good morning my name is kevin lynch and i'm pleased to be here today and we have thought of on their freighter denver which has many members who regularly use to have a park so typically the you need areas that will be lost of this project moves forward as you can see many of those members are here today there's a lot of public interest in this case this court should not sanction the corps attempt to create a double standard for itself under the clean water act a standard standard that applies to everyone else and a lenient standard that applies to itself so that it can approve projects that would result in avoid environmental harm the course is narrow and novel interpretation of the section for a for b one guidelines in this case should be rejected for three main reasons first the corps has violated the clean water act its own regulations and all available guidance documents in approving a project even though there were alternatives that could have avoided the environmental harm altogether and also by breaking up the project even though it would be one thing we have to look at the purpose of the project and i will use in my questioning to key words increase the availability of water by eight thousand five hundred thirty nine acre feet and and there were many alternatives are identified underneath that they could meet that call yet when it came time to conduct the clean water act analysis suddenly the corps reversed it throughout the record in environmental impact statement the final main point i would like to make is that the record here in this case shows that there were other that the preferred alternative alternative theory in this case was the most  damaging alternative and even though the clean water act requires the corps to choose the least environmentally damaging alternative and that's just why the corps adopted this novel a narrow interpretation of its own guidelines because it knew that it would have a difficulty a the driving force behind this project your honor the court found that all four of the alternatives would meet the purpose and need that was identified by this project and that's why why they didn't want to consider those under the clean water act as i'm sure you're aware as a procedural statute  requires a quarter of valuate environmental alternatives but it doesn't specify which alternative must be chosen but the clean water act has a substantive mechanism that forces the court to only approve projects that it sorry forbids them from a in that that include a potential recharge of that non tributary basin by using direct flows into that none tributary i don't believe tell your honor that was one yes your honor and that's why i and my clients had suggested numerous alternatives that were not given detail consideration in this case specifically water conservation and also storage and another into the reservoir alan non selection  honor that's one of our three main claim basically supporting a non anable alternative we are not supporting alternative to your honor which was a non tributary ground water what my clients have advanced in this case is that the corps should have looked at three other main alternatives specifically increasing water conservation beyond the baseline that has already been implemented the torture the reader has resident let me just see how the district court dealt with that that's a nonstarter because what is necessary to increase the availability of water by eight thousand five hundred thirty nine acre feet e p a in this case submitted comments to the core of what works for him and sort of the core regulatory program that said that water conservation appeared to be able to meet the purpose the need for this project and so that that is an explanation for why they didn't want to consider it because it would have looked much better than the alternatives that they did well with would that have been something  further in contrast to the storage of water every chapter of reservoir was actually found by the corps in this case to result in zero dependable yield that is the primary mechanism that's used for these water supply projects sometimes it's firm yield sometimes it's a field in this case they said dependable yield they did six different calculation this is an appendix b b of the environmental impact statement under all of those calculations this project resulted in a direct dependable yield and that's it it shows that are relying on storage a very approve this plan and on top of that they're having to spend one hundred twenty seven million dollars to mitigate all the environmental harm that is caused by this project we can put in the council i took from your introduction that you were concentrating on the clean water yes you're on issue and i'd like to come back to that and this is really to clarify i think your argument under your view is that the clean water act analysis should have considered alternatives one two three and four in the c w a analysis and they didn't do that yes or then how does th consideration of alternatives underneath all will provide the necessary also as for the clean water act what's different is that the clean water act actually has a substance and forcing mechanism it says that the court cannot approve a project if there are practical alternatives that are less environmentally eighty two says the practicable alternatives must be considered in light of the overall project purposes of this gets to the point that briscoe was making earlier they must look at the all the overall purpose not just the narrow portion and the mitigation that is required because well how how do we know in the context of the language overall project purposes which is not in the neat sin that it's in the clean water act how do we know unambiguously that project argument that the core has advanced would read out another portion of the regulation this isn't to thirty point ten a one i where it says that practicable alternatives must include alternatives which avoid the discharge and that there's a particular sequencing that is built in there the very but i'm still back on overall project purposes and we're not talking about the neat the statue now right there the dredging still has to do with these mitigation projects why doesn't that reasonably refer to those projects two main points your honor first the planning guidance notebook at the guidance document that the course of all works program developed it also specifies a page to dash five that the core must always be looking at the larger complete plan in this point and if you apply that to our case that means not the mitigation but the broader reallocation project the last point i would just make on that issue your honor is that there suggestion that the recreational modifications whatever go forward if the reallocation wasn't happening there's no suggestion that the environmental mitigation would be happening no less the reallocation were happening i don't think that is disputed and i don't think there's any way that i could reasonably disputed and the reason to get to what the overall project purpose is the core has developed a concept called independent utility this is discussed in several of the key cases that have been cited here in with their case out of the eighth circuit the court said it was appropriate for the court to narrow its analysis because the project at issue had an independent utility in the florida wildlife federation case this is out of the southern district of florida the court had asserted that a narrow portion had independent utility but the court said that that was an arbitrary and capricious finding if you apply that concept to our case the recreational facilities have no independent recreational modification has no independent utility they wouldn't be moving the recreational facilities if they were planning to flood them same thing for the environmental mitigation it has no independent utility they wouldn't be doing the environmental mitigation if they weren't planning to destroy a lot of critical wildlife habitat space unless there are no it sounds cancel like what what you're arguing is that the alternative analysis for clean water act purposes when in your meat argument you're saying that that the court didn't look at least three other alternatives i'm sorry your honor perhaps i misunderstood your question our position is that they should look at the alternatives that they were considered underneath as well  took that position in its regulations when it said ordinarily the need analysis will provide the information necessary for the clean water act analysis the court regulatory program and e p a have also given further interpretation of what these guidelines mean in particular the memorandum of agreement lays out that sequencing that i was discussing before and terms of avoidance minimisation and then medication the memorandum agreement also laid out that the entire project should be considered there's numerous references throughout the record the core regulatory program and e p a stating that the overall project needs to be considered which was the reallocation we are simply advancing that same position i would i would just end your honor i'm not aware of any case where an agency has adopted two simultaneous interpretations of a regulation that are directly conflict with each other on the other side is not pointed to any and you should not sanction such an approach in this case i'd like to reserve my remaining time for a the answer was that there would be no basic increase in supply or yields of is that correct i'm not sure that that's true i know you're not sure we can build you can and sorry maybe i didn't understand the question well is is there going to be an increase of supply to chad yes a place yes there well it but the increase in supply is contingent on the south p river reaching a level that will enable the water to come in to chatfield the need then that's how you get and that's how the statement of zero likelihood of increases in the record because it was contingent disclose the maximum of the facts that would occur if this maximum level of water is permitted i think whether that additional water will actually come into the rather water will depend on a variety of environmental factors which like rain like think mentation should apply in this context but it should and the point of that regulation is to ensure that an agency doesn't pray to break apart a project in order to reach a finding of missoni that is in tatters good argument in this case then broken apart have the project and then you have the two plans why not look at the whole thing together will the court if you do then this will be the effect and that will bring in both new people and the same water at the same time segmenting in your view as you're saying they looked at everything not even looked at the stretching effect of dredging that's correct not at the naval level when they were looking at project alternatives yes and that's in the record that pages eight thirty to eight forty the alternatives were constrained to alternatives to the mitigation projects as opposed to alternatives to the reallocation project as a whole given that the mitigation projects were integral yes a the the mitigation projects are part and parcel integral to the gretchen cilla's this is incorporated really by reference that this is where it's important i think to keep the two statutes distinct the it section four for analysis was not necessarily distinct and the regulations the five there that the court should consider alternatives to the proposed discharge which would occur both under the recreation are interwoven with alternative theories i think perhaps the way to think about this is when the court considers discharges propose in the course of completing a pipeline for example they are the court would consider i this is one way of looking it's not necessary of course my my point is that in this in this context it was proper as i mentioned the reallocation reasons water levels and discharges were only contemplated in the two mitigation how much does your argument why on interpreting the words overall project purposes in the regulations as we read their regulations the phrase overall project purpose should be read in the context of section four four and the regulation s i think that overall project purpose links to propose discharge and so the core necessarily considered the overall project purposes in the context of as i mentioned the compensatory mitigation plan and mitigation plans so we consider the project purposes there and the other point is that when it when it considers astrachan fill analysis it didn't say we're going to consider these discharges in these plans that said we're going to consider the broader purpose of these two mitigation plans and the court also considered alternatives that didn't require dredge and fill but ultimately determined that those in the implementing the mitigation plans without dredging still would resign and broader environmental impacts and therefore under section a where it says so long as the alternative does not have other significant environmental consequences determined that completing the project  t dredging still would not be permissible under the regulation it considered increased water conservation her use of obscene gravel paths and use of the reader have reservoir and with respect to increase water conservation at the term and that such conservation at current levels and also important parallel action and not one that would meet the project's purpose and need as a standalone alternative and so those alternatives were were carried forward to be implemented by the water providers but were not analyzed the standalone alternative and the core provided a brief explanation for its decision not to evaluate those alternatives in further detail the other the other point i think isn't important to mention here is that when it selected the chatfield alternative it's a term and that the corps at that time indicated that use of that reservoir would be taken up by other water providers and that no for their capacity would be available for sale and there was no i just want to make sure i'm understanding this no potential for additional expansion that's my understanding so the corps explained in the need for that use of router has reservoir and water capacity there would be important for the denver area but that additional water would be i can't provide any further information at this time i'd be happy to add that to my my letter meaning inflow and outflow very yes correct analysis for the chapter of reservoir storage reallocation when they describe the project they're not describing the recreational modification they're describing the reallocation if you turn to the first page w fire at her suggests that the recreation is incidental to the proposed relocation further up on that same page it says that the environmental mitigation recreational modification are required because of the reallocation so i think there can be no question that the project is entered on this place on the in this case on the appropriate scope of the full complete project  second point i would like to this address we heard a new argument from counsel that we had actually expected in the district court it was never advanced and that is that mitigation means that alternative three is the least of our really damaging alternative that argument is clearly foreclose by the cor guidelines and the regulations which say the guidance documents would say you cannot consider compensatory mitigation until after you've determined what the lead by is the other otherwise you would always find that any alternative would be the least environmentally damaging because you could just mitigate whatever the harms were briefly i would just address your honor you're asking about the river has reservoir the core and i see my time without wrong which is going to continue or the router has reservoir of the core suggested that there was no additional storage capacity there we're not arguing that there should expand it but there was an indication in the record from comments by my own clients that the core that that reservoir could hold an additional forty two thousand acre feet which is double the capacity of the expansion a chap build and the only suggestion from the corps is that they assert that parker water sanitation district would not make that available to other users they have no evidence for that it's just their own conclusory assertion thank you thank you thank you for your arguments this morning