme.

Specifically, section 301 of the CWA requires effluent

limitations in NPDES permits to be as stringent as necessary to

meet water quality standards, see 33 U.S.C. § 1311(b)(1)(C); and

mandates that States continually monitor their waters covered by

the CWA to identify those for which current pollution controls

“are not stringent enough,” so as to force them to update those

limitations, Jackson, 798 F. Supp. 2d at 215 (quoting 33 U.S.C.

§ 1313(d)(1)(A)). Section 301 is thus a source of an enforceable

obligation applicable to the States, but nothing in it or any

other CWA section makes the Corps responsible for ensuring

States’ compliance. As the Corps states in the FEIS, it has no

duty “to ensure that other entities meet their federal clean

water compliance requirements in the future[,]” nor is it

“authorized to operate projects to ensure compliance by

others[.]” A.R., ECF No. 61 at D-00043784; see also Intervenor-

Defs.’ Suppl Mot., ECF No. 129 at 12 n.6 (“[T]he [CWA] prohibits

the Corps from planning to use reservoir releases to off-set the

impacts of pollution caused by others.”). Instead, it is

allowable for agencies to “recognize that other entities are in

the best position to take appropriate action.” See In re ACF

Basin, 554 F. Supp. 3d at 1307 (rejecting the plaintiffs’ ACF

claim that the Corps erred by “punting mitigation to [the State

125
of] Georgia”). Thus, contrary to the Alabama Plaintiffs’

contention, the Corps cannot “den[y]” obligations that do not

exist, nor does it have “its own obligations” under section

313(a) of the CWA or ER 1110-2-8154 that the Master Manual

violates. Pls.’ Mot., ECF No. 83 at 51. 26

Emerging from all the failed “requirements” the Alabama

Plaintiffs have pointed to are the Corps’ binding regulations

published in the Federal Register, one of which states:

The water control plans will be prepared
giving appropriate consideration to all
applicable Congressional Acts relating to
operation of Federal facilities, i.e., Fish
and Wildlife Coordination Act (Pub. L. 85-
624), Federal Water Project Recreation Act-
Uniform Policies (Pub. L. 89-72), National
Environmental Policy Act of 1969 (Pub. L. 91-
190), and Clean Water Act of 1977 (Pub. L. 95-
217).

33 C.F.R. § 222.5(f)(1) (emphasis added). According to

Defendants, this regulation “explains the Corps’ approach to

balancing CWA ‘obligations’ with the several other statutes that

26To the extent the Alabama Plaintiffs argue that reduced flows
from the Allatoona Project under the Master Manual also impact
APC’s obligations under its FERC license for its Coosa Project
and make it “more burdensome” for APC to comply with the
license’s dissolved-oxygen requirements at Weiss Dam and Lake,
see Pls.’ Mot., ECF No. 83 at 18; the Court declines to analyze
this claim, as the Alabama Plaintiffs do not actually address
whether FERC licenses serve as a source of “requirements” within
the meaning of section 313(a) of the CWA as against the Corps.
And, it may well be that the FERC is “in the best position to
take appropriate action” by adjusting the requirements in APC’s
Coosa license. In re ACF Basin, 554 F. Supp. 3d at 1307.
126
also establish obligations [it] must address in developing the

Manual.” Defs.’ Cross-Mot., ECF No. 95 at 52. The Court agrees

that this regulation embodies the Corps’ “significant discretion

to balance the often competing interests at its multi-purpose

reservoirs[,]” In re ACF Basin, 554 F. Supp. 3d at 1302; and

indicates that no one congressional act “takes priority over”

other applicable statutes, Defs.’ Cross-Mot., ECF No. 95 at 51.

Courts of Appeal in two circuits that have considered how

the CWA fits into the Corps’ overall water control scheme have

concluded that: (1) the CWA must be construed together with

other governing statutes; and (2) a relevant federal statute can

preempt the enforcement of state water quality standards when

the two conflict. First, the Ninth Circuit has determined that

“[t]he CWA’s directive to federal agencies requiring compliance

with state water standards must be construed in pari materia

with” the River and Harbor Act of 1945, authorizing construction

of reservoir projects in the ACT Basin in the first instance,

and noted that “‘when two statutes are capable of coexistence,

it is the duty of the courts . . . to regard each as

effective.’” Nat’l Wildlife Fed’n, 384 F.3d at 1178 (quoting

Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S. Ct.

1989, 48 L. Ed. 2d 540 (1976)).

Second, the Court of Appeals for the Eighth Circuit

(“Eighth Circuit”) has found that the Flood Control Act of 1944

127
“vests the Corps with the duty to balance” various water-use

interests, “including the interests of the reservoir states[,]”

and that allowing the States “to use their water-quality

standards to control how the Corps balances [these] interests

would frustrate the design of” that Act. In re Operation of Mo.

River Sys. Litig., 418 F.3d 915, 919-20 (8th Cir. 2005).

Accordingly, the Eight Circuit concluded that the Flood Control

Act of 1944 preempted the enforcement of North Dakota’s state

water quality standards against the Corps. Id. at 920; see also

CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S. Ct.

1732, 123 L. Ed. 2d 387 (1993) (“Where a state statute conflicts

with, or frustrates federal law, the former must give way.”). In

another decision, the Eighth Circuit wrote that “[c]ourts are

simply not empowered to review every decision of the Corps to

ensure that it maximizes the benefits of the [river basin] for

all interests[,]” as “such a standard would be impossible to

meet[.]” South Dakota v. Ubbelohde, 330 F.3d 1014, 1031 (8th

Cir. 2003). As such, “certain operations that might be optimal

from a water quality standpoint might not be consistent with

operations for [all] authorized purposes” at the Corps’ various

basin projects. A.R., ECF No. 61 at D-00058008.

The Court therefore agrees with Defendants that the Alabama

Plaintiffs have “overstated” the Corps’ duty to follow water

quality standards. Defs.’ Cross-Mot., ECF No. 95 at 10. And in

128
any event, since water quality standards are not “requirements”

under the CWA, 27 the Corps’ decision to give them “appropriate

consideration” in analyzing the action alternatives, see Defs.’

Cross-Mot., ECF No. 95 at 53 (citing A.R., ECF No. 61 at D-

00044030, D-00058007); before determining that the Manual’s

overall effect on water quality would be “negligible,” A.R., ECF

No. 61 at D-00043827; further supports the Court’s conclusion

that the Corps has met any obligations it has under the CWA and

ER 1110-2-8154 in updating the Master Manual.

c. The Duty Under the APA to Engage in Reasoned
Decision-Making and Not Arbitrarily Depart
from Precedent

Finally, the Alabama Plaintiffs argue that by adopting the

Master Manual despite acknowledging the potential for adverse

water quality impacts downstream, the Corps engaged in an

“unexplained departure” from precedent, specifically from its

own water quality guidance in ER 1110-2-8154, and thereby failed

to engage in reasoned decision-making in violation of an

27In its reply briefing, the Corps raises a new argument that
“even if the water quality standards were ‘requirements,’
Congress has not authorized their application to the Corps’
decisions regarding the Master Manual” because “[t]he scope of
section 1323(a) is limited by 33 U.S.C. § 1371(a), which
provides that the CWA ‘shall not be construed as . . . affecting
or impairing the authority of the Secretary of the Army to
maintain navigation.’” Defs.’ Reply, ECF No. 102 at 35. The
Court finds it unnecessary to address this claim, and also, it
does not consider arguments raised for the first time in a reply
brief. Carter v. Geo. Wash. Univ., 387 F.3d 872, 883 (D.C. Cir.
2004).
129
“independent” duty under the APA. See Ala.’s Opp’n to Suppl.

Mot., ECF No. 134 at 13, 28-30; Compl., ECF No. 1 at 25-26 ¶

114; Pls.’ Reply, ECF No. 99 at 26-27; see also Pls.’ Resp. to

Suppl. Authority Notice, ECF No. 120 at 2 (“The Corps’

obligation to engage in reasoned decisionmaking is an

‘independent’ APA obligation and applies whether or not the

Corps has also transgressed a binding legal ‘requirement’

imposed by the CWA or Corps regulations.”).

The Court declines to reach the merits of this “unexplained

departure” argument as it relates to ER 1110-2-8154 because the

Alabama Plaintiffs did not raise it in their opening summary

judgment brief. See Carter v. Geo. Wash. Univ., 387 F.3d 872,

883 (D.C. Cir. 2004) (rejecting arguments raised for the first

time in the movant’s reply brief as opposed to its opening

brief). As the Georgia Parties note, this argument was raised

for the first time in the Alabama Plaintiffs’ reply brief, see

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 21 n.12 (citing

this gap as the reason why this argument has “received so little

attention in this case”); Pls.’ Reply, ECF No. 99 at 26 (“[E]ven

if the [CWA] and the Corps’ own regulations did not require the

Corps to comply with water-quality standards, the agency still

would have an overarching obligation under the APA to engage in

reasoned decision-making[.]”); and in the Alabama Plaintiffs’

response to the Georgia Parties’ notice of supplemental

130
authority, see Pls.’ Resp. to Suppl. Authority Notice, ECF No.

120 at 3 (citing ER 1110-2-8154 to argue that the ERs “establish

the Corps’ precedent” to comply with state water quality

standards and that failure to do so without a reasoned

justification is an “unexplained departure” from this

precedent). This argument was not made in the section of the

Alabama Plaintiffs’ opening brief where they specifically argued

that the Manual “is an unexplained and arbitrary departure from

established operations.” See Pls.’ Mot., ECF No. 83 at 43-47

(providing other reasons why the Manual constitutes an

“arbitrary departure” from precedent). While the Georgia Parties

have responded to the Alabama Plaintiffs’ “unexplained

departure” from ER 1110-2-8154 claim as it relates to water

quality standards in their supplemental motion for summary

judgment briefings, see Intervenor-Defs.’ Suppl. Mot., ECF No.

129 at 20-23; Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139

at 20-21; the Court need not consider the merits of those

arguments since they were raised in the context of the issue

preclusion analysis. Accordingly, the Court will only proceed to

analyze the Alabama Plaintiffs’ remaining “unexplained and

arbitrary departure” claims under the APA section of this

Memorandum Opinion and the adequacy of the Corps’ explanations

regarding water quality impacts in choosing the action

alternative in this Memorandum Opinion’s NEPA section.

131
 Having determined that the Corps has not violated any

enforceable “requirements” within the meaning of section 313(a)

of the CWA and that ER 1110-2-8154 is a non-binding statement of

policy rather than a “limitation[] on the Corps’ discretion[,]”

Ubbelohde, 330 F.3d at 1030; there is no independent basis for

the Court to conclude that the Corps acted arbitrarily and

capriciously in adopting the Master Manual as it relates to the

Alabama Plaintiffs’ water quality claims, see Intervenor-Defs.’

Suppl. Mot. Reply, ECF No. 139 at 7 (arguing that “there is no

‘departure’ to be explained” since neither the CWA nor the

Corps’ internal guidance document require the Corps “to release

water to ensure water quality standards are maintained”); see

also Nat’l Wildlife Fed’n, 132 F. Supp. 2d at 889, 895

(concluding that final agency action is “arbitrary and

capricious” under the APA when it violates “the legal duty set

forth in the governing substantive statute”); Seeger v. U.S.

Dep’t of Def., 306 F. Supp. 3d 265, 276 (D.D.C. 2018)

(explaining that a court has subject-matter jurisdiction over an

APA claim if the claim alleges a violation of an underlying

statute or if the claim alleges agency action that is “arbitrary

and capricious”). For all these reasons, with regard to the

Alabama Plaintiffs’ water quality claims under the CWA and the

Corps’ internal ERs, the Court GRANTS summary judgment to

Defendants and Intervenor-Defendants on these issues.

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 B. Defendants Did Not Violate NEPA

The Alabama Plaintiffs and Intervenor-Plaintiffs next argue

that the Master Manual and FEIS violate NEPA and are therefore

unlawful. See Pls.’ Mot., ECF No. 83 at 52-60 (arguing that “the

Corps has deprived the public of its right to review the

environmental impacts of the Corps’ operations under NEPA,” as

“the FEIS does not adequately communicate, and in some respects

affirmatively conceals, important environmental impacts

associated with the Manual”); Intervenor-Pls.’ Mot., ECF No. 85

at 7 (arguing that the Master Manual’s “significant cascading

effects downstream [ ] have not been analyzed properly or

disclosed fully pursuant to [NEPA]”).

NEPA challenges are reviewed under the APA’s arbitrary and

capricious standard, which is applied to review both the

agency’s procedural compliance with NEPA and the adequacy of the

FEIS. City of Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir.

2002). The Court is mindful that its role is not to “flyspeck”

the Corps’ “environmental analysis, looking for any deficiency

no matter how minor.” Nevada v. Dep’t of Energy, 457 F.3d 78, 93

(D.C. Cir. 2006). Neither may the Court “substitute its own

policy judgments for those of the [Corps].” Tongass Conservation

Soc’y v. Cheney, 924 F.2d 1137, 1140 (D.C. Cir. 1991). Rather,

the Court must ensure that the Corps “has adequately considered

and disclosed the environmental impact of its actions and that

133
its decision is not arbitrary or capricious.” Balt. Gas, 462

U.S. at 97-98. This requires reviewing the FEIS to confirm that

the Corps took a “hard look” at the environmental consequences

before deciding to proceed with finalizing the Master Manual

update. See id. at 97. In evaluating those consequences, the

Corps was required to consider and discuss in the FEIS:

(i) the environmental impact of the proposed
action, (ii) any adverse environmental effects
which cannot be avoided should the proposal be
implemented, (iii) alternatives to the
proposed action, (iv) the relationship between
local short-term uses of man’s environment and
the maintenance and enhancement of long-term
productivity, and (v) any irreversible and
irretrievable commitments of resources which
would be involved in the proposed action
should it be implemented.

42 U.S.C. § 4332(2)(C). Despite these requirements, “NEPA is a

purely procedural statute, and [the Corps] therefore enjoys

latitude” in its preparation of the FEIS. Ctr. for Biological

Diversity v. FERC, 67 F.4th 1176, 1181 (D.C. Cir. 2023); see

also Robertson, 490 U.S. at 350 (“NEPA itself does not mandate

particular results, but simply prescribes the necessary

process.”). The Court will thus not set aside the Master Manual

under NEPA if the FEIS “‘contains sufficient discussion of the

relevant issues and opposing viewpoints’” to enable the Court to

conclude that “‘the agency’s decision [was] fully-informed and

well-considered[.]’” Gulf Restoration Network v. Haaland, 47

F.4th 795, 799-800 (D.C. Cir. 2022) (quoting Nevada, 457 F.3d at

134
93); see also Indian River Cnty. v. U.S. Dep’t of Transp., 945

F.3d 515, 533 (D.C. Cir. 2019) (requiring “deference to agency

judgments as to how best to prepare an EIS”).

The Alabama Plaintiffs contend that Defendants have

violated NEPA because: (1) the “proffered ‘No Action’ baseline

wrongly incorporates operations from the 1993 draft manual and

other ‘incremental changes in project operations’ that were

never legally implemented or subjected to NEPA review[;]”

(2) the FEIS did not accurately analyze and disclose the impacts

associated with operations under the Proposed Action

Alternative; and (3) the FEIS did not consider any proposed

alternatives requiring the Corps to generate hydropower. See

Pls.’ Mot., ECF No. 83 at 52-60. Intervenor-Plaintiffs also

argue that the Corps violated NEPA because the FEIS fails to

adequately analyze the Master Manual’s impacts downstream at

Montgomery, Mobile Bay, and Lake Martin—all of which negates the

Corps’ fulfillment of NEPA’s “hard look.” See Intervenor-Pls.’

Mot., ECF No. 85 at 7, 15-31. The Corps responds to each of the

Plaintiffs’ arguments and contends that “it took a ‘hard look’

at the environmental impacts of the [Master Manual] in a

lengthy, well-reasoned, and thorough FEIS.” Defs.’ Cross-Mot.,

ECF No. 95 at 27. For the reasons explained below, the Court

rejects the Alabama Plaintiffs’ and Intervenor-Plaintiffs’

various arguments under NEPA.

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 1. The Corps Reasonably Defined the No-Action
Alternative in the FEIS Using the 1993 Draft
Allatoona Manual

An EIS must describe in detail “alternatives to the

proposed action,” 42 U.S.C. § 4332(2)(C)(iii); one of which is

the “No-Action Alternative,” which “establishes a baseline for

comparing the environmental consequences of the action

alternative[,]” Mainella, 459 F. Supp. 2d at 83-84; see also 40

C.F.R. § 1502.14 (requiring an EIS to evaluate “reasonable

alternatives” to the proposed action, including the “no action

alternative”). The Corps was thus required to evaluate the

impacts of the proposed Master Manual “on various environmental

conditions ‘as compared to’ a set of conditions it deemed to be

the ‘No-Action Alternative.’” Pls.’ Mot., ECF No. 83 at 52.

The Alabama Plaintiffs first argue that the 1993 Draft

Manual “and other ‘incremental changes in project operations’”

cannot be used to define the No-Action Alternative because they

“were never legally implemented or subjected to NEPA review”

since the Corps began implementing the Draft Manual in the early

1990s but never conducted “the required NEPA analysis either

then or in the years since[,]” despite seeking to “grandfather”

that draft “into an extrapolated NEPA baseline now.” Pls.’ Mot.,

ECF No. 83 at 53. The Alabama Plaintiffs contend that the

correct baseline comparison would instead incorporate the Corps’

“‘last major evaluations of the environmental consequences of

136
the individual [Corps] reservoirs in the ACT Basin,’ which the

Corps acknowledged occurred ‘in the 1970s.’” Pls.’ Mot., ECF No.

83 at 30 (citing A.R., ECF No. 61 at D-00044248). As Intervenor-

Defendants note, the Alabama Plaintiffs appear to argue that

“instead of comparing alternatives to the status quo operations

prior to adoption of the ACT Manual, the no action alternative

must instead be the 1968 [Allatoona] Manual, because that is the

last manual to undergo NEPA review.” 28 Intervenor-Defs.’ Cross-

Mot., ECF No. 97 at 25. The Court disagrees with the Alabama

Plaintiffs, instead concluding, as explained below, that the

1993 Draft Manual, under which the Corps was operating the

Allatoona Project at the time it prepared the FEIS, was the

correct no-action baseline.

a. Issue Preclusion Does Not Apply to Bar the
Alabama Plaintiffs’ NEPA No-Action
Alternative Claim

As an initial matter, in their supplemental motion for

summary judgment, the Georgia Parties argue that the Northern

District of Georgia’s 2021 decision should preclude the Alabama

28As discussed in the Factual Background, prior to the updates
that spurred this litigation, the last finalized ACT Master
Manual was adopted in 1951, along with a WCM for the Allatoona
Project in 1951, 1962, and 1968. See supra section II.B. at 27.
Although the 1968 Allatoona Manual was adopted prior to NEPA’s
passage in 1969, the Corps issued a FEIS for its then-existing
Allatoona operations under that manual in 1974. Id. at 29-31. As
the Alabama Plaintiffs note, the 1993 Allatoona Draft Manual was
not similarly subjected to NEPA review. Id. at 31.
137
Plaintiffs’ argument that the Corps violated NEPA by using

current operations under the 1993 Draft Manual to represent the

No-Action Alternative, “rather than its last ‘NEPA reviewed’

manual[.]” See Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 7,

11. In the ACF case, the Northern District of Georgia rejected

Alabama’s similar assertion that NEPA requires the Corps to use

the last NEPA-approved manual as the No-Action Alternative, as

opposed to then-current operations under a draft manual never

subjected to NEPA review. In re ACF Basin, 554 F. Supp. 3d at

1305. At the time the ACF Master Manual was updated in 2017, the

Corps chose its existing operations under a 1989 draft ACF

Master Manual and a 1991 draft Buford Project Manual to serve as

the no-action baseline “instead of the environment as it existed

when the 1958 and 1959 [NEPA-reviewed] manuals were adopted.”

Id. at 1302. The Northern District of Georgia concluded that the

Corps “correctly defined the ‘no action’ alternative as the

current operations of the ACF Basin, rather than a hypothetical

set of conditions that may have existed 63 years ago, and that

do not reflect the current status quo or management practices.”

Id. at 1305. Pointing to this conclusion, the Georgia Parties

argue that because “the factual context giving rise to the

[Alabama Plaintiffs’ NEPA] claim is the same in both basins” and

“the law and facts are the same,” Intervenor-Defs.’ Suppl. Mot.

Reply, ECF No. 139 at 15-16; the Court should conclude that

138
“[a]ll three criteria for issue preclusion are met[,]” see

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 26-29. Alabama

responds that issue preclusion cannot apply because its claims

“in the ACF case and the ACT case require the application of

NEPA to different sets of facts[,]” thereby negating the

elements of preclusion. Ala.’s Opp’n to Suppl. Mot., ECF No. 134

at 30. The Court agrees with the State of Alabama.

Although this supplemental claim presents a “mixed

question[] of law and fact” rather than an “unmixed question of

law,” see Pharm. Care, 522 F.3d at 446; Ala.’s Opp’n to Suppl.

Mot., ECF No. 134 at 30; as the Court found to be the case for

the Alabama Plaintiffs’ water quality claims, see supra section

IV.A.1.b.i.; “changes in facts essential to a judgment will

render collateral estoppel inapplicable in a subsequent action

raising the same issues[,]” Montana, 440 U.S. at 159; see also

Env’t Def. v. EPA, 369 F.3d 193, 202 (2d Cir. 2004) (“Collateral

estoppel does not apply [ ] when the essential facts of the

earlier case differ from the instant one, even if they involve

the same legal issues.”). Here, the Court agrees with Alabama

that there are “significant factual distinctions” between the

ACT and ACF cases as they relate to the parallel NEPA No-Action

Alternative claims. Env’t Def., 369 F.3d at 202. First, in the

ACF case, Alabama argued that operations under the 1989 and 1991

draft manuals should not serve as the no-action baseline because

139
they abandoned, without disclosure to the public, a guide curve

in the NEPA-reviewed 1958 and 1959 manuals which required the

Corps to draw down Buford’s elevation by six feet in the fall

months and release water through the dam. Ala.’s Opp’n to Suppl.

Mot., ECF No. 134 at 30-31 (citing Pl. State of Ala.’s Corrected

Consolidated Mot. for Summ. J., In re ACF Basin Water Litig.,

No. 1:18-MI-43 (N.D. Ga. Apr. 6, 2021), ECF No. 220 at 38, 64-

65). Here in the ACT case, Alabama makes a similar but factually

distinct argument regarding the 1993 Draft Manual’s addition of

action zones, “the very concept of” which they allege was not

present in the 1968 NEPA-reviewed manual and the main reason

they argue that the 1993 Draft Manual should not serve as the

no-action baseline. See Pls.’ Mot., ECF No. 83 at 53-54.

Another factual difference is that in the ACF case, Alabama

argued that the No-Action Alternative could not be defined as

“current operations” because at the time of the ACF Manual

update, the Corps had been allowing Georgia to make unauthorized

direct withdrawals from Buford (i.e., without water supply

contracts). Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 31

(citing Pl. State of Ala.’s Corrected Consolidated Mot. for

Summ. J., In re ACF Basin Water Litig., No. 1:18-MI-43 (N.D. Ga.

Apr. 6, 2021), ECF No. 220 at 65-66). In the ACF case, the Corps

had decided that both “current reservoir operations” and the

“current level of direct withdrawals,” regardless of their

140
legality, should formulate the no-action baseline for

comparison. Pl. State of Ala.’s Corrected Consolidated Mot. for

Summ. J., In re ACF Basin Water Litig., No. 1:18-MI-43 (N.D. Ga.

Apr. 6, 2021), ECF No. 220 at 65. In affirming the ACF No-Action

Alternative as neither arbitrary nor capricious, the Northern

District of Georgia specifically noted that the Corps had

“considered current reservoir operations and the current level

of direct withdrawals.” In re ACF Basin, 554 F. Supp. 3d at

1302-03, 1305. In contrast, here, the Alabama Plaintiffs make a

similar but factually distinct argument that the FEIS fails to

disclose the impact of the CC-MWA’s water supply withdrawals in

excess of its contractual limits, and that the Proposed Action

Alternative, rather than the No-Action Alternative, was

improperly modeled on an assumption that the CC-MWA would abide

by its contractual limits in the future. See Pls.’ Mot., ECF No.

83 at 58-59. Finally, as Alabama notes, its argument in this

case in favor of applying principles of judicial estoppel based

on the Corps’ prior success convincing the Northern District of

Alabama that the 1993 Draft Manual was not final agency action

(detailed below) was not an issue in the ACF case since “the

Corps had not obtained similarly inconsistent court rulings

concerning NEPA claims against the prior draft ACF manuals.”

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 32. The Northern

District of Georgia could thus not have considered this claim.

141
 The Court therefore rejects the Georgia Parties’ argument

that “[t]he decision to use current operations as the NEPA No

Action Alternative was made by the same Corps personnel, for the

same reasons, based on the same facts, in both basins.”

Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139 at 15. Because

“the facts essential to a judgment are distinct in the two

cases, the [NEPA] issues in the [ACT] case cannot properly be

said to be identical to those in the [ACF case], and collateral

estoppel is inapplicable.” Env’t Def., 369 F.3d at 202 (citing

Montana, 440 U.S. at 159). And regardless, just as the Court

concluded regarding the Alabama Plaintiffs’ water quality

claims—practical and equitable policy considerations, including

the presence of additional non-mutual parties who were not

adequately represented by Alabama in the ACF litigation—weigh

against precluding the Alabama Plaintiffs’ NEPA No-Action

Alternative claim in this case. See supra section IV.A.1.b.ii.

Accordingly, for the reasons explained here and in the

CWA/water quality claims section of this Memorandum Opinion, the

Court declines to preclude any of the Alabama Plaintiffs’ or

Intervenor-Plaintiffs’ claims based on the results of the ACF

litigation in the Northern District of Georgia. The Court

therefore DENIES Intervenor-Defendants’ Supplemental Motion for

Summary Judgment Based on the Preclusive Effect of an

142
Intervening Judgment, ECF No. 129; and turns to the merits of

the Alabama Plaintiffs’ NEPA No-Action Alternative claim.

b. The Alabama Plaintiffs’ NEPA No-Action
Alternative Claim Fails on the Merits

NEPA requires an agency to present “the environmental

impacts of the proposal and the alternatives in comparative

form, thus sharply defining the issues and providing a clear

basis for choice among options by the decisionmaker and the

public.” City of Grapevine v. Dep’t of Transp., 17 F.3d 1502,

1506 (D.C. Cir. 1994) (citing 40 C.F.R. § 1502.14). As part of

this analysis, agencies are required to “[i]nclude the no action

alternative.” 40 C.F.R. § 1502.14(c). The purpose of the no-

action alternative is to “compare the potential impacts of the

proposed major federal action to the known impacts of

maintaining the status quo.” Custer Cnty. Action Ass’n v.

Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001); see also Nat. Res.

Def. Council, Inc. v. Hodel, 624 F. Supp. 1045, 1054 (D. Nev.

1985), aff’d, 819 F.2d 927 (9th Cir. 1987) (defining “no action”

as the “continuation of the status quo ante, in the absence of

any of the proposed actions”). Although the phrase “No-Action

Alternative” is not defined by statute or regulation, the

Council on Environmental Quality (“CEQ”)—the federal agency

created to oversee NEPA—has explained that for “an action such

as updating a land management plan where ongoing [federal]

143
programs initiated under existing legislation and regulations

will continue, . . . ‘no action’ is ‘no change’ from current

management direction or level of management intensity.” Forty

Most Asked Questions Concerning CEQ’s National Environmental

Policy Act Regulations, 46 Fed. Reg. 18,026, 18,027 (Mar. 23,

1981). The No-Action Alternative may thus “be thought of in

terms of continuing with the present course of action until that

action is changed[,]” id.; “because the existing federal program

will continue even if the new plan is not adopted[,]”

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 26; see also Custer

Cnty., 256 F.3d at 1040 (“In other words, the current level of

activity is used as [the no-action] benchmark.”).

Here, the Corps reasonably developed the No-Action

Alternative baseline for comparison using the status quo—that

is, the “continuation of the current water control operations at

each of the federal projects in the ACT Basin[,]” A.R., ECF No.

61 at D-00043793; including operations consistent with the 1951

ACT Master Manual, as well as project-specific manuals like

Allatoona’s 1993 Draft Manual, Defs.’ Cross-Mot., ECF No. 95 at

48-49 (citing A.R., ECF No. 61 at D-00043793-95); see also A.R.,

ECF No. 61 at D-00046584 (“[F]or purposes of the ACT WCM update

process, ‘no action’ reflects current reservoir operations as

they have evolved over time in response to laws, regulations,

policy, and new technical information.”). As the FEIS states,

144
the No-Action Alternative “represents no change from the current

management direction or level of management intensity[,]” A.R.,

ECF No. 61 at D-00043793; because “[b]asing the description of

‘no action’ on a pre-NEPA WCM as a basis for comparison to

alternative WCM update plans would not accurately reflect

current baseline operations or be consistent with ‘no action’ as

defined in the CEQ memorandum[,]” id. at D-00046584.

As the Georgia Parties note, the Allatoona Project WCM has

not been formally updated since 1968, and subsequent attempts to

update it were embroiled in years of litigation and interstate

negotiations, which forced the Corps “to make practical

management decisions at Allatoona Lake” in the interim.

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 30. In addition,

since the 1970s, “incremental changes in project operations have

occurred because of changes in hydropower contracts and

operating schedules, changes in navigation flow requirements,

and other changes related to water quality, environment, or

other uses of the [ACT] system.” A.R., ECF No. 61 at D-00043794.

These changes have rendered the 1968 Manual “obsolete” and

inadequate for comparison to today’s operations for many of the

reasons cited by the Georgia Parties, including that it was

written before: (1) many of the major projects in the ACT Basin

were constructed, including the reservoir at Carter’s Lake which

operates in conjunction with Allatoona Lake; (2) there was any

145
requirement to have a drought management plan, as implemented in

the 1993 Draft Manual; and (3) any of the major environmental

laws had been enacted, including NEPA. Intervenor-Defs.’ Cross-

Mot., ECF No. 97 at 26-27. As a result of the many changes

between 1968 (or even 1974 when the 1968 Manual underwent NEPA

review) and 2015, “the 1968 Manual cannot provide a meaningful

baseline for comparing the effects of the alternatives under

consideration.” Id. at 27. Thus, the Court agrees that “using

the 1993 [Draft] Manual—the Corps’ historical operations over

the past 25 years—as the status quo and the point of comparison

was a reasonable choice[,]” id. at 30; Defs.’ Cross-Mot., ECF

No. 95 at 50; especially since “judgments regarding the

development of the baseline against which alternatives would be

assessed are the sorts of expert analytical judgments to which

courts typically defer[,]” Vill. of Bensenville v. FAA, 457 F.3d

52, 72 (D.C. Cir. 2006); see also Am. Rivers v. FERC, 201 F.3d

1186, 1195-99 (9th Cir. 1999) (deferring to the agency’s choice

“to use an existing project environmental baseline” as the No-

Action Alternative rather than “a theoretical reconstruction of

what” the basin “would be like today had [certain] projects not

been in place for the greater part of this century”).

Nonetheless, the Alabama Plaintiffs argue that the 1993

Draft Manual cannot serve as the no-action baseline because it

was not NEPA-reviewed, and its implementation was therefore “not

146
lawful.” Pls.’ Mot., ECF No. 83 at 53. Even if the Court agreed

that the 1993 Draft Manual was not lawfully implemented “under

‘existing legislation and regulations[,]’” id. at 56; the result

would be the same because “NEPA does not impose an independent

requirement of setting a ‘legal’ environmental baseline[,]” Ctr.

for Biological Diversity v. U.S. Bureau of Land Mgmt., 746 F.

Supp. 2d 1055, 1090 (N.D. Cal. 2009). Rather than “an

independent legal requirement,” a baseline is “a practical

requirement in environmental analysis often employed to identify

the environmental consequences of a proposed agency action.” Am.

Rivers, 201 F.3d at 1195 n.15. As such, numerous courts have

interpreted the No-Action Alternative as the status quo of

“current management” or existing operations—whether NEPA

reviewed or not—because this “fulfill[s] NEPA’s goal of

providing the public with information to assess the impact of a

proposed action[.]” See U.S. Bureau of Land Mgmt., 746 F. Supp.

2d at 1090-91 (rejecting a no-action baseline “as it existed in

1980” because “the 1980 network has not been the status quo

since 1980, decades before the proposed action” and finding that

the status quo “accurately reflect[ed] the baseline as it

currently existed,” which is “all that is required under the

law”); see also, e.g., Custer Cnty., 256 F.3d at 1039-40

(rejecting the argument that “a ‘true’ no-action alternative”

only reflects “the impacts of lawful activity” that was

147
“properly subject[ed] to environmental review” and concluding

that the CEQ “intended that agencies compare the potential

impacts of the proposed major federal action to the known

impacts of maintaining the status quo”); San Juan Citizens’ All.

v. Salazar, No. 00-cv-00379, 2009 WL 824410, at *17-18 (D. Colo.

Mar. 30, 2009) (upholding status quo activities as the no-action

baseline regardless of whether they were “subject to a

sufficient NEPA review”). 29 Thus, the Corps’ use of the status

quo and its evolved practices under the 1993 Draft Manual as the

No-Action Alternative comports with NEPA, regardless of the

“lawfulness” of those operations. Such was the Northern District

of Georgia’s conclusion in the ACF case, where it held that the

Corps properly evaluated the proposed ACF Master Manual against

a No-Action Alternative defined “as the environment as it

existed at the time that the Corps updated the [draft] manual in

1989[,]” as opposed to “an environment that ha[d] not existed

29Many other courts have concluded that the status quo is the
only proper interpretation of the No-Action Alternative,
regardless of the legality of current operations. See, e.g.,
Biodiversity Conservation All. v. U.S. Forest Serv., 765 F.3d
1264, 1269-70 (10th Cir. 2014) (finding that the agency properly
included unlawful use of federal lands as part of its no-action
baseline); Tenn. Env’t Council v. Tenn. Valley Auth., 32 F.
Supp. 3d 876, 887 (E.D. Tenn. 2014) (requiring the defendant “to
employ a ‘no action’ alternative of the status quo, as opposed
to the future consequences of [a] consent decree”); Colo. Off-
Highway Vehicle Coal. v. United States, 505 F. Supp. 2d 808, 817
(D. Colo. 2007) (“The validity of earlier decisions affecting
the status quo is not an issue in the no-action analysis.”).
148
for decades” under the outdated NEPA-approved manuals which

Alabama had instead advocated for as the appropriate baseline.

See In re ACF Basin, 554 F. Supp. 3d at 1302-03. That court

ultimately upheld the Corps’ No-Action Alternative, which as

here, “considered current reservoir operations.” Id. at 1303.

The cases cited by the Alabama Plaintiffs in support of

their position are distinguishable and do not alter the Court’s

decision. For example, in Friends of Yosemite Valley v.

Kempthorne, 520 F.3d 1024 (9th Cir. 2008), the Ninth Circuit

held that the agency “did not set forth a true ‘no-action’

alternative” where the baseline incorporated a plan that the

Ninth Circuit had explicitly held invalid in prior litigation.

Id. at 1037-38. “These extreme circumstances,” i.e., the need to

enforce a court’s prior decision, “are not present here, as no

court has ever held that the 1993 Manual is substantively

unlawful, much less enjoined its use.” Intervenor-Defs.’ Cross-

Mot., ECF No. 97 at 28-29. Next, in North Carolina Wildlife

Federation v. North Carolina Department of Transportation, 677

F.3d 596 (4th Cir. 2012), the court did not address whether the

No-Action Alternative was properly defined, but rather concluded

that the agencies violated NEPA by mischaracterizing the data

underlying the baseline, and “the NEPA process itself relied on

those mischaracterizations.” See id. at 603-05. Likewise,

National Wildlife Federation v. Andrus, 440 F. Supp. 1245

149
(D.D.C. 1997) does not address how an agency should define the

No-Action Alternative, instead addressing “a different context,”

as the Alabama Plaintiffs admit, Pls.’ Mot., ECF No. 83 at 54;

namely an agency’s failure to properly consider alternatives,

see Andrus, 440 F. Supp. at 1253-54. Finally, the Alabama

Plaintiffs’ reference to the EPA’s guidance, see Pls.’ Mot., ECF

No. 83 at 56 (citing ENV’T PROT. AGENCY OFF. OF FED. ACTIVITIES,

CONSIDERATION OF CUMULATIVE IMPACTS IN EPA REVIEW OF NEPA DOCUMENTS ¶ 4.4

(1999), https://www.epa.gov/sites/default/files/2014-

08/documents/cumulative.pdf [hereinafter “EPA Cumulative Impacts

Guidance”]); is inapposite here, as this guidance is not about

the No-Action Alternative but an EIS’s cumulative impacts

analysis, which the EPA states can be incorporated into the no-

action alternative’s baseline, see EPA Cumulative Impacts

Guidance ¶ 4.4. And in any event, this guidance defines the No-

Action Alternative “as reflecting existing conditions” under the

status quo, in line with the Court’s conclusion. Id.

The Alabama Plaintiffs argue that ruling in favor of

Defendants on this issue “would create incentives for federal

agencies to evade their NEPA obligations.” Pls.’ Mot., ECF No.

83 at 54. They contend that “‘if agencies are allowed to

undertake major federal actions without complying with NEPA and

then to compound their error by basing later decisions on their

previous illegal actions, then NEPA’s protections will be

150
rendered worthless.’” Id. at 54 (quoting Andrus, 440 F. Supp. at

1255). The Court disagrees. Instead, the Court is persuaded that

using the last NEPA reviewed manual as the baseline—here, the

1968 Allatoona Manual—“would mask effects of the management

choices under consideration, as the relative differences between

the alternatives would be dwarfed by changes necessitated” by

the significant evolution of the ACT Basin since the 1970s. See

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 27; Intervenor-

Defs.’ Reply, ECF No. 103 at 5 (calling the 1968 Manual “long-

abandoned” as compared to the Corps’ “then-current Draft 1993

Manual”). In addition, the FEIS “is replete with discussion of

pre-1993 (historical) operations[,]” such that the Court can

conclude that the public has been adequately informed of how the

Corps’ ACT Basin operations “have changed over the past half-

century.” See Intervenor-Defs.’ Reply, ECF No. 103 at 19

(summarizing the portions of the administrative record that

discuss historical changes and impacts). NEPA “serves the twin

purposes of ensuring that” agencies: (1) carefully consider

environmental impacts before taking major actions; and (2) fully

inform the public of these impacts, Sierra Club v. U.S. Army

Corps of Eng’rs, 803 F.3d 31, 36-37 (D.C. Cir. 2015); and a no-

action baseline that embodies historical operations of the ACT

Basin over the past several decades achieves NEPA’s goal of

151
informed decision-making, 30 see Nw. Env’t Def. Ctr. v. U.S. Army

Corps of Eng’rs, 817 F. Supp. 2d 1290, 1313 (D. Or. 2011) (“The

Corps was not required to develop a no-action alternative, in

which it completely reverses or abandons a[] historical

pattern[.]”); Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S.

Dep’t of the Interior, 929 F. Supp. 2d 1039, 1053 (E.D. Cal.

2013) (confirming “it is appropriate for a no action alternative

to reflect ‘historical uses’ of a resource”); Hodel, 624 F.

Supp. at 1054 (considering “a historical pattern of use over 100

years old” as the no-action baseline). Ultimately, “resetting to

pre-1993 operations is not a proper baseline[,]” Defs.’ Reply,

ECF No. 102 at 20; as it would be resetting to “a hypothetical

status quo that would have existed had the Corps not made

changes pursuant to the 1993 Allatoona manual[,]” Defs.’ Cross-

30In their reply, the Alabama Plaintiffs argue that the FEIS
“deprived the public” of information because it “did not
disclose the impacts of certain operations in the new Manual,
such as its inclusion of action zones, that the agency started
using when it chose to implement the 1993 draft manual.” Pls.’
Reply, ECF No. 99 at 28. They claim that this “conceal[ed] a
significant component of impact.” Id. at 29. The Court
disagrees, as the FEIS explains in detail historical changes to
the guide curves and action zones at the Allatoona Project. And,
in any event, this reply argument that the public was “deprived”
of information on action zones differs from how the Alabama
Plaintiffs’ styled their concerns in their opening brief, where
they only contended that the absence of action zones “in the
1968 NEPA-reviewed manual” would mean that “allowing the 1993
draft manual to serve as the baseline would wrongly ‘assume[]
the existence of [the] proposed project,’ rendering the baseline
meaningless.” Pls.’ Mot., ECF No. 83 at 54.
152
Mot., ECF No. 95 at 49; see also In re ACF Basin, 554 F. Supp.

3d at 1303 (“[A]n agency cannot know if its proposal will

significantly affect the quality of the human environment if it

considers hypotheticals as opposed to realities.”).

Finally, the Alabama Plaintiffs argue that principles of

judicial estoppel should apply in light of the Corps’ successful

position during prior litigation before the Northern District of

Alabama that “no ‘legal consequences . . . flow[ed]’ from” the

1993 Draft Manual “because the draft was not ‘final agency

action.’” Pls.’ Mot., ECF No. 83 at 54-55 (quoting Bennett v.

Spear, 520 U.S. 154, 177-78, 117 S. Ct. 1154, 137 L. Ed. 2d 281

(1997)); see Order, Alabama v. U.S. Army Corps of Eng’rs, No.

90-1331 (N.D. Ala. July 3, 2012), ECF No. 771 at 2-3. The

Alabama Plaintiffs argue that, having previously taken that

position, the Corps “cannot now prevent NEPA review of the draft

manual’s change in operations by claiming that [its] provisional

implementation had the ‘legal consequence’ of making those

operations a part of the established ‘No Action’ baseline.”

Pls.’ Mot., ECF No. 83 at 55. However, the Alabama Plaintiffs

have not provided any caselaw suggesting that judicial estoppel

would be appropriate in this case. Both Kern v. U.S. Bureau of

Land Management, 284 F.3d 1062 (9th Cir. 2002), and Northcoast

Environmental Center v. Glickman, 136 F.3d 660 (9th Cir. 1998),

concern whether an agency can “tier”—or “avoid[] detailed

153
discussion by referring to another document containing the

required discussion”—to documents that were never subject to

NEPA review, which is not an issue here because the Corps did

not attempt to tier its analysis. See Kern, 284 F.3d at 1073-74;

Glickman, 136 F.3d at 670; Intervenor-Defs.’ Reply, ECF No. 103

at 17 (“[T]he Final EIS does not ‘tier’ to any other document;

its analysis stands on its own.”). And, regardless of the Corps’

positions from prior litigation, all NEPA requires is a

comparison of “the impacts of the original proposal and

preferred alternative to the impacts of” the “current level of

activity.” Custer Cnty., 256 F.3d at 1040. The requirement to

consider a No-Action Alternative thus does not provide “a

vehicle in which to pursue allegations that past [agency]

actions received insufficient environmental analysis.” See id.

(“The time has passed to challenge [such] actions.”); Metro.

Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779,

103 S. Ct. 1556, 75 L. Ed. 2d 534 (1983) (concluding that NEPA

“does not create a remedial scheme for past federal actions”).

The Corps are therefore correct that the Alabama Plaintiffs

cannot “revive” their claims against the 1993 Draft Manual in

the present action. Defs.’ Cross-Mot., ECF No. 95 at 50.

In view of the analysis above, the Court concludes that

using the 1993 Draft Manual as the baseline for the No-Action

Alternative was a reasonable choice and an accurate

154
representation of current operations of the ACT Basin to which

the Corps could and did compare the impacts of the updated

Master Manual in the FEIS, and it thus satisfies NEPA standards.

See Friends of Congaree Swamp v. Fed. Highway Admin., 786 F.

Supp. 2d 1054, 1067 (D.S.C. 2011) (“The Court is unaware of any

authority for finding an [EIS] inadequate because an agency

chose, as the baseline from which to measure the potential

impacts of a proposed project, the environment in its current

condition.”).

2. The Corps Took a “Hard Look” at Environmental
Impacts of the Master Manual and Adequately
Analyzed and Disclosed Those Impacts in the FEIS

The Alabama Plaintiffs and Intervenor-Plaintiffs next argue

that the Corps failed to take NEPA’s required “hard look” at the

environmental consequences of the Proposed Action Alternative,

and that as a result, the FEIS does not adequately analyze and

disclose to the public the Master Manual’s various “cascading”

impacts. See Pls.’ Mot., ECF No. 83 at 52-53, 56-59; Intervenor-

Pls.’ Mot., ECF No. 85 at 7, 15-31. The Alabama Plaintiffs offer

“two critical respects” in which they claim that the FEIS fails,

namely its failure to disclose the impact of: (1) “the Corps’

[newfound] discretion not to generate hydropower” at Allatoona

Lake; and (2) the CC-MWA’s water supply withdrawals from

Allatoona Lake that have historically been above its contractual

limits. See Pls.’ Mot., ECF No. 83 at 53, 57-59; Pls.’ Reply,

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ECF No. 99 at 32-34. Intervenor-Plaintiffs add three additional

arguments that the FEIS fails to adequately analyze the Master

Manual’s impacts on: (1) water quality at Montgomery, Alabama;

(2) salt water intrusion from Mobile Bay; and (3) recreation and

economic development at Lake Martin. Intervenor-Pls.’ Mot., ECF

No. 85 at 15-31. The Court first addresses the parameters of

NEPA’s requisite “hard look,” including as applied to the Corps’

choice of modeling software in the FEIS, before addressing each

of these five arguments in turn.

a. Parameters of NEPA’s “Hard Look” Doctrine

Courts review the EIS “to ensure that the agency took a

‘hard look’ at the environmental consequences of its decision to

go forward with the project.” City of Grapevine, 17 F.3d at

1503-04; see 42 U.S.C. § 4332(2)(C)(i); 40 C.F.R. § 1502.16

(defining “environmental consequences”). “Although the contours

of the ‘hard look’ doctrine may be imprecise,” a court’s task is

“‘simply to ensure that the agency has adequately considered and

disclosed the environmental impact of its actions and that its

decision is not arbitrary or capricious.’” Nevada, 457 F.3d at

93 (quoting Balt. Gas, 462 U.S. at 97-98). This “hard look”

“includes considering all foreseeable direct and indirect

impacts[,]” Loper, 544 F. Supp. 3d at 117 (citation and internal

quotation marks omitted); as well as cumulative environmental

impacts, meaning the impacts the proposed action “will have in

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conjunction with other projects in the same and surrounding

areas[,]” and the past, present, and reasonably foreseeable

future actions of other individuals and entities, Theodore

Roosevelt, 616 F.3d at 503. Further, a “hard look” must consider

all relevant aspects of the problem, see State Farm, 463 U.S. at

43; and discuss adverse impacts in a way that “does not

improperly minimize negative side effects[,]” Loper, 544 F.

Supp. 3d at 117 (citation and internal quotation marks omitted).

While NEPA sets forth procedural safeguards, it does not

“require particular substantive results.” Young v. Gen. Servs.

Admin., 99 F. Supp. 2d 59, 67 (D.D.C. 2000), aff’d, 11 F. App’x

3 (D.C. Cir. 2000). Instead, an agency’s “hard look” is guided

by the “rule of reason,” which dictates that an agency’s EIS

analysis is deferred to despite “inconsequential or technical

deficiencies[,]” id. at 75; unless those deficiencies “are

significant enough to undermine informed public comment and

informed decisionmaking[,]” Sierra Club v. FERC, 867 F.3d 1357,

1368 (D.C. Cir. 2017). A reasoned “hard look” thus requires

articulating a satisfactory explanation for the action,

including a “rational connection between the facts found and the

choice made.” State Farm, 463 U.S. at 43. This means the agency

must go “beyond mere assertions” and “explicate[] its course of

inquiry, its analysis[,] and its reasoning.” Young, 99 F. Supp.

2d at 75 (citation and internal quotation marks omitted).

157
“[S]imple, conclusory statements of ‘no impact’ are not enough

to fulfill an agency’s duty under NEPA.” Del. Riverkeeper

Network, 753 F.3d at 1313 (citation omitted); see also Mainella,

459 F. Supp. 2d at 100 (noting that “[m]erely describing an

impact and stating a conclusion of nonimpairment is

insufficient”). However, agencies are not required to consider

environmental effects which lack “a reasonably close causal

relationship” to the proposed action. Pub. Citizen, 541 U.S. at

767; see also Metro. Edison Co., 460 U.S. at 773-74 (explaining

that NEPA requires analyzing effects “proximately related” to

the major action but not ones that are too “remote” or

“attenuated” in the causal chain). Finally, “an extreme degree

of deference” to the agency is warranted where, as here, the

agency is evaluating scientific data “within [its] technical

expertise[.]” Alaska Airlines, 588 F.3d at 1120; see also Ocean

Conservancy v. Gutierrez, 394 F. Supp. 2d 147, 157 (D.D.C. 2005)

(advocating deference on “technical issues that implicate

substantial agency expertise”).

Because courts must be “at [their] most deferential” in

reviewing scientific determinations “as opposed to simple

findings of fact,” Balt. Gas, 462 U.S. at 103; the Court rejects

Intervenor-Plaintiffs’ argument that the Corps should have used

“a more precise modeling framework” to model operations under

the Master Manual, see Intervenor-Pls.’ Mot., ECF No. 85 at 16-

158
17. As its model for conducting water quality, flow, and lake

level modeling, the Corps used the Hydrologic Engineering Center

– Reservoir Simulation Model (“HEC-ResSim”), Defs.’ Cross-Mot.,

ECF No. 95 at 29; “a state-of-the-art tool for simulating flow

operations in managed systems” that was developed by the Corps’

to “perform water resources studies in predicting the behavior

of reservoirs and to help reservoir operators plan releases in

real-time during day-to-day and emergency operations[,]” A.R.,

ECF No. 61 at D-00044062. This software has become “the

standard” for Corps reservoir operations modeling, id. at D-

00044196; and its use is described in the FEIS itself and in a

separate modeling report comprising two appendices, see id. at

D-00047850, D-00047852-48275 (Appendix C, “HEC-ResSim Modeling

Report”), D-00048276-469 (Appendix D, “HEC-ResSim and HEC-5Q

Simulation of Water Quality in the [ACT] River Basin”). In these

reports, the Corps explains that it selected HEC-ResSim

following completion of a three-year model development and

verification process, which included presentation of the model

to stakeholders for input. Id. at D-00044196-97, D-00047860. The

resulting software incorporates characteristics of the ACT Basin

and individual reservoirs, “including physical constraints

(spillway capacities, area-discharge curves, flows associated

with hydropower, and such) and operational procedures (action

zones, balancing, and the like)[,]” leading the model to become

159
“generally accepted as a promising improvement to ACT reservoir

system modeling.” Id. at D-00044196. Using HEC-ResSim, the Corps

was able to model the effects of changing “individual and

multiple operational measures,” like “revising hydropower

generation per action zone or reshaping action zones,” both at

individual reservoirs and across the ACT Basin, which resulted

in data outputs (hydropower generation, reservoir levels, river

flows and stages, etc.), across the entire hydrologic period of

record (1939 to 2011) that were evaluated according to specific

criteria and authorized project purposes. See id. at D-00044197

(depicting the “iterative process refining current operations”).

Based on this detailed information from the record and

because of the extreme deference accorded to an agency’s

“complex judgments about sampling methodology and data analysis

that are within [its] technical expertise,” Alaska Airlines, 588

F.3d at 1120; the Court concludes that the Corps’ decision to

use HEC-ResSim to model the “complex hydrology of the ACT

Basin,” Defs.’ Cross-Mot., ECF No. 95 at 29; furthered its

ability to take the requisite “hard look” at environmental

impacts and reflects reasoned decision-making, see Citizens

Against Burlington, Inc. v. Busey, 938 F.2d 190, 201 (D.C. Cir.

1991) (stating that the deferential rule of reason guides the

agency’s “choice of scientific method”). As the D.C. Circuit has

explained, an agency’s modeling must be deferred to unless it is

160
“so flawed” that the resulting findings “bore no rational

relationship to the characteristics of the data to which it is

applied[.]” Alaska Airlines, 588 F.3d at 1120 (citation and

internal quotation marks omitted); see also Ethyl Corp. v. EPA,

541 F.2d 1, 36 (D.C. Cir. 1976) (“[The Court] must look at the

decision not as the chemist, biologist or statistician that [it

is] qualified neither by training nor experience to be, but as a

reviewing court exercising [its] narrowly defined duty of

holding agencies to certain minimal standards of rationality.”).

The same degree of deference applies to the HEC-5Q Model, which

the Corps selected as the “logical choice for the water quality

model” to evaluate water management alternatives due to its

compatibility with HEC-ResSim. A.R., ECF No. 61 at D-00036295;

see also id. at D-00044353-54 (explaining that the HEC-5Q model

can “simulate the entire riverine and reservoir system in a

single model” and create modeled outputs that provide a

“longitudinal presentation of conditions for comparison between

various operations scenarios”). 31

31The Court therefore rejects Intervenor-Plaintiffs’ arguments
against the Corps’ use of the HEC-5Q Model, see Intervenor-Pls.’
Mot., ECF No. 85 at 17 n.3; especially since they only point to
acknowledgements the Corps already made and considered regarding
that model’s “assumptions and limitations,” see A.R., ECF No. 61
at D-00036296; see also Defs.’ Reply, ECF No. 102 at 24 n.11
(stating that despite disclosing the model’s limitations, the
Corps “is entitled to deference in its determination that the
model was nevertheless appropriate”). Nor will the Court
consider the extra-record report cited to by Intervenor-
161
 The Court agrees with Defendants that although the Corps’

modeling was criticized by the EPA, that “does not demonstrate

that its decision [was] arbitrary.” Defs.’ Cross-Mot., ECF No.

95 at 30; see A.R., ECF No. 61 at D-00049704, D-00049707 (the

EPA arguing that the Corps should “use a more precise modeling

framework in determining impacts to water quality” because its

model “lacks the temporal, spatial, and mechanistic precision”

to quantify such impacts). “Although an agency should consider

the comments of other agencies, it does not necessarily have to

defer to them when it disagrees.” Theodore Roosevelt

Conservation P’ship v. Salazar, 605 F. Supp. 2d 263, 276 (D.D.C.

2009) (citation omitted), aff’d, 616 F.3d 497 (D.C. Cir. 2010);

see also Busey, 938 F.2d at 201 (“[U]nder the rule of reason, a

lead agency does not have to follow the EPA’s comments

slavishly—it just has to take them seriously.”); Fuel Safe Wash.

v. FERC, 389 F.3d 1313, 1332 (10th Cir. 2004) (requiring an

agency “to consider the views of other agencies,” like the EPA,

but not obligating it to defer to those views). Therefore, even

if the Court had otherwise concluded that Intervenor-Plaintiffs

raised “plausible criticisms of the methodology chosen by the”

Corps, they have failed to show that this choice was arbitrary

or capricious. See Colo. River Cutthroat Trout v. Salazar, 898

Plaintiffs regarding modeling problems in a case involving the
ACF Basin. Intervenor-Pls.’ Mot., ECF No. 85 at 17.
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F. Supp. 2d 191, 205 (D.D.C. 2012) (“[A]n agency’s choice of

methodology need only be reasonable to be upheld.”).

b. The FEIS Adequately Analyzes and Discloses
Impacts of the Proposed Action Alternative
on Hydropower Generation

Having established both the parameters of the “hard look”

doctrine and the reasonableness of the Corps’ decision to use

HEC-ResSim to conduct that “hard look,” the Court turns to the

Alabama Plaintiffs’ first argument regarding “flaws” in the

FEIS, namely involving the Master Manual’s division of the

conservation pool into four action zones, as opposed to the two

previously existing action zones, and its “reduced power

generation in all action zones, as compared with the 1993 draft

manual.” Pls.’ Mot., ECF No. 83 at 28-29, 56-57. They argue that

“the Corps’ modeling of the Proposed Action Alternative failed

to disclose the impact of one of the new Manual’s most

fundamental changes—the Corps’ discretion not to make any

hydropower releases in any of the action zones at Lake

Allatoona.” Id. at 57. In support of this argument, they direct

the Court to Figure 5.4-1 in the record, titled “Operations

under the Proposed Action Alternative at Allatoona Lake,” which

depicts the four action zones and their corresponding hydropower

generation schedule. A.R., ECF No. 61 at D-00044258. In Zone 1,

the minimum hydropower generation schedule ranges from 0 to 4

hours, in Zone 2 from 0 to 3 hours, in Zone 3 from 0 to 2 hours,

163
and in Zone 4, 0 hours. See id. Based on this figure, the

Alabama Plaintiffs contend that the Corps can now “eliminate

hydropower generation completely at any time in any of the

proposed action zones[,]” in contrast to the 1993 Draft Manual,

under which Zone 1 required between two and six hours of

hydropower generation. Pls.’ Mot., ECF No. 83 at 29.

The Alabama Plaintiffs further argue that although the

Master Manual gives the Corps discretion to generate zero

hydropower, the modeling for the Proposed Action Alternative

assumes that the Corps will make sufficient releases to generate

the maximum amount of hydropower each day when Allatoona is in

Zone 1 or 2 during nine months of the year, and fifty percent of

the maximum for those zones during the remaining three months of

the year. Id. at 31, 57. They argue that such assumptions are

“not realistic in light of the Corps’ operational history[,]”

and that the Corps should have modeled “realistic circumstances”

under which it generated less or even no hydropower to reveal

the resulting decrease in flows and accompanying environmental

effects. Id. at 57; Compl., ECF No. 1 at 20-21 ¶ 89. Intervenor-

Plaintiffs likewise argue that the Corps should have modeled its

authority “under the Manual to reduce hydropower releases at

Lake Allatoona to zero[,]” which they claim will occur during

the driest periods in the ACT Basin “when assimilative capacity

is most affected by low-flow conditions.” Intervenor-Pls.’ Mot.,

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ECF No. 85 at 18. Defendants respond that “[i]n fact it is

Plaintiffs’ focus on the possibility of at times lowering

releases to zero that is unrealistic[,]” Defs.’ Cross-Mot., ECF

No. 95 at 31; as the Corps has not claimed discretion “not to

generate hydropower at all from its hydropower dams in the ACT

Basin[,]” Defs.’ Reply, ECF No. 102 at 21.

The Court agrees with the Corps that its modeling of

hydropower releases was reasonable and complied with NEPA

because “[n]othing in the FEIS suggests that the Corps has

‘newfound discretion not to generate hydropower[.]’” Id. at 20

(quoting Pls.’ Reply, ECF No. 99 at 32). To the contrary, the

FEIS recognizes that “[h]ydropower is one of the congressionally

authorized purposes in the ACT Basin.” A.R., ECF No. 61 at D-

00043784. The FEIS explains that hydropower facilities at Corps

projects in the basin are operated as peaking plants “to meet

daily peak electric power demands during periods of high use”

and that “[t]he number of hours of peaking operations on any

given day at any specific project may vary as necessary to

balance with meeting other authorized project purposes.” Id.

Regardless of this daily variation, however, at Allatoona Dam,

the service unit is operated to continuously release minimum

flows of 240 cfs, which generate hydropower while providing

constant flows downstream. Id. at D-00043939. Under the Master

Manual’s “[r]efined operations at Allatoona Lake,” the action

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zones were intentionally “shaped to mimic the seasonal demands

for hydropower,” and modifications to the hydropower schedule

were “put in place to provide greater operational flexibility to

meet power demands while conserving storage.” Id. at D-00043797.

The FEIS explains that under the Proposed Action Alternative,

the typical daily hydropower generation range for Allatoona Lake

is actually retained, while generation is only reduced during

September through November “to facilitate implementation of the

fall phased down guide curve[,]” which the Corps expects to

provide additional benefits to “overall hydropower production.”

Id. at D-00044244-45. The record therefore negates the Alabama

Plaintiffs’ claim that the Corps has sought to eliminate

hydropower generation completely. See id. at D-00044949

(explaining that the action zones serve as a guide to meeting,

not negating, “system hydropower commitments”).

Furthermore, while the Master Manual has changed the peak

generation hours available for the four action zones based on

seasonal demand, it has merely implemented a range of hours—from

0 to 2, 3, or 4 hours—see id. at D-00044258; except for 0 hours

at Zone 4, which is reserved for when reservoir elevations

reflect “severe drought conditions” and peaking operations “will

typically be suspended,” id. at D-00044950. Thus, the FEIS

frames peaking generation as a “range,” Defs.’ Reply, ECF No.

102 at 21; under which the hours identified in the action zones

166
are to represent “the most likely hydropower demand during

normal conditions[,]” see A.R., ECF No. 61 at D-00046589

(“Modeling is not intended to capture the exact operation of

every day.”). Here, the FEIS’ modeling may have assumed the

maximum amount identified in each action zone, but the Corps has

explained that while it agrees that actual operations may not be

this amount, using the maximum value per zone “capture[s]

typical reductions[,]” allows for meaningful comparisons, and

has been used in prior modeling approaches in earlier ACT/ACF

studies. Id.; see Defs.’ Reply, ECF No. 102 at 21 n.9

(explaining that because the Manual “frames peaking generation

as ‘up to’ certain hours[,]” Plaintiffs cannot show that the

Corps “overestimated” hydropower generation in the FEIS (citing

A.R., ECF No. 61 at D-00044949-51)). The FEIS even notes that

peak generation “could exceed” the maximum ranges in zones 1 to

3 in unique situations. See A.R., ECF No. 61 at D-00044792-93.

On the other end of the range involving “zero hours on certain

days in certain circumstances[,]” the FEIS “explains the limited

and infrequent circumstances in which such generation might not

occur[,]” Defs.’ Reply, ECF No. 102 at 21; such as “maintenance

and repair of turbines; emergency situations such as a drowning

or chemical spill; draw-downs because of shoreline maintenance;

drought operations; increased or decreased hydropower demand;

and other circumstances[,]” A.R., ECF No. 61 at D-00044949-50.

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And even in those rare situations of zero peaking generation,

hydropower production continues from the Allatoona service unit

at minimum flows of 240 cfs, id. at D-00043939, D-00044950;

thereby negating the Alabama Plaintiffs’ contention that the

Corps ignored their comments about Allatoona’s authorizing

legislation requiring the Corps to provide minimum levels of

hydropower releases, see Pls.’ Reply, ECF No. 99 at 32-33.

Because the FEIS does not indicate that the Corps now has

“absolute discretion to wholly withhold hydropower releases”

wherever and whenever it wants, Pls.’ Mot., ECF No. 83 at 57;

the Court agrees with Defendants that the Corps did not need to

separately model a less or no-hydropower scenario since the

range of hydropower hours per action zone adequately captures

scenarios resulting from the Corps balancing various factors or

activities impacting peaking operations, and as the FEIS

demonstrates, it is “not realistic” that the range of peak

generation for each zone will near zero on typical days, Defs.’

Cross-Mot., ECF No. 95 at 31; see Izaak Walton League of Am. v.

Marsh, 655 F.2d 346, 377 (D.C. Cir. 1981) (“Detailed analysis is

required only where impacts are likely. . . . So long as the

[EIS] identifies areas of uncertainty, the agency has fulfilled

its mission under NEPA.”). Accordingly, the Court agrees with

Defendants that while Plaintiffs “may have more pessimistic

assumptions about what might happen” to hydropower impacts under

168
the Master Manual, this is not a reason to set aside the FEIS.

Defs.’ Reply, ECF No. 102 at 21.

c. The FEIS Adequately Analyzes and Discloses
Impacts of the Proposed Action Alternative
Associated with the CC-MWA’s Water Supply
Withdrawals

The Court now turns to the Alabama Plaintiffs’ second

argument—that the Proposed Action Alternative conceals

environmental impacts related to the CC-MWA’s water supply

withdrawals from Allatoona Lake. Pls.’ Mot., ECF No. 83 at 58.

The authority upon which the Corps relies to use Allatoona for

local water supply derives from the Water Supply Act of 1958.

Id. at 19. Pursuant to that Act, the Corps has authority,

without the need for prior congressional approval, to modify its

reservoir projects “to provide storage for municipal and

industrial water supply, so long as adding the modifications

would not cause a ‘major structural or operational change’ from

the structures and operations authorized by Congress or

‘seriously affect’ the congressionally authorized project

purposes.” In re ACF Basin, 554 F. Supp. 3d at 1296 (quoting 43

U.S.C. § 390b(e)). Using this authority, the Corps has

reallocated about seven percent of Allatoona’s storage capacity

from normal power operations to municipal water supply based on

a 1963 storage contract with the CC-MWA. See Pls.’ Mot., ECF No.

83 at 19; A.R., ECF No. 61 at SUPPAR012820 (explaining that the

169
storage contract conveyed to the CC-MWA “the right to utilize

storage space at Lake Allatoona to store water granted to [the]

CC-MWA by the State of Georgia”). According to the FEIS, water

supply usage has increased over time, with 2006 amounting to a

drought year with the highest water demand on record, A.R., ECF

No. 61 at D-00043790; leading the Corps to recognize that “the

available storage under existing water supply agreements at

[Corps] reservoirs may not be sufficient to accommodate the 2006

level of water supply withdrawals under all conditions[,]” id.

at D-00043824.

The Alabama Plaintiffs argue that historically the CC-MWA

has withdrawn more water from Allatoona Lake than its contract

allows, which they claim the Corps has acknowledged despite not

seeking to enforce the contract’s limits. Pls.’ Mot., ECF No. 83

at 58; see A.R., ECF No. 61 at SUPPAR012820 (calculating that in

2007, the CC-MWA “substantially exceeded the storage allocation

provided in the water supply storage contract”). Due to “this

reality,” they claim that the Corps properly modeled the No-

Action Alternative using the CC-MWA’s actual withdrawals from

2006, “rather than the substantially lower contractual limits”

that the CC-MWA “routinely has violated,” yet improperly modeled

the Proposed Action Alternative “on the inconsistent assumption

that [the] CC-MWA would abide by its contractual limits in the

future.” Pls.’ Mot., ECF No. 83 at 31, 58; Pls.’ Reply, ECF No.

170
99 at 33. By modeling the Proposed Action Alternative this way,

the Alabama Plaintiffs claim that “the FEIS is representing that

far more water will be available to improve downstream

conditions than is realistic[,]” and therefore, the Corps did

not fulfill the parameters of NEPA’s “hard look” doctrine and

instead deprived the public of relevant information. 32 See Pls.’

Mot., ECF No. 83 at 58-59. Defendants respond that it was

reasonable to model the No-Action Alternative to reflect “actual

withdrawals from Allatoona Lake” in 2006, while modeling

withdrawals under the proposed action alternatives “consistent

with the amount of storage available in existing water supply

storage agreements.” Defs.’ Cross-Mot., ECF No. 95 at 32. They

explain that the FEIS “took the highly conservative approach of

utilizing water demand data from 2006—a year of historic drought

and the highest net withdrawals in system history—when

estimating future withdrawals basin-wide for each alternative,”

Defs.’ Reply, ECF No. 102 at 22; which enabled the Corps “to

32The Georgia Parties agree but do not provide arguments in
support of the contention that the Corps erred in the FEIS by
assuming that the CC-MWA’s “current water supply withdrawals
from Allatoona Lake would be capped at levels below its actual
use.” See Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 6 n.1, 25
n.13. Instead, they disputed this claim in separate litigation
challenging the ACT Manual and FEIS. See generally Compl.,
Georgia v. U.S. Army Corps of Eng’rs, No. 1:14-cv-03593 (N.D.
Ga. Nov. 7, 2014), ECF No. 1. As the Court explains below, this
claim was rejected by the Northern District of Georgia in 2017.
See Order, Georgia v. U.S. Army Corps of Eng’rs, No. 1:14-cv-
03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61 at 43-45.
171
analyze the circumstances in which there were the highest

possibility of adverse impacts[,]” Defs.’ Cross-Mot., ECF No. 95

at 32. Thus, Defendants claim that the Alabama Plaintiffs have

failed to show “any meaningful understatement of impacts.”

Defs.’ Reply, ECF No. 102 at 22.

The Court agrees that it was reasonable for the FEIS to

model water supply withdrawals from Allatoona Lake for the

action alternatives consistent with the CC-MWA’s 1963 contract.

As the Northern District of Georgia has concluded in separate

litigation involving the ACT Master Manual and FEIS over this

identical issue, “there is no evidence that suggests use of

current contract values is an unacceptable standard in assessing

the environmental impacts of operational changes in a

reservoir.” See Order, Georgia v. U.S. Army Corps of Eng’rs, No.

1:14-cv-03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61 at 43-45

(rejecting an identical argument from the Georgia Parties that

the FEIS violates NEPA because the Corps used the CC-MWA’s

“existing contract allocation amounts in evaluating

alternatives, and assumed that water use would not be permitted

to exceed those quantities” when “in reality” the CC-MWA’s

“current withdrawals exceed the contractual amounts”). The Court

is persuaded by the Northern District of Georgia’s conclusion

that concerns regarding the renegotiation of water supply

contracts are beyond the scope of this action, id. at 44; see

172
A.R., ECF No. 61 at D-00046599 (“A reallocation of storage at

Lake Allatoona for water supply is outside the scope of the

[WCM] update process.”); and that “while the Corps’ methodology

may be inaccurate in some respects, the Court is not authorized

to substitute its judgment ‘concerning the wisdom or prudence of

the proposed action[,]’” Order, Georgia v. U.S. Army Corps of

Eng’rs, No. 1:14-cv-03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61

at 44 (citation omitted). Instead, the Court must be

particularly deferential given that the agency is evaluating

complex “scientific matters in its area of technical expertise.”

Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 560 (D.C. Cir. 2002).

Therefore, the Court defers to the Corps’ decision in the FEIS

to model withdrawals in the proposed action alternatives

consistent with the CC-MWA’s current water supply contract

amounts, and concludes, as did the Northern District of Georgia,

that this choice was not arbitrary or capricious. 33 See Order,

Georgia v. U.S. Army Corps of Eng’rs, No. 1:14-cv-03593 (N.D.

Ga. Sept. 29, 2017), ECF No. 61 at 44-45 (concluding that NEPA’s

33The Court is not persuaded by the Alabama Plaintiffs’ attempt
to point to the number of customers served by the CC-MWA’s
withdrawals as evidence to support their “implication that
future withdrawals will nevertheless exceed [the FEIS’]
conservative estimation,” which as Defendants note, “already
accounts for [the CC-MWA’s] existing water supply contract” that
it uses to supply those customers.” See Defs.’ Reply, ECF No.
102 at 22; Pls.’ Reply, ECF No. 99 at 34.
173
procedural requirements “were adhered to” and denying summary

judgment on the Georgia Parties’ NEPA claims).

In any event, the Court agrees with Defendants that it was

“conservative” of the Corps to use water demand data from 2006

in estimating future basin-wide withdrawals for each of the

alternatives. Defs.’ Cross-Mot., ECF No. 95 at 32. The record

indicates that net water withdrawals in 2006 were not only the

highest in ACT Basin history, A.R., ECF No. 61 at D-00043790;

but also much higher than the estimated daily requirements in

the CC-MWA’s water supply storage agreement with the Corps, see

id. at D-00053482; Defs.’ Cross-Mot., ECF No. 95 at 32. In 2006,

the CC-MWA withdrew an average of 47.19 million gallons per day

(“mgd”) from Allatoona Lake, compared to the estimated daily

requirement of 34.5 mgd allotted in its 1963 water supply

contract. A.R., ECF No. 61 at D-00053482. Since 2006, the CC-

MWA’s withdrawals have averaged 37.10 mgd annually. Id. Despite

this lower average number, the Corps used 2006’s “actual, record

water supply withdrawals” number of 47.19 mgd for the No-Action

Alternative, Proposed Action Alternative, “and all other

alternatives,” but then used modeling parameters to limit the

withdrawals for the action alternatives “to those that would be

available, under the modeled circumstances, from existing water

supply storage allocations. . . .” Id. at D-00053483; see id. at

D-00043790 (stating that the Corps “took into account the

174
current (2006) demand, as well as the availability of storage

under existing water supply storage agreements at [Corps]

reservoirs, in evaluating the alternatives”), D-00046589

(explaining that “[u]sing the same water supply numbers for each

reservoir alternative operation allow[ed] for proper comparative

impact analysis”). The modeling results for the Proposed Action

Alternative indicated that withdrawals from the existing water

supply storage would average 43.34 mgd annually, more than the

34.5 mgd requirement in the 1963 contract but less than the

47.19 mgd average that was withdrawn in 2006. Id. at D-00053483.

Therefore, by using 2006’s unprecedented demand level to model

withdrawals, the Corps conservatively analyzed the alternatives

in comparison to scenarios with “the highest possibility of

adverse impacts.” Defs.’ Cross-Mot., ECF No. 95 at 32.

Furthermore, the administrative record indicates that the

Corps conducted a sensitivity analysis to measure the effects of

greater water supply withdrawals than anticipated, i.e., the

sensitivity of the Proposed Action Alternative to increased

future water demands. See A.R., ECF No. 61 at D-00044478, D-

00047882-84 (Figures 6, 7, and 8). This analysis demonstrated

that a thirty percent increase in overall water supply demand,

above the 2006 level already used in the impacts analysis, would

not impact the overall results of the modeling. See id.; Defs.’

Cross-Mot., ECF No. 95 at 32. This analysis confirmed that “even

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an unprecedented level of water supply withdrawals from

Allatoona Lake would not have significantly different impacts

than those analyzed[,]” thereby negating the Alabama Plaintiffs’

contention that the FEIS understates impacts of the CC-MWA’s

water supply withdrawals. Defs.’ Reply, ECF No. 102 at 22-23.

d. The FEIS Adequately Analyzes and Discloses
Impacts of the Master Manual on Water
Quality at Montgomery, Alabama

The Court next turns to Intervenor-Plaintiffs’ three

additional arguments as to why the FEIS should be set aside,

beginning with the Montgomery Board’s claim that the FEIS fails

to adequately analyze the Master Manual’s impacts on water

quality issues at Montgomery, Alabama. See Intervenor-Pls.’

Mot., ECF No. 85 at 15-19. The Montgomery Board, a public water

utility providing water and wastewater services, states that it

relies on reliable water flows in the ACT Basin, particularly

from the Tallapoosa and Alabama Rivers, “for critical water

supply and wastewater assimilation purposes[,]” and that it “has

long objected to the Corps’ actions at Allatoona that impair

water flows within Alabama.” Id. at 9, 15. It argues that the

Master Manual will lead to further flow reductions that harm the

Montgomery Board and its customers, including by degrading water

quality, impairing its ability to treat wastewater, and reducing

flows below minimum amounts mandated by its NPDES permits, such

that changes to its permits will be required and subsequent

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modifications to its water and wastewater treatment facilities

will be necessary to maintain permit compliance. Id. at 9-10.

To support its claims, the Montgomery Board points to

ADEM’s prediction that the Master Manual will cause water

quality violations in Alabama, and the Corps’ acknowledgement

that reduced flows may necessitate changes in and reevaluation

of NPDES permits throughout the ACT Basin. Id. at 15 (citing

A.R., ECF No. 61 at D-00043396-405, D-00043827, D-00043860).

Instead of addressing these issues, the Montgomery Board claims

that the FEIS uses “vague, conclusory terms” to minimize the

Manual’s downstream effects on water quality and used improper

modeling, incorrect forecasting of future water supply demands,

and incorrect Allatoona discharge data to further mask these

adverse effects. See id. at 16-19. The Montgomery Board also

argues, as do the Alabama Plaintiffs, that “the Corps has

impermissibly attempted to shift all responsibility for water

quality to other parties” to avoid NEPA’s requirements. Id. at

19. Defendants respond that the Corps fully and reasonably

analyzed water quality impacts, including at Montgomery, in

“hundreds of pages in the FEIS and two full appendices.” Defs.’

Reply, ECF No. 102 at 23. They argue that the Corps’ reliance on

its choice of water quality modeling and accompanying analyses,

despite contrary comments from the EPA, and on its own data

sets, was legal, rational, and entitled to deference. Id. at 23-

177
24; Defs.’ Cross-Mot., ECF No. 95 at 33-34. For the reasons

explained below, the Court agrees with Defendants and rejects

each of the Montgomery Board’s water quality claims under NEPA.

First, the Court reiterates its earlier conclusion that

deference is due to the Corps’ modeling choices—HEC-ResSim as

the overall “flow model” and HEC-5Q as the water quality model.

See supra section IV.B.2.a. Intervenor-Plaintiffs argue that

these models are “improper” because comments from the EPA and

ADEM indicate that “more appropriate” and “site-specific

sophisticated modeling frameworks” developed by federal and

state agencies should have been used instead, and that the

Corps’ “failed to take a ‘hard look’ at water quality impacts by

using a model that the nation’s primary regulator for water

quality cautioned against.” Intervenor-Pls.’ Reply, ECF No. 101

at 6-7 (quoting A.R., ECF No. 61 at D-00049707). However, the

record indicates that the Corps considered these comments but

concluded that those site-specific models, designed for use in

assessing TMDLS, “are of limited value in making water release

decisions and selecting alternative operations at reservoirs.”

See A.R., ECF No. 61 at D-00053484 (“The [Corps] technical team

of subject matter experts has reviewed the comments from the EPA

and determined that the evaluation of water quality impacts

contained in the [FEIS] complies with NEPA requirements.”).

Having taken these explanatory steps, “the Corps was entitled to

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rely on its own modeling[,]” Defs.’ Reply, ECF No. 102 at 24; a

reasonable decision to which the Court must defer, see Nat. Res.

Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1385 (D.C. Cir.

1985) (deferring “to an agency’s judgment to use a particular

model if the agency examines the relevant data and articulates a

reasoned basis for its decision”). The same conclusion applies

to the Corps’ use of its own historical Allatoona discharge

data, as opposed to Intervenor-Plaintiffs’ preferred data

reported by the U.S. Geological Survey. See Defs.’ Cross-Mot.,

ECF No. 95 at 30; Defs.’ Reply, ECF No. 102 at 25 n.12; see also

Sierra Club v. Watkins, 808 F. Supp. 852, 862 (D.D.C. 1991)

(stating that “NEPA does not require a federal agency to

consider and discuss every viewpoint in the scientific community

on a given matter[,]” and noting that when specialists disagree,

agencies “have discretion to rely on the reasonable opinions of

its own qualified experts”).

Second, the Court rejects the Montgomery Board’s claim that

the Corps incorrectly forecasted future water demands by Georgia

entities, just as it rejected the Alabama Plaintiffs’ similar

argument that the Corps incorrectly assessed the impacts of the

CC-MWA’s water supply withdrawals under the Proposed Action

Alternative. See supra section IV.B.2.c. Here, the Montgomery

Board argues that by using “outdated” data from 2006 addressing

projected water demands through 2030, as opposed to accessible

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data projecting demands through 2040, the Corps understated

foreseeable water supply demands and the resulting “cumulative

environmental impacts of the Manual.” Intervenor-Pls.’ Mot., ECF

No. 85 at 17-18. The Court disagrees, concluding that the Corps

reasonably used data from 2006 and its accompanying 2030

projections, as this data provided sufficient information to

evaluate the action alternatives and reasonably choose among

them. See A.R., ECF No. 61 at D-00043998-4026. That the

Montgomery Board would prefer a different dataset making

projections through 2040 is unpersuasive, as the D.C. Circuit

has concluded that “while it is ‘desirable . . . for agencies to

use the most current and comprehensive data available when

making decisions,’ an agency’s reliance on outdated data is not

arbitrary or capricious[.]” Theodore Roosevelt, 605 F. Supp. 2d

at 273 (quoting Vill. of Bensenville, 457 F.3d at 71); see also

Selkirk Conservation All. v. Forsgren, 336 F.3d 944, 962 (9th

Cir. 2003) (“NEPA does not impose a requirement that the

[agency] analyze impacts for any particular length of time.”).

Third, the Court concludes that the FEIS goes beyond

“conclusory terms” to explain how and why the Corps determined

that water quality effects of the Master Manual would be

“minor.” Intervenor-Pls.’ Mot., ECF No. 85 at 16; see A.R., ECF

No. 61 at D-00043827 (“The overall effect of the Proposed Action

Alternative on water quality would be expected to be

180
negligible.”), D-00043853 (“The Proposed Action Alternative

(Plan G) with reduced basin inflow . . . would have minor

impacts on water quality in the ACT Basin.”). As discussed, the

Corps developed its “highly technical HEC-ResSim model to

analyze the ACT Basin’s hydrology[,]” Defs.’ Cross-Mot., ECF No.

95 at 33; and modified this model via the HEC-5Q Model to

thoroughly analyze water quality impacts, specifically “each

water quality parameter . . . over multiple periods, as outlined

in the water quality modeling report (Appendix D)[,]” see A.R.,

ECF No. 61 at D-00046824 (explaining that a “wide range of flows

was modeled and analyzed” and “[m]odel results were summarized

for three hydrologic periods, including high flows, low flows,

and ‘normal’ flows”). The performance of this modeling enabled

the Corps to discuss water quality impacts on the environment in

detail in the FEIS, see, e.g., id. at D-00044353-95 (assessing

various sub-topics under section 6.1 “Water Resources” for each

of the action alternatives, such as “Water Withdrawals,” “Water

Quality Environmental Consequences,” and “Water Temperatures,”

among other pertinent water quality subjects), D-00044031-49

(analyzing “surface water quality,” including “water quality

standards” at point and nonpoint sources); and the Corps even

performed additional analysis following ADEM’s comments on the

FEIS, which confirmed its original conclusion that there would

be “little impact under the [Proposed Action Alternative] to the

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water quality in the ACT Basin[,]” id. at D-00053485. As the

Corps has explained, water quality impacts “as a whole [were]

thoroughly discussed” when updating the WCMs, Defs.’ Cross-Mot.,

ECF No. 95 at 33; and were also explicitly addressed in a

comparison of the impacts of the various alternatives on the

Alabama River at Montgomery, A.R., ECF No. 61 at D-00043820-42.

The FEIS also discusses direct and indirect effects 34 of each

alternative on water quality indicators such as water

temperature, oxygen demand, and levels of phosphorous, nitrogen,

and chlorophyll a, see id. at D-00043825-27, D-00044353-95, D-

00046824; “including in areas far downstream of Corps projects

and at projects operated by others—as influenced over time by

hydrological conditions and pollution sources in the basin[,]”

Defs.’ Reply, ECF No. 102 at 26. Accordingly, the Court

concludes that the Montgomery Board has not shown “that the

Corps failed to sufficiently analyze any discrete environmental

impact that is subject to the Corps’ control nor has [it] shown

that the agency’s discussion of impacts was arbitrary or

capricious.” In re ACF Basin, 554 F. Supp. 3d at 1306. To the

34Direct effects “are caused by the action and occur at the same
time and place[,]” while indirect effects “are caused by the
action and are later in time or farther removed in distance, but
are still reasonably foreseeable.” 40 C.F.R. § 1508.1(g). To
satisfy NEPA, agencies must consider both direct and indirect
environmental effects of the project under consideration. Sierra
Club v. FERC, 867 F.3d 1357, 1371 (D.C. Cir. 2017).
182
extent Intervenor-Plaintiffs “would prefer a more extensive

discussion of [the water quality] issues, that is not a reason

to overturn the [FEIS,]” id. at 1307; or to find that “the

requisite ‘hard look’ was not taken[,]” Intervenor-Pls.’ Reply,

ECF No. 101 at 8.

Despite this record evidence, the Montgomery Board argues

that the Corps failed to address certain indirect environmental

effects, notably the Master Manual’s “increased potential for

triggering drought operations and the corresponding impact to

water quality” at Montgomery, as modeled by APC under a “no

power scenario.” Intervenor-Pls.’ Reply, ECF No. 101 at 9.

According to APC’s “no power” analysis, in which the Corps

exercises its “discretion to not make releases for hydropower,”

Alabama would only receive minimum flows during the critical

late summer months about half the time, A.R., ECF No. 61 at D-

00049609; and state-line flows would trigger drought operations

in Alabama 17% of the time, an 82% increase compared to the No-

Action Alternative, id. at D-00043422, D-00045989. Given APC’s

modeling, the Montgomery Board is concerned that the Corps can

“artificially” trigger the Master Manual’s new drought plan “by

curtailing releases from Allatoona (which comprise much of the

flow at the state line), further reducing flow in the basin,

particularly on the Alabama River[,]” thereby degrading

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Montgomery’s water quality. Intervenor-Pls.’ Reply, ECF No. 101

at 9; Intervenor-Pls.’ Mot., ECF No. 85 at 19-20 n.4.

The Court rejects the Montgomery Board’s “indirect effects”

argument. First, the Corps addressed and explicitly negated

comments that the Proposed Action Alternative “will make drought

operations in Alabama more frequent and drought effects more

severe[,]” and explains its reasons for concluding that the

drought management plan will not increase drought severity. See,

e.g., A.R., ECF No. 61 at D-00046596. Second, given that the

Corps’ choice of modeling is entitled to deference, the Court

concludes that the Corps was reasonably “entitled to rely on its

own modeling and expertise,” even though its modeling differs

from that performed by APC or another third party. Defs.’ Cross-

Mot., ECF No. 102 at 26. This conclusion is further supported by

the Court’s earlier conclusion that the Corps need not

separately model a no-hydropower scenario, see supra section

IV.B.2.b.; as the FEIS, contrary to the Montgomery Board’s

claim, does not indicate that the Corps has newfound discretion

to generate zero hydropower, 35 nor is it likely that peak

generation for each action zone will near zero on a given day,

35Like the Alabama Plaintiffs, the Montgomery Board argues that
the Corps failed to “model its discretion to reduce hydropower”
releases at Allatoona Lake to zero. See Intervenor-Pls.’ Mot.,
ECF No. 85 at 18-19. The Court already rejected this argument
for the Alabama Plaintiffs and does not address it again here.
184
see, e.g., A.R., ECF No. 61 at D-00044949-51. Thus, APC’s “no

power” scenario, which “assumes that the Corps generates no

hydropower at Allatoona[,]” id. at D-00043422, D-00049609; is

premised on an unrealistic assumption, and the Montgomery

Board’s concerns based on this model are not reasonable.

Regardless, the FEIS explains, using data from the

simulated period of hydrologic record, that the new drought

management plan (only activated under specific triggers) is

expected to “result in improved storage conditions and higher

lake levels . . . than would be expected without the drought

plan, while continuing to meet downstream flow requirements and

targets as well as essential water needs (quantity and quality)

for municipal and industrial users to the extent possible.” See

A.R., ECF No. 61 at D-00044340-52 (Section 6.1.1.4 “Drought

Management” and Section 6.1.1.5 “Navigation Flow Targets—Alabama

River”). In assessing the impacts of the drought plan, the FEIS

specifically modeled water quality impacts under dry flow

conditions, id. at D-00044354; before determining that there is

only a “minor increase in susceptibility to drought operations

over the modeled period of record” under the Proposed Action

Alternative, id. at D-00044342. In sum, the Court agrees with

Defendants that “since there is no merit to Intervenors’ claims

of deficiency in the Corps’ choices of data and models, . . .

their claim that the water quality analysis was compromised by

185
those data and model choice deficiencies . . . also fails.”

Defs.’ Reply, ECF No. 102 at 27.

Finally, the Court rejects the Montgomery Board’s argument

that the Corps has improperly shifted the burden to the States

to address the Master Manual’s water quality impacts. See

Intervenor-Pls.’ Mot., ECF No. 85 at 15, 19; Intervenor-Pls.’

Reply, ECF No. 101 at 8-9. While the FEIS concedes that “[w]ater

management activities may affect water quality under low flow

conditions such that the state regulatory agencies may consider

reevaluation of NPDES permits to confirm the system’s

assimilative capacity[,]” it identifies this adaptive management

technique[,]” A.R., ECF No. 61 at D-00043827; as one mitigation

measure the States could “elect . . . to limit discharges during

certain in-stream flow conditions” and “ensure that NPDES

permitted facilities do not violate water quality standards

under extreme low flow conditions” in the future, see id. at D-

00043860, D-00044364 (explaining that some dischargers could be

required, by their NPDES permit, “to change the way they operate

during low-flow conditions”). While the Montgomery Board “may

not like the fact that some permittees may have to treat their

pollution better, rather than relying on the Corps to dilute

it,” Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139 at 21; it

is permissible for agencies to “recognize that other entities

are in the best position to take appropriate action[,]” In re

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ACF Basin, 554 F. Supp. 3d at 1307. Although the Montgomery

Board argues that the potential permit changes make future

planning difficult, Intervenor-Pls.’ Mot., ECF No. 85 at 16;

under NEPA, the Corps “need not delay adopting its preferred

alternatives while those other entities choose ‘what mitigating

measures they consider necessary[,]’” In re ACF Basin, 554 F.

Supp. 3d at 1307 (quoting Robertson, 490 U.S. at 353).

This conclusion applies equally to APC, which is in the

“best position” to make mitigating discharge decisions at its

seven reservoir projects on the Coosa River—between the City of

Montgomery and the two upstream Corps projects in Georgia

(Carters Dam and Allatoona Dam)—and its four projects upstream

of Montgomery on the Tallapoosa River. A.R., ECF No. 61 at D-

00046675. As the FEIS notes, flow conditions in the Alabama

River at Montgomery “are mainly controlled by water management

activities at APC projects upstream on the Coosa and Tallapoosa

rivers and are minimally affected by projects in the upper

portion of the basin” controlled by the Corps, id. at D-

00044421; such that APC’s “operational decisions are the primary

factors determining flows” at Montgomery, id. at D-00046675.

While APC projects are generally affected by the overall flow of

water through the ACT Basin, see Intervenor-Pls.’ Mot., ECF No.

85 at 19; they are directly governed by their own minimum

release targets pursuant to FERC licenses that were “established

187
to meet downstream navigation objectives as well as provide

waste assimilation, hydropower generation, and other downstream

benefits[,]” A.R., ECF No. 61 at D-00044421, D-00043960-61.

Therefore, as the Corps has asserted in response to comments, it

“is not responsible to ‘ensure suitable water quality’ at

Montgomery as asserted” by the Montgomery Board, id. at D-

00046675; and it reasonably analyzed water quality impacts

downstream near Montgomery in lesser detail because these

impacts in this area “depend on a series of third party actions—

including by [APC] in making decisions regarding the quantity of

releases from its reservoirs—rather than the Corps’ operations

far upstream,” Defs.’ Cross-Mot., ECF No. 95 at 33.

For these reasons, the Court concludes that the FEIS

adequately and reasonably considers and discloses impacts of the

Master Manual on water quality, including at Montgomery,

Alabama.

e. The FEIS Adequately Analyzes and Discloses
Impacts of the Master Manual on Salt Water
Intrusion from Mobile Bay

Next, the Court considers Intervenor-Plaintiff Mobile

Water’s claim that the FEIS fails to adequately evaluate salt

water intrusion from Mobile Bay that it argues results from

reduced flows under the Master Manual. See Intervenor-Pls.’

Mot., ECF No. 85 at 20-23. Mobile Water is “a downstream user of

the water resources at issue,” Min. Order (Apr. 4, 2016); as it

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operates an industrial water supply that provides fresh water

unencumbered with salt or brine from tidal influences of the

Mobile Bay to customers in the Mobile Area, A.R., ECF No. 61 at

D-00046635-36. According to Mobile Water, it operates freshwater

intakes in the lower portion of the ACT Basin “that are

susceptible to salt water intrusion from Mobile Bay[,]” and that

without adequate flows from the Basin into the Mobile River,

“there is a substantial risk of increased salinity[.]”

Intervenor-Pls.’ Mot., ECF No. 85 at 10, 20. Mobile Water

explains that to operate its water and wastewater service, it

depends on reliable waters from the Alabama River, which

terminates into the Mobile River. A.R., ECF No. 61 at D-

00046636. The Alabama River is the source of ninety percent of

Mobile Water’s industrial water supply, and it argues that

reduced flows in that river have allowed the intrusion of

“salty, brackish water from Mobile Bay,” which is “caused by the

tidal action of salty Mobile Bay when the flow of fresh water in

Mobile River is too low to keep the denser Bay water from

extending upriver.” Id. In comments submitted on the draft EIS,

Mobile Water contended that the “encroachment of salt water

upstream is directly related to the reducing volume of Mobile

River flow[,]” which is only worsening with reduced flows from

the Alabama River and resulting in water intake that “contains

salt levels in excess of limits acceptable for some industrial

189
uses[,]” harm to Mobile Water’s industrial customers, and the

diminishment of a standby source of drinking water for its

residential and commercial customers. Id. at D-00046635-37.

Mobile Water claims that the Corps’ conclusion that the

Master Manual will only cause a negligible impact to Mobile

Water and its customers is “arbitrary and capricious” for two

reasons: (1) “the 2014 FEIS is directly inconsistent with [the

Corps’] findings on the same issue in 2007[;]” and (2) “no

detailed information or scientific studies relating to salt

water intrusion in the Mobile River appear in the Administrative

Record, except for a stale 70-year-old study.” Intervenor-Pls.’

Mot., ECF No. 85 at 20 (emphasis in original). Defendants

respond that the Corps did not make inconsistent factual

findings and properly limited the scope of its review, “while

still analyzing the impacts of changing salinity levels on

downstream resources.” Defs.’ Cross-Mot., ECF No. 95 at 35. The

Court addresses each of Mobile Water’s two arguments in turn.

First, Mobile Water argues that the Corps has based its

salt water intrusion conclusions on “inconsistent findings.”

Intervenor-Pls.’ Mot., ECF No. 85 at 20. It references the

Corps’ statement in a “Public Notice,” dated May 31, 2007, in

which the Corps solicited public comments on a proposal from APC

to reduce minimum flows on the Alabama River to conserve

reservoir storage as a result of record drought conditions. Id.

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at 10-11 (citing A.R, ECF No. 61 at D-00049910). In this notice,

the Corps wrote that “approximately two-third of the flow into

the Mobile River comes from the Alabama River system during low

flow conditions[,] compared to approximately one-third from the

Tombigbee River system[,]” 36 and it expressed concern that the

flow reduction in APC’s proposal could “potentially affect

flows, water quality, salt water intrusion, and environmental

resources in the Mobile Delta and Bay area.” A.R., ECF No. 61 at

D-00049910-11 (emphasis added). Mobile Water contrasts this 2007

Public Notice with the 2014 FEIS, which states that “flows from

the ACT Basin are roughly half of the total flow in the Mobile

River downstream of the juncture of the Alabama and Tombigbee

rivers.” Id. at D-00043910. Using the change from the 66/33 flow

percentages in the 2007 Public Notice to the 50/50 percentages

in the 2014 FEIS, Mobile Water argues that the Corps “completely

reversed course” without explanation in violation of NEPA. See

Intervenor-Pls.’ Mot., ECF No. 85 at 11, 20-21.

The Court rejects Mobile Water’s argument and agrees with

Defendants that “the percentages in those documents are used for

two different purposes in discussion of two different facts[.]”

Defs.’ Reply, ECF No. 102 at 27. The 2007 Public Notice

36The Tombigbee River is not part of the ACT Basin “per se” but
joins the Alabama River to form the Mobile River upstream of
Mobile Bay. Intervenor-Pls.’ Mot., ECF No. 85 at 11 n.1.
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approximates the percentages of water coming from the Alabama

and Tombigbee Rivers “during [the] low flow conditions” proposed

in APC’s specific drought operations request, A.R., ECF No. 61

at D-00049910; while the calculations in the 2014 FEIS were not

restricted to low flows but covered simulations for high flows,

low flows, and “normal” flows over three hydrologic periods, id.

at D-00046824; Defs.’ Cross-Mot., ECF No. 95 at 37; Defs.’

Reply, ECF No. 102 at 28. Further, not only does the 2007

statement merely “approximate[]” the relative percentage of flow

contributions from each river, see A.R., ECF No. 61 at D-

00049910; but also the context was a public notice soliciting

comments about APC’s drought proposal, rather than a fully

studied environmental analysis containing factual findings, as

was the 2014 FEIS. Because the Public Notice was not final

agency action, the Court agrees with Defendants that the FEIS is

not arbitrary for being “inconsistent” with the notice’s

approximations for (solely) low flow conditions. Defs.’ Cross-

Mot., ECF No. 95 at 37. Further, the caselaw Mobile Water cites

regarding “the importance of consistency,” see Intervenor-Pls.’

Mot., ECF No. 85 at 20-21; only supports the Court’s conclusion,

as it indicates that an agency acts unlawfully when it

disregards prior factual determinations or pronouncements made

in studies “about the environmental impacts of a proposed agency

action.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795

192
F.3d 956, 969 (9th Cir. 2015); Sierra Club v. Salazar, 177 F.

Supp. 3d 512, 534 (D.D.C. 2016). The 2007 Public Notice clearly

falls outside this umbrella. See Cottonwood Env’t L. Ctr. v.

U.S. Sheep Experiment Station, 827 F. App’x 768, 769 (9th Cir.

2020) (explaining that Kake involved “a change of decision” by

the agency “on the same factual record within a two-year

period,” which is not the case here).

Second, Mobile Water argues that the FEIS lacks scientific

studies on salt water intrusion in the Mobile River apart from a

“70-year-old study” in the record dated January 15, 1947, which

is “stale” and not “of any use today,” Intervenor-Pls.’ Mot.,

ECF No. 85 at 12, 21-23 (citing A.R., ECF No. 61 at D-00011212-

D-00011212.0043); and it claims that the conclusion that the

Manual will have “negligible” impacts on salt water intrusion

“is solely predicated on the relative percentage of water

flowing into the Mobile River from the ACT and the Tombigbee[,]”

which cannot constitute a “hard look.” Id. at 20-21. To support

its argument, Mobile Water points to a Corps drought management

planning document from 1988, which stated that “there has been

little attempt to quantify” benefits of preventing salt water

intrusion and advocated for establishing “guidelines and

methodologies . . . for estimating these types of benefits.” Id.

at 12 (quoting A.R., ECF No. 61 at D-00050045). Mobile Water

also points to the Corps’ acknowledgement in the FEIS “that it

193
did not address ‘resources downstream’ (at the juncture of the

Alabama and Tombigbee rivers) ‘to the level of detail of other

resources in the ACT Basin . . . .’” Id. at 21 (quoting A.R.,

ECF No. 61 at D-00043910). While the Corps states in the FEIS

that it did not discuss resources downstream at that juncture in

detail “because of the limited overall effect of operation of

the ACT projects on Mobile River and Mobile Bay resources[,]”

A.R., ECF No. 61 at D-00043910; Mobile Water argues that the

Corps had no valid basis to conclude this “because it did not

study the issue[,]” Intervenor-Pls.’ Mot., ECF No. 85 at 21.

As an initial matter, Defendants argue that Mobile Water

waived its argument regarding the Corps’ reliance on “stale

data” because it did not raise this issue prior to the start of

the instant action. Defs.’ Reply, ECF No. 102 at 27. They argue

that since Mobile Water did not alert the Corps to the “stale

data” issue in its comments on the draft EIS, “much less propose

the use of more recent studies[,]” it thereby deprived the Corps

of an opportunity to respond during the comment process. Id.;

Defs.’ Cross-Mot., ECF No. 95 at 36. The Court agrees that

Mobile Water’s EIS comments do not reference the 1947 study, nor

do they point the Corps to a more recent, existing study to use

in lieu of that study, or ask the Corps to conduct a new and

updated salt water intrusion study. See A.R., ECF No. 61 at D-

00046634-37. Despite this clear failure, Mobile Water replies

194
that “[t]he facts of this case are unique” because the Corps

should not have needed reminding that the 1947 study was seventy

years old, especially given its 1988 recognition of the benefits

of preventing salt water intrusion, and it claims that in light

of the “obvious” data flaws, the Corps was under “an affirmative

mandate” to ensure the scientific integrity of the FEIS.

Intervenor-Pls.’ Reply, ECF No. 101 at 10 (quoting Env’t Def. v.

U.S. Army Corps of Eng’rs, 515 F. Supp. 2d 69, 78 (D.D.C.

2007)). The Court is unpersuaded by these arguments, concluding

that if Mobile Water sought different modeling and measuring of

potential salt water intrusion, it should have alerted the Corps

to its concerns about the 1947 study during the comment process

and pointed to the specific flaws that led it to believe that

study was stale. As the Supreme Court has stated, entities

“challenging an agency’s compliance with NEPA must ‘structure

their participation so that it . . . alerts the agency to the

[parties’] positions and contentions,’ in order to allow the

agency to give the issue meaningful consideration.” Pub.

Citizen, 541 U.S. at 764 (quoting Vt. Yankee, 435 U.S. at 553).

Because none of Mobile Water’s comments identified alternative

salt water intrusion studies or raised “particular objections”

to the 1947 study, the Corps did not have the chance to consider

the issue, determine whether it should conduct a new study based

on any potential flaws, or actually engage in the lengthy

195
process of undertaking a new study. Id.; see also Nw. Env’t

Advocs. v. Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1142

(9th Cir. 2006) (rejecting the plaintiff’s claim that the

agency’s choice of modeling for salinity was “outdated,” since

it “offer[ed] no evidence that the passage of time ha[d]

decreased its effectiveness”); Theodore Roosevelt, 605 F. Supp.

2d at 273 (“[W]hile it is ‘desirable . . . for agencies to use

the most current and comprehensive data available when making

decisions,’ an agency’s reliance on outdated data is not

arbitrary or capricious, ‘particularly given the many months

required to conduct full [analysis] with [ ] new data.’”

(quoting Vill. of Bensenville, 457 F.3d at 71)). Although the

Court acknowledges that with the passage of seventy years comes

change, and that reliance on data that is “too stale” can amount

to unlawful agency action, see N. Plains Res. Council, Inc. v.

Surface Transp. Bd., 668 F.3d 1067, 1086 (9th Cir. 2011); it

concludes that Mobile Water “forfeited any objection” on this

ground, Pub. Citizen, 541 U.S. at 764-65; as NEPA’s “affirmative

mandate” requires both “[a]ccurate scientific analysis” and

“expert agency comments,” Env’t Def., 515 F. Supp. 2d at 78.

Neither is the Court persuaded that the Corps’ 1988 drought

management planning document put the agency on notice of the

need for updating the 1947 study, as the 1988 document does not

mention that study, instead only briefly recognizing that the

196
benefits of preventing salt water intrusion should be

quantified. See A.R., ECF No. 61 at D-00050045.

Even if Mobile Water wanted the Corps to give salt water

intrusion “more consideration, courts afford ‘considerable

deference to the agency’s expertise and policy-making role’ in

defining its objectives and grant agencies discretion to

determine,” In re ACF Basin, 554 F. Supp. 3d at 1305 (quoting

Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66,

73 (D.C. Cir. 2011)); “the appropriate scope of the analysis

required[,]” Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d

1209, 1215 (11th Cir. 2002). Here, the Corps defined the overall

scope of the FEIS based on the “affected environment,” which

serves as a baseline for identifying the potential environmental

and socioeconomic effects that will likely result from proposed

changes and affect the functioning of the ACT Basin as a whole.

A.R., ECF No. 61 at D-00043908. The level of detail provided in

the FEIS “is commensurate with the intensity, context, and

duration of the potential effects” of the action on a particular

resource or topic in the affected environment. Id. As such, the

Corps defined the “affected environment” as follows:

This ACT Basin EIS includes the Alabama,
Coosa, and Tallapoosa rivers and all areas in
the basin boundaries from the headwaters
downstream to the mouth of the Alabama River,
where it joins the Tombigbee River to form the
Mobile River. The overall scope of the EIS
also addresses the area downstream of the

197
 confluence of the Alabama and Tombigbee
rivers, including Mobile River and Mobile Bay.
The ACT Basin (22,739 sq mi) has approximately
the same drainage area size as the Tombigbee
River basin (20,200 sq mi). Thus, flows from
the ACT Basin are roughly half of the total
flow in the Mobile River downstream of the
juncture of the Alabama and Tombigbee rivers.
This EIS addresses resources downstream from
that point but not to the level of detail of
other resources in the ACT Basin because of
the limited overall effect of operation of the
ACT projects on Mobile River and Mobile Bay
resources.

Id. at D-00043910 (emphasis added). The “rule of reason”

dictates deference to the Corps’ delineation of the FEIS’ scope

and its decision to allocate less discussion to Mobile River and

Mobile Bay. See Busey, 938 F.2d at 195-96. In addition, the

Corps need only analyze impacts with “a reasonably close causal

relationship” to the proposed action, Pub. Citizen, 541 U.S. at

767; and here, there are lengthy distances between the Corps’

most downstream project—Claiborne Lock and Dam—and Mobile River

and Mobile Bay, which make impacts of the Master Manual on salt

water intrusion there “not reasonably foreseeable,” see Sierra

Club v. FERC, 867 F.3d at 1371 (defining “indirect environmental

effects” as those which are “reasonably foreseeable,” i.e.,

“sufficiently likely to occur that a person of ordinary prudence

would take [them] into account in reaching a decision”); A.R.

ECF No. 61 at D-00043967, D-00043971 (stating that the Claiborne

198
Project is 72 miles upstream of Mobile River and 118 miles

upstream of Mobile Bay).

Furthermore, the Corps analyzed stream flow conditions and

minimum flow targets (which impact salinity) for the Alabama

River downstream of Claiborne Locke and Dam, and modeling

results indicate that minimum flow targets south of the

Claiborne Project are met a high percentage of time under all

the alternatives. See A.R. ECF No. 61 at D-00044336-39. Under

the No-Action Alternative, the minimum flow target downstream of

the Claiborne Project would be met 97% of the time, id. at D-

00044337; and 95% of the time under the other alternatives, id.

at D-00044339. So, while the Corps acknowledged in 2007 that

flow reduction can “potentially affect” salt water intrusion in

the Mobile Bay area, id. at D-00049911; and the 1947 study may

have “put the Corps on notice that the phenomenon of salt water

intrusion (caused by low freshwater flows) exists in the Mobile

River and Mobile Bay[,]” Intervenor-Pls.’ Reply, ECF No. 101 at

13; the FEIS’ stream flow modeling supports the Corps rationally

concluding that impacts of the Master Manual on salt water

intrusion at Mobile River and Mobile Bay would be “limited,”

A.R., ECF No. 61 at D-00043910; see also id. at D-00044428 (“For

all alternatives evaluated in detail, the hydrodynamic changes

within Mobile Bay and contiguous estuarine areas are expected to

be minimal or non-detectable, . . . [and] differences in the

199
flow regime at the most downstream points in the ACT Basin

(e.g., Claiborne Lock and Dam) compared to current conditions

would be negligible.”), D-00046639 (“[T]he Mobile-Tensaw Delta

and the Mobile Bay further downstream are not likely to be

affected any differently by the Proposed Action Alternative than

current water management operations in the ACT Basin.”).

Accordingly, the Court concludes that the FEIS’ chosen

amount of analysis on the topic of salt water intrusion from

Mobile Bay does not violate NEPA. See Nevada, 457 F.3d at 93

(“[W]e do not think that the inadequacies to which Nevada points

make the FEIS inadequate.”). That the Corps may continue to

assess potential impacts to salinity levels in this area “as

more information becomes available does not indicate that [it]

failed to take a ‘hard look’ at the environmental consequences

of its proposed action” in the FEIS. Wilderness Soc’y v.

Salazar, 603 F. Supp. 2d 52, 62 (D.D.C. 2009).

f. The FEIS Adequately Analyzes and Discloses
Impacts of the Master Manual on Recreation
and Economic Development at Lake Martin

Finally, the Court assesses four more claims by Intervenor-

Plaintiffs Russell Lands and LMRA that the FEIS failed to

analyze impacts of the Master Manual at Lake Martin. See

Intervenor-Pls.’ Mot., ECF No. 85 at 23-31. Lake Martin is an

APC reservoir on the Tallapoosa River that covers 40,000 acres,

has 880 miles of shoreline in three Alabama counties, and is

200
located near major population centers in Alabama and Georgia,

including Birmingham, Montgomery, Auburn, and Atlanta. Id. at

12. Recognized as a “Treasured Alabama Lake,” Lake Martin offers

“outstanding water quality” to Alabama, and recreation at the

lake provides various economic benefits, including recreation-

based jobs, millions of dollars of recreation-based visitor

spending, and a billion-dollar real estate market. Id. at 12-13.

According to Intervenor-Plaintiffs, these benefits, including

increased recreational spending and demand for real property

around the lake, “are directly correlated with [higher] water

levels during the major recreational seasons in the late spring,

summer, and fall.” Id. However, they claim that when flows from

Allatoona are curtailed under the Master Manual, less water

flows down the Coosa River into Alabama, and this reduction,

combined with downstream flow requirements mandating that APC

make releases from its projects on the Coosa and Tallapoosa

Rivers, will cause lower water levels at APC projects, including

Lake Martin, in the summer and fall. Id. at 13.

Russell Lands and LMRA first argue that the Corps

“improperly limited its analysis of the Manual’s recreational

and economic impacts to” only Corps projects in the ACT Basin,

despite modeling indicating that the Master Manual will cause a

decline in reservoir levels at Lake Martin and an accompanying

impairment of recreation there. Id. at 24. They claim that the

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Corps’ “myopic focus on recreation at Allatoona while ignoring

recreation” and other economic interests at Lake Martin violates

NEPA, as “impacts must be considered throughout the area

impacted.” Id. at 24-25. To support their claim, Russell Lands

and LMRA cite statistics about the dollar amounts spent by

visitors to Lake Martin, compared to visitors to Allatoona Lake,

and the total appraised value of real estate on Lake Martin. Id.

at 12-13, 24. In their related second argument, Russell Lands

and LMRA argue that the FEIS improperly concludes that the

Manual “will have ‘minor beneficial’ impacts at Lake Martin[,]”

which they claim has “no discernable meaning.” Id. at 25-26.

They argue that without studying the Manual’s impacts on the

recreation-based economy at Lake Martin, or at other non-Corps

reservoirs, the Corps’ assertion that lower lake levels will

have “minor beneficial” effects is “entirely unsupported” and

cannot satisfy NEPA’s “hard look” doctrine. Id. at 26.

In addressing their first two arguments, the Court notes at

the outset that Russell Lands and LMRA have alleged

socioeconomic impacts of the Master Manual, not purely economic

ones. While economic and monetary interests alone do not fall

within NEPA’s zone of interests, since “[t]he zone of interest

protected by NEPA is, as its name implies, environmental[,]”

Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 274 (D.C. Cir.

2015); socioeconomic interests do, see Hammond v. Norton, 370 F.

202
Supp. 2d 226, 242-43 (D.D.C. 2005). CEQ regulations state that

when an EIS “is prepared and economic or social and natural or

physical environmental effects are interrelated, then the [EIS]

will discuss all of these effects on the human environment.” 40

C.F.R. § 1508.14. The key word is “interrelated,” as “economic

or social effects are not intended by themselves to require

preparation of an [EIS].” Id.; see also Hammond, 370 F. Supp. 2d

at 243 (“Only when socioeconomic effects somehow result from a

project’s environmental impact must they be considered.”).

Whether an impact on the “human environment” is determined to be

sufficiently “interrelated” to qualify as socioeconomic depends

on the “closeness of the relationship between the change in the

environment and the ‘effect’ at issue.” Metro. Edison Co., 460

U.S. at 772. Here, the alleged environmental impact of the

Manual is decreased lake levels at Lake Martin, which Russell

Lands and LMRA claim directly causes damaging socioeconomic

impacts on recreational opportunities and spending, the job

market, and real property values in the area around the lake.

Intervenor-Pls.’ Mot., ECF No. 85 at 12-13, 24; Intervenor-Pls.’

Reply, ECF No. 101 at 17-18. Therefore, as the Corps concedes,

it was required to analyze both the “interrelated” environmental

and socioeconomic impacts of the Master Manual at Lake Martin in

the FEIS. Defs.’ Reply, ECF No. 102 at 28.

203
 Contrary to Intervenor-Plaintiffs’ claims, however, the

Court concludes that the FEIS sufficiently analyzes the Manual’s

(1) environmental, and (2) socioeconomic impacts at Lake Martin.

The Court begins its analysis by isolating the FEIS’ discussion

of the environmental impacts of the alternatives at Lake Martin,

specifically on lake levels. As Defendants note, the FEIS, based

on modeling for the period of record, discusses the potential

environmental consequences of the various alternatives on flow,

water quantity, and lake levels (i.e., water surface elevations)

at both Corps and APC lakes, including Lake Martin. Defs.’

Cross-Mot., ECF No. 95 at 37-38 (citing A.R., ECF No. 61 at D-

00043808-17, D-00044296-307). This modeling shows that for each

action alternative, “median daily water surface elevations” in

Lake Martin would be expected to “generally match” the guide

curve elevations used by APC 37 for January through June and from

mid-October through December, and from July through mid-October,

those water surface elevations would fall only “slightly below

those for the No Action Alternative in the range of zero to 0.5

[feet].” See A.R., ECF No. 61 at D-00043815-16, D-00044304-07,

D-00044296 (Figure 6.1-28). The FEIS also indicates that daily

water surface elevations for the action alternatives at Lake

37According to the FEIS, “APC actually manages the summer pool
[of Lake Martin] to elevation 489.5 [feet], and the use of that
elevation for the modeling was coordinated with the APC.” A.R.,
ECF No. 61 at D-00044296.
204
Martin at the ninety percent exceedance level “would be nearly

equivalent to elevations for the No Action Alternative[,]” with

the only difference being that between late April and mid-

September, lake levels would be “slightly lower than the No

Action Alternative by amounts varying from zero up to 0.8

[feet].” Id. at D-00043816, D-00044304, D-00044297 (Figure 6.1-

29). The FEIS explains that the “slight differences in water

surface elevations (median and 90 percent exceeded)” between the

action alternatives and the No-Action Alternative are

“attributable to inclusion of a specific strategy for flows to

support downstream navigation” and drought management strategies

expected to benefit the basin as a whole. Id. at D-00043816, D-

00044304. Thus, contrary to Russell Lands’ and LMRA’s claims

that the Corps’ modeling “shows that significantly less water

will be available in Lake Martin during the peak recreation

season from late spring to early fall[,]” and that the Corps

“simply ‘eyeball[ed]’ these modeling results,” Intervenor-Pls.’

Reply, ECF No. 101 at 13-15; the resulting data, including the

two FEIS graphs reproduced in Intervenor-Plaintiffs’ reply

brief, see id. at 14 (reproducing Figures 6.1-28 and 6.1-29,

A.R., ECF No. 61 at D-00044296-97); indicates that there is

minimal difference in daily lake levels between the action

alternatives and the no-action baseline for most of the year,

and only a slight difference between July and mid-October—“a

205
0.6-1.2 foot difference at lake elevations of 480-488 feet[,]”

Defs.’ Reply, ECF No. 102 at 29; A.R., ECF No. 61 at D-00043815-

16, D-00044304-07. Further, the FEIS indicates that the action

alternatives “offer a significant benefit” over the No-Action

Alternative “in terms of the lower [lake] levels expected in

winter and under drought conditions,” Defs.’ Cross-Mot., ECF No.

95 at 39; as “[t]he lowest pool elevation” that is expected

under the action alternatives would “reflect[] an improvement of

about 17.5 [feet] above the lowest lake level expected at Lake

Martin for the No Action Alternative[,]” A.R., ECF No. 61 at D-

00043816. As a result, the Court rejects Intervenor-Plaintiffs’

claim that the Corps never explained “how any reduction in lake

levels can be ‘beneficial’ at Lake Martin[.]” Intervenor-Pls.’

Mot., ECF No. 85 at 25.

Based on this modeling data, the Court has no reason to

doubt the Corps’ conclusion that “[w]ith respect to the entire

ACT Basin area,” including Lake Martin, the action alternatives

“would have inconsequential effects on lake levels compared to

the No Action Alternative under normal conditions and would

generally provide for improved lake levels under extreme drought

conditions compared [to] the No Action Alternative.” A.R., ECF

No. 61 at D-00044471. Instead, the Corps accurately summarized

the impacts of the action alternatives, compared to the no-

action baseline, on “lake level conditions” at Lake Martin using

206
the term “minor beneficial” in a summary table in the executive

summary of the FEIS. Id. at D-00043804 (Table ES-5, “Summary of

Impacts”). The Court therefore disagrees with Intervenor-

Plaintiffs’ labeling of this term as “conclusory” and “not

defined,” Intervenor-Pls.’ Mot., ECF No. 85 at 25-26; as the

data for the period of record, in addition to descriptive

information provided in the pages following the summary table

and other parts of the FEIS, amounts to quantitative and

qualitative “discernable meaning,” see Young, 99 F. Supp. 2d at

75 (finding the requisite “hard look” when the agency goes

“beyond mere assertions” and “fully explicate[s]” its reasoning

and analysis). The Court also rejects Russell Lands’ and LMRA’s

reliance on a 1998 draft appendix, which included a table

analyzing the relationship between seasonal water levels at Lake

Martin and recreational visitor spending, as evidence to

discredit the FEIS’ use of the term “minor beneficial.” See

Intervenor-Pls.’ Mot., ECF No. 85 at 25 (citing A.R., ECF No. 61

at D-00021990). As Defendants note, this decades-old study was

part of an appendix to a never-completed draft EIS that was

prepared “for a different agency decision” analyzing different

alternatives in the 1990s ACT Basin litigation. See Defs.’

Cross-Mot., ECF No. 95 at 39-40 (citing A.R., ECF No. 61 at D-

00021820, D-00021338-725). It thus has no relevance here.

207
 Having accepted the Corps’ “hard look” at environmental

impacts of the action alternatives at Lake Martin, the Court

next turns to the “interrelated” socioeconomic impacts resulting

from slightly decreased lake levels for a few months of the

year. Russell Lands and LMRA argue that given the “adverse”

impacts to lake levels from late spring to early fall—what they

label “peak recreation season”—the FEIS should have studied the

Master Manual’s impacts on “recreation or recreation-based

spending at Lake Martin” but instead “simply declare[d] them

insignificant.” Intervenor-Pls.’ Reply, ECF No. 101 at 13-15;

Intervenor-Pls.’ Mot., ECF No. 85 at 24-25. The Court disagrees,

concluding instead that since the modeling results indicate that

the action alternatives would only cause “inconsequential

effects on lake levels,” A.R., ECF No. 61 at D-00044471; the

FEIS made the logical conclusion to analyze any accompanying

socioeconomic impacts in lesser detail, see Defs.’ Cross-Mot.,

ECF No. 95 at 40. As the FEIS explains under section “6.6

Socioeconomics,” the Corps “decided to complete a preliminary

economic analysis using a qualitative level of detail to

determine if greater detailed analysis was required[,]” but

concluded, “[b]ased on the preliminary analysis results,” that

“more detailed analysis was not warranted . . . .” A.R., ECF No.

61 at D-00044438.

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 Applied to the topic of recreation at Lake Martin, the

Court concludes that, since water levels from July to mid-

October would only be impacted by “slight” reductions and that

Lake Martin would overall experience minor beneficial impacts

under the Master Manual, Intervenor-Plaintiffs’ claim that

significant harm to recreation would causally ensue, see

Intervenor-Pls.’ Reply, ECF No. 101 at 13; is disproved by the

data. As such, the Corps did not need to allocate more space in

the FEIS to analyzing those impacts. 38 See Izaak Walton, 655 F.2d

at 377 (“NEPA does not require federal agencies to examine every

possible environmental [or socioeconomic] consequence. Detailed

analysis is required only where impacts are likely.”). That

Russell Lands and LMRA considered the Corps’ methodology

“flawed” and would have preferred APC’s modeling or the

inclusion of an economic study of recreation impacts at all

reservoirs, see Intervenor-Pls.’ Mot., ECF No. 85 at 24 n.5;

Intervenor-Pls.’ Reply, ECF No. 101 at 14 (citing A.R., ECF No.

61 at D-00044296-97 (Corps’ modeling) and D-00049519-20 (APC’s

modeling)); is irrelevant, as the Corps’ choice of methodology

38Section “6.6 Socioeconomics” of the FEIS notes that “[i]mpact
analyses were evaluated on socioeconomic resource areas relative
to project purposes in the ACT Basin[,]” A.R., ECF No. 61 at D-
00044438; so if Intervenor-Plaintiffs are correct in their
contention that “recreation is not an authorized operating
purpose at Allatoona,” Intervenor-Pls.’ Mot., ECF No. 85 at 23;
then they have directly contradicted their own argument that
recreation should have been analyzed in greater detail.
209
and data need only be reasonable to be deferred to, Colo. River

Cutthroat Trout, 898 F. Supp. 2d at 205. Neither have they shown

that the absence of an in-depth socioeconomic impact study at

Lake Martin renders the Corps’ analysis arbitrary or capricious.

See Nw. Env’t Advocs., 460 F.3d at 1143.

In fact, the FEIS addresses some socioeconomic effects of

the Master Manual, such as the potential impact of lake level

variations on property values and taxes, environmental justice,

and aesthetic resources “with respect to the entire ACT Basin,”

A.R., ECF No. 61 at D-00044471-73; contrary to Intervenor-

Plaintiffs’ claim that only pieces of “the whole” (i.e., Corps

vs. non-Corps projects) were analyzed, Intervenor-Plaintiffs’

Mot., ECF No. 85 at 24-25. The FEIS concludes that the action

alternatives would have “a negligible overall impact on lake

levels, an important aesthetic consideration, under normal

operating conditions[,]” and that there would be “a neutral to

minor positive impact with respect to property values and tax

revenues in the immediate vicinity of the reservoirs[,]”

including at Lake Martin and other non-Corps projects. A.R., ECF

No. 61 at D-00044471-73. As Defendants note, property values and

local tax revenues are “spending of types associated with

recreation[,]” Defs.’ Cross-Mot., ECF No. 95 at 40-41; a concept

further explained in the FEIS, which notes that the lands

bordering reservoirs “have relatively high values and often

210
represent a significant local economic base and an important

source of property tax revenue for local and state

governments[,]” A.R., ECF No. 61 at D-00044471. That the Corps

did not analyze the Manual’s recreational impacts to Lake Martin

or other non-Corps reservoirs in the level of detail desired by

Russell Lands and LMRA is not a reason to set aside the FEIS,

especially since non-Corps reservoirs are operated by APC,

meaning that the Corps does not even have authority to maintain

lake levels there. See, e.g., id. at D-00043784-85 (“Such

measures [regarding operational changes to APC projects] are

beyond the authority of the [Corps] to address.”), D-00043955-59

(discussing APC’s operation and management of Lake Martin).

The Court is likewise not convinced by Russell Lands’ and

LMRA’s third argument that the Corps violated NEPA by failing

“to quantify or estimate” the Master Manual’s “net impacts to

recreation throughout the ACT Basin,”—“net benefits or net

detriments”—particularly “at other reservoirs” that are not

Allatoona. Intervenor-Pls.’ Mot., ECF No. 85 at 27 (emphasis in

original). They claim that this failure violates ER 1105-2-100,

Planning Guidance Notebook (Apr. 22, 2000) [hereinafter “ER

1105-2-100”], which they argue “require[s] assessment of the net

recreational benefits associated with any project or plan[,]”

determined “‘based on the gross value of recreation use of the

resource for the project condition less the gross loss in

211
recreation use caused by the project or plan.’” Id. at 27-28

(quoting ER 1105-2-100 at E-188). By failing to quantify

beneficial recreational impacts at Allatoona, Intervenor-

Plaintiffs argue that the FEIS makes it impossible to compare

those benefits to alleged recreational losses elsewhere in the

basin. Id. at 28. Defendants respond—and the Court agrees—that

“neither NEPA nor the cited Corps regulation imposes any such

duty.” Defs.’ Cross-Mot., ECF No. 95 at 42.

First, the Court rejects Intervenor-Plaintiffs’ contention

that ER 1105-2-100 requires the Corps to assess net recreational

benefits of the Master Manual because it has already concluded

that the ERs are a non-binding general statement of policy. See

supra section IV.A.2.b. ER 1105-2-100 is no exception, as on its

face, it is merely part of the “Principles and Guidelines” used

by the Corps in carrying out its water resources projects. ER

1105-2-100 at 1-1. Thus, the portion cited by Intervenor-

Plaintiffs, to the extent it is applicable at all, provides

guidance, rather than binding requirements, to the Corps in

evaluating whether to participate in projects designed for

recreational purposes. See Intervenor-Pls.’ Mot., ECF No. 85 at

28 (citing ER 1105-2-100 at E-179-199).

Second, NEPA’s required cost-benefit analysis “is concerned

primarily with environmental costs affecting the public, not

with private economic” or socioeconomic costs, such as those

212
borne through reductions in recreational spending or property

values around reservoirs. See Nat’l Wildlife Fed’n v. Marsh, 568

F. Supp. 985, 1000 (D.D.C. 1983). An EIS does not require “a

formal and mathematically expressed cost-benefit analysis” in

economic or monetary terms, Trout Unlimited v. Morton, 509 F.2d

1276, 1286 (9th Cir. 1974); see also Sierra Club v. Stamm, 507

F.2d 788, 794 (10th Cir. 1974) (rejecting the view that an EIS

requires “the fixing of a dollar figure to either environmental

losses or benefits”); and is considered adequate so long as it

conducts a cost-benefit analysis “as it bears upon the function

of insuring that the agency has examined the environmental

consequences of a proposed project[,]” Nat’l Wildlife Fed’n v.

Marsh, 568 F. Supp. at 1000. For reviewing courts to determine

that NEPA’s “hard look” at environmental impacts is satisfied,

they must consider “‘whether the economic [or socioeconomic]

considerations, against which the environmental considerations

are weighed, were so distorted as to impair fair consideration

of those environmental consequences. Without such a showing

there is no review of economic [or socioeconomic] benefits.’”

Id. (quoting S. La. Env’t Council, Inc. v. Sand, 629 F.2d 1005,

1011-12 (5th Cir. 1980)). Here, given the Master Manual’s

“inconsequential effects” on lake levels throughout the ACT

Basin, A.R., ECF No. 61 at D-00044471; and only “slight” impacts

on Lake Martin’s water levels specifically, id. at D-00043816;

213
the Court concludes that the lack of a study quantifying the

potentially resulting “indirect” or “net” recreational impacts

at Allatoona Lake or elsewhere, see Intervenor-Pls.’ Reply, ECF

No. 101 at 15-17; “‘does not change the cost-benefit ratio to

such a degree that it actually distorts the context in which the

environmental analysis occur[red,]’” Nat’l Wildlife Fed’n v.

Marsh, 568 F. Supp. at 1000 (quoting Sand, 629 F.2d at 1013).

The Court’s conclusion is not altered by the cases cited by

Russell Lands and LRMA, “which merely sustain agencies’

assessments of a particular type of environmental impact[,]”

Defs.’ Cross-Mot., ECF No. 95 at 42-43; rather than support the

proposition that socioeconomic or monetary costs and benefits

must be quantified in an EIS, Defs.’ Reply, ECF No. 102 at 30.

This is true for Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir.

2017), on which Intervenor-Plaintiffs heavily rely. See

Intervenor-Pls.’ Reply, ECF No. 101 at 15-16. In that case, the

D.C. Circuit required the FERC to quantitively evaluate the

indirect climate change impacts of its approval of a natural gas

pipeline, specifically the indirect impact of increased

greenhouse gas emissions from natural gas transported by the new

pipeline. Sierra Club v. FERC, 867 F.3d at 1374-75. The D.C.

Circuit found that the FERC had not provided a satisfactory

explanation for why it did not quantify the “total emissions, on

net,” but again, the ask of the agency was, in the EIS, to

214
quantify direct and indirect environmental impacts, rather than

economic, monetary, or socioeconomic impacts. Id. Accordingly,

the Court concludes that the FEIS’ analysis of environmental

impacts, including the resulting minor decreases in water levels

at Lake Martin, was thorough, and not arbitrary or capricious

for not evaluating net recreational impacts.

In their final argument, Russell Lands and LMRA argue that

the Corps failed, pursuant to the duty to evaluate cumulative

impacts under NEPA, to assess “reasonably foreseeable”

operational changes at Lake Martin under a new FERC operating

license for the lake that was finalized on December 17, 2015.

Intervenor-Pls.’ Mot., ECF No. 85 at 29. That license “sets new

operating parameters for Lake Martin by adopting a ‘Conditional

Fall Extension’ (‘CFE’) and higher winter pool levels,” id.;

thereby modifying the lake’s operating curve “to extend the

recreation season under certain hydrologic conditions[,]”

Intervenor-Pls.’ Reply, ECF No. 101 at 18. According to the

FEIS, the Lake Martin FERC relicensing process, which APC

initiated in June 2008 in anticipation of the existing license

expiring on June 8, 2013, was aimed at evaluating “the

possibility of raising the winter guide curve elevation of Lake

Martin or extending the time that Lake Martin is at summer

215
pool.” A.R., ECF No. 61 at D-00043959. 39 APC’s proposal suggested

raising the winter pool at Lake Martin by three feet and

extending the summer pool elevation from September 1 until

October 15. Id. The FERC issued a draft EIS analyzing the

proposal in June 2013, and Intervenor-Plaintiffs argue that

these changes were adopted in December 2015 “with minor

modifications” and with the intent of benefitting recreation and

the recreation-based economy at and around Lake Martin.

Intervenor-Pls.’ Mot., ECF No. 85 at 13, 29. While they

acknowledge that the ACT FEIS—published on November 7, 2014

following the FERC’s 2013 draft EIS but before the license’s

39In explaining the operating changes pursuant to Lake Martin’s
new FERC license, Russell Lands and LMRA cite to an extra-record
exhibit filed by the Alabama Plaintiffs with their motion for
summary judgment. See Intervenor-Pls.’ Mot., ECF No. 85 at 13,
29 (citing Ex. 3, Decl. of Alan L. Peeples, ECF No. 83-3). This
extra-record exhibit is one of seven exhibits, totaling over
seven hundred pages, that the Alabama Plaintiffs filed in
support of their motion. See generally Exs. 1-7, ECF Nos. 83-1—
83-7. However, parties are not allowed to supplement the
administrative record “unless they can demonstrate unusual
circumstances justifying a departure from this general rule.”
City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010)
(citation omitted). As Defendants argue, such extra-record
evidence is appropriate to show standing but has no other use in
an APA case, Defs.’ Cross-Mot., ECF No. 95 at 14 n.1, 44 n.16;
nor have the Alabama Plaintiffs attempted to make a showing of
unusual need to supplement the record, see Am. Wildlands v.
Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008) (elaborating on
the three “unusual circumstances” in which parties may
supplement the record); Intervenor-Defs.’ Cross-Mot., ECF No. 97
at 17 n.7 (“Alabama does not try to justify its resort to extra-
record evidence.”). Accordingly, the Court does not consider any
of these extra-record exhibits on the merits, whether cited by
the Alabama Plaintiffs or, as here, by Intervenor-Plaintiffs.
216
2015 final approval—discusses the FERC re-licensing process,

they argue that the Corps failed to adequately consider “the

pending actions of a sister agency,” specifically, the effects

of the Manual on the proposed operational changes at Lake

Martin, in violation of NEPA. Id. at 29. Russell Lands and LMRA

claim these effects were “foreseeable” since the Corps

“participated in the relicensing process at Lake Martin,”

submitted formal comments on the FERC’s draft EIS in 2013, and

received comments during the ACT EIS process requesting

consideration of the potential changes at Lake Martin. Id. at 30

(citing A.R., ECF No. 61 at D-00043959, D-00049767).

In response, Defendants argue that the Corps “disclosed

what was reasonably foreseeable at the time of its analyses—”

that the FERC relicensing changes, as described in the FEIS,

were a “possibility,” but that NEPA did not require it “to

speculate on the license’s eventual parameters and redo its

modeling,” as no final decision was made on the license until

more than six months after the ACT ROD was issued on May 4, 2015

and more than a year after the issuance of the FEIS. Defs.’

Cross-Mot., ECF No. 95 at 43-44. As such, Defendants note that

the FEIS did not consider “specific future changes in Lake

Martin’s operations” that had not yet been approved by the FERC,

and it instead conducted modeling in accordance with the

existing FERC license, which “was all that was required under

217
NEPA.” Id.; see also A.R., ECF No. 61 at D-00043959 (“A change

in the winter guide curve for Lake Martin was not considered as

part of the ACT WCM update process.”).

NEPA requires agencies proposing a major federal action to

consider the “cumulative impacts,” which the CEQ regulations

define as “the impact on the environment which results from the

incremental impact of the action when added to other past,

present, [and] reasonably foreseeable future actions” of any

agency or person. Young, 99 F. Supp. 2d at 78 (quoting 40 C.F.R.

§ 1508.7 (emphasis added)). “The identification of cumulative

effects is a task committed to the special competency of the

agency preparing an EIS.” Hammond, 370 F. Supp. 2d at 245

(citation and internal quotation marks omitted). Here, Russell

Lands and LMRA take issue with the FEIS’ failure to analyze the

Master Manual’s impacts on only one specific element of the new

FERC license at Lake Martin—the CFE. See Intervenor-Pls.’ Mot.,

ECF No. 85 at 29; Intervenor-Pls.’ Reply, ECF No. 101 at 18-19

(“The [CFE] was definite enough for NEPA analysis.).

The Court concludes that the FEIS’ discussion of the

pending FERC relicensing proposal at Lake Martin complies with

NEPA. Although the Court acknowledges that Intervenor-

Plaintiffs’ correctly note that the Corps “was actually aware of

[the] FERC’s contemporaneous actions at Lake Martin while it was

preparing the FEIS” and that the “re-licensing efforts were

218
‘reasonably definite and contemporaneous’ and had ‘advanced

beyond the point of conjecture and speculation’ when the Corps

released the FEIS[,]” Intervenor-Pls.’ Mot., ECF No. 85 at 30-31

(quoting Prince George’s Cnty., Md. v. Holloway, 404 F. Supp.

1181, 1186 (D.D.C. 1975)); it concludes that impacts associated

with the CLE were not reasonably foreseeable, such that the

Corps was not required to analyze those effects in the FEIS. The

Court is particularly persuaded by Defendants’ claim that the

FERC was originally opposed to including the CLE in the new

license, and only changed its approach in the FEIS it released

in April 2015, many months after the issuance of the ACT FEIS in

November 2014. See Defs.’ Cross-Mot., ECF No. 85 at 44. As

Defendants argue, at the time the ACT FEIS “was prepared and

finalized, the hypothetical ‘conditional fall extension’

proposal appeared likely to be rejected, let alone not accepted

in its precise proposed form[,]” thereby making it “far from

reasonably foreseeable that” the CLE as proposed would

eventually be approved. Defs.’ Reply, ECF No. 102 at 31. Russell

Lands and LMRA ignore this argument in their reply, instead

claiming, without support, that the CFE was “well defined and

known to the Corps” and that the proposed modifications had

“broad support.” Intervenor-Pls.’ Reply, ECF No. 101 at 18-19.

As they themselves note, “effects are reasonably foreseeable if

they are sufficiently likely to occur that a person of ordinary

219
prudence would take [them] into account in reaching a

decision[,]” id. at 18 (citation and internal quotation marks

omitted); and the FERC’s initial opposition to the CFE during

the EIS process negated the likeliness of the CFE’s approval and

the need for the Corps to assess its impacts in the FEIS, see

Defs.’ Cross-Mot., ECF No. 95 at 44 (arguing that the “mere

fact” that relicensing was “pending” did “not mean that the

final contents of that license were reasonably foreseeable and

should have been assessed”); Nat’l Parks Conservation Ass’n v.

United States, 177 F. Supp. 3d 1, 27 (D.D.C. 2016) (“[W]here a

future action is too inchoate to permit an agency to analyze its

impacts, it is not arbitrary and capricious for the agency to

exclude it from, or lessen its relative import in, its

cumulative impacts analysis, even if the agency has labeled the

action ‘reasonably foreseeable.’”). While there “is no litmus

test to determine what should or should not be covered in an

impact statement[,] . . . the totality of all the facts and

circumstances” indicate that Intervenor-Plaintiffs’ cumulative

impacts claim must fail. Holloway, 404 F. Supp. at 1186.

The Court therefore concludes that the Corps reasonably

conducted modeling at Lake Martin using the existing FERC

license, A.R., ECF No. 61 at D-00047052; and adequately informed

the public of the “combination of the changes” that could result

from the adoption of the FERC re-license and the updated ACT

220
Master Manual, Defs.’ Cross-Mot., ECF No. 95 at 45; so as “to

facilitate meaningful comment on the issue[,]” Young, 99 F.

Supp. 2d at 79; see, e.g., A.R., ECF No. 61 at D-00043959

(disclosing the ongoing process of the FERC re-licensing at Lake

Martin and the relevant proposed operational changes), D-

00046831-34 (responding to comments about changes resulting from

the FERC’s relicensing efforts and stating that “[r]evisions

based upon renewed licenses will be updated when necessary”).

“The ‘rule of reason’ requires that consideration be given to

practical limitations on the agency’s analysis, such as the

information available at the time[,]” and that the Corps “may

continue to assess impacts as more information becomes available

[about the new FERC license] does not indicate that [it] failed

to take a ‘hard look’ at the environmental consequences of” the

Master Manual before issuing the FEIS in 2014. Wilderness Soc’y,

603 F. Supp. 2d at 61-62. Further, given that the FERC’s FEIS

was issued after the Corps signed the ACT ROD, it was the FERC’s

responsibility in that EIS to analyze the cumulative impacts

arising from the relationship between the new license and the

updated ACT Master Manual. Since Intervenor-Plaintiffs have

raised no other challenges to the FEIS’ treatment of the Master

Manual’s cumulative impacts analysis, see A.R., ECF No. 61 at D-

00044551-55 (Section 6.10, “Cumulative Effects”); the Court

221
concludes that the Corps’ assessment of such impacts was

reasonable and not arbitrary or capricious.

For all the foregoing reasons disposing of the NEPA claims

advanced by the Montgomery Board, Mobile Water, Russell Lands,

and LMRA, the Court DENIES Intervenor-Plaintiffs’ Joint Motion

for Summary Judgment, ECF No. 85. Because it has also rejected

each of the Alabama Plaintiffs’ “hard look” arguments, the Court

concludes that the Corps adequately took a “hard look” at the

environmental impacts of the Master Manual as mandated by NEPA.

See, e.g., A.R. ECF No. 61 at D-00043804-08 (Table ES-5 “Summary

of Impacts,” summarizing the list of “environmental

consequences” of implementing each alternative that the Corps

considered, “as compared to the No-Action Alternative”).

3. The Corps Adequately Considered All Reasonable
Alternatives in the FEIS

For their final NEPA argument, the Alabama Plaintiffs

contend that Defendants failed to consider an adequate range of

alternatives. See Pls.’ Mot., ECF No. 83 at 59. Specifically,

they argue that the Corps unreasonably excluded consideration of

an alternative, other than the No-Action Alternative, that would

require the Corps to generate minimum amounts of hydropower. Id.

An EIS must “[e]valuate reasonable alternatives to the

proposed action, and for alternatives that the agency eliminated

from detailed study, briefly discuss the reasons for their

222
elimination.” 40 C.F.R. § 1502.14(a); see also 42 U.S.C. §

4332(2)(C)(iii). An alternative is deemed reasonable if it is

“technically and economically practical or feasible and meet[s]

the purpose and need of the proposed action.” 43 C.F.R. §

46.420(b). Consideration of such alternatives is at the “heart”

of the EIS, Nevada, 457 F.3d at 87; and the “existence of a

viable but unexamined alternative renders an [EIS]

inadequate[,]” Morongo Band of Mission Indians v. FAA, 161 F.3d

569, 575 (9th Cir. 1998) (citation omitted). However, “an

alternative is properly excluded from consideration . . . if it

would be reasonable for the agency to conclude that the

alternative does not ‘bring about the ends of the federal

action[,]’” City of Alexandria v. Slater, 198 F.3d 862, 867

(D.C. Cir. 1999) (quoting Busey, 938 F.2d at 195); when the

effects of the alternative “cannot be readily ascertained[,] and

[when] the alternatives are deemed only remote and speculative

possibilities,” Vt. Yankee, 435 U.S. at 551; see also Ctr. for

Biological Diversity v. FERC, 67 F.4th at 1182 (“Because some

alternatives will be impractical or fail to further the proposed

action’s purpose, agencies may reject [such] unreasonable

alternatives after only brief discussion.”). “Nor is an agency

required to undertake a separate analysis of alternatives which

are not significantly distinguishable from alternatives actually

considered, or which have substantially similar consequences.”

223
Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853,

868 (9th Cir. 2004) (citation and internal quotation marks

omitted). Thus, the range of alternatives to be considered is

“not infinite,” City of Grapevine, 17 F.3d at 1506; but is

rather “bounded by some notion of feasibility[,]” see Vt.

Yankee, 435 U.S. at 551 (“Common sense also teaches us that the

‘detailed statement of alternatives’ cannot be found wanting

simply because the agency failed to include every alternative

device and thought conceivable by the mind of man.”).

Courts “must evaluate the adequacy of an EIS discussion of

alternatives according to [the] ‘rule of reason,’ which governs

both ‘which alternatives the agency must discuss’ and ‘the

extent to which it must discuss them.’” Tongass, 924 F.2d at

1140 (quoting Nat. Res. Def. Council, Inc. v. Hodel, 865 F.2d

288, 294 (D.C. Cir. 1988) (emphasis in original)). “As the

phrase ‘rule of reason’ suggests, [courts] review an agency’s

compliance with NEPA’s requirements deferentially[,]” and will

“uphold its discussion of alternatives so long as the

alternatives are reasonable and the agency discusses them in

reasonable detail.” Busey, 938 F.2d at 196. Thus, the Corps’

“detailed discussion of alternatives as it relates to this

highly technical series of decisions, so long as it is not

arbitrary and capricious, should be upheld.” In re ACF Basin,

554 F. Supp. 2d at 1306.

224
 The Corps “bears the responsibility for defining at the

outset the objectives” in updating the Master Manual, Busey, 938

F.2d at 195-96; and its choice of alternatives are then

“evaluated in light of these stated objectives[,]” Slater, 198

F.3d at 867; see also 40 C.F.R. § 1502.13 (requiring the agency

to provide a statement that “briefly specif[ies] the underlying

purpose and need to which the agency is responding in proposing

the alternatives including the proposed action”). Based on this

obligation, the Corps defined the objectives of the update, see

A.R. ECF No. 61 at D-00044226, D-00044196 (listing five defined

objectives for the WCM update); see also supra section II.B.4.

at 35; and pursuant to these objectives, the Corps “formulated

and considered eleven different alternatives [ ] based on

different formulations of management measures, as well as the

no-action alternative that was [ ] based on current operations

and conditions[,]” Defs.’ Cross-Mot., ECF No. 95 at 46 (citing

A.R., ECF No. 61 at D-00044227-28). According to the FEIS, the

formulation strategy used to develop alternatives “involved

starting with the No Action Alternative and adding one measure

at a time, determining the operation for that measure that might

best satisfy the objectives, and then developing another

alternative by adding another measure, or in some instances,

considering a variation of the last added measure.” A.R., ECF

No. 61 at D-00044227. As a result, the Corps intended for the

225
alternatives to build upon each other, “ultimately establishing

the recommended plan for water management in the ACT Basin.” Id.

During this process, some management measures were eliminated

because they did not pass the screening criteria established to

define the scope of the action. Id. at D-00044198. Of the twelve

alternatives, eight were briefly discussed and rejected, while

four alternatives—the No-Action Alternative and Plans D, F, and

G (the Proposed Action Alternative)—were carried forward for

further analysis. See id. at D-00044226-58.

The Alabama Plaintiffs argue that the FEIS’ alternatives

analysis was deficient because it did not consider alternatives

requiring the Corps “to generate minimum levels of hydropower.”

Pls.’ Mot., ECF No. 83 at 59. They claim that “[b]y failing to

consider an alternative that would serve Allatoona’s hydropower

purpose in that way, the Corps failed to consider an adequate

range of alternatives for its NEPA analysis.” Id. Defendants

counter that “[t]he Corps’ consideration of alternatives was

fully reasonable and complied with NEPA.” Defs.’ Cross-Mot., ECF

No. 95 at 47. They argue that “every alternative studied in the

FEIS includes hydropower generation[,] and its treatment of

hydropower generation throughout the document is reasonable. . .

. . Therefore the FEIS did not need a separate alternative that

required additional hydropower generation.” Id. at 47-48. The

Alabama Plaintiffs object to this “non-sequitur” in their reply,

226
arguing that “the action zones in each proposal allowed the

Corps to generate zero hydropower if it so desired.” Pls.’

Reply, ECF No. 99 at 34-35. However, because the Court has

already rejected the claim that the Corps has discretion under

the Master Manual to generate zero hydropower, and for the

additional reasons discussed below, the Court concludes that the

Alabama Plaintiffs have not shown that the Corps’ selection and

discussion of the alternatives was arbitrary or capricious.

Applying the deferential “rule of reason,” the Court

concludes that the twelve alternatives the Corps considered

“enabled reasoned choices considering the objectives” identified

in the FEIS, especially in light of the Corps’ “competing goals”

and “the extensive explanations that the Corps provided for its

screening decisions.” Id. at 1306; see, e.g., A.R., ECF No. 61

at D-00044198-99 (Section 4.1, “Management Measures Eliminated

from Consideration”), D-00044199-26 (Section 4.2, “Management

Measures Considered for Further Evaluation”), D-00044226-58

(Section 4.3, “Basin-wide Alternatives Evaluated,” and Section

5, “Description of the Proposed Action and Alternatives”).

First, the record supports the Corps’ claim that every

alternative studied in the FEIS “involved satisfying the

hydropower purpose, through peaking operations as well as

through continuous operation of certain generating units[.]”

Defs.’ Reply, ECF No. 102 at 21 n.10; see A.R., ECF No. 61 at D-

227
00044226-58. Next, the Court looks to the objectives of the

proposed action, as “[t]he range of alternatives that must be

considered in the EIS need not extend beyond those reasonably

related to the purposes of the project.” Westlands, 376 F.3d at

868 (citation and internal quotation marks omitted). As relevant

here, an objective of the Master Manual update was to “[i]mprove

system performance to achieve congressionally authorized project

purposes[,]” A.R., ECF No. 61 at D-00044226; with the FEIS

specifically stating that each alternative “should address one

or more of the congressionally authorized project purposes[,]”

id. at D-00043868. Since “[h]ydropower is one of the

congressionally authorized purposes in the ACT Basin[,]” the

FEIS explains that “[r]ecommended measures for off-peak

hydropower operations to achieve other objectives or benefits

were determined to be inconsistent with the authorized

hydropower purpose” and “recommended measures that would dictate

non-peak hydropower operations or would otherwise have a

significant adverse effect on the hydropower function were not

carried forward for detailed consideration.” Id. at D-00043784.

Thus, while there are changes to hydropower operations under the

Master Manual, each action alternative contemplated generating

hydropower, including the Proposed Action Alternative. See supra

section IV.B.2.b. (concluding that the FEIS properly modeled

hydropower impacts resulting from the modified action zone

228
hydropower generation schedule); A.R., ECF No. 61 at D-00046477

(“Although the Proposed Action Alternative would result in an

insignificant decrease (approximately 0.6%) in hydropower

production, the authorized project purpose would continue to be

met year round.”). As a result, the FEIS did not need to

consider a separate alternative that alone contemplated minimum

hydropower production, as such a concern was already embodied in

each of the alternatives. See Native Ecosystems Council v. U.S.

Forest Serv., 428 F.3d 1233, 1249 (9th Cir. 2005) (“NEPA does

not require federal agencies to consider alternatives that are

substantially similar to other alternatives.”); Westlands, 376

F.3d at 868 (same conclusion for alternatives “not significantly

distinguishable from alternatives actually considered”).

Since the Alabama Plaintiffs do not claim that the Corps

“improperly defined its objectives,” Slater, 198 F.3d at 867;

the Court agrees with Defendants that “[i]t was reasonable for

the Corps to evaluate hydropower in the alternatives as

undertaken in the FEIS,” since this evaluation entailed “a

recognition that the Corps must balance hydropower with other

basin purposes, and need not prioritize hydropower at the

expense of other project purposes,” Defs.’ Cross-Mot., ECF No.

95 at 48; see also A.R., ECF No. 61 at D-00044198 (explaining

that the Corps cannot “prioritize project purposes,” except for

flood risk management during a flood event, and that any measure

229
that “recommended prioritization of project purposes was not

carried forward for further consideration”), D-00043979

(explaining that droughts experienced over the past several

decades have revealed that during extended low-flow periods, ACT

projects’ hydropower operations did not previously “provide

sufficient flexibility to adequately meet other authorized

purposes[,]” thus providing the impetus for the resulting

changes in the Master Manual).

Accordingly, because the record demonstrates that

Defendants properly defined the objectives of the Master Manual

update and identified alternatives that would accomplish those

objectives while eliminating those that would not, the Alabama

Plaintiffs’ challenge to the adequacy of the Corps’ alternatives

analysis must fail. See Custer, 256 F.3d at 1041; Busey, 938

F.2d at 198. The fact that the FEIS “may not have considered a

specific alternative preferred by” the Alabama Plaintiffs, i.e.,

one focused solely on minimum levels of hydropower, “is simply

not grounds for finding that the agency failed to meet its

obligations in preparing the [FEIS], or that the agency’s

decision was ‘arbitrary and capricious.’” City of Roseville v.

Norton, 219 F. Supp. 2d 130, 170 (D.D.C. 2002), aff’d, 348 F.3d

1020 (D.C. Cir. 2003); see also In re ACF Basin, 554 F. Supp. 3d

at 1306 (stating that the Corps is not required to consider a

party’s “preferred alternatives” or “to analyze any specific

230
number or scope of alternatives”); Env’t Def., 515 F. Supp. 2d

at 87 (concluding that the plaintiffs failed to show that the

Corps’ rejection of other alternatives for a flood control

project in Missouri “suggest[ed] a lapse of rational

decisionmaking”); Order, Georgia v. U.S. Army Corps of Eng’rs,

No. 1:14-cv-03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61 at 43

(concluding in separate litigation over the ACT Manual “that the

Corps complied with NEPA in setting the scope of the update and

considered ample alternatives while excluding others”).

For all these reasons, the Court GRANTS summary judgment to

Defendants and Intervenor-Defendants on the Alabama Plaintiffs’

and Intervenor-Plaintiffs’ NEPA claims, concluding and agreeing

with Defendants that the Corps’ “complex, multi-year, and

iterative study process,” which involved “sophisticated

modeling” and several rounds of public comment, and culminated

in “thousands of pages of data and analysis[,]” satisfies NEPA’s

procedural requirements. Defs.’ Reply, ECF No. 102 at 17; see

also In re ACF Basin, 554 F. Supp. 3d at 1307 (concluding in the

ACF case that the Corps fulfilled its obligations under NEPA to

identify potential alternatives, subject those alternatives to

“a thorough analysis,” and consider potential environmental

impacts, and that “simply” disagreeing with “the Corps’ analysis

or methodological choices” is insufficient to overturn the

federal action absent “substantial procedural flaws”).

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 C. Defendants Did Not Violate the APA

The Court lastly addresses the Alabama Plaintiffs’

remaining claims under the APA, taking into consideration the

related amicus arguments provided by AMEA. The Alabama

Plaintiffs make two overarching arguments as to why the Corps

has violated the APA in adopting the Master Manual: the Corps

(1) acted in excess of its statutory authority; and (2) acted

arbitrarily and capriciously by departing from its prior

operational precedents without a reasoned basis for doing so.

Pls.’ Mot., ECF No. 83 at 36. Pursuant to the APA, the Court

reviews these challenges to ensure the Corps acted within the

scope of its statutory authority, 5 U.S.C. § 706(2)(C); and that

its decision was based on a consideration of all the relevant

factors and was supported by substantial evidence in the record,

see State Farm, 463 U.S. at 43-44. In other words, the Court

must decide, “on the basis of the record the agency provides,

whether [this] action passes muster under the appropriate APA

standard of review.” Fla. Power & Light Co. v. Lorion, 470 U.S.

729, 744, 105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985).

1. The Master Manual Complies with the Corps’
Statutory Obligations and Properly Balances the
Authorized Project Purposes of the ACT Basin,
Including at the Allatoona Project

The Alabama Plaintiffs first argue that under the Master

Manual, the Corps is operating the Allatoona Project “contrary

232
to the direction of Congress in the Flood Control Act of 1941.”

Pls.’ Mot., ECF No. 83 at 36. They contend that the Manual

“‘materially change[s]’ the nature of the Allatoona Project” by

“substantially deemphasizing” the congressional authorized

project purposes of hydropower generation and navigation “for

the sake of recreation.” Id. at 36-43. By advancing recreation

over hydropower and navigation, the Alabama Plaintiffs argue

that the Corps has engaged in an unlawful “reordering of project

purposes” without congressional approval and has thus exceeded

its authority in violation of the APA. See id. In response to

these claims, Defendants argue that the Master Manual is

“reasonable” and “consistent” with all congressional

authorizations, including but not limited to the Flood Control

Act of 1941. See Defs.’ Cross-Mot., ECF No. 95 at 13-18. They

contend that for the Allatoona Project, recreation was

appropriately considered and did not “illegally supplant” other

authorized project purposes, including hydropower (to which the

Corps only made small, authorized adjustments) and navigation

(to which the Corps made no substantive operational changes).

See id. at 18-27; Defs.’ Reply, ECF No. 102 at 7 (“Plaintiffs

have created any purported ranking of project purposes out of

whole cloth.”). Because they argue that the Master Manual does

not “abandon[]” hydropower, navigation, or any other project

purpose, and instead reasonably explains the Corps’ actions “in

233
balancing all authorized purposes through its updated

operations[,]” Defendants claim that the highly technical Manual

is entitled to deference. Defs.’ Cross-Mot., ECF No. 95 at 27;

see Defs.’ Reply, ECF No. 102 at 14-17. The Georgia Parties

likewise argue that the Master Manual is consistent with the

Corps’ statutory obligations and does not “abandon,” “reorder,”

or “deemphasize” authorized project purposes but rather properly

balances them within the Corps’ discretion. See Intervenor-

Defs.’ Cross-Mot., ECF No. 97 at 9-20.

The Corps, as a federal agency, is “a creature of

statute[,]” and in operating its various reservoirs, it has

“only those authorities conferred upon it by Congress.” Michigan

v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001). It is established

that the Corps operates projects in the ACT Basin “pursuant to

‘specific’ and ‘general’ authorities established by Congress.”

In re ACF Basin, 554 F. Supp. 3d at 1288. “Specific authorities

are established in the original legislation authorizing

construction of a certain project” and can be thought of as

creating the project-specific authorized purposes. Id. These

authorizing statutes often “refer to and incorporate ‘reports’

that the Corps presents to Congress as part of the authorization

process to provide recommendations regarding the benefits of the

projects.” Id. Specific authorities are supplemented by general

authorities, which “apply to all federal agencies or Corps

234
reservoirs,” id. at 1288-89; and include the Fish and Wildlife

Coordination Act of 1958, the Endangered Species Act of 1973,

the Flood Control Act of 1944, the Water Pollution Control Act

Amendments of 1972, and the Water Supply Act of 1958, A.R., ECF

No. 61 at D-00043779; see also 33 C.F.R. § 222.5(f)(1)

(requiring water control plans to consider “all applicable

Congressional Acts,” including those “established after project

construction”). The FEIS lists the seven authorized project

purposes applicable to the entire ACT Basin that derive from

specific and general authorities: (1) flood risk management;

(2) hydropower; (3) navigation; (4) fish and wildlife

conservation; (5) recreation; (6) water quality; and (7) water

supply. A.R., ECF No. 61 at D-00043779. It identifies the first

three as the “expressly authorized project purposes” of the ACT

Basin and the latter four as the general “operational

objectives” that supplement the three specific ones. Id.

To determine the specific and general authorities

applicable to the Allatoona Project, the Court begins its

analysis with the Flood Control Act of 1941, the statute which

authorized the Corps to build and operate Allatoona Lake and

Dam. See Pub. L. No. 77-228, 55 Stat. 638, 638-41 (1941). That

Act stated that “[t]he plan for the Allatoona Reservoir . . .

for flood control and other purposes” was to be carried out “in

accordance with the recommendation of the Chief of Engineers in

235
House Document Numbered 674,” id. at 641; which in turn provided

the Corps’ recommendation to Congress that construction of the

Allatoona Project be authorized “for the control of floods,

regulation of stream flow for navigation, and the development of

hydroelectric power,” A.R., ECF No. 61 at D-00013497.0002. As a

result, the Allatoona Reservoir’s project-enabling legislation,

the Flood Control Act of 1941, authorized it as a “multipurpose

project” for the specific authorities of flood risk management,

hydropower, and navigation. Id. at D-00044902.

However, it is not just the Flood Control Act of 1941 that

“unambiguously” identifies the congressionally authorized

purposes at Allatoona. Intervenor-Defs.’ Reply, ECF No. 103 at 6

(quoting Pls.’ Reply, ECF No. 99 at 8); Defs.’ Cross-Mot., ECF

No. 95 at 14 (stating that the “Basin- and Project-specific

authorities are not the entirety of the legislative landscape”).

The above-referenced general statutory authorities, applicable

to all Corps projects, also make “recreation, water quality,

fish and wildlife conservation, and water supply” authorized

project purposes at Allatoona, even though those authorities

were established after Allatoona’s construction began. A.R., ECF

No. 61 at D-00044902, D-00044948; 33 C.F.R. § 222.5(f)(1). The

Allatoona Project and its seven purposes were later incorporated

into Congress’ plan for the whole ACT Basin, enacted in the

River and Harbor Act of 1945, which authorized the development

236
of the basin for the purposes of “navigation, flood control,

power development, and other purposes, as outlined in House

Document Numbered 414[.]” Pub. L. No. 79-14, § 2, 59 Stat. 10,

17 (1945); see also A.R., ECF No. 61 at D-00053821 ¶ 7 (H.R.

Doc. No. 414, 77th Cong. (1941) (calling for “a comprehensive

plan” of development of the ACT Basin system “for navigation,

hydroelectric power, flood control, and other purposes”).

Using this historical context and the text of these

enabling statutes, the Court concludes that the Corps has “a

good deal of discretion” in its management of the ACT Basin to

“balance the[] various [specific and general] interests” at play

at its numerous reservoirs, including at the Allatoona Project.

Ubbelohde, 330 F.3d at 1027. The text of the authorizing

legislation does not provide “a method of deciding whether the

balance actually struck by the Corps in a given case is correct

or not.” Id. For example, the Flood Control Act of 1941 simply

states that the Allatoona Reservoir should be constructed “for

flood control and other purposes” as outlined in House Document

No. 674, Pub. L. No. 77-228, 55 Stat. 638, 641 (1941); which in

turn lists, in no apparent order of importance, flood risk

management, navigation, and hydropower generation as the three

specific authorized purposes of the project, A.R., ECF No. 61 at

D-00013497.0002; see also id. at D-00044902 (describing the

Allatoona Project as “multipurpose”). Similarly, the River and

237
Harbor Act of 1945 created a development plan for the entire ACT

Basin for “navigation, flood control, power development, and

other purposes,” again in no ranking order. Pub. L. No. 79-14, §

2, 59 Stat. 10, 17 (1945); see also In re ACF Basin, 554 F.

Supp. 3d at 1302 (“Congress did not order the priorities of the

project purposes in the Rivers and Harbors Act[.]”). The Court

agrees with Defendants that this textual evidence demonstrates

that these two laws do not “rank, prioritize, emphasize, or

otherwise provide direction for the Corps to prefer one purpose

or another[,]” but rather “merely list[]” and “discuss” all

three specific purposes—hydropower, navigation, and flood risk

management—“in general terms.” Defs.’ Reply, ECF No. 102 at 8-9.

Furthermore, neither statute indicates how to treat any of

the generally applicable authorized purposes as compared to the

specific ones, nor could they, since all of the general

statutory authorities—“P.L. 78-534, P.L. 85-500, P.L. 85-624,

P.L. 92-500, and P.L. 93-205”—were enacted later in time than

the Flood Control Act of 1941 and the River and Harbor Act of

1945 (with the exception of the Flood Control Act of 1944).

A.R., ECF No. 61 at D-00044902. Although there is a textual

argument to be made that later-in-time authorities are broadly

encompassed by the “and other purposes” language that appears in

both enabling statutes, the Corps’ policy settles the issue, as

it “states that legally authorized purposes recognized after

238
project construction receive appropriate consideration,” again

in no specified ranking order, “when making water control

decisions just as those for which costs have been allocated.”

Id. at D-00043977; 33 C.F.R. § 222.5(f)(1).

Therefore, the principal requirement for the basin itself

and at the Allatoona Project is that the Corps consider, through

the proper procedures and a transparent public process, each

authorized purpose in order to strike an appropriate balance for

WCM updates. See In re ACF Basin, 554 F. Supp. 3d at 1302 (“The

Corps has significant discretion to balance the often competing

purposes at its multi-purpose reservoirs.”); Ubbelohde, 330 F.3d

at 1027 (requiring courts to “review the Corps’ decisions to

ensure that it considered each of the[ authorized] interests

before making a decision”); accord In re Operation of Mo. River

Sys. Litig., 421 F.3d 618, 629 (8th Cir. 2005). Consistent with

this mandate, the Corps did “not assign priorities to [ ]

project purposes” in the Master Manual, but instead,

“consider[ed] all of the authorized purposes when making

[balanced] water management decisions in the basin” so as to

minimize conflict “between the individual authorized purposes.”

A.R., ECF No. 61 at D-00053478. The Court does not conclude,

however, as the Alabama Plaintiffs claim, that the Corps has

“virtually unreviewable discretion to ‘balance’ project

purposes.” Pls.’ Reply, ECF No. 99 at 9. Rather, the Court has

239
concluded that the Corps is empowered “to develop a Master

Manual to describe how it will operate the [ACT] system to

balance conflicting purposes[,]” In re ACF Basin, 554 F. Supp.

3d at 1289 (citing 33 U.S.C. § 709); and that at the Allatoona

Project, there are seven combined general and specific

authorized project purposes, A.R., ECF No. 61 at D-00044902.

On the “balancing” point, the parties present opposing

views of South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir.

2003), a case involving state challenges to the Corps’

management of the Missouri River. Id. at 1019. In that case, the

Eighth Circuit analyzed the Flood Control Act of 1944 to

determine that its text “sets up a balance between” flood

control and navigation, which it identifies as “the dominant

functions of the River’s reservoir system[,]” and recreation and

other interests, which it calls the “secondary uses” provided by

the Act. Id. at 1027 (citing ETSI Pipeline Project v. Missouri,

484 U.S. 495, 512, 108 S. Ct. 805, 98 L. Ed. 2d 898 (1988)). The

Eighth Circuit determined that the Flood Control Act of 1944

“provides some law to apply,” although given its “minimal

guidance,” courts need only ensure that the Corps gives equal

consideration to project purposes, which does not necessarily

amount to “equal results.” Id. at 1027, 1031. Ultimately, based

on the evidence, including the legislative history and “the

sequential listing of interests” in the text of the Act, the

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Eighth Circuit concluded that for the Missouri River system,

“the Corps’ primary concerns should be flood control and

navigation” before recreation. Id. at 1032. The Alabama

Plaintiffs argue that Ubbelohde indicates that the Corps has

“limited” authority to operate its projects for certain purposes

and “is precluded, at the very least, from abandoning those

project purposes in either a de facto or de jure manner.” Pls.’

Mot., ECF No. 83 at 41. The Georgia Parties claim, however, that

Ubbelohde supports theirs and Defendants’ argument that the

Flood Control Act of 1941 “does not dictate the balance of

purposes” or the “‘priority the Corps can or must give to

different interests[.]’” Intervenor-Defs.’ Reply, ECF No. 103 at

6-7 (quoting Ubbelohde, 330 F.3d at 1032).

The Court agrees with Defendants and Intervenor-Defendants

that, as with the Flood Control Act of 1944 at issue in

Ubbelohde, the Flood Control Act of 1941, the authorizing

legislation for Allatoona, “provides no basis to determine

whether the balance the Corps struck in the ACT Manual is

appropriate.” Intervenor-Defs.’ Reply, ECF No. 103 at 7;

Ubbelohde, 330 F.3d at 1027. Rather, the Flood Control Act of

1941 is even less helpful than the Flood Control Act of 1944, as

the 1944 Act textually references both specific and general

authorities, thereby “set[ting] up a balance” between dominant

and secondary interests, Ubbelohde, 330 F.3d at 1027; whereas

241
the 1941 Act, in conjunction with House Document No. 674, only

enumerates flood risk management, hydropower, navigation, “and

other purposes” as the authorized project purposes at Allatoona,

since the general authorities went into effect later in time.

At the same time, however, the Court agrees with the

Alabama Plaintiffs that Ubbelohde and a later Eighth Circuit

case, In re Operation of Missouri River System Litigation, 421

F.3d 618 (8th Cir. 2005), provide support for the contention

that under the APA, the Corps is prohibited from wholly

“reorder[ing]” and/or “abandon[ing]” Allatoona’s seven

congressionally authorized project purposes. Pls.’ Reply, ECF

No. 99 at 9. Even if the Court were to adopt the Eighth

Circuit’s divide between dominant and secondary uses of a

reservoir system, for example labeling Allatoona’s “expressly

authorized project purposes” of hydropower, flood risk

management, and navigation as the dominant functions, and the

later in time “operational objectives” of recreation, water

quality, water supply, and fish and wildlife conservation as the

secondary uses, A.R., ECF No. 61 at D-00043779; the Court agrees

that the Corps cannot abandon any of these priorities—especially

the “dominant” ones, see In re Operation of Mo. River, 421 F.3d

at 629 n.7 (“If, due to extreme conditions, the Corps is faced

in the future with the unhappy choice of abandoning flood

control or navigation on the one hand or recreation, fish and

242
wildlife on the other, the priorities established by the [Flood

Control Act of 1944] would forbid the abandonment of flood

control or navigation.”). The question thus becomes whether the

Alabama Plaintiffs are correct that at the Allatoona Project,

the Master Manual abandons the “dominant” authorized project

purposes of hydropower and navigation in favor of the

“secondary” interest of recreation. See id. (explaining that

changes amounting to “some more limited degree of support for”

dominant functions “could be held to constitute ‘abandonment’”).

For the reasons explained below, the Court concludes that

under the Master Manual, the Corps has not actually or

functionally abandoned or deemphasized the congressionally

authorized project purposes of (1) hydropower, and (2)

navigation at the Allatoona Project, nor has it “reordered” or

“materially altered” them in any impermissible way. Instead, the

Court agrees with Defendants that the Corps crafted “modest

incremental changes to” the ACT Master Manual that appropriately

considered and balanced the various applicable specific and

general project purposes, and therefore “in no way has exceeded

its authority.” Defs.’ Reply, ECF No. 102 at 8.

a. The Master Manual Does Not “Deemphasize”
Hydropower at the Allatoona Project

The Alabama Plaintiffs argue that the Master Manual should

be set aside because it “substantially deemphasizes the

243
congressionally authorized purpose of hydropower generation” at

the Allatoona Project. Pls.’ Mot., ECF No. 83 at 37. They claim

that under the Master Manual, the Corps plans to raise lake

levels “to the maximum extent possible” by reducing releases

from Allatoona Dam, implementing new action zones, using a new

guide curve or “fall phased draw down” that holds water in

Allatoona later in the year, and “asserting unprecedent

discretion not to generate any power” via changes to hydropower

generation schedules, all of which they claim “changes Allatoona

from a power project with incidental recreation benefits to a

recreational project with incidental power benefits.” Pls.’

Reply, ECF No. 99 at 10; Pls.’ Mot., ECF No. 83 at 27. To

support their argument, the Alabama Plaintiffs pull language

from the FEIS to argue that a stated “goal of the new Manual is

to have ‘substantially higher lake elevations’ than historical

averages[,]” Pls.’ Mot., ECF No. 83 at 27 (citing A.R., ECF No.

61 at D-00044278); and that the Corps’ intent behind the new

action zones—the source of the Corps’ alleged newfound

discretion to generate zero hydropower—is “‘to manage the lake

at the highest level possible for recreation and other’

unspecified ‘purposes’ to the detriment of hydropower generation

releases,” id. at 28 (citing A.R., ECF No. 61 at D-00044402).

They claim that the resulting reduction in hydropower and

downstream flows occurs at various levels in all seasons but “is

244
especially acute” during the August to November “critical low-

flow period[]” “when peak hydropower and downstream flow support

are needed most.” Id. at 38. By eliminating minimum hydropower

requirements, “substantially reduc[ing] the volume of water

available for hydropower[,]” and reallocating that storage to

benefit recreation, the Alabama Plaintiffs contend that the

Master Manual “constitutes a ‘material alteration’ in its

operation” and in Allatoona’s authorized project purposes that

cannot occur without prior congressional approval. Id. at 37,

39-40, 43; Pls.’ Reply, ECF No. 99 at 10.

In response, Defendants argue that “hydropower operations

under the Master Manual are similar to historical norms and not

the drastic departure that Plaintiffs suggest.” Defs.’ Reply,

ECF No. 102 at 11. They contend, like the Georgia Parties, that

impacts to hydropower are “minor,” “modest,” and “small,” and

“fully consistent with the general congressional directive to

operate the ACT projects for multiple purposes, including but

not limited to hydropower generation.” Defs.’ Cross-Mot., ECF

No. 95 at 20; Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 13-14.

As a result, they claim that the Alabama Plaintiffs “cannot

credibly contend [that] the minor operational adjustments in the

ACT Manual constitute fundamental or material changes” to the

authorized project purpose of hydropower, Intervenor-Defs.’

Cross-Mot., ECF No. 97 at 15; or that such changes, actually

245
“contemplated for drought operations[,] were [solely] intended

to benefit recreation[,]” Defs.’ Cross-Mot., ECF No. 95 at 20.

The Corps issued the updated Master Manual pursuant to 33

C.F.R. § 222.5, which requires the Corps to develop WCMs “to

conform with objectives and specific provisions of authorizing

legislation and applicable Corps of Engineers reports.” 33

C.F.R. § 222.5(f)(1). At the same time, “[i]t has long been the

custom of Congress to approve” Corps projects on the basis of

“preliminary plans and to authorize the Chief of Engineers to

make such modifications as later studies indicate are

necessary.” United States v. 2,606.84 Acres of Land, 432 F.2d

1286, 1292 (5th Cir. 1970), cert. denied, 402 U.S. 916, 91 S.

Ct. 1368, 28 L. Ed. 2d 658 (1971); see also United States v.

255.25 Acres of Land, 712 F.2d 1263, 1266-67 (8th Cir.

1983); Creppel v. U.S. Army Corps of Eng’rs, 670 F.2d 564, 572

(5th Cir. 1982). “The reports with reference to which such

projects are adopted are ‘never intended to be the final plans

for the . . . project,’ United States v. 2,606.84 Acres of

Land, 432 F.2d 1292, but are merely ‘planning document[s] that

explore[] in general rather than detailed terms the feasibility

of the engineering and economic aspects of the Project,’ United

States v. 255.25 Acres of Land, 712 F.2d at 1266.” Britt v. U.S.

Army Corps of Eng’rs, 769 F.2d 84, 89 (2d Cir. 1985). As such,

the rule is that “[e]ven when a project’s purpose is authorized

246
by Congress, the executive officer charged with responsibility

for the project may modify its purpose unless this action is so

foreign to the original purpose as to be arbitrary or

capricious.” Creppel, 670 F.2d at 572 (emphasis added).

Otherwise, it would “impart[] both stupidity and impracticality

to Congress to conclude that the [authorizing] statute impliedly

forbids any change in a project once approved, and thus prevents

the agency official from providing for the unforeseen or the

unforeseeable, . . . or from adjusting for changes in physical

or legal conditions.” Id. at 572-73; see also 33 C.F.R. §

222.5(f)(3) (allowing revisions “as necessary” to WCMs due to

“developments in the project area and downstream” and changes in

technology, legislation, and “other relevant factors”).

Both Congress and the Corps have long recognized that the

Corps’ discretion to make certain improvements to its authorized

water projects “is an important delegation of [its] authority.”

See A.R., ECF No. 61 at SUPPAR022996; H.R. Rep. No. 2165,

Authorizations for Reservoirs, Levees, and Flood Walls for Flood

Control, Flood Control Act of 1946, 79th Cong. (1946) (“[I]t has

been the policy of . . . the Congress to recognize that changing

conditions often make plans obsolete, and to avoid undue

rigidity they have given . . . the Chief of Engineers the

authority to modify plans as may be found necessary and

desirable.”). However, post-authorization changes are subject to

247
certain restrictions, Env’t Def. Fund, Inc. v. Alexander, 467 F.

Supp. 885, 899 (N.D. Miss. 1979), aff’d, 614 F.2d 474 (5th Cir.

1980); and any change must “serve the original purpose of the

project[,]” Creppel, 670 F.2d at 573; such that modifications

that “[m]aterially alter the scope or function of the project”

or “change the authorized plan of improvement” require prior

congressional approval, A.R., ECF No. 61 at SUPPAR022997.

“No hard-and-fast rule can be cited as governing when a

project modification should be presented to Congress for further

consideration.” Alexander, 467 F. Supp. at 901; see also A.R.,

ECF No. 61 at SUPPAR022997 (calling it “a matter of judgment”

whether a proposed post-authorization change “is or is not a

permissible one”). The Corps has provided some guidance in a

1951 Chief of Engineers’ report regarding “the scope of

executive authority to modify projects previously approved by

Congress,” and reaffirmed these principles in a later 1969 legal

memorandum to the Special Assistant to the Secretary of the

Army. Alexander, 467 F. Supp. at 900-01. Based on this guidance,

material alterations include “the deletion or addition of

project purposes where not otherwise authorized by law, or

substantial changes in the relative sizes of project purposes,”

whereas “engineering changes” which involve changes to “the

location, dimension, method of construction, minor variations in

the allocation of storage for the various project purposes, and

248
changes in the size and scope of the project to meet needs which

differ from those which existed at the time of authorization”

are permissible “so long as the scope and function of the

project are not materially altered.” Id. at 901 (quoting the

1969 memorandum—A.R., ECF No. 61 at SUPPAR022997). In sum, the

Corps’ authority to make changes to water projects without first

seeking congressional approval is broad but not unlimited.

The Court turns to the administrative record to determine

whether the Alabama Plaintiffs are correct in arguing that the

Corps exceeded its statutory authority by materially changing,

without congressional approval, the hydropower “purpose or

function” of the Allatoona Project “for the sake of recreation.”

Pls.’ Mot., ECF No. 83 at 37, 42 (quoting Alexander, 467 F.

Supp. at 908-09). For the Alabama Plaintiffs to successfully

argue that “the Corps has illegally shifted priority from

hydropower to recreation,” the record must show that:

(1) “recreation is a focus of the updated manuals,” such that

reductions in hydropower operations “were intended to benefit

recreation[;]” or (2) such reductions were so significant in

relative size so as to have the effect of “substantially

deemphasizing” hydropower while elevating recreation. Defs.’

Cross-Mot., ECF No. 95 at 20; A.R., ECF No. 61 at SUPPAR022997.

For the reasons explained below, the Court concludes that

neither argument is supported by the record.

249
 i. Hydropower Was Not Abandoned or
Reordered for the Sake of
Recreation, Which Was
Appropriately Considered Among
Allatoona’s Other Project Purposes

The Alabama Plaintiffs claim that the Master Manual’s

“stated goal is to cut back on releases and hold as much water

in the [Allatoona L]ake as possible so the Corps can promote

local recreational uses of the lake” to the alleged illegal

“diminishment of hydropower generation[.]” Pls.’ Mot., ECF No.

83 at 11. However, the FEIS does not identify recreation as an

objective of the Master Manual, see, e.g., A.R., ECF No. 61 at

D-00043862-63 (Section 1.2, “Purpose and Need”), D-00043868-70

(screening criteria), D-00044226, D-00044196; and it explains

that any proposed changes “that would significantly affect other

project purposes or . . . would require . . . congressional

authorization[,]” are “not consistent with the purpose and need

of updating the WCM[,]” see id. at D-00043863 (“[T]his EIS does

not address any proposed changes to water management practices

that exceed existing congressional authority.”).

Instead, the FEIS identifies as a primary objective of the

update the development of a basin-wide drought management plan,

id. at D-00044196; because changing conditions and droughts

experienced in the ACT Basin over the past decades have revealed

that peaking hydropower operations “would need to be more

flexible to avoid drawing down the pools so low that the Corps

250
could not meet other authorized purposes[,]” like navigation,

water quality, and recreation, Defs.’ Cross-Mot., ECF No. 95 at

17 (citing A.R., ECF No. 61 at D-00043979); see also A.R., ECF

No. 61 at D-00043785 (explaining that during the 2006 to 2008

drought, the Corps did not have an applicable drought plan

across the ACT Basin and “generally responded to drought

conditions by reducing hydropower generation at Allatoona Lake

and Carters Lake as the reservoir pools dropped throughout the

summer and fall”). The FEIS adds that at Allatoona Lake in the

past, sustained hydropower operations during times of drought

have adversely affected the Corps’ balancing of project purposes

there. A.R., ECF No. 61 at D-00044196. Thus, a goal of the

update was to implement drought contingency plans, as required

by Corps regulations, id.; see also ER 1110-2-1941, Drought

Contingency Plans (Sept. 15, 1981); to improve operational

flexibility to reduce water uses during severely dry times,

A.R., ECF No. 61 at D-00043773, D-00044196; see also id. at D-

00043785-87 (explaining the drought management plan, its key

features, and the reasons for its implementation).

At Allatoona Lake, the newly created drought management

plan “consist[s] of progressively reduced hydropower generation

as pool levels decline[,]” and a modified hydropower generation

schedule based on the action zones’ four ranges of power so as

to create flexibility during drought. Id. at D-00044206, D-

251
00044224, D-00044258. As the FEIS explains, this plan results in

“substantially higher lake elevations under drought conditions

than the No Action Alterative” or other action plans, and this

“improvement in water surface elevation conditions at Allatoona

Lake . . . would largely be attributable to the proposed phased

drawdown guide and revised action zones” that “call for more

conservative project operations to conserve storage with the

onset of extremely dry conditions in the basin.” Id. at D-

00044278. Thus, when the Alabama Plaintiffs quote the FEIS to

argue that a goal of the updated Manual was to have

“substantially higher lake levels,” see Pls.’ Mot., ECF No. 83

at 47 (arguing that higher lake levels mean “less, not more,

hydropower generation”); they tellingly excluded portions of the

text clarifying that those higher lake levels would be “under

drought conditions” pursuant to the drought management plan,

rather than for the sole purpose of benefiting recreation at the

expense of hydropower under normal conditions, compare Pls.’

Mot., ECF No. 83 at 27, 42, and Pls.’ Reply, ECF No. 99 at 17,

with A.R., ECF No. 61 at D-00044278.

The same is true for other statements in the FEIS that the

Alabama Plaintiffs cite to as evidence of the Manual’s alleged

improper focus on recreation. For example, they claim that the

FEIS “expressly justified the new four-hour cap on hydropower

production in the top action zone as creating ‘an overall

252
benefit to recreational use of the lake[,]’” and “that as a

general matter, the ‘action zones would be used to manage the

lake at the highest level possible for recreation and other

purposes.’” Pls.’ Reply, ECF No. 99 at 17 (citing A.R., ECF No.

61 at D-00044235-36, D-00044402, D-00044406). However, they fail

to include the related portions of the FEIS explaining that

Allatoona’s four action zones are “shaped to mimic the seasonal

demands for hydropower” and that this reshaping, coupled with

adjustments to the range of power generation hours per day, are

aimed at creating “operational flexibility to meet power

demands” and “provid[ing] for more effective management of

conservation storage” and overall improvement in lake levels,

“particularly under drier conditions[,]” changes which would

“likely provide for improved conditions in APC lakes and [Corps]

projects downstream of Allatoona Lake” during droughts. A.R.,

ECF No. 61 at D-00044402-03, D-00044406, D-00043788-89; see also

id. at D-00044248 (“Action zones are used to manage the lakes at

the highest level possible within the conservation storage pool

while balancing the needs of all authorized purposes with water

conservation as a national priority used as a guideline.”).

Similarly, the Alabama Plaintiffs claim that the “FEIS

touted the ‘guide curve revision in the fall’ as ‘further

benefit[ting] recreational uses at Allatoona Lake . . . . ’”

Pls.’ Reply, ECF No. 99 at 18 (citing A.R., ECF No. 61 at D-

253
000444245). However, this language is from a sub-section titled

“Recreation” (under a larger section titled “Relationship to

Water Management Objectives and Project Purposes”) dedicated to

describing the effects of the Proposed Action Alternative on

recreational uses at Allatoona Lake. A.R., ECF No. 61 at D-

000444244-45. Meanwhile, one of the other sub-sections in this

portion of the FEIS is titled “Hydropower,” and there the FEIS

explains that the phased fall drawdown guide curve “provide[s]

additional benefit[s] for hydropower generation compared to the

current guide curve,” in addition to benefits to recreation and

flood risk management. Id. The Court therefore agrees with

Defendants that the Alabama Plaintiffs’ portrayal of recreation

as a focus of the Master Manual is a “red herring” based on the

Alabama Plaintiffs’ reliance on “out of context statements,”

Defs.’ Cross-Mot., ECF No. 95 at 19; and that benefits to

recreation were “one reason among others for selecting the”

Proposed Action Alternative, Intervenor-Defs.’ Cross-Mot., ECF

No. 97 at 12; see also A.R., ECF No. 61 at D-00044245 (“Plan G

would be likely to provide improvements with respect to flood

risk management, hydropower generation, navigation, fish and

wildlife conservation, recreation, and water quality.”).

The FEIS further explains that conserving water in storage

upon the onset of drought, which results in higher Allatoona

lake levels, benefits all project purposes. See, e.g., A.R., ECF

254
No. 61 at D-00043789, D-00044278, D-00044266; Defs.’ Cross-Mot.,

ECF No. 95 at 19; Intervenor-Defs.’ Cross-Mot., ECF No. 97 at

11-12, 17. For example, the “additional measure in Plan G to

reduce hydropower production during September through November

to facilitate implementation of the phased fall guide curve

drawdown” is expected to provide additional benefits at

Allatoona with respect to recreation but also “overall

hydropower production.” A.R., ECF No. 61 at D-00044245. Other

benefits include, but are not limited to, “higher median lake

levels” at Allatoona for all purposes for more months of the

year, id. at D-00044278; improved flood risk management

operations at Allatoona Lake, 40 id. at D-00044244, D-00044266;

40The Georgia Parties and the Alabama Plaintiffs dispute whether
higher lake levels benefit Allatoona’s flood risk management
purpose. Compare Pls.’ Mot., ECF No. 83 at 29-30, 47, and Pls.’
Reply, ECF No. 99 at 18-19, with Intervenor-Defs.’ Cross-Mot.,
ECF No. 97 at 11-12, 17, 20, and Intervenor-Defs.’ Reply, ECF
No. 103 at 14. According to the Alabama Plaintiffs, holding
water in Zone A of the flood control pool “indefinitely” during
the fall period amounts to higher lake levels, which means
“less, not more, flood control[.]” Pls.’ Mot., ECF No. 83 at 29-
30, 47. The Court rejects this argument, as the FEIS conducted a
technical analysis of the effects of adopting the phased
drawdown on flood control impacts downstream of Allatoona Lake,
and the results indicated that such changes reduce flooding
overall and would not “significantly affect flood risk
management at Allatoona Lake.” See A.R., ECF No. 61 at D-
00044218-21, D-00044462-66, D-00043876-77; see also Intervenor-
Defs.’ Cross-Mot., ECF No. 97 at 12 (explaining that delaying
releases through the phased drawdown provides flood protection).
The FEIS thereby identifies flood control as a benefit of the
Manual’s changes at Allatoona. A.R., ECF No. 61 at D-00044243-
44, D-00044266. The Alabama Plaintiffs do not challenge the
results of this analysis. Further, the Allatoona Manual
255
and benefits to fish and wildlife conservation resources in the

Alabama River resulting from drought plan enhancements, id. at

D-00044245.

Although some effects of the Master Manual are expected to

benefit recreation, see id. at D-00044470 (anticipating that the

Proposed Action Alternative can avoid lake level declines into

the most severe recreational impact category by “an additional

2,416 days over the 73-year modeled period of record compared to

the No Action Alternative”); “others are expected to be slightly

adverse[,]” Defs.’ Cross-Mot., ECF No. 95 at 19 n.3. A

recreational impacts study at Allatoona Lake, see A.R., ECF No.

61 at D-00044468 (Table 6.6.-27, “Allatoona Lake recreation

impacts”); indicates that the amount of time that lake levels

will be categorized in the “Recreation Impact” range increases

from 28.4% under the No-Action Alternative to 37.7% of the time

under the Proposed Action Alternative, id. at D-00044470; which

translates to an increase in the amount of time that Corps

(Appendix A to the FEIS) explains how the “prime objective” of
flood risk management is attained at Allatoona via the “five
flood action zones defined above the top of the conservation
storage[.]” See id. at D-00044952-57, D-00045086. The Court thus
defers to the Corps’ “complex judgments” about this flood
control methodology and data analysis. Alaska Airlines, Inc. v.
TSA, 588 F.3d 1116, 1120 (D.C. Cir. 2009). Regardless, flood
risk management is still one benefit out of many, and thus, the
Alabama Plaintiffs fail to demonstrate that “[t]he Manual
deemphasizes congressionally authorized purposes for the sake of
recreation.” Pls.’ Mot., ECF No. 83 at 42.
256
beaches and swim areas are “unusable” and marinas and slip docks

are detrimentally affected, id. at D-00044467-68; see also id.

at D-00044958 (explaining that at the “Recreation Impact Level,”

recreation is “more severely affected,” as regular swim areas

are exposed, two boat ramps are closed, and almost half of

private docks are affected). Overall, the Allatoona Manual

specifically states that water managers will “attempt to

maintain reasonable lake levels, especially during the peak

recreational use periods,” but notes that “there are no specific

requirements relative to maintaining recreational levels” and

that “[o]ther project functions usually determine releases from

the dam and the resulting lake levels.” Id. at D-00044958. This

directly undermines the Alabama Plaintiffs’ claim that

recreation is driving the changes to the Master Manual.

The Alabama Plaintiffs attempt to rebut Defendants’

explanations by contending that the Master Manual’s changes

(i.e., “the action zones, reduced generation schedule,

eliminating of minimum hydropower, and fall phased guide curve”)

“apply not just in drought, but in all operating conditions” and

that “any regulatory requirement to have a drought plan does not

negate the Corps’ responsibility to operate Allatoona for its

authorized hydropower . . . purpose[].” Pls.’ Reply, ECF No. 99

at 18. The Court rejects this argument and concludes that in

view of hydrological changes over the years and prior droughts,

257
the FEIS has adequately explained the need to develop a basin-

wide drought plan that “incorporate[s] variable hydropower

generation requirements” from Allatoona Lake, A.R., ECF No. 61

at D-00044205; based on seasonal demands and creates operational

flexibility to in fact support hydropower and other purposes in

low flow conditions, which is what the Corps historically did in

response to reservoir pools dropping during the summer and fall

of the 2006 to 2008 drought, id. at D-00043785-90, D-00043979

(“[H]ydropower production has [historically] been curtailed, as

necessary, to balance the entire system operation.”). The

record, including a study analyzing the effects of the Manual

“on hydropower benefits,” indicates that these changes do not

“negate” Allatoona’s authorized hydropower purpose, both in

periods of drought and non-drought, but instead provide capacity

and energy benefits compared to the No-Action Alternative. See

id. at D-00044444-60; Defs.’ Reply, ECF No. 102 at 12 (“The FEIS

discusses hydropower and the proposed changes at great length

and in great detail.” (citing A.R., ECF No. 61 at D-00043788-89,

D-00043877-78, D-00043979-80, D-00044158-62).

Based on the above analysis, the Court concludes that

recreation was not the sole focus of the updates to the Master

Manual, or even an intended target of any resulting changes to

hydropower operations, and it rejects the Alabama Plaintiffs’

claim that the Corps improperly reordered, abandoned,

258
deemphasized, or “elevate[d] this secondary project purpose over

the originally authorized” hydropower purpose. Pls.’ Reply, ECF

No. 99 at 17. And, to the extent that the Alabama Plaintiffs

dispute the Corps’ ability to consider recreation at all, the

Court concludes that at a minimum, the Corps was statutorily

authorized to consider impacts and benefits to recreation at

Allatoona Lake and at the rest of its projects. As noted above,

“[f]unctions such as recreation, water quality, and water

supply, and fish and wildlife conservation are considered

[project] purposes under general legislation” since Corps’

policy equally recognizes legally authorized purposes that were

enacted “after project construction . . . just as those for

which costs [were] allocated.” A.R., ECF No. 61 at D-00043977;

33 C.F.R. § 222.5(f)(1). As relevant here, the Flood Control Act

of 1944, despite being enacted after the Flood Control Act of

1941, also applies to the Allatoona Project, and authorizes the

Corps “to construct, maintain, and operate public park and

recreational facilities in reservoir areas” under its control.

Pub. L. No. 78-534, § 4, 58 Stat. 887, 889 (1944); see also 16

U.S.C. § 460d (adding that the “water areas” of Corps projects

“shall be open to public use generally for boating, swimming,

bathing, fishing, and other recreational purposes”). As such,

recreation was not an “illegitimate” consideration in the Master

Manual but rather appropriately considered and reasonably

259
balanced, even if “secondar[ily],” among Allatoona’s other

authorized project purposes. Pls.’ Reply, ECF No. 99 at 17.

ii. Reductions in Hydropower Are Not
So “Substantial” or “Significant”
So as to Have the Effect of
Materially Altering the Size of
Allatoona’s Hydropower Purpose

Relatedly, the Alabama Plaintiffs appear to argue that

regardless of the Corps’ specific intent as to recreation, by

eliminating minimum hydropower requirements and “substantially

reduc[ing] the volume of water available for hydropower[,]” the

Corps has engaged in an unauthorized reallocation of Allatoona’s

reservoir storage away from power generation that has the effect

of benefitting recreation “at the expense of” hydropower. Pls.’

Mot., ECF No. 39 at 39, 42. Using changes in the percentages of

conservation storage available for hydropower releases in the

new four action zones alleged by APC, the Alabama Office of

Water Resources, and the State of Alabama in their comments on

the FEIS, the Alabama Plaintiffs argue that this reallocation

adversely affects the size of Allatoona’s authorized hydropower

purpose, amounting to a “material alteration” in operation that

requires prior congressional approval. Id. at 39-40, 42-43.

Relying on these comments, the Alabama Plaintiffs contend that

during the summer May 1 to September 1 period, the amount of

storage available for normal hydropower releases in action zones

1 and 2 is reduced by 43%, compared to Zone 1 storage under the

260
1993 Draft Manual; that as of October 1, Zones 1 and 2 combined

experience a 67% reduction in storage compared to the 1993

draft’s Zone 1; and that “[d]uring the critical July-August

period, when peak generation is needed most, 45% to 55% of the

total conservation storage is in Zone 4, which is off-limits to

normal hydropower generation.” Id. at 28, 39 (citing A.R., ECF

No. 61 at D-00049516, D-00049593-95, D-00043419-20, D-00045583-

85). They claim that the new action zones provide a “stark

illustration of how the Corps has disregarded Congress’

direction that power generation was one of Allatoona’s primary

purposes[,]” especially since the 1968 NEPA-approved Allatoona

Manual “contained no action zones,” and the 1993 Draft Manual

introduced action zones but still required minimum levels of

hydropower generation. Id. at 38-39. Additionally, the Alabama

Plaintiffs fault the FEIS for not isolating hydropower loss at

the Allatoona Project “during the dry season or during any

particular month[,]” and instead only computing monthly data for

the ACT system “as a whole,” especially since APC has provided

the Corps with data “about Allatoona-specific losses” in monthly

hydropower generation. Pls.’ Reply, ECF No. 99 at 11.

Regarding this issue, the Corps concluded that “the effects

of the phased drawdown, action zones, and hydropower generation

schedules are either trivial or beneficial to hydropower.” See

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 13-17; Defs.’ Cross-

261
Mot., ECF No. 95 at 20 (calling adjustments to hydropower

operations “small” and “modest overall”). The Corps and its

Hydropower Analysis Center conducted an analysis to understand

how updated system operations would affect hydropower

generation, comparing the results under the No-Action

Alternative with the “three alternative flow scenarios” under

the action Plans D, F, and G. See A.R., ECF No. 61 at D-00044444

(explaining that this complete report is included in Appendix E

to the FEIS), D-00044457-60. This analysis found that total

system generation under the Proposed Action Alternative would

increase slightly (by 282 megawatt-hours or about 0.1%) compared

to the No-Action Alternative, while the projected average annual

energy benefits for all ACT projects would decrease slightly (by

$255,000 out of more than $222 million or about 0.11%). Id. at

D-00044460. The simulation also showed an overall system

increase in hydropower generation of up to 2% from January

through August, only minor losses in generation in the fall (a

2% decrease in September, under a 6% decrease in October, and

just over a 3% decrease in November), and an increase in

generation in December. Id. at D-00044456-57, D-00044460.

At Allatoona specifically, the FEIS indicates that the

Proposed Action Alternative results in an annual decrease of

only 0.4% in total system energy benefits compared to the No-

Action Alternative. See A.R., ECF No. 61 at D-00048486

262
(comparing the total system energy benefits baseline number of

$5,081,000 to the Proposed Action number of $5,062,000, which

equates to only a $19,000 decrease), D-00044458 (variation of

the same chart); Defs.’ Reply, ECF No. 102 at 11; Pls.’ Reply,

ECF No. 99 at 11 n*. As discussed, the Alabama Plaintiffs do not

contest these numbers on their own terms, but instead present

alternative sets of data from APC and other Alabama-interested

entities that are computed in different ways. 41

The Court first notes its agreement with Defendants and the

Georgia Parties that in calculating hydropower impacts, the

41The Alabama Plaintiffs also cite to extra-record exhibits,
including a declaration from its own expert, in opposing the
hydropower projections made by the Corps. See, e.g., Pls.’
Reply, ECF No. 99 at 11 (citing Ex. 3, Decl. of Alan L. Peeples,
ECF No. 83-3), 19-20 (same); Pls.’ Mot., ECF No. 83 at 34, 38.
They attempt to use these exhibits, which include additional
data and public records, to argue that “a material alteration of
the Allatoona Project,” including changes in the relative size
of its hydropower purpose, “is not hypothetical” but “already
has followed” the changes made to the Master Manual. Pls.’
Reply, ECF No. 99 at 19-20; Pls.’ Mot., ECF No. 83 at 38.
Although they claim they are not contending that these extra-
record exhibits “should be formally part of the administrative
record[,]” they argue that judicial review should not be “an
artificial game” and should consider the developments at the
Allatoona Project that have followed the implementation of the
Master Manual. Pls.’ Reply, ECF No. 99 at 20. As the Court has
already concluded, see supra note 39, this “use of extra-record
evidence to allege negative impacts to hydropower as a result of
the Master Manual’s changes is improper and should be
disregarded[,]” Defs.’ Cross-Mot., ECF No. 95 at 20 n.4. “It is
black-letter administrative law that in an [APA] case, a
reviewing court should have before it neither more nor less
information than did the agency when it made its decision.” CTS
Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (citation and
internal quotation marks omitted).
263
Alabama Plaintiffs “err[] by focusing on the individual projects

rather than the entire system as a whole, which contradicts

congressional intent for the AC[T] Basin.” In re ACF Basin, 554

F. Supp. 3d at 1301; see Intervenor-Defs.’ Reply, ECF No. 103 at

12 (rejecting the claim that it was improper for the Corps “to

consider impacts to hydropower from a system-wide perspective,

rather than focusing just on the output of Allatoona Lake”). The

Corps operates the Allatoona Project as part of the larger ACT

system, see A.R., ECF No. 61 at D-00043977 (“ACT projects

(including APC projects) are operated as a system to the maximum

extent possible rather than as a series of individual,

independent projects.”); and the power produced there is

marketed throughout the southeast and sold on a system-wide

basis, id. at D-00043979. Further, Allatoona Lake provides only

a small portion of the overall hydropower generated within the

ACT system—72 marketable capacity (“MW”) out of 2,215 MW—or 3%

of total basin-wide dependable capacity, id. at D-00044450; and

only 2% of the ACT Basin’s total energy benefits, id. at D-

00044458. Likewise, the conservation storage in Allatoona Lake

is only 10.8% of total conservation storage for the entire ACT

Basin, see id. at D-00043778; with APC controlling the majority

(about eighty percent) of the available storage in the basin,

id. at D-00043928. Given this data, the Court defers to the

Corps’ projections of system-wide hydropower impacts, showing a

264
0.1% increase in overall system generation, a 0.11% decrease in

average annual energy benefits project-wide, and a 0.4% annual

decrease in energy benefits at Allatoona specifically. Id. at D-

00044460, D-00048486; see A.L. Pharma, Inc. v. Shalala, 62 F.3d

1482, 1490 (D.C. Cir. 1995) (affording “a high level of

deference to an agency’s evaluations of scientific data within

its area of expertise”). As the FEIS explains, “[t]he dependable

capacity calculation procedure for the ACT Basin projects began

by approximating each project’s contribution . . . in meeting

the system capacity requirements,” A.R., ECF No. 61 at D-

00044450; and based on the resulting numbers, it concluded that

“[a]t the majority of plants, no noteworthy differences would be

expected between the No Action Alternative and the Proposed

Action Alternative[,]” id. at D-00044460.

For the same reasons, the Court also rejects the Alabama

Plaintiffs’ argument that “the FEIS’ projections for ‘overall’

hydropower production during the course of an entire year . . .

[was] not the appropriate frame of reference[,]” and that the

Corps should have instead focused on the low-flow August to

November fall period. Pls.’ Reply, ECF No. 99 at 10-11. As

discussed above, the FEIS analyzes changes in system-wide

monthly hydropower generation, comparing the No-Action and

action alternatives, and concludes that there is up to a 2%

increase from January through August, a 2% decrease in

265
September, under a 6% decrease in October, just over a 3%

decrease in November, and a 3% increase in December. See id. at

D-00044456-57 (explaining that “it was necessary to look at how

the generated energy is distributed on a monthly basis”), D-

00044460. So although the FEIS concedes that operational changes

cause “a loss in generation from September through November[,]”

id. at D-00044460; it explains and graphically demonstrates that

these percentages of overall hydropower generation loss are

small, even during the alleged “critical season for hydropower

production” to which the Alabama Plaintiffs point, Pls.’ Reply,

ECF No. 99 at 11. These numbers further indicate that depending

on the season, hydropower levels may increase or decrease,

thereby contradicting the Alabama Plaintiffs’ assertion that

there are “substantial” reductions in hydropower generation

“across the board—in all seasons of the year.” Pls.’ Mot., ECF

No. 83 at 38. That public commenters have criticized the changes

in hydropower operations under the Master Manual as not focusing

on “‘critical demand months’” at Allatoona and as not reflecting

“‘the most valuable use of hydropower[,]’” and that other

entities have computed “Allatoona-specific losses” that differ

from the Corps’ system-wide projections for those fall months,

Pls.’ Reply, ECF No. 99 at 11 (quoting A.R., ECF No. 61 at D-

00046481); does not dissuade the Court from concluding that the

FEIS reasonably explained its decision to use “net effect”

266
projections data for the entire ACT Basin, see Intervenor-Defs.’

Reply, ECF No. 103 at 11-12; and therefore, supplied a rational

connection between the evidence and the technical decision made,

see State Farm, 463 U.S. at 43. Instead, the Court agrees with

Defendants and the Georgia Parties that the numbers in the FEIS

indicate that impacts of the Master Manual on hydropower are not

“material,” “substantial,” or “significant” in relative size but

rather “small,” “modest,” and within the Corps’ discretion to

manage the hydropower purpose of the Allatoona Project, and of

the ACT Basin as a whole—in tandem with the other authorized

project purposes. See Defs.’ Reply, ECF No. 102 at 11 (arguing

against the finding of a “material alteration” here because the

Master Manual does not change the size of any project purpose,

or prescribe any physical or structural changes, at Allatoona or

elsewhere in the basin).

An assessment of the administrative record and its

discussion of the Master Manual’s changes to the phased guide

curve drawdown, action zones, and the hydropower peak generation

schedule further supports the Court’s conclusion that any

resulting adjustments in hydropower operations at the Allatoona

Project are not drastically different from prior operations

under earlier manuals so as to create a “material alteration.”

For example, it has been the Corps’ historic practice to

reduce the conservation pool in the fall months “to increase the

267
flood pool storage in anticipation of the wet spring season by

‘drawing down’ the guide curve to lower levels.” Defs.’ Cross-

Mot., ECF No. 95 at 22 (citing A.R., ECF No. 61 at D-00044948,

D-00013501.0064). The Corps began seasonally varying the storage

allocations at Allatoona Lake in the 1950s after studies

indicated this could increase the project’s overall benefits,

and as a result, the 1962 Allatoona Manual required raising the

conservation pool elevation during the summer, with a drawdown

beginning in the fall. A.R., ECF No. 61 at D-00013501.0014. By

segmenting the conservation pool based on a “power guide curve”

“developed from a study of past stream-flow records[,]” id. at

D-00013501.0028; this version of the Allatoona Manual introduced

“an early form of action zones,” Defs.’ Cross-Mot., ECF No. 95

at 22 n.5. An actual system of action zones was later developed

and implemented at Allatoona Lake in 1989 to address low-flow

conditions, A.R., ECF No. 61 at D-00044761; and these zones,

divided into Zones 1 and 2, were incorporated into the 1993

Draft Manual, along with adjustments to the drawdown that were

made over time, see id. at D-00044250, D-00044904, D-

00013496.0041, D-00013496.0072, D-00011371.0003-04. The 1993

action zones allowed for scaling back or suspending routine

hydropower operations during times of drought to conserve

storage, see id. at D-00013496.0041-42, D-00013496.0072; as is

also the case for the updated four action zones as part of the

268
Master Manual’s drought management plan, see, e.g., id. at D-

00044205-221, D-00044257, D-00044224 (explaining that in the

update, the Corps considered varying the amount of generation

for each action zone and reducing the amount of available

generation “under drought protocols”). For example, Zone 3,

which indicates drier than normal conditions or impending

drought conditions, allows for “a reduced amount of peaking

generation . . . to meet system hydropower demand” while

ensuring that the reservoir refills to elevation 840 feet by May

1. Id. at D-00044950. The FEIS explains that “[s]hould drier

than normal hydrologic conditions exist or persist, the reduced

peak generation will continue until the reservoir level rises to

a higher action zone.” Id. Only in Zone 4, which indicates

“severe drought conditions,” can peak generation be suspended,

albeit never interrupting the 240 cfs minimum flow release, 42 a

requirement which also existed under 1993 Draft Manual’s version

of Zone 2. Id. at D-00044950, D-00013496.0072.

As Defendants explain, contrary to the Alabama Plaintiffs’

claims that the Master Manual, via the four action zones,

reallocates significant percentages of conservation storage away

from hydropower generation to favor recreation, as compared to

42“With normal seepage from the [Allatoona P]roject, the actual
minimum flow released to meet[] the minimum flow is around 300
cfs.” A.R., ECF No. 61 at D-00044970.
269
the 1993 Draft Manual, see Pls.’ Mot., ECF No. 83 at 39, 42;

“[a]ction zones do not reduce storage for hydropower,” but

rather “segment the conservation pool to indicate lake levels at

which releases for any purpose—including hydropower—should be

reduced during progressively dry conditions so that other

authorized purposes can be managed as well[,]” Defs.’ Cross-

Mot., ECF No. 95 at 23. Through its analyses and data

collection, the Corps determined that the four refined action

zones, along with changes to the seasonal shaping of the guide

curve and daily hydropower generation ranges, “provide greater

flexibility and capacity to better meet peak hydropower demands

when most needed, generally June through August[,]” and would

not adversely affect hydropower operations at APC or other Corps

projects in the ACT Basin. A.R., ECF No. 61 at D-00044236, D-

00044244. Furthermore, because the action zones continue to be

“used as a general guide to the hydropower peaking generation

available from the Allatoona Project to help meet system

hydropower commitments[,]” id. at D-00044949; the Court rejects

the Alabama Plaintiffs’ claim that Allatoona is no longer being

operated as a peaking plant at times “when hydropower is needed

most[,]” Pls. Reply, ECF No. 99 at 12. Rather, the Court agrees

with Defendants and concludes that the Master Manual’s action

zone operational changes are not “stark” deviations from prior

manuals but “similar in nature to adjustments made from the

270
first days of the project and continuing until the present

update.” Defs.’ Cross-Mot., ECF No. 95 at 22; see A.R., ECF No.

61 at D-00044949 (explaining that the evolution of the Allatoona

Project’s decades-long operations has culminated in “[a]

seasonal conservation pool regulation guide curve and

conservation storage action zones” that balance all authorized

project purposes). 43

The same is true for changes to the shape of the power

guide curve over the years. See Pls.’ Mot., ECF No. 83 at 21

(1951 Manual’s guide curve), 23 (1968 Manual’s rule curve), 24

(1993 Draft Manual’s guide curve), 27 (2015 Master Manual’s

updated rule curve). Using these graphs, the Georgia Parties

describe the differences between these various rule curves as

only “a slight shift from a straight drawdown generally starting

later in the prior versions to the phased drawdown generally

starting earlier in this one[,]” which the Corps determined

would not affect overall hydropower generation. See Intervenor-

43The Court is therefore unpersuaded by 2001 statements the
Alabama Plaintiffs cite to made by a federal commissioner
regarding a previous multistate compact for the ACT Basin. See
Pls.’ Mot., ECF No. 83 at 39; Pls.’ Reply, ECF No. 99 at 13. Not
only do these statements come from a different time period and
context, but they are only “current impressions” rather than
“final conclusions.” See A.R., ECF No. 61 at SUPPAR026150
(“Nothing we say here today should be considered to indicate
that we either concur or non concur with regard to any or all of
the items on a specific proposal submitted by the ACT
Commission.”).
271
Defs.’ Cross-Mot., ECF No. 97 at 16-17 (explaining that in line

with prior manuals, the drawdown, although now “phased,” reduces

the reservoir from full pool in the summer by about 20 feet to a

lower winter pool level); A.R., ECF No. 61 at D-00044949, D-

00044904 (explaining the Manual’s seasonal changes to elevation

levels—drawing down to 835 feet by October 1, holding steady at

835 feet through November 15, and drawing down to 823 feet by

December 31). Defendants also noted the similarities in shape

and level between the 1962 guide curve and Zone 3 of the updated

Master Manual. See Defs.’ Cross-Mot., ECF No. 95 at 23. The

Court therefore rejects the Alabama Plaintiffs’ claim that the

new phased guide curve “marks a substantial break from previous

guide curves[,]” Pls.’ Mot., ECF No. 83 at 28; and agrees with

Defendants to conclude that the resulting changes cannot be

material simply because “the current drawdown no longer occurs

precisely when Alabama wants,” especially since Allatoona’s

authorizing legislation did not include a fall drawdown or any

accompanying specifications—“this was a discretionary change

first made on the Corps’ initiative in the 1950s[,]” Intervenor-

Defs.’ Cross-Mot., ECF No. 97 at 16; see H.R. Rep. No. 2165,

Authorizations for Reservoirs, Levees, and Flood Walls for Flood

Control, Flood Control Act of 1946, 79th Cong. (1946)

(recognizing the Corps’ authority “to modify plans” if

272
“necessary and desirable” so long as the changes support the

original project purposes).

Furthermore, the Court has already rejected the Alabama

Plaintiffs’ contention that the Corps has newfound discretion

not to generate hydropower “not only in ‘emergency conditions,’

. . . but at all times.” Pls.’ Reply, ECF No. 99 at 18. As

explained above, the Corps continues to operate the Allatoona

Project as a peaking plant, with the action zones guiding the

process for achieving, rather than abandoning, system hydropower

peaking generation commitments. See A.R., ECF No. 61 at D-

00044949-51 (explaining each action zone’s range of hours for

peaking generation). Only in emergency situations or severe

drought conditions is peaking generation sometimes suspended,

id. at D-00044949-50 (defining these limited circumstances), D-

00043979-80; and even then, hydropower is generated through the

small Allatoona service unit that “maintain[s] the 240 cfs

minimum flow release” that provides constant flows downstream,

id. at D-00044950, D-00043939. As the Georgia Parties explain,

“[r]etaining discretion to curtail peaking hydropower generation

during drought conditions is not the same as ‘eliminating’

peaking hydropower generation at Allatoona Lake.” Intervenor-

Defs.’ Reply, ECF No. 103 at 10; see also Defs.’ Cross-Mot., ECF

No. 95 at 23-24 (explaining that the action zones do not abandon

“peaking hydropower operations as an overall project purpose”

273
but “recognize that in certain circumstances, peak releases will

have to be reduced” due to a lack of water in storage).

Finally, as the Court concluded that the Master Manual is

not a material change from prior operations, so too does it

conclude that it is not a “material alteration” from the

Allatoona Project’s original congressional authorization, as the

Corps’ modest adjustments to hydropower are not “so foreign to

the original purpose as to be arbitrary or capricious.” Creppel,

670 F.2d at 572. Instead, “hydropower benefits have increased—

both in terms of allocated storage and generation capacity—

compared to Congress’ original 1941 authorization.” Intervenor-

Defs.’ Cross-Mot., ECF No. 97 at 14 (emphasis in original).

For example, Allatoona Lake’s turbine capacity has

increased from the originally authorized 30,000 kilowatts of

generating capacity, A.R., ECF No. 61 at D-00013497.0005; to

82,200 kilowatts, as reflected in the Master Manual, id. at D-

00044893, D-00044896. This increase aligns with the Chief of

Engineers’ endorsement of “future extensions” and “enlargement”

of power capacity at the Allatoona Project stated in House

Document No. 674. Id. at D-00013497.0002, D-00013497.0004. Also,

the Board of Engineers originally recommended “providing for a

maximum power pool at elevation 830” so as to “provide a

reasonable degree of flood control without unduly affecting the

interests of power development[.]” Id. at D-00013497.0004. And

274
yet, under the Master Manual, the maximum power pool elevation

is ten feet higher at 840 feet. Id. at D-00044893.

In addition, more storage has now been allocated to

hydropower than Congress initially planned, as under the Master

Manual, total conservation storage available for hydropower

generation is 284,580 acre-feet at maximum elevation 840 feet,

id. at D-00044904, D-00044906; compared to the original

allotment of 182,500 acre-feet of maximum hydropower storage

capacity, id. at D-00013497.0018. As elaborated above, see supra

note 6; the specific number of acre-feet allotted to both flood

control and hydropower storage was discretionarily changed twice

following Congress’ original authorization, Intervenor-Defs.’

Cross-Mot., ECF No. 97 at 15; and by 1946, the allocation was

389,000 acre-feet between elevation 835 and 860 feet for flood

control and 253,000 acre-feet between elevations 800 and 835

feet for power generation and conservation, A.R., ECF No. 61 at

D-00013496.0020. Today’s number of allotted acre-feet for

hydropower generation remains higher than the 1941 original

number and the 1946 adapted number, and it is also higher than

the number adopted in the first 1951 Allatoona Manual (228,570

acre-feet). Id. at D-00011308.0010. As a result, any

reallocations in hydropower storage the Alabama Plaintiffs now

complain of as “material” cannot be considered so because

hydropower generation under the Master Manual “would still far

275
outpace congressional expectations for the project in the

authorizing legislation.” In re ACF Basin, 554 F. Supp. 3d at

1301. As the Northern District of Georgia has stated in relation

to the ACF Basin, “[a] reallocation cannot cause a serious

effect on the hydropower purpose established by Congress where

the project will still be generating significantly more

hydropower than Congress expected even after the reallocation.”

Id. Furthermore, it is not possible for the Corps’ discretionary

changes to the peaking generation schedule to deviate from the

Allatoona Project’s original authorization, as the Flood Control

Act of 1941 and the related subsequent Corps reports did not

specify the level of peaking generation that is to be required.

See, e.g., In re Operation of Mo. River, 421 F.3d at 629

(rejecting challenge to the Corps’ consideration of navigation

support because the authorizing legislation “does not set forth

what level of river flow or length of navigation season is

required”).

Despite this evidence that hydropower benefits under the

Master Manual have exceeded congressional expectations, the

Alabama Plaintiffs argue that the Master Manual nonetheless

deviates from the Flood Control Act of 1941 and its “polestar”

principle that the Allatoona Project must not just increase but

maximize hydropower storage, while minimizing storage for other

project purposes. Pls.’ Reply, ECF No. 99 at 14. The Court

276
rejects this argument, as it has already determined that the

Allatoona Reservoir was authorized as a “multipurpose” project

that does not prioritize any one of the hydropower, navigation,

or flood risk management specific purposes over the others.

A.R., ECF No. 61 at D-00044902. In addition, the statements to

which the Alabama Plaintiffs cite in support of this argument do

not persuasively create a “polestar” principle for the Allatoona

Project, as one is from a Division Engineer’s report that was

never referenced by Congress, the Chief of Engineers, or the

Board of Engineers in the authorization of the project, see

Intervenor-Defs.’ Reply, ECF No. 103 at 8 (citing A.R., ECF No.

61 at D-000053805, D-00053808, D-00013497.0002); and the other

comes from House Document No. 414, which was prepared only after

the Flood Control Act of 1941 was enacted and did not discuss or

revise the Allatoona Reservoir plans but rather recommended

construction of other ACT Basin projects, id. at 8-9 (citing

A.R., ECF No. 61 at D-00053821-22). House Document No. 414

advocates not only for changes like the aforementioned ones that

“increas[e] the development of hydroelectric power” but also

“[d]esirable modifications” within the Corps’ discretion that

“arise much more frequently than in normal times, and should

often be put into effect more rapidly than extensive and

detailed investigations and reports can be made and presented to

Congress.” H.R. Doc. No. 414, 77th Cong. at 5-6 (1941).

277
 In sum, the record does not support the Alabama Plaintiffs’

overall claim that a “reallocation[] of storage ‘to provide more

stable recreation levels’ without prior Congressional approval”

occurred. 44 Pls.’ Mot., ECF No. 83 at 20. As a result, the Court

concludes that the Corps’ adjustments to hydropower operations

under the Master Manual do not exceed its statutory authority

because they “serve the original purpose[s] of the [Allatoona

P]roject[,]” Creppel, 670 F.2d at 573; do not have the effect of

materially deemphasizing the relative size of Allatoona’s

hydropower purpose to elevate recreation, both in comparison to

prior operations and Allatoona’s authorizing legislation, see

Alexander, 467 F. Supp. at 901; and are “reasonable and

reasonably explained,” thus “deserv[ing] significant deference

from this Court[,]” In re ACF Basin, 554 F. Supp. 3d at 1301.

44Similar to the Alabama Plaintiffs, amicus curiae AMEA argues
that the Flood Control Act of 1944, specifically “the limited
reach of” section 4, “does not grant the Corps independent
authority to manage storage for recreational purposes.” Amicus
Br., ECF No. 94 at 21. They claim that “[t]he statutory
authority for the support for a full pool to accommodate
recreation in summer months is simply missing in [s]ection 4 of
the Flood Control Act or any statute relied upon by the Corps to
promulgate the WCM.” Id. at 22. Given that the Court has
concluded that the updated Master Manual’s changes were not
“predicated on using storage to support recreational
purposes[,]” id.; the Court is unpersuaded by AMEA’s further
arguments on this point.
278
 b. The Master Manual Does Not “Deemphasize”
Navigation at the Allatoona Project

Neither does the record support the Alabama Plaintiffs’

argument that the Master Manual abandons or “effectively deletes

navigation as an Allatoona project purpose.” Pls. Mot., ECF No.

83 at 40. The Alabama Plaintiffs claim that although Congress

authorized Allatoona for navigation, “the Corps disclaims any

obligation to operate Allatoona for the express purpose of

navigation support[,]” which they state “is needed most in the

fall low-flow season, . . . the exact season when the new Manual

proposes to reduce or eliminate hydropower releases in the

interest of higher lake levels for recreation.” Id. They contend

that the Corps is “offload[ing] its navigation responsibilities”

onto APC on the inadequate bases that the Allatoona Project is

“‘distant from the navigation channel,’” id. at 40-41 (quoting

A.R., ECF No. 61 at D-00043980); and “‘has never been regulated

to make specific releases to support downstream navigation[,]’”

Pls.’ Reply, ECF No. 99 at 15 (quoting Defs.’ Cross-Mot., ECF

No. 95 at 24); which results in cutting “incidental navigation

benefits[,]” id. at 17. In response, Defendants argue that

“[n]avigation remains a fully implemented purpose in the basin”

and that “[m]arginal changes to the management of Allatoona

Lake—which is far upstream of navigable waterways—in no way

279
undermine [ ] the basin’s broad navigation purpose.” Defs.’

Reply, ECF No. 102 at 12. The Court agrees.

“[R]egulation of stream flow for navigation” was one of the

three specific project purposes for which construction of the

Allatoona Reservoir was initially recommended, see A.R., ECF No.

61 at D-00013497.0002 (recommending, in House Document No. 674,

construction at Allatoona Lake for “the improvement of the river

below the dams for navigation”); and later authorized via the

Flood Control Act of 1941, see Pub. L. No. 77-228, 55 Stat. 638,

638-41 (1941) (approving House Document No. 674’s plan). Four

years later, the River and Harbor Act of 1945 adopted the same

specific authorized purposes for the ACT Basin, sanctioning

development of the Alabama-Coosa River and its tributaries for

“navigation, flood control, power development, and other

purposes[.]” Pub. L. No. 79-14, § 2, 59 Stat. 10, 17 (1945).

Therefore, Congress intended that navigation be balanced among

the other competing purposes at both the Allatoona Project and

for the ACT Basin as a whole. Defs.’ Reply, ECF No. 102 at 12-

13.

The FEIS states that although Allatoona Lake was originally

authorized to support downstream navigation, it is “not

regulated for navigation because [it is] distant from the

navigation channel, and any releases for that purpose would be

captured and reregulated by APC reservoirs downstream.” A.R.,

280
ECF No. 61 at D-00043980; see also id. at D-00044961 (“Due to

the intervening APC projects, there are no specific reservoir

regulation requirements to support navigation at Allatoona

Dam.”). Navigation “occurs only on the Alabama River downstream

of Montgomery, Alabama, the head of navigation[,]” id. at D-

00044199 (emphasis in original); and flow in the Alabama River

“is largely controlled by APC impoundments on the Coosa and

Tallapoosa Rivers above Robert F. Henry Dam[,]” id. at D-

00044803. Therefore, water released at the Allatoona Project,

located “far upstream in Georgia, must travel more than 360

river miles and pass through” several APC dams before converging

with the Coosa River and eventually reaching the Alabama River.

Defs.’ Cross-Mot., ECF No. 95 at 25 (citing A.R., ECF No. 61 at

D-00043909); Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 18

(citing A.R., ECF No. 61 at D-00043916, D-00044199). As a

result, the FEIS explains that “[d]ownstream navigation in the

Alabama River benefits indirectly from the operation of the

Allatoona Lake . . . project[] for the other authorized

purposes.” A.R., ECF No. 61 at D-00043980; see also id. at D-

00044961 (“[T]he seasonal variation in reservoir storage does

redistribute downstream flows and other operations at Allatoona

provide a benefit to downstream navigation.”). As Defendants

explain, “the Allatoona Project has never been regulated to make

specific releases to support downstream navigation[,]” but

281
“[r]ather releases from Allatoona for other purposes support

navigation incidentally, and the entire Basin is managed to

accomplish this purpose.” Defs.’ Cross-Mot., ECF No. 95 at 24;

see also A.R., ECF No. 61 at D-00044803 (explaining that a

“critical component in the water control plan for navigation

involves using an amount of storage from APC storage projects

similar to that which has historically been used,” a plan which

“does not include flow requirements from Allatoona” because it

is “not regulated specifically for navigation”). These

operational choices make functional sense given that APC

controls eighty percent of the available conservation storage in

the ACT Basin (above areas where navigation occurs), A.R., ECF

No. 61 at D-00043928; and is required, pursuant to FERC

licenses, to release minimum discharges from its reservoirs to

support navigation on the Alabama River, id. at D-00044803-04,

D-00043960; see id. at D-00044199 (“Releases by APC together

with local inflows downstream of the Coosa and Tallapoosa

Rivers’ confluence are expected to provide the required flow in

the Alabama River . . . . ”). 45 Therefore, the Corps is not, as

the Alabama Plaintiffs claim, “offload[ing] its navigation

45Moreover, in updating the Master Manual, the Corps worked with
APC to create “a navigation plan that provides necessary
navigable channel flows,” i.e., releases that support navigation
when basin inflows meet or exceed seasonal targets, but also
allows for APC to reduce or suspend such releases during low-
flow drought periods. See A.R., ECF No. 61 at D-00044199-201.
282
responsibilities” onto APC, Pls.’ Mot, ECF No. 83 at 40-41; but

rather looking to the entity “in the best position to take

appropriate action[,]” In re ACF Basin, 554 F. Supp. 3d at 1307.

This “decades-old practice of supporting navigation more

than 300 miles downstream on the Alabama River incidentally

through releases for other purposes, rather than making

dedicated releases from Allatoona Lake” has been the Corps’

practice since the reservoir was constructed and fits with the

original vision Congress adopted in the project’s authorizing

legislation. Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 18

(emphasis added). For example, House Document No. 674 included

commentary that “[t]he estimate of annual benefits indicates

that in effect the [Allatoona P]roject is essentially a power

project with important benefits in flood protection and

incidental benefits to navigation[,]” A.R., ECF No. 61 at D-

00013497.0006; and it specifically stated that the reservoir was

to be constructed “in the combined interests of flood control

and power development,” with regulated stream flow providing

benefits “to navigation should the Alabama and Coosa Rivers be

further improved at some future time[,]” id. at D-00013497.0004;

see also id. at D-00013497.0018-21 (elaborating on the project’s

anticipated benefits to and storage allocations for hydropower

and flood control but not navigation, instead stating that “the

development of Allatoona Dam for flood control and power will

283
fit” into the comprehensive ACT scheme “for flood control,

navigation, and power”). Additionally, the 1941 Definite Project

Report, substantially in agreement with House Document No. 674’s

plan adopted by Congress, similarly discusses in detail the

operational plan of the Allatoona Reservoir and Dam “for flood

control” and “for power” but not for navigation. Id. at

SUPPAR027131-32. Several decades later, in 1992, the Corps

issued a report in response to a congressional request that it

survey its various reservoir projects to identify the purposes

for which each project was authorized, as compared to the

purposes for which each project was actually being operated. Id.

at D-00006416.0002. For the Allatoona Project, the Corps

informed Congress, using identical language repeated in the 2014

FEIS, that although navigation was an authorized purpose,

[t]he project is not regulated for navigation
because it is located distant from the
navigation channel and any releases for that
purpose would be captured and reregulated by
the [APC] reservoirs located downstream.
Navigation benefits indirectly from the
operation of the project for the other
authorized purposes.”

Id. at D-00006416.0010 (emphasis added).

In line with this historical congressional awareness and

tacit approval of operating the Allatoona Project for indirect

navigation benefits, none of the authorizing legislation or

founding supplemental reports contained any regulations

284
specifically addressing navigation, see, e.g., id. at

SUPPAR027115-27215, D-00013497; which is also true of the

earlier ACT Basin Master Manuals from 1951, 1962, and 1993, see

Defs.’ Cross-Mot., ECF No. 95 at 25 (citing A.R., ECF No. 61 at

D-00013495, D-00013501, D-00013496.0022). Therefore, contrary to

the Alabama Plaintiffs’ claims that the Corps has altogether

abandoned navigation as an authorized purpose at the Allatoona

Project, the record indicates that navigation is being treated

as it always has been, both at Allatoona, and balanced among

other project purposes for the entire ACT Basin. See In re

Operation of Mo. River, 421 F.3d at 629 (explaining that when

the authorizing legislation “does not set forth what level of

river flow or length of navigation season is required” to serve

the navigation project purpose, courts need only review the

changes to ensure that the Corps considered downstream

navigation in balancing competing interests).

Furthermore, the record shows that improving navigation

support, particularly during drought conditions, was an

objective of the updated Master Manual. See A.R., ECF No. 61 at

D-00044196 (aiming to “[m]ore accurately define flow

requirements for APC projects to support navigation on the

Alabama River downstream”), D-00044342 (calling it a “primary

goal” to determine minimum flow requirements to support

navigation year-round “on balance with the other needs and

285
requirements in the basin”), D-00044199-205 (assessing various

management measures for supporting navigation). The resulting

changes provide “for seasonal navigation releases, coupled with

seasonal maintenance dredging, to support commercial navigation

in the Alabama River for a 9.0-foot or 7.5-foot channel depth as

long as sufficient basin inflow above the APC projects . . . is

available.” Id. at D-00053478.

The record indicates that these changes will increase, not

decrease, navigational benefits in comparison to prior

operations. See, e.g., A.R., ECF No. 61 at D-00044344-52

(explaining that under the No-Action Alternative, “navigation

channel conditions are likely to continue to deteriorate,” but

that under the Proposed Action Alternative, there is expected to

be “a notable increase in the number of years during which full

9-ft navigation channel depths would be available for commercial

navigation”), D-00044442-43. The FEIS graphically demonstrates

that “in all months of the year except November, the navigation

flow conditions for [the Proposed Action Alternative] equal or

represent an improvement under conditions for the No Action

Alternative[,]” and that there are only slight adverse effects

during November resulting from the phased drawdown with reduced

hydropower production. Id. at D-00044352. Using this data, the

FEIS logically deduces that the “overall effect of operations at

Allatoona Lake” under the Master Manual “on navigation

286
conditions in the Alabama River downstream of Montgomery . . .

would likely be inconsequential according to the results of the

model simulations.” Id.

Accordingly, as with the Allatoona Project’s hydropower

purpose, the Court concludes that the Corps has not, in any of

the relevant updates to the Master Manual, abandoned or

deemphasized the project’s congressionally authorized navigation

purpose, and therefore the Corps cannot be deemed to have

exceeded its statutory authority in this regard. Instead, in

accordance with congressional directives, its own regulations,

and its technical expertise, the Corps has made reasonable and

sufficiently explained “incremental changes” to navigation in

the ACT Basin, Defs.’ Cross-Mot., ECF No. 95 at 27; that do not

impermissibly advance recreational interests over navigation at

the Allatoona Project, and that are therefore to be afforded “an

extreme degree of deference[,]” Alaska Airlines, 588 F.3d at

1120.

2. The Master Manual Is Not an “Unexplained and
Arbitrary Departure from Established Operations”

In their final argument, the Alabama Plaintiffs contend

that “[a]t the very least, the Corps’ reordering of project

purposes” was, even if statutorily permissible, “arbitrary” and

“an unexplained departure from established operations” of the

Allatoona Project. See Pls.’ Mot., ECF No. 83 at 43-44

287
(criticizing the Master Manual for “sharply depart[ing] from [ ]

precedent without acknowledging, let alone explaining, its

departure from its prior practices”). They argue that the Corps

has ignored and failed to meaningfully respond to public

comments indicating that retaining more water at Allatoona “when

it is most needed” in other places will reduce hydropower

generation, eliminate critical navigation flow support, and

cause harmful downstream impacts, and that, “in choosing to

preference recreational interests at the expense of hydropower,

navigation, flood control, and, most critically, the

environment[,]” the Corps has “failed to engage in reasoned

decision-making,” as mandated by the APA. Id. at 44, 47.

In response to these claims, Defendants contend that the

Master Manual “provides a well-reasoned explanation for changes

in operations that support all project purposes and comply with

subsequent legislation and regulations[,]” and is therefore

entitled to substantial deference under Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81

L. Ed. 2d 694 (1984). See Defs.’ Reply, ECF No. 102 at 14-17;

Defs.’ Cross-Mot., ECF No. 95 at 15-16. Likewise, the Georgia

Parties argue that the Master Manual does not reflect a change

in Corps policy or practice, and that even if it did, the Corps

has adequately justified all changes. See Intervenor-Defs.’

Cross-Mot., ECF No. 97 at 20-21.

288
 The Court is unpersuaded by the Alabama Plaintiffs’

“alternative showing” argument, Pls.’ Reply, ECF No. 99 at 20;

as it merely reiterates, albeit in slightly different form, many

of the arguments that the Court has already considered and

rejected. For example, the Alabama Plaintiffs argue that the

Master Manual departs from the Corps’ “historical practices” by

adopting action zones at Allatoona Lake that are “intended ‘to

manage the lake at the highest level possible for recreation and

other purposes.’” Pls.’ Mot., ECF No. 83 at 44-45. To support

this argument, they point to “prior decisions” by the Corps (one

of which comes from inadmissible extra-record evidence) which

they claim “establish[] that the Allatoona Project should not

maintain high reservoir levels to benefit recreation at the

expense of generation and navigation[.]” See id. at 45-46.

However, the Court has already explained why the FEIS does

not support concluding that the Master Manual deemphasizes the

Allatoona Project’s authorized hydropower and navigation

purposes to favor recreation. The Court has also already

rejected: (1) the Alabama Plaintiffs’ characterization of the

four action zones as providing the Corps with newfound,

unbounded discretion to not generate any hydropower at any time;

and (2) their use of out-of-context statements regarding higher

lake levels focusing on recreation, and has instead explained

how conserving water in storage during drought, which does

289
result in higher lake levels, benefits all project purposes.

Furthermore, based on the record, the Court has already

concluded that the Master Manual’s operational changes to both

hydropower and navigation are modest, incremental, and

reasonably explained, in other words, “similar in nature” to

historic changes, Defs.’ Cross-Mot., ECF No. 95 at 22; rather

than the “unexplained and arbitrary departure” towards

recreational interests as the Alabama Plaintiffs contend, see

Pls.’ Mot., ECF No. 83 at 46-47. Therefore, even if the Master

Manual could be deemed a departure in some ways from prior

Manuals, the Corps has acknowledged the pertinent operational

adjustments and “adequately explained the reasons for its

substantive action[,]” In re ACF Basin, 554 F. Supp. 3d at 1304;

specifically, why it chose the Proposed Action Alternative over

all other options, including the No-Action Alternative. The

Court must “uphold a decision of less than ideal clarity if the

agency’s path may reasonably be discerned[,]” and here, the

Court concludes that the Corps’ path towards the Master Manual

is sufficiently clear. 46 Bowman Transp., 419 U.S. at 286.

46The Georgia Parties proffer some additional arguments on this
point that the Court finds unnecessary to consider, as it agrees
that at base, “[a]ll that is required” of the Corps in updating
the Master Manual is to “follow the appropriate procedures and
explain its choices[,]” which it has done. See Intervenor-Defs.’
Reply, ECF No. 103 at 14-15; Intervenor-Defs.’ Cross-Mot., ECF
No. 97 at 20-21; see also FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515, 129 S. Ct. 1800, 173 L. Ed. 2d 738 (2009)
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 Throughout this Memorandum Opinion, this Court, similar to

many others, has concluded that the Corps “has significant

discretion to balance” the competing purposes at its various

reservoirs. In re ACF Basin, 554 F. Supp. 3d at 1302; accord

Ubbelohde, 330 F.3d at 1027; In re Operation of Mo. River, 421

F.3d at 629; Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F.

Supp. 2d 230, 252-53 (D.D.C. 2003). Specifically, the Corps has

the power to issue WCMs governing its reservoir projects by

developing a binding Master Manual detailing how it will operate

the ACT River Basin “to balance conflicting purposes.” In re ACF

Basin, 554 F. Supp. 3d at 1289 (citing 33 U.S.C. § 709, section

7 of the Flood Control Act of 1944); see also Ubbelohde, 330

F.3d at 1027 (elaborating on the “good deal of discretion” the

Flood Control Act of 1944 provides to the Corps in its

management of river systems). Pursuant to this statutory

authority, the Corps has promulgated regulations that explicitly

contemplate updating those manuals “to conform with changing

requirements resulting from” basin developments and changes in

technology, legislation, and other relevant factors. 33 C.F.R. §

222.5(f)(3). As a result, the “Purpose and Need” section of the

FEIS, citing to section 7 of the Flood Control Act of 1944,

(requiring agencies that are updating prior policies to “display
awareness” of any changes and provide “a reasoned explanation”
for those changes).
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states that the updated plans and manuals, promulgated pursuant

to the APA’s notice and comment process, “comply with existing

[Corps] regulations and reflect operations under existing

congressional authorizations, taking into account changes in

basin hydrology and demands from years of growth and

development, new/rehabilitated structural features, legal

developments, and environmental issues.” A.R., ECF No. 61 at D-

00043772.

Ultimately, the Court concludes, based on all of the above-

referenced evidence and data analysis from the administrative

record, that it appropriately accords deference to the updated

Master Manual because it does not, as the Alabama Plaintiffs

contend, amount to the Corps “transgress[ing]” the Flood Control

Act of 1941 by materially altering or “transform[ing]” the

Allatoona Project, Pls.’ Reply, ECF No. 99 at 8; nor does it

exceed any other statutory authority the Corps administers in

managing the ACT River Basin, 47 Defs.’ Cross-Mot., ECF No. 95 at

47Amicus curiae AMEA argues that the Corps has exceeded its
statutory authority and violated the APA by promulgating the
Master Manual pursuant to section 7 of the Flood Control Act of
1944 (33 U.S.C. § 709), which it argues only authorizes the
Corps to develop regulations or WCMs addressing storage changes
to flood control and navigation, not hydropower generation.
Amicus Br., ECF No. 94 at 8-9. It argues that the Corps’
interpretation of section 7 and its “plain language” to sanction
“chang[ing] storage for hydropower and recreation is not
entitled to deference” under the test laid out in Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104
S. Ct. 2778, 81 L. Ed. 2d 694 (1984), see id. (“Nowhere in
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Section 7 did Congress grant the Corps the authority to alter or
change hydropower generation through the promulgation of
regulations or a WCM.”); and that the same is true for sections
4 and 5 of the Flood Control Act of 1944, which AMEA claims “do
not lend support to the concept that the statute as a whole
authorizes the Corps to re-order project purposes at Lake
Allatoona[,]” see id. at 10-11. Although the Alabama Plaintiffs
likewise contest “the Corps’ plea for Chevron deference[,]” they
do not assert a similar argument challenging the Corps’
authority to promulgate the Master Manual under section 7 of the
Flood Control Act of 1944, instead claiming that “Chevron has no
role to play” because they are not asking the Court “to
determine whether a Corps regulation interpreting the 1941 Flood
Control Act’s terms is reasonable” but rather that the Corps
“transgressed th[at] Act in adopting a Manual that transforms
Allatoona.” Pls. Reply, ECF No. 99 at 8. Nonetheless, because
the Court has already concluded that the Master Manual does not
materially alter hydropower storage at the Allatoona Reservoir
in favor of recreation and that the Corps has not attempted to
“reorder” the hydropower project purpose, the Court rejects,
without further consideration, AMEA’s statutory argument based
on section 7 of the Flood Control Act of 1944. In any event,
many courts have accepted 33 U.S.C. § 709 as one of the primary
federal laws, among other authorities, that provides the Corps
with wide discretion in its comprehensive management of various
river basins and its issuance of WCMs governing operations of
those reservoir projects, which include information on balancing
hydropower generation among other interests at play. See, e.g.,
In re ACF Basin Water Litig., 554 F. Supp. 3d 1282, 1290 (N.D.
Ga. 2021); South Dakota v. Ubbelohde, 330 F.3d 1014, 1019-20,
1029-30 (8th Cir. 2003); Am. Rivers v. U.S. Army Corps of
Eng’rs, 271 F. Supp. 2d 230, 252-53 (D.D.C. 2003); ETSI Pipeline
Project v. Missouri, 484 U.S. 495, 503-04, 108 S. Ct. 805, 98 L.
Ed. 2d 898 (1988); accord In re Operation of Mo. River Sys.
Litig., 421 F.3d 618, 630 (8th Cir. 2005) (“The Corps’ balancing
of water-use interests in the 2004 Master Manual is in
accordance with the [Flood Control Act of 1944].”). As such,
contrary to AMEA’s request, the Court declines to engage in a
complete Chevron analysis of 33 U.S.C. § 709, instead agreeing
with Defendants that AMEA’s argument “is much to[o] narrow and
would tie the Corps’ hands in direct contravention of Congress’
broad grant of authority to the Corps to manage multiple use
projects.” Defs.’ Cross-Mot., ECF No. 95 at 15 n.2.

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14-16. Instead, the Court agrees with Defendants that the Master

Manual “represents the culmination of the Corps’ detailed study

and in-depth decision making process” regarding “a technical

judgment within its expertise[,]” Defs.’ Reply, ECF No. 102 at

15; and “[w]hen examining this kind of scientific determination,

as opposed to simple findings of fact,” the Court must be “at

its most deferential[,]” Balt. Gas, 462 U.S. at 103.

V. Conclusion

For the foregoing reasons, the Court DENIES the Alabama

Plaintiffs’ Joint Motion for Summary Judgment, ECF No. 83;

DENIES Intervenor-Plaintiffs’ Joint Motion for Summary Judgment,

ECF No. 85; GRANTS Defendants’ Cross-Motion for Summary

Judgment, ECF No. 96; GRANTS Intervenor-Defendants’ Joint Cross-

Motion for Summary Judgment, ECF No. 98; and DENIES Intervenor-

Defendants’ Supplemental Motion for Summary Judgment Based on

the Preclusive Effect of an Intervening Judgment, ECF No. 129.

An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
November 9, 2023

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