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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Central Arizona Water Conservation 

District, 

Plaintiff, 

v. 

United States Army Corps of Engineers, 

Defendant. 

No. CV-18-00724-PHX-DLR 

ORDER 

 Before the Court is Plaintiff Central Arizona Water Conservation District’s 

(“District”) motion for a temporary restraining order (TRO). (Doc. 7.) The motion is 

fully briefed (Doc. 17) and the Court heard oral argument on March 9, 2018. At the 

hearing, the Court denied the District’s motion and informed the parties that this written 

order would follow. 

I. Background 

The Alamo Dam (“Dam”) is owned, operated, and maintained by Defendant 

United States Army Corps of Engineers (“Corps”). The Dam is located between Alamo 

Lake and the Bill Williams River. On March 2, 2018, the Corps issued an Environmental 

Assessment (EA) and a Finding of No Significant Impact (FONSI) for the Alamo Dam 

Flushing Release. The release, which is the first step in the Corps’ efforts to conduct 

long overdue maintenance on the Dam, is intended to remove accumulated sediment from 

the Dam and lower the water elevation in Lake Alamo so as to increase diver safety. The 
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proposed release is scheduled to last 19 days, starting at 8:00 a.m. on March 12, 2018. 

 The District owns and operates a water intake and pumping plant in Lake Havasu, 

adjacent to the mouth of the Bill Williams River, approximately 39 miles downstream 

from the Dam. Concerned that the Corps failed to take into account the environmental 

impact of its release, specifically increased downstream turbidity, the District filed this 

lawsuit on March 6, 2018, alleging violations of the National Environmental Policy Act 

(NEPA).1

 Concurrent with the complaint, the District filed the motion at issue, which 

requests that the Court temporarily enjoin the Corps from initiating the scheduled release. 

II. Legal Standard 

 The standard for issuing a TRO is identical to the standard for issuing a 

preliminary injunction. Whitman v. Hawaiian Tug & Barge Corp./Young Bros., Ltd. 

Salaried Pension Plan, 27 F. Supp. 2d 1225, 1228 (D. Haw. 1998). A plaintiff seeking a 

TRO must establish that he is likely to succeed on the merits and to suffer irreparable 

harm in the absence of preliminary relief, that the balance of equities tips in his favor, and 

that an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 

U.S. 7, 20 (2008); Am. Trucking Ass’n, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 

2009). These elements are balanced on a sliding scale, whereby a stronger showing of 

one element may offset a weaker showing of another. See Alliance for the Wild Rockies 

v. Cottrell, 632 F. 3d 1127, 1131, 1134-35 (9th Cir. 2011). The sliding-scale approach, 

however, does not relieve the movant of the burden to satisfy all four prongs for the 

issuance of a TRO. Id. at 1135. Instead, “‘serious questions going to the merits’ and a 

balance of hardships that tips sharply towards the plaintiff can support issuance of a 

[TRO], so long as the plaintiff also shows that there is a likelihood of irreparable injury 

and that the [TRO] is in the public interest.” Id. at 1135. The movant bears the burden of 

proof on each element of the test. Envtl. Council of Sacramento v. Slater, 184 F. Supp. 

 

1

 Turbidity is the cloudiness or haziness of water and is a key test of water quality. The metric for measuring turbidity levels is called nephelometric turbidity units (NTUs). According to the District, turbidity levels between 20 and 50 NTUs can require it to shut down its pumping plant. (Doc. 7 at 24.) 
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2d 1016, 1027 (E.D. Cal. 2000). 

III. Discussion 

 A. Likelihood of Success on the Merits 

 The purpose of NEPA is “to establish procedural mechanisms that compel 

agencies, such as the Corps, to take seriously the potential environmental consequences 

of a proposed action. [Courts] have termed this crucial evaluation a ‘hard look.’” Ocean 

Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846, 864 (9th Cir. 2005) (citation 

omitted). Under NEPA, a federal agency is required to prepare, “to the fullest extent 

possible,” an environmental impact statement for “every . . . major Federal actio[n] 

significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). 

An agency, however, is not required to prepare a full Environmental Impact Statement 

(EIS) if it determines, based on the EA, that the proposed action will not have a 

significant impact on the environment. 40 C.F.R. §§ 1508.9(a), 1508.13. 

 Plaintiff’s primary contention is that the Corps’ failure to conduct an EIS was a 

result of its arbitrary and capricious decision to limit the project area in the EA to the 

mouth of the Bill Williams River and to not consider the effects of the release on Lake 

Havasu. Specifically, the District contends that the Corps erred in its position that it need 

not conduct a new EIS with respect to the Lake Havasu area because its effects “have 

been previously evaluated in the 1999 EIS.” (Doc. 7-4 at 10.) The District challenges 

the accuracy of this position and asserts that the proposed agency action is unlawful 

because the Corps’ failed to consider its foreseeable effects. (Doc. 7 at 15-16.) 

 In support of its contention, the District cites to the 1999 EIS, which states in 

relevant part, 

Larger discharges into the Bill Williams River would result in 

substantial benefits to downstream riparian vegetation, while increasing turbidity and sedimentation within the river. Since 

these releases would be generally short term in nature and would mimic the natural conditions in the river before 

construction of Alamo Dam, this impact is not considered 

(Doc. 7-9 at 4.) The District argues the Corps’ reliance on the 1999 EIS is misplaced 
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because the 1999 EIS did not expressly discuss the Lake Havasu area. In response, the 

Corps contends that Lake Havasu is included in the term “downstream” because it is 

located downstream from the Bill Williams River. (Doc. 17 at 18.) 

 Given the ambiguous language of the 1999 EIS, the District has raised some 

questions going to the merits of its underlying claim, though the Court is not confident 

that these questions are serious enough to support the issuance of a TRO. Regardless, 

however, the District’s motion for a TRO is denied because it has not demonstrated a 

likelihood of irreparable harm or that the balance of equities tips sharply in its favor. 

B. Irreparable Harm

 The District argues that the Corps’ planned release will significantly increase 

turbidity at the intake for its pumping plant, and that the increased turbidity will persist 

for a week or more. As a result, the District will face increased maintenance costs 

stemming from pumping water with elevated turbidity. Additionally, when the turbidity 

elevates beyond a certain threshold, the District will be forced to completely shut down 

its plant until the elevated turbidity abates. (Doc. 7 at 23-24.) 

 The District’s concern over elevated turbidity levels is too speculative to support 

the issuance of a TRO. In support of its claim, the District cites United States Geological 

Survey (USGS) studies that document water releases from the Dam in the spring of 2005, 

2006, and 2010. (Doc. 7-3 at 39, 45.) The 2005 release caused the District’s intake to 

experience turbidity levels exceeding 20 NTUs, which persisted for significant periods of 

time. The conditions of the 2005 release, however, were so unlike the conditions of the 

Corps’ current proposed release that it offers little comparative value. For example, the 

duration and velocity of the 2005 release far exceeded the Corps’ proposed release. The 

2005 release flowed at a velocity ranging from 6,000-7,300 cubic feet per second (cfs) for 

168 hours, whereas the Corps’ planned release peaks at 5,000 cfs for only 12 to 13 hours. 

Additionally, in 2005 the conditions between the Dam and Lake Havasu were not 

conducive to absorbing the water flow because of recent rainfall and earlier releases. 

These same conditions do not exist here. 
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 Instead, the 2006 and 2010 releases offer better evidence of the likely result of the 

Corps’ release. Much like the proposed release, the 2006 and 2010 releases confined 

their peak flow to a shorter duration.2

 Moreover, unlike the 2005 release, the conditions 

between the Dam and Lake Havasu in 2006 and 2010 were better suited to absorb the 

increased water flow. The result: the 2006 release did not cause excessive turbidity 

increases and, although the 2010 release did, the elevated turbidity levels abated to a safe 

level within a day or two.3

 For these reasons, the Court finds that the District’s 

allegations of harm are too speculative. 

C. Balance of the Equities 

When balancing the equities, the Court “must balance the competing claims of 

injury and must consider the effect on each party of the granting or withholding of the 

requested relief.” Winter, 555 U.S. at 24 (citation omitted). Here, the balance of equities 

tips in the Corps’ favor. 

 The Corps provided evidence that it would lose approximately $150,000 if the 

scheduled release is enjoined. Moreover, if the TRO were granted and later dissolved 

after a more thorough preliminary injunction hearing, the Corps likely would be required 

to traverse the administrative approval process anew. Finally, given that dam 

maintenance is already long overdue, further delays will perpetuate ongoing concerns 

about dam integrity. When weighing the Corps’ concrete harms with the speculative 

concerns of the District, the balance weighs in the Corps’ favor. Accordingly, 

// 

// 

// 

// 

// 

 

2

 In 2010, the peak flow was 3,000 cfs for 36 hours. 

3

 The USGS placed turbidity measuring stations throughout Lake Havasu. Station 

25 was located at the intake of the District’s pumping plant. The turbidity measurements discussed above correspond with those taken at station 25. 
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IT IS ORDERED that the District’s motion for a TRO (Doc. 7) is DENIED. 

Given that the Corps’ scheduled release is already underway, it appears likely that further 

proceedings are moot. The parties are therefore ordered to confer and, within 7 days of 

the date of this order, submit either a proposed preliminary injunction briefing and 

hearing schedule or a status report indicating how the parties wish to proceed. 

 Dated this 15th day of March, 2018. 

Douglas L. Rayes 

United States District Judge