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

ii

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

iii

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]

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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

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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

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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.

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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-

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