i 

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. 

UNITED STATES ARMY CORPS OF 

ENGINEERS, et al., 

 Defendants, 

and 

STATE OF GEORGIA, et al., 

 Defendant-Intervenors. 

Civil Action No. 15-696 (EGS) 

ALABAMA POWER COMPANY, 

 Plaintiff, 

 

v. 

UNITED STATES ARMY CORPS OF 

ENGINEERS, et al., 

 Defendants. 

Civil Action No. 15-699 (EGS) 

(Consolidated with No. 15-696) 

MEMORANDUM OPINION 

 
ii 

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 IntervenorPlaintiffs Object ......................................... 38

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

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

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

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

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

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
v

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
1 

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 D00053477-80.1 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]. 
2 

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 
3 

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 IntervenorDefendants’ 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 IntervenorDefendants’ brief. 
4 

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 IntervenorDefendants’ 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 IntervenorDefendants’ 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 
5

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 
6

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 
7

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 
8

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 
9

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 
10

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 
11

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 
12

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 
13

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 
14

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, 
15

“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 
16

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 
17

“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 
18

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 D00043779. 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.
19

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 
20

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
21

“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 D00043910. 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 D00044902. 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 
22

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 
23

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 D00053819, 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 acrefeet of power storage. Id. at D-00013497.0018. Then, in the 1941 

Definite Project Report, flood control storage decreased to 
24

management and power “the dual purpose[s]” of the reservoir and 

anticipated that its hydropower plant “would be used primarily 

as a peaking plant7 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 acrefeet. Id. at SUPPAR027127. The 1946 reconsideration resulted in 

389,000 acre-feet allocated to flood control and 253,000 acrefeet 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.
25

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 D00013496.0022, 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 D00044449. “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.
26

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 D00013496.0016, 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.
27

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-
28

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 
29

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 D00013501.0016; 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 D00013501.0015, D-00044904; and provide “more flexibility in the 
30

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 D00013501.0067 (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, 
31

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 
32

(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 D00013496.0041-42. 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 D00013496.0042. 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 
33

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 
34 

(citing A.R., ECF No. 61 at D-00013496.0050, D-00013496.0064, D00013496.0022, 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 congressionallyapproved 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. 
35

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 
36

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 “NoAction 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. 
37

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, D00049511, 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 
38

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 
39

(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 
40

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, D00044904. 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.
41

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.
42

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 
43

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 
44

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 
45

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 
46 

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 IntervenorDefendants 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. 
47

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 
48

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 

10 The 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.
49

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] 
50

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 
51

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 
52

(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 
53

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 IntervenorPlaintiffs, 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 
54

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[,]’” 

11 It is uncontested that the Alabama Plaintiffs have standing to 

pursue their claims. See Pls.’ Mot., ECF No. 83 at 35-36.
55

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 

12 Intervenor-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.
56

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
57

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 
58

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 
59

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 
60

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 

13 An 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-MI43 (N.D. Ga. Oct. 6, 2021), ECF No. 243 at 1.
61

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 forumshopping 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 privies15 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 
62

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).
63

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[,]” 
64

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 
65

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[,]” 
66

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 IntervenorPlaintiffs, 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 
67

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 

16 The 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.
68

enforceable conditions. Id. at 1336-38. Second, the Northern 

District of Georgia determined that ER 1110-2-8154 is a nonbinding 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 
69

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 
70

‘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.
71

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 
72

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 
73

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 

17 This 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.
74

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; 
75

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 
76

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).
77

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 
78

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. 
79

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 
80

that the two cases not only involve different river basins and 

geographical locations but “different contexts.”18 IntervenorDefs.’ 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. 

18 The 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. 
81

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 cases19); see also Def.-

Intervenor the State of Georgia’s Reply in Support of its Mot. 

19 Alabama 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.
82

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 
83

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, 
84

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 
85

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 
86

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 
87

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 IntervenorPlaintiffs—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-
88

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 IntervenorPlaintiffs “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 IntervenorPlaintiffs 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. IntervenorPlaintiffs “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. 
89

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 
90

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. 
91

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 
92

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 
93

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.
94

protect the interests of” APC or Intervenor-Plaintiffs in the 

ACF case such that it would now be fair to bind them, as nonparties, 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 
95

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] 
96

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 
97

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 
98

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 nonattainment 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.
99

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-
100

Defs.’ Cross-Mot., ECF No. 97 at 22 (agreeing that section 

1323(a) does not “impose[] a general duty on the Corps”). 

Instead, to state a claim under section 313(a), the Alabama 

Plaintiffs must allege that, in updating the Master Manual, the 

Corps has violated some applicable “requirement” within the 

meaning of that section, which thus requires that the Court 

determine whether state water quality standards, as the Alabama 

Plaintiffs contend, are themselves such “requirements.” See

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 25 n.5.

The Supreme Court has concluded that “the requirements that 

can be enforced against federal agencies under Section 313(a) 

are limited to objective state standards of control, such as 

effluent limitations in permits, compliance schedules[,] and 

other controls on pollution applicable to dischargers.” In re 

ACF Basin, 467 F. Supp. 3d at 1337; see EPA v. Cal. ex rel. 

State Water Res. Control Bd., 426 U.S. 200, 215, 96 S. Ct. 2022, 

48 L. Ed. 2d 578 (1976) (noting that “certain parts of the 

legislative history would seem to indicate that the 

‘requirements’ language of Section 313 refers simply and solely 

to substantive standards, to effluent limitations and standards 

and schedules of compliance” (some internal quotation marks 

omitted));22 New York, 620 F. Supp. at 381 (“[T]he Supreme Court 

22 The CWA was amended after the Supreme Court’s decision in EPA 

v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 96 
101

seems to equate ‘requirements’ in § 313 with effluent 

limitations and standards.”); see also Hancock v. Train, 426 

U.S. 167, 187-89, 96 S. Ct. 2006, 48 L. Ed. 2d 555 (1976) 

(concluding that nearly identical “requirements” language from 

the Clean Air Act contemplates only “emission standards and 

compliance schedules”). As the Northern District of Georgia 

noted in its 2020 ACF decision, “most [CWA] requirements 

ultimately arise from the foundational requirement to obtain a 

permit before discharging any pollutant into waters of the 

United States[,]” with each permit including “effluent 

limitations and other requirements sufficient to protect water 

quality standards.” In re ACF Basin, 467 F. Supp. 3d at 1337 

(citing 33 U.S.C. § 1311(a), (b)(1)(C)). 

While water quality standards and effluent limitations “are 

related, . . . the two are entirely different concepts and the 

difference is at the heart of the [Federal Water Pollution 

Control Act Amendments of 1972].” Bethlehem Steel Corp. v. EPA, 

538 F.2d 513, 515 (2d Cir. 1976). Before the 1972 Amendments, 

S. Ct. 2022, 48 L. Ed. 2d 578 (1976), but these amendments 

“merely expanded the federal government’s obligation to comply 

with both procedural and substantive ‘requirements.’” See

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 22 n.10 (citing New 

York v. United States, 620 F. Supp. 374, 383 (E.D.N.Y. 1985)). 

Thus, to the degree the Supreme Court’s ruling “construed the 

substantive ‘requirements’ of § 313 to mean effluent 

limitations, such ruling was unaffected by the 1977 amendments 

enacted by Congress.” New York, 620 F. Supp. at 382.
102

water quality standards “were the keystone of the federal 

pollution control program[,]” under which “if wastes discharged 

into receiving waters reduced the quality below permissible 

standards, legal action could be commenced against the 

discharger.” Id. (citation and internal quotation marks 

omitted). However, “[t]his program based on water quality 

standards . . . proved ineffective[,]” problems which “stemmed 

from the character of the standards themselves,” Cal. ex rel., 

426 U.S. at 202; and “[i]t was this dissatisfaction with water 

quality standards as a method of pollution control that led to 

the proposal that they be replaced or supplemented with 

‘effluent limitations[,]’” Bethlehem, 538 F.2d at 515. 

Thereafter, the concept of strict technology-based effluent 

limitations was “offered as a logical alternative to” water 

quality standards, so that “[i]nstead of indirectly measuring 

discharges by their effect on water quality, monitoring 

equipment would directly measure discharges at their source.” 

Id. (citation omitted); Cal. ex rel., 426 U.S. at 204-05. Today, 

effluent limitations, established pursuant to sections 301, 304, 

and 306 of the CWA, see 33 U.S.C. §§ 1311, 1314, 1316; and 

defined as restrictions established by the States “on 

quantities, rates, and concentrations” of constituent substances 

“discharged from point sources into navigable waters,” id. § 

1362(11); are readily distinguishable from water quality 
103

standards, which “encompass[] all designated uses of a water 

body and all water quality criteria that define pollutant levels 

necessary to protect those uses[,]” Jackson, 798 F. Supp. 2d at 

227-28; 33 U.S.C. § 1313(c)(2)(A). So while the CWA “provides 

for two primary sets of water quality measures: (1) effluent 

limitations; and (2) water quality standards[,]” Nat’l Wildlife 

Fed’n v. U.S. Army Corps of Eng’rs, 92 F. Supp. 2d 1072, 1074 

(D. Or. 2000); the Court concludes that history and precedent 

regarding the CWA and its amendments indicate that enforceable 

“requirements” within the meaning of section 313(a) include only

the former and not the latter, see Or. Nat. Res. Council, 834 

F.2d at 850 (stating that while “effluent limitations may be 

derived from state water quality standards[,]” only these 

limitations “may be enforced when included in a discharger’s 

permit[,]” as opposed to “water quality standards themselves”). 

Therefore, the Court rejects the Alabama Plaintiffs’ textual 

approach to arguing that “[n]othing in § 1323(a)’s text excludes 

water-quality standards from the ‘requirements’ to which the 

Corps must adhere.” See Pls.’ Reply, ECF No. 99 at 22-23.

The Court notes that under the CWA, dams in the ACT Basin, 

including Allatoona Dam at issue here, are considered “nonpoint 

sources,” to which effluent limitations do not apply, and thus 

are not subject to NPDES permit requirements, see Or. Nat. Res. 

Council, 834 F.2d at 849-50; Nat’l Wildlife Fed’n, 92 F. Supp. 
104

2d at 1075; regardless of whether the dams are operated by 

private citizens or by the Corps as a federal agency, see, e.g.,

In re ACF Basin, 467 F. Supp. 3d at 1337-38 (concluding that 

nonpoint sources, like dams in the ACF Basin “are not subject to 

NPDES permits . . . or effluent limitations”); Nat’l Wildlife 

Fed’n v. Gorsuch, 693 F.2d 156, 167, 182-83 (D.C. Cir. 1982) 

(same); U.S. ex rel. Tenn. Valley Auth. v. Tenn. Water Quality 

Control Bd., 717 F.2d 992, 998 (6th Cir. 1983) (same); L.A. 

Cnty. Flood Control Dist. v. Nat. Res. Def. Council, 568 U.S. 

78, 82, 133 S. Ct. 710, 184 L. Ed. 2d 547 (2013) (explaining 

that “discharge of pollutants” does not occur when water “flows 

from one portion of a river that is a navigable water of the 

United States, through a concrete channel or other engineered 

improvement in the river,” and then “into a lower portion of the 

same river”). Certification obligations from section 401 of the 

CWA, see 33 U.S.C. § 1341 (providing that whenever a federal 

agency issues a license or permit for any activity that may 

result in a discharge of pollutants into navigable waters, the 

State in which the activity occurs may issue a section 401 

certification imposing any conditions to ensure compliance with 

applicable water quality standards, and the certification is 

then incorporated into the license or permit); “often a source 

of enforceable ‘requirements’ applicable to federal agencies[,]” 

also do not apply to nonpoint sources such as dams, In re ACF 
105

Basin, 467 F. Supp. 3d at 1337-38. In sum, the Alabama 

Plaintiffs cannot point to: (1) effluent limitations; (2) NPDES 

permits; (3) section 401 certification requirements; or 

(4) water quality standards as sources of enforceable 

“requirements” under the CWA for the Corps’ ACT projects, all of 

which involve dams and are governed by the Master Manual’s 

operational updates.

The Court’s conclusion is buttressed by the Northern 

District of Georgia’s identical conclusion that state “water 

quality standards are not directly enforceable under the [CWA,]” 

but “rather they provide the basis for specific, enforceable 

requirements designed to achieve them.” In re ACF Basin, 467 F. 

Supp. 3d at 1337-38; see also Or. Nat. Res. Council, 834 F.2d at 

850 (similarly concluding that “it is not the water quality 

standards themselves that are enforceable . . . but it is the 

‘limitations necessary to meet’ those standards, or ‘required to 

implement’ the standards” that are enforceable); IntervenorDefs.’ Suppl. Mot., ECF No. 129 at 13 (correctly contending that 

although water quality standards “‘establish the desired 

condition of a waterway,’” and are foundational to the CWA, 

“they do not create ‘requirements’ that can be ‘violated’ within 

the meaning of Section 1323(a)” (quoting Arkansas, 503 U.S. at 

101)). Despite state water quality standards not being “selfenforcing,” the Northern District of Georgia concluded that to 
106

ensure the attainment of those standards, the States can “create 

specific, enforceable ‘requirements’ of nonpoint sources through 

programs such as: ‘Best Management Practices’ or ‘BMPs’ to 

control runoff and ‘total maximum daily load[s]’ or ‘TMDLs’ that 

impose conditions on nonpoint source users.” In re ACF Basin, 

467 F. Supp. 3d at 1337-38; see also Tenn. Water Quality Control 

Bd., 717 F.2d at 999 (“Water pollution arising from nonpoint 

sources is to be dealt with differently, specifically through 

the device of areawide waste treatment management by the 

states.”); Ctr. for Native Ecosystems v. Cables, 509 F.3d 1310, 

1332 (10th Cir. 2007) (concluding that by implementing BMPs to 

address water pollution, the agency complied with Wyoming’s 

state water quality “requirements” under section 1323(a) of the 

CWA); Ctr. for Biological Diversity v. Wagner, No. 08-302, 2009 

WL 2176049, at *16, *18 (D. Or. June 29, 2009) (finding that the 

agency’s implementation of BMPs “constitutes compliance with” 

Oregon’s state water quality “requirements” and thus section 

1323(a)), R. & R. adopted by Ctr. for Biological Diversity v. 

Wagner, No. 08-302, 2009 WL 2208023 (D. Or. July 22, 2009). 

Therefore, once the States create such “requirements” to serve 

as the enforcement mechanisms for achieving the underlying water 

quality standards, federal facilities must comply with them “to 

the same extent as any nongovernmental entity.” 33 U.S.C. § 

1323(a); see also Cables, 509 F.3d at 1332 (holding federal 
107

agencies to the same water pollution control requirements “as if 

they were private citizens”). 

In concluding that state water quality standards are not 

“requirements” under section 313(a) of the CWA and that the 

State of Alabama failed to identify any other “requirement” that 

the Corps had violated, the Northern District of Georgia relied 

heavily on the Supreme Court’s decision in EPA v. California ex 

rel. State Water Resource Control Board, 426 U.S. 200, 96 S. Ct. 

2022, 48 L. Ed. 2d 578 (1976), and the District Court for the 

Eastern District of New York’s (“Eastern District of New York”) 

decision in New York v. United States, 620 F. Supp. 374 

(E.D.N.Y. 1985). See In re ACF Basin, 467 F. Supp. 3d at 1337-

38. The New York plaintiffs, like the Alabama Plaintiffs here, 

argued that “requirements” under section 313(a) include water 

quality standards such that an alleged violation of those 

standards is actionable under the CWA. 620 F. Supp. at 381-82. 

Using the Supreme Court’s discussion of the meaning of section 

313(a)’s “requirements” language in EPA v. California ex rel., 

the Eastern District of New York concluded that state water 

quality standards fail to equate to substantively enforceable 

“requirements” under that provision because they are not “an 

objective, administratively predetermined effluent standard or 

limitation or administrative order upon which to measure the 

prohibitive levels of water pollution.” See id. at 381-84. While 
108

the Georgia Parties label New York “instructive,” IntervenorDefs.’ Cross-Mot., ECF No. 97 at 24; the Alabama Plaintiffs call 

it “an inapposite non-APA case” because they claim it made 

conclusions under the CWA’s citizen-suit provision, section 505 

codified at 33 U.S.C. § 1365, that do not apply “to an APA suit 

challenging the Corps’ compliance with § 1323(a)[,]” see Pls.’ 

Reply, ECF No. 99 at 24-25. So too have the Alabama Plaintiffs 

claimed that this Court should reject the Northern District of 

Georgia’s reasoning in the ACF case because they allege it

erroneously analyzed “Alabama’s water-quality claims as if they 

were under the citizen-suit provision of the [CWA,]” as opposed 

to being under the APA. See Pls.’ Resp. to Suppl. Authority 

Notice, ECF No. 120 at 1. The Court rejects both of these 

arguments for the same reason the Northern District of Georgia 

did: “The New York court examined both Section 313(a) and 

Section 505[,] explicitly holding that the two should be 

‘construed as coextensive[,]’ . . . [and] held that water 

quality standards do not constitute ‘requirements’ under either 

code section.” In re ACF Basin, 467 F. Supp. 3d at 1338 (citing 

New York, 620 F. Supp. at 381-84). 

The Court is therefore unpersuaded by the contrary cases

the Alabama Plaintiffs cite in their reply, many of which were 

also considered by the Northern District of Georgia and duly 

rejected because they arose from “violations of Section 401 
109

Certification or NPDES requirements, [or] . . . from specific 

state regulations adopted by the states to implement these 

regulatory programs and not directly from the water quality 

standards themselves.” In re ACF Basin, 467 F. Supp. 3d at 1338-

39; see, e.g., S.D. Warren Co. v. Me. Bd. of Env’t Prot., 547 

U.S. 370, 374-75, 126 S. Ct. 1843, 164 L. Ed. 2d 625 (2006) 

(addressing section 401 certification requirements); Ohio v. 

U.S. Army Corps of Eng’rs, 259 F. Supp. 3d 732, 749-52 (N.D. 

Ohio 2017) (same); Fla. Wildlife Fed’n, Inc. v. U.S. Army Corps 

of Eng’rs, No. 4:12-cv-355, 2013 WL 5436707, at *3 (N.D. Fla. 

Sept. 27, 2013) (analyzing a Florida statute creating a private 

right of action against individuals who violate the State’s 

water quality standards). In addition, although the Court of 

Appeals for the Ninth Circuit (“Ninth Circuit”) has stated that 

section 313(a) of the CWA requires the Corps to comply with 

state water quality standards, Nat’l Wildlife Fed’n v. U.S. Army 

Corps of Eng’rs, 384 F.3d 1163, 1167 (9th Cir. 2004); see also

Nat’l Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 132 F. Supp. 

2d 876, 889 (D. Or. 2001); it not only did not actually analyze 

whether such standards constitute enforceable “requirements” 

within the meaning of the CWA, see Intervenor-Defs.’ Cross-Mot., 

ECF No. 97 at 24; Defs.’ Reply, ECF No. 102 at 34; but it also 

noted that the CWA’s directive to agencies to comply with such 

standards “must be construed in pari materia with” other 
110

congressional statutes governing federal dams, Nat’l Wildlife 

Fed’n, 384 F.3d at 1178; as the Corps now argues in defense to 

the Alabama Plaintiffs’ CWA claims, see Defs.’ Cross-Mot., ECF 

No. 95 at 52-53; see also 33 C.F.R. § 222.5(f)(1) (listing some 

of the “applicable Congressional Acts”).23

The Court is instead persuaded by an earlier Ninth Circuit 

case that explicitly analyzed the enforceability of “state water 

quality standard violations from nonpoint sources pursuant to 

the APA,” as is the case here, in which that court specified 

that while the CWA “requires each state to develop and implement 

‘water quality’ standards to protect and enhance the quality of 

water within the state[,]” federal agencies need only comply 

23 Another district court has suggested that National Wildlife 

Federation v. U.S. Army Corps of Engineers, 132 F. Supp. 2d 876 

(D. Or. 2001), can be “significant[ly]” distinguished from cases 

like the instant action, since it “involved a series of dams 

which were all located in the same state, thus requiring the 

enforcement of only one set of water quality standards.” North 

Dakota v. U.S. Army Corps of Eng’rs, 270 F. Supp. 2d 1115, 1127 

(D.N.D. 2003). That court wrote that when “other downstream 

states may assert similar violations of their respective water 

quality standards[,] . . . the complexity of the issues 

present[ed] . . . appears to lessen the probability of . . . 

success on the merits.” Id. It therefore held that “[a]lthough 

the Corps of Engineers has been held liable for non-compliance 

with state water quality laws in one other reported decision, 

the courts have yet to see one state along a major river system 

comprised of several dams and reservoirs spread over many states 

succeed in a state water quality standards enforcement action.” 

Id. at 1128. Applied here, while Allatoona Dam is in Georgia, 

operations under the Master Manual can affect Georgia’s, as well 

as, Alabama’s water quality standards, thereby limiting the 

persuasive effect of National Wildlife Federation in this case.
111

with “state requirements,” and that it is “not the water quality 

standards themselves that are enforceable” “requirements” but 

rather “the ‘limitations necessary to meet’ those standards[.]” 

Or. Nat. Res. Council, 834 F.2d at 848, 850. 

The Alabama Plaintiffs cite two more cases which the Court 

finds similarly unpersuasive. They point to North Dakota v. U.S. 

Army Corps of Engineers, 270 F. Supp. 2d 1115 (D.N.D. 2003), see

Pls. Reply, ECF No. 99 at 24; which they note cites the D.C. 

Circuit’s decision in National Wildlife Federation v. Gorsuch, 

693 F.2d 156 (D.C. Cir. 1982), to argue for “[t]he concept that 

state water quality standards should apply to the activities of 

the Corps . . . . ” 270 F. Supp. 2d at 1125 n.6 (citing Gorsuch, 

693 F.2d at 182-83 n.78). However, in Gorsuch, the D.C. Circuit 

merely stated that “it may well be that state areawide water 

quality plans are the better regulatory tool” than the NPDES 

permit program for nonpoint sources and that “new dams cannot be 

built unless they comply with state water quality requirements.” 

693 F.2d at 182-83. Nothing in these statements differs from the

Court’s conclusions, as it has already concluded that NPDES 

permit requirements do not apply to the Allatoona Dam at issue 

and that section 313(a) mandates compliance with applicable 

“requirements.” Because the D.C. Circuit did not distinguish 

between state water quality standards and the enforceable 

“requirements” that lead to attainment of those standards, any 
112

dicta in a footnote referencing such standards is not binding 

here, see id. at 183 n.78; and in any event, the D.C. Circuit 

later stated that “water quality standards by themselves have no 

effect on pollution; the rubber hits the road when the statecreated standards are used as the basis for specific effluent 

limitations in NPDES permits[,]” Am. Paper Inst., 996 F.2d at 

350. Furthermore, the North Dakota court wrote that “[t]here is 

no mechanism in the [CWA] for the enforcement of water quality 

standards adopted by the states; rather the enforcement is left 

to the states[,]” a conclusion shared by this Court and the 

Northern District of Georgia. North Dakota, 270 F. Supp. 2d at 

1124; see In re ACF Basin, 467 F. Supp. 3d at 1338. And in that 

case, North Dakota’s governor signed an emergency bill into law 

amending North Dakota’s water quality statute to “enable[]” the 

action to be brought by the State against the Corps for 

“reduc[ing] the quality of [State] waters below the water 

quality standards established,” i.e., creating an enforceable 

“requirement.” North Dakota, 270 F. Supp. 2d at 1124. As the 

Northern District of Georgia concluded in the ACF case, “Alabama 

has not alleged violations of a similar provision in Georgia or 

Alabama[,]” and the same is true here in the ACT case. In re ACF 

Basin, 467 F. Supp. 3d at 1139.

Since the Court has concluded that Alabama’s water quality 

standards are not “requirements,” it next assesses whether the 
113

Alabama Plaintiffs have identified any enforceable “requirement” 

to state a claim under section 313(a) of the CWA. As the Corps 

notes, “the only water body where [the Alabama] Plaintiffs 

specifically contend that the Alabama water quality standards 

will be exceeded” is Weiss Lake, Alabama. Defs.’ Reply, ECF No. 

102 at 36. The Alabama Plaintiffs argue that, as confirmed by 

the FEIS, reduced flows under the Master Manual “will exacerbate 

nutrient concentrations in Weiss Lake, thus contributing to a 

violation of the limits [the Alabama Department of Environmental 

Management (“ADEM”)] has placed there[,]” and will also 

adversely impact the lake’s water temperature and concentrations 

of dissolved oxygen, nitrogen, phosphorous, and chlorophyll a, 

which “all affect marine habitat.” Pls.’ Mot., ECF No. 83 at 31, 

50 (citing A.R., ECF No. 61 at D-00043827, D-00044389, D0004390-44393). They contend that downstream releases “are 

important because the EPA has determined that the Coosa River, 

including Weiss Lake, has impaired water quality because of 

discharges originating mostly in Georgia[,]” and that “[t]o that 

end,” there is “a specific Total Maximum Daily Load for the 

lake, providing limits on pollutants causing a nutrient problem 

in the lake.” Id. at 17-18 (citing A.R., ECF No. 61 at D00027171-73, D-00027183); see also A.R. ECF No. 61 at D-00027171 

(explaining that this TMDL “addresses impairment due to 

nutrients in Weiss Lake by providing an estimate of the total 
114

phosphorus concentrations allowable in the lake from the point 

sources and non-point sources in the watershed” and functions in 

conjunction with Alabama’s established numeric chlorophyll a

criterion for Weiss Lake). The Alabama Plaintiffs argue that 

“the ACT Manual will contribute to violations of water-quality 

standards that were incorporated in a” TMDL at Weiss Lake, 

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 24; and thus appear 

to contend that even if Alabama’s water quality standards are 

not themselves enforceable “requirements” under section 313(a) 

of the CWA, the Weiss Lake TMDL is, see id. at 25 n.5; Pls.’ 

Mot., ECF No. 83 at 50. The Georgia Parties argue in response

that the “water quality standards for nutrients at Weiss Lake . 

. . are not ‘requirements’ within [the CWA’s] framework” with 

which the Corps must comply. Intervenor-Defs.’ Cross-Mot., ECF 

No. 97 at 22. The Court agrees.

A TMDL specifies “the absolute amount of particular 

pollutants the entire water body can take on while still 

satisfying all water quality standards.” Jackson, 798 F. Supp. 

2d at 216 (citing 33 U.S.C. § 1313(d)(1)(C)). Thus, when a state 

identifies an impaired waterbody, it must establish a TMDL for 

the pollutants causing the impairment. Nat. Res. Def. Council, 

Inc. v. EPA, 301 F. Supp. 3d 133, 137 (D.D.C. 2018). Although 

the CWA does not define the phrase “total maximum daily load,” 

see generally 33 U.S.C. § 1362; it states that “[s]uch load 
115

shall be established at a level necessary to implement the 

applicable water quality standards with seasonal variations and 

a margin of safety which takes into account any lack of 

knowledge concerning the relationship between effluent 

limitations and water quality[,]” id. § 1313(d)(1)(C). The 

States submit proposed TMDLs to the EPA, which either approves 

or rejects them. Id. § 1313(d)(2). Rejection of the proposal 

“triggers [the] EPA’s duty to develop a substitute TMDL for the 

water body in question[,]” Jackson, 798 F. Supp. 2d at 216 

(citing 33 U.S.C. § 1313(d)(2)); but if the EPA approves the 

proposal, “the implementation of the TMDL rests largely with the 

state[,] . . . [as t]he CWA requires states to engage in a 

‘continuing planning process’ to implement their TMDLs,” Nat. 

Res. Def. Council, 301 F. Supp. 3d at 137-38 (citing 33 U.S.C. § 

1313(e)(3)(C)). TMDLs are thus “not self-implementing 

instruments, but instead serve as informational tools utilized 

by [the] EPA and the States to coordinate necessary responses to 

excessive pollution in order to meet applicable water quality 

standards.” Jackson, 798 F. Supp. 2d at 216; see also Anacostia 

Riverkeeper, Inc. v. Wheeler, 404 F. Supp. 3d 160, 165 (D.D.C. 

2019) (“TMDLs themselves have no self-executing regulatory 

force.”); Pronsolino v. Nastri, 291 F.3d 1123, 1129 (9th Cir. 

2002) (“TMDLs are primarily informational tools that allow the 

states to proceed from the identification of waters requiring 
116

additional planning to the required plans.”). Even though they 

are not themselves requirements, TMDLs are “central” to the CWA 

because “they tie together point-source and nonpoint-source 

pollution issues in a manner that addresses the whole health of 

the water.” Sierra Club v. Meiburg, 296 F.3d 1021, 1025 (11th 

Cir. 2002) (citation and internal quotation marks omitted). “On 

the federal side,” they “are incorporated into the NPDES system 

through permit regulation of point sources[,]” and “[o]n the 

state side, the maximum levels and allocations of pollutants in 

a TMDL are incorporated into the State’s water quality 

management plan.” Jackson, 798 F. Supp. 2d at 216-17. In sum, 

although not self-executing, TMDLs “serve as the cornerstones 

for pollution-reduction plans that do create enforceable rights 

and obligations[,]” Am. Farm Bureau Fed’n, 792 F.3d at 291; and 

provide “information for federal, state and local actors in 

furtherance of the cooperative efforts to improve water quality 

envisioned in the CWA[,]” Jackson, 798 F. Supp. 2d at 217.

Based on this caselaw, although the Northern District of 

Georgia suggested that States can create specific “requirements” 

of nonpoint sources through TMDLs, see In re ACF Basin, 467 F. 

Supp. 3d at 1338; the Court concludes that the Weiss Lake TMDL 

raised by the Alabama Plaintiffs is not a directly enforceable 
117

requirement within the meaning of the CWA.24 Neither are the 

chlorophyll a standards for Weiss Lake “requirements,” but are 

instead examples of specific numeric water quality criteria, 

which are merely a piece of what makes up the unenforceable 

water quality standards. See Jackson, 798 F. Supp. 2d at 215; 

A.R., ECF No. 61 at D-00027171 (“Alabama has established a 

numeric chlorophyll a criterion of 20 ųg/L for Weiss Lake.”); 

see also Ala. Admin. Code r. 335-6-10.11 (1991) (“Water Quality 

Criteria Applicable to Specific Lakes”); Intervenor-Defs.’ 

Cross-Mot., ECF No. 97 at 23. Because the Alabama Plaintiffs 

have failed to identify an enforceable legal “requirement” under 

section 313(a) of the CWA that the Master Manual violates, the 

Court concludes, as did the Northern District of Georgia in the 

ACF case, that they have failed to state a claim pursuant to 33 

U.S.C. § 1323(a). See In re ACF Basin, 467 F. Supp. 3d at 1339.

And, even if operations under the Master Manual end up 

causing or contributing to future violations of Alabama’s water 

quality standards, the Alabama Plaintiffs will continue to lack 

an actionable CWA claim.25 Intervenor-Defs.’ Cross-Mot., ECF No. 

24 The Georgia Parties also correctly note that the Weiss Lake 

TMDL only mentions the Corps once and does not purport to impose 

specific requirements on the Corps or on any of its operations, 

including at Allatoona Lake. See Intervenor-Defs.’ Suppl. Mot. 

Reply, ECF No. 139 at 14; A.R., ECF No. 61 at D-00027180-81.

25 The Alabama Plaintiffs seem to distinguish between whether the 

Corps has already violated the CWA or whether it will “in the 

future.” See Pls.’ Resp. to Suppl. Authority Notice, ECF No. 120 
118

97 at 24; see Wagner, 2009 WL 2176049, at *16-18 (viewing the 

agency’s implementation of BMPs as compliance with Oregon’s 

applicable state “requirements,” even if the agency’s actions 

contributed to an existing violation of water quality 

standards); Cables, 509 F.3d at 1332-33 (same conclusion for 

BMPs under Wyoming’s state “requirements” even though the 

agency’s action did not “necessarily stop nonpoint-source 

pollution from exceeding water quality standards”). Finally, to 

the extent the Alabama Plaintiffs argue that they did not have 

to identify any “requirement” at all under section 313(a) 

because their cause of action is under the APA, see Ala.’s Opp’n 

to Suppl. Mot., ECF No. 134 at 25 n.5; Pls.’ Resp. to Suppl. 

Authority Notice, ECF No. 120 at 1; the Court rejects the 

argument, as APA review “requires reference to the legal duty 

set forth in the governing substantive statute[,]” here being 

the CWA, Nat’l Wildlife Fed’n, 132 F. Supp. 2d at 889.

b. ER 1110-2-8154

The Alabama Plaintiffs next argue that the Corps’ own 

guidance in ER 1110-2-8154 provides a source of independent 

at 2. The Court views this distinction as immaterial since the 

Alabama Plaintiffs cannot identify any enforceable CWA 

“requirement,” either now or in the future. See North Dakota, 

270 F. Supp. 2d at 1126 (“North Dakota has alleged future

violations of the [CWA] and state water quality standards. [Its] 

failure to show . . . how the Corps . . . is currently in 

violation of the [CWA] or state water quality standards weighs 

against its success on the merits . . . .”).
119

“requirements” beyond those in the CWA and mandates that the 

Corps “avoid creating water-quality conditions that impair 

‘existing instream water uses’ ‘throughout the area’ its dam 

operations will affect.” Pls.’ Mot., ECF No. 83 at 49 (quoting 

ER 1110-2-8154 at 2 ¶ 6a-b). They argue that ER 1110-2-8154 

requires the Corps to “‘[e]nsure that water quality, as affected 

by the project and its operation is suitable’ not only ‘for 

project purposes,’ but also for ‘existing water uses, and public 

health and safety and [is] in compliance with applicable Federal 

and state water quality standards.’” Id. (citing ER 1110-2-8154

at 3 ¶ 8a). The Georgia Parties argue—and the Court agrees—that 

the ERs, including ER 1110-2-8154, are not binding on the Corps. 

See Intervenor-Defs.’ Reply, ECF No. 103 at 15-16.

While “[i]t is axiomatic that an agency is legally bound to 

respect its own regulations and commits procedural error if it 

fails to abide them[,]” Algonquin Gas Transmission Co. v. FERC, 

948 F.2d 1305, 1315 (D.C. Cir. 1991) (citation and internal 

quotation marks omitted); it is likewise “axiomatic” that courts 

“will not review allegations of noncompliance with an agency 

statement that is not binding on the agency[,]” United States v. 

Alameda Gateway Ltd., 213 F.3d 1161, 1167 (9th Cir. 2000) 

(citation and internal quotation marks omitted); specifically, 

what amounts to “a general statement of policy” as opposed to a 

binding “substantive rule,” Pac. Gas & Elec. Co. v. Fed. Power 
120

Comm’n, 506 F.2d 33, 37 (D.C. Cir. 1974). Whereas substantive 

rules are adopted pursuant to the APA’s formal notice and 

comment process, see 5 U.S.C. § 553; and have the force of law, 

a general statement of policy does not result from a rulemaking 

or an adjudication; “it is neither a rule nor a precedent but is 

merely an announcement to the public of the policy which the 

agency hopes to implement in future rulemakings or 

adjudications[,]” Pac. Gas, 506 F.2d at 38. Rather than 

establish binding norms that determine issues or rights, a 

general statement of policy is “an informational device” by 

which an agency expresses its views “prior to their actual 

application in particular situations.” Id. Accordingly, the 

agency, as well as third parties, cannot rely upon a general 

statement of policy as law because it merely announces “the 

agency’s tentative intentions for the future[,]” and when 

applied in a particular situation, the agency “must be prepared 

to support the policy just as if the policy statement had never 

been issued.” Id. When determining whether an agency standard 

carries the force and effect of law or is instead a non-binding 

statement of policy, courts will look to the agency’s expressed 

intent, including the “agency’s own characterization of a

particular order,” id.; whether the standard “was meant to 

create substantive rights in third parties,” Armstrong v. 

Accrediting Council for Continuing Educ. & Training, Inc., 980 
121

F. Supp. 53, 66 (D.D.C. 1997); and whether it was promulgated 

only after public notice and comment, see Nat’l Mining Ass’n v. 

McCarthy, 758 F.2d 243, 250 (D.C. Cir. 2014). 

The Court concludes, as did the Northern District of 

Georgia in the ACF case, that ER 1110-2-8154 “is an internal 

guidance document that cannot be enforced by third parties.” In 

re ACF Basin, 467 F. Supp. 3d at 1340. First, the “Purpose”

section of ER 1110-2-8154 states that it “establishes a policy 

for the water quality management program at Corps civil works 

projects.” ER 1110-2-8154 at 1 ¶ 1. This text indicates that the 

purpose of ER 1110-2-8154 is to memorialize the general policy 

behind the Corps’ water quality management program and to guide 

Corps personnel in working on related civil works projects. See

Alameda Gateway, 213 F.3d at 1168 (reaching the same conclusion 

based on similar “Purpose” text in a different ER). The Alabama 

Plaintiffs point to excerpts of ER 1110-2-8154 from the “Policy” 

section, which states that “[t]he Corps’ policy is to take a 

leadership role in carrying out the goals and objectives of the 

national policy by managing the nation’s water resources,” ER 

1110-2-8154 at 2 ¶ 6(b); and from the “Management” section, 

which states that “[d]ivisions should adopt and implement 

[certain] general water quality management objectives for all 

Corps water resources projects[,]” id. at 3 ¶ 8. However, this 

text does not establish a specific plan for any particular Corps 
122

project. See Pac. Gas, 506 F.2d at 40. Instead, as the Northern 

District of Georgia concluded regarding this language, “[a]n 

agency statement regarding factors that should be considered and 

‘leaves the agency free to exercise its discretion to follow or 

not to follow that general policy in an individual case’ is 

merely a general statement of policy without force of law.” In 

re ACF Basin, 467 F. Supp. 3d at 1340 (quoting Nat’l Mining

Ass’n v. Sec’y of Lab., 589 F.3d 1368, 1371 (11th Cir. 2009) 

(emphasis added)). Second, ER 1110-2-8154 “was not published in 

either the Code of Federal Regulations or the Federal Register, 

providing further evidence that [it] was not intended to be 

binding.” Alameda Gateway, 213 F.3d at 1168. Finally, ER 1110-2-

8154 “does not appear to affect any individual rights or 

obligations[,]” In re ACF Basin, 467 F. Supp. 3d at 1340; and 

therefore cannot create substantive rights in third parties like 

the Alabama Plaintiffs, Alameda Gateway, 213 F.3d at 1168.

While the D.C. Circuit has not considered the issue, 

numerous courts have concluded that the ERs are non-binding

general policy statements. See, e.g., Alameda Gateway, 213 F.3d 

at 1168 (concluding that ER 1165-2-131 was a policy statement 

intended “to guide the practice of district engineers” rather 

than a substantive rule); Pearce v. United States, 261 F.3d 643, 

648-49 (6th Cir. 2001) (holding that ER 1130-2-341 was “not a 

substantive agency regulation” but part of the Corps’ “internal 
123

operating manual” and therefore created no enforceable duties); 

Slappey v. United States, No. 1:11-cv-93, 2013 WL 5406431, at *5 

(M.D. Ga. Sept. 25, 2013) (agreeing that the ERs “provide[] 

general objectives and guidelines” and do “not mandate any 

particular” features at Corps projects), aff’d, Slappey v. U.S. 

Army Corps of Eng’rs, 571 F. App’x 855 (11th Cir. 2014); Jones 

v. Rose, No. 00-cv-1795, 2008 WL 552666, at *39 (D. Or. Feb. 28, 

2008) (“[T]he [ERs] are not legislative in nature; do not have 

the force and effect of law; and, therefore, are not reviewable 

by the Court.”). Accordingly, because ER 1110-2-8154 is not 

binding, the Corps “retains the discretion and authority to 

change its position . . . in any specific case[,]” and the 

Alabama Plaintiffs have no right to enforce it as against the 

Master Manual’s updates. Ass’n of Flight Attendants v. Huerta, 

785 F.3d 710, 716 (D.C. Cir. 2015) (citation omitted).

Instead of pointing to any enforceable “requirements” under 

the CWA or the ERs, the Alabama Plaintiffs direct the Court to

public comments the EPA made on the FEIS. See Pls.’ Mot., ECF 

No. 83 at 48, 51; A.R. ECF No. 61 at D-00049703-14 (EPA’s 

complete letter in the record). However, the EPA’s comment 

letter does not identify a legal requirement that the Court can 

enforce and instead makes many of the same arguments the Court 

has rejected, including claiming that enforceable “requirements 

are found in the CWA, Executive Orders, promulgated regulations, 
124

and the [Corps’] own guidance.” A.R. ECF No. 61 at D-00049710. 

In addition, the language which the Alabama Plaintiffs cite

comes from the “Recommendations” section of the letter, in which 

the EPA only “recommend[ed]” that the Corps consider and 

maximally comply with water quality standards. Id. at D00049711. Further, while the Alabama Plaintiffs highlight EPA

statements that the Corps “cannot, through its operational 

decisions, create conditions (e.g., decreased flow) that cause 

permittees to fall out of compliance[,]” id. at D-00049704; and 

force “States and other [downstream] stakeholders [to] address 

the consequences of” these decisions, id. at D-00049709; these 

are again comments not grounded in a specific source of legal 

obligations, see id. at D-00049705 (contending, without 

authority, that the Master Manual “should provide for operations 

that comply with state water quality standards”). 

And, even if operations under the Master Manual end up 

affecting downstream water quality under low flow conditions, as 

the FEIS admits could happen, id. at D-00043827; which then 

could cause state agencies to adjust their NPDES permits to 

impose more stringent effluent limitations on permit holders, 

see id. at D-00044390 (explaining that “permit conditions may be 

temporarily changed [by the States] during extreme low-flow 

conditions”); such a result is not an illicit shift in 

mitigation responsibility or an unlawful expectation by the 
125

Corps, but rather its valid reliance on the actual legal 

requirements imposed by the CWA’s statutory permitting scheme. 

Specifically, section 301 of the CWA requires effluent 

limitations in NPDES permits to be as stringent as necessary to 

meet water quality standards, see 33 U.S.C. § 1311(b)(1)(C); and 

mandates that States continually monitor their waters covered by 

the CWA to identify those for which current pollution controls 

“are not stringent enough,” so as to force them to update those

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

§ 1313(d)(1)(A)). Section 301 is thus a source of an enforceable 

obligation applicable to the States, but nothing in it or any 

other CWA section makes the Corps responsible for ensuring 

States’ compliance. As the Corps states in the FEIS, it has no 

duty “to ensure that other entities meet their federal clean 

water compliance requirements in the future[,]” nor is it 

“authorized to operate projects to ensure compliance by 

others[.]” A.R., ECF No. 61 at D-00043784; see also IntervenorDefs.’ Suppl Mot., ECF No. 129 at 12 n.6 (“[T]he [CWA] prohibits 

the Corps from planning to use reservoir releases to off-set the 

impacts of pollution caused by others.”). Instead, it is 

allowable for agencies to “recognize that other entities are in

the best position to take appropriate action.” See In re ACF 

Basin, 554 F. Supp. 3d at 1307 (rejecting the plaintiffs’ ACF 

claim that the Corps erred by “punting mitigation to [the State 
126

of] Georgia”). Thus, contrary to the Alabama Plaintiffs’ 

contention, the Corps cannot “den[y]” obligations that do not 

exist, nor does it have “its own obligations” under section 

313(a) of the CWA or ER 1110-2-8154 that the Master Manual 

violates. Pls.’ Mot., ECF No. 83 at 51.26

Emerging from all the failed “requirements” the Alabama 

Plaintiffs have pointed to are the Corps’ binding regulations 

published in the Federal Register, one of which states: 

The water control plans will be prepared 

giving appropriate consideration to all 

applicable Congressional Acts relating to 

operation of Federal facilities, i.e., Fish 

and Wildlife Coordination Act (Pub. L. 85-

624), Federal Water Project Recreation ActUniform Policies (Pub. L. 89-72), National 

Environmental Policy Act of 1969 (Pub. L. 91-

190), and Clean Water Act of 1977 (Pub. L. 95-

217).

33 C.F.R. § 222.5(f)(1) (emphasis added). According to 

Defendants, this regulation “explains the Corps’ approach to 

balancing CWA ‘obligations’ with the several other statutes that 

26 To the extent the Alabama Plaintiffs argue that reduced flows 

from the Allatoona Project under the Master Manual also impact 

APC’s obligations under its FERC license for its Coosa Project 

and make it “more burdensome” for APC to comply with the 

license’s dissolved-oxygen requirements at Weiss Dam and Lake, 

see Pls.’ Mot., ECF No. 83 at 18; the Court declines to analyze 

this claim, as the Alabama Plaintiffs do not actually address 

whether FERC licenses serve as a source of “requirements” within 

the meaning of section 313(a) of the CWA as against the Corps. 

And, it may well be that the FERC is “in the best position to 

take appropriate action” by adjusting the requirements in APC’s 

Coosa license. In re ACF Basin, 554 F. Supp. 3d at 1307.
127

also establish obligations [it] must address in developing the 

Manual.” Defs.’ Cross-Mot., ECF No. 95 at 52. The Court agrees 

that this regulation embodies the Corps’ “significant discretion 

to balance the often competing interests at its multi-purpose 

reservoirs[,]” In re ACF Basin, 554 F. Supp. 3d at 1302; and 

indicates that no one congressional act “takes priority over”

other applicable statutes, Defs.’ Cross-Mot., ECF No. 95 at 51. 

Courts of Appeal in two circuits that have considered how 

the CWA fits into the Corps’ overall water control scheme have 

concluded that: (1) the CWA must be construed together with 

other governing statutes; and (2) a relevant federal statute can 

preempt the enforcement of state water quality standards when 

the two conflict. First, the Ninth Circuit has determined that 

“[t]he CWA’s directive to federal agencies requiring compliance 

with state water standards must be construed in pari materia

with” the River and Harbor Act of 1945, authorizing construction 

of reservoir projects in the ACT Basin in the first instance, 

and noted that “‘when two statutes are capable of coexistence, 

it is the duty of the courts . . . to regard each as 

effective.’” Nat’l Wildlife Fed’n, 384 F.3d at 1178 (quoting 

Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S. Ct. 

1989, 48 L. Ed. 2d 540 (1976)).

Second, the Court of Appeals for the Eighth Circuit 

(“Eighth Circuit”) has found that the Flood Control Act of 1944 
128

“vests the Corps with the duty to balance” various water-use 

interests, “including the interests of the reservoir states[,]”

and that allowing the States “to use their water-quality 

standards to control how the Corps balances [these] interests 

would frustrate the design of” that Act. In re Operation of Mo. 

River Sys. Litig., 418 F.3d 915, 919-20 (8th Cir. 2005). 

Accordingly, the Eight Circuit concluded that the Flood Control 

Act of 1944 preempted the enforcement of North Dakota’s state 

water quality standards against the Corps. Id. at 920; see also

CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663, 113 S. Ct. 

1732, 123 L. Ed. 2d 387 (1993) (“Where a state statute conflicts 

with, or frustrates federal law, the former must give way.”). In 

another decision, the Eighth Circuit wrote that “[c]ourts are 

simply not empowered to review every decision of the Corps to 

ensure that it maximizes the benefits of the [river basin] for 

all interests[,]” as “such a standard would be impossible to 

meet[.]” South Dakota v. Ubbelohde, 330 F.3d 1014, 1031 (8th 

Cir. 2003). As such, “certain operations that might be optimal 

from a water quality standpoint might not be consistent with 

operations for [all] authorized purposes” at the Corps’ various 

basin projects. A.R., ECF No. 61 at D-00058008. 

The Court therefore agrees with Defendants that the Alabama 

Plaintiffs have “overstated” the Corps’ duty to follow water 

quality standards. Defs.’ Cross-Mot., ECF No. 95 at 10. And in 
129

any event, since water quality standards are not “requirements” 

under the CWA,27 the Corps’ decision to give them “appropriate 

consideration” in analyzing the action alternatives, see Defs.’ 

Cross-Mot., ECF No. 95 at 53 (citing A.R., ECF No. 61 at D00044030, D-00058007); before determining that the Manual’s 

overall effect on water quality would be “negligible,” A.R., ECF 

No. 61 at D-00043827; further supports the Court’s conclusion 

that the Corps has met any obligations it has under the CWA and 

ER 1110-2-8154 in updating the Master Manual.

c. The Duty Under the APA to Engage in Reasoned 

Decision-Making and Not Arbitrarily Depart 

from Precedent

Finally, the Alabama Plaintiffs argue that by adopting the 

Master Manual despite acknowledging the potential for adverse 

water quality impacts downstream, the Corps engaged in an 

“unexplained departure” from precedent, specifically from its 

own water quality guidance in ER 1110-2-8154, and thereby failed 

to engage in reasoned decision-making in violation of an 

27 In its reply briefing, the Corps raises a new argument that 

“even if the water quality standards were ‘requirements,’ 

Congress has not authorized their application to the Corps’ 

decisions regarding the Master Manual” because “[t]he scope of 

section 1323(a) is limited by 33 U.S.C. § 1371(a), which 

provides that the CWA ‘shall not be construed as . . . affecting 

or impairing the authority of the Secretary of the Army to 

maintain navigation.’” Defs.’ Reply, ECF No. 102 at 35. The 

Court finds it unnecessary to address this claim, and also, it 

does not consider arguments raised for the first time in a reply 

brief. Carter v. Geo. Wash. Univ., 387 F.3d 872, 883 (D.C. Cir. 

2004).
130

“independent” duty under the APA. See Ala.’s Opp’n to Suppl. 

Mot., ECF No. 134 at 13, 28-30; Compl., ECF No. 1 at 25-26 ¶ 

114; Pls.’ Reply, ECF No. 99 at 26-27; see also Pls.’ Resp. to 

Suppl. Authority Notice, ECF No. 120 at 2 (“The Corps’ 

obligation to engage in reasoned decisionmaking is an 

‘independent’ APA obligation and applies whether or not the 

Corps has also transgressed a binding legal ‘requirement’ 

imposed by the CWA or Corps regulations.”). 

The Court declines to reach the merits of this “unexplained 

departure” argument as it relates to ER 1110-2-8154 because the 

Alabama Plaintiffs did not raise it in their opening summary 

judgment brief. See Carter v. Geo. Wash. Univ., 387 F.3d 872, 

883 (D.C. Cir. 2004) (rejecting arguments raised for the first 

time in the movant’s reply brief as opposed to its opening 

brief). As the Georgia Parties note, this argument was raised 

for the first time in the Alabama Plaintiffs’ reply brief, see

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 21 n.12 (citing 

this gap as the reason why this argument has “received so little 

attention in this case”); Pls.’ Reply, ECF No. 99 at 26 (“[E]ven 

if the [CWA] and the Corps’ own regulations did not require the 

Corps to comply with water-quality standards, the agency still 

would have an overarching obligation under the APA to engage in 

reasoned decision-making[.]”); and in the Alabama Plaintiffs’ 

response to the Georgia Parties’ notice of supplemental 
131

authority, see Pls.’ Resp. to Suppl. Authority Notice, ECF No. 

120 at 3 (citing ER 1110-2-8154 to argue that the ERs “establish 

the Corps’ precedent” to comply with state water quality 

standards and that failure to do so without a reasoned 

justification is an “unexplained departure” from this 

precedent). This argument was not made in the section of the

Alabama Plaintiffs’ opening brief where they specifically argued

that the Manual “is an unexplained and arbitrary departure from 

established operations.” See Pls.’ Mot., ECF No. 83 at 43-47 

(providing other reasons why the Manual constitutes an 

“arbitrary departure” from precedent). While the Georgia Parties

have responded to the Alabama Plaintiffs’ “unexplained 

departure” from ER 1110-2-8154 claim as it relates to water 

quality standards in their supplemental motion for summary 

judgment briefings, see Intervenor-Defs.’ Suppl. Mot., ECF No. 

129 at 20-23; Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139 

at 20-21; the Court need not consider the merits of those 

arguments since they were raised in the context of the issue 

preclusion analysis. Accordingly, the Court will only proceed to

analyze the Alabama Plaintiffs’ remaining “unexplained and 

arbitrary departure” claims under the APA section of this 

Memorandum Opinion and the adequacy of the Corps’ explanations 

regarding water quality impacts in choosing the action 

alternative in this Memorandum Opinion’s NEPA section.
132

Having determined that the Corps has not violated any 

enforceable “requirements” within the meaning of section 313(a)

of the CWA and that ER 1110-2-8154 is a non-binding statement of 

policy rather than a “limitation[] on the Corps’ discretion[,]” 

Ubbelohde, 330 F.3d at 1030; there is no independent basis for 

the Court to conclude that the Corps acted arbitrarily and 

capriciously in adopting the Master Manual as it relates to the 

Alabama Plaintiffs’ water quality claims, see Intervenor-Defs.’ 

Suppl. Mot. Reply, ECF No. 139 at 7 (arguing that “there is no 

‘departure’ to be explained” since neither the CWA nor the 

Corps’ internal guidance document require the Corps “to release 

water to ensure water quality standards are maintained”); see 

also Nat’l Wildlife Fed’n, 132 F. Supp. 2d at 889, 895 

(concluding that final agency action is “arbitrary and 

capricious” under the APA when it violates “the legal duty set 

forth in the governing substantive statute”); Seeger v. U.S. 

Dep’t of Def., 306 F. Supp. 3d 265, 276 (D.D.C. 2018) 

(explaining that a court has subject-matter jurisdiction over an 

APA claim if the claim alleges a violation of an underlying 

statute or if the claim alleges agency action that is “arbitrary 

and capricious”). For all these reasons, with regard to the 

Alabama Plaintiffs’ water quality claims under the CWA and the 

Corps’ internal ERs, the Court GRANTS summary judgment to 

Defendants and Intervenor-Defendants on these issues.
133

B. Defendants Did Not Violate NEPA

The Alabama Plaintiffs and Intervenor-Plaintiffs next argue 

that the Master Manual and FEIS violate NEPA and are therefore 

unlawful. See Pls.’ Mot., ECF No. 83 at 52-60 (arguing that “the 

Corps has deprived the public of its right to review the 

environmental impacts of the Corps’ operations under NEPA,” as 

“the FEIS does not adequately communicate, and in some respects 

affirmatively conceals, important environmental impacts 

associated with the Manual”); Intervenor-Pls.’ Mot., ECF No. 85 

at 7 (arguing that the Master Manual’s “significant cascading 

effects downstream [ ] have not been analyzed properly or 

disclosed fully pursuant to [NEPA]”).

NEPA challenges are reviewed under the APA’s arbitrary and 

capricious standard, which is applied to review both the 

agency’s procedural compliance with NEPA and the adequacy of the 

FEIS. City of Olmsted Falls v. FAA, 292 F.3d 261, 269 (D.C. Cir. 

2002). The Court is mindful that its role is not to “flyspeck” 

the Corps’ “environmental analysis, looking for any deficiency 

no matter how minor.” Nevada v. Dep’t of Energy, 457 F.3d 78, 93 

(D.C. Cir. 2006). Neither may the Court “substitute its own 

policy judgments for those of the [Corps].” Tongass Conservation 

Soc’y v. Cheney, 924 F.2d 1137, 1140 (D.C. Cir. 1991). Rather, 

the Court must ensure that the Corps “has adequately considered 

and disclosed the environmental impact of its actions and that 
134

its decision is not arbitrary or capricious.” Balt. Gas, 462 

U.S. at 97-98. This requires reviewing the FEIS to confirm that 

the Corps took a “hard look” at the environmental consequences 

before deciding to proceed with finalizing the Master Manual

update. See id. at 97. In evaluating those consequences, the 

Corps was required to consider and discuss in the FEIS: 

(i) the environmental impact of the proposed 

action, (ii) any adverse environmental effects 

which cannot be avoided should the proposal be 

implemented, (iii) alternatives to the 

proposed action, (iv) the relationship between 

local short-term uses of man’s environment and 

the maintenance and enhancement of long-term 

productivity, and (v) any irreversible and 

irretrievable commitments of resources which 

would be involved in the proposed action 

should it be implemented.

42 U.S.C. § 4332(2)(C). Despite these requirements, “NEPA is a 

purely procedural statute, and [the Corps] therefore enjoys 

latitude” in its preparation of the FEIS. Ctr. for Biological 

Diversity v. FERC, 67 F.4th 1176, 1181 (D.C. Cir. 2023); see 

also Robertson, 490 U.S. at 350 (“NEPA itself does not mandate 

particular results, but simply prescribes the necessary 

process.”). The Court will thus not set aside the Master Manual 

under NEPA if the FEIS “‘contains sufficient discussion of the 

relevant issues and opposing viewpoints’” to enable the Court to 

conclude that “‘the agency’s decision [was] fully-informed and 

well-considered[.]’” Gulf Restoration Network v. Haaland, 47 

F.4th 795, 799-800 (D.C. Cir. 2022) (quoting Nevada, 457 F.3d at 
135

93); see also Indian River Cnty. v. U.S. Dep’t of Transp., 945 

F.3d 515, 533 (D.C. Cir. 2019) (requiring “deference to agency 

judgments as to how best to prepare an EIS”). 

The Alabama Plaintiffs contend that Defendants have 

violated NEPA because: (1) the “proffered ‘No Action’ baseline 

wrongly incorporates operations from the 1993 draft manual and 

other ‘incremental changes in project operations’ that were 

never legally implemented or subjected to NEPA review[;]” 

(2) the FEIS did not accurately analyze and disclose the impacts 

associated with operations under the Proposed Action 

Alternative; and (3) the FEIS did not consider any proposed 

alternatives requiring the Corps to generate hydropower. See

Pls.’ Mot., ECF No. 83 at 52-60. Intervenor-Plaintiffs also 

argue that the Corps violated NEPA because the FEIS fails to 

adequately analyze the Master Manual’s impacts downstream at

Montgomery, Mobile Bay, and Lake Martin—all of which negates the 

Corps’ fulfillment of NEPA’s “hard look.” See Intervenor-Pls.’ 

Mot., ECF No. 85 at 7, 15-31. The Corps responds to each of the 

Plaintiffs’ arguments and contends that “it took a ‘hard look’ 

at the environmental impacts of the [Master Manual] in a 

lengthy, well-reasoned, and thorough FEIS.” Defs.’ Cross-Mot., 

ECF No. 95 at 27. For the reasons explained below, the Court 

rejects the Alabama Plaintiffs’ and Intervenor-Plaintiffs’ 

various arguments under NEPA.
136

1. The Corps Reasonably Defined the No-Action 

Alternative in the FEIS Using the 1993 Draft 

Allatoona Manual

An EIS must describe in detail “alternatives to the 

proposed action,” 42 U.S.C. § 4332(2)(C)(iii); one of which is 

the “No-Action Alternative,” which “establishes a baseline for 

comparing the environmental consequences of the action 

alternative[,]” Mainella, 459 F. Supp. 2d at 83-84; see also 40 

C.F.R. § 1502.14 (requiring an EIS to evaluate “reasonable 

alternatives” to the proposed action, including the “no action 

alternative”). The Corps was thus required to evaluate the 

impacts of the proposed Master Manual “on various environmental 

conditions ‘as compared to’ a set of conditions it deemed to be 

the ‘No-Action Alternative.’” Pls.’ Mot., ECF No. 83 at 52.

The Alabama Plaintiffs first argue that the 1993 Draft 

Manual “and other ‘incremental changes in project operations’” 

cannot be used to define the No-Action Alternative because they 

“were never legally implemented or subjected to NEPA review”

since the Corps began implementing the Draft Manual in the early 

1990s but never conducted “the required NEPA analysis either 

then or in the years since[,]” despite seeking to “grandfather” 

that draft “into an extrapolated NEPA baseline now.” Pls.’ Mot., 

ECF No. 83 at 53. The Alabama Plaintiffs contend that the 

correct baseline comparison would instead incorporate the Corps’ 

“‘last major evaluations of the environmental consequences of 
137

the individual [Corps] reservoirs in the ACT Basin,’ which the 

Corps acknowledged occurred ‘in the 1970s.’” Pls.’ Mot., ECF No. 

83 at 30 (citing A.R., ECF No. 61 at D-00044248). As IntervenorDefendants note, the Alabama Plaintiffs appear to argue that 

“instead of comparing alternatives to the status quo operations 

prior to adoption of the ACT Manual, the no action alternative 

must instead be the 1968 [Allatoona] Manual, because that is the 

last manual to undergo NEPA review.”28 Intervenor-Defs.’ CrossMot., ECF No. 97 at 25. The Court disagrees with the Alabama 

Plaintiffs, instead concluding, as explained below, that the 

1993 Draft Manual, under which the Corps was operating the 

Allatoona Project at the time it prepared the FEIS, was the 

correct no-action baseline.

a. Issue Preclusion Does Not Apply to Bar the 

Alabama Plaintiffs’ NEPA No-Action 

Alternative Claim

As an initial matter, in their supplemental motion for 

summary judgment, the Georgia Parties argue that the Northern 

District of Georgia’s 2021 decision should preclude the Alabama 

28 As discussed in the Factual Background, prior to the updates 

that spurred this litigation, the last finalized ACT Master 

Manual was adopted in 1951, along with a WCM for the Allatoona 

Project in 1951, 1962, and 1968. See supra section II.B. at 27. 

Although the 1968 Allatoona Manual was adopted prior to NEPA’s 

passage in 1969, the Corps issued a FEIS for its then-existing 

Allatoona operations under that manual in 1974. Id. at 29-31. As 

the Alabama Plaintiffs note, the 1993 Allatoona Draft Manual was 

not similarly subjected to NEPA review. Id. at 31.
138

Plaintiffs’ argument that the Corps violated NEPA by using 

current operations under the 1993 Draft Manual to represent the 

No-Action Alternative, “rather than its last ‘NEPA reviewed’ 

manual[.]” See Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 7, 

11. In the ACF case, the Northern District of Georgia rejected 

Alabama’s similar assertion that NEPA requires the Corps to use 

the last NEPA-approved manual as the No-Action Alternative, as 

opposed to then-current operations under a draft manual never 

subjected to NEPA review. In re ACF Basin, 554 F. Supp. 3d at

1305. At the time the ACF Master Manual was updated in 2017, the 

Corps chose its existing operations under a 1989 draft ACF 

Master Manual and a 1991 draft Buford Project Manual to serve as 

the no-action baseline “instead of the environment as it existed 

when the 1958 and 1959 [NEPA-reviewed] manuals were adopted.” 

Id. at 1302. The Northern District of Georgia concluded that the 

Corps “correctly defined the ‘no action’ alternative as the 

current operations of the ACF Basin, rather than a hypothetical 

set of conditions that may have existed 63 years ago, and that 

do not reflect the current status quo or management practices.” 

Id. at 1305. Pointing to this conclusion, the Georgia Parties 

argue that because “the factual context giving rise to the 

[Alabama Plaintiffs’ NEPA] claim is the same in both basins” and 

“the law and facts are the same,” Intervenor-Defs.’ Suppl. Mot. 

Reply, ECF No. 139 at 15-16; the Court should conclude that 
139

“[a]ll three criteria for issue preclusion are met[,]” see

Intervenor-Defs.’ Suppl. Mot., ECF No. 129 at 26-29. Alabama 

responds that issue preclusion cannot apply because its claims 

“in the ACF case and the ACT case require the application of 

NEPA to different sets of facts[,]” thereby negating the

elements of preclusion. Ala.’s Opp’n to Suppl. Mot., ECF No. 134 

at 30. The Court agrees with the State of Alabama.

Although this supplemental claim presents a “mixed 

question[] of law and fact” rather than an “unmixed question of 

law,” see Pharm. Care, 522 F.3d at 446; Ala.’s Opp’n to Suppl. 

Mot., ECF No. 134 at 30; as the Court found to be the case for 

the Alabama Plaintiffs’ water quality claims, see supra section 

IV.A.1.b.i.; “changes in facts essential to a judgment will 

render collateral estoppel inapplicable in a subsequent action 

raising the same issues[,]” Montana, 440 U.S. at 159; see also 

Env’t Def. v. EPA, 369 F.3d 193, 202 (2d Cir. 2004) (“Collateral 

estoppel does not apply [ ] when the essential facts of the 

earlier case differ from the instant one, even if they involve 

the same legal issues.”). Here, the Court agrees with Alabama 

that there are “significant factual distinctions” between the 

ACT and ACF cases as they relate to the parallel NEPA No-Action 

Alternative claims. Env’t Def., 369 F.3d at 202. First, in the 

ACF case, Alabama argued that operations under the 1989 and 1991 

draft manuals should not serve as the no-action baseline because 
140

they abandoned, without disclosure to the public, a guide curve 

in the NEPA-reviewed 1958 and 1959 manuals which required the 

Corps to draw down Buford’s elevation by six feet in the fall 

months and release water through the dam. Ala.’s Opp’n to Suppl. 

Mot., ECF No. 134 at 30-31 (citing Pl. State of Ala.’s Corrected 

Consolidated Mot. for Summ. J., In re ACF Basin Water Litig., 

No. 1:18-MI-43 (N.D. Ga. Apr. 6, 2021), ECF No. 220 at 38, 64-

65). Here in the ACT case, Alabama makes a similar but factually 

distinct argument regarding the 1993 Draft Manual’s addition of 

action zones, “the very concept of” which they allege was not 

present in the 1968 NEPA-reviewed manual and the main reason 

they argue that the 1993 Draft Manual should not serve as the 

no-action baseline. See Pls.’ Mot., ECF No. 83 at 53-54. 

Another factual difference is that in the ACF case, Alabama 

argued that the No-Action Alternative could not be defined as 

“current operations” because at the time of the ACF Manual 

update, the Corps had been allowing Georgia to make unauthorized 

direct withdrawals from Buford (i.e., without water supply 

contracts). Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 31 

(citing Pl. State of Ala.’s Corrected Consolidated Mot. for 

Summ. J., In re ACF Basin Water Litig., No. 1:18-MI-43 (N.D. Ga. 

Apr. 6, 2021), ECF No. 220 at 65-66). In the ACF case, the Corps 

had decided that both “current reservoir operations” and the 

“current level of direct withdrawals,” regardless of their 
141

legality, should formulate the no-action baseline for 

comparison. Pl. State of Ala.’s Corrected Consolidated Mot. for 

Summ. J., In re ACF Basin Water Litig., No. 1:18-MI-43 (N.D. Ga. 

Apr. 6, 2021), ECF No. 220 at 65. In affirming the ACF No-Action 

Alternative as neither arbitrary nor capricious, the Northern 

District of Georgia specifically noted that the Corps had 

“considered current reservoir operations and the current level 

of direct withdrawals.” In re ACF Basin, 554 F. Supp. 3d at 

1302-03, 1305. In contrast, here, the Alabama Plaintiffs make a 

similar but factually distinct argument that the FEIS fails to 

disclose the impact of the CC-MWA’s water supply withdrawals in 

excess of its contractual limits, and that the Proposed Action 

Alternative, rather than the No-Action Alternative, was 

improperly modeled on an assumption that the CC-MWA would abide 

by its contractual limits in the future. See Pls.’ Mot., ECF No. 

83 at 58-59. Finally, as Alabama notes, its argument in this 

case in favor of applying principles of judicial estoppel based 

on the Corps’ prior success convincing the Northern District of 

Alabama that the 1993 Draft Manual was not final agency action 

(detailed below) was not an issue in the ACF case since “the 

Corps had not obtained similarly inconsistent court rulings 

concerning NEPA claims against the prior draft ACF manuals.” 

Ala.’s Opp’n to Suppl. Mot., ECF No. 134 at 32. The Northern 

District of Georgia could thus not have considered this claim.
142

The Court therefore rejects the Georgia Parties’ argument 

that “[t]he decision to use current operations as the NEPA No 

Action Alternative was made by the same Corps personnel, for the 

same reasons, based on the same facts, in both basins.” 

Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139 at 15. Because 

“the facts essential to a judgment are distinct in the two 

cases, the [NEPA] issues in the [ACT] case cannot properly be 

said to be identical to those in the [ACF case], and collateral 

estoppel is inapplicable.” Env’t Def., 369 F.3d at 202 (citing 

Montana, 440 U.S. at 159). And regardless, just as the Court 

concluded regarding the Alabama Plaintiffs’ water quality 

claims—practical and equitable policy considerations, including 

the presence of additional non-mutual parties who were not 

adequately represented by Alabama in the ACF litigation—weigh 

against precluding the Alabama Plaintiffs’ NEPA No-Action 

Alternative claim in this case. See supra section IV.A.1.b.ii.

Accordingly, for the reasons explained here and in the 

CWA/water quality claims section of this Memorandum Opinion, the 

Court declines to preclude any of the Alabama Plaintiffs’ or 

Intervenor-Plaintiffs’ claims based on the results of the ACF 

litigation in the Northern District of Georgia. The Court

therefore DENIES Intervenor-Defendants’ Supplemental Motion for 

Summary Judgment Based on the Preclusive Effect of an 
143

Intervening Judgment, ECF No. 129; and turns to the merits of 

the Alabama Plaintiffs’ NEPA No-Action Alternative claim.

b. The Alabama Plaintiffs’ NEPA No-Action 

Alternative Claim Fails on the Merits

NEPA requires an agency to present “the environmental 

impacts of the proposal and the alternatives in comparative 

form, thus sharply defining the issues and providing a clear 

basis for choice among options by the decisionmaker and the 

public.” City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 

1506 (D.C. Cir. 1994) (citing 40 C.F.R. § 1502.14). As part of 

this analysis, agencies are required to “[i]nclude the no action 

alternative.” 40 C.F.R. § 1502.14(c). The purpose of the noaction alternative is to “compare the potential impacts of the 

proposed major federal action to the known impacts of 

maintaining the status quo.” Custer Cnty. Action Ass’n v. 

Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001); see also Nat. Res. 

Def. Council, Inc. v. Hodel, 624 F. Supp. 1045, 1054 (D. Nev. 

1985), aff’d, 819 F.2d 927 (9th Cir. 1987) (defining “no action” 

as the “continuation of the status quo ante, in the absence of 

any of the proposed actions”). Although the phrase “No-Action 

Alternative” is not defined by statute or regulation, the 

Council on Environmental Quality (“CEQ”)—the federal agency 

created to oversee NEPA—has explained that for “an action such 

as updating a land management plan where ongoing [federal] 
144

programs initiated under existing legislation and regulations 

will continue, . . . ‘no action’ is ‘no change’ from current 

management direction or level of management intensity.” Forty 

Most Asked Questions Concerning CEQ’s National Environmental 

Policy Act Regulations, 46 Fed. Reg. 18,026, 18,027 (Mar. 23, 

1981). The No-Action Alternative may thus “be thought of in 

terms of continuing with the present course of action until that 

action is changed[,]” id.; “because the existing federal program 

will continue even if the new plan is not adopted[,]” 

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 26; see also Custer 

Cnty., 256 F.3d at 1040 (“In other words, the current level of 

activity is used as [the no-action] benchmark.”).

Here, the Corps reasonably developed the No-Action 

Alternative baseline for comparison using the status quo—that 

is, the “continuation of the current water control operations at 

each of the federal projects in the ACT Basin[,]” A.R., ECF No. 

61 at D-00043793; including operations consistent with the 1951 

ACT Master Manual, as well as project-specific manuals like

Allatoona’s 1993 Draft Manual, Defs.’ Cross-Mot., ECF No. 95 at 

48-49 (citing A.R., ECF No. 61 at D-00043793-95); see also A.R., 

ECF No. 61 at D-00046584 (“[F]or purposes of the ACT WCM update 

process, ‘no action’ reflects current reservoir operations as 

they have evolved over time in response to laws, regulations, 

policy, and new technical information.”). As the FEIS states, 
145

the No-Action Alternative “represents no change from the current 

management direction or level of management intensity[,]” A.R., 

ECF No. 61 at D-00043793; because “[b]asing the description of 

‘no action’ on a pre-NEPA WCM as a basis for comparison to 

alternative WCM update plans would not accurately reflect 

current baseline operations or be consistent with ‘no action’ as 

defined in the CEQ memorandum[,]” id. at D-00046584. 

As the Georgia Parties note, the Allatoona Project WCM has 

not been formally updated since 1968, and subsequent attempts to 

update it were embroiled in years of litigation and interstate 

negotiations, which forced the Corps “to make practical 

management decisions at Allatoona Lake” in the interim. 

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 30. In addition, 

since the 1970s, “incremental changes in project operations have 

occurred because of changes in hydropower contracts and 

operating schedules, changes in navigation flow requirements, 

and other changes related to water quality, environment, or 

other uses of the [ACT] system.” A.R., ECF No. 61 at D-00043794. 

These changes have rendered the 1968 Manual “obsolete” and 

inadequate for comparison to today’s operations for many of the 

reasons cited by the Georgia Parties, including that it was 

written before: (1) many of the major projects in the ACT Basin 

were constructed, including the reservoir at Carter’s Lake which 

operates in conjunction with Allatoona Lake; (2) there was any 
146

requirement to have a drought management plan, as implemented in 

the 1993 Draft Manual; and (3) any of the major environmental 

laws had been enacted, including NEPA. Intervenor-Defs.’ CrossMot., ECF No. 97 at 26-27. As a result of the many changes 

between 1968 (or even 1974 when the 1968 Manual underwent NEPA 

review) and 2015, “the 1968 Manual cannot provide a meaningful 

baseline for comparing the effects of the alternatives under 

consideration.” Id. at 27. Thus, the Court agrees that “using 

the 1993 [Draft] Manual—the Corps’ historical operations over 

the past 25 years—as the status quo and the point of comparison 

was a reasonable choice[,]” id. at 30; Defs.’ Cross-Mot., ECF 

No. 95 at 50; especially since “judgments regarding the 

development of the baseline against which alternatives would be 

assessed are the sorts of expert analytical judgments to which 

courts typically defer[,]” Vill. of Bensenville v. FAA, 457 F.3d 

52, 72 (D.C. Cir. 2006); see also Am. Rivers v. FERC, 201 F.3d 

1186, 1195-99 (9th Cir. 1999) (deferring to the agency’s choice 

“to use an existing project environmental baseline” as the NoAction Alternative rather than “a theoretical reconstruction of 

what” the basin “would be like today had [certain] projects not 

been in place for the greater part of this century”).

Nonetheless, the Alabama Plaintiffs argue that the 1993 

Draft Manual cannot serve as the no-action baseline because it 

was not NEPA-reviewed, and its implementation was therefore “not 
147

lawful.” Pls.’ Mot., ECF No. 83 at 53. Even if the Court agreed 

that the 1993 Draft Manual was not lawfully implemented “under 

‘existing legislation and regulations[,]’” id. at 56; the result 

would be the same because “NEPA does not impose an independent 

requirement of setting a ‘legal’ environmental baseline[,]” Ctr. 

for Biological Diversity v. U.S. Bureau of Land Mgmt., 746 F. 

Supp. 2d 1055, 1090 (N.D. Cal. 2009). Rather than “an 

independent legal requirement,” a baseline is “a practical 

requirement in environmental analysis often employed to identify 

the environmental consequences of a proposed agency action.” Am. 

Rivers, 201 F.3d at 1195 n.15. As such, numerous courts have 

interpreted the No-Action Alternative as the status quo of 

“current management” or existing operations—whether NEPA 

reviewed or not—because this “fulfill[s] NEPA’s goal of 

providing the public with information to assess the impact of a 

proposed action[.]” See U.S. Bureau of Land Mgmt., 746 F. Supp. 

2d at 1090-91 (rejecting a no-action baseline “as it existed in 

1980” because “the 1980 network has not been the status quo 

since 1980, decades before the proposed action” and finding that 

the status quo “accurately reflect[ed] the baseline as it 

currently existed,” which is “all that is required under the 

law”); see also, e.g., Custer Cnty., 256 F.3d at 1039-40 

(rejecting the argument that “a ‘true’ no-action alternative” 

only reflects “the impacts of lawful activity” that was 
148

“properly subject[ed] to environmental review” and concluding 

that the CEQ “intended that agencies compare the potential 

impacts of the proposed major federal action to the known 

impacts of maintaining the status quo”); San Juan Citizens’ All. 

v. Salazar, No. 00-cv-00379, 2009 WL 824410, at *17-18 (D. Colo. 

Mar. 30, 2009) (upholding status quo activities as the no-action 

baseline regardless of whether they were “subject to a 

sufficient NEPA review”).29 Thus, the Corps’ use of the status 

quo and its evolved practices under the 1993 Draft Manual as the 

No-Action Alternative comports with NEPA, regardless of the 

“lawfulness” of those operations. Such was the Northern District 

of Georgia’s conclusion in the ACF case, where it held that the 

Corps properly evaluated the proposed ACF Master Manual against 

a No-Action Alternative defined “as the environment as it 

existed at the time that the Corps updated the [draft] manual in 

1989[,]” as opposed to “an environment that ha[d] not existed 

29 Many other courts have concluded that the status quo is the 

only proper interpretation of the No-Action Alternative, 

regardless of the legality of current operations. See, e.g., 

Biodiversity Conservation All. v. U.S. Forest Serv., 765 F.3d 

1264, 1269-70 (10th Cir. 2014) (finding that the agency properly 

included unlawful use of federal lands as part of its no-action 

baseline); Tenn. Env’t Council v. Tenn. Valley Auth., 32 F. 

Supp. 3d 876, 887 (E.D. Tenn. 2014) (requiring the defendant “to 

employ a ‘no action’ alternative of the status quo, as opposed 

to the future consequences of [a] consent decree”); Colo. OffHighway Vehicle Coal. v. United States, 505 F. Supp. 2d 808, 817 

(D. Colo. 2007) (“The validity of earlier decisions affecting 

the status quo is not an issue in the no-action analysis.”).
149

for decades” under the outdated NEPA-approved manuals which

Alabama had instead advocated for as the appropriate baseline. 

See In re ACF Basin, 554 F. Supp. 3d at 1302-03. That court 

ultimately upheld the Corps’ No-Action Alternative, which as 

here, “considered current reservoir operations.” Id. at 1303.

The cases cited by the Alabama Plaintiffs in support of 

their position are distinguishable and do not alter the Court’s 

decision. For example, in Friends of Yosemite Valley v. 

Kempthorne, 520 F.3d 1024 (9th Cir. 2008), the Ninth Circuit 

held that the agency “did not set forth a true ‘no-action’ 

alternative” where the baseline incorporated a plan that the 

Ninth Circuit had explicitly held invalid in prior litigation. 

Id. at 1037-38. “These extreme circumstances,” i.e., the need to 

enforce a court’s prior decision, “are not present here, as no 

court has ever held that the 1993 Manual is substantively 

unlawful, much less enjoined its use.” Intervenor-Defs.’ CrossMot., ECF No. 97 at 28-29. Next, in North Carolina Wildlife 

Federation v. North Carolina Department of Transportation, 677 

F.3d 596 (4th Cir. 2012), the court did not address whether the 

No-Action Alternative was properly defined, but rather concluded 

that the agencies violated NEPA by mischaracterizing the data 

underlying the baseline, and “the NEPA process itself relied on 

those mischaracterizations.” See id. at 603-05. Likewise, 

National Wildlife Federation v. Andrus, 440 F. Supp. 1245 
150

(D.D.C. 1997) does not address how an agency should define the 

No-Action Alternative, instead addressing “a different context,” 

as the Alabama Plaintiffs admit, Pls.’ Mot., ECF No. 83 at 54; 

namely an agency’s failure to properly consider alternatives, 

see Andrus, 440 F. Supp. at 1253-54. Finally, the Alabama 

Plaintiffs’ reference to the EPA’s guidance, see Pls.’ Mot., ECF 

No. 83 at 56 (citing ENV’T PROT. AGENCY OFF. OF FED. ACTIVITIES, 

CONSIDERATION OF CUMULATIVE IMPACTS IN EPA REVIEW OF NEPA DOCUMENTS ¶ 4.4 

(1999), https://www.epa.gov/sites/default/files/2014-

08/documents/cumulative.pdf [hereinafter “EPA Cumulative Impacts 

Guidance”]); is inapposite here, as this guidance is not about 

the No-Action Alternative but an EIS’s cumulative impacts 

analysis, which the EPA states can be incorporated into the noaction alternative’s baseline, see EPA Cumulative Impacts 

Guidance ¶ 4.4. And in any event, this guidance defines the NoAction Alternative “as reflecting existing conditions” under the 

status quo, in line with the Court’s conclusion. Id.

The Alabama Plaintiffs argue that ruling in favor of 

Defendants on this issue “would create incentives for federal 

agencies to evade their NEPA obligations.” Pls.’ Mot., ECF No. 

83 at 54. They contend that “‘if agencies are allowed to 

undertake major federal actions without complying with NEPA and 

then to compound their error by basing later decisions on their 

previous illegal actions, then NEPA’s protections will be 
151

rendered worthless.’” Id. at 54 (quoting Andrus, 440 F. Supp. at 

1255). The Court disagrees. Instead, the Court is persuaded that

using the last NEPA reviewed manual as the baseline—here, the 

1968 Allatoona Manual—“would mask effects of the management 

choices under consideration, as the relative differences between 

the alternatives would be dwarfed by changes necessitated” by 

the significant evolution of the ACT Basin since the 1970s. See

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 27; IntervenorDefs.’ Reply, ECF No. 103 at 5 (calling the 1968 Manual “longabandoned” as compared to the Corps’ “then-current Draft 1993 

Manual”). In addition, the FEIS “is replete with discussion of 

pre-1993 (historical) operations[,]” such that the Court can 

conclude that the public has been adequately informed of how the 

Corps’ ACT Basin operations “have changed over the past halfcentury.” See Intervenor-Defs.’ Reply, ECF No. 103 at 19 

(summarizing the portions of the administrative record that 

discuss historical changes and impacts). NEPA “serves the twin 

purposes of ensuring that” agencies: (1) carefully consider 

environmental impacts before taking major actions; and (2) fully 

inform the public of these impacts, Sierra Club v. U.S. Army 

Corps of Eng’rs, 803 F.3d 31, 36-37 (D.C. Cir. 2015); and a noaction baseline that embodies historical operations of the ACT 

Basin over the past several decades achieves NEPA’s goal of 
152

informed decision-making,30 see Nw. Env’t Def. Ctr. v. U.S. Army 

Corps of Eng’rs, 817 F. Supp. 2d 1290, 1313 (D. Or. 2011) (“The 

Corps was not required to develop a no-action alternative, in 

which it completely reverses or abandons a[] historical 

pattern[.]”); Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. 

Dep’t of the Interior, 929 F. Supp. 2d 1039, 1053 (E.D. Cal. 

2013) (confirming “it is appropriate for a no action alternative 

to reflect ‘historical uses’ of a resource”); Hodel, 624 F. 

Supp. at 1054 (considering “a historical pattern of use over 100 

years old” as the no-action baseline). Ultimately, “resetting to 

pre-1993 operations is not a proper baseline[,]” Defs.’ Reply, 

ECF No. 102 at 20; as it would be resetting to “a hypothetical 

status quo that would have existed had the Corps not made 

changes pursuant to the 1993 Allatoona manual[,]” Defs.’ Cross30 In their reply, the Alabama Plaintiffs argue that the FEIS 

“deprived the public” of information because it “did not 

disclose the impacts of certain operations in the new Manual, 

such as its inclusion of action zones, that the agency started 

using when it chose to implement the 1993 draft manual.” Pls.’ 

Reply, ECF No. 99 at 28. They claim that this “conceal[ed] a 

significant component of impact.” Id. at 29. The Court 

disagrees, as the FEIS explains in detail historical changes to 

the guide curves and action zones at the Allatoona Project. And, 

in any event, this reply argument that the public was “deprived” 

of information on action zones differs from how the Alabama 

Plaintiffs’ styled their concerns in their opening brief, where 

they only contended that the absence of action zones “in the 

1968 NEPA-reviewed manual” would mean that “allowing the 1993 

draft manual to serve as the baseline would wrongly ‘assume[] 

the existence of [the] proposed project,’ rendering the baseline 

meaningless.” Pls.’ Mot., ECF No. 83 at 54.
153

Mot., ECF No. 95 at 49; see also In re ACF Basin, 554 F. Supp. 

3d at 1303 (“[A]n agency cannot know if its proposal will 

significantly affect the quality of the human environment if it 

considers hypotheticals as opposed to realities.”). 

Finally, the Alabama Plaintiffs argue that principles of 

judicial estoppel should apply in light of the Corps’ successful 

position during prior litigation before the Northern District of 

Alabama that “no ‘legal consequences . . . flow[ed]’ from” the 

1993 Draft Manual “because the draft was not ‘final agency 

action.’” Pls.’ Mot., ECF No. 83 at 54-55 (quoting Bennett v. 

Spear, 520 U.S. 154, 177-78, 117 S. Ct. 1154, 137 L. Ed. 2d 281 

(1997)); see Order, Alabama v. U.S. Army Corps of Eng’rs, No. 

90-1331 (N.D. Ala. July 3, 2012), ECF No. 771 at 2-3. The 

Alabama Plaintiffs argue that, having previously taken that 

position, the Corps “cannot now prevent NEPA review of the draft 

manual’s change in operations by claiming that [its] provisional 

implementation had the ‘legal consequence’ of making those 

operations a part of the established ‘No Action’ baseline.” 

Pls.’ Mot., ECF No. 83 at 55. However, the Alabama Plaintiffs 

have not provided any caselaw suggesting that judicial estoppel 

would be appropriate in this case. Both Kern v. U.S. Bureau of 

Land Management, 284 F.3d 1062 (9th Cir. 2002), and Northcoast 

Environmental Center v. Glickman, 136 F.3d 660 (9th Cir. 1998), 

concern whether an agency can “tier”—or “avoid[] detailed 
154

discussion by referring to another document containing the 

required discussion”—to documents that were never subject to 

NEPA review, which is not an issue here because the Corps did 

not attempt to tier its analysis. See Kern, 284 F.3d at 1073-74; 

Glickman, 136 F.3d at 670; Intervenor-Defs.’ Reply, ECF No. 103 

at 17 (“[T]he Final EIS does not ‘tier’ to any other document; 

its analysis stands on its own.”). And, regardless of the Corps’ 

positions from prior litigation, all NEPA requires is a 

comparison of “the impacts of the original proposal and 

preferred alternative to the impacts of” the “current level of 

activity.” Custer Cnty., 256 F.3d at 1040. The requirement to 

consider a No-Action Alternative thus does not provide “a 

vehicle in which to pursue allegations that past [agency] 

actions received insufficient environmental analysis.” See id.

(“The time has passed to challenge [such] actions.”); Metro. 

Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 779, 

103 S. Ct. 1556, 75 L. Ed. 2d 534 (1983) (concluding that NEPA 

“does not create a remedial scheme for past federal actions”). 

The Corps are therefore correct that the Alabama Plaintiffs 

cannot “revive” their claims against the 1993 Draft Manual in 

the present action. Defs.’ Cross-Mot., ECF No. 95 at 50.

In view of the analysis above, the Court concludes that 

using the 1993 Draft Manual as the baseline for the No-Action 

Alternative was a reasonable choice and an accurate 
155

representation of current operations of the ACT Basin to which 

the Corps could and did compare the impacts of the updated 

Master Manual in the FEIS, and it thus satisfies NEPA standards. 

See Friends of Congaree Swamp v. Fed. Highway Admin., 786 F. 

Supp. 2d 1054, 1067 (D.S.C. 2011) (“The Court is unaware of any 

authority for finding an [EIS] inadequate because an agency 

chose, as the baseline from which to measure the potential 

impacts of a proposed project, the environment in its current 

condition.”). 

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

Impacts of the Master Manual and Adequately 

Analyzed and Disclosed Those Impacts in the FEIS

The Alabama Plaintiffs and Intervenor-Plaintiffs next argue 

that the Corps failed to take NEPA’s required “hard look” at the 

environmental consequences of the Proposed Action Alternative, 

and that as a result, the FEIS does not adequately analyze and 

disclose to the public the Master Manual’s various “cascading” 

impacts. See Pls.’ Mot., ECF No. 83 at 52-53, 56-59; IntervenorPls.’ Mot., ECF No. 85 at 7, 15-31. The Alabama Plaintiffs offer 

“two critical respects” in which they claim that the FEIS fails, 

namely its failure to disclose the impact of: (1) “the Corps’ 

[newfound] discretion not to generate hydropower” at Allatoona

Lake; and (2) the CC-MWA’s water supply withdrawals from 

Allatoona Lake that have historically been above its contractual 

limits. See Pls.’ Mot., ECF No. 83 at 53, 57-59; Pls.’ Reply, 
156

ECF No. 99 at 32-34. Intervenor-Plaintiffs add three additional 

arguments that the FEIS fails to adequately analyze the Master 

Manual’s impacts on: (1) water quality at Montgomery, Alabama; 

(2) salt water intrusion from Mobile Bay; and (3) recreation and 

economic development at Lake Martin. Intervenor-Pls.’ Mot., ECF 

No. 85 at 15-31. The Court first addresses the parameters of 

NEPA’s requisite “hard look,” including as applied to the Corps’ 

choice of modeling software in the FEIS, before addressing each 

of these five arguments in turn.

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

Courts review the EIS “to ensure that the agency took a 

‘hard look’ at the environmental consequences of its decision to 

go forward with the project.” City of Grapevine, 17 F.3d at 

1503-04; see 42 U.S.C. § 4332(2)(C)(i); 40 C.F.R. § 1502.16 

(defining “environmental consequences”). “Although the contours 

of the ‘hard look’ doctrine may be imprecise,” a court’s task is 

“‘simply to ensure that the agency has adequately considered and 

disclosed the environmental impact of its actions and that its 

decision is not arbitrary or capricious.’” Nevada, 457 F.3d at 

93 (quoting Balt. Gas, 462 U.S. at 97-98). This “hard look” 

“includes considering all foreseeable direct and indirect 

impacts[,]” Loper, 544 F. Supp. 3d at 117 (citation and internal 

quotation marks omitted); as well as cumulative environmental 

impacts, meaning the impacts the proposed action “will have in 
157

conjunction with other projects in the same and surrounding 

areas[,]” and the past, present, and reasonably foreseeable 

future actions of other individuals and entities, Theodore

Roosevelt, 616 F.3d at 503. Further, a “hard look” must consider 

all relevant aspects of the problem, see State Farm, 463 U.S. at 

43; and discuss adverse impacts in a way that “does not 

improperly minimize negative side effects[,]” Loper, 544 F. 

Supp. 3d at 117 (citation and internal quotation marks omitted). 

While NEPA sets forth procedural safeguards, it does not 

“require particular substantive results.” Young v. Gen. Servs. 

Admin., 99 F. Supp. 2d 59, 67 (D.D.C. 2000), aff’d, 11 F. App’x

3 (D.C. Cir. 2000). Instead, an agency’s “hard look” is guided 

by the “rule of reason,” which dictates that an agency’s EIS 

analysis is deferred to despite “inconsequential or technical 

deficiencies[,]” id. at 75; unless those deficiencies “are 

significant enough to undermine informed public comment and 

informed decisionmaking[,]” Sierra Club v. FERC, 867 F.3d 1357, 

1368 (D.C. Cir. 2017). A reasoned “hard look” thus requires 

articulating a satisfactory explanation for the action, 

including a “rational connection between the facts found and the 

choice made.” State Farm, 463 U.S. at 43. This means the agency 

must go “beyond mere assertions” and “explicate[] its course of 

inquiry, its analysis[,] and its reasoning.” Young, 99 F. Supp. 

2d at 75 (citation and internal quotation marks omitted). 
158

“[S]imple, conclusory statements of ‘no impact’ are not enough 

to fulfill an agency’s duty under NEPA.” Del. Riverkeeper 

Network, 753 F.3d at 1313 (citation omitted); see also Mainella, 

459 F. Supp. 2d at 100 (noting that “[m]erely describing an 

impact and stating a conclusion of nonimpairment is 

insufficient”). However, agencies are not required to consider 

environmental effects which lack “a reasonably close causal 

relationship” to the proposed action. Pub. Citizen, 541 U.S. at 

767; see also Metro. Edison Co., 460 U.S. at 773-74 (explaining 

that NEPA requires analyzing effects “proximately related” to 

the major action but not ones that are too “remote” or 

“attenuated” in the causal chain). Finally, “an extreme degree 

of deference” to the agency is warranted where, as here, the 

agency is evaluating scientific data “within [its] technical 

expertise[.]” Alaska Airlines, 588 F.3d at 1120; see also Ocean 

Conservancy v. Gutierrez, 394 F. Supp. 2d 147, 157 (D.D.C. 2005) 

(advocating deference on “technical issues that implicate 

substantial agency expertise”). 

Because courts must be “at [their] most deferential” in 

reviewing scientific determinations “as opposed to simple

findings of fact,” Balt. Gas, 462 U.S. at 103; the Court rejects 

Intervenor-Plaintiffs’ argument that the Corps should have used 

“a more precise modeling framework” to model operations under 

the Master Manual, see Intervenor-Pls.’ Mot., ECF No. 85 at 16-
159

17. As its model for conducting water quality, flow, and lake 

level modeling, the Corps used the Hydrologic Engineering Center 

– Reservoir Simulation Model (“HEC-ResSim”), Defs.’ Cross-Mot., 

ECF No. 95 at 29; “a state-of-the-art tool for simulating flow 

operations in managed systems” that was developed by the Corps’ 

to “perform water resources studies in predicting the behavior 

of reservoirs and to help reservoir operators plan releases in 

real-time during day-to-day and emergency operations[,]” A.R., 

ECF No. 61 at D-00044062. This software has become “the 

standard” for Corps reservoir operations modeling, id. at D00044196; and its use is described in the FEIS itself and in a 

separate modeling report comprising two appendices, see id. at 

D-00047850, D-00047852-48275 (Appendix C, “HEC-ResSim Modeling 

Report”), D-00048276-469 (Appendix D, “HEC-ResSim and HEC-5Q 

Simulation of Water Quality in the [ACT] River Basin”). In these 

reports, the Corps explains that it selected HEC-ResSim 

following completion of a three-year model development and 

verification process, which included presentation of the model 

to stakeholders for input. Id. at D-00044196-97, D-00047860. The 

resulting software incorporates characteristics of the ACT Basin 

and individual reservoirs, “including physical constraints 

(spillway capacities, area-discharge curves, flows associated 

with hydropower, and such) and operational procedures (action 

zones, balancing, and the like)[,]” leading the model to become
160

“generally accepted as a promising improvement to ACT reservoir 

system modeling.” Id. at D-00044196. Using HEC-ResSim, the Corps 

was able to model the effects of changing “individual and 

multiple operational measures,” like “revising hydropower 

generation per action zone or reshaping action zones,” both at 

individual reservoirs and across the ACT Basin, which resulted 

in data outputs (hydropower generation, reservoir levels, river 

flows and stages, etc.), across the entire hydrologic period of 

record (1939 to 2011) that were evaluated according to specific 

criteria and authorized project purposes. See id. at D-00044197 

(depicting the “iterative process refining current operations”). 

Based on this detailed information from the record and 

because of the extreme deference accorded to an agency’s 

“complex judgments about sampling methodology and data analysis 

that are within [its] technical expertise,” Alaska Airlines, 588 

F.3d at 1120; the Court concludes that the Corps’ decision to 

use HEC-ResSim to model the “complex hydrology of the ACT 

Basin,” Defs.’ Cross-Mot., ECF No. 95 at 29; furthered its 

ability to take the requisite “hard look” at environmental 

impacts and reflects reasoned decision-making, see Citizens 

Against Burlington, Inc. v. Busey, 938 F.2d 190, 201 (D.C. Cir. 

1991) (stating that the deferential rule of reason guides the 

agency’s “choice of scientific method”). As the D.C. Circuit has 

explained, an agency’s modeling must be deferred to unless it is 
161

“so flawed” that the resulting findings “bore no rational 

relationship to the characteristics of the data to which it is 

applied[.]” Alaska Airlines, 588 F.3d at 1120 (citation and 

internal quotation marks omitted); see also Ethyl Corp. v. EPA,

541 F.2d 1, 36 (D.C. Cir. 1976) (“[The Court] must look at the 

decision not as the chemist, biologist or statistician that [it 

is] qualified neither by training nor experience to be, but as a 

reviewing court exercising [its] narrowly defined duty of 

holding agencies to certain minimal standards of rationality.”). 

The same degree of deference applies to the HEC-5Q Model, which 

the Corps selected as the “logical choice for the water quality 

model” to evaluate water management alternatives due to its 

compatibility with HEC-ResSim. A.R., ECF No. 61 at D-00036295; 

see also id. at D-00044353-54 (explaining that the HEC-5Q model 

can “simulate the entire riverine and reservoir system in a 

single model” and create modeled outputs that provide a 

“longitudinal presentation of conditions for comparison between 

various operations scenarios”).31

31 The Court therefore rejects Intervenor-Plaintiffs’ arguments 

against the Corps’ use of the HEC-5Q Model, see Intervenor-Pls.’ 

Mot., ECF No. 85 at 17 n.3; especially since they only point to 

acknowledgements the Corps already made and considered regarding 

that model’s “assumptions and limitations,” see A.R., ECF No. 61 

at D-00036296; see also Defs.’ Reply, ECF No. 102 at 24 n.11 

(stating that despite disclosing the model’s limitations, the 

Corps “is entitled to deference in its determination that the 

model was nevertheless appropriate”). Nor will the Court 

consider the extra-record report cited to by Intervenor-
162

The Court agrees with Defendants that although the Corps’ 

modeling was criticized by the EPA, that “does not demonstrate 

that its decision [was] arbitrary.” Defs.’ Cross-Mot., ECF No. 

95 at 30; see A.R., ECF No. 61 at D-00049704, D-00049707 (the 

EPA arguing that the Corps should “use a more precise modeling 

framework in determining impacts to water quality” because its

model “lacks the temporal, spatial, and mechanistic precision”

to quantify such impacts). “Although an agency should consider 

the comments of other agencies, it does not necessarily have to 

defer to them when it disagrees.” Theodore Roosevelt 

Conservation P’ship v. Salazar, 605 F. Supp. 2d 263, 276 (D.D.C. 

2009) (citation omitted), aff’d, 616 F.3d 497 (D.C. Cir. 2010); 

see also Busey, 938 F.2d at 201 (“[U]nder the rule of reason, a 

lead agency does not have to follow the EPA’s comments

slavishly—it just has to take them seriously.”); Fuel Safe Wash. 

v. FERC, 389 F.3d 1313, 1332 (10th Cir. 2004) (requiring an

agency “to consider the views of other agencies,” like the EPA,

but not obligating it to defer to those views). Therefore, even 

if the Court had otherwise concluded that Intervenor-Plaintiffs 

raised “plausible criticisms of the methodology chosen by the” 

Corps, they have failed to show that this choice was arbitrary 

or capricious. See Colo. River Cutthroat Trout v. Salazar, 898 

Plaintiffs regarding modeling problems in a case involving the 

ACF Basin. Intervenor-Pls.’ Mot., ECF No. 85 at 17.
163

F. Supp. 2d 191, 205 (D.D.C. 2012) (“[A]n agency’s choice of 

methodology need only be reasonable to be upheld.”).

b. The FEIS Adequately Analyzes and Discloses

Impacts of the Proposed Action Alternative 

on Hydropower Generation

Having established both the parameters of the “hard look” 

doctrine and the reasonableness of the Corps’ decision to use 

HEC-ResSim to conduct that “hard look,” the Court turns to the 

Alabama Plaintiffs’ first argument regarding “flaws” in the 

FEIS, namely involving the Master Manual’s division of the 

conservation pool into four action zones, as opposed to the two 

previously existing action zones, and its “reduced power 

generation in all action zones, as compared with the 1993 draft 

manual.” Pls.’ Mot., ECF No. 83 at 28-29, 56-57. They argue that 

“the Corps’ modeling of the Proposed Action Alternative failed 

to disclose the impact of one of the new Manual’s most 

fundamental changes—the Corps’ discretion not to make any

hydropower releases in any of the action zones at Lake 

Allatoona.” Id. at 57. In support of this argument, they direct 

the Court to Figure 5.4-1 in the record, titled “Operations 

under the Proposed Action Alternative at Allatoona Lake,” which 

depicts the four action zones and their corresponding hydropower 

generation schedule. A.R., ECF No. 61 at D-00044258. In Zone 1, 

the minimum hydropower generation schedule ranges from 0 to 4 

hours, in Zone 2 from 0 to 3 hours, in Zone 3 from 0 to 2 hours, 
164

and in Zone 4, 0 hours. See id. Based on this figure, the 

Alabama Plaintiffs contend that the Corps can now “eliminate 

hydropower generation completely at any time in any of the 

proposed action zones[,]” in contrast to the 1993 Draft Manual, 

under which Zone 1 required between two and six hours of 

hydropower generation. Pls.’ Mot., ECF No. 83 at 29.

The Alabama Plaintiffs further argue that although the 

Master Manual gives the Corps discretion to generate zero 

hydropower, the modeling for the Proposed Action Alternative 

assumes that the Corps will make sufficient releases to generate 

the maximum amount of hydropower each day when Allatoona is in 

Zone 1 or 2 during nine months of the year, and fifty percent of 

the maximum for those zones during the remaining three months of 

the year. Id. at 31, 57. They argue that such assumptions are 

“not realistic in light of the Corps’ operational history[,]” 

and that the Corps should have modeled “realistic circumstances” 

under which it generated less or even no hydropower to reveal 

the resulting decrease in flows and accompanying environmental 

effects. Id. at 57; Compl., ECF No. 1 at 20-21 ¶ 89. IntervenorPlaintiffs likewise argue that the Corps should have modeled its 

authority “under the Manual to reduce hydropower releases at 

Lake Allatoona to zero[,]” which they claim will occur during 

the driest periods in the ACT Basin “when assimilative capacity 

is most affected by low-flow conditions.” Intervenor-Pls.’ Mot., 
165

ECF No. 85 at 18. Defendants respond that “[i]n fact it is 

Plaintiffs’ focus on the possibility of at times lowering 

releases to zero that is unrealistic[,]” Defs.’ Cross-Mot., ECF 

No. 95 at 31; as the Corps has not claimed discretion “not to 

generate hydropower at all from its hydropower dams in the ACT 

Basin[,]” Defs.’ Reply, ECF No. 102 at 21.

The Court agrees with the Corps that its modeling of 

hydropower releases was reasonable and complied with NEPA 

because “[n]othing in the FEIS suggests that the Corps has 

‘newfound discretion not to generate hydropower[.]’” Id. at 20 

(quoting Pls.’ Reply, ECF No. 99 at 32). To the contrary, the 

FEIS recognizes that “[h]ydropower is one of the congressionally 

authorized purposes in the ACT Basin.” A.R., ECF No. 61 at D00043784. The FEIS explains that hydropower facilities at Corps 

projects in the basin are operated as peaking plants “to meet 

daily peak electric power demands during periods of high use” 

and that “[t]he number of hours of peaking operations on any 

given day at any specific project may vary as necessary to 

balance with meeting other authorized project purposes.” Id.

Regardless of this daily variation, however, at Allatoona Dam, 

the service unit is operated to continuously release minimum 

flows of 240 cfs, which generate hydropower while providing 

constant flows downstream. Id. at D-00043939. Under the Master 

Manual’s “[r]efined operations at Allatoona Lake,” the action 
166

zones were intentionally “shaped to mimic the seasonal demands 

for hydropower,” and modifications to the hydropower schedule 

were “put in place to provide greater operational flexibility to 

meet power demands while conserving storage.” Id. at D-00043797. 

The FEIS explains that under the Proposed Action Alternative, 

the typical daily hydropower generation range for Allatoona Lake 

is actually retained, while generation is only reduced during 

September through November “to facilitate implementation of the 

fall phased down guide curve[,]” which the Corps expects to 

provide additional benefits to “overall hydropower production.”

Id. at D-00044244-45. The record therefore negates the Alabama 

Plaintiffs’ claim that the Corps has sought to eliminate 

hydropower generation completely. See id. at D-00044949 

(explaining that the action zones serve as a guide to meeting, 

not negating, “system hydropower commitments”). 

Furthermore, while the Master Manual has changed the peak 

generation hours available for the four action zones based on 

seasonal demand, it has merely implemented a range of hours—from 

0 to 2, 3, or 4 hours—see id. at D-00044258; except for 0 hours 

at Zone 4, which is reserved for when reservoir elevations 

reflect “severe drought conditions” and peaking operations “will 

typically be suspended,” id. at D-00044950. Thus, the FEIS 

frames peaking generation as a “range,” Defs.’ Reply, ECF No. 

102 at 21; under which the hours identified in the action zones 
167

are to represent “the most likely hydropower demand during 

normal conditions[,]” see A.R., ECF No. 61 at D-00046589 

(“Modeling is not intended to capture the exact operation of 

every day.”). Here, the FEIS’ modeling may have assumed the 

maximum amount identified in each action zone, but the Corps has 

explained that while it agrees that actual operations may not be 

this amount, using the maximum value per zone “capture[s] 

typical reductions[,]” allows for meaningful comparisons, and 

has been used in prior modeling approaches in earlier ACT/ACF 

studies. Id.; see Defs.’ Reply, ECF No. 102 at 21 n.9 

(explaining that because the Manual “frames peaking generation 

as ‘up to’ certain hours[,]” Plaintiffs cannot show that the 

Corps “overestimated” hydropower generation in the FEIS (citing 

A.R., ECF No. 61 at D-00044949-51)). The FEIS even notes that 

peak generation “could exceed” the maximum ranges in zones 1 to 

3 in unique situations. See A.R., ECF No. 61 at D-00044792-93. 

On the other end of the range involving “zero hours on certain 

days in certain circumstances[,]” the FEIS “explains the limited 

and infrequent circumstances in which such generation might not 

occur[,]” Defs.’ Reply, ECF No. 102 at 21; such as “maintenance 

and repair of turbines; emergency situations such as a drowning 

or chemical spill; draw-downs because of shoreline maintenance; 

drought operations; increased or decreased hydropower demand; 

and other circumstances[,]” A.R., ECF No. 61 at D-00044949-50. 
168

And even in those rare situations of zero peaking generation, 

hydropower production continues from the Allatoona service unit

at minimum flows of 240 cfs, id. at D-00043939, D-00044950; 

thereby negating the Alabama Plaintiffs’ contention that the 

Corps ignored their comments about Allatoona’s authorizing 

legislation requiring the Corps to provide minimum levels of 

hydropower releases, see Pls.’ Reply, ECF No. 99 at 32-33.

Because the FEIS does not indicate that the Corps now has 

“absolute discretion to wholly withhold hydropower releases” 

wherever and whenever it wants, Pls.’ Mot., ECF No. 83 at 57; 

the Court agrees with Defendants that the Corps did not need to 

separately model a less or no-hydropower scenario since the 

range of hydropower hours per action zone adequately captures 

scenarios resulting from the Corps balancing various factors or 

activities impacting peaking operations, and as the FEIS 

demonstrates, it is “not realistic” that the range of peak 

generation for each zone will near zero on typical days, Defs.’ 

Cross-Mot., ECF No. 95 at 31; see Izaak Walton League of Am. v. 

Marsh, 655 F.2d 346, 377 (D.C. Cir. 1981) (“Detailed analysis is 

required only where impacts are likely. . . . So long as the 

[EIS] identifies areas of uncertainty, the agency has fulfilled 

its mission under NEPA.”). Accordingly, the Court agrees with 

Defendants that while Plaintiffs “may have more pessimistic 

assumptions about what might happen” to hydropower impacts under 
169

the Master Manual, this is not a reason to set aside the FEIS. 

Defs.’ Reply, ECF No. 102 at 21.

c. The FEIS Adequately Analyzes and Discloses

Impacts of the Proposed Action Alternative 

Associated with the CC-MWA’s Water Supply 

Withdrawals 

The Court now turns to the Alabama Plaintiffs’ second 

argument—that the Proposed Action Alternative conceals 

environmental impacts related to the CC-MWA’s water supply 

withdrawals from Allatoona Lake. Pls.’ Mot., ECF No. 83 at 58. 

The authority upon which the Corps relies to use Allatoona for 

local water supply derives from the Water Supply Act of 1958. 

Id. at 19. Pursuant to that Act, the Corps has authority, 

without the need for prior congressional approval, to modify its 

reservoir projects “to provide storage for municipal and 

industrial water supply, so long as adding the modifications 

would not cause a ‘major structural or operational change’ from 

the structures and operations authorized by Congress or 

‘seriously affect’ the congressionally authorized project 

purposes.” In re ACF Basin, 554 F. Supp. 3d at 1296 (quoting 43 

U.S.C. § 390b(e)). Using this authority, the Corps has 

reallocated about seven percent of Allatoona’s storage capacity 

from normal power operations to municipal water supply based on 

a 1963 storage contract with the CC-MWA. See Pls.’ Mot., ECF No. 

83 at 19; A.R., ECF No. 61 at SUPPAR012820 (explaining that the 
170

storage contract conveyed to the CC-MWA “the right to utilize 

storage space at Lake Allatoona to store water granted to [the] 

CC-MWA by the State of Georgia”). According to the FEIS, water 

supply usage has increased over time, with 2006 amounting to a 

drought year with the highest water demand on record, A.R., ECF 

No. 61 at D-00043790; leading the Corps to recognize that “the 

available storage under existing water supply agreements at 

[Corps] reservoirs may not be sufficient to accommodate the 2006 

level of water supply withdrawals under all conditions[,]” id.

at D-00043824.

The Alabama Plaintiffs argue that historically the CC-MWA 

has withdrawn more water from Allatoona Lake than its contract 

allows, which they claim the Corps has acknowledged despite not 

seeking to enforce the contract’s limits. Pls.’ Mot., ECF No. 83 

at 58; see A.R., ECF No. 61 at SUPPAR012820 (calculating that in 

2007, the CC-MWA “substantially exceeded the storage allocation 

provided in the water supply storage contract”). Due to “this 

reality,” they claim that the Corps properly modeled the NoAction Alternative using the CC-MWA’s actual withdrawals from 

2006, “rather than the substantially lower contractual limits” 

that the CC-MWA “routinely has violated,” yet improperly modeled 

the Proposed Action Alternative “on the inconsistent assumption 

that [the] CC-MWA would abide by its contractual limits in the 

future.” Pls.’ Mot., ECF No. 83 at 31, 58; Pls.’ Reply, ECF No. 
171

99 at 33. By modeling the Proposed Action Alternative this way, 

the Alabama Plaintiffs claim that “the FEIS is representing that 

far more water will be available to improve downstream 

conditions than is realistic[,]” and therefore, the Corps did 

not fulfill the parameters of NEPA’s “hard look” doctrine and 

instead deprived the public of relevant information.32 See Pls.’ 

Mot., ECF No. 83 at 58-59. Defendants respond that it was 

reasonable to model the No-Action Alternative to reflect “actual 

withdrawals from Allatoona Lake” in 2006, while modeling 

withdrawals under the proposed action alternatives “consistent 

with the amount of storage available in existing water supply 

storage agreements.” Defs.’ Cross-Mot., ECF No. 95 at 32. They 

explain that the FEIS “took the highly conservative approach of 

utilizing water demand data from 2006—a year of historic drought 

and the highest net withdrawals in system history—when

estimating future withdrawals basin-wide for each alternative,” 

Defs.’ Reply, ECF No. 102 at 22; which enabled the Corps “to 

32 The Georgia Parties agree but do not provide arguments in 

support of the contention that the Corps erred in the FEIS by 

assuming that the CC-MWA’s “current water supply withdrawals 

from Allatoona Lake would be capped at levels below its actual 

use.” See Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 6 n.1, 25 

n.13. Instead, they disputed this claim in separate litigation 

challenging the ACT Manual and FEIS. See generally Compl., 

Georgia v. U.S. Army Corps of Eng’rs, No. 1:14-cv-03593 (N.D. 

Ga. Nov. 7, 2014), ECF No. 1. As the Court explains below, this 

claim was rejected by the Northern District of Georgia in 2017. 

See Order, Georgia v. U.S. Army Corps of Eng’rs, No. 1:14-cv03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61 at 43-45. 
172

analyze the circumstances in which there were the highest 

possibility of adverse impacts[,]” Defs.’ Cross-Mot., ECF No. 95 

at 32. Thus, Defendants claim that the Alabama Plaintiffs have 

failed to show “any meaningful understatement of impacts.” 

Defs.’ Reply, ECF No. 102 at 22.

The Court agrees that it was reasonable for the FEIS to 

model water supply withdrawals from Allatoona Lake for the 

action alternatives consistent with the CC-MWA’s 1963 contract. 

As the Northern District of Georgia has concluded in separate 

litigation involving the ACT Master Manual and FEIS over this 

identical issue, “there is no evidence that suggests use of 

current contract values is an unacceptable standard in assessing 

the environmental impacts of operational changes in a 

reservoir.” See Order, Georgia v. U.S. Army Corps of Eng’rs, No. 

1:14-cv-03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61 at 43-45

(rejecting an identical argument from the Georgia Parties that 

the FEIS violates NEPA because the Corps used the CC-MWA’s 

“existing contract allocation amounts in evaluating

alternatives, and assumed that water use would not be permitted 

to exceed those quantities” when “in reality” the CC-MWA’s 

“current withdrawals exceed the contractual amounts”). The Court 

is persuaded by the Northern District of Georgia’s conclusion

that concerns regarding the renegotiation of water supply 

contracts are beyond the scope of this action, id. at 44; see 
173

A.R., ECF No. 61 at D-00046599 (“A reallocation of storage at 

Lake Allatoona for water supply is outside the scope of the 

[WCM] update process.”); and that “while the Corps’ methodology 

may be inaccurate in some respects, the Court is not authorized 

to substitute its judgment ‘concerning the wisdom or prudence of 

the proposed action[,]’” Order, Georgia v. U.S. Army Corps of 

Eng’rs, No. 1:14-cv-03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61 

at 44 (citation omitted). Instead, the Court must be 

particularly deferential given that the agency is evaluating 

complex “scientific matters in its area of technical expertise.” 

Nat’l Wildlife Fed’n v. EPA, 286 F.3d 554, 560 (D.C. Cir. 2002). 

Therefore, the Court defers to the Corps’ decision in the FEIS 

to model withdrawals in the proposed action alternatives 

consistent with the CC-MWA’s current water supply contract 

amounts, and concludes, as did the Northern District of Georgia, 

that this choice was not arbitrary or capricious.33 See Order, 

Georgia v. U.S. Army Corps of Eng’rs, No. 1:14-cv-03593 (N.D. 

Ga. Sept. 29, 2017), ECF No. 61 at 44-45 (concluding that NEPA’s 

33 The Court is not persuaded by the Alabama Plaintiffs’ attempt 

to point to the number of customers served by the CC-MWA’s 

withdrawals as evidence to support their “implication that 

future withdrawals will nevertheless exceed [the FEIS’] 

conservative estimation,” which as Defendants note, “already 

accounts for [the CC-MWA’s] existing water supply contract” that 

it uses to supply those customers.” See Defs.’ Reply, ECF No. 

102 at 22; Pls.’ Reply, ECF No. 99 at 34.
174

procedural requirements “were adhered to” and denying summary 

judgment on the Georgia Parties’ NEPA claims).

In any event, the Court agrees with Defendants that it was 

“conservative” of the Corps to use water demand data from 2006 

in estimating future basin-wide withdrawals for each of the 

alternatives. Defs.’ Cross-Mot., ECF No. 95 at 32. The record 

indicates that net water withdrawals in 2006 were not only the 

highest in ACT Basin history, A.R., ECF No. 61 at D-00043790; 

but also much higher than the estimated daily requirements in 

the CC-MWA’s water supply storage agreement with the Corps, see 

id. at D-00053482; Defs.’ Cross-Mot., ECF No. 95 at 32. In 2006, 

the CC-MWA withdrew an average of 47.19 million gallons per day 

(“mgd”) from Allatoona Lake, compared to the estimated daily 

requirement of 34.5 mgd allotted in its 1963 water supply 

contract. A.R., ECF No. 61 at D-00053482. Since 2006, the CCMWA’s withdrawals have averaged 37.10 mgd annually. Id. Despite 

this lower average number, the Corps used 2006’s “actual, record 

water supply withdrawals” number of 47.19 mgd for the No-Action 

Alternative, Proposed Action Alternative, “and all other 

alternatives,” but then used modeling parameters to limit the 

withdrawals for the action alternatives “to those that would be 

available, under the modeled circumstances, from existing water 

supply storage allocations. . . .” Id. at D-00053483; see id. at 

D-00043790 (stating that the Corps “took into account the 
175

current (2006) demand, as well as the availability of storage 

under existing water supply storage agreements at [Corps] 

reservoirs, in evaluating the alternatives”), D-00046589 

(explaining that “[u]sing the same water supply numbers for each 

reservoir alternative operation allow[ed] for proper comparative 

impact analysis”). The modeling results for the Proposed Action 

Alternative indicated that withdrawals from the existing water 

supply storage would average 43.34 mgd annually, more than the 

34.5 mgd requirement in the 1963 contract but less than the 

47.19 mgd average that was withdrawn in 2006. Id. at D-00053483.

Therefore, by using 2006’s unprecedented demand level to model 

withdrawals, the Corps conservatively analyzed the alternatives 

in comparison to scenarios with “the highest possibility of 

adverse impacts.” Defs.’ Cross-Mot., ECF No. 95 at 32.

Furthermore, the administrative record indicates that the 

Corps conducted a sensitivity analysis to measure the effects of 

greater water supply withdrawals than anticipated, i.e., the 

sensitivity of the Proposed Action Alternative to increased 

future water demands. See A.R., ECF No. 61 at D-00044478, D00047882-84 (Figures 6, 7, and 8). This analysis demonstrated 

that a thirty percent increase in overall water supply demand, 

above the 2006 level already used in the impacts analysis, would 

not impact the overall results of the modeling. See id.; Defs.’ 

Cross-Mot., ECF No. 95 at 32. This analysis confirmed that “even 
176

an unprecedented level of water supply withdrawals from 

Allatoona Lake would not have significantly different impacts 

than those analyzed[,]” thereby negating the Alabama Plaintiffs’ 

contention that the FEIS understates impacts of the CC-MWA’s 

water supply withdrawals. Defs.’ Reply, ECF No. 102 at 22-23.

d. The FEIS Adequately Analyzes and Discloses

Impacts of the Master Manual on Water 

Quality at Montgomery, Alabama

The Court next turns to Intervenor-Plaintiffs’ three 

additional arguments as to why the FEIS should be set aside, 

beginning with the Montgomery Board’s claim that the FEIS fails 

to adequately analyze the Master Manual’s impacts on water 

quality issues at Montgomery, Alabama. See Intervenor-Pls.’ 

Mot., ECF No. 85 at 15-19. The Montgomery Board, a public water 

utility providing water and wastewater services, states that it 

relies on reliable water flows in the ACT Basin, particularly 

from the Tallapoosa and Alabama Rivers, “for critical water 

supply and wastewater assimilation purposes[,]” and that it “has 

long objected to the Corps’ actions at Allatoona that impair 

water flows within Alabama.” Id. at 9, 15. It argues that the 

Master Manual will lead to further flow reductions that harm the 

Montgomery Board and its customers, including by degrading water 

quality, impairing its ability to treat wastewater, and reducing 

flows below minimum amounts mandated by its NPDES permits, such 

that changes to its permits will be required and subsequent 
177

modifications to its water and wastewater treatment facilities 

will be necessary to maintain permit compliance. Id. at 9-10. 

To support its claims, the Montgomery Board points to 

ADEM’s prediction that the Master Manual will cause water 

quality violations in Alabama, and the Corps’ acknowledgement

that reduced flows may necessitate changes in and reevaluation 

of NPDES permits throughout the ACT Basin. Id. at 15 (citing 

A.R., ECF No. 61 at D-00043396-405, D-00043827, D-00043860). 

Instead of addressing these issues, the Montgomery Board claims 

that the FEIS uses “vague, conclusory terms” to minimize the 

Manual’s downstream effects on water quality and used improper 

modeling, incorrect forecasting of future water supply demands, 

and incorrect Allatoona discharge data to further mask these 

adverse effects. See id. at 16-19. The Montgomery Board also 

argues, as do the Alabama Plaintiffs, that “the Corps has 

impermissibly attempted to shift all responsibility for water 

quality to other parties” to avoid NEPA’s requirements. Id. at 

19. Defendants respond that the Corps fully and reasonably 

analyzed water quality impacts, including at Montgomery, in 

“hundreds of pages in the FEIS and two full appendices.” Defs.’ 

Reply, ECF No. 102 at 23. They argue that the Corps’ reliance on 

its choice of water quality modeling and accompanying analyses, 

despite contrary comments from the EPA, and on its own data 

sets, was legal, rational, and entitled to deference. Id. at 23-
178

24; Defs.’ Cross-Mot., ECF No. 95 at 33-34. For the reasons 

explained below, the Court agrees with Defendants and rejects 

each of the Montgomery Board’s water quality claims under NEPA.

First, the Court reiterates its earlier conclusion that 

deference is due to the Corps’ modeling choices—HEC-ResSim as 

the overall “flow model” and HEC-5Q as the water quality model. 

See supra section IV.B.2.a. Intervenor-Plaintiffs argue that 

these models are “improper” because comments from the EPA and 

ADEM indicate that “more appropriate” and “site-specific 

sophisticated modeling frameworks” developed by federal and 

state agencies should have been used instead, and that the 

Corps’ “failed to take a ‘hard look’ at water quality impacts by 

using a model that the nation’s primary regulator for water 

quality cautioned against.” Intervenor-Pls.’ Reply, ECF No. 101 

at 6-7 (quoting A.R., ECF No. 61 at D-00049707). However, the 

record indicates that the Corps considered these comments but 

concluded that those site-specific models, designed for use in 

assessing TMDLS, “are of limited value in making water release 

decisions and selecting alternative operations at reservoirs.” 

See A.R., ECF No. 61 at D-00053484 (“The [Corps] technical team 

of subject matter experts has reviewed the comments from the EPA 

and determined that the evaluation of water quality impacts 

contained in the [FEIS] complies with NEPA requirements.”). 

Having taken these explanatory steps, “the Corps was entitled to 
179

rely on its own modeling[,]” Defs.’ Reply, ECF No. 102 at 24; a 

reasonable decision to which the Court must defer, see Nat. Res. 

Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1385 (D.C. Cir. 

1985) (deferring “to an agency’s judgment to use a particular 

model if the agency examines the relevant data and articulates a 

reasoned basis for its decision”). The same conclusion applies 

to the Corps’ use of its own historical Allatoona discharge 

data, as opposed to Intervenor-Plaintiffs’ preferred data 

reported by the U.S. Geological Survey. See Defs.’ Cross-Mot., 

ECF No. 95 at 30; Defs.’ Reply, ECF No. 102 at 25 n.12; see also

Sierra Club v. Watkins, 808 F. Supp. 852, 862 (D.D.C. 1991) 

(stating that “NEPA does not require a federal agency to 

consider and discuss every viewpoint in the scientific community 

on a given matter[,]” and noting that when specialists disagree, 

agencies “have discretion to rely on the reasonable opinions of 

its own qualified experts”).

Second, the Court rejects the Montgomery Board’s claim that 

the Corps incorrectly forecasted future water demands by Georgia 

entities, just as it rejected the Alabama Plaintiffs’ similar 

argument that the Corps incorrectly assessed the impacts of the 

CC-MWA’s water supply withdrawals under the Proposed Action 

Alternative. See supra section IV.B.2.c. Here, the Montgomery 

Board argues that by using “outdated” data from 2006 addressing 

projected water demands through 2030, as opposed to accessible 
180

data projecting demands through 2040, the Corps understated 

foreseeable water supply demands and the resulting “cumulative 

environmental impacts of the Manual.” Intervenor-Pls.’ Mot., ECF 

No. 85 at 17-18. The Court disagrees, concluding that the Corps 

reasonably used data from 2006 and its accompanying 2030 

projections, as this data provided sufficient information to 

evaluate the action alternatives and reasonably choose among 

them. See A.R., ECF No. 61 at D-00043998-4026. That the 

Montgomery Board would prefer a different dataset making

projections through 2040 is unpersuasive, as the D.C. Circuit 

has concluded that “while it is ‘desirable . . . for agencies to 

use the most current and comprehensive data available when 

making decisions,’ an agency’s reliance on outdated data is not 

arbitrary or capricious[.]” Theodore Roosevelt, 605 F. Supp. 2d 

at 273 (quoting Vill. of Bensenville, 457 F.3d at 71); see also 

Selkirk Conservation All. v. Forsgren, 336 F.3d 944, 962 (9th 

Cir. 2003) (“NEPA does not impose a requirement that the 

[agency] analyze impacts for any particular length of time.”). 

Third, the Court concludes that the FEIS goes beyond 

“conclusory terms” to explain how and why the Corps determined 

that water quality effects of the Master Manual would be 

“minor.” Intervenor-Pls.’ Mot., ECF No. 85 at 16; see A.R., ECF 

No. 61 at D-00043827 (“The overall effect of the Proposed Action 

Alternative on water quality would be expected to be 
181

negligible.”), D-00043853 (“The Proposed Action Alternative 

(Plan G) with reduced basin inflow . . . would have minor 

impacts on water quality in the ACT Basin.”). As discussed, the 

Corps developed its “highly technical HEC-ResSim model to 

analyze the ACT Basin’s hydrology[,]” Defs.’ Cross-Mot., ECF No. 

95 at 33; and modified this model via the HEC-5Q Model to 

thoroughly analyze water quality impacts, specifically “each 

water quality parameter . . . over multiple periods, as outlined 

in the water quality modeling report (Appendix D)[,]” see A.R., 

ECF No. 61 at D-00046824 (explaining that a “wide range of flows 

was modeled and analyzed” and “[m]odel results were summarized 

for three hydrologic periods, including high flows, low flows, 

and ‘normal’ flows”). The performance of this modeling enabled 

the Corps to discuss water quality impacts on the environment in 

detail in the FEIS, see, e.g., id. at D-00044353-95 (assessing 

various sub-topics under section 6.1 “Water Resources” for each 

of the action alternatives, such as “Water Withdrawals,” “Water 

Quality Environmental Consequences,” and “Water Temperatures,” 

among other pertinent water quality subjects), D-00044031-49 

(analyzing “surface water quality,” including “water quality 

standards” at point and nonpoint sources); and the Corps even 

performed additional analysis following ADEM’s comments on the 

FEIS, which confirmed its original conclusion that there would 

be “little impact under the [Proposed Action Alternative] to the 
182

water quality in the ACT Basin[,]” id. at D-00053485. As the 

Corps has explained, water quality impacts “as a whole [were] 

thoroughly discussed” when updating the WCMs, Defs.’ Cross-Mot., 

ECF No. 95 at 33; and were also explicitly addressed in a

comparison of the impacts of the various alternatives on the 

Alabama River at Montgomery, A.R., ECF No. 61 at D-00043820-42. 

The FEIS also discusses direct and indirect effects34 of each 

alternative on water quality indicators such as water 

temperature, oxygen demand, and levels of phosphorous, nitrogen, 

and chlorophyll a, see id. at D-00043825-27, D-00044353-95, D00046824; “including in areas far downstream of Corps projects 

and at projects operated by others—as influenced over time by 

hydrological conditions and pollution sources in the basin[,]” 

Defs.’ Reply, ECF No. 102 at 26. Accordingly, the Court 

concludes that the Montgomery Board has not shown “that the 

Corps failed to sufficiently analyze any discrete environmental 

impact that is subject to the Corps’ control nor has [it] shown 

that the agency’s discussion of impacts was arbitrary or 

capricious.” In re ACF Basin, 554 F. Supp. 3d at 1306. To the 

34 Direct effects “are caused by the action and occur at the same 

time and place[,]” while indirect effects “are caused by the 

action and are later in time or farther removed in distance, but 

are still reasonably foreseeable.” 40 C.F.R. § 1508.1(g). To 

satisfy NEPA, agencies must consider both direct and indirect 

environmental effects of the project under consideration. Sierra 

Club v. FERC, 867 F.3d 1357, 1371 (D.C. Cir. 2017).
183

extent Intervenor-Plaintiffs “would prefer a more extensive 

discussion of [the water quality] issues, that is not a reason 

to overturn the [FEIS,]” id. at 1307; or to find that “the 

requisite ‘hard look’ was not taken[,]” Intervenor-Pls.’ Reply, 

ECF No. 101 at 8.

Despite this record evidence, the Montgomery Board argues 

that the Corps failed to address certain indirect environmental

effects, notably the Master Manual’s “increased potential for 

triggering drought operations and the corresponding impact to 

water quality” at Montgomery, as modeled by APC under a “no 

power scenario.” Intervenor-Pls.’ Reply, ECF No. 101 at 9. 

According to APC’s “no power” analysis, in which the Corps 

exercises its “discretion to not make releases for hydropower,” 

Alabama would only receive minimum flows during the critical 

late summer months about half the time, A.R., ECF No. 61 at D00049609; and state-line flows would trigger drought operations 

in Alabama 17% of the time, an 82% increase compared to the NoAction Alternative, id. at D-00043422, D-00045989. Given APC’s

modeling, the Montgomery Board is concerned that the Corps can 

“artificially” trigger the Master Manual’s new drought plan “by 

curtailing releases from Allatoona (which comprise much of the 

flow at the state line), further reducing flow in the basin, 

particularly on the Alabama River[,]” thereby degrading 
184

Montgomery’s water quality. Intervenor-Pls.’ Reply, ECF No. 101 

at 9; Intervenor-Pls.’ Mot., ECF No. 85 at 19-20 n.4.

The Court rejects the Montgomery Board’s “indirect effects” 

argument. First, the Corps addressed and explicitly negated 

comments that the Proposed Action Alternative “will make drought 

operations in Alabama more frequent and drought effects more 

severe[,]” and explains its reasons for concluding that the 

drought management plan will not increase drought severity. See, 

e.g., A.R., ECF No. 61 at D-00046596. Second, given that the 

Corps’ choice of modeling is entitled to deference, the Court 

concludes that the Corps was reasonably “entitled to rely on its 

own modeling and expertise,” even though its modeling differs

from that performed by APC or another third party. Defs.’ CrossMot., ECF No. 102 at 26. This conclusion is further supported by 

the Court’s earlier conclusion that the Corps need not 

separately model a no-hydropower scenario, see supra section

IV.B.2.b.; as the FEIS, contrary to the Montgomery Board’s 

claim, does not indicate that the Corps has newfound discretion 

to generate zero hydropower,35 nor is it likely that peak 

generation for each action zone will near zero on a given day, 

35 Like the Alabama Plaintiffs, the Montgomery Board argues that 

the Corps failed to “model its discretion to reduce hydropower” 

releases at Allatoona Lake to zero. See Intervenor-Pls.’ Mot., 

ECF No. 85 at 18-19. The Court already rejected this argument 

for the Alabama Plaintiffs and does not address it again here.
185

see, e.g., A.R., ECF No. 61 at D-00044949-51. Thus, APC’s “no 

power” scenario, which “assumes that the Corps generates no 

hydropower at Allatoona[,]” id. at D-00043422, D-00049609; is 

premised on an unrealistic assumption, and the Montgomery 

Board’s concerns based on this model are not reasonable.

Regardless, the FEIS explains, using data from the 

simulated period of hydrologic record, that the new drought 

management plan (only activated under specific triggers) is 

expected to “result in improved storage conditions and higher 

lake levels . . . than would be expected without the drought 

plan, while continuing to meet downstream flow requirements and 

targets as well as essential water needs (quantity and quality) 

for municipal and industrial users to the extent possible.” See

A.R., ECF No. 61 at D-00044340-52 (Section 6.1.1.4 “Drought 

Management” and Section 6.1.1.5 “Navigation Flow Targets—Alabama 

River”). In assessing the impacts of the drought plan, the FEIS 

specifically modeled water quality impacts under dry flow 

conditions, id. at D-00044354; before determining that there is 

only a “minor increase in susceptibility to drought operations 

over the modeled period of record” under the Proposed Action 

Alternative, id. at D-00044342. In sum, the Court agrees with 

Defendants that “since there is no merit to Intervenors’ claims 

of deficiency in the Corps’ choices of data and models, . . . 

their claim that the water quality analysis was compromised by 
186

those data and model choice deficiencies . . . also fails.” 

Defs.’ Reply, ECF No. 102 at 27.

Finally, the Court rejects the Montgomery Board’s argument 

that the Corps has improperly shifted the burden to the States 

to address the Master Manual’s water quality impacts. See

Intervenor-Pls.’ Mot., ECF No. 85 at 15, 19; Intervenor-Pls.’ 

Reply, ECF No. 101 at 8-9. While the FEIS concedes that “[w]ater 

management activities may affect water quality under low flow 

conditions such that the state regulatory agencies may consider 

reevaluation of NPDES permits to confirm the system’s 

assimilative capacity[,]” it identifies this adaptive management 

technique[,]” A.R., ECF No. 61 at D-00043827; as one mitigation 

measure the States could “elect . . . to limit discharges during 

certain in-stream flow conditions” and “ensure that NPDES 

permitted facilities do not violate water quality standards 

under extreme low flow conditions” in the future, see id. at D00043860, D-00044364 (explaining that some dischargers could be 

required, by their NPDES permit, “to change the way they operate 

during low-flow conditions”). While the Montgomery Board “may 

not like the fact that some permittees may have to treat their 

pollution better, rather than relying on the Corps to dilute 

it,” Intervenor-Defs.’ Suppl. Mot. Reply, ECF No. 139 at 21; it 

is permissible for agencies to “recognize that other entities 

are in the best position to take appropriate action[,]” In re 
187

ACF Basin, 554 F. Supp. 3d at 1307. Although the Montgomery 

Board argues that the potential permit changes make future 

planning difficult, Intervenor-Pls.’ Mot., ECF No. 85 at 16; 

under NEPA, the Corps “need not delay adopting its preferred 

alternatives while those other entities choose ‘what mitigating 

measures they consider necessary[,]’” In re ACF Basin, 554 F. 

Supp. 3d at 1307 (quoting Robertson, 490 U.S. at 353). 

This conclusion applies equally to APC, which is in the 

“best position” to make mitigating discharge decisions at its 

seven reservoir projects on the Coosa River—between the City of 

Montgomery and the two upstream Corps projects in Georgia 

(Carters Dam and Allatoona Dam)—and its four projects upstream 

of Montgomery on the Tallapoosa River. A.R., ECF No. 61 at D00046675. As the FEIS notes, flow conditions in the Alabama 

River at Montgomery “are mainly controlled by water management 

activities at APC projects upstream on the Coosa and Tallapoosa 

rivers and are minimally affected by projects in the upper 

portion of the basin” controlled by the Corps, id. at D00044421; such that APC’s “operational decisions are the primary 

factors determining flows” at Montgomery, id. at D-00046675.

While APC projects are generally affected by the overall flow of 

water through the ACT Basin, see Intervenor-Pls.’ Mot., ECF No. 

85 at 19; they are directly governed by their own minimum 

release targets pursuant to FERC licenses that were “established 
188

to meet downstream navigation objectives as well as provide 

waste assimilation, hydropower generation, and other downstream 

benefits[,]” A.R., ECF No. 61 at D-00044421, D-00043960-61. 

Therefore, as the Corps has asserted in response to comments, it 

“is not responsible to ‘ensure suitable water quality’ at 

Montgomery as asserted” by the Montgomery Board, id. at D00046675; and it reasonably analyzed water quality impacts 

downstream near Montgomery in lesser detail because these 

impacts in this area “depend on a series of third party actions—

including by [APC] in making decisions regarding the quantity of 

releases from its reservoirs—rather than the Corps’ operations 

far upstream,” Defs.’ Cross-Mot., ECF No. 95 at 33.

For these reasons, the Court concludes that the FEIS 

adequately and reasonably considers and discloses impacts of the 

Master Manual on water quality, including at Montgomery, 

Alabama. 

e. The FEIS Adequately Analyzes and Discloses

Impacts of the Master Manual on Salt Water 

Intrusion from Mobile Bay

Next, the Court considers Intervenor-Plaintiff Mobile 

Water’s claim that the FEIS fails to adequately evaluate salt 

water intrusion from Mobile Bay that it argues results from 

reduced flows under the Master Manual. See Intervenor-Pls.’ 

Mot., ECF No. 85 at 20-23. Mobile Water is “a downstream user of 

the water resources at issue,” Min. Order (Apr. 4, 2016); as it 
189

operates an industrial water supply that provides fresh water 

unencumbered with salt or brine from tidal influences of the 

Mobile Bay to customers in the Mobile Area, A.R., ECF No. 61 at 

D-00046635-36. According to Mobile Water, it operates freshwater 

intakes in the lower portion of the ACT Basin “that are 

susceptible to salt water intrusion from Mobile Bay[,]” and that 

without adequate flows from the Basin into the Mobile River, 

“there is a substantial risk of increased salinity[.]” 

Intervenor-Pls.’ Mot., ECF No. 85 at 10, 20. Mobile Water 

explains that to operate its water and wastewater service, it 

depends on reliable waters from the Alabama River, which 

terminates into the Mobile River. A.R., ECF No. 61 at D00046636. The Alabama River is the source of ninety percent of 

Mobile Water’s industrial water supply, and it argues that 

reduced flows in that river have allowed the intrusion of 

“salty, brackish water from Mobile Bay,” which is “caused by the 

tidal action of salty Mobile Bay when the flow of fresh water in 

Mobile River is too low to keep the denser Bay water from 

extending upriver.” Id. In comments submitted on the draft EIS, 

Mobile Water contended that the “encroachment of salt water 

upstream is directly related to the reducing volume of Mobile 

River flow[,]” which is only worsening with reduced flows from 

the Alabama River and resulting in water intake that “contains 

salt levels in excess of limits acceptable for some industrial 
190

uses[,]” harm to Mobile Water’s industrial customers, and the 

diminishment of a standby source of drinking water for its 

residential and commercial customers. Id. at D-00046635-37.

Mobile Water claims that the Corps’ conclusion that the 

Master Manual will only cause a negligible impact to Mobile 

Water and its customers is “arbitrary and capricious” for two 

reasons: (1) “the 2014 FEIS is directly inconsistent with [the 

Corps’] findings on the same issue in 2007[;]” and (2) “no 

detailed information or scientific studies relating to salt 

water intrusion in the Mobile River appear in the Administrative 

Record, except for a stale 70-year-old study.” Intervenor-Pls.’ 

Mot., ECF No. 85 at 20 (emphasis in original). Defendants 

respond that the Corps did not make inconsistent factual 

findings and properly limited the scope of its review, “while 

still analyzing the impacts of changing salinity levels on 

downstream resources.” Defs.’ Cross-Mot., ECF No. 95 at 35. The 

Court addresses each of Mobile Water’s two arguments in turn.

First, Mobile Water argues that the Corps has based its 

salt water intrusion conclusions on “inconsistent findings.” 

Intervenor-Pls.’ Mot., ECF No. 85 at 20. It references the 

Corps’ statement in a “Public Notice,” dated May 31, 2007, in 

which the Corps solicited public comments on a proposal from APC 

to reduce minimum flows on the Alabama River to conserve 

reservoir storage as a result of record drought conditions. Id.
191

at 10-11 (citing A.R, ECF No. 61 at D-00049910). In this notice, 

the Corps wrote that “approximately two-third of the flow into 

the Mobile River comes from the Alabama River system during low 

flow conditions[,] compared to approximately one-third from the 

Tombigbee River system[,]”36 and it expressed concern that the 

flow reduction in APC’s proposal could “potentially affect 

flows, water quality, salt water intrusion, and environmental 

resources in the Mobile Delta and Bay area.” A.R., ECF No. 61 at 

D-00049910-11 (emphasis added). Mobile Water contrasts this 2007 

Public Notice with the 2014 FEIS, which states that “flows from 

the ACT Basin are roughly half of the total flow in the Mobile 

River downstream of the juncture of the Alabama and Tombigbee 

rivers.” Id. at D-00043910. Using the change from the 66/33 flow 

percentages in the 2007 Public Notice to the 50/50 percentages 

in the 2014 FEIS, Mobile Water argues that the Corps “completely 

reversed course” without explanation in violation of NEPA. See

Intervenor-Pls.’ Mot., ECF No. 85 at 11, 20-21. 

The Court rejects Mobile Water’s argument and agrees with 

Defendants that “the percentages in those documents are used for 

two different purposes in discussion of two different facts[.]” 

Defs.’ Reply, ECF No. 102 at 27. The 2007 Public Notice 

36 The Tombigbee River is not part of the ACT Basin “per se” but 

joins the Alabama River to form the Mobile River upstream of 

Mobile Bay. Intervenor-Pls.’ Mot., ECF No. 85 at 11 n.1.
192

approximates the percentages of water coming from the Alabama 

and Tombigbee Rivers “during [the] low flow conditions” proposed 

in APC’s specific drought operations request, A.R., ECF No. 61 

at D-00049910; while the calculations in the 2014 FEIS were not 

restricted to low flows but covered simulations for high flows, 

low flows, and “normal” flows over three hydrologic periods, id.

at D-00046824; Defs.’ Cross-Mot., ECF No. 95 at 37; Defs.’ 

Reply, ECF No. 102 at 28. Further, not only does the 2007 

statement merely “approximate[]” the relative percentage of flow 

contributions from each river, see A.R., ECF No. 61 at D00049910; but also the context was a public notice soliciting 

comments about APC’s drought proposal, rather than a fully 

studied environmental analysis containing factual findings, as 

was the 2014 FEIS. Because the Public Notice was not final 

agency action, the Court agrees with Defendants that the FEIS is 

not arbitrary for being “inconsistent” with the notice’s 

approximations for (solely) low flow conditions. Defs.’ CrossMot., ECF No. 95 at 37. Further, the caselaw Mobile Water cites 

regarding “the importance of consistency,” see Intervenor-Pls.’ 

Mot., ECF No. 85 at 20-21; only supports the Court’s conclusion, 

as it indicates that an agency acts unlawfully when it 

disregards prior factual determinations or pronouncements made 

in studies “about the environmental impacts of a proposed agency 

action.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 
193

F.3d 956, 969 (9th Cir. 2015); Sierra Club v. Salazar, 177 F. 

Supp. 3d 512, 534 (D.D.C. 2016). The 2007 Public Notice clearly 

falls outside this umbrella. See Cottonwood Env’t L. Ctr. v. 

U.S. Sheep Experiment Station, 827 F. App’x 768, 769 (9th Cir. 

2020) (explaining that Kake involved “a change of decision” by 

the agency “on the same factual record within a two-year 

period,” which is not the case here).

Second, Mobile Water argues that the FEIS lacks scientific 

studies on salt water intrusion in the Mobile River apart from a 

“70-year-old study” in the record dated January 15, 1947, which 

is “stale” and not “of any use today,” Intervenor-Pls.’ Mot., 

ECF No. 85 at 12, 21-23 (citing A.R., ECF No. 61 at D-00011212-

D-00011212.0043); and it claims that the conclusion that the 

Manual will have “negligible” impacts on salt water intrusion 

“is solely predicated on the relative percentage of water 

flowing into the Mobile River from the ACT and the Tombigbee[,]” 

which cannot constitute a “hard look.” Id. at 20-21. To support 

its argument, Mobile Water points to a Corps drought management 

planning document from 1988, which stated that “there has been 

little attempt to quantify” benefits of preventing salt water 

intrusion and advocated for establishing “guidelines and 

methodologies . . . for estimating these types of benefits.” Id.

at 12 (quoting A.R., ECF No. 61 at D-00050045). Mobile Water 

also points to the Corps’ acknowledgement in the FEIS “that it 
194

did not address ‘resources downstream’ (at the juncture of the 

Alabama and Tombigbee rivers) ‘to the level of detail of other 

resources in the ACT Basin . . . .’” Id. at 21 (quoting A.R., 

ECF No. 61 at D-00043910). While the Corps states in the FEIS

that it did not discuss resources downstream at that juncture in 

detail “because of the limited overall effect of operation of 

the ACT projects on Mobile River and Mobile Bay resources[,]” 

A.R., ECF No. 61 at D-00043910; Mobile Water argues that the 

Corps had no valid basis to conclude this “because it did not 

study the issue[,]” Intervenor-Pls.’ Mot., ECF No. 85 at 21.

As an initial matter, Defendants argue that Mobile Water 

waived its argument regarding the Corps’ reliance on “stale 

data” because it did not raise this issue prior to the start of 

the instant action. Defs.’ Reply, ECF No. 102 at 27. They argue 

that since Mobile Water did not alert the Corps to the “stale 

data” issue in its comments on the draft EIS, “much less propose 

the use of more recent studies[,]” it thereby deprived the Corps 

of an opportunity to respond during the comment process. Id.; 

Defs.’ Cross-Mot., ECF No. 95 at 36. The Court agrees that 

Mobile Water’s EIS comments do not reference the 1947 study, nor 

do they point the Corps to a more recent, existing study to use 

in lieu of that study, or ask the Corps to conduct a new and 

updated salt water intrusion study. See A.R., ECF No. 61 at D00046634-37. Despite this clear failure, Mobile Water replies 
195

that “[t]he facts of this case are unique” because the Corps 

should not have needed reminding that the 1947 study was seventy

years old, especially given its 1988 recognition of the benefits 

of preventing salt water intrusion, and it claims that in light 

of the “obvious” data flaws, the Corps was under “an affirmative 

mandate” to ensure the scientific integrity of the FEIS. 

Intervenor-Pls.’ Reply, ECF No. 101 at 10 (quoting Env’t Def. v. 

U.S. Army Corps of Eng’rs, 515 F. Supp. 2d 69, 78 (D.D.C. 

2007)). The Court is unpersuaded by these arguments, concluding 

that if Mobile Water sought different modeling and measuring of 

potential salt water intrusion, it should have alerted the Corps 

to its concerns about the 1947 study during the comment process 

and pointed to the specific flaws that led it to believe that 

study was stale. As the Supreme Court has stated, entities 

“challenging an agency’s compliance with NEPA must ‘structure 

their participation so that it . . . alerts the agency to the 

[parties’] positions and contentions,’ in order to allow the 

agency to give the issue meaningful consideration.” Pub. 

Citizen, 541 U.S. at 764 (quoting Vt. Yankee, 435 U.S. at 553). 

Because none of Mobile Water’s comments identified alternative 

salt water intrusion studies or raised “particular objections” 

to the 1947 study, the Corps did not have the chance to consider 

the issue, determine whether it should conduct a new study based 

on any potential flaws, or actually engage in the lengthy 
196

process of undertaking a new study. Id.; see also Nw. Env’t 

Advocs. v. Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1142 

(9th Cir. 2006) (rejecting the plaintiff’s claim that the 

agency’s choice of modeling for salinity was “outdated,” since 

it “offer[ed] no evidence that the passage of time ha[d]

decreased its effectiveness”); Theodore Roosevelt, 605 F. Supp. 

2d at 273 (“[W]hile it is ‘desirable . . . for agencies to use 

the most current and comprehensive data available when making 

decisions,’ an agency’s reliance on outdated data is not 

arbitrary or capricious, ‘particularly given the many months 

required to conduct full [analysis] with [ ] new data.’” 

(quoting Vill. of Bensenville, 457 F.3d at 71)). Although the 

Court acknowledges that with the passage of seventy years comes 

change, and that reliance on data that is “too stale” can amount 

to unlawful agency action, see N. Plains Res. Council, Inc. v. 

Surface Transp. Bd., 668 F.3d 1067, 1086 (9th Cir. 2011); it 

concludes that Mobile Water “forfeited any objection” on this 

ground, Pub. Citizen, 541 U.S. at 764-65; as NEPA’s “affirmative 

mandate” requires both “[a]ccurate scientific analysis” and

“expert agency comments,” Env’t Def., 515 F. Supp. 2d at 78. 

Neither is the Court persuaded that the Corps’ 1988 drought 

management planning document put the agency on notice of the 

need for updating the 1947 study, as the 1988 document does not 

mention that study, instead only briefly recognizing that the 
197

benefits of preventing salt water intrusion should be 

quantified. See A.R., ECF No. 61 at D-00050045.

Even if Mobile Water wanted the Corps to give salt water 

intrusion “more consideration, courts afford ‘considerable 

deference to the agency’s expertise and policy-making role’ in 

defining its objectives and grant agencies discretion to 

determine,” In re ACF Basin, 554 F. Supp. 3d at 1305 (quoting 

Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66, 

73 (D.C. Cir. 2011)); “the appropriate scope of the analysis 

required[,]” Sierra Club v. U.S. Army Corps of Eng’rs, 295 F.3d 

1209, 1215 (11th Cir. 2002). Here, the Corps defined the overall 

scope of the FEIS based on the “affected environment,” which 

serves as a baseline for identifying the potential environmental 

and socioeconomic effects that will likely result from proposed 

changes and affect the functioning of the ACT Basin as a whole. 

A.R., ECF No. 61 at D-00043908. The level of detail provided in 

the FEIS “is commensurate with the intensity, context, and 

duration of the potential effects” of the action on a particular 

resource or topic in the affected environment. Id. As such, the 

Corps defined the “affected environment” as follows:

This ACT Basin EIS includes the Alabama, 

Coosa, and Tallapoosa rivers and all areas in 

the basin boundaries from the headwaters 

downstream to the mouth of the Alabama River, 

where it joins the Tombigbee River to form the 

Mobile River. The overall scope of the EIS 

also addresses the area downstream of the 
198

confluence of the Alabama and Tombigbee 

rivers, including Mobile River and Mobile Bay. 

The ACT Basin (22,739 sq mi) has approximately 

the same drainage area size as the Tombigbee 

River basin (20,200 sq mi). Thus, flows from 

the ACT Basin are roughly half of the total 

flow in the Mobile River downstream of the 

juncture of the Alabama and Tombigbee rivers. 

This EIS addresses resources downstream from 

that point but not to the level of detail of 

other resources in the ACT Basin because of 

the limited overall effect of operation of the 

ACT projects on Mobile River and Mobile Bay 

resources.

Id. at D-00043910 (emphasis added). The “rule of reason” 

dictates deference to the Corps’ delineation of the FEIS’ scope 

and its decision to allocate less discussion to Mobile River and 

Mobile Bay. See Busey, 938 F.2d at 195-96. In addition, the 

Corps need only analyze impacts with “a reasonably close causal 

relationship” to the proposed action, Pub. Citizen, 541 U.S. at 

767; and here, there are lengthy distances between the Corps’ 

most downstream project—Claiborne Lock and Dam—and Mobile River 

and Mobile Bay, which make impacts of the Master Manual on salt 

water intrusion there “not reasonably foreseeable,” see Sierra 

Club v. FERC, 867 F.3d at 1371 (defining “indirect environmental 

effects” as those which are “reasonably foreseeable,” i.e., 

“sufficiently likely to occur that a person of ordinary prudence 

would take [them] into account in reaching a decision”); A.R. 

ECF No. 61 at D-00043967, D-00043971 (stating that the Claiborne 
199

Project is 72 miles upstream of Mobile River and 118 miles 

upstream of Mobile Bay).

Furthermore, the Corps analyzed stream flow conditions and 

minimum flow targets (which impact salinity) for the Alabama 

River downstream of Claiborne Locke and Dam, and modeling 

results indicate that minimum flow targets south of the 

Claiborne Project are met a high percentage of time under all 

the alternatives. See A.R. ECF No. 61 at D-00044336-39. Under 

the No-Action Alternative, the minimum flow target downstream of 

the Claiborne Project would be met 97% of the time, id. at D00044337; and 95% of the time under the other alternatives, id.

at D-00044339. So, while the Corps acknowledged in 2007 that 

flow reduction can “potentially affect” salt water intrusion in 

the Mobile Bay area, id. at D-00049911; and the 1947 study may 

have “put the Corps on notice that the phenomenon of salt water 

intrusion (caused by low freshwater flows) exists in the Mobile 

River and Mobile Bay[,]” Intervenor-Pls.’ Reply, ECF No. 101 at 

13; the FEIS’ stream flow modeling supports the Corps rationally 

concluding that impacts of the Master Manual on salt water 

intrusion at Mobile River and Mobile Bay would be “limited,”

A.R., ECF No. 61 at D-00043910; see also id. at D-00044428 (“For 

all alternatives evaluated in detail, the hydrodynamic changes 

within Mobile Bay and contiguous estuarine areas are expected to 

be minimal or non-detectable, . . . [and] differences in the 
200

flow regime at the most downstream points in the ACT Basin 

(e.g., Claiborne Lock and Dam) compared to current conditions 

would be negligible.”), D-00046639 (“[T]he Mobile-Tensaw Delta 

and the Mobile Bay further downstream are not likely to be 

affected any differently by the Proposed Action Alternative than 

current water management operations in the ACT Basin.”). 

Accordingly, the Court concludes that the FEIS’ chosen

amount of analysis on the topic of salt water intrusion from 

Mobile Bay does not violate NEPA. See Nevada, 457 F.3d at 93 

(“[W]e do not think that the inadequacies to which Nevada points 

make the FEIS inadequate.”). That the Corps may continue to 

assess potential impacts to salinity levels in this area “as 

more information becomes available does not indicate that [it] 

failed to take a ‘hard look’ at the environmental consequences 

of its proposed action” in the FEIS. Wilderness Soc’y v. 

Salazar, 603 F. Supp. 2d 52, 62 (D.D.C. 2009).

f. The FEIS Adequately Analyzes and Discloses

Impacts of the Master Manual on Recreation 

and Economic Development at Lake Martin

Finally, the Court assesses four more claims by IntervenorPlaintiffs Russell Lands and LMRA that the FEIS failed to 

analyze impacts of the Master Manual at Lake Martin. See

Intervenor-Pls.’ Mot., ECF No. 85 at 23-31. Lake Martin is an 

APC reservoir on the Tallapoosa River that covers 40,000 acres, 

has 880 miles of shoreline in three Alabama counties, and is 
201

located near major population centers in Alabama and Georgia, 

including Birmingham, Montgomery, Auburn, and Atlanta. Id. at 

12. Recognized as a “Treasured Alabama Lake,” Lake Martin offers 

“outstanding water quality” to Alabama, and recreation at the 

lake provides various economic benefits, including recreationbased jobs, millions of dollars of recreation-based visitor 

spending, and a billion-dollar real estate market. Id. at 12-13. 

According to Intervenor-Plaintiffs, these benefits, including 

increased recreational spending and demand for real property 

around the lake, “are directly correlated with [higher] water 

levels during the major recreational seasons in the late spring, 

summer, and fall.” Id. However, they claim that when flows from 

Allatoona are curtailed under the Master Manual, less water 

flows down the Coosa River into Alabama, and this reduction, 

combined with downstream flow requirements mandating that APC 

make releases from its projects on the Coosa and Tallapoosa 

Rivers, will cause lower water levels at APC projects, including 

Lake Martin, in the summer and fall. Id. at 13.

Russell Lands and LMRA first argue that the Corps 

“improperly limited its analysis of the Manual’s recreational 

and economic impacts to” only Corps projects in the ACT Basin, 

despite modeling indicating that the Master Manual will cause a 

decline in reservoir levels at Lake Martin and an accompanying 

impairment of recreation there. Id. at 24. They claim that the 
202

Corps’ “myopic focus on recreation at Allatoona while ignoring 

recreation” and other economic interests at Lake Martin violates 

NEPA, as “impacts must be considered throughout the area 

impacted.” Id. at 24-25. To support their claim, Russell Lands 

and LMRA cite statistics about the dollar amounts spent by 

visitors to Lake Martin, compared to visitors to Allatoona Lake, 

and the total appraised value of real estate on Lake Martin. Id.

at 12-13, 24. In their related second argument, Russell Lands 

and LMRA argue that the FEIS improperly concludes that the 

Manual “will have ‘minor beneficial’ impacts at Lake Martin[,]” 

which they claim has “no discernable meaning.” Id. at 25-26. 

They argue that without studying the Manual’s impacts on the 

recreation-based economy at Lake Martin, or at other non-Corps 

reservoirs, the Corps’ assertion that lower lake levels will 

have “minor beneficial” effects is “entirely unsupported” and 

cannot satisfy NEPA’s “hard look” doctrine. Id. at 26.

In addressing their first two arguments, the Court notes at 

the outset that Russell Lands and LMRA have alleged 

socioeconomic impacts of the Master Manual, not purely economic 

ones. While economic and monetary interests alone do not fall 

within NEPA’s zone of interests, since “[t]he zone of interest 

protected by NEPA is, as its name implies, environmental[,]” 

Gunpowder Riverkeeper v. FERC, 807 F.3d 267, 274 (D.C. Cir. 

2015); socioeconomic interests do, see Hammond v. Norton, 370 F. 
203

Supp. 2d 226, 242-43 (D.D.C. 2005). CEQ regulations state that 

when an EIS “is prepared and economic or social and natural or 

physical environmental effects are interrelated, then the [EIS] 

will discuss all of these effects on the human environment.” 40 

C.F.R. § 1508.14. The key word is “interrelated,” as “economic 

or social effects are not intended by themselves to require 

preparation of an [EIS].” Id.; see also Hammond, 370 F. Supp. 2d 

at 243 (“Only when socioeconomic effects somehow result from a 

project’s environmental impact must they be considered.”). 

Whether an impact on the “human environment” is determined to be 

sufficiently “interrelated” to qualify as socioeconomic depends 

on the “closeness of the relationship between the change in the 

environment and the ‘effect’ at issue.” Metro. Edison Co., 460 

U.S. at 772. Here, the alleged environmental impact of the 

Manual is decreased lake levels at Lake Martin, which Russell 

Lands and LMRA claim directly causes damaging socioeconomic 

impacts on recreational opportunities and spending, the job 

market, and real property values in the area around the lake. 

Intervenor-Pls.’ Mot., ECF No. 85 at 12-13, 24; Intervenor-Pls.’ 

Reply, ECF No. 101 at 17-18. Therefore, as the Corps concedes, 

it was required to analyze both the “interrelated” environmental 

and socioeconomic impacts of the Master Manual at Lake Martin in 

the FEIS. Defs.’ Reply, ECF No. 102 at 28.
204

Contrary to Intervenor-Plaintiffs’ claims, however, the 

Court concludes that the FEIS sufficiently analyzes the Manual’s 

(1) environmental, and (2) socioeconomic impacts at Lake Martin. 

The Court begins its analysis by isolating the FEIS’ discussion 

of the environmental impacts of the alternatives at Lake Martin, 

specifically on lake levels. As Defendants note, the FEIS, based 

on modeling for the period of record, discusses the potential 

environmental consequences of the various alternatives on flow, 

water quantity, and lake levels (i.e., water surface elevations) 

at both Corps and APC lakes, including Lake Martin. Defs.’ 

Cross-Mot., ECF No. 95 at 37-38 (citing A.R., ECF No. 61 at D00043808-17, D-00044296-307). This modeling shows that for each 

action alternative, “median daily water surface elevations” in 

Lake Martin would be expected to “generally match” the guide 

curve elevations used by APC37 for January through June and from 

mid-October through December, and from July through mid-October, 

those water surface elevations would fall only “slightly below 

those for the No Action Alternative in the range of zero to 0.5 

[feet].” See A.R., ECF No. 61 at D-00043815-16, D-00044304-07, 

D-00044296 (Figure 6.1-28). The FEIS also indicates that daily 

water surface elevations for the action alternatives at Lake 

37 According to the FEIS, “APC actually manages the summer pool 

[of Lake Martin] to elevation 489.5 [feet], and the use of that 

elevation for the modeling was coordinated with the APC.” A.R., 

ECF No. 61 at D-00044296.
205

Martin at the ninety percent exceedance level “would be nearly 

equivalent to elevations for the No Action Alternative[,]” with 

the only difference being that between late April and midSeptember, lake levels would be “slightly lower than the No 

Action Alternative by amounts varying from zero up to 0.8 

[feet].” Id. at D-00043816, D-00044304, D-00044297 (Figure 6.1-

29). The FEIS explains that the “slight differences in water 

surface elevations (median and 90 percent exceeded)” between the 

action alternatives and the No-Action Alternative are 

“attributable to inclusion of a specific strategy for flows to 

support downstream navigation” and drought management strategies 

expected to benefit the basin as a whole. Id. at D-00043816, D00044304. Thus, contrary to Russell Lands’ and LMRA’s claims 

that the Corps’ modeling “shows that significantly less water 

will be available in Lake Martin during the peak recreation 

season from late spring to early fall[,]” and that the Corps 

“simply ‘eyeball[ed]’ these modeling results,” Intervenor-Pls.’ 

Reply, ECF No. 101 at 13-15; the resulting data, including the 

two FEIS graphs reproduced in Intervenor-Plaintiffs’ reply 

brief, see id. at 14 (reproducing Figures 6.1-28 and 6.1-29, 

A.R., ECF No. 61 at D-00044296-97); indicates that there is 

minimal difference in daily lake levels between the action 

alternatives and the no-action baseline for most of the year, 

and only a slight difference between July and mid-October—“a 
206

0.6-1.2 foot difference at lake elevations of 480-488 feet[,]” 

Defs.’ Reply, ECF No. 102 at 29; A.R., ECF No. 61 at D-00043815-

16, D-00044304-07. Further, the FEIS indicates that the action 

alternatives “offer a significant benefit” over the No-Action 

Alternative “in terms of the lower [lake] levels expected in 

winter and under drought conditions,” Defs.’ Cross-Mot., ECF No. 

95 at 39; as “[t]he lowest pool elevation” that is expected 

under the action alternatives would “reflect[] an improvement of 

about 17.5 [feet] above the lowest lake level expected at Lake 

Martin for the No Action Alternative[,]” A.R., ECF No. 61 at D00043816. As a result, the Court rejects Intervenor-Plaintiffs’ 

claim that the Corps never explained “how any reduction in lake 

levels can be ‘beneficial’ at Lake Martin[.]” Intervenor-Pls.’ 

Mot., ECF No. 85 at 25.

Based on this modeling data, the Court has no reason to 

doubt the Corps’ conclusion that “[w]ith respect to the entire 

ACT Basin area,” including Lake Martin, the action alternatives 

“would have inconsequential effects on lake levels compared to 

the No Action Alternative under normal conditions and would 

generally provide for improved lake levels under extreme drought 

conditions compared [to] the No Action Alternative.” A.R., ECF 

No. 61 at D-00044471. Instead, the Corps accurately summarized 

the impacts of the action alternatives, compared to the noaction baseline, on “lake level conditions” at Lake Martin using 
207

the term “minor beneficial” in a summary table in the executive 

summary of the FEIS. Id. at D-00043804 (Table ES-5, “Summary of 

Impacts”). The Court therefore disagrees with IntervenorPlaintiffs’ labeling of this term as “conclusory” and “not 

defined,” Intervenor-Pls.’ Mot., ECF No. 85 at 25-26; as the 

data for the period of record, in addition to descriptive 

information provided in the pages following the summary table

and other parts of the FEIS, amounts to quantitative and 

qualitative “discernable meaning,” see Young, 99 F. Supp. 2d at 

75 (finding the requisite “hard look” when the agency goes 

“beyond mere assertions” and “fully explicate[s]” its reasoning 

and analysis). The Court also rejects Russell Lands’ and LMRA’s 

reliance on a 1998 draft appendix, which included a table 

analyzing the relationship between seasonal water levels at Lake 

Martin and recreational visitor spending, as evidence to 

discredit the FEIS’ use of the term “minor beneficial.” See

Intervenor-Pls.’ Mot., ECF No. 85 at 25 (citing A.R., ECF No. 61 

at D-00021990). As Defendants note, this decades-old study was 

part of an appendix to a never-completed draft EIS that was 

prepared “for a different agency decision” analyzing different 

alternatives in the 1990s ACT Basin litigation. See Defs.’ 

Cross-Mot., ECF No. 95 at 39-40 (citing A.R., ECF No. 61 at D00021820, D-00021338-725). It thus has no relevance here.
208

Having accepted the Corps’ “hard look” at environmental 

impacts of the action alternatives at Lake Martin, the Court 

next turns to the “interrelated” socioeconomic impacts resulting 

from slightly decreased lake levels for a few months of the 

year. Russell Lands and LMRA argue that given the “adverse” 

impacts to lake levels from late spring to early fall—what they 

label “peak recreation season”—the FEIS should have studied the 

Master Manual’s impacts on “recreation or recreation-based 

spending at Lake Martin” but instead “simply declare[d] them 

insignificant.” Intervenor-Pls.’ Reply, ECF No. 101 at 13-15; 

Intervenor-Pls.’ Mot., ECF No. 85 at 24-25. The Court disagrees, 

concluding instead that since the modeling results indicate that 

the action alternatives would only cause “inconsequential 

effects on lake levels,” A.R., ECF No. 61 at D-00044471; the 

FEIS made the logical conclusion to analyze any accompanying 

socioeconomic impacts in lesser detail, see Defs.’ Cross-Mot., 

ECF No. 95 at 40. As the FEIS explains under section “6.6 

Socioeconomics,” the Corps “decided to complete a preliminary 

economic analysis using a qualitative level of detail to 

determine if greater detailed analysis was required[,]” but 

concluded, “[b]ased on the preliminary analysis results,” that 

“more detailed analysis was not warranted . . . .” A.R., ECF No. 

61 at D-00044438.
209

Applied to the topic of recreation at Lake Martin, the 

Court concludes that, since water levels from July to midOctober would only be impacted by “slight” reductions and that 

Lake Martin would overall experience minor beneficial impacts 

under the Master Manual, Intervenor-Plaintiffs’ claim that 

significant harm to recreation would causally ensue, see

Intervenor-Pls.’ Reply, ECF No. 101 at 13; is disproved by the 

data. As such, the Corps did not need to allocate more space in 

the FEIS to analyzing those impacts.38 See Izaak Walton, 655 F.2d 

at 377 (“NEPA does not require federal agencies to examine every 

possible environmental [or socioeconomic] consequence. Detailed 

analysis is required only where impacts are likely.”). That 

Russell Lands and LMRA considered the Corps’ methodology 

“flawed” and would have preferred APC’s modeling or the 

inclusion of an economic study of recreation impacts at all 

reservoirs, see Intervenor-Pls.’ Mot., ECF No. 85 at 24 n.5; 

Intervenor-Pls.’ Reply, ECF No. 101 at 14 (citing A.R., ECF No. 

61 at D-00044296-97 (Corps’ modeling) and D-00049519-20 (APC’s 

modeling)); is irrelevant, as the Corps’ choice of methodology 

38 Section “6.6 Socioeconomics” of the FEIS notes that “[i]mpact

analyses were evaluated on socioeconomic resource areas relative 

to project purposes in the ACT Basin[,]” A.R., ECF No. 61 at D00044438; so if Intervenor-Plaintiffs are correct in their 

contention that “recreation is not an authorized operating 

purpose at Allatoona,” Intervenor-Pls.’ Mot., ECF No. 85 at 23; 

then they have directly contradicted their own argument that 

recreation should have been analyzed in greater detail.
210

and data need only be reasonable to be deferred to, Colo. River 

Cutthroat Trout, 898 F. Supp. 2d at 205. Neither have they shown

that the absence of an in-depth socioeconomic impact study at 

Lake Martin renders the Corps’ analysis arbitrary or capricious. 

See Nw. Env’t Advocs., 460 F.3d at 1143.

In fact, the FEIS addresses some socioeconomic effects of 

the Master Manual, such as the potential impact of lake level 

variations on property values and taxes, environmental justice, 

and aesthetic resources “with respect to the entire ACT Basin,”

A.R., ECF No. 61 at D-00044471-73; contrary to IntervenorPlaintiffs’ claim that only pieces of “the whole” (i.e., Corps 

vs. non-Corps projects) were analyzed, Intervenor-Plaintiffs’ 

Mot., ECF No. 85 at 24-25. The FEIS concludes that the action 

alternatives would have “a negligible overall impact on lake 

levels, an important aesthetic consideration, under normal 

operating conditions[,]” and that there would be “a neutral to 

minor positive impact with respect to property values and tax 

revenues in the immediate vicinity of the reservoirs[,]” 

including at Lake Martin and other non-Corps projects. A.R., ECF 

No. 61 at D-00044471-73. As Defendants note, property values and 

local tax revenues are “spending of types associated with 

recreation[,]” Defs.’ Cross-Mot., ECF No. 95 at 40-41; a concept 

further explained in the FEIS, which notes that the lands 

bordering reservoirs “have relatively high values and often 
211

represent a significant local economic base and an important 

source of property tax revenue for local and state 

governments[,]” A.R., ECF No. 61 at D-00044471. That the Corps 

did not analyze the Manual’s recreational impacts to Lake Martin 

or other non-Corps reservoirs in the level of detail desired by 

Russell Lands and LMRA is not a reason to set aside the FEIS, 

especially since non-Corps reservoirs are operated by APC, 

meaning that the Corps does not even have authority to maintain 

lake levels there. See, e.g., id. at D-00043784-85 (“Such 

measures [regarding operational changes to APC projects] are 

beyond the authority of the [Corps] to address.”), D-00043955-59 

(discussing APC’s operation and management of Lake Martin). 

The Court is likewise not convinced by Russell Lands’ and 

LMRA’s third argument that the Corps violated NEPA by failing 

“to quantify or estimate” the Master Manual’s “net impacts to 

recreation throughout the ACT Basin,”—“net benefits or net 

detriments”—particularly “at other reservoirs” that are not 

Allatoona. Intervenor-Pls.’ Mot., ECF No. 85 at 27 (emphasis in 

original). They claim that this failure violates ER 1105-2-100, 

Planning Guidance Notebook (Apr. 22, 2000) [hereinafter “ER 

1105-2-100”], which they argue “require[s] assessment of the net

recreational benefits associated with any project or plan[,]” 

determined “‘based on the gross value of recreation use of the 

resource for the project condition less the gross loss in 
212

recreation use caused by the project or plan.’” Id. at 27-28 

(quoting ER 1105-2-100 at E-188). By failing to quantify 

beneficial recreational impacts at Allatoona, IntervenorPlaintiffs argue that the FEIS makes it impossible to compare 

those benefits to alleged recreational losses elsewhere in the 

basin. Id. at 28. Defendants respond—and the Court agrees—that 

“neither NEPA nor the cited Corps regulation imposes any such 

duty.” Defs.’ Cross-Mot., ECF No. 95 at 42.

First, the Court rejects Intervenor-Plaintiffs’ contention 

that ER 1105-2-100 requires the Corps to assess net recreational 

benefits of the Master Manual because it has already concluded 

that the ERs are a non-binding general statement of policy. See 

supra section IV.A.2.b. ER 1105-2-100 is no exception, as on its 

face, it is merely part of the “Principles and Guidelines” used 

by the Corps in carrying out its water resources projects. ER 

1105-2-100 at 1-1. Thus, the portion cited by IntervenorPlaintiffs, to the extent it is applicable at all, provides 

guidance, rather than binding requirements, to the Corps in 

evaluating whether to participate in projects designed for 

recreational purposes. See Intervenor-Pls.’ Mot., ECF No. 85 at 

28 (citing ER 1105-2-100 at E-179-199).

Second, NEPA’s required cost-benefit analysis “is concerned 

primarily with environmental costs affecting the public, not 

with private economic” or socioeconomic costs, such as those 
213

borne through reductions in recreational spending or property 

values around reservoirs. See Nat’l Wildlife Fed’n v. Marsh, 568 

F. Supp. 985, 1000 (D.D.C. 1983). An EIS does not require “a 

formal and mathematically expressed cost-benefit analysis” in 

economic or monetary terms, Trout Unlimited v. Morton, 509 F.2d 

1276, 1286 (9th Cir. 1974); see also Sierra Club v. Stamm, 507 

F.2d 788, 794 (10th Cir. 1974) (rejecting the view that an EIS 

requires “the fixing of a dollar figure to either environmental 

losses or benefits”); and is considered adequate so long as it 

conducts a cost-benefit analysis “as it bears upon the function 

of insuring that the agency has examined the environmental 

consequences of a proposed project[,]” Nat’l Wildlife Fed’n v. 

Marsh, 568 F. Supp. at 1000. For reviewing courts to determine 

that NEPA’s “hard look” at environmental impacts is satisfied, 

they must consider “‘whether the economic [or socioeconomic]

considerations, against which the environmental considerations 

are weighed, were so distorted as to impair fair consideration 

of those environmental consequences. Without such a showing 

there is no review of economic [or socioeconomic] benefits.’” 

Id. (quoting S. La. Env’t Council, Inc. v. Sand, 629 F.2d 1005, 

1011-12 (5th Cir. 1980)). Here, given the Master Manual’s 

“inconsequential effects” on lake levels throughout the ACT 

Basin, A.R., ECF No. 61 at D-00044471; and only “slight” impacts 

on Lake Martin’s water levels specifically, id. at D-00043816; 
214

the Court concludes that the lack of a study quantifying the 

potentially resulting “indirect” or “net” recreational impacts 

at Allatoona Lake or elsewhere, see Intervenor-Pls.’ Reply, ECF 

No. 101 at 15-17; “‘does not change the cost-benefit ratio to 

such a degree that it actually distorts the context in which the 

environmental analysis occur[red,]’” Nat’l Wildlife Fed’n v. 

Marsh, 568 F. Supp. at 1000 (quoting Sand, 629 F.2d at 1013).

The Court’s conclusion is not altered by the cases cited by 

Russell Lands and LRMA, “which merely sustain agencies’ 

assessments of a particular type of environmental impact[,]” 

Defs.’ Cross-Mot., ECF No. 95 at 42-43; rather than support the 

proposition that socioeconomic or monetary costs and benefits 

must be quantified in an EIS, Defs.’ Reply, ECF No. 102 at 30. 

This is true for Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 

2017), on which Intervenor-Plaintiffs heavily rely. See

Intervenor-Pls.’ Reply, ECF No. 101 at 15-16. In that case, the 

D.C. Circuit required the FERC to quantitively evaluate the 

indirect climate change impacts of its approval of a natural gas 

pipeline, specifically the indirect impact of increased 

greenhouse gas emissions from natural gas transported by the new 

pipeline. Sierra Club v. FERC, 867 F.3d at 1374-75. The D.C. 

Circuit found that the FERC had not provided a satisfactory 

explanation for why it did not quantify the “total emissions, on 

net,” but again, the ask of the agency was, in the EIS, to 
215

quantify direct and indirect environmental impacts, rather than 

economic, monetary, or socioeconomic impacts. Id. Accordingly,

the Court concludes that the FEIS’ analysis of environmental 

impacts, including the resulting minor decreases in water levels 

at Lake Martin, was thorough, and not arbitrary or capricious 

for not evaluating net recreational impacts. 

In their final argument, Russell Lands and LMRA argue that 

the Corps failed, pursuant to the duty to evaluate cumulative 

impacts under NEPA, to assess “reasonably foreseeable” 

operational changes at Lake Martin under a new FERC operating 

license for the lake that was finalized on December 17, 2015. 

Intervenor-Pls.’ Mot., ECF No. 85 at 29. That license “sets new 

operating parameters for Lake Martin by adopting a ‘Conditional 

Fall Extension’ (‘CFE’) and higher winter pool levels,” id.; 

thereby modifying the lake’s operating curve “to extend the 

recreation season under certain hydrologic conditions[,]” 

Intervenor-Pls.’ Reply, ECF No. 101 at 18. According to the 

FEIS, the Lake Martin FERC relicensing process, which APC 

initiated in June 2008 in anticipation of the existing license 

expiring on June 8, 2013, was aimed at evaluating “the 

possibility of raising the winter guide curve elevation of Lake 

Martin or extending the time that Lake Martin is at summer 
216

pool.” A.R., ECF No. 61 at D-00043959.39 APC’s proposal suggested 

raising the winter pool at Lake Martin by three feet and 

extending the summer pool elevation from September 1 until 

October 15. Id. The FERC issued a draft EIS analyzing the 

proposal in June 2013, and Intervenor-Plaintiffs argue that 

these changes were adopted in December 2015 “with minor 

modifications” and with the intent of benefitting recreation and 

the recreation-based economy at and around Lake Martin. 

Intervenor-Pls.’ Mot., ECF No. 85 at 13, 29. While they 

acknowledge that the ACT FEIS—published on November 7, 2014 

following the FERC’s 2013 draft EIS but before the license’s 

39 In explaining the operating changes pursuant to Lake Martin’s 

new FERC license, Russell Lands and LMRA cite to an extra-record 

exhibit filed by the Alabama Plaintiffs with their motion for 

summary judgment. See Intervenor-Pls.’ Mot., ECF No. 85 at 13, 

29 (citing Ex. 3, Decl. of Alan L. Peeples, ECF No. 83-3). This 

extra-record exhibit is one of seven exhibits, totaling over 

seven hundred pages, that the Alabama Plaintiffs filed in 

support of their motion. See generally Exs. 1-7, ECF Nos. 83-1—

83-7. However, parties are not allowed to supplement the 

administrative record “unless they can demonstrate unusual 

circumstances justifying a departure from this general rule.” 

City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 2010) 

(citation omitted). As Defendants argue, such extra-record 

evidence is appropriate to show standing but has no other use in 

an APA case, Defs.’ Cross-Mot., ECF No. 95 at 14 n.1, 44 n.16; 

nor have the Alabama Plaintiffs attempted to make a showing of 

unusual need to supplement the record, see Am. Wildlands v. 

Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008) (elaborating on 

the three “unusual circumstances” in which parties may 

supplement the record); Intervenor-Defs.’ Cross-Mot., ECF No. 97 

at 17 n.7 (“Alabama does not try to justify its resort to extrarecord evidence.”). Accordingly, the Court does not consider any 

of these extra-record exhibits on the merits, whether cited by 

the Alabama Plaintiffs or, as here, by Intervenor-Plaintiffs.
217

2015 final approval—discusses the FERC re-licensing process, 

they argue that the Corps failed to adequately consider “the 

pending actions of a sister agency,” specifically, the effects 

of the Manual on the proposed operational changes at Lake 

Martin, in violation of NEPA. Id. at 29. Russell Lands and LMRA 

claim these effects were “foreseeable” since the Corps 

“participated in the relicensing process at Lake Martin,” 

submitted formal comments on the FERC’s draft EIS in 2013, and 

received comments during the ACT EIS process requesting 

consideration of the potential changes at Lake Martin. Id. at 30 

(citing A.R., ECF No. 61 at D-00043959, D-00049767). 

In response, Defendants argue that the Corps “disclosed 

what was reasonably foreseeable at the time of its analyses—” 

that the FERC relicensing changes, as described in the FEIS, 

were a “possibility,” but that NEPA did not require it “to 

speculate on the license’s eventual parameters and redo its 

modeling,” as no final decision was made on the license until 

more than six months after the ACT ROD was issued on May 4, 2015 

and more than a year after the issuance of the FEIS. Defs.’ 

Cross-Mot., ECF No. 95 at 43-44. As such, Defendants note that 

the FEIS did not consider “specific future changes in Lake 

Martin’s operations” that had not yet been approved by the FERC, 

and it instead conducted modeling in accordance with the 

existing FERC license, which “was all that was required under 
218

NEPA.” Id.; see also A.R., ECF No. 61 at D-00043959 (“A change 

in the winter guide curve for Lake Martin was not considered as 

part of the ACT WCM update process.”). 

NEPA requires agencies proposing a major federal action to 

consider the “cumulative impacts,” which the CEQ regulations 

define as “the impact on the environment which results from the 

incremental impact of the action when added to other past, 

present, [and] reasonably foreseeable future actions” of any 

agency or person. Young, 99 F. Supp. 2d at 78 (quoting 40 C.F.R. 

§ 1508.7 (emphasis added)). “The identification of cumulative 

effects is a task committed to the special competency of the 

agency preparing an EIS.” Hammond, 370 F. Supp. 2d at 245 

(citation and internal quotation marks omitted). Here, Russell 

Lands and LMRA take issue with the FEIS’ failure to analyze the 

Master Manual’s impacts on only one specific element of the new 

FERC license at Lake Martin—the CFE. See Intervenor-Pls.’ Mot., 

ECF No. 85 at 29; Intervenor-Pls.’ Reply, ECF No. 101 at 18-19 

(“The [CFE] was definite enough for NEPA analysis.).

The Court concludes that the FEIS’ discussion of the 

pending FERC relicensing proposal at Lake Martin complies with 

NEPA. Although the Court acknowledges that IntervenorPlaintiffs’ correctly note that the Corps “was actually aware of 

[the] FERC’s contemporaneous actions at Lake Martin while it was 

preparing the FEIS” and that the “re-licensing efforts were 
219

‘reasonably definite and contemporaneous’ and had ‘advanced 

beyond the point of conjecture and speculation’ when the Corps 

released the FEIS[,]” Intervenor-Pls.’ Mot., ECF No. 85 at 30-31 

(quoting Prince George’s Cnty., Md. v. Holloway, 404 F. Supp. 

1181, 1186 (D.D.C. 1975)); it concludes that impacts associated 

with the CLE were not reasonably foreseeable, such that the 

Corps was not required to analyze those effects in the FEIS. The 

Court is particularly persuaded by Defendants’ claim that the 

FERC was originally opposed to including the CLE in the new 

license, and only changed its approach in the FEIS it released 

in April 2015, many months after the issuance of the ACT FEIS in 

November 2014. See Defs.’ Cross-Mot., ECF No. 85 at 44. As 

Defendants argue, at the time the ACT FEIS “was prepared and 

finalized, the hypothetical ‘conditional fall extension’ 

proposal appeared likely to be rejected, let alone not accepted 

in its precise proposed form[,]” thereby making it “far from 

reasonably foreseeable that” the CLE as proposed would 

eventually be approved. Defs.’ Reply, ECF No. 102 at 31. Russell 

Lands and LMRA ignore this argument in their reply, instead 

claiming, without support, that the CFE was “well defined and 

known to the Corps” and that the proposed modifications had 

“broad support.” Intervenor-Pls.’ Reply, ECF No. 101 at 18-19. 

As they themselves note, “effects are reasonably foreseeable if 

they are sufficiently likely to occur that a person of ordinary 
220

prudence would take [them] into account in reaching a 

decision[,]” id. at 18 (citation and internal quotation marks 

omitted); and the FERC’s initial opposition to the CFE during

the EIS process negated the likeliness of the CFE’s approval and 

the need for the Corps to assess its impacts in the FEIS, see

Defs.’ Cross-Mot., ECF No. 95 at 44 (arguing that the “mere 

fact” that relicensing was “pending” did “not mean that the 

final contents of that license were reasonably foreseeable and 

should have been assessed”); Nat’l Parks Conservation Ass’n v. 

United States, 177 F. Supp. 3d 1, 27 (D.D.C. 2016) (“[W]here a 

future action is too inchoate to permit an agency to analyze its 

impacts, it is not arbitrary and capricious for the agency to 

exclude it from, or lessen its relative import in, its 

cumulative impacts analysis, even if the agency has labeled the 

action ‘reasonably foreseeable.’”). While there “is no litmus 

test to determine what should or should not be covered in an 

impact statement[,] . . . the totality of all the facts and 

circumstances” indicate that Intervenor-Plaintiffs’ cumulative 

impacts claim must fail. Holloway, 404 F. Supp. at 1186.

The Court therefore concludes that the Corps reasonably 

conducted modeling at Lake Martin using the existing FERC 

license, A.R., ECF No. 61 at D-00047052; and adequately informed 

the public of the “combination of the changes” that could result 

from the adoption of the FERC re-license and the updated ACT 
221

Master Manual, Defs.’ Cross-Mot., ECF No. 95 at 45; so as “to 

facilitate meaningful comment on the issue[,]” Young, 99 F. 

Supp. 2d at 79; see, e.g., A.R., ECF No. 61 at D-00043959 

(disclosing the ongoing process of the FERC re-licensing at Lake 

Martin and the relevant proposed operational changes), D00046831-34 (responding to comments about changes resulting from 

the FERC’s relicensing efforts and stating that “[r]evisions 

based upon renewed licenses will be updated when necessary”).

“The ‘rule of reason’ requires that consideration be given to 

practical limitations on the agency’s analysis, such as the 

information available at the time[,]” and that the Corps “may 

continue to assess impacts as more information becomes available 

[about the new FERC license] does not indicate that [it] failed 

to take a ‘hard look’ at the environmental consequences of” the 

Master Manual before issuing the FEIS in 2014. Wilderness Soc’y, 

603 F. Supp. 2d at 61-62. Further, given that the FERC’s FEIS 

was issued after the Corps signed the ACT ROD, it was the FERC’s 

responsibility in that EIS to analyze the cumulative impacts 

arising from the relationship between the new license and the 

updated ACT Master Manual. Since Intervenor-Plaintiffs have 

raised no other challenges to the FEIS’ treatment of the Master 

Manual’s cumulative impacts analysis, see A.R., ECF No. 61 at D00044551-55 (Section 6.10, “Cumulative Effects”); the Court 
222

concludes that the Corps’ assessment of such impacts was 

reasonable and not arbitrary or capricious.

For all the foregoing reasons disposing of the NEPA claims 

advanced by the Montgomery Board, Mobile Water, Russell Lands, 

and LMRA, the Court DENIES Intervenor-Plaintiffs’ Joint Motion 

for Summary Judgment, ECF No. 85. Because it has also rejected 

each of the Alabama Plaintiffs’ “hard look” arguments, the Court 

concludes that the Corps adequately took a “hard look” at the 

environmental impacts of the Master Manual as mandated by NEPA. 

See, e.g., A.R. ECF No. 61 at D-00043804-08 (Table ES-5 “Summary 

of Impacts,” summarizing the list of “environmental 

consequences” of implementing each alternative that the Corps 

considered, “as compared to the No-Action Alternative”). 

3. The Corps Adequately Considered All Reasonable 

Alternatives in the FEIS

For their final NEPA argument, the Alabama Plaintiffs 

contend that Defendants failed to consider an adequate range of 

alternatives. See Pls.’ Mot., ECF No. 83 at 59. Specifically, 

they argue that the Corps unreasonably excluded consideration of 

an alternative, other than the No-Action Alternative, that would 

require the Corps to generate minimum amounts of hydropower. Id.

An EIS must “[e]valuate reasonable alternatives to the 

proposed action, and for alternatives that the agency eliminated 

from detailed study, briefly discuss the reasons for their 
223

elimination.” 40 C.F.R. § 1502.14(a); see also 42 U.S.C. § 

4332(2)(C)(iii). An alternative is deemed reasonable if it is 

“technically and economically practical or feasible and meet[s] 

the purpose and need of the proposed action.” 43 C.F.R. § 

46.420(b). Consideration of such alternatives is at the “heart”

of the EIS, Nevada, 457 F.3d at 87; and the “existence of a 

viable but unexamined alternative renders an [EIS]

inadequate[,]” Morongo Band of Mission Indians v. FAA, 161 F.3d 

569, 575 (9th Cir. 1998) (citation omitted). However, “an 

alternative is properly excluded from consideration . . . if it 

would be reasonable for the agency to conclude that the 

alternative does not ‘bring about the ends of the federal 

action[,]’” City of Alexandria v. Slater, 198 F.3d 862, 867 

(D.C. Cir. 1999) (quoting Busey, 938 F.2d at 195); when the 

effects of the alternative “cannot be readily ascertained[,] and 

[when] the alternatives are deemed only remote and speculative 

possibilities,” Vt. Yankee, 435 U.S. at 551; see also Ctr. for 

Biological Diversity v. FERC, 67 F.4th at 1182 (“Because some 

alternatives will be impractical or fail to further the proposed 

action’s purpose, agencies may reject [such] unreasonable 

alternatives after only brief discussion.”). “Nor is an agency 

required to undertake a separate analysis of alternatives which 

are not significantly distinguishable from alternatives actually 

considered, or which have substantially similar consequences.” 
224

Westlands Water Dist. v. U.S. Dep’t of Interior, 376 F.3d 853, 

868 (9th Cir. 2004) (citation and internal quotation marks 

omitted). Thus, the range of alternatives to be considered is 

“not infinite,” City of Grapevine, 17 F.3d at 1506; but is 

rather “bounded by some notion of feasibility[,]” see Vt. 

Yankee, 435 U.S. at 551 (“Common sense also teaches us that the 

‘detailed statement of alternatives’ cannot be found wanting 

simply because the agency failed to include every alternative 

device and thought conceivable by the mind of man.”). 

Courts “must evaluate the adequacy of an EIS discussion of 

alternatives according to [the] ‘rule of reason,’ which governs 

both ‘which alternatives the agency must discuss’ and ‘the 

extent to which it must discuss them.’” Tongass, 924 F.2d at 

1140 (quoting Nat. Res. Def. Council, Inc. v. Hodel, 865 F.2d 

288, 294 (D.C. Cir. 1988) (emphasis in original)). “As the 

phrase ‘rule of reason’ suggests, [courts] review an agency’s 

compliance with NEPA’s requirements deferentially[,]” and will 

“uphold its discussion of alternatives so long as the 

alternatives are reasonable and the agency discusses them in 

reasonable detail.” Busey, 938 F.2d at 196. Thus, the Corps’ 

“detailed discussion of alternatives as it relates to this 

highly technical series of decisions, so long as it is not 

arbitrary and capricious, should be upheld.” In re ACF Basin, 

554 F. Supp. 2d at 1306.
225

The Corps “bears the responsibility for defining at the 

outset the objectives” in updating the Master Manual, Busey, 938 

F.2d at 195-96; and its choice of alternatives are then 

“evaluated in light of these stated objectives[,]” Slater, 198 

F.3d at 867; see also 40 C.F.R. § 1502.13 (requiring the agency 

to provide a statement that “briefly specif[ies] the underlying 

purpose and need to which the agency is responding in proposing 

the alternatives including the proposed action”). Based on this 

obligation, the Corps defined the objectives of the update, see

A.R. ECF No. 61 at D-00044226, D-00044196 (listing five defined 

objectives for the WCM update); see also supra section II.B.4.

at 35; and pursuant to these objectives, the Corps “formulated 

and considered eleven different alternatives [ ] based on 

different formulations of management measures, as well as the 

no-action alternative that was [ ] based on current operations 

and conditions[,]” Defs.’ Cross-Mot., ECF No. 95 at 46 (citing 

A.R., ECF No. 61 at D-00044227-28). According to the FEIS, the 

formulation strategy used to develop alternatives “involved 

starting with the No Action Alternative and adding one measure 

at a time, determining the operation for that measure that might 

best satisfy the objectives, and then developing another 

alternative by adding another measure, or in some instances, 

considering a variation of the last added measure.” A.R., ECF 

No. 61 at D-00044227. As a result, the Corps intended for the 
226

alternatives to build upon each other, “ultimately establishing 

the recommended plan for water management in the ACT Basin.” Id.

During this process, some management measures were eliminated 

because they did not pass the screening criteria established to 

define the scope of the action. Id. at D-00044198. Of the twelve

alternatives, eight were briefly discussed and rejected, while 

four alternatives—the No-Action Alternative and Plans D, F, and 

G (the Proposed Action Alternative)—were carried forward for 

further analysis. See id. at D-00044226-58.

The Alabama Plaintiffs argue that the FEIS’ alternatives 

analysis was deficient because it did not consider alternatives 

requiring the Corps “to generate minimum levels of hydropower.” 

Pls.’ Mot., ECF No. 83 at 59. They claim that “[b]y failing to 

consider an alternative that would serve Allatoona’s hydropower 

purpose in that way, the Corps failed to consider an adequate 

range of alternatives for its NEPA analysis.” Id. Defendants 

counter that “[t]he Corps’ consideration of alternatives was 

fully reasonable and complied with NEPA.” Defs.’ Cross-Mot., ECF 

No. 95 at 47. They argue that “every alternative studied in the 

FEIS includes hydropower generation[,] and its treatment of 

hydropower generation throughout the document is reasonable. . . 

. . Therefore the FEIS did not need a separate alternative that 

required additional hydropower generation.” Id. at 47-48. The 

Alabama Plaintiffs object to this “non-sequitur” in their reply, 
227

arguing that “the action zones in each proposal allowed the 

Corps to generate zero hydropower if it so desired.” Pls.’ 

Reply, ECF No. 99 at 34-35. However, because the Court has 

already rejected the claim that the Corps has discretion under 

the Master Manual to generate zero hydropower, and for the 

additional reasons discussed below, the Court concludes that the 

Alabama Plaintiffs have not shown that the Corps’ selection and 

discussion of the alternatives was arbitrary or capricious.

Applying the deferential “rule of reason,” the Court 

concludes that the twelve alternatives the Corps considered 

“enabled reasoned choices considering the objectives” identified 

in the FEIS, especially in light of the Corps’ “competing goals” 

and “the extensive explanations that the Corps provided for its 

screening decisions.” Id. at 1306; see, e.g., A.R., ECF No. 61 

at D-00044198-99 (Section 4.1, “Management Measures Eliminated 

from Consideration”), D-00044199-26 (Section 4.2, “Management 

Measures Considered for Further Evaluation”), D-00044226-58 

(Section 4.3, “Basin-wide Alternatives Evaluated,” and Section 

5, “Description of the Proposed Action and Alternatives”).

First, the record supports the Corps’ claim that every 

alternative studied in the FEIS “involved satisfying the 

hydropower purpose, through peaking operations as well as 

through continuous operation of certain generating units[.]” 

Defs.’ Reply, ECF No. 102 at 21 n.10; see A.R., ECF No. 61 at D-
228

00044226-58. Next, the Court looks to the objectives of the 

proposed action, as “[t]he range of alternatives that must be 

considered in the EIS need not extend beyond those reasonably 

related to the purposes of the project.” Westlands, 376 F.3d at 

868 (citation and internal quotation marks omitted). As relevant 

here, an objective of the Master Manual update was to “[i]mprove 

system performance to achieve congressionally authorized project 

purposes[,]” A.R., ECF No. 61 at D-00044226; with the FEIS 

specifically stating that each alternative “should address one 

or more of the congressionally authorized project purposes[,]” 

id. at D-00043868. Since “[h]ydropower is one of the 

congressionally authorized purposes in the ACT Basin[,]” the 

FEIS explains that “[r]ecommended measures for off-peak 

hydropower operations to achieve other objectives or benefits 

were determined to be inconsistent with the authorized 

hydropower purpose” and “recommended measures that would dictate 

non-peak hydropower operations or would otherwise have a 

significant adverse effect on the hydropower function were not 

carried forward for detailed consideration.” Id. at D-00043784. 

Thus, while there are changes to hydropower operations under the 

Master Manual, each action alternative contemplated generating 

hydropower, including the Proposed Action Alternative. See supra

section IV.B.2.b. (concluding that the FEIS properly modeled

hydropower impacts resulting from the modified action zone 
229

hydropower generation schedule); A.R., ECF No. 61 at D-00046477 

(“Although the Proposed Action Alternative would result in an 

insignificant decrease (approximately 0.6%) in hydropower 

production, the authorized project purpose would continue to be 

met year round.”). As a result, the FEIS did not need to 

consider a separate alternative that alone contemplated minimum 

hydropower production, as such a concern was already embodied in 

each of the alternatives. See Native Ecosystems Council v. U.S. 

Forest Serv., 428 F.3d 1233, 1249 (9th Cir. 2005) (“NEPA does 

not require federal agencies to consider alternatives that are 

substantially similar to other alternatives.”); Westlands, 376 

F.3d at 868 (same conclusion for alternatives “not significantly 

distinguishable from alternatives actually considered”).

Since the Alabama Plaintiffs do not claim that the Corps 

“improperly defined its objectives,” Slater, 198 F.3d at 867; 

the Court agrees with Defendants that “[i]t was reasonable for 

the Corps to evaluate hydropower in the alternatives as 

undertaken in the FEIS,” since this evaluation entailed “a 

recognition that the Corps must balance hydropower with other 

basin purposes, and need not prioritize hydropower at the 

expense of other project purposes,” Defs.’ Cross-Mot., ECF No. 

95 at 48; see also A.R., ECF No. 61 at D-00044198 (explaining 

that the Corps cannot “prioritize project purposes,” except for 

flood risk management during a flood event, and that any measure 
230

that “recommended prioritization of project purposes was not 

carried forward for further consideration”), D-00043979 

(explaining that droughts experienced over the past several 

decades have revealed that during extended low-flow periods, ACT 

projects’ hydropower operations did not previously “provide 

sufficient flexibility to adequately meet other authorized 

purposes[,]” thus providing the impetus for the resulting 

changes in the Master Manual). 

Accordingly, because the record demonstrates that 

Defendants properly defined the objectives of the Master Manual 

update and identified alternatives that would accomplish those 

objectives while eliminating those that would not, the Alabama 

Plaintiffs’ challenge to the adequacy of the Corps’ alternatives 

analysis must fail. See Custer, 256 F.3d at 1041; Busey, 938 

F.2d at 198. The fact that the FEIS “may not have considered a 

specific alternative preferred by” the Alabama Plaintiffs, i.e., 

one focused solely on minimum levels of hydropower, “is simply 

not grounds for finding that the agency failed to meet its 

obligations in preparing the [FEIS], or that the agency’s 

decision was ‘arbitrary and capricious.’” City of Roseville v. 

Norton, 219 F. Supp. 2d 130, 170 (D.D.C. 2002), aff’d, 348 F.3d 

1020 (D.C. Cir. 2003); see also In re ACF Basin, 554 F. Supp. 3d 

at 1306 (stating that the Corps is not required to consider a 

party’s “preferred alternatives” or “to analyze any specific 
231

number or scope of alternatives”); Env’t Def., 515 F. Supp. 2d 

at 87 (concluding that the plaintiffs failed to show that the 

Corps’ rejection of other alternatives for a flood control 

project in Missouri “suggest[ed] a lapse of rational 

decisionmaking”); Order, Georgia v. U.S. Army Corps of Eng’rs, 

No. 1:14-cv-03593 (N.D. Ga. Sept. 29, 2017), ECF No. 61 at 43 

(concluding in separate litigation over the ACT Manual “that the 

Corps complied with NEPA in setting the scope of the update and 

considered ample alternatives while excluding others”). 

For all these reasons, the Court GRANTS summary judgment to 

Defendants and Intervenor-Defendants on the Alabama Plaintiffs’ 

and Intervenor-Plaintiffs’ NEPA claims, concluding and agreeing 

with Defendants that the Corps’ “complex, multi-year, and 

iterative study process,” which involved “sophisticated 

modeling” and several rounds of public comment, and culminated 

in “thousands of pages of data and analysis[,]” satisfies NEPA’s 

procedural requirements. Defs.’ Reply, ECF No. 102 at 17; see 

also In re ACF Basin, 554 F. Supp. 3d at 1307 (concluding in the 

ACF case that the Corps fulfilled its obligations under NEPA to 

identify potential alternatives, subject those alternatives to 

“a thorough analysis,” and consider potential environmental 

impacts, and that “simply” disagreeing with “the Corps’ analysis 

or methodological choices” is insufficient to overturn the 

federal action absent “substantial procedural flaws”).
232

C. Defendants Did Not Violate the APA

The Court lastly addresses the Alabama Plaintiffs’ 

remaining claims under the APA, taking into consideration the 

related amicus arguments provided by AMEA. The Alabama 

Plaintiffs make two overarching arguments as to why the Corps 

has violated the APA in adopting the Master Manual: the Corps 

(1) acted in excess of its statutory authority; and (2) acted 

arbitrarily and capriciously by departing from its prior 

operational precedents without a reasoned basis for doing so. 

Pls.’ Mot., ECF No. 83 at 36. Pursuant to the APA, the Court 

reviews these challenges to ensure the Corps acted within the

scope of its statutory authority, 5 U.S.C. § 706(2)(C); and that 

its decision was based on a consideration of all the relevant 

factors and was supported by substantial evidence in the record, 

see State Farm, 463 U.S. at 43-44. In other words, the Court 

must decide, “on the basis of the record the agency provides, 

whether [this] action passes muster under the appropriate APA 

standard of review.” Fla. Power & Light Co. v. Lorion, 470 U.S. 

729, 744, 105 S. Ct. 1598, 84 L. Ed. 2d 643 (1985). 

1. The Master Manual Complies with the Corps’ 

Statutory Obligations and Properly Balances the 

Authorized Project Purposes of the ACT Basin, 

Including at the Allatoona Project

The Alabama Plaintiffs first argue that under the Master 

Manual, the Corps is operating the Allatoona Project “contrary 
233

to the direction of Congress in the Flood Control Act of 1941.” 

Pls.’ Mot., ECF No. 83 at 36. They contend that the Manual 

“‘materially change[s]’ the nature of the Allatoona Project” by 

“substantially deemphasizing” the congressional authorized 

project purposes of hydropower generation and navigation “for 

the sake of recreation.” Id. at 36-43. By advancing recreation

over hydropower and navigation, the Alabama Plaintiffs argue 

that the Corps has engaged in an unlawful “reordering of project 

purposes” without congressional approval and has thus exceeded 

its authority in violation of the APA. See id. In response to 

these claims, Defendants argue that the Master Manual is

“reasonable” and “consistent” with all congressional 

authorizations, including but not limited to the Flood Control 

Act of 1941. See Defs.’ Cross-Mot., ECF No. 95 at 13-18. They 

contend that for the Allatoona Project, recreation was 

appropriately considered and did not “illegally supplant” other 

authorized project purposes, including hydropower (to which the 

Corps only made small, authorized adjustments) and navigation 

(to which the Corps made no substantive operational changes). 

See id. at 18-27; Defs.’ Reply, ECF No. 102 at 7 (“Plaintiffs 

have created any purported ranking of project purposes out of 

whole cloth.”). Because they argue that the Master Manual does 

not “abandon[]” hydropower, navigation, or any other project 

purpose, and instead reasonably explains the Corps’ actions “in 
234

balancing all authorized purposes through its updated 

operations[,]” Defendants claim that the highly technical Manual 

is entitled to deference. Defs.’ Cross-Mot., ECF No. 95 at 27; 

see Defs.’ Reply, ECF No. 102 at 14-17. The Georgia Parties

likewise argue that the Master Manual is consistent with the 

Corps’ statutory obligations and does not “abandon,” “reorder,” 

or “deemphasize” authorized project purposes but rather properly 

balances them within the Corps’ discretion. See IntervenorDefs.’ Cross-Mot., ECF No. 97 at 9-20.

The Corps, as a federal agency, is “a creature of 

statute[,]” and in operating its various reservoirs, it has 

“only those authorities conferred upon it by Congress.” Michigan 

v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001). It is established 

that the Corps operates projects in the ACT Basin “pursuant to 

‘specific’ and ‘general’ authorities established by Congress.” 

In re ACF Basin, 554 F. Supp. 3d at 1288. “Specific authorities 

are established in the original legislation authorizing 

construction of a certain project” and can be thought of as 

creating the project-specific authorized purposes. Id. These 

authorizing statutes often “refer to and incorporate ‘reports’ 

that the Corps presents to Congress as part of the authorization 

process to provide recommendations regarding the benefits of the 

projects.” Id. Specific authorities are supplemented by general 

authorities, which “apply to all federal agencies or Corps 
235

reservoirs,” id. at 1288-89; and include the Fish and Wildlife 

Coordination Act of 1958, the Endangered Species Act of 1973, 

the Flood Control Act of 1944, the Water Pollution Control Act 

Amendments of 1972, and the Water Supply Act of 1958, A.R., ECF 

No. 61 at D-00043779; see also 33 C.F.R. § 222.5(f)(1) 

(requiring water control plans to consider “all applicable 

Congressional Acts,” including those “established after project 

construction”). The FEIS lists the seven authorized project 

purposes applicable to the entire ACT Basin that derive from 

specific and general authorities: (1) flood risk management;

(2) hydropower; (3) navigation; (4) fish and wildlife 

conservation; (5) recreation; (6) water quality; and (7) water 

supply. A.R., ECF No. 61 at D-00043779. It identifies the first 

three as the “expressly authorized project purposes” of the ACT 

Basin and the latter four as the general “operational 

objectives” that supplement the three specific ones. Id.

To determine the specific and general authorities 

applicable to the Allatoona Project, the Court begins its 

analysis with the Flood Control Act of 1941, the statute which 

authorized the Corps to build and operate Allatoona Lake and 

Dam. See Pub. L. No. 77-228, 55 Stat. 638, 638-41 (1941). That 

Act stated that “[t]he plan for the Allatoona Reservoir . . . 

for flood control and other purposes” was to be carried out “in 

accordance with the recommendation of the Chief of Engineers in 
236

House Document Numbered 674,” id. at 641; which in turn provided 

the Corps’ recommendation to Congress that construction of the 

Allatoona Project be authorized “for the control of floods, 

regulation of stream flow for navigation, and the development of 

hydroelectric power,” A.R., ECF No. 61 at D-00013497.0002. As a 

result, the Allatoona Reservoir’s project-enabling legislation, 

the Flood Control Act of 1941, authorized it as a “multipurpose 

project” for the specific authorities of flood risk management, 

hydropower, and navigation. Id. at D-00044902. 

However, it is not just the Flood Control Act of 1941 that 

“unambiguously” identifies the congressionally authorized 

purposes at Allatoona. Intervenor-Defs.’ Reply, ECF No. 103 at 6 

(quoting Pls.’ Reply, ECF No. 99 at 8); Defs.’ Cross-Mot., ECF 

No. 95 at 14 (stating that the “Basin- and Project-specific 

authorities are not the entirety of the legislative landscape”). 

The above-referenced general statutory authorities, applicable 

to all Corps projects, also make “recreation, water quality, 

fish and wildlife conservation, and water supply” authorized 

project purposes at Allatoona, even though those authorities 

were established after Allatoona’s construction began. A.R., ECF 

No. 61 at D-00044902, D-00044948; 33 C.F.R. § 222.5(f)(1). The 

Allatoona Project and its seven purposes were later incorporated 

into Congress’ plan for the whole ACT Basin, enacted in the 

River and Harbor Act of 1945, which authorized the development 
237

of the basin for the purposes of “navigation, flood control, 

power development, and other purposes, as outlined in House 

Document Numbered 414[.]” Pub. L. No. 79-14, § 2, 59 Stat. 10, 

17 (1945); see also A.R., ECF No. 61 at D-00053821 ¶ 7 (H.R. 

Doc. No. 414, 77th Cong. (1941) (calling for “a comprehensive 

plan” of development of the ACT Basin system “for navigation, 

hydroelectric power, flood control, and other purposes”).

Using this historical context and the text of these 

enabling statutes, the Court concludes that the Corps has “a 

good deal of discretion” in its management of the ACT Basin to 

“balance the[] various [specific and general] interests” at play 

at its numerous reservoirs, including at the Allatoona Project. 

Ubbelohde, 330 F.3d at 1027. The text of the authorizing 

legislation does not provide “a method of deciding whether the 

balance actually struck by the Corps in a given case is correct 

or not.” Id. For example, the Flood Control Act of 1941 simply 

states that the Allatoona Reservoir should be constructed “for 

flood control and other purposes” as outlined in House Document 

No. 674, Pub. L. No. 77-228, 55 Stat. 638, 641 (1941); which in 

turn lists, in no apparent order of importance, flood risk 

management, navigation, and hydropower generation as the three 

specific authorized purposes of the project, A.R., ECF No. 61 at 

D-00013497.0002; see also id. at D-00044902 (describing the 

Allatoona Project as “multipurpose”). Similarly, the River and 
238

Harbor Act of 1945 created a development plan for the entire ACT 

Basin for “navigation, flood control, power development, and 

other purposes,” again in no ranking order. Pub. L. No. 79-14, § 

2, 59 Stat. 10, 17 (1945); see also In re ACF Basin, 554 F. 

Supp. 3d at 1302 (“Congress did not order the priorities of the 

project purposes in the Rivers and Harbors Act[.]”). The Court 

agrees with Defendants that this textual evidence demonstrates 

that these two laws do not “rank, prioritize, emphasize, or 

otherwise provide direction for the Corps to prefer one purpose 

or another[,]” but rather “merely list[]” and “discuss” all 

three specific purposes—hydropower, navigation, and flood risk 

management—“in general terms.” Defs.’ Reply, ECF No. 102 at 8-9. 

Furthermore, neither statute indicates how to treat any of 

the generally applicable authorized purposes as compared to the 

specific ones, nor could they, since all of the general 

statutory authorities—“P.L. 78-534, P.L. 85-500, P.L. 85-624, 

P.L. 92-500, and P.L. 93-205”—were enacted later in time than 

the Flood Control Act of 1941 and the River and Harbor Act of 

1945 (with the exception of the Flood Control Act of 1944).

A.R., ECF No. 61 at D-00044902. Although there is a textual 

argument to be made that later-in-time authorities are broadly 

encompassed by the “and other purposes” language that appears in 

both enabling statutes, the Corps’ policy settles the issue, as 

it “states that legally authorized purposes recognized after 
239

project construction receive appropriate consideration,” again 

in no specified ranking order, “when making water control 

decisions just as those for which costs have been allocated.” 

Id. at D-00043977; 33 C.F.R. § 222.5(f)(1).

Therefore, the principal requirement for the basin itself 

and at the Allatoona Project is that the Corps consider, through 

the proper procedures and a transparent public process, each 

authorized purpose in order to strike an appropriate balance for 

WCM updates. See In re ACF Basin, 554 F. Supp. 3d at 1302 (“The 

Corps has significant discretion to balance the often competing 

purposes at its multi-purpose reservoirs.”); Ubbelohde, 330 F.3d 

at 1027 (requiring courts to “review the Corps’ decisions to 

ensure that it considered each of the[ authorized] interests 

before making a decision”); accord In re Operation of Mo. River 

Sys. Litig., 421 F.3d 618, 629 (8th Cir. 2005). Consistent with 

this mandate, the Corps did “not assign priorities to [ ] 

project purposes” in the Master Manual, but instead, 

“consider[ed] all of the authorized purposes when making 

[balanced] water management decisions in the basin” so as to 

minimize conflict “between the individual authorized purposes.” 

A.R., ECF No. 61 at D-00053478. The Court does not conclude,

however, as the Alabama Plaintiffs claim, that the Corps has 

“virtually unreviewable discretion to ‘balance’ project 

purposes.” Pls.’ Reply, ECF No. 99 at 9. Rather, the Court has 
240

concluded that the Corps is empowered “to develop a Master 

Manual to describe how it will operate the [ACT] system to 

balance conflicting purposes[,]” In re ACF Basin, 554 F. Supp. 

3d at 1289 (citing 33 U.S.C. § 709); and that at the Allatoona 

Project, there are seven combined general and specific 

authorized project purposes, A.R., ECF No. 61 at D-00044902. 

On the “balancing” point, the parties present opposing 

views of South Dakota v. Ubbelohde, 330 F.3d 1014 (8th Cir. 

2003), a case involving state challenges to the Corps’ 

management of the Missouri River. Id. at 1019. In that case, the 

Eighth Circuit analyzed the Flood Control Act of 1944 to 

determine that its text “sets up a balance between” flood 

control and navigation, which it identifies as “the dominant 

functions of the River’s reservoir system[,]” and recreation and 

other interests, which it calls the “secondary uses” provided by 

the Act. Id. at 1027 (citing ETSI Pipeline Project v. Missouri, 

484 U.S. 495, 512, 108 S. Ct. 805, 98 L. Ed. 2d 898 (1988)). The 

Eighth Circuit determined that the Flood Control Act of 1944 

“provides some law to apply,” although given its “minimal 

guidance,” courts need only ensure that the Corps gives equal 

consideration to project purposes, which does not necessarily 

amount to “equal results.” Id. at 1027, 1031. Ultimately, based 

on the evidence, including the legislative history and “the 

sequential listing of interests” in the text of the Act, the 
241

Eighth Circuit concluded that for the Missouri River system, 

“the Corps’ primary concerns should be flood control and 

navigation” before recreation. Id. at 1032. The Alabama 

Plaintiffs argue that Ubbelohde indicates that the Corps has 

“limited” authority to operate its projects for certain purposes 

and “is precluded, at the very least, from abandoning those 

project purposes in either a de facto or de jure manner.” Pls.’ 

Mot., ECF No. 83 at 41. The Georgia Parties claim, however, that 

Ubbelohde supports theirs and Defendants’ argument that the 

Flood Control Act of 1941 “does not dictate the balance of 

purposes” or the “‘priority the Corps can or must give to 

different interests[.]’” Intervenor-Defs.’ Reply, ECF No. 103 at 

6-7 (quoting Ubbelohde, 330 F.3d at 1032).

The Court agrees with Defendants and Intervenor-Defendants 

that, as with the Flood Control Act of 1944 at issue in 

Ubbelohde, the Flood Control Act of 1941, the authorizing 

legislation for Allatoona, “provides no basis to determine 

whether the balance the Corps struck in the ACT Manual is 

appropriate.” Intervenor-Defs.’ Reply, ECF No. 103 at 7;

Ubbelohde, 330 F.3d at 1027. Rather, the Flood Control Act of 

1941 is even less helpful than the Flood Control Act of 1944, as 

the 1944 Act textually references both specific and general 

authorities, thereby “set[ting] up a balance” between dominant 

and secondary interests, Ubbelohde, 330 F.3d at 1027; whereas 
242

the 1941 Act, in conjunction with House Document No. 674, only 

enumerates flood risk management, hydropower, navigation, “and 

other purposes” as the authorized project purposes at Allatoona, 

since the general authorities went into effect later in time. 

At the same time, however, the Court agrees with the 

Alabama Plaintiffs that Ubbelohde and a later Eighth Circuit 

case, In re Operation of Missouri River System Litigation, 421 

F.3d 618 (8th Cir. 2005), provide support for the contention

that under the APA, the Corps is prohibited from wholly 

“reorder[ing]” and/or “abandon[ing]” Allatoona’s seven 

congressionally authorized project purposes. Pls.’ Reply, ECF 

No. 99 at 9. Even if the Court were to adopt the Eighth 

Circuit’s divide between dominant and secondary uses of a 

reservoir system, for example labeling Allatoona’s “expressly 

authorized project purposes” of hydropower, flood risk 

management, and navigation as the dominant functions, and the 

later in time “operational objectives” of recreation, water 

quality, water supply, and fish and wildlife conservation as the 

secondary uses, A.R., ECF No. 61 at D-00043779; the Court agrees 

that the Corps cannot abandon any of these priorities—especially 

the “dominant” ones, see In re Operation of Mo. River, 421 F.3d 

at 629 n.7 (“If, due to extreme conditions, the Corps is faced 

in the future with the unhappy choice of abandoning flood 

control or navigation on the one hand or recreation, fish and 
243

wildlife on the other, the priorities established by the [Flood 

Control Act of 1944] would forbid the abandonment of flood 

control or navigation.”). The question thus becomes whether the 

Alabama Plaintiffs are correct that at the Allatoona Project, 

the Master Manual abandons the “dominant” authorized project 

purposes of hydropower and navigation in favor of the 

“secondary” interest of recreation. See id. (explaining that 

changes amounting to “some more limited degree of support for”

dominant functions “could be held to constitute ‘abandonment’”). 

For the reasons explained below, the Court concludes that 

under the Master Manual, the Corps has not actually or 

functionally abandoned or deemphasized the congressionally 

authorized project purposes of (1) hydropower, and (2) 

navigation at the Allatoona Project, nor has it “reordered” or 

“materially altered” them in any impermissible way. Instead, the 

Court agrees with Defendants that the Corps crafted “modest 

incremental changes to” the ACT Master Manual that appropriately 

considered and balanced the various applicable specific and 

general project purposes, and therefore “in no way has exceeded

its authority.” Defs.’ Reply, ECF No. 102 at 8.

a. The Master Manual Does Not “Deemphasize” 

Hydropower at the Allatoona Project

The Alabama Plaintiffs argue that the Master Manual should 

be set aside because it “substantially deemphasizes the 
244

congressionally authorized purpose of hydropower generation” at 

the Allatoona Project. Pls.’ Mot., ECF No. 83 at 37. They claim 

that under the Master Manual, the Corps plans to raise lake 

levels “to the maximum extent possible” by reducing releases 

from Allatoona Dam, implementing new action zones, using a new 

guide curve or “fall phased draw down” that holds water in 

Allatoona later in the year, and “asserting unprecedent 

discretion not to generate any power” via changes to hydropower 

generation schedules, all of which they claim “changes Allatoona 

from a power project with incidental recreation benefits to a 

recreational project with incidental power benefits.” Pls.’ 

Reply, ECF No. 99 at 10; Pls.’ Mot., ECF No. 83 at 27. To

support their argument, the Alabama Plaintiffs pull language 

from the FEIS to argue that a stated “goal of the new Manual is 

to have ‘substantially higher lake elevations’ than historical 

averages[,]” Pls.’ Mot., ECF No. 83 at 27 (citing A.R., ECF No. 

61 at D-00044278); and that the Corps’ intent behind the new 

action zones—the source of the Corps’ alleged newfound 

discretion to generate zero hydropower—is “‘to manage the lake 

at the highest level possible for recreation and other’ 

unspecified ‘purposes’ to the detriment of hydropower generation 

releases,” id. at 28 (citing A.R., ECF No. 61 at D-00044402). 

They claim that the resulting reduction in hydropower and 

downstream flows occurs at various levels in all seasons but “is 
245

especially acute” during the August to November “critical lowflow period[]” “when peak hydropower and downstream flow support 

are needed most.” Id. at 38. By eliminating minimum hydropower 

requirements, “substantially reduc[ing] the volume of water 

available for hydropower[,]” and reallocating that storage to 

benefit recreation, the Alabama Plaintiffs contend that the 

Master Manual “constitutes a ‘material alteration’ in its 

operation” and in Allatoona’s authorized project purposes that 

cannot occur without prior congressional approval. Id. at 37, 

39-40, 43; Pls.’ Reply, ECF No. 99 at 10. 

In response, Defendants argue that “hydropower operations 

under the Master Manual are similar to historical norms and not 

the drastic departure that Plaintiffs suggest.” Defs.’ Reply, 

ECF No. 102 at 11. They contend, like the Georgia Parties, that 

impacts to hydropower are “minor,” “modest,” and “small,” and 

“fully consistent with the general congressional directive to 

operate the ACT projects for multiple purposes, including but 

not limited to hydropower generation.” Defs.’ Cross-Mot., ECF 

No. 95 at 20; Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 13-14. 

As a result, they claim that the Alabama Plaintiffs “cannot 

credibly contend [that] the minor operational adjustments in the 

ACT Manual constitute fundamental or material changes” to the 

authorized project purpose of hydropower, Intervenor-Defs.’ 

Cross-Mot., ECF No. 97 at 15; or that such changes, actually 
246

“contemplated for drought operations[,] were [solely] intended 

to benefit recreation[,]” Defs.’ Cross-Mot., ECF No. 95 at 20.

The Corps issued the updated Master Manual pursuant to 33 

C.F.R. § 222.5, which requires the Corps to develop WCMs “to 

conform with objectives and specific provisions of authorizing 

legislation and applicable Corps of Engineers reports.” 33 

C.F.R. § 222.5(f)(1). At the same time, “[i]t has long been the 

custom of Congress to approve” Corps projects on the basis of 

“preliminary plans and to authorize the Chief of Engineers to 

make such modifications as later studies indicate are 

necessary.” United States v. 2,606.84 Acres of Land, 432 F.2d 

1286, 1292 (5th Cir. 1970), cert. denied, 402 U.S. 916, 91 S. 

Ct. 1368, 28 L. Ed. 2d 658 (1971); see also United States v. 

255.25 Acres of Land, 712 F.2d 1263, 1266-67 (8th Cir. 

1983); Creppel v. U.S. Army Corps of Eng’rs, 670 F.2d 564, 572 

(5th Cir. 1982). “The reports with reference to which such 

projects are adopted are ‘never intended to be the final plans 

for the . . . project,’ United States v. 2,606.84 Acres of 

Land, 432 F.2d 1292, but are merely ‘planning document[s] that 

explore[] in general rather than detailed terms the feasibility 

of the engineering and economic aspects of the Project,’ United 

States v. 255.25 Acres of Land, 712 F.2d at 1266.” Britt v. U.S. 

Army Corps of Eng’rs, 769 F.2d 84, 89 (2d Cir. 1985). As such, 

the rule is that “[e]ven when a project’s purpose is authorized 
247

by Congress, the executive officer charged with responsibility 

for the project may modify its purpose unless this action is so 

foreign to the original purpose as to be arbitrary or 

capricious.” Creppel, 670 F.2d at 572 (emphasis added). 

Otherwise, it would “impart[] both stupidity and impracticality 

to Congress to conclude that the [authorizing] statute impliedly 

forbids any change in a project once approved, and thus prevents 

the agency official from providing for the unforeseen or the 

unforeseeable, . . . or from adjusting for changes in physical 

or legal conditions.” Id. at 572-73; see also 33 C.F.R. § 

222.5(f)(3) (allowing revisions “as necessary” to WCMs due to 

“developments in the project area and downstream” and changes in 

technology, legislation, and “other relevant factors”).

Both Congress and the Corps have long recognized that the 

Corps’ discretion to make certain improvements to its authorized 

water projects “is an important delegation of [its] authority.” 

See A.R., ECF No. 61 at SUPPAR022996; H.R. Rep. No. 2165, 

Authorizations for Reservoirs, Levees, and Flood Walls for Flood 

Control, Flood Control Act of 1946, 79th Cong. (1946) (“[I]t has 

been the policy of . . . the Congress to recognize that changing 

conditions often make plans obsolete, and to avoid undue 

rigidity they have given . . . the Chief of Engineers the 

authority to modify plans as may be found necessary and 

desirable.”). However, post-authorization changes are subject to 
248

certain restrictions, Env’t Def. Fund, Inc. v. Alexander, 467 F. 

Supp. 885, 899 (N.D. Miss. 1979), aff’d, 614 F.2d 474 (5th Cir. 

1980); and any change must “serve the original purpose of the 

project[,]” Creppel, 670 F.2d at 573; such that modifications 

that “[m]aterially alter the scope or function of the project” 

or “change the authorized plan of improvement” require prior 

congressional approval, A.R., ECF No. 61 at SUPPAR022997. 

“No hard-and-fast rule can be cited as governing when a 

project modification should be presented to Congress for further 

consideration.” Alexander, 467 F. Supp. at 901; see also A.R., 

ECF No. 61 at SUPPAR022997 (calling it “a matter of judgment” 

whether a proposed post-authorization change “is or is not a 

permissible one”). The Corps has provided some guidance in a 

1951 Chief of Engineers’ report regarding “the scope of 

executive authority to modify projects previously approved by 

Congress,” and reaffirmed these principles in a later 1969 legal 

memorandum to the Special Assistant to the Secretary of the 

Army. Alexander, 467 F. Supp. at 900-01. Based on this guidance, 

material alterations include “the deletion or addition of 

project purposes where not otherwise authorized by law, or 

substantial changes in the relative sizes of project purposes,” 

whereas “engineering changes” which involve changes to “the 

location, dimension, method of construction, minor variations in 

the allocation of storage for the various project purposes, and 
249

changes in the size and scope of the project to meet needs which 

differ from those which existed at the time of authorization” 

are permissible “so long as the scope and function of the 

project are not materially altered.” Id. at 901 (quoting the 

1969 memorandum—A.R., ECF No. 61 at SUPPAR022997). In sum, the 

Corps’ authority to make changes to water projects without first 

seeking congressional approval is broad but not unlimited.

The Court turns to the administrative record to determine 

whether the Alabama Plaintiffs are correct in arguing that the 

Corps exceeded its statutory authority by materially changing, 

without congressional approval, the hydropower “purpose or 

function” of the Allatoona Project “for the sake of recreation.” 

Pls.’ Mot., ECF No. 83 at 37, 42 (quoting Alexander, 467 F. 

Supp. at 908-09). For the Alabama Plaintiffs to successfully 

argue that “the Corps has illegally shifted priority from 

hydropower to recreation,” the record must show that: 

(1) “recreation is a focus of the updated manuals,” such that 

reductions in hydropower operations “were intended to benefit 

recreation[;]” or (2) such reductions were so significant in 

relative size so as to have the effect of “substantially 

deemphasizing” hydropower while elevating recreation. Defs.’ 

Cross-Mot., ECF No. 95 at 20; A.R., ECF No. 61 at SUPPAR022997. 

For the reasons explained below, the Court concludes that 

neither argument is supported by the record.
250

i. Hydropower Was Not Abandoned or 

Reordered for the Sake of 

Recreation, Which Was 

Appropriately Considered Among 

Allatoona’s Other Project Purposes

The Alabama Plaintiffs claim that the Master Manual’s 

“stated goal is to cut back on releases and hold as much water 

in the [Allatoona L]ake as possible so the Corps can promote 

local recreational uses of the lake” to the alleged illegal 

“diminishment of hydropower generation[.]” Pls.’ Mot., ECF No. 

83 at 11. However, the FEIS does not identify recreation as an 

objective of the Master Manual, see, e.g., A.R., ECF No. 61 at 

D-00043862-63 (Section 1.2, “Purpose and Need”), D-00043868-70 

(screening criteria), D-00044226, D-00044196; and it explains 

that any proposed changes “that would significantly affect other 

project purposes or . . . would require . . . congressional 

authorization[,]” are “not consistent with the purpose and need 

of updating the WCM[,]” see id. at D-00043863 (“[T]his EIS does 

not address any proposed changes to water management practices 

that exceed existing congressional authority.”). 

Instead, the FEIS identifies as a primary objective of the 

update the development of a basin-wide drought management plan, 

id. at D-00044196; because changing conditions and droughts 

experienced in the ACT Basin over the past decades have revealed 

that peaking hydropower operations “would need to be more 

flexible to avoid drawing down the pools so low that the Corps 
251

could not meet other authorized purposes[,]” like navigation, 

water quality, and recreation, Defs.’ Cross-Mot., ECF No. 95 at 

17 (citing A.R., ECF No. 61 at D-00043979); see also A.R., ECF 

No. 61 at D-00043785 (explaining that during the 2006 to 2008 

drought, the Corps did not have an applicable drought plan 

across the ACT Basin and “generally responded to drought 

conditions by reducing hydropower generation at Allatoona Lake 

and Carters Lake as the reservoir pools dropped throughout the 

summer and fall”). The FEIS adds that at Allatoona Lake in the 

past, sustained hydropower operations during times of drought 

have adversely affected the Corps’ balancing of project purposes

there. A.R., ECF No. 61 at D-00044196. Thus, a goal of the 

update was to implement drought contingency plans, as required 

by Corps regulations, id.; see also ER 1110-2-1941, Drought 

Contingency Plans (Sept. 15, 1981); to improve operational 

flexibility to reduce water uses during severely dry times, 

A.R., ECF No. 61 at D-00043773, D-00044196; see also id. at D00043785-87 (explaining the drought management plan, its key 

features, and the reasons for its implementation). 

At Allatoona Lake, the newly created drought management 

plan “consist[s] of progressively reduced hydropower generation 

as pool levels decline[,]” and a modified hydropower generation 

schedule based on the action zones’ four ranges of power so as 

to create flexibility during drought. Id. at D-00044206, D-
252

00044224, D-00044258. As the FEIS explains, this plan results in 

“substantially higher lake elevations under drought conditions 

than the No Action Alterative” or other action plans, and this 

“improvement in water surface elevation conditions at Allatoona 

Lake . . . would largely be attributable to the proposed phased 

drawdown guide and revised action zones” that “call for more 

conservative project operations to conserve storage with the 

onset of extremely dry conditions in the basin.” Id. at D00044278. Thus, when the Alabama Plaintiffs quote the FEIS to 

argue that a goal of the updated Manual was to have 

“substantially higher lake levels,” see Pls.’ Mot., ECF No. 83 

at 47 (arguing that higher lake levels mean “less, not more, 

hydropower generation”); they tellingly excluded portions of the 

text clarifying that those higher lake levels would be “under 

drought conditions” pursuant to the drought management plan, 

rather than for the sole purpose of benefiting recreation at the 

expense of hydropower under normal conditions, compare Pls.’ 

Mot., ECF No. 83 at 27, 42, and Pls.’ Reply, ECF No. 99 at 17, 

with A.R., ECF No. 61 at D-00044278. 

The same is true for other statements in the FEIS that the 

Alabama Plaintiffs cite to as evidence of the Manual’s alleged 

improper focus on recreation. For example, they claim that the 

FEIS “expressly justified the new four-hour cap on hydropower 

production in the top action zone as creating ‘an overall 
253

benefit to recreational use of the lake[,]’” and “that as a 

general matter, the ‘action zones would be used to manage the 

lake at the highest level possible for recreation and other 

purposes.’” Pls.’ Reply, ECF No. 99 at 17 (citing A.R., ECF No. 

61 at D-00044235-36, D-00044402, D-00044406). However, they fail 

to include the related portions of the FEIS explaining that 

Allatoona’s four action zones are “shaped to mimic the seasonal 

demands for hydropower” and that this reshaping, coupled with 

adjustments to the range of power generation hours per day, are 

aimed at creating “operational flexibility to meet power 

demands” and “provid[ing] for more effective management of 

conservation storage” and overall improvement in lake levels, 

“particularly under drier conditions[,]” changes which would 

“likely provide for improved conditions in APC lakes and [Corps] 

projects downstream of Allatoona Lake” during droughts. A.R., 

ECF No. 61 at D-00044402-03, D-00044406, D-00043788-89; see also 

id. at D-00044248 (“Action zones are used to manage the lakes at 

the highest level possible within the conservation storage pool 

while balancing the needs of all authorized purposes with water 

conservation as a national priority used as a guideline.”).

Similarly, the Alabama Plaintiffs claim that the “FEIS 

touted the ‘guide curve revision in the fall’ as ‘further 

benefit[ting] recreational uses at Allatoona Lake . . . . ’” 

Pls.’ Reply, ECF No. 99 at 18 (citing A.R., ECF No. 61 at D-
254

000444245). However, this language is from a sub-section titled 

“Recreation” (under a larger section titled “Relationship to 

Water Management Objectives and Project Purposes”) dedicated to 

describing the effects of the Proposed Action Alternative on 

recreational uses at Allatoona Lake. A.R., ECF No. 61 at D000444244-45. Meanwhile, one of the other sub-sections in this 

portion of the FEIS is titled “Hydropower,” and there the FEIS 

explains that the phased fall drawdown guide curve “provide[s] 

additional benefit[s] for hydropower generation compared to the 

current guide curve,” in addition to benefits to recreation and 

flood risk management. Id. The Court therefore agrees with 

Defendants that the Alabama Plaintiffs’ portrayal of recreation 

as a focus of the Master Manual is a “red herring” based on the 

Alabama Plaintiffs’ reliance on “out of context statements,” 

Defs.’ Cross-Mot., ECF No. 95 at 19; and that benefits to 

recreation were “one reason among others for selecting the” 

Proposed Action Alternative, Intervenor-Defs.’ Cross-Mot., ECF 

No. 97 at 12; see also A.R., ECF No. 61 at D-00044245 (“Plan G 

would be likely to provide improvements with respect to flood 

risk management, hydropower generation, navigation, fish and 

wildlife conservation, recreation, and water quality.”).

The FEIS further explains that conserving water in storage 

upon the onset of drought, which results in higher Allatoona 

lake levels, benefits all project purposes. See, e.g., A.R., ECF 
255

No. 61 at D-00043789, D-00044278, D-00044266; Defs.’ Cross-Mot., 

ECF No. 95 at 19; Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 

11-12, 17. For example, the “additional measure in Plan G to 

reduce hydropower production during September through November 

to facilitate implementation of the phased fall guide curve 

drawdown” is expected to provide additional benefits at 

Allatoona with respect to recreation but also “overall 

hydropower production.” A.R., ECF No. 61 at D-00044245. Other 

benefits include, but are not limited to, “higher median lake 

levels” at Allatoona for all purposes for more months of the 

year, id. at D-00044278; improved flood risk management 

operations at Allatoona Lake,40 id. at D-00044244, D-00044266;

40 The Georgia Parties and the Alabama Plaintiffs dispute whether 

higher lake levels benefit Allatoona’s flood risk management 

purpose. Compare Pls.’ Mot., ECF No. 83 at 29-30, 47, and Pls.’ 

Reply, ECF No. 99 at 18-19, with Intervenor-Defs.’ Cross-Mot., 

ECF No. 97 at 11-12, 17, 20, and Intervenor-Defs.’ Reply, ECF 

No. 103 at 14. According to the Alabama Plaintiffs, holding 

water in Zone A of the flood control pool “indefinitely” during 

the fall period amounts to higher lake levels, which means 

“less, not more, flood control[.]” Pls.’ Mot., ECF No. 83 at 29-

30, 47. The Court rejects this argument, as the FEIS conducted a 

technical analysis of the effects of adopting the phased 

drawdown on flood control impacts downstream of Allatoona Lake, 

and the results indicated that such changes reduce flooding 

overall and would not “significantly affect flood risk 

management at Allatoona Lake.” See A.R., ECF No. 61 at D00044218-21, D-00044462-66, D-00043876-77; see also IntervenorDefs.’ Cross-Mot., ECF No. 97 at 12 (explaining that delaying 

releases through the phased drawdown provides flood protection). 

The FEIS thereby identifies flood control as a benefit of the 

Manual’s changes at Allatoona. A.R., ECF No. 61 at D-00044243-

44, D-00044266. The Alabama Plaintiffs do not challenge the 

results of this analysis. Further, the Allatoona Manual 
256

and benefits to fish and wildlife conservation resources in the 

Alabama River resulting from drought plan enhancements, id. at 

D-00044245. 

Although some effects of the Master Manual are expected to 

benefit recreation, see id. at D-00044470 (anticipating that the 

Proposed Action Alternative can avoid lake level declines into 

the most severe recreational impact category by “an additional 

2,416 days over the 73-year modeled period of record compared to 

the No Action Alternative”); “others are expected to be slightly 

adverse[,]” Defs.’ Cross-Mot., ECF No. 95 at 19 n.3. A 

recreational impacts study at Allatoona Lake, see A.R., ECF No. 

61 at D-00044468 (Table 6.6.-27, “Allatoona Lake recreation 

impacts”); indicates that the amount of time that lake levels 

will be categorized in the “Recreation Impact” range increases 

from 28.4% under the No-Action Alternative to 37.7% of the time 

under the Proposed Action Alternative, id. at D-00044470; which 

translates to an increase in the amount of time that Corps 

(Appendix A to the FEIS) explains how the “prime objective” of 

flood risk management is attained at Allatoona via the “five 

flood action zones defined above the top of the conservation 

storage[.]” See id. at D-00044952-57, D-00045086. The Court thus 

defers to the Corps’ “complex judgments” about this flood 

control methodology and data analysis. Alaska Airlines, Inc. v. 

TSA, 588 F.3d 1116, 1120 (D.C. Cir. 2009). Regardless, flood 

risk management is still one benefit out of many, and thus, the 

Alabama Plaintiffs fail to demonstrate that “[t]he Manual 

deemphasizes congressionally authorized purposes for the sake of 

recreation.” Pls.’ Mot., ECF No. 83 at 42.
257

beaches and swim areas are “unusable” and marinas and slip docks 

are detrimentally affected, id. at D-00044467-68; see also id.

at D-00044958 (explaining that at the “Recreation Impact Level,” 

recreation is “more severely affected,” as regular swim areas 

are exposed, two boat ramps are closed, and almost half of 

private docks are affected). Overall, the Allatoona Manual 

specifically states that water managers will “attempt to 

maintain reasonable lake levels, especially during the peak 

recreational use periods,” but notes that “there are no specific 

requirements relative to maintaining recreational levels” and 

that “[o]ther project functions usually determine releases from 

the dam and the resulting lake levels.” Id. at D-00044958. This 

directly undermines the Alabama Plaintiffs’ claim that 

recreation is driving the changes to the Master Manual.

The Alabama Plaintiffs attempt to rebut Defendants’ 

explanations by contending that the Master Manual’s changes 

(i.e., “the action zones, reduced generation schedule, 

eliminating of minimum hydropower, and fall phased guide curve”) 

“apply not just in drought, but in all operating conditions” and 

that “any regulatory requirement to have a drought plan does not 

negate the Corps’ responsibility to operate Allatoona for its 

authorized hydropower . . . purpose[].” Pls.’ Reply, ECF No. 99 

at 18. The Court rejects this argument and concludes that in 

view of hydrological changes over the years and prior droughts, 
258

the FEIS has adequately explained the need to develop a basinwide drought plan that “incorporate[s] variable hydropower 

generation requirements” from Allatoona Lake, A.R., ECF No. 61 

at D-00044205; based on seasonal demands and creates operational 

flexibility to in fact support hydropower and other purposes in 

low flow conditions, which is what the Corps historically did in 

response to reservoir pools dropping during the summer and fall 

of the 2006 to 2008 drought, id. at D-00043785-90, D-00043979 

(“[H]ydropower production has [historically] been curtailed, as 

necessary, to balance the entire system operation.”). The 

record, including a study analyzing the effects of the Manual 

“on hydropower benefits,” indicates that these changes do not 

“negate” Allatoona’s authorized hydropower purpose, both in 

periods of drought and non-drought, but instead provide capacity 

and energy benefits compared to the No-Action Alternative. See 

id. at D-00044444-60; Defs.’ Reply, ECF No. 102 at 12 (“The FEIS 

discusses hydropower and the proposed changes at great length 

and in great detail.” (citing A.R., ECF No. 61 at D-00043788-89, 

D-00043877-78, D-00043979-80, D-00044158-62). 

Based on the above analysis, the Court concludes that 

recreation was not the sole focus of the updates to the Master 

Manual, or even an intended target of any resulting changes to 

hydropower operations, and it rejects the Alabama Plaintiffs’ 

claim that the Corps improperly reordered, abandoned, 
259

deemphasized, or “elevate[d] this secondary project purpose over 

the originally authorized” hydropower purpose. Pls.’ Reply, ECF 

No. 99 at 17. And, to the extent that the Alabama Plaintiffs 

dispute the Corps’ ability to consider recreation at all, the 

Court concludes that at a minimum, the Corps was statutorily 

authorized to consider impacts and benefits to recreation at 

Allatoona Lake and at the rest of its projects. As noted above, 

“[f]unctions such as recreation, water quality, and water 

supply, and fish and wildlife conservation are considered 

[project] purposes under general legislation” since Corps’ 

policy equally recognizes legally authorized purposes that were 

enacted “after project construction . . . just as those for 

which costs [were] allocated.” A.R., ECF No. 61 at D-00043977; 

33 C.F.R. § 222.5(f)(1). As relevant here, the Flood Control Act 

of 1944, despite being enacted after the Flood Control Act of 

1941, also applies to the Allatoona Project, and authorizes the 

Corps “to construct, maintain, and operate public park and 

recreational facilities in reservoir areas” under its control. 

Pub. L. No. 78-534, § 4, 58 Stat. 887, 889 (1944); see also 16 

U.S.C. § 460d (adding that the “water areas” of Corps projects 

“shall be open to public use generally for boating, swimming, 

bathing, fishing, and other recreational purposes”). As such, 

recreation was not an “illegitimate” consideration in the Master 

Manual but rather appropriately considered and reasonably 
260

balanced, even if “secondar[ily],” among Allatoona’s other

authorized project purposes. Pls.’ Reply, ECF No. 99 at 17.

ii. Reductions in Hydropower Are Not 

So “Substantial” or “Significant” 

So as to Have the Effect of 

Materially Altering the Size of 

Allatoona’s Hydropower Purpose

Relatedly, the Alabama Plaintiffs appear to argue that 

regardless of the Corps’ specific intent as to recreation, by 

eliminating minimum hydropower requirements and “substantially 

reduc[ing] the volume of water available for hydropower[,]” the 

Corps has engaged in an unauthorized reallocation of Allatoona’s 

reservoir storage away from power generation that has the effect 

of benefitting recreation “at the expense of” hydropower. Pls.’ 

Mot., ECF No. 39 at 39, 42. Using changes in the percentages of 

conservation storage available for hydropower releases in the 

new four action zones alleged by APC, the Alabama Office of 

Water Resources, and the State of Alabama in their comments on 

the FEIS, the Alabama Plaintiffs argue that this reallocation 

adversely affects the size of Allatoona’s authorized hydropower 

purpose, amounting to a “material alteration” in operation that 

requires prior congressional approval. Id. at 39-40, 42-43. 

Relying on these comments, the Alabama Plaintiffs contend that 

during the summer May 1 to September 1 period, the amount of 

storage available for normal hydropower releases in action zones 

1 and 2 is reduced by 43%, compared to Zone 1 storage under the 
261

1993 Draft Manual; that as of October 1, Zones 1 and 2 combined 

experience a 67% reduction in storage compared to the 1993 

draft’s Zone 1; and that “[d]uring the critical July-August 

period, when peak generation is needed most, 45% to 55% of the 

total conservation storage is in Zone 4, which is off-limits to 

normal hydropower generation.” Id. at 28, 39 (citing A.R., ECF 

No. 61 at D-00049516, D-00049593-95, D-00043419-20, D-00045583-

85). They claim that the new action zones provide a “stark 

illustration of how the Corps has disregarded Congress’ 

direction that power generation was one of Allatoona’s primary 

purposes[,]” especially since the 1968 NEPA-approved Allatoona 

Manual “contained no action zones,” and the 1993 Draft Manual 

introduced action zones but still required minimum levels of 

hydropower generation. Id. at 38-39. Additionally, the Alabama 

Plaintiffs fault the FEIS for not isolating hydropower loss at 

the Allatoona Project “during the dry season or during any 

particular month[,]” and instead only computing monthly data for 

the ACT system “as a whole,” especially since APC has provided 

the Corps with data “about Allatoona-specific losses” in monthly 

hydropower generation. Pls.’ Reply, ECF No. 99 at 11.

Regarding this issue, the Corps concluded that “the effects 

of the phased drawdown, action zones, and hydropower generation 

schedules are either trivial or beneficial to hydropower.” See

Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 13-17; Defs.’ Cross-
262

Mot., ECF No. 95 at 20 (calling adjustments to hydropower 

operations “small” and “modest overall”). The Corps and its 

Hydropower Analysis Center conducted an analysis to understand 

how updated system operations would affect hydropower 

generation, comparing the results under the No-Action 

Alternative with the “three alternative flow scenarios” under 

the action Plans D, F, and G. See A.R., ECF No. 61 at D-00044444 

(explaining that this complete report is included in Appendix E 

to the FEIS), D-00044457-60. This analysis found that total 

system generation under the Proposed Action Alternative would 

increase slightly (by 282 megawatt-hours or about 0.1%) compared 

to the No-Action Alternative, while the projected average annual 

energy benefits for all ACT projects would decrease slightly (by 

$255,000 out of more than $222 million or about 0.11%). Id. at 

D-00044460. The simulation also showed an overall system 

increase in hydropower generation of up to 2% from January 

through August, only minor losses in generation in the fall (a 

2% decrease in September, under a 6% decrease in October, and 

just over a 3% decrease in November), and an increase in 

generation in December. Id. at D-00044456-57, D-00044460. 

At Allatoona specifically, the FEIS indicates that the 

Proposed Action Alternative results in an annual decrease of 

only 0.4% in total system energy benefits compared to the NoAction Alternative. See A.R., ECF No. 61 at D-00048486 
263

(comparing the total system energy benefits baseline number of 

$5,081,000 to the Proposed Action number of $5,062,000, which 

equates to only a $19,000 decrease), D-00044458 (variation of 

the same chart); Defs.’ Reply, ECF No. 102 at 11; Pls.’ Reply, 

ECF No. 99 at 11 n*. As discussed, the Alabama Plaintiffs do not 

contest these numbers on their own terms, but instead present 

alternative sets of data from APC and other Alabama-interested 

entities that are computed in different ways.41

The Court first notes its agreement with Defendants and the 

Georgia Parties that in calculating hydropower impacts, the 

41 The Alabama Plaintiffs also cite to extra-record exhibits, 

including a declaration from its own expert, in opposing the 

hydropower projections made by the Corps. See, e.g., Pls.’ 

Reply, ECF No. 99 at 11 (citing Ex. 3, Decl. of Alan L. Peeples, 

ECF No. 83-3), 19-20 (same); Pls.’ Mot., ECF No. 83 at 34, 38. 

They attempt to use these exhibits, which include additional 

data and public records, to argue that “a material alteration of 

the Allatoona Project,” including changes in the relative size 

of its hydropower purpose, “is not hypothetical” but “already

has followed” the changes made to the Master Manual. Pls.’ 

Reply, ECF No. 99 at 19-20; Pls.’ Mot., ECF No. 83 at 38. 

Although they claim they are not contending that these extrarecord exhibits “should be formally part of the administrative 

record[,]” they argue that judicial review should not be “an 

artificial game” and should consider the developments at the 

Allatoona Project that have followed the implementation of the 

Master Manual. Pls.’ Reply, ECF No. 99 at 20. As the Court has 

already concluded, see supra note 39, this “use of extra-record 

evidence to allege negative impacts to hydropower as a result of 

the Master Manual’s changes is improper and should be 

disregarded[,]” Defs.’ Cross-Mot., ECF No. 95 at 20 n.4. “It is 

black-letter administrative law that in an [APA] case, a 

reviewing court should have before it neither more nor less 

information than did the agency when it made its decision.” CTS 

Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (citation and 

internal quotation marks omitted).
264

Alabama Plaintiffs “err[] by focusing on the individual projects 

rather than the entire system as a whole, which contradicts 

congressional intent for the AC[T] Basin.” In re ACF Basin, 554 

F. Supp. 3d at 1301; see Intervenor-Defs.’ Reply, ECF No. 103 at 

12 (rejecting the claim that it was improper for the Corps “to 

consider impacts to hydropower from a system-wide perspective, 

rather than focusing just on the output of Allatoona Lake”). The 

Corps operates the Allatoona Project as part of the larger ACT 

system, see A.R., ECF No. 61 at D-00043977 (“ACT projects 

(including APC projects) are operated as a system to the maximum 

extent possible rather than as a series of individual, 

independent projects.”); and the power produced there is 

marketed throughout the southeast and sold on a system-wide 

basis, id. at D-00043979. Further, Allatoona Lake provides only 

a small portion of the overall hydropower generated within the 

ACT system—72 marketable capacity (“MW”) out of 2,215 MW—or 3% 

of total basin-wide dependable capacity, id. at D-00044450; and 

only 2% of the ACT Basin’s total energy benefits, id. at D00044458. Likewise, the conservation storage in Allatoona Lake 

is only 10.8% of total conservation storage for the entire ACT 

Basin, see id. at D-00043778; with APC controlling the majority 

(about eighty percent) of the available storage in the basin, 

id. at D-00043928. Given this data, the Court defers to the 

Corps’ projections of system-wide hydropower impacts, showing a 
265

0.1% increase in overall system generation, a 0.11% decrease in 

average annual energy benefits project-wide, and a 0.4% annual 

decrease in energy benefits at Allatoona specifically. Id. at D00044460, D-00048486; see A.L. Pharma, Inc. v. Shalala, 62 F.3d 

1482, 1490 (D.C. Cir. 1995) (affording “a high level of 

deference to an agency’s evaluations of scientific data within 

its area of expertise”). As the FEIS explains, “[t]he dependable 

capacity calculation procedure for the ACT Basin projects began 

by approximating each project’s contribution . . . in meeting 

the system capacity requirements,” A.R., ECF No. 61 at D00044450; and based on the resulting numbers, it concluded that

“[a]t the majority of plants, no noteworthy differences would be 

expected between the No Action Alternative and the Proposed 

Action Alternative[,]” id. at D-00044460. 

For the same reasons, the Court also rejects the Alabama 

Plaintiffs’ argument that “the FEIS’ projections for ‘overall’ 

hydropower production during the course of an entire year . . . 

[was] not the appropriate frame of reference[,]” and that the 

Corps should have instead focused on the low-flow August to 

November fall period. Pls.’ Reply, ECF No. 99 at 10-11. As 

discussed above, the FEIS analyzes changes in system-wide 

monthly hydropower generation, comparing the No-Action and 

action alternatives, and concludes that there is up to a 2% 

increase from January through August, a 2% decrease in 
266

September, under a 6% decrease in October, just over a 3% 

decrease in November, and a 3% increase in December. See id. at 

D-00044456-57 (explaining that “it was necessary to look at how 

the generated energy is distributed on a monthly basis”), D00044460. So although the FEIS concedes that operational changes 

cause “a loss in generation from September through November[,]”

id. at D-00044460; it explains and graphically demonstrates that 

these percentages of overall hydropower generation loss are 

small, even during the alleged “critical season for hydropower 

production” to which the Alabama Plaintiffs point, Pls.’ Reply, 

ECF No. 99 at 11. These numbers further indicate that depending 

on the season, hydropower levels may increase or decrease,

thereby contradicting the Alabama Plaintiffs’ assertion that 

there are “substantial” reductions in hydropower generation 

“across the board—in all seasons of the year.” Pls.’ Mot., ECF 

No. 83 at 38. That public commenters have criticized the changes 

in hydropower operations under the Master Manual as not focusing 

on “‘critical demand months’” at Allatoona and as not reflecting 

“‘the most valuable use of hydropower[,]’” and that other 

entities have computed “Allatoona-specific losses” that differ 

from the Corps’ system-wide projections for those fall months, 

Pls.’ Reply, ECF No. 99 at 11 (quoting A.R., ECF No. 61 at D00046481); does not dissuade the Court from concluding that the 

FEIS reasonably explained its decision to use “net effect” 
267

projections data for the entire ACT Basin, see Intervenor-Defs.’ 

Reply, ECF No. 103 at 11-12; and therefore, supplied a rational 

connection between the evidence and the technical decision made,

see State Farm, 463 U.S. at 43. Instead, the Court agrees with 

Defendants and the Georgia Parties that the numbers in the FEIS 

indicate that impacts of the Master Manual on hydropower are not 

“material,” “substantial,” or “significant” in relative size but 

rather “small,” “modest,” and within the Corps’ discretion to 

manage the hydropower purpose of the Allatoona Project, and of 

the ACT Basin as a whole—in tandem with the other authorized 

project purposes. See Defs.’ Reply, ECF No. 102 at 11 (arguing 

against the finding of a “material alteration” here because the 

Master Manual does not change the size of any project purpose, 

or prescribe any physical or structural changes, at Allatoona or 

elsewhere in the basin). 

An assessment of the administrative record and its 

discussion of the Master Manual’s changes to the phased guide 

curve drawdown, action zones, and the hydropower peak generation 

schedule further supports the Court’s conclusion that any 

resulting adjustments in hydropower operations at the Allatoona 

Project are not drastically different from prior operations 

under earlier manuals so as to create a “material alteration.”

For example, it has been the Corps’ historic practice to 

reduce the conservation pool in the fall months “to increase the 
268

flood pool storage in anticipation of the wet spring season by 

‘drawing down’ the guide curve to lower levels.” Defs.’ CrossMot., ECF No. 95 at 22 (citing A.R., ECF No. 61 at D-00044948, 

D-00013501.0064). The Corps began seasonally varying the storage 

allocations at Allatoona Lake in the 1950s after studies 

indicated this could increase the project’s overall benefits, 

and as a result, the 1962 Allatoona Manual required raising the 

conservation pool elevation during the summer, with a drawdown 

beginning in the fall. A.R., ECF No. 61 at D-00013501.0014. By 

segmenting the conservation pool based on a “power guide curve” 

“developed from a study of past stream-flow records[,]” id. at 

D-00013501.0028; this version of the Allatoona Manual introduced 

“an early form of action zones,” Defs.’ Cross-Mot., ECF No. 95 

at 22 n.5. An actual system of action zones was later developed 

and implemented at Allatoona Lake in 1989 to address low-flow 

conditions, A.R., ECF No. 61 at D-00044761; and these zones, 

divided into Zones 1 and 2, were incorporated into the 1993 

Draft Manual, along with adjustments to the drawdown that were 

made over time, see id. at D-00044250, D-00044904, D00013496.0041, D-00013496.0072, D-00011371.0003-04. The 1993 

action zones allowed for scaling back or suspending routine 

hydropower operations during times of drought to conserve 

storage, see id. at D-00013496.0041-42, D-00013496.0072; as is 

also the case for the updated four action zones as part of the 
269

Master Manual’s drought management plan, see, e.g., id. at D00044205-221, D-00044257, D-00044224 (explaining that in the 

update, the Corps considered varying the amount of generation 

for each action zone and reducing the amount of available 

generation “under drought protocols”). For example, Zone 3, 

which indicates drier than normal conditions or impending 

drought conditions, allows for “a reduced amount of peaking 

generation . . . to meet system hydropower demand” while 

ensuring that the reservoir refills to elevation 840 feet by May 

1. Id. at D-00044950. The FEIS explains that “[s]hould drier 

than normal hydrologic conditions exist or persist, the reduced 

peak generation will continue until the reservoir level rises to 

a higher action zone.” Id. Only in Zone 4, which indicates 

“severe drought conditions,” can peak generation be suspended, 

albeit never interrupting the 240 cfs minimum flow release,42 a 

requirement which also existed under 1993 Draft Manual’s version 

of Zone 2. Id. at D-00044950, D-00013496.0072. 

As Defendants explain, contrary to the Alabama Plaintiffs’ 

claims that the Master Manual, via the four action zones, 

reallocates significant percentages of conservation storage away 

from hydropower generation to favor recreation, as compared to 

42 “With normal seepage from the [Allatoona P]roject, the actual 

minimum flow released to meet[] the minimum flow is around 300 

cfs.” A.R., ECF No. 61 at D-00044970.
270

the 1993 Draft Manual, see Pls.’ Mot., ECF No. 83 at 39, 42; 

“[a]ction zones do not reduce storage for hydropower,” but 

rather “segment the conservation pool to indicate lake levels at 

which releases for any purpose—including hydropower—should be 

reduced during progressively dry conditions so that other 

authorized purposes can be managed as well[,]” Defs.’ CrossMot., ECF No. 95 at 23. Through its analyses and data 

collection, the Corps determined that the four refined action 

zones, along with changes to the seasonal shaping of the guide 

curve and daily hydropower generation ranges, “provide greater 

flexibility and capacity to better meet peak hydropower demands 

when most needed, generally June through August[,]” and would 

not adversely affect hydropower operations at APC or other Corps 

projects in the ACT Basin. A.R., ECF No. 61 at D-00044236, D00044244. Furthermore, because the action zones continue to be 

“used as a general guide to the hydropower peaking generation 

available from the Allatoona Project to help meet system 

hydropower commitments[,]” id. at D-00044949; the Court rejects 

the Alabama Plaintiffs’ claim that Allatoona is no longer being 

operated as a peaking plant at times “when hydropower is needed 

most[,]” Pls. Reply, ECF No. 99 at 12. Rather, the Court agrees 

with Defendants and concludes that the Master Manual’s action 

zone operational changes are not “stark” deviations from prior 

manuals but “similar in nature to adjustments made from the 
271

first days of the project and continuing until the present 

update.” Defs.’ Cross-Mot., ECF No. 95 at 22; see A.R., ECF No. 

61 at D-00044949 (explaining that the evolution of the Allatoona 

Project’s decades-long operations has culminated in “[a] 

seasonal conservation pool regulation guide curve and 

conservation storage action zones” that balance all authorized 

project purposes).43

The same is true for changes to the shape of the power 

guide curve over the years. See Pls.’ Mot., ECF No. 83 at 21 

(1951 Manual’s guide curve), 23 (1968 Manual’s rule curve), 24 

(1993 Draft Manual’s guide curve), 27 (2015 Master Manual’s 

updated rule curve). Using these graphs, the Georgia Parties 

describe the differences between these various rule curves as 

only “a slight shift from a straight drawdown generally starting 

later in the prior versions to the phased drawdown generally 

starting earlier in this one[,]” which the Corps determined 

would not affect overall hydropower generation. See Intervenor43 The Court is therefore unpersuaded by 2001 statements the 

Alabama Plaintiffs cite to made by a federal commissioner 

regarding a previous multistate compact for the ACT Basin. See

Pls.’ Mot., ECF No. 83 at 39; Pls.’ Reply, ECF No. 99 at 13. Not 

only do these statements come from a different time period and 

context, but they are only “current impressions” rather than 

“final conclusions.” See A.R., ECF No. 61 at SUPPAR026150 

(“Nothing we say here today should be considered to indicate 

that we either concur or non concur with regard to any or all of 

the items on a specific proposal submitted by the ACT 

Commission.”). 
272

Defs.’ Cross-Mot., ECF No. 97 at 16-17 (explaining that in line 

with prior manuals, the drawdown, although now “phased,” reduces 

the reservoir from full pool in the summer by about 20 feet to a 

lower winter pool level); A.R., ECF No. 61 at D-00044949, D00044904 (explaining the Manual’s seasonal changes to elevation 

levels—drawing down to 835 feet by October 1, holding steady at 

835 feet through November 15, and drawing down to 823 feet by 

December 31). Defendants also noted the similarities in shape 

and level between the 1962 guide curve and Zone 3 of the updated 

Master Manual. See Defs.’ Cross-Mot., ECF No. 95 at 23. The 

Court therefore rejects the Alabama Plaintiffs’ claim that the 

new phased guide curve “marks a substantial break from previous 

guide curves[,]” Pls.’ Mot., ECF No. 83 at 28; and agrees with 

Defendants to conclude that the resulting changes cannot be 

material simply because “the current drawdown no longer occurs 

precisely when Alabama wants,” especially since Allatoona’s 

authorizing legislation did not include a fall drawdown or any 

accompanying specifications—“this was a discretionary change 

first made on the Corps’ initiative in the 1950s[,]” IntervenorDefs.’ Cross-Mot., ECF No. 97 at 16; see H.R. Rep. No. 2165, 

Authorizations for Reservoirs, Levees, and Flood Walls for Flood 

Control, Flood Control Act of 1946, 79th Cong. (1946)

(recognizing the Corps’ authority “to modify plans” if
273

“necessary and desirable” so long as the changes support the 

original project purposes).

Furthermore, the Court has already rejected the Alabama 

Plaintiffs’ contention that the Corps has newfound discretion 

not to generate hydropower “not only in ‘emergency conditions,’ 

. . . but at all times.” Pls.’ Reply, ECF No. 99 at 18. As 

explained above, the Corps continues to operate the Allatoona 

Project as a peaking plant, with the action zones guiding the 

process for achieving, rather than abandoning, system hydropower 

peaking generation commitments. See A.R., ECF No. 61 at D00044949-51 (explaining each action zone’s range of hours for 

peaking generation). Only in emergency situations or severe 

drought conditions is peaking generation sometimes suspended, 

id. at D-00044949-50 (defining these limited circumstances), D00043979-80; and even then, hydropower is generated through the 

small Allatoona service unit that “maintain[s] the 240 cfs 

minimum flow release” that provides constant flows downstream, 

id. at D-00044950, D-00043939. As the Georgia Parties explain, 

“[r]etaining discretion to curtail peaking hydropower generation 

during drought conditions is not the same as ‘eliminating’ 

peaking hydropower generation at Allatoona Lake.” IntervenorDefs.’ Reply, ECF No. 103 at 10; see also Defs.’ Cross-Mot., ECF 

No. 95 at 23-24 (explaining that the action zones do not abandon

“peaking hydropower operations as an overall project purpose” 
274

but “recognize that in certain circumstances, peak releases will 

have to be reduced” due to a lack of water in storage).

Finally, as the Court concluded that the Master Manual is 

not a material change from prior operations, so too does it 

conclude that it is not a “material alteration” from the 

Allatoona Project’s original congressional authorization, as the 

Corps’ modest adjustments to hydropower are not “so foreign to 

the original purpose as to be arbitrary or capricious.” Creppel, 

670 F.2d at 572. Instead, “hydropower benefits have increased—

both in terms of allocated storage and generation capacity—

compared to Congress’ original 1941 authorization.” IntervenorDefs.’ Cross-Mot., ECF No. 97 at 14 (emphasis in original). 

For example, Allatoona Lake’s turbine capacity has 

increased from the originally authorized 30,000 kilowatts of 

generating capacity, A.R., ECF No. 61 at D-00013497.0005; to 

82,200 kilowatts, as reflected in the Master Manual, id. at D00044893, D-00044896. This increase aligns with the Chief of 

Engineers’ endorsement of “future extensions” and “enlargement” 

of power capacity at the Allatoona Project stated in House 

Document No. 674. Id. at D-00013497.0002, D-00013497.0004. Also, 

the Board of Engineers originally recommended “providing for a 

maximum power pool at elevation 830” so as to “provide a 

reasonable degree of flood control without unduly affecting the 

interests of power development[.]” Id. at D-00013497.0004. And 
275

yet, under the Master Manual, the maximum power pool elevation 

is ten feet higher at 840 feet. Id. at D-00044893. 

In addition, more storage has now been allocated to 

hydropower than Congress initially planned, as under the Master 

Manual, total conservation storage available for hydropower 

generation is 284,580 acre-feet at maximum elevation 840 feet, 

id. at D-00044904, D-00044906; compared to the original 

allotment of 182,500 acre-feet of maximum hydropower storage 

capacity, id. at D-00013497.0018. As elaborated above, see supra

note 6; the specific number of acre-feet allotted to both flood 

control and hydropower storage was discretionarily changed twice 

following Congress’ original authorization, Intervenor-Defs.’ 

Cross-Mot., ECF No. 97 at 15; and by 1946, the allocation was 

389,000 acre-feet between elevation 835 and 860 feet for flood 

control and 253,000 acre-feet between elevations 800 and 835 

feet for power generation and conservation, A.R., ECF No. 61 at 

D-00013496.0020. Today’s number of allotted acre-feet for 

hydropower generation remains higher than the 1941 original 

number and the 1946 adapted number, and it is also higher than 

the number adopted in the first 1951 Allatoona Manual (228,570 

acre-feet). Id. at D-00011308.0010. As a result, any 

reallocations in hydropower storage the Alabama Plaintiffs now 

complain of as “material” cannot be considered so because 

hydropower generation under the Master Manual “would still far 
276

outpace congressional expectations for the project in the 

authorizing legislation.” In re ACF Basin, 554 F. Supp. 3d at 

1301. As the Northern District of Georgia has stated in relation 

to the ACF Basin, “[a] reallocation cannot cause a serious 

effect on the hydropower purpose established by Congress where 

the project will still be generating significantly more 

hydropower than Congress expected even after the reallocation.” 

Id. Furthermore, it is not possible for the Corps’ discretionary 

changes to the peaking generation schedule to deviate from the 

Allatoona Project’s original authorization, as the Flood Control 

Act of 1941 and the related subsequent Corps reports did not 

specify the level of peaking generation that is to be required. 

See, e.g., In re Operation of Mo. River, 421 F.3d at 629 

(rejecting challenge to the Corps’ consideration of navigation 

support because the authorizing legislation “does not set forth 

what level of river flow or length of navigation season is 

required”). 

Despite this evidence that hydropower benefits under the 

Master Manual have exceeded congressional expectations, the 

Alabama Plaintiffs argue that the Master Manual nonetheless 

deviates from the Flood Control Act of 1941 and its “polestar” 

principle that the Allatoona Project must not just increase but 

maximize hydropower storage, while minimizing storage for other 

project purposes. Pls.’ Reply, ECF No. 99 at 14. The Court 
277

rejects this argument, as it has already determined that the 

Allatoona Reservoir was authorized as a “multipurpose” project 

that does not prioritize any one of the hydropower, navigation, 

or flood risk management specific purposes over the others. 

A.R., ECF No. 61 at D-00044902. In addition, the statements to 

which the Alabama Plaintiffs cite in support of this argument do 

not persuasively create a “polestar” principle for the Allatoona 

Project, as one is from a Division Engineer’s report that was 

never referenced by Congress, the Chief of Engineers, or the 

Board of Engineers in the authorization of the project, see

Intervenor-Defs.’ Reply, ECF No. 103 at 8 (citing A.R., ECF No. 

61 at D-000053805, D-00053808, D-00013497.0002); and the other 

comes from House Document No. 414, which was prepared only after 

the Flood Control Act of 1941 was enacted and did not discuss or 

revise the Allatoona Reservoir plans but rather recommended 

construction of other ACT Basin projects, id. at 8-9 (citing 

A.R., ECF No. 61 at D-00053821-22). House Document No. 414 

advocates not only for changes like the aforementioned ones that 

“increas[e] the development of hydroelectric power” but also 

“[d]esirable modifications” within the Corps’ discretion that 

“arise much more frequently than in normal times, and should 

often be put into effect more rapidly than extensive and 

detailed investigations and reports can be made and presented to 

Congress.” H.R. Doc. No. 414, 77th Cong. at 5-6 (1941).
278

In sum, the record does not support the Alabama Plaintiffs’ 

overall claim that a “reallocation[] of storage ‘to provide more 

stable recreation levels’ without prior Congressional approval” 

occurred.44 Pls.’ Mot., ECF No. 83 at 20. As a result, the Court 

concludes that the Corps’ adjustments to hydropower operations 

under the Master Manual do not exceed its statutory authority 

because they “serve the original purpose[s] of the [Allatoona 

P]roject[,]” Creppel, 670 F.2d at 573; do not have the effect of 

materially deemphasizing the relative size of Allatoona’s 

hydropower purpose to elevate recreation, both in comparison to 

prior operations and Allatoona’s authorizing legislation, see 

Alexander, 467 F. Supp. at 901; and are “reasonable and 

reasonably explained,” thus “deserv[ing] significant deference 

from this Court[,]” In re ACF Basin, 554 F. Supp. 3d at 1301.

44 Similar to the Alabama Plaintiffs, amicus curiae AMEA argues 

that the Flood Control Act of 1944, specifically “the limited 

reach of” section 4, “does not grant the Corps independent 

authority to manage storage for recreational purposes.” Amicus 

Br., ECF No. 94 at 21. They claim that “[t]he statutory 

authority for the support for a full pool to accommodate 

recreation in summer months is simply missing in [s]ection 4 of 

the Flood Control Act or any statute relied upon by the Corps to 

promulgate the WCM.” Id. at 22. Given that the Court has 

concluded that the updated Master Manual’s changes were not 

“predicated on using storage to support recreational 

purposes[,]” id.; the Court is unpersuaded by AMEA’s further 

arguments on this point.
279

b. The Master Manual Does Not “Deemphasize” 

Navigation at the Allatoona Project

Neither does the record support the Alabama Plaintiffs’

argument that the Master Manual abandons or “effectively deletes 

navigation as an Allatoona project purpose.” Pls. Mot., ECF No. 

83 at 40. The Alabama Plaintiffs claim that although Congress 

authorized Allatoona for navigation, “the Corps disclaims any 

obligation to operate Allatoona for the express purpose of 

navigation support[,]” which they state “is needed most in the 

fall low-flow season, . . . the exact season when the new Manual 

proposes to reduce or eliminate hydropower releases in the 

interest of higher lake levels for recreation.” Id. They contend 

that the Corps is “offload[ing] its navigation responsibilities” 

onto APC on the inadequate bases that the Allatoona Project is 

“‘distant from the navigation channel,’” id. at 40-41 (quoting 

A.R., ECF No. 61 at D-00043980); and “‘has never been regulated 

to make specific releases to support downstream navigation[,]’” 

Pls.’ Reply, ECF No. 99 at 15 (quoting Defs.’ Cross-Mot., ECF 

No. 95 at 24); which results in cutting “incidental navigation 

benefits[,]” id. at 17. In response, Defendants argue that 

“[n]avigation remains a fully implemented purpose in the basin” 

and that “[m]arginal changes to the management of Allatoona 

Lake—which is far upstream of navigable waterways—in no way 
280

undermine [ ] the basin’s broad navigation purpose.” Defs.’ 

Reply, ECF No. 102 at 12. The Court agrees.

“[R]egulation of stream flow for navigation” was one of the 

three specific project purposes for which construction of the 

Allatoona Reservoir was initially recommended, see A.R., ECF No. 

61 at D-00013497.0002 (recommending, in House Document No. 674, 

construction at Allatoona Lake for “the improvement of the river 

below the dams for navigation”); and later authorized via the 

Flood Control Act of 1941, see Pub. L. No. 77-228, 55 Stat. 638, 

638-41 (1941) (approving House Document No. 674’s plan). Four 

years later, the River and Harbor Act of 1945 adopted the same 

specific authorized purposes for the ACT Basin, sanctioning 

development of the Alabama-Coosa River and its tributaries for 

“navigation, flood control, power development, and other 

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

Therefore, Congress intended that navigation be balanced among 

the other competing purposes at both the Allatoona Project and 

for the ACT Basin as a whole. Defs.’ Reply, ECF No. 102 at 12-

13.

The FEIS states that although Allatoona Lake was originally 

authorized to support downstream navigation, it is “not 

regulated for navigation because [it is] distant from the 

navigation channel, and any releases for that purpose would be 

captured and reregulated by APC reservoirs downstream.” A.R., 
281

ECF No. 61 at D-00043980; see also id. at D-00044961 (“Due to 

the intervening APC projects, there are no specific reservoir 

regulation requirements to support navigation at Allatoona 

Dam.”). Navigation “occurs only on the Alabama River downstream 

of Montgomery, Alabama, the head of navigation[,]” id. at D00044199 (emphasis in original); and flow in the Alabama River 

“is largely controlled by APC impoundments on the Coosa and 

Tallapoosa Rivers above Robert F. Henry Dam[,]” id. at D00044803. Therefore, water released at the Allatoona Project, 

located “far upstream in Georgia, must travel more than 360 

river miles and pass through” several APC dams before converging 

with the Coosa River and eventually reaching the Alabama River. 

Defs.’ Cross-Mot., ECF No. 95 at 25 (citing A.R., ECF No. 61 at 

D-00043909); Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 18 

(citing A.R., ECF No. 61 at D-00043916, D-00044199). As a 

result, the FEIS explains that “[d]ownstream navigation in the 

Alabama River benefits indirectly from the operation of the 

Allatoona Lake . . . project[] for the other authorized 

purposes.” A.R., ECF No. 61 at D-00043980; see also id. at D00044961 (“[T]he seasonal variation in reservoir storage does 

redistribute downstream flows and other operations at Allatoona 

provide a benefit to downstream navigation.”). As Defendants 

explain, “the Allatoona Project has never been regulated to make 

specific releases to support downstream navigation[,]” but 
282

“[r]ather releases from Allatoona for other purposes support 

navigation incidentally, and the entire Basin is managed to 

accomplish this purpose.” Defs.’ Cross-Mot., ECF No. 95 at 24; 

see also A.R., ECF No. 61 at D-00044803 (explaining that a 

“critical component in the water control plan for navigation 

involves using an amount of storage from APC storage projects 

similar to that which has historically been used,” a plan which 

“does not include flow requirements from Allatoona” because it 

is “not regulated specifically for navigation”). These 

operational choices make functional sense given that APC 

controls eighty percent of the available conservation storage in 

the ACT Basin (above areas where navigation occurs), A.R., ECF 

No. 61 at D-00043928; and is required, pursuant to FERC 

licenses, to release minimum discharges from its reservoirs to 

support navigation on the Alabama River, id. at D-00044803-04, 

D-00043960; see id. at D-00044199 (“Releases by APC together 

with local inflows downstream of the Coosa and Tallapoosa 

Rivers’ confluence are expected to provide the required flow in 

the Alabama River . . . . ”).45 Therefore, the Corps is not, as 

the Alabama Plaintiffs claim, “offload[ing] its navigation 

45 Moreover, in updating the Master Manual, the Corps worked with 

APC to create “a navigation plan that provides necessary 

navigable channel flows,” i.e., releases that support navigation 

when basin inflows meet or exceed seasonal targets, but also 

allows for APC to reduce or suspend such releases during lowflow drought periods. See A.R., ECF No. 61 at D-00044199-201.
283

responsibilities” onto APC, Pls.’ Mot, ECF No. 83 at 40-41; but 

rather looking to the entity “in the best position to take 

appropriate action[,]” In re ACF Basin, 554 F. Supp. 3d at 1307.

This “decades-old practice of supporting navigation more 

than 300 miles downstream on the Alabama River incidentally

through releases for other purposes, rather than making 

dedicated releases from Allatoona Lake” has been the Corps’ 

practice since the reservoir was constructed and fits with the 

original vision Congress adopted in the project’s authorizing 

legislation. Intervenor-Defs.’ Cross-Mot., ECF No. 97 at 18

(emphasis added). For example, House Document No. 674 included 

commentary that “[t]he estimate of annual benefits indicates 

that in effect the [Allatoona P]roject is essentially a power 

project with important benefits in flood protection and 

incidental benefits to navigation[,]” A.R., ECF No. 61 at D00013497.0006; and it specifically stated that the reservoir was 

to be constructed “in the combined interests of flood control 

and power development,” with regulated stream flow providing 

benefits “to navigation should the Alabama and Coosa Rivers be 

further improved at some future time[,]” id. at D-00013497.0004; 

see also id. at D-00013497.0018-21 (elaborating on the project’s 

anticipated benefits to and storage allocations for hydropower 

and flood control but not navigation, instead stating that “the 

development of Allatoona Dam for flood control and power will 
284

fit” into the comprehensive ACT scheme “for flood control, 

navigation, and power”). Additionally, the 1941 Definite Project 

Report, substantially in agreement with House Document No. 674’s 

plan adopted by Congress, similarly discusses in detail the 

operational plan of the Allatoona Reservoir and Dam “for flood 

control” and “for power” but not for navigation. Id. at 

SUPPAR027131-32. Several decades later, in 1992, the Corps 

issued a report in response to a congressional request that it 

survey its various reservoir projects to identify the purposes 

for which each project was authorized, as compared to the 

purposes for which each project was actually being operated. Id.

at D-00006416.0002. For the Allatoona Project, the Corps 

informed Congress, using identical language repeated in the 2014 

FEIS, that although navigation was an authorized purpose, 

[t]he project is not regulated for navigation 

because it is located distant from the 

navigation channel and any releases for that 

purpose would be captured and reregulated by 

the [APC] reservoirs located downstream. 

Navigation benefits indirectly from the 

operation of the project for the other 

authorized purposes.” 

Id. at D-00006416.0010 (emphasis added). 

In line with this historical congressional awareness and 

tacit approval of operating the Allatoona Project for indirect 

navigation benefits, none of the authorizing legislation or 

founding supplemental reports contained any regulations 
285

specifically addressing navigation, see, e.g., id. at 

SUPPAR027115-27215, D-00013497; which is also true of the 

earlier ACT Basin Master Manuals from 1951, 1962, and 1993, see

Defs.’ Cross-Mot., ECF No. 95 at 25 (citing A.R., ECF No. 61 at 

D-00013495, D-00013501, D-00013496.0022). Therefore, contrary to

the Alabama Plaintiffs’ claims that the Corps has altogether 

abandoned navigation as an authorized purpose at the Allatoona 

Project, the record indicates that navigation is being treated 

as it always has been, both at Allatoona, and balanced among 

other project purposes for the entire ACT Basin. See In re 

Operation of Mo. River, 421 F.3d at 629 (explaining that when 

the authorizing legislation “does not set forth what level of 

river flow or length of navigation season is required” to serve 

the navigation project purpose, courts need only review the 

changes to ensure that the Corps considered downstream 

navigation in balancing competing interests). 

Furthermore, the record shows that improving navigation 

support, particularly during drought conditions, was an 

objective of the updated Master Manual. See A.R., ECF No. 61 at 

D-00044196 (aiming to “[m]ore accurately define flow 

requirements for APC projects to support navigation on the 

Alabama River downstream”), D-00044342 (calling it a “primary 

goal” to determine minimum flow requirements to support 

navigation year-round “on balance with the other needs and 
286

requirements in the basin”), D-00044199-205 (assessing various 

management measures for supporting navigation). The resulting 

changes provide “for seasonal navigation releases, coupled with 

seasonal maintenance dredging, to support commercial navigation 

in the Alabama River for a 9.0-foot or 7.5-foot channel depth as 

long as sufficient basin inflow above the APC projects . . . is 

available.” Id. at D-00053478.

The record indicates that these changes will increase, not 

decrease, navigational benefits in comparison to prior 

operations. See, e.g., A.R., ECF No. 61 at D-00044344-52 

(explaining that under the No-Action Alternative, “navigation 

channel conditions are likely to continue to deteriorate,” but 

that under the Proposed Action Alternative, there is expected to 

be “a notable increase in the number of years during which full 

9-ft navigation channel depths would be available for commercial 

navigation”), D-00044442-43. The FEIS graphically demonstrates 

that “in all months of the year except November, the navigation 

flow conditions for [the Proposed Action Alternative] equal or 

represent an improvement under conditions for the No Action 

Alternative[,]” and that there are only slight adverse effects 

during November resulting from the phased drawdown with reduced 

hydropower production. Id. at D-00044352. Using this data, the 

FEIS logically deduces that the “overall effect of operations at 

Allatoona Lake” under the Master Manual “on navigation 
287

conditions in the Alabama River downstream of Montgomery . . . 

would likely be inconsequential according to the results of the 

model simulations.” Id.

Accordingly, as with the Allatoona Project’s hydropower 

purpose, the Court concludes that the Corps has not, in any of 

the relevant updates to the Master Manual, abandoned or 

deemphasized the project’s congressionally authorized navigation 

purpose, and therefore the Corps cannot be deemed to have 

exceeded its statutory authority in this regard. Instead, in 

accordance with congressional directives, its own regulations, 

and its technical expertise, the Corps has made reasonable and 

sufficiently explained “incremental changes” to navigation in 

the ACT Basin, Defs.’ Cross-Mot., ECF No. 95 at 27; that do not 

impermissibly advance recreational interests over navigation at 

the Allatoona Project, and that are therefore to be afforded “an 

extreme degree of deference[,]” Alaska Airlines, 588 F.3d at 

1120.

2. The Master Manual Is Not an “Unexplained and 

Arbitrary Departure from Established Operations”

In their final argument, the Alabama Plaintiffs contend 

that “[a]t the very least, the Corps’ reordering of project 

purposes” was, even if statutorily permissible, “arbitrary” and 

“an unexplained departure from established operations” of the 

Allatoona Project. See Pls.’ Mot., ECF No. 83 at 43-44 
288

(criticizing the Master Manual for “sharply depart[ing] from [ ] 

precedent without acknowledging, let alone explaining, its 

departure from its prior practices”). They argue that the Corps 

has ignored and failed to meaningfully respond to public 

comments indicating that retaining more water at Allatoona “when 

it is most needed” in other places will reduce hydropower 

generation, eliminate critical navigation flow support, and 

cause harmful downstream impacts, and that, “in choosing to 

preference recreational interests at the expense of hydropower, 

navigation, flood control, and, most critically, the 

environment[,]” the Corps has “failed to engage in reasoned 

decision-making,” as mandated by the APA. Id. at 44, 47. 

In response to these claims, Defendants contend that the 

Master Manual “provides a well-reasoned explanation for changes 

in operations that support all project purposes and comply with 

subsequent legislation and regulations[,]” and is therefore 

entitled to substantial deference under Chevron, U.S.A., Inc. v. 

Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 

L. Ed. 2d 694 (1984). See Defs.’ Reply, ECF No. 102 at 14-17; 

Defs.’ Cross-Mot., ECF No. 95 at 15-16. Likewise, the Georgia 

Parties argue that the Master Manual does not reflect a change 

in Corps policy or practice, and that even if it did, the Corps 

has adequately justified all changes. See Intervenor-Defs.’ 

Cross-Mot., ECF No. 97 at 20-21.
289

The Court is unpersuaded by the Alabama Plaintiffs’ 

“alternative showing” argument, Pls.’ Reply, ECF No. 99 at 20; 

as it merely reiterates, albeit in slightly different form, many 

of the arguments that the Court has already considered and 

rejected. For example, the Alabama Plaintiffs argue that the 

Master Manual departs from the Corps’ “historical practices” by 

adopting action zones at Allatoona Lake that are “intended ‘to 

manage the lake at the highest level possible for recreation and 

other purposes.’” Pls.’ Mot., ECF No. 83 at 44-45. To support 

this argument, they point to “prior decisions” by the Corps (one 

of which comes from inadmissible extra-record evidence) which 

they claim “establish[] that the Allatoona Project should not 

maintain high reservoir levels to benefit recreation at the 

expense of generation and navigation[.]” See id. at 45-46.

However, the Court has already explained why the FEIS does 

not support concluding that the Master Manual deemphasizes the 

Allatoona Project’s authorized hydropower and navigation 

purposes to favor recreation. The Court has also already 

rejected: (1) the Alabama Plaintiffs’ characterization of the 

four action zones as providing the Corps with newfound, 

unbounded discretion to not generate any hydropower at any time;

and (2) their use of out-of-context statements regarding higher 

lake levels focusing on recreation, and has instead explained 

how conserving water in storage during drought, which does
290

result in higher lake levels, benefits all project purposes. 

Furthermore, based on the record, the Court has already 

concluded that the Master Manual’s operational changes to both 

hydropower and navigation are modest, incremental, and 

reasonably explained, in other words, “similar in nature” to 

historic changes, Defs.’ Cross-Mot., ECF No. 95 at 22; rather 

than the “unexplained and arbitrary departure” towards 

recreational interests as the Alabama Plaintiffs contend, see

Pls.’ Mot., ECF No. 83 at 46-47. Therefore, even if the Master 

Manual could be deemed a departure in some ways from prior 

Manuals, the Corps has acknowledged the pertinent operational 

adjustments and “adequately explained the reasons for its 

substantive action[,]” In re ACF Basin, 554 F. Supp. 3d at 1304; 

specifically, why it chose the Proposed Action Alternative over 

all other options, including the No-Action Alternative. The 

Court must “uphold a decision of less than ideal clarity if the 

agency’s path may reasonably be discerned[,]” and here, the 

Court concludes that the Corps’ path towards the Master Manual 

is sufficiently clear.46 Bowman Transp., 419 U.S. at 286. 

46 The Georgia Parties proffer some additional arguments on this 

point that the Court finds unnecessary to consider, as it agrees 

that at base, “[a]ll that is required” of the Corps in updating 

the Master Manual is to “follow the appropriate procedures and 

explain its choices[,]” which it has done. See Intervenor-Defs.’ 

Reply, ECF No. 103 at 14-15; Intervenor-Defs.’ Cross-Mot., ECF 

No. 97 at 20-21; see also FCC v. Fox Television Stations, Inc., 

556 U.S. 502, 515, 129 S. Ct. 1800, 173 L. Ed. 2d 738 (2009) 
291

Throughout this Memorandum Opinion, this Court, similar to 

many others, has concluded that the Corps “has significant 

discretion to balance” the competing purposes at its various 

reservoirs. In re ACF Basin, 554 F. Supp. 3d at 1302; accord 

Ubbelohde, 330 F.3d at 1027; In re Operation of Mo. River, 421 

F.3d at 629; Am. Rivers v. U.S. Army Corps of Eng’rs, 271 F. 

Supp. 2d 230, 252-53 (D.D.C. 2003). Specifically, the Corps has 

the power to issue WCMs governing its reservoir projects by

developing a binding Master Manual detailing how it will operate 

the ACT River Basin “to balance conflicting purposes.” In re ACF 

Basin, 554 F. Supp. 3d at 1289 (citing 33 U.S.C. § 709, section 

7 of the Flood Control Act of 1944); see also Ubbelohde, 330 

F.3d at 1027 (elaborating on the “good deal of discretion” the 

Flood Control Act of 1944 provides to the Corps in its 

management of river systems). Pursuant to this statutory 

authority, the Corps has promulgated regulations that explicitly 

contemplate updating those manuals “to conform with changing 

requirements resulting from” basin developments and changes in 

technology, legislation, and other relevant factors. 33 C.F.R. § 

222.5(f)(3). As a result, the “Purpose and Need” section of the 

FEIS, citing to section 7 of the Flood Control Act of 1944, 

(requiring agencies that are updating prior policies to “display 

awareness” of any changes and provide “a reasoned explanation” 

for those changes). 
292

states that the updated plans and manuals, promulgated pursuant 

to the APA’s notice and comment process, “comply with existing 

[Corps] regulations and reflect operations under existing 

congressional authorizations, taking into account changes in 

basin hydrology and demands from years of growth and 

development, new/rehabilitated structural features, legal 

developments, and environmental issues.” A.R., ECF No. 61 at D00043772. 

Ultimately, the Court concludes, based on all of the abovereferenced evidence and data analysis from the administrative 

record, that it appropriately accords deference to the updated 

Master Manual because it does not, as the Alabama Plaintiffs 

contend, amount to the Corps “transgress[ing]” the Flood Control 

Act of 1941 by materially altering or “transform[ing]” the 

Allatoona Project, Pls.’ Reply, ECF No. 99 at 8; nor does it 

exceed any other statutory authority the Corps administers in 

managing the ACT River Basin,47 Defs.’ Cross-Mot., ECF No. 95 at 

47 Amicus curiae AMEA argues that the Corps has exceeded its 

statutory authority and violated the APA by promulgating the 

Master Manual pursuant to section 7 of the Flood Control Act of 

1944 (33 U.S.C. § 709), which it argues only authorizes the 

Corps to develop regulations or WCMs addressing storage changes 

to flood control and navigation, not hydropower generation. 

Amicus Br., ECF No. 94 at 8-9. It argues that the Corps’ 

interpretation of section 7 and its “plain language” to sanction 

“chang[ing] storage for hydropower and recreation is not 

entitled to deference” under the test laid out in Chevron, 

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 

S. Ct. 2778, 81 L. Ed. 2d 694 (1984), see id. (“Nowhere in 
293

Section 7 did Congress grant the Corps the authority to alter or 

change hydropower generation through the promulgation of 

regulations or a WCM.”); and that the same is true for sections 

4 and 5 of the Flood Control Act of 1944, which AMEA claims “do 

not lend support to the concept that the statute as a whole 

authorizes the Corps to re-order project purposes at Lake 

Allatoona[,]” see id. at 10-11. Although the Alabama Plaintiffs 

likewise contest “the Corps’ plea for Chevron deference[,]” they 

do not assert a similar argument challenging the Corps’ 

authority to promulgate the Master Manual under section 7 of the 

Flood Control Act of 1944, instead claiming that “Chevron has no 

role to play” because they are not asking the Court “to 

determine whether a Corps regulation interpreting the 1941 Flood 

Control Act’s terms is reasonable” but rather that the Corps 

“transgressed th[at] Act in adopting a Manual that transforms 

Allatoona.” Pls. Reply, ECF No. 99 at 8. Nonetheless, because 

the Court has already concluded that the Master Manual does not 

materially alter hydropower storage at the Allatoona Reservoir 

in favor of recreation and that the Corps has not attempted to 

“reorder” the hydropower project purpose, the Court rejects, 

without further consideration, AMEA’s statutory argument based 

on section 7 of the Flood Control Act of 1944. In any event, 

many courts have accepted 33 U.S.C. § 709 as one of the primary 

federal laws, among other authorities, that provides the Corps 

with wide discretion in its comprehensive management of various 

river basins and its issuance of WCMs governing operations of 

those reservoir projects, which include information on balancing 

hydropower generation among other interests at play. See, e.g.,

In re ACF Basin Water Litig., 554 F. Supp. 3d 1282, 1290 (N.D. 

Ga. 2021); South Dakota v. Ubbelohde, 330 F.3d 1014, 1019-20, 

1029-30 (8th Cir. 2003); Am. Rivers v. U.S. Army Corps of 

Eng’rs, 271 F. Supp. 2d 230, 252-53 (D.D.C. 2003); ETSI Pipeline 

Project v. Missouri, 484 U.S. 495, 503-04, 108 S. Ct. 805, 98 L. 

Ed. 2d 898 (1988); accord In re Operation of Mo. River Sys. 

Litig., 421 F.3d 618, 630 (8th Cir. 2005) (“The Corps’ balancing 

of water-use interests in the 2004 Master Manual is in 

accordance with the [Flood Control Act of 1944].”). As such, 

contrary to AMEA’s request, the Court declines to engage in a 

complete Chevron analysis of 33 U.S.C. § 709, instead agreeing 

with Defendants that AMEA’s argument “is much to[o] narrow and 

would tie the Corps’ hands in direct contravention of Congress’ 

broad grant of authority to the Corps to manage multiple use 

projects.” Defs.’ Cross-Mot., ECF No. 95 at 15 n.2.
294 

14-16. Instead, the Court agrees with Defendants that the Master 

Manual “represents the culmination of the Corps’ detailed study 

and in-depth decision making process” regarding “a technical 

judgment within its expertise[,]” Defs.’ Reply, ECF No. 102 at 

15; and “[w]hen examining this kind of scientific determination, 

as opposed to simple findings of fact,” the Court must be “at 

its most deferential[,]” Balt. Gas, 462 U.S. at 103. 

V. Conclusion 

For the foregoing reasons, the Court DENIES the Alabama 

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

DENIES Intervenor-Plaintiffs’ Joint Motion for Summary Judgment, 

ECF No. 85; GRANTS Defendants’ Cross-Motion for Summary 

Judgment, ECF No. 96; GRANTS Intervenor-Defendants’ Joint CrossMotion for Summary Judgment, ECF No. 98; and DENIES IntervenorDefendants’ Supplemental Motion for Summary Judgment Based on 

the Preclusive Effect of an Intervening Judgment, ECF No. 129. 

An appropriate Order accompanies this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 November 9, 2023