Dubois v. Restore: ( 1996 )


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  • United States Court of Appeals
    United States Court of Appeals
    For the First Circuit
    For the First Circuit
    Nos.  96-1015
    96-1068
    ROLAND C. DUBOIS and RESTORE:  THE NORTH WOODS,
    Plaintiffs, Appellants,
    v.
    DEPARTMENT OF AGRICULTURE, UNITED STATES, ET AL.,
    and LOON MOUNTAIN RECREATION CORPORATION,
    Defendants, Appellees.
    ERRATA SHEET
    The opinion of this Court is amended as follows:
    Cover sheet:  Replace case number "96-1086" with "96-1068".
    United States Court Of Appeals
    United States Court Of Appeals
    For the First Circuit
    For the First Circuit
    Nos.  96-1015
    96-1068
    ROLAND C. DUBOIS and RESTORE:  THE NORTH WOODS,
    Plaintiffs, Appellants,
    v.
    UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,
    and LOON MOUNTAIN RECREATION CORPORATION,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW HAMPSHIRE
    [Hon. Paul J. Barbadoro, U.S. District Judge]
    Before
    Selya, Circuit Judge,
    Coffin and Bownes, Senior Circuit Judges.
    Roland C. Dubois pro se.
    Cindy Ellen Hill for appellant RESTORE:  The North Woods.
    Jeffrey  P. Kehne, Attorney, with whom Lois J. Schiffer, Assistant
    Attorney General, Sylvia Quast, John A. Bryson, Attorneys, Environment
    & Natural Resources Division, U.S. Department of Justice,  Washington,
    DC,  Paul  M.  Gagnon,  United  States  Attorney,  T.  David  Plourde,
    Assistant United States  Attorney, Concord, NH, Wendy  M. John, Stuart
    L.  Shelton,  Office  of  the  General  Counsel,  U.S.  Department  of
    Agriculture,  Washington, DC,  and Leslie M.  Auriemmo, Office  of the
    General Counsel,  U.S. Department of Agriculture,  Milwaukee, WI, were
    on  brief  for  appellees  U.S.  Department  of  Agriculture;   Daniel
    Glickman, Secretary, U.S. Department of Agriculture; Jack Ward Thomas,
    Chief, U.S. Forest Service; Robert Jacobs, Regional Forester,  Eastern
    Region, U.S. Forest Service; Donna Hepp, Forest Supervisor, White
    Mountain National Forest.
    James  L. Kruse with  whom Gallagher,  Callahan &  Gartrell, P.A.,
    were on brief for appellee Loon Mountain Recreation Corporation.
    December 19, 1996
    - 3 -
    BOWNES,  Senior  Circuit  Judge.    The  defendant-
    BOWNES,  Senior  Circuit  Judge.
    intervenor  Loon  Mountain   Recreation  Corporation   ("Loon
    Corp.") operates a ski resort  in the White Mountain National
    Forest in Lincoln,  New Hampshire.   In order  to expand  its
    skiing facilities, Loon Corp. sought and received a permit to
    do  so from  the  United States  Forest Service.1   Appellant
    Roland Dubois sued the  Forest Service alleging violations of
    the National  Environmental Policy Act ("NEPA"),  42 U.S.C.
    4321, et seq., the Clean Water Act ("CWA"), 33 U.S.C.   1251,
    et seq., the Administrative Procedure Act, 5 U.S.C.   501, et
    seq. ("APA"), and Executive Order 11,990, 
    42 Fed. Reg. 26,961
    (1977),  reprinted as  amended in  42 U.S.C.A.    4321  (West
    1994).    Appellant  RESTORE:  The  North  Woods  ("RESTORE")
    intervened  as a  plaintiff claiming  violations of  the same
    statutes, and appellee Loon  Corp. intervened as a defendant.
    Dubois and RESTORE (collectively referred to as "plaintiffs")
    and  the  Forest  Service  filed  cross-motions  for  summary
    judgment, and  Loon moved  to dismiss.    The district  court
    granted the Forest Service's  motion for summary judgment and
    denied  the other  motions.   We affirm  in part,  reverse in
    part, and remand.
    1.  The  Forest Service, its  parent organization, the United
    States Department  of Agriculture,  and their agents  will be
    collectively referred  to as "the  Forest Service" throughout
    this opinion.
    -4-
    I.   STATEMENT OF THE CASE
    I.   STATEMENT OF THE CASE
    A. Facts
    A. Facts
    The White  Mountain National Forest  ("WMNF") is  a
    public resource  managed by the United  States Forest Service
    for  a wide  range  of competing  public  uses and  purposes,
    including "outdoor recreation, range,  timber, watershed, . .
    .  wildlife and fish purposes,"  16 U.S.C.    528 (1994), and
    skiing,  16 U.S.C.   497(b) (1994).  Pursuant to the National
    Forest Management Act of 1976, the Forest Service makes long-
    term  plans to  coordinate  these competing  uses, 16  U.S.C.
    1604(e)(1)   (1994),  and  issues   "special  use"  permits
    authorizing private recreational  services on national forest
    land, 36  C.F.R.    251.50-.65 (1995).   The Forest Service's
    exercise of  its permitting authority is  legally constrained
    by environmental  considerations emanating, inter  alia, from
    NEPA, the CWA, and Executive Order 11,990.
    Loon Pond is located in the WMNF at an elevation of
    2,400 feet.  It has a  surface area of 19 acres, with shallow
    areas around the perimeter  and a central bowl 65  feet deep.
    It is unusual for  its relatively pristine nature.   There is
    virtually no human activity within  the land it drains except
    skiing  at the privately owned  Loon Mountain Ski  Area.  New
    Hampshire  Department  of  Environmental  Services  ("NHDES")
    regulations  classify  Loon  Pond  as a  Class  A  waterbody,
    protected  by  demanding  water  quality  standards  under  a
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    variety of criteria, see  N.H. Code Admin. R.  Env-Ws 432.03,
    and  as  an  Outstanding  Resource  Water ("ORW"),  protected
    against any  measurable long-term degradation  by the State's
    anti-degradation   rules,  see   
    id. 437
    .06;  40   C.F.R.
    131.12(a)(3) (1995).   It ranks in the  upper 95th percentile
    of all lakes and ponds in northern New England for low levels
    of  phosphorus, which  results  in limited  plant growth  and
    therefore  high  water clarity  and  higher  total biological
    production.  The pond supports a rich variety  of life in its
    ecosystem.    Loon Pond  also constitutes  a major  source of
    drinking water for the  town of Lincoln 1,600 feet  below it.
    A dam  across the outlet  of the Pond  regulates the  flow of
    water from the Pond to Lincoln's municipal reservoir.
    Loon Corp., defendant-intervenor  herein, owns  the
    Loon Mountain  Ski Area, which  has operated since  the 1960s
    not far from  Loon Pond.  Prior  to the permit  revision that
    gave rise to this  litigation, Loon Corp. held a  special use
    permit  to operate on  785 acres of  WMNF land.   That permit
    allowed Loon Corp. to  draw water ("drawdown") for snowmaking
    from Loon  Pond,  as well  as  from the  East Branch  of  the
    Pemigewasset  River ("East  Branch")  and  from nearby  Boyle
    Brook.  In order to use water from Loon Pond, Loon Corp. also
    needed authorization from  the Town of Lincoln  and the State
    of  New  Hampshire.    Beginning  in  1974,  Loon  Corp.  was
    authorized to pump snowmaking water from Loon Pond down to 18
    -6-
    inches below full level.2  A 1988 amendment to this agreement
    permitted drawdown below the  18-inch level on a case-by-case
    basis.   Combined uses by  Lincoln and Loon  Corp. during the
    period governed by these agreements typically caused four- to
    six-foot fluctuations in the level of Loon Pond.
    In  addition to being used as a source of water for
    snowmaking, Loon Pond has been the repository for disposal of
    water  after it  is  pumped through  the snowmaking  system.3
    This includes water that  originally came from Loon Pond,  as
    well  as water that originated in the East Branch or in Boyle
    Brook.   Approximately 250,000  gallons of East  Branch water
    have  been  transferred into  Loon  Pond  each year  in  this
    manner.    Obviously  the  water discharged  into  Loon  Pond
    contains at  least the same  pollutants that were  present in
    the  intake water.    Evidence in  the record  indicates that
    intake water  taken from  the East Branch  contains bacteria,
    other aquatic  organisms such as  Giardia lambia, phosphorus,
    turbidity and heat.   Evidence was also introduced in  court,
    but not available prior to the  issuance of the Environmental
    2.  The level of Loon Pond drops when Pond water  is used for
    snowmaking, because  the Pond  does not receive  much natural
    water through precipitation during the winter.
    3.  In  order for  Loon  Corp. to  make  snow, it  must  pump
    significantly more water through  the system than is actually
    made into snow.   Passing this extra water through  the pipes
    keeps them from freezing.  It also provides the pressure that
    forces the artificial snow out through snowmaking jets.
    -7-
    Impact Statement ("EIS"), that oil and grease were present in
    the discharge water, although their source was disputed.
    In 1986,  Loon Corp. applied to  the Forest Service
    for an amendment to its special use permit to allow expansion
    of  its facilities  within the  WMNF.   Pursuant to  NEPA, 42
    U.S.C.     4332, the  Service developed  a  draft EIS,  and a
    supplement  to the  draft.   Responding to  criticism  of the
    adequacy  of those  documents,  the Forest  Service issued  a
    revised draft  EIS ("RDEIS"), which was  published for public
    comment.  The RDEIS  set forth five alternatives to  meet the
    perceived demand for additional alpine skiing.  All five were
    located at the Loon Mountain site.4
    Many   individuals   and  groups,   including  both
    plaintiffs, filed comments pointing out various environmental
    problems with each  alternative that  involved expanding  the
    ski area.   One lengthy comment  from the U.S.  Environmental
    Protection Agency ("EPA") expressed  its concern that the use
    of  Loon Pond  for snowmaking  purposes would "use  Loon Pond
    like a cistern" instead of treating it "with care" because it
    is "acknowledged to be one of the rare high altitude ponds of
    its size  in the  White Mountains."   Joint  Appendix ("JA"),
    4.  The Forest  Service's ten-year plan for  the WMNF, issued
    in 1986, included  plans for  accommodating increased  demand
    for downhill skiing.   It determined that it would  meet this
    demand through  expansion of  existing ski areas  rather than
    through the creation  of new ones.   It did  not discuss  the
    possibility of  meeting the demand  through alternative sites
    outside the national forest.
    -8-
    vol. II, Response to Public Comment on RDEIS at  A-78.  Other
    commenters  suggested that  Loon Corp.  be required  to build
    artificial  water storage  ponds, in  order to  eliminate the
    problem  of depleting  Loon Pond  when withdrawing  water for
    snowmaking as  well as  the problem  of adding  pollutants to
    Loon Pond when discharging water into the Pond after use.
    During the EIS process, Ron Buso, a hydrologist for
    the  WMNF,  expressed  concern  to   another  Forest  Service
    hydrologist that the proposed drawdown of Loon Pond by twenty
    feet  was likely  to have a  severe impact  on the  Pond.  He
    explained that natural snowmelt in New Hampshire is extremely
    acidic  and  that, as  a result  of  the planned  drawdown, a
    substantial amount  of acidic  snowmelt would remain  in Loon
    Pond, increasing the  Pond's acidity  by a factor  of two  to
    three times  what it would  be without the  planned drawdown.
    Without  the drawdown, Loon Pond  would be relatively full in
    the spring, and much of the snowmelt  from surrounding higher
    elevations  would glide over the surface of the Pond and down
    the  mountain without  significantly mixing  with  other Loon
    Pond water.   According to  Buso and a  number of  scientists
    whose affidavits  were submitted  to the district  court, the
    increase in the  Pond's acidity due  to the planned  drawdown
    would change the chemistry of the Pond, cause toxic metals to
    -9-
    be released  from the sediment, and  kill naturally occurring
    organisms.
    Without addressing  the issues raised  in the  Buso
    memorandum or in  the comments suggesting  artificial storage
    ponds, the Forest Service prepared a Final EIS ("FEIS").  The
    FEIS added  a sixth alternative,  also on  the Loon  Mountain
    site.   The new  alternative provided  for expansion of  Loon
    Corp.'s  permit area by 581 acres and for the construction of
    one  new lift and approximately  70 acres of  new ski trails,
    changes designed  to accommodate 3,200  additional skiers per
    day (from  the current 5,800 per  day).   The  Forest Service
    deemed Alternative 6 as the preferred alternative.  Under it,
    Loon  Corp. would more than  double the amount  of water used
    for  snowmaking, from  67  million gallons  per  year to  138
    million gallons.   Seventeen million gallons  of the increase
    would be drawn from  the East Branch, and 54  million gallons
    from  Loon Pond.  In  addition, Loon Corp.  was authorized to
    draw the Pond down  for snowmaking by fifteen feet,  compared
    to the current eighteen  inches.  The Forest  Service assumed
    that the Town of Lincoln would need up  to an additional five
    feet  of Pond water, making  a total of  twenty feet that the
    Pond was  expected to be  drawn down  each year.   This would
    constitute approximately 63%  of the Pond's water.   In March
    1993, the Forest Service published a Record of Decision (ROD)
    adopting Alternative 6.
    -10-
    As  a  mitigation  measure  to  blunt  the  adverse
    environmental  impact  on  Loon  Pond,  the   Forest  Service
    required Loon Corp.  to pump  water from the  East Branch  to
    Loon Pond  in December and May  of each year if  the Pond was
    not otherwise full at those times.   In its FEIS, the  Forest
    Service  recognized  that the  East  Branch  is a  relatively
    unprotected  Class B  waterway under  New Hampshire  law, and
    that  transfer of East Branch water to Loon Pond, a protected
    Class A waterbody and  Outstanding Resource Water under state
    and federal  law, would  introduce pollutants into  the Pond.
    Accordingly, it  specified that this transfer  of East Branch
    water  could  not occur  if  it  exceeded certain  levels  of
    turbidity, bacteria, or oil and grease.  Neither the FEIS nor
    the  ROD  set  any limits,  however,  on  the  level of  non-
    bacterial organisms  such as Giardia lambia  or on pollutants
    such as  phosphorus that  may be  present in the  transferred
    water.  Nor  did the  FEIS indicate an  alternative means  of
    refilling Loon Pond -- with clean water -- if conditions were
    such  that the transfer of East Branch water would exceed the
    specified  levels.5   It did,  however,  provide a  series of
    restrictions and monitoring requirements for water levels and
    5.  As noted  supra, absent  some other method  of refilling,
    the Pond would be refilled by the melting of acidic snow.
    -11-
    water  quality,  including daily  testing of  the transferred
    water for turbidity, bacteria, and oil and grease.6
    Dubois and RESTORE appealed the ROD to the Regional
    Forester and, thereafter, to the Chief of the Forest Service.
    These appeals were  denied.   On March 16,  1994, the  Forest
    Service  issued   a  special   use  permit  to   Loon  Corp.,
    implementing the decision described in the ROD.
    B. Proceedings Below
    B. Proceedings Below
    Plaintiff  Dubois filed a  complaint in  the United
    States  District   Court  for  the   District  of  Columbia,7
    challenging   the  Forest  Service's  approval  of  the  Loon
    Mountain  expansion  project.    He  made  three  arguments.8
    First, he argued that the Forest Service actions violated the
    CWA  because they  would lead  to violations  of state  water
    quality  standards which,  he  asserted, have  the effect  of
    federal law because  they were approved  by the federal  EPA.
    Second, he argued that the Forest Service  violated both NEPA
    6.  In  response  to  an  earlier  draft  EIS,  the  EPA  had
    expressed the  following concern:    "While monitoring  plans
    have  merit, they should not be considered a substitute for a
    thorough evaluation  of a  project and its  potential impacts
    prior  to action  approval."   JA, vol.  I, at  97; see  also
    Massachusetts  v. Watt, 
    716 F.2d 946
    , 951-52 (1st Cir. 1983)
    (NEPA "requires  an EIS according  to its terms,"  before the
    agency becomes "committed to  [a] previously chosen course of
    action").
    7.  The  case  was later  transferred  to  the United  States
    District Court for the District of New Hampshire.
    8.  Plaintiffs  made  other  arguments  below,  but  have not
    pursued them on appeal.
    -12-
    and   Executive   Order  11,990   by   failing   to  consider
    alternatives to the use  of Loon Pond and failing  to develop
    adequate mitigation  measures.   Finally, he argued  that the
    Forest Service violated the CWA, 33 U.S.C.   1311, by failing
    to obtain a National  Pollutant Discharge Elimination  System
    ("NPDES")  permit  before  approving Loon  Corp.'s  expansion
    plans, which  entailed removing  water from the  East Branch,
    using it to pressurize and prevent freezing in its snowmaking
    equipment,  and then  discharging  the used  water into  Loon
    Pond.  According to  Dubois, an NPDES permit was  required in
    order  for Loon Corp. to discharge pollutants into Loon Pond,
    including   the  discharge   from  Loon   Corp.'s  snowmaking
    equipment.     Plaintiff RESTORE,  a membership organization,
    intervened on behalf of its members to challenge the project.
    RESTORE first  reiterated Dubois' claim that  an NPDES permit
    was  required.  In addition,  RESTORE claimed that the Forest
    Service violated  NEPA by  failing to prepare  a Supplemental
    EIS  after  it  developed  Alternative  6  as  the  preferred
    alternative.  According to RESTORE, this new alternative, not
    specifically mentioned in the  previously published draft EIS
    or  RDEIS,  contained  substantial changes  to  the  proposed
    action  that  are relevant  to environmental  concerns, which
    required   a  supplemental  EIS   under  NEPA   and  relevant
    implementing regulations.   Finally, RESTORE  claimed that  a
    supplemental  EIS was  required because the  Forest Service's
    -13-
    Final  EIS  failed  to  "rigorously explore  and  objectively
    evaluate all  reasonable  alternatives" that  are capable  of
    meeting  the stated goals of  the project, as  required by 40
    C.F.R.   1502.14 (1995).  According to RESTORE, the  asserted
    goal of meeting skier demand could have been met by expanding
    ski  areas other than Loon, in  particular, ski areas located
    outside the White Mountain National Forest.
    The parties cross-moved for summary judgment.  Loon
    Corp.  intervened, and  moved to  dismiss on the  ground that
    both plaintiffs  lacked standing.  The  district court denied
    Loon Corp.'s motion to  dismiss, granted summary judgment for
    the Forest  Service, and denied the plaintiffs' cross-motions
    for summary judgment.
    II.   DUBOIS' STANDING9
    II.   DUBOIS' STANDING
    The ingredients of  standing are imprecise and  not
    easily  susceptible to  concrete  definitions  or  mechanical
    applications.  Allen v. Wright, 
    468 U.S. 737
    , 751 (1984).  In
    order to have standing to sue, a plaintiff must have "such  a
    personal stake in the outcome of the controversy as to assure
    that concrete adverseness which  sharpens the presentation of
    issues  upon   which  the   court  so  largely   depends  for
    illumination of difficult .  . . questions."  Baker  v. Carr,
    
    369 U.S. 186
    , 204 (1962).
    9.  Defendants  have abandoned  their challenge  to RESTORE's
    standing.
    -14-
    Standing consists of  both a constitutional  aspect
    and  a  prudential  aspect.    The  constitutional  dimension
    derives from the requirement that federal courts can act only
    upon  a justiciable  case or controversy.   U.S.  Const. art.
    III.  If a party lacks Article III standing to bring a matter
    before the court, the court lacks subject matter jurisdiction
    to decide the merits of the underlying case.  FW/PBS, Inc. v.
    City of Dallas, 
    493 U.S. 215
    , 231 (1990).
    To   satisfy   the   constitutional  component   of
    standing, a plaintiff must have suffered an "injury in fact,"
    i.e.,  an invasion of a legally protected interest.  Lujan v.
    Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992).  That injury
    must be "concrete and  particularized"; the latter term means
    the injury must be personal  to the plaintiff.  
    Id.
     at  560 &
    n.1.   It may  be  shared by  many others,  United States  v.
    Students  Challenging  Regulatory Agency  Procedures (SCRAP),
    
    412 U.S. 669
    ,  687-88 (1973),  but  may  not  be common  to
    everyone, see Warth v. Seldin, 
    422 U.S. 490
    , 499 (1975).  The
    injury must also be  "actual or imminent, not  conjectural or
    hypothetical,"  Defenders  of  Wildlife,   
    504 U.S. at 560
    (quotation omitted), and it  must be "distinct and palpable,"
    Warth,  
    422 U.S. at 501
    .   The  latter requirement  may  be
    satisfied by environmental or aesthetic injuries.  See SCRAP,
    
    412 U.S. at 686
    ; Sierra Club  v. Morton, 
    405 U.S. 727
    , 734
    (1972).   The  injury need  not be  "significant";  a "small"
    -15-
    stake in the outcome will suffice, if it is "direct."  SCRAP,
    
    412 U.S. at
    689 n.14.  In addition, the injury must be fairly
    traceable to  the defendant's allegedly  unlawful conduct and
    likely to be redressed by the requested relief.10   Defenders
    of Wildlife, 
    504 U.S. at 560-61
    .
    The doctrine  of standing also  includes prudential
    concerns  relating   to  the   proper  exercise   of  federal
    jurisdiction.   Among these concerns is  the requirement that
    "a plaintiff's  complaint fall  within the zone  of interests
    protected  by the law invoked."  Allen,  
    468 U.S. at 751
    .  In
    addition, as a general rule, a plaintiff "must assert his own
    legal  rights and  interests, and  cannot rest  his claim  to
    relief on the  legal rights or  interests of third  parties."
    Warth,  
    422 U.S. at 499
    .    A   membership  organization
    constitutes an exception to this general rule: it  may assert
    the claims of its members, provided  that one or more of  its
    members   would  satisfy  the   individual  requirements  for
    10.  Violations of procedural  rights, such as  those created
    by NEPA and CWA, receive "special" treatment when it comes to
    standing.   "The person who  has been  accorded a  procedural
    right to protect his concrete interests can assert that right
    without meeting  all the normal standards  for redressability
    and  immediacy."  Defenders of Wildlife, 
    504 U.S. at
    572 n.7.
    As  an example, the  Supreme Court points  to "the procedural
    requirement  for an  environmental impact statement  before a
    federal facility is constructed next door" to the plaintiffs.
    
    Id. at 572
    .   The contrasting example -- where  the disregard
    of procedural requirements  would be held  not to impair  the
    plaintiffs' concrete  interests -- is "persons  who live (and
    propose  to live) at the  other end of  the country" from the
    project.  
    Id.
     at 572 n.7.
    -16-
    standing in  his or her own  right.11  See UAW  v. Brock, 
    477 U.S. 274
    , 281-82 (1986).
    The  burden  falls  on  the  plaintiff  "clearly to
    allege  facts  demonstrating that  he  is a  proper  party to
    invoke" federal jurisdiction.   Warth, 
    422 U.S. at 518
    .   The
    plaintiff  must   "set  forth  reasonably   definite  factual
    allegations,  either  direct or  inferential,  regarding each
    material element needed to  sustain standing."  United States
    v.  AVX Corp., 
    962 F.2d 108
    , 115  (1st Cir.  1992).  "[E]ach
    element must be supported in the same way as any other matter
    on  which the plaintiff bears the burden of proof, i.e., with
    the manner and degree of  evidence required at the successive
    stages of  the litigation."  Defenders of  Wildlife, 
    504 U.S. at 561
    .  At the  pleading stage, "general factual allegations
    of injury resulting from the defendant's conduct may suffice,
    for  on  a motion  to  dismiss  we  'presum[e]  that  general
    allegations embrace  those specific facts  that are necessary
    to  support the  claim.'"   
    Id.
      (quoting  Lujan v.  National
    Wildlife Federation, 
    497 U.S. 871
    , 889 (1990)).
    The district  court denied  Loon Corp.'s  motion to
    dismiss Dubois'  claims on  standing grounds, relying  on our
    11.  An association must meet two other requirements in order
    to  have standing to sue:  the  interests that the suit seeks
    to  vindicate must be germane to the objectives for which the
    organization was  formed; and neither the  claim asserted nor
    the relief  requested requires the personal  participation of
    affected  individuals.   UAW  v.  Brock,  
    477 U.S. 274
    ,  282
    (1986).
    -17-
    precedent  in  Washington Legal  Found. v.  Massachusetts Bar
    Found., 
    993 F.2d 962
    , 971-72 (1st Cir. 1993).  In that case,
    we held that the court need not determine the standing of all
    plaintiffs if at least one plaintiff has standing to maintain
    each  claim.   The  district  court  found that  RESTORE  had
    standing to bring all the claims at  issue in this case, and,
    therefore,  that  the court  could  reach the  merits  of all
    claims without  first addressing Dubois' standing.   We agree
    that RESTORE would have  standing to raise, on behalf  of its
    members, all the issues  in dispute in this litigation.   But
    the  district  court  erred   in  concluding  that  it  could
    therefore  reach  the  merits  of  all  claims,  because  the
    district  court's premise  was incorrect:   RESTORE  did not,
    even at the  district court level, raise  the issues relating
    to  Executive  Order  11,990  and  the  state  water  quality
    standards, which only Dubois is pursuing here.  The situation
    is not, therefore, analogous to Washington Legal  Foundation;
    if  Dubois has  no  standing, we  cannot  decide issues  that
    RESTORE has never raised.
    We  find, however,  that  Dubois  does satisfy  all
    requirements for standing to litigate  the claims he seeks to
    -18-
    pursue  on appeal.   His  second amended  complaint12 alleged
    that
    [his] principal  residence from 1959-1977
    was in Lincoln, New  Hampshire.  [He] has
    returned  to  the Lincoln  area  at least
    once per year  -- and occasionally up  to
    twelve or  more times  per year --  since
    1977.    During  these  trips,  [he]  has
    visited relatives  and friends, collected
    botanical    samples    for    scientific
    analysis,  and  engaged  in  recreational
    activities in and around the WMNF and the
    Loon  Mountain  Ski  Area.    Plaintiff's
    interest     in     the    environmental,
    recreational and aesthetic quality of the
    WMNF  are and will  be adversely affected
    by the Defendants' actions  challenged in
    this Complaint.
    Second Amended Complaint,    5.  The last sentence  is rather
    conclusory, but  the  entire complaint,  taken together  with
    inferences  reasonably drawn  from its  allegations, contains
    sufficient  "reasonably  definite factual  allegations," AVX,
    
    962 F.2d at 115
    , to survive a motion to dismiss.
    "We  are mindful  that, under  the notice  pleading
    requirements  of the  federal rules,  the allegations  of the
    12.  Dubois moved for leave to file a third amended complaint
    and a reply brief.  The district court failed to rule on this
    motion until after the court's jurisdiction was terminated by
    the docketing of  RESTORE's appeal.  Dubois asked  this court
    to clarify the status of this motion in light of the district
    court's  order granting  Dubois'  post-judgment motion  under
    Fed. R. Civ. P. 60(a) for clarification;  the court indicated
    that it had intended to allow the third amended complaint and
    the  reply brief,  but  did not,  due  to clerical  mistakes.
    Docket Entry 79-b.  We need not decide Dubois' motion because
    of  our decision on the  merits.  Resolving  the motion would
    not, in any event, affect our decision on the standing issue,
    because   the  third  amended   complaint  contains  language
    identical to the second regarding standing.
    -19-
    complaint should be construed favorably to the complainant on
    a motion to dismiss."  Papex Int'l Brokers v. Chase Manhattan
    Bank, 
    821 F.2d 883
    , 886 (1st  Cir. 1987).  Moreover, as noted
    supra,  at the  pleading  stage, "we  presum[e] that  general
    allegations embrace those specific  facts that are  necessary
    to  support the claim."   Defenders of Wildlife,  
    504 U.S. at 561
     (quotation  omitted).   Further, the record  reveals that
    the district court had adduced  additional information during
    its consideration of the  standing issue.  See AVX,  
    962 F.2d at
    114  n.6 (appellate court considering  standing issue went
    beyond  the  complaint "in  a  record-wide  search for  facts
    supporting" the  claim of  standing).  Dubois'  local counsel
    represented  to the  court  that Dubois  continues to  return
    "regularly,"  at  least annually,  to  his  parents' home  in
    Lincoln; that he drinks  the water from the "Town  of Lincoln
    water  supply that comes down from Loon Pond"; that he "walks
    those  mountains" in the  WMNF.  Transcript  of Hearing, June
    14, 1995, at 7-9.   The court expressed its  understanding of
    Dubois' standing allegations as follows:
    Mr.   Dubois'  injury   in  fact   is  he
    periodically comes back  to the area  and
    enjoys  its natural  beauty  and will  be
    injured  by not being  able to experience
    its  natural beauty  if  the  project  is
    allowed  to go forward? . . .  It's not a
    case  of someone who's  simply saying I'm
    an environmentalist and I want to protect
    the    environment,    which    everybody
    presumably  has  an  interest  in  doing.
    It's somebody who  says I'm back  there a
    lot,  I drink  the  water a  lot, I'm  up
    -20-
    there  in the  woods a  lot, and  this is
    going to hurt me.
    Id. at 8, 12.
    We think it useful to  compare the facts here  with
    those  alleged in  AVX,  
    962 F.2d at 116-17
    .   In  AVX, the
    plaintiff organization had simply made conclusory allegations
    that its "members have been and will continue to be harmed by
    the releases  that [were] the subject  of [that] litigation";
    its  "averment  [had]  no   substance:  the  members   [were]
    unidentified; their  places of  abode [were] not  stated; the
    extent and  frequency of any  individual use of  the affected
    resources [was] left  open to surmise."   
    Id.
      This court  in
    AVX pointed to  the allegations  in SCRAP, 
    412 U.S. 669
    ,  as
    attenuated  as they  were, in  which "there was  a geographic
    nexus;  all the  association's members  resided in  a single,
    defined  metropolitan   area,   directly  affected   by   the
    challenged action. . . .  In SCRAP, unlike [AVX], the claimed
    environmental injury  was tied to the  particular pursuits of
    particular persons."  AVX, 
    962 F.2d at 117
    .
    The instant case, in  contrast with AVX, presents a
    particular  person, whose  family  home is  located  squarely
    within the geographical  area allegedly directly  affected by
    the  proposed project,  who  visits the  area regularly,  who
    drinks  the   water  which  will  allegedly   be  tainted  by
    pollutants,  and  who  will  allegedly  be  deprived  of  his
    environmental,  aesthetic and  scientific  interests in  ways
    -21-
    directly  tied to the project  he challenges.   These are the
    types of interests which  the Supreme Court has held  -- when
    asserted  by an organization such as RESTORE on behalf of its
    members   --  satisfy  the  constitutional  requirements  for
    standing.   See  SCRAP, 
    412 U.S. at 685-87
    ; Sierra  Club v.
    Morton, 
    405 U.S. at
    734-35 & n.8;  see also supra, note  10.
    There  is certainly no reason  why an organization would have
    standing to raise these interests  on behalf of its  members,
    but an individual such  as Dubois would not have  standing to
    raise the same interests on his own behalf.
    Thus, with the  degree of specificity  necessary at
    the pleading stage, Dubois has articulated -- directly and by
    inference  -- how  his personal  interests will  be adversely
    affected  by the  Loon  expansion proposal.13   Finally,  his
    injuries  are "likely to be  redressed" by the  relief he has
    requested  in  the  complaint:   inter  alia,  an  injunction
    against the project's proceeding.  See Defenders of Wildlife,
    
    504 U.S. at 560-61
    .
    13.  Our analysis is not altered by the fact that three of
    the parties filed cross-motions for summary judgment.  The
    standing issue was raised only in Loon Corp.'s motion to
    dismiss.  Where, as here, the defendants have not
    contradicted the factual allegations concerning standing that
    we deem adequate at the motion to dismiss stage, we will not
    subject those allegations to a summary judgment level of
    scrutiny in the absence of a motion for summary judgment on
    the issue.  In these circumstances, "[t]he standing analysis
    is no different, as a result of the case having proceeded to
    summary judgment, than it would have been at the pleading
    stage."  Simon v. Eastern Ky. Welfare Rights Org., 
    426 U.S. 26
    , 37 n.15 (1976).
    -22-
    As  for the prudential standing requirements, there
    is no dispute that the violations and injuries alleged in the
    complaint  are the sort that NEPA, the CWA, and the Executive
    Order were "specifically designed" to protect.  See Lujan  v.
    National Wildlife Federation, 
    497 U.S. at 886
    .  Moreover, our
    discussion above related only to Dubois' own legal rights and
    interests, not those  of third parties.  Accordingly, we find
    that Dubois has standing  to litigate the claims he  seeks to
    pursue on appeal.
    III.   STANDARD OF REVIEW
    III.   STANDARD OF REVIEW
    The   district   court's  order   granting  summary
    judgment  is subject to de  novo review.   Borschow Hosp. and
    Medical Supplies v. Cesar Castillo, Inc., 
    96 F.3d 10
    , 14 (1st
    Cir. 1996);  Lawrence v. Northrop Corp., 
    980 F.2d 66
    , 68 (1st
    Cir. 1992).  We independently weigh the merits of the summary
    judgment motions  "without deference to the  reasoning of the
    district court."   Hughes v.  Boston Mut. Life  Ins. Co.,  
    26 F.3d 264
    , 268 (1st Cir. 1994).  Accordingly, we must reverse
    the court's grant  of summary  judgment unless  "there is  no
    genuine issue  as to any material  fact and . .  . the moving
    party is entitled to a judgment as a matter of law."  Fed. R.
    Civ. P. 56(c).   In analyzing the issues, we  will review the
    record in  the light most  favorable to the  non-movants, and
    make all inferences in their favor.  Borschow, 
    96 F.3d at 14
    ;
    -23-
    Petitti v. New England Tel. & Tel. Co., 
    909 F.2d 28
    , 31 (1st
    Cir. 1990).
    It is  well established that a  reviewing court may
    not  set aside  administrative decisions "simply  because the
    court is unhappy with  the result reached."  Baltimore  Gas &
    Elec.  Co.   v.  Natural  Resources  Defense   Council,  Inc.
    ("NRDC"),  
    462 U.S. 87
    ,  97 (1983)  (quoting Vermont  Yankee
    Nuclear Power Corp. v.  NRDC, 
    435 U.S. 519
    , 558 (1978)).  The
    fundamental policy  questions are "appropriately  resolved in
    Congress  and  in  the  state legislatures";  they  "are  not
    subject  to reexamination  in  the federal  courts under  the
    guise  of  judicial  review  of agency  action."14    Vermont
    Yankee,  
    435 U.S. at 558
    .    Courts  may  set aside  agency
    decisions "only  for  substantial procedural  or  substantive
    reasons as mandated by statute."  
    Id.
    The applicable statutes here  are NEPA and the CWA.
    NEPA  requires  that the  agency take  a  "hard look"  at the
    environmental consequences of a project before taking a major
    action.  Baltimore  Gas, 
    462 U.S. at 97
      (quoting Kleppe  v.
    Sierra Club,  
    427 U.S. 390
    , 410 n.21 (1976)).  It is the role
    of the courts on  judicial review to ensure "that  this legal
    14.  For example,  in Vermont  Yankee, Congress had  made the
    policy decision that the nation would try nuclear  power; the
    Court refused  to second-guess that decision  in reviewing an
    EIS pursuant to NEPA.  
    435 U.S. at 557-58
    .
    -24-
    duty  is  fulfilled."    Foundation  on  Economic  Trends  v.
    Heckler, 
    756 F.2d 143
    , 151 (D.C. Cir. 1985).
    Congress,  in enacting  NEPA,  meant "to  insure  a
    fully   informed  and  well-considered  decision."    Vermont
    Yankee,  
    435 U.S. at 558
    .    But  NEPA  "does  not  mandate
    particular  results";  it  "simply prescribes  the  necessary
    process."   Robertson v. Methow Valley  Citizens Council, 
    490 U.S. 332
    , 350 (1989).  "If the  adverse environmental effects
    of   the  proposed  action   are  adequately  identified  and
    evaluated,  the  agency  is  not  constrained  by  NEPA  from
    deciding that other values outweigh the environmental costs."
    Id.; see  also Baltimore Gas,  
    462 U.S. at 97
    .   Thus, "[t]he
    role of  the courts 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."   Baltimore  Gas,  
    462 U.S. at 97-98
      (emphasis
    added).
    Like  NEPA, the  CWA  does not  articulate its  own
    standard of review; therefore the appropriate scope of review
    for both NEPA claims and CWA claims is the standard set forth
    in the APA.  5 U.S.C.   706(2)(A) (1994); see Town of Norfolk
    v. U.S. Army  Corps of  Engineers, 
    968 F.2d 1438
    , 1445  (1st
    Cir. 1992);  Oregon Natural Resources Council  v. U.S. Forest
    Service, 
    834 F.2d 842
    , 851-52 (9th Cir. 1987).
    -25-
    Under the APA, "[t]he  reviewing court shall .  . .
    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."   5
    U.S.C.   706(2)(A).   Errors of law are reviewed by the court
    de novo.  5  U.S.C.   706 (1994) ("the reviewing  court shall
    decide all  relevant questions  of law");  Howard v. FAA,  
    17 F.3d 1213
    , 1215 (9th Cir. 1994).
    On the  other hand, the  task of a  court reviewing
    agency  action under  the  APA's "arbitrary  and  capricious"
    standard, 5  U.S.C.    706(2), is "to  determine whether  the
    [agency] has  considered the relevant factors and articulated
    a rational connection between the facts found and the  choice
    made."   Baltimore  Gas,  
    462 U.S. at 105
     (emphasis  added)
    (citations omitted);  see also  Motor Vehicle Mfrs.  Ass'n v.
    State  Farm  Mut. Auto.  Ins. Co.,  
    463 U.S. 29
    ,  43 (1983);
    Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 
    419 U.S. 281
    ,  285-86 (1974); Citizens to  Preserve Overton Park,
    Inc. v. Volpe, 
    401 U.S. 402
    , 415-17 (1971).   If the  agency
    decision was based on a consideration of the relevant factors
    and  there has not been "a clear error of judgment," then the
    agency  decision was  not arbitrary  or capricious.   Overton
    Park,  
    401 U.S. at 416
    ;  Marsh v.  Oregon Natural  Resources
    Council, 
    490 U.S. 360
    , 378 (1989).
    -26-
    In State Farm,  the Supreme  Court offered  several
    examples   of  circumstances  in   which  an   agency  action
    "normally"  would  be  considered arbitrary  and  capricious:
    situations  where "the  agency  has relied  on factors  which
    Congress has not intended it  to consider, entirely failed to
    consider  an  important aspect  of  the  problem, offered  an
    explanation  for  its  decision  that  runs  counter  to  the
    evidence before  the  agency, or  is so  implausible that  it
    could not be ascribed to a difference in  view or the product
    of agency expertise."  State Farm, 
    463 U.S. at 43
    .  These are
    merely "examples," Puerto  Rico Sun  Oil Co. v.  U.S. EPA,  
    8 F.3d 73
    , 77 (1st Cir. 1993); others could be recited as well.
    Whether  reviewing an  EIS  or a  rulemaking proceeding,  the
    "reviewing court  should not  attempt itself  to make  up for
    such deficiencies; we may not supply a reasoned basis for the
    agency's action that the agency itself has not given."  State
    Farm, 
    463 U.S. at
    43 (citing SEC v. Chenery Corp.,  
    332 U.S. 194
    , 196 (1947)).
    "While  this is  a highly  deferential  standard of
    review,  it  is not  a  rubber  stamp."   Citizens  Awareness
    Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 
    59 F.3d 284
    ,
    290 (1st  Cir. 1995).    Although "the  ultimate standard  of
    review  is  a  narrow  one,"   the  court  must  undertake  a
    "thorough,  probing, in-depth  review"  and a  "searching and
    -27-
    careful" inquiry into the  record.15  Overton Park,  
    401 U.S. at 415-16
    .   In order for  an agency decision  to pass muster
    under  the   APA's  "arbitrary  and   capricious"  test,  the
    reviewing court  must  determine  that  the  decision  "makes
    sense."    Puerto Rico  Sun  Oil,  
    8 F.3d at 77
    .   Only  by
    "carefully reviewing the record  and satisfying [itself] that
    the agency  has  made  a reasoned  decision"  can  the  court
    "ensure  that  agency decisions  are  founded  on a  reasoned
    evaluation  of the relevant factors."  Marsh, 
    490 U.S. at 378
    (internal quotation omitted).
    IV.   THE NEPA/EIS ISSUE
    IV.   THE NEPA/EIS ISSUE
    The  National Environmental  Policy Act  (NEPA), 42
    U.S.C.    4321 et seq., declares a  broad national commitment
    to   protecting   and   promoting    environmental   quality.
    Robertson, 
    490 U.S. at 348
    ; 42  U.S.C.   4331  (1994).   The
    primary mechanism for implementing NEPA is  the Environmental
    Impact Statement (EIS).  42 U.S.C.   4332 (1994).  The EIS is
    an  "action-forcing" procedure,  designed  "[t]o ensure  that
    this  commitment is  infused  into the  ongoing programs  and
    actions of the  Federal Government."  Robertson, 490  U.S. at
    348 (quotation omitted).
    15.  We note that the two-step process articulated in Chevron
    U.S.A. v. NRDC, 
    467 U.S. 837
    , 842-43 (1984), does  not apply
    here, because we are not reviewing an agency's interpretation
    of the statute that it was directed to enforce.
    -28-
    NEPA requires that an agency considering any action
    that  would  have a  significant  impact  on the  environment
    prepare  an EIS.  The EIS must contain a "detailed statement"
    including, inter  alia,  the  environmental  impacts  of  the
    proposed  project,  and  all reasonable  alternatives  to the
    project.    42  U.S.C.     4332(C)  (emphasis  added).     We
    previously  emphasized  the   word  "detailed"  because   "it
    connotes the careful,  reasoned and fully explained  analysis
    which we think Congress  intended."  Silva v. Lynn,  
    482 F.2d 1282
    ,  1284 n.2 (1st Cir. 1973).  Thus, the EIS helps satisfy
    NEPA's "twin aims":  to ensure  that the agency takes a "hard
    look"  at the  environmental  consequences  of  its  proposed
    action,  and   to  make  information  on   the  environmental
    consequences available  to the  public, which may  then offer
    its insight to  assist the  agency's decision-making  through
    the  comment process.  See  Robertson, 
    490 U.S. at 350, 356
    ;
    Baltimore Gas, 
    462 U.S. at 97
    .   The EIS thus "helps  insure
    the integrity  of the process of decision," providing a basis
    for  comparing  the  environmental  problems  raised  by  the
    proposed  project  with  the  difficulties  involved  in  the
    alternatives.  Silva v. Lynn, 
    482 F.2d at 1285
    .
    A.  Consideration of Environmental Impacts
    A.  Consideration of Environmental Impacts
    In  its  EIS,  the  agency  must   "consider  every
    significant aspect of the  environmental impact of a proposed
    action,"  Baltimore  Gas, 
    462 U.S. at 97
     (quoting  Vermont
    -29-
    Yankee, 
    435 U.S. at 553
    ), and  "evaluate different courses of
    action,"  Kleppe, 
    427 U.S. at 410
    .  The  EIS's discussion of
    environmental  impacts  "forms  the scientific  and  analytic
    basis  for  the comparisons"  of  alternatives,  40 C.F.R.
    1502.16 (1995), which  are "the heart" of  the EIS, id.  at
    1502.14; see  Part IV(B), infra.   The discussion  of impacts
    must  include both  "direct and  indirect effects  (secondary
    impacts) of a proposed  project."  Sierra Club v.  Marsh, 
    976 F.2d 763
    , 767 (1st Cir.  1992); 40 C.F.R.   1502.16(b).   The
    agency need not speculate  about all conceivable impacts, but
    it  must  evaluate  the  reasonably  foreseeable  significant
    effects  of the proposed action.   Sierra Club  v. Marsh, 
    976 F.2d at 767
    .    In this  context, reasonable  foreseeability
    means that "the impact is sufficiently likely to occur that a
    person of  ordinary prudence would  take it  into account  in
    reaching  a decision."  
    Id.
      An environmental effect would be
    considered "too speculative" for inclusion  in the EIS if  it
    cannot  be  described at  the time  the  EIS is  drafted with
    sufficient specificity to make  its consideration useful to a
    reasonable  decision-maker.    
    Id. at 768
    .    Nevertheless,
    "[r]easonable  forecasting . . .  is . .  . implicit in NEPA,
    and we 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
    -30-
    inquiry.'"  Scientists' Inst. for Pub. Info. v. Atomic Energy
    Comm'n, 
    481 F.2d 1079
    , 1092 (D.C. Cir. 1973).
    Plaintiffs contended in the district court that the
    Forest Service failed to adequately assess the impact of Loon
    Corp.'s planned expansion on Loon  Pond.  Plaintiffs listed a
    number  of specific  areas  of concern.   The  district court
    found  the  Forest Service's  consideration  of environmental
    impacts to be adequate, and plaintiffs have not appealed this
    point.  Accordingly, we need not pursue this issue here.
    B.  Consideration of Alternatives
    B.  Consideration of Alternatives
    "[O]ne  important  ingredient  of  an  EIS  is  the
    discussion of  steps that  can be  taken to  mitigate adverse
    environmental consequences" of a proposed action.  Robertson,
    
    490 U.S. at 351
    .   As  one aspect  of evaluating  a proposed
    course of action under NEPA, the agency has a duty  "to study
    all  alternatives that appear  reasonable and appropriate for
    study . . .  , as well as significant  alternatives suggested
    by other agencies or  the public during the comment  period."
    Roosevelt Campobello Int'l Park  Comm'n v. United States EPA,
    
    684 F.2d 1041
    ,  1047 (1st  Cir. 1982)  (quotations omitted);
    Valley Citizens for a  Safe Env't v. Aldridge, 
    886 F.2d 458
    ,
    462 (1st Cir. 1989); City of Carmel-By-The-Sea v. U.S.  Dept.
    of Transp., 
    95 F.3d 892
    , 903 (9th Cir. 1996).
    As stated  in the Council  on Environmental Quality
    ("CEQ") regulations implementing  NEPA, the consideration  of
    -31-
    alternatives  is  "the  heart  of  the  environmental  impact
    statement."    40  C.F.R.     1502.14.    These  implementing
    regulations   are   entitled   to    substantial   deference.
    Robertson, 
    490 U.S. at
    355 (citing Andrus v. Sierra Club, 
    442 U.S. 347
    , 358 (1979)).  The regulations require that the EIS
    "[r]igorously explore and objectively evaluate all reasonable
    alternatives, and for alternatives which were eliminated from
    detailed study, briefly discuss  the reasons for their having
    been eliminated."  40 C.F.R.   1502.14(a).  It is "absolutely
    essential  to  the NEPA  process  that  the decisionmaker  be
    provided with a detailed and careful analysis of the relative
    environmental merits and demerits  of the proposed action and
    possible   alternatives,   a   requirement   that   we   have
    characterized  as   'the  linchpin   of  the   entire  impact
    statement.'"   NRDC  v. Callaway,  
    524 F.2d 79
    , 92  (2d Cir.
    1975)  (citation omitted);  see Silva  v. Lynn,  
    482 F.2d at 1285
    ;  All Indian Pueblo  Council v. United  States, 
    975 F.2d 1437
    ,  1444  (10th  Cir.   1992)  (holding  that  a  thorough
    discussion  of  the  alternatives  is  "imperative").    "The
    'existence of a viable  but unexamined alternative renders an
    environmental impact statement  inadequate.'"  Resources Ltd.
    v.  Robertson, 
    35 F.3d 1300
    , 1307  (9th Cir.  1993) (quoting
    Idaho Conservation League v. Mumma,  
    956 F.2d 1508
    , 1519 (9th
    Cir. 1992)); see Grazing Fields Farm v. Goldschmidt, 
    626 F.2d 1068
    , 1072 (1st  Cir. 1980) (Even the existence of supportive
    -32-
    studies and memoranda contained in  the administrative record
    but not incorporated in the EIS cannot "bring into compliance
    with NEPA an EIS that by itself is inadequate.").  Because of
    the  importance  of   NEPA's  procedural  and   informational
    aspects,  if  the  agency  fails to  properly  circulate  the
    required issues  for review  by interested parties,  then the
    EIS is insufficient  even if the agency's actual decision was
    informed and well-reasoned.  Grazing Fields Farm, 
    626 F.2d at 1072
    ;  see Massachusetts v. Watt, 
    716 F.2d 946
    , 951 (1st Cir.
    1983).
    C.   The Requisite Level of Detail
    C.   The Requisite Level of Detail
    One purpose  of the EIS requirement  is to "provide
    decisionmakers  with sufficiently detailed information to aid
    in determining whether to proceed with the action in light of
    its  environmental consequences."   Northwest  Resource Info.
    Ctr., Inc. v.  National Marine Fisheries Serv., 
    56 F.3d 1060
    ,
    1064 (9th Cir.  1995).   What level of  detail is  sufficient
    depends  on the  nature  and scope  of  the proposed  action.
    Valley  Citizens, 
    886 F.2d at 463
    ; Mumma, 
    956 F.2d at 1520
    .
    The discussion of environmental  effects of alternatives need
    not  be  exhaustive.    "[W]hat is  required  is  information
    sufficient to permit a reasoned choice of alternatives as far
    as  environmental aspects are  concerned," All  Indian Pueblo
    Council, 
    975 F.2d at 1444
     (quoting NRDC v. Morton,  
    458 F.2d 827
    , 836  (D.C. Cir.  1972)); see also  Carmel-By-The-Sea, 95
    -33-
    F.3d  at  903,  information  sufficient  for  the  agency  to
    "[r]igorously   explore   and   objectively   evaluate"   all
    reasonable alternatives.  40  C.F.R.   1502.14(a); All Indian
    Pueblo Council, 
    975 F.2d at 1444
    .
    The  courts  have  applied  "a rule  of  reason  in
    determining  whether an  EIS contains  a reasonably  thorough
    discussion  of  the  significant   aspects  of  the  probable
    environmental  consequences."  Carmel-By-The-Sea,  
    95 F.3d at 899
     (quotation  omitted); see  also Grazing Fields  Farm, 
    626 F.2d at 1074
    ; Massachusetts v. Andrus, 
    594 F.2d 872
    , 884 (1st
    Cir.  1979); cf. Marsh,  
    490 U.S. at 373
     (supplemental EIS).
    One aspect  of this determination  is whether the  agency has
    gone "beyond  mere assertions  and indicate[d] its  basis for
    them."   Silva v. Lynn, 
    482 F.2d at 1287
    .   The agency "must
    'explicate fully its course of inquiry, its analysis  and its
    reasoning.'"    Massachusetts  v.  Andrus, 
    594 F.2d at 883
    (quoting Silva v. Lynn, 
    482 F.2d at 1284-85
    ).  The court must
    determine whether, in the context of the record, the agency's
    decision  -- and the analysis on which  it is based -- is too
    unreasonable for the law to  permit it to stand.  See  Sierra
    Club v.  Marsh, 
    976 F.2d at 769
    .  We apply a  rule of reason
    because  courts should  not "fly  speck" an  EIS and  hold it
    insufficient   based   on   inconsequential    or   technical
    deficiencies.   Swanson v. U.S. Forest  Service, 
    87 F.3d 339
    ,
    343 (9th Cir.  1996).  "The statute must be  construed in the
    -34-
    light  of reason  if  it is  not  to demand  what is,  fairly
    speaking, not meaningfully possible.  . . .  But  implicit in
    this  rule of  reason  is the  overriding  statutory duty  of
    compliance  with impact  statement procedures to  the fullest
    extent  possible."    Scientists'  Inst., 
    481 F.2d at 1092
    (quotations omitted).  The  agency must "squarely turn[]" all
    "procedural corners" in its EIS.  Citizens Awareness Network,
    
    59 F.3d at 290
     (quoting Adams, 38 F.3d at 49).  The question
    whether a particular deficiency or combination  is sufficient
    to  warrant holding  it  legally inadequate,  or  constitutes
    merely  a  "fly  speck,"  is essentially  a  legal  question,
    reviewable de novo.  Oregon Environmental Council v. Kunzman,
    
    817 F.2d 484
    , 493 (9th Cir. 1987).
    Applying these  standards to  the instant  case, we
    conclude that the Forest  Service has not rigorously explored
    all  reasonable alternatives,  in particular  the alternative
    that Loon Corp. be required to build artificial water storage
    ponds, instead of withdrawing  water for snowmaking from, and
    discharging water  into, an "outstanding resource water" like
    Loon Pond.   The adverse environmental impacts of  using Loon
    Pond  were before  the agency,  and more  than one  commenter
    proposed building artificial water storage  ponds, a proposal
    that would, on its face, avoid some of those adverse impacts.
    One such commenter, Paul Beaudin of the Lincoln  Committee of
    Concerned  Citizens  (LCCC), enclosed  clippings  pointing up
    -35-
    "the  wisdom  of  [Loon Corp.'s]  need  to  enact the  LCCC's
    proposal for water  containment pond[s] high up on  the Boyle
    Brook."  JA, vol. II, Response  to Public Comment on RDEIS at
    A-12.   The  LCCC proposal itself,  made two  months earlier,
    referred  to  a letter  from  the  National Ecology  Research
    Center   recommending   consideration   of    water   storage
    alternatives  other  than  Loon  Pond,  and  enclosed  a  map
    indicating  where  up to  three  containment  ponds could  be
    installed.   LCCC listed some nine  advantages, including the
    cost-saving factor of  servicing two-thirds to  three-fourths
    of Loon Corp.'s snowmaking system by gravity feed.16
    Instead of "rigorously explor[ing]" the alternative
    of using artificial water storage units instead of Loon Pond,
    the  Forest Service's  Final  EIS did  not  respond to  these
    comments at all.   The agency did not in  any way explain its
    reasoning  or  provide a  factual  basis for  its  refusal to
    consider,  in general,  the  possibility of  alternatives  to
    using  Loon  Pond   for  snowmaking,  or   LCCC's  reasonably
    16.  In addition to the Beaudin/LCCC proposal, plaintiff
    Dubois' comments also suggested that Loon Corp. build
    artificial water storage units, in his case underground.
    This suggestion, requiring costly subterranean construction,
    may be more facially vulnerable than Beaudin/LCCC's; it may
    or may not alone have required an explicit response, however
    brief.  But we need not address this question because we
    reverse based on the Beaudin/LCCC proposal.
    -36-
    thoughtful proposal in  particular.17  This failure  violated
    the Forest  Service's  EIS obligation  under  NEPA.   See  40
    C.F.R.   1502.9(b) (1995); 42 U.S.C.   4332(C)(iii) (1994).
    The  use  of artificial  storage  ponds  is not  so
    facially implausible  that it can  be dismissed out  of hand.
    The  Forest  Service,  on   another  occasion,  required  the
    Sugarbush  Ski   Area  in  Vermont  to   construct,  for  its
    snowmaking  operations, three artificial  water storage ponds
    capable  of holding  123.5 million  gallons of water  on 22.9
    acres of private land.  JA, vol. I, at 457, 465.  This is 73%
    more  than the  71  million gallons  of  water that  the  ROD
    estimates  would  be  withdrawn  from  Loon  Pond  under  the
    approved  Loon  Mountain  expansion  project.    Beaudin/LCCC
    proposed constructing three similar  ponds in the Boyle Brook
    area high up Loon Mountain.  In addition, the record contains
    evidence  that Loon Corp. owns  365 acres of  private land at
    the base of the  ski area, where similar storage  ponds could
    be constructed,  and that  such ponds  could  be filled  with
    water from the East Branch, which is typically high enough in
    the spring to contribute to flooding in downstream areas.
    17.  Aside from its preservation argument, see Part IV(D),
    infra, the Forest Service merely argues that the LCCC
    proposal was made to Loon Corp. before the RDEIS was
    published.  However, the Forest Service does not suggest that
    Beaudin's comment letter -- responding to the Forest
    Service's RDEIS -- did not fairly refer to the prior LCCC
    proposal, or that this proposal was unknown to the Service.
    -37-
    Our  conclusion is buttressed by NEPA's requirement
    that an agency consider and an EIS discuss "steps that can be
    taken to mitigate the adverse environmental consequences"  of
    a proposed project.   See Robertson,  
    490 U.S. at 351
    .   Even
    though  there  is no  requirement  that  the agency  reach  a
    particular substantive  result, such as  actually formulating
    and  adopting a  complete  mitigation plan,  the agency  must
    discuss "the extent to which adverse effects can be avoided,"
    i.e., by mitigation measures, "in sufficient detail to ensure
    that  environmental consequences have been fairly evaluated."
    
    Id. at 352
    .  This duty  -- coupled with the comments alerting
    the agency  to the  environmental consequences of  using Loon
    Pond  for  snowmaking  and suggesting  the  containment  pond
    solution -- required the Forest Service to seriously consider
    this alternative and to explain its reasoning if  it rejected
    the proposal.
    Nor can  the Forest Service claim  that its failure
    to consider  an alternative to using Loon Pond for snowmaking
    was a de minimis  or "fly speck" issue.  The record indicates
    serious adverse consequences to Loon Pond if it is used "as a
    cistern,"  to use  EPA's  words, and  at  least a  reasonable
    probability that  the use  of artificial storage  ponds could
    avoid  those  consequences.   The  existence  of this  non-de
    minimis "viable but unexamined alternative renders [the  Loon
    EIS] inadequate."  See Resources, Inc., 35 F.3d at 1307.
    -38-
    After the matter  had proceeded  to court,  counsel
    for  the Forest Service  argued that  constructing artificial
    storage  ponds large  enough to  serve as  an alternative  to
    using Loon Pond would not be a viable alternative for reasons
    that were  conclusorily stated.  The  district court accepted
    this  argument.    But  this  "post  hoc  rationalization  of
    counsel" cannot overcome the agency's failure to consider and
    address in  its FEIS the alternative  proposed by commenters.
    State  Farm, 
    463 U.S. at 50
    ; see Burlington Truck Lines, Inc.
    v. United States, 
    371 U.S. 156
    , 168 (1962); NRDC v. U.S. EPA,
    
    824 F.2d 1258
    , 1286  n.19 (1st  Cir. 1987).   Such  post hoc
    rationalizations are inherently suspect, and in any event are
    no substitute for the agency's following statutorily mandated
    procedures.   As  noted supra,  even if  the agency's  actual
    decision  was a reasoned one,  the EIS is  insufficient if it
    does  not  properly discuss  the  required  issues.   Grazing
    Fields Farm, 
    626 F.2d at 1072
    .
    In  sum,   how  "probing"  an   investigation  NEPA
    requires   of  alternatives  depends  on  the  circumstances,
    including  the  nature  of  the  action  at  issue.    Valley
    Citizens, 
    886 F.2d at 463
    .  Thus, the reviewing court must be
    flexible in evaluating the depth of analysis to require in an
    EIS,  because,  while  NEPA  "does  not   mandate  particular
    results,"  it does  require that  the agency  have adequately
    identified   and   evaluated   a    project's   environmental
    -39-
    consequences.  Robertson, 
    490 U.S. at 350
    .   "NEPA's success
    in large part arises from the use of legal concepts [that are
    flexible] such as 'reasonableness' and 'adequacy' that permit
    courts to adapt it successfully to so many different kinds of
    circumstances   surrounding  so   many  different   kinds  of
    governmental decisions."  Valley Citizens, 
    886 F.2d at 463
    .
    Although in  Valley Citizens we found  the agency's
    analysis of alternatives "brief but  adequate,"  
    886 F.2d at 462
    , the contrast with  the instant case is instructive.   In
    Valley  Citizens, we found that  nothing in the  record or in
    comments on the  draft "point[ed] out any inaccuracy"  in the
    agency's cost "descriptions" or in its "discussions" of other
    non-environmental considerations.   
    Id.
      In  contrast, in the
    instant  case, the  final  EIS contains  no "description"  or
    "discussion" whatsoever  as to  why an alternative  source of
    water  such as an artificially  created storage pond would be
    impractical.  The agency  has discretion to balance competing
    concerns  and  to  choose  among alternatives,  but  it  must
    legitimately  assess  the   relative  merits  of   reasonable
    alternatives before making its decision.
    After a searching and  careful review of the record
    in the instant  case, we  are not convinced  that the  Forest
    Service's decision  was founded  on a reasoned  evaluation of
    the  relevant factors,  Marsh, 
    490 U.S. at 378
    , or  that it
    articulated a rational connection between the facts found and
    -40-
    the  choice made, Baltimore Gas, 
    462 U.S. at 105
    .  Hence, it
    acted  arbitrarily and capriciously  in granting Loon Corp.'s
    special use  permit for the  expanded ski resort.   Moreover,
    because the  Forest Service  did not satisfy  the requirement
    that  it "rigorously  explore and  objectively  evaluate" all
    reasonable  alternatives,18  40   C.F.R.     1502.14(a),  its
    decision was not in  accordance with law.19   See 5 U.S.C.
    706(2)(A).
    D.   The Preservation Issue
    D.   The Preservation Issue
    The Forest Service argues that plaintiffs have  not
    preserved  their argument  that the  agency should  have more
    seriously considered,  as an  alternative to Loon  Pond, some
    other source  for water and some other  location to discharge
    18.  In addition to  the question of  an alternative to  Loon
    Pond as a source of water or  as a discharge point, plaintiff
    RESTORE  has  raised a  second issue  regarding alternatives.
    RESTORE  asserts   that  the   Forest  Service  should   have
    considered alternative sites for the entire  project, outside
    of the White Mountain  National Forest.   The  district court
    found that  such alternative  sites were not  appropriate for
    study because  some draw from different markets and others do
    not offer the same type of skiing experience as the  WMNF ski
    areas which have more terrain, higher mountains, more natural
    snow, and better facilities  than their counterparts  outside
    the WMNF.  We agree.
    19.  Dubois also notes that the  FEIS failed to disclose what
    he  claims are  numerous  violations of  state water  quality
    standards,  which "renders the FEIS unacceptable under NEPA."
    Dubois  Brief  at  16  n.11; see  Northwest  Indian  Cemetery
    Protective Ass'n v. Peterson, 
    764 F.2d 581
    , 587-88 (9th Cir.
    1985),  rev'd  on other  grounds sub  nom. Lyng  v. Northwest
    Indian  Cemetery Protective Ass'n, 
    485 U.S. 439
     (1988).  For
    discussion of the issue of state water quality standards, see
    Part VII(C), infra.
    -41-
    the effluent from Loon Corp.'s snowmaking pipes.  It contends
    that plaintiffs failed adequately to raise  their contentions
    during the public comment period,  so they waived their right
    to  pursue  these challenges  on  their merits.    The Forest
    Service argues  that, "[i]f commenters could require agencies
    to   undertake  detailed   comparative  analyses   merely  by
    asserting   the   superiority   of   an   alternative   site,
    configuration  or  method, only  the imaginations  of project
    opponents  would limit the length of EISs and the duration of
    the  NEPA process."  Forest Service Brief at 53.  Raising the
    specter of catastrophe only  obfuscates the real issues here:
    whether the Forest Service adequately considered alternatives
    to  using Loon Pond as a vehicle for Loon Corp.'s snowmaking,
    with adequacy based on the reasonableness and practicality of
    the alternatives, and  whether the Forest Service  adequately
    explained   in  its   FEIS  why   it  decided   against  such
    alternatives.
    The Forest Service  relies on Roosevelt Campobello:
    "In order to preserve an alternatives issue for review, it is
    not enough  simply to  make a facially  plausible suggestion;
    rather, an  intervenor must  offer tangible evidence  that an
    alternative  site  might  offer  a   substantial  measure  of
    superiority  as a site."   
    684 F.2d at 1047
     (emphasis added)
    (quotation  omitted).    The  Forest  Service's  reliance  on
    Roosevelt  Campobello  is  misplaced.   That  case,  and  the
    -42-
    precedents it relied on,  dealt with a claim that  the agency
    had not considered all appropriate alternative sites on which
    to locate  a particular  project.   Obviously, the  number of
    potential  locations  for any  project  is  infinite, and  an
    agency  cannot   be  expected  to  consider  seriously  every
    possible  location before  approving  a project.   In  such a
    context,  the  agency  is  only  required  to  consider  "all
    alternatives which were  feasible and reasonably apparent  at
    the time of drafting the EIS."  Id.;  see also Seacoast Anti-
    Pollution League v. Nuclear Regulatory Comm'n, 
    598 F.2d 1221
    ,
    1229 (1st  Cir.  1979) (Agency  need  not "ferret  out  every
    possible   alternative,  regardless   of   how  uncommon   or
    unknown.") (quoting Vermont Yankee, 
    435 U.S. at 551
    ).
    The  situation  in  the   instant  case  is  wholly
    different.  It is one thing to ask whether there are "known,"
    "feasible," alternative  sites on which to  locate a project,
    and a different matter  to ask whether the Forest  Service in
    the instant case should  have considered an alternative means
    of implementing the expansion of the Loon Mountain Ski Area -
    -  a  particular  means  of  operation  that  would  do  less
    environmental damage -- without  changing the site to another
    state or  another mountain.    Here, the  Forest Service  was
    alerted by commenters to  the alternative of using artificial
    storage  ponds instead of Loon Pond for snowmaking;  but even
    without  such  comments,  it  should  have  been  "reasonably
    -43-
    apparent" to the  Forest Service,  Roosevelt Campobello,  
    684 F.2d at 1047
    , not "unknown," Seacoast  Anti-Pollution League,
    
    598 F.2d at 1229
    , that such an alternative existed.
    In the instant case,  at least two commenters, Paul
    Beaudin of LCCC and plaintiff  Dubois, provided notice to the
    Forest  Service,  informing  it  of the  substance  of  their
    proposed alternative.   Though  not detailed,  these comments
    submitted  in response  to  the Forest  Service's RDEIS  made
    clear that the commenters  thought the agency should consider
    some alternative source  of water  other than  Loon Pond  and
    some  alternative place to  discharge the water  after it had
    gone  through the snowmaking pipes.  They argued that such an
    alternative would reduce the negative environmental impact on
    Loon Pond from depleting the  pond's water and from refilling
    the pond with polluted  water either from the East  Branch or
    from  acidic  snowmelt.   Dubois  explicitly  and Beaudin  by
    reference suggested  the possibility of  new man-made storage
    units  to accomplish  these goals.   These  comments provided
    sufficient notice to "alert[]  the agency" to the alternative
    being proposed and the  environmental concern the alternative
    -44-
    might  address.20   See  Seacoast Anti-Pollution  League, 
    598 F.2d at 1229
     (quoting Vermont Yankee, 
    435 U.S. at 553
    ).
    Because the comments to  the EIS were sufficient to
    notify the agency of the potential alternatives, see Adams v.
    U.S. EPA, 
    38 F.3d 43
    , 52 (1st Cir. 1994), the district court
    erred in concluding that plaintiffs were required to "offer[]
    specifics  as to  how  to implement  a suggested  alternative
    water storage system."   Memorandum  and Order at  31.   Such
    "specifics" are not required.   As we reasoned in  Adams, the
    purpose  of public  participation  regulations is  simply "to
    provide notice" to  the agency, not to "present  technical or
    precise   scientific   or   legal  challenges   to   specific
    provisions" of the document  in question.  Adams, 
    38 F.3d at 52
    .   "It would be  inconsistent with the  general purpose of
    public participation regulations  to construe the regulations
    strictly."  
    Id.
    Moreover, NEPA  requires the  agency to try  on its
    own to  develop alternatives that will  "mitigate the adverse
    environmental   consequences"   of   a    proposed   project.
    20.  In Adams v.  U.S. EPA, 
    38 F.3d 43
      (1st Cir. 1994),  we
    held that a plaintiff had sufficiently raised his proposal at
    the agency level by stating in his comment:  "The EPA has not
    carried out the intent of Congress in relation to the [Act in
    question, citing specific statutory provisions]."   Adams, 
    38 F.3d at 52
    .  This court  held that that reference -- together
    with other comments discussing  the detrimental impact of the
    proposed project on beaches and marine life -- was sufficient
    to "alert[]  the EPA to  [his] concern that  the EPA had  not
    adequately complied with the [statutory] mandates."  
    Id.
    -45-
    Robertson,  
    490 U.S. at 351
    .  "In respect to alternatives, an
    agency must on its own initiative study all alternatives that
    appear reasonable and appropriate for  study at the time, and
    must also  look into other significant  alternatives that are
    called to its attention  by other agencies, or by  the public
    during  the  comment  period   afforded  for  that  purpose."
    Seacoast Anti-Pollution  League, 
    598 F.2d at 1230
     (emphasis
    added).21    Particularly  given  this directive,  the  alert
    furnished by  Beaudin  and Dubois  required  exploration  and
    discussion   by  the   Forest  Service   of  the   idea  that
    environmental  damage   might  be  reduced  by   the  use  of
    artificial storage ponds instead  of Loon Pond for snowmaking
    purposes.  Therefore, the district court should have rejected
    the  Forest   Service's  argument   that  Dubois   failed  to
    adequately preserve the issue of alternatives.
    V.   SUPPLEMENTAL EIS
    V.   SUPPLEMENTAL EIS
    Plaintiffs   also   appeal  the   district  court's
    conclusion that  the Forest  Service was not  required, under
    NEPA,  to  prepare a  supplemental EIS.    The question  of a
    supplemental EIS is premised on the dual purposes of the EIS:
    21.  In deciding whether an agency has adequately studied all
    reasonable alternatives, a reviewing  court may consider "the
    extent   and  sincerity  of  the  opponents'  participation."
    Seacoast Anti-Pollution League, 
    598 F.2d at 1231
    .  Here,  it
    is  apparent from  the record  that Dubois  has treated  this
    matter  seriously, not as  "a game," 
    id. at 1229
    ; he has not
    "played dog  in  the  manger  with respect  to  alerting  the
    agency"  to  his views  regarding  alternatives,  
    id.,
     in  an
    effort to "scuttle" the project, 
    id. at 1231
    .
    -46-
    to  assure that  the  public who  might  be affected  by  the
    proposed  project  be fully  informed  of  the proposal,  its
    impacts and all major points of  view; and to give the agency
    the benefit of informed comments and suggestions as it  takes
    a "hard look" at  the consequences of proposed actions.   See
    Robertson,  
    490 U.S. at 349, 356
    ;  40  C.F.R.     1502.1,
    1502.9(a) (1995).
    An agency "shall"  prepare a  supplemental EIS  if,
    after  issuing  its latest  draft  EIS,  "[t]he agency  makes
    substantial changes in the  proposed action that are relevant
    to  environmental  concerns."   40  C.F.R.    1502.9(c)(1)(i)
    (1995).   The  use  of the  word  "shall" is  mandatory,  not
    precatory.   It creates a duty  on the part of  the agency to
    prepare a supplemental EIS if substantial changes from any of
    the  proposed  alternatives  are  made and  the  changes  are
    relevant  to environmental concerns.   See Marsh, 
    490 U.S. at 372
    .   Thus,  as explained by CEQ, an  additional alternative
    that  has not been disseminated previously in a draft EIS may
    be adopted in  a final EIS,  without further public  comment,
    only  if   it  is  "qualitatively  within   the  spectrum  of
    alternatives  that  were  discussed"   in  the  prior  draft;
    otherwise  a supplemental  draft is needed.   See  Forty Most
    Asked  Questions Concerning CEQ's  NEPA Regulations,  
    46 Fed. Reg. 18026
    , # 29b (1981).
    -47-
    Plaintiffs  argue  that  the  project  proposed  as
    Alternative 6, appearing for the first time in the Final EIS,
    embodies "substantial  changes" from any  of the alternatives
    proposed  in  the prior  drafts of  the  EIS, and  that those
    changes  are "relevant  to environmental  concerns."   See 40
    C.F.R.   1502.9(c)(1)(i).  Therefore, plaintiffs assert that,
    by  not describing  Alternative 6  in a  supplemental  EIS --
    which would give the  public an opportunity to comment  on it
    and  give the Forest Service the benefit of those comments in
    its consideration of the environmental impact of  Alternative
    6 --  the  Forest  Service  collided  with  both  the  public
    information and the  agency guidance objectives of  NEPA.  In
    response, defendants argue that plaintiffs' interpretation of
    the  previously discussed alternatives  is incorrect, because
    Alternative  6  is  merely  a   scaled-down  modification  of
    Alternative  2 which, as proposed in two phases in the RDEIS,
    would  have been  far larger  and far  more intrusive  on the
    environment than the new preferred Alternative 6.  Plaintiffs
    reply that only Phase I and not Phase II of Alternative 2 was
    seriously considered and analyzed prior to the development of
    Alternative  6 in  the  final EIS.22    Defendants deny  this
    assertion.
    22.  Plaintiffs point  to  several instances  where the  FEIS
    stated that further environmental analysis would be conducted
    in the future  if and  when Loon Corp.  sought permission  to
    proceed with Phase II.
    -48-
    We conclude, based on the record in this case, that
    a supplemental  EIS was required.   The scope of  review of a
    reviewing  court  is  the  APA's  "arbitrary  and capricious"
    standard.   Marsh, 490 U.S.  at 375-76; see  Part III, 
    supra.
    The  Court  in  Marsh   was  especially  deferential  to  the
    "informed  discretion of  the responsible  federal agencies,"
    due to the  "high level of  technical expertise" required  in
    that case  to analyze  the relevant documents  regarding soil
    composition  and  a  dam's  impact  on downstream  turbidity.
    Marsh, 
    490 U.S. at 377, 379
    .  In the  instant case, however,
    nothing  in  the FEIS  indicates  that  any such  technically
    complex scientific  analysis would  be required in  order for
    this  court  to  determine  that  Alternative  6  involves  a
    "substantial  change"  from  the   prior  proposals  at  Loon
    Mountain.
    Alternative 6, adopted by the Forest Service as its
    preferred alternative in the final EIS, does not fall "within
    the   spectrum  of  alternatives"  that  were  considered  in
    previous drafts, even if  Phase II of Alternative 2  had been
    adequately analyzed prior to the FEIS.  Alternative 6 entails
    a different  configuration of  activities and  locations, not
    merely   a   reduced  version   of   a  previously-considered
    alternative.   Phase II  of Alternative 2  proposed expanding
    the ski area primarily on land that is not within the current
    permit area; in  contrast, Alternative 6 squeezes much of its
    -49-
    expansion into that current permit area.  To accomplish this,
    Alternative  6  widens existing  trails  so  as to  eliminate
    buffers  that  currently  separate   the  trails.    It  also
    envisions a 28,500-square-foot base lodge facility within the
    existing permit  area.   And it  develops ski  trails, access
    roads  and lifts on land that the prior alternatives had left
    as  a  woodland  buffer between  the  old  ski  area and  the
    proposed expansion area.   These are substantial changes from
    the previously-discussed alternatives, not mere modifications
    "within the spectrum" of those prior  alternatives.  It would
    be  one thing  if  the  Forest  Service  had  adopted  a  new
    alternative that was actually  within the range of previously
    considered alternatives,  e.g., simply reducing the  scale of
    every  relevant particular.   It  is quite  another thing  to
    adopt  a proposal  that is  configured differently,  in which
    case  public commenters might have  pointed out, if given the
    opportunity --  and the  Forest Service might  have seriously
    considered  --   wholly  new   problems  posed  by   the  new
    configuration  (even if  some of  the  environmental problems
    present in the prior alternatives have been eliminated).
    Nor  can it  be  said that  these  changes are  not
    "relevant to  environmental concerns."  They  could very well
    have environmental  impacts that  the Forest Service  has not
    yet considered,  simply based on their  more compact physical
    location.   Indeed,  the RDEIS  said the  Forest  Service had
    -50-
    considered    expansion    alternatives   such    as   "other
    configurations  on  the  existing  permit  area,"  but  these
    alternatives "were eliminated  from detailed analysis because
    they were not reasonable or feasible alternatives."  JA, vol.
    I,  at 145-46.  Moreover, the plan selected, Alternative 6 in
    the FEIS, would require that four million gallons  more water
    be  withdrawn  annually  for snowmaking,  compared  with  the
    closest alternative among the five  previously given detailed
    consideration.   Whether or not  viewed in the  graphic terms
    described  by  plaintiff  RESTORE  --  four  million  gallons
    annually is  enough water  "to create  a lake  the size  of a
    football field more than eleven  feet deep," RESTORE Brief at
    33  --  this change  can be  expected  to have  a significant
    enough  effect on  the environment  that additional  analysis
    through a supplemental EIS would be required.   Cf. Roosevelt
    Campobello, 
    684 F.2d at 1055
     (requiring a supplemental EIS to
    consider newly completed studies  regarding the small risk of
    a major oil spill).  We conclude, based on the record in this
    case, that Alternative 6 entails substantial changes from the
    previously   proposed   actions   that   are    relevant   to
    environmental concerns, and that   the Forest Service did not
    present  those changes to the  public in its  FEIS for review
    and comment.   Accordingly,  the Forest Service's  failure to
    prepare a supplemental EIS was arbitrary and capricious.
    VI.   EXECUTIVE ORDER 11,990
    VI.   EXECUTIVE ORDER 11,990
    -51-
    Plaintiffs  contend  that   the  Forest   Service's
    failure  to adequately  consider alternatives  to the  use of
    Loon Pond and failure to develop adequate mitigation measures
    violates  Executive Order  11,990,  as  well  as NEPA.    The
    district court rejected this argument on essentially the same
    grounds as the NEPA argument.
    On  appeal,  the   government  contends  that   the
    Executive  Order  is not  enforceable,  at  least by  private
    parties, because NEPA did  not confer rulemaking authority on
    the President.  Plaintiffs argue that  the Executive Order is
    accorded  the  full   force  and  effect  of  a   statute  or
    regulation,  enforceable   under  the  APA.     We  have  not
    previously decided this precise issue, nor need we decide  it
    now.
    Even   assuming  that   the   Executive  Order   is
    enforceable  under  the   APA,  it  does  not  apply  to  the
    circumstances of this case.  The Executive  Order states that
    federal agencies,
    to  the  extent permitted  by  law, shall
    avoid undertaking or providing assistance
    for new construction located  in wetlands
    unless the  head of the  agency finds (1)
    that there is no  practicable alternative
    to  such construction,  and (2)  that the
    proposed action  includes all practicable
    measures  to  minimize  harm to  wetlands
    which may result from such use.
    Exec. Order No.  11,990,   2.  There is  no dispute that Loon
    Pond  is a "wetland."   The Forest Service, however, contends
    -52-
    that the Loon Corp.  expansion plan does not  constitute "new
    construction."      The   Executive   Order    defines   "new
    construction" to include  "draining, dredging,  channelizing,
    filling, diking, impounding, and related activities."  Id.,
    7(b).  Dubois claims that the use of Loon Pond as a source of
    water for snowmaking and the discharge of used water from the
    snowmaking  pipes into  Loon Pond  constitute "draining"  and
    "filling" within the meaning of   7(b).
    We  agree with  the  Forest Service  that the  mere
    expansion of a previously ongoing withdrawal of water from or
    addition of  water to  a reservoir ordinarily  does not  fall
    within the ambit of  the Executive Order's "new construction"
    requirement.23   This  conclusion  is dictated  by the  plain
    meaning  of the  phrase  "new construction,"  which does  not
    ordinarily  encompass  the  mere  expansion   of  an  ongoing
    activity,   unless  that  activity  itself  constituted  "new
    construction."     Likewise,  in  common   usage,  the  words
    "draining" and "filling"  generally refer to  activities that
    eliminate a wetland to  convert it to another use, not to the
    expansion  of  an activity  that  already  adds  water to  or
    23.  It  is conceivable, of  course, that an  expansion of an
    already existing activity could fall within the ambit of  the
    Executive Order's "new construction" requirement.  This could
    occur if  the expansion  effectuated a qualitative  change in
    the nature of the  activity, rather than a  mere quantitative
    enlargement of that activity.  On the record before us in the
    instant case, we cannot say that plaintiffs have demonstrated
    such a qualitative change.
    -53-
    withdraws  water  from  an existing  pond.    Our reading  is
    buttressed  by common sense:  one would not ordinarily think,
    without  more,  that a  federal  agency  operating a  dam  on
    federal land would  be required, by  the Executive Order,  to
    issue  notices and make findings every time water is added to
    or  withdrawn from the dam (assuming that the dam has already
    met all legal requirements to begin operation).
    Applying  the foregoing  analysis of  the Executive
    Order to the record in the instant case, we conclude that the
    situation  here  is  more akin  to  an  expansion of  ongoing
    activities than to  "new construction."  The town  of Lincoln
    is already  using Loon Pond as  a source of town  water.  And
    Loon  Corp. has been using the Pond  as a source of water for
    snowmaking, to  a depth of four  to six feet on  the average.
    It is true  that the extent  of this intrusion  is less  than
    would  be  the  case  under  the  proposed  expansion.    But
    plaintiffs   did   not  challenge   these  currently-existing
    intrusions, and  they have  not demonstrated a  factual basis
    for their  conclusion that  there is something  qualitatively
    "new" about the  proposed drawdown.  Thus, the  proposed Loon
    Corp.  expansion project  --  by drawing  down a  substantial
    additional amount of  water from Loon  Pond and refilling  it
    with  East Branch  water or  with acidic  runoff --  does not
    satisfy  the  definition  of  "new  construction"  within the
    meaning of Executive Order 11,990, even though it constitutes
    -54-
    a major  action with  significant impact on  the environment,
    triggering NEPA's EIS requirements.
    VII.   THE CLEAN WATER ACT ISSUES
    VII.   THE CLEAN WATER ACT ISSUES
    The Clean Water Act (CWA) was "a bold and  sweeping
    legislative initiative,"  United  States v.  Commonwealth  of
    P.R.,  
    721 F.2d 832
    , 834 (1st Cir. 1983), enacted to "restore
    and maintain the chemical, physical, and biological integrity
    of the Nation's waters."   33 U.S.C.   1251(a) (1994).  "This
    objective incorporated  a broad, systemic view of the goal of
    maintaining and improving water quality:  as the House Report
    on the legislation put it, 'the word "integrity" . . . refers
    to a condition in which the natural structure and function of
    ecosystems [are]  maintained.'"   United States  v. Riverside
    Bayview Homes, Inc.,  
    474 U.S. 121
    , 132  (1985) (quoting H.R.
    Rep. No. 92-911, at 76 (1972)).  In contrast to  NEPA's focus
    on  process,  the  CWA  is  substantive,  focusing  upon  the
    "integrity of  the Nation's Waters, not  the permit process."
    Massachusetts v. Watt, 
    716 F.2d at 952
     (quoting Weinberger v.
    Romero-Barcelo, 456 U.S. at 314).
    The  most important  component  of the  Act is  the
    requirement that an NPDES permit be obtained, Commonwealth of
    P.R., 
    721 F.2d at 834
    ; see 33 U.S.C.   1342  (1994), which we
    discuss in Part VII(B), infra.  In addition, the CWA requires
    states to adopt water quality standards which protect against
    degradation   of  the   physical,  chemical,   or  biological
    -55-
    attributes  of  the state's  waters.   33 U.S.C.     1251(a),
    1313(d)(4)(B) (1994);  40 C.F.R.    131.12 (1995).   This  is
    discussed in  Part VII(C),  infra.24   Before turning  to the
    merits of these  issues, however, we  must first address  the
    defendants' jurisdictional arguments.
    A.   Jurisdictional Issues
    A.   Jurisdictional Issues
    As  a threshold  matter, defendants  argue that  we
    need not  address  the merits  of plaintiffs'  claim that  an
    NPDES permit  was required,  because the court  lacks subject
    matter jurisdiction.  Defendants  argue that the NPDES permit
    issue  is not  properly raised  because plaintiffs  failed to
    provide  notice  of  their  intentions to  sue  Loon  Corp.25
    Defendants contend that Section  505(b) of the CWA "prohibits
    citizen  plaintiffs from  filing [suit  to enforce  the CWA's
    NPDES  permit requirement] until at least  60 days after they
    have provided notice of their intent  to sue" to EPA, to  the
    State  in which the  alleged violation occurred,  and to "any
    24.  The  third major  aspect  of  the  CWA  is  the  use  of
    industry-specific  effluent standards to  control the quality
    of effluent  that can  be attained using  available pollution
    control technology.  33 U.S.C.    1311, et seq.  This  aspect
    of the CWA is not in issue in this litigation.
    25.  The Forest Service also asserts  that no claim can stand
    against it as a defendant  because EPA regulations place  the
    responsibility   for  obtaining   an  NPDES  permit   on  the
    "operator"  of  a covered  activity;  the  Forest Service  is
    merely  the owner  of the  land on  which the  activity takes
    place.  This argument is unavailing:  if an NPDES permit were
    required,  as plaintiffs  contend,  then  the Forest  Service
    should  not have granted a  special use permit  to Loon Corp.
    until the NPDES permit had been obtained.
    -56-
    alleged  violator"  of the  standard,  limitation,  or order.
    Forest  Service  Brief at  37; see  33  U.S.C.    1365 (b)(1)
    (1994).  It is undisputed, however, that Dubois, the original
    plaintiff, did provide  notice to the  Forest Service of  his
    intent to sue.   The  Forest Service was  the only  defendant
    that he did sue; and he alleged only that the Forest Service,
    not Loon Corp., had  violated federal statutes, including the
    CWA, in approving Loon Corp.'s expansion plan.   The district
    court therefore  had jurisdiction to hear  Dubois' claim that
    the Forest Service had approved the  project illegally by not
    ensuring that  an NPDES  permit was obtained.   His  properly
    raised NEPA claim subsumed the CWA claim.26
    Thus,  even  if Loon  Corp.'s  lack  of notice  did
    deprive us  of jurisdiction  to hear  Dubois' claim  that the
    Forest  Service violated  the  CWA by  failing to  require an
    NPDES permit  before approving  the special use  permit, this
    26.  Thereafter, Loon Corp. chose to intervene in the action
    in order to protect its business interests.  When Loon Corp.
    voluntarily intervened in an ongoing action, it "step[ped]
    into the shoes" of the original defendants -- who were
    properly before the court -- insofar as the 60-day notice is
    concerned.  Kitlutsisti v. ARCO Alaska, Inc., 
    592 F. Supp. 832
    , 842 (D. Alaska 1984), vacated as moot, 
    782 F.2d 800
     (9th
    Cir. 1986); cf. E.H. Ashley & Co. v. Wells Fargo Alarm
    Servs., 
    907 F.2d 1274
    , 1277 (1st Cir. 1990) (When insurer, as
    subrogee, steps into shoes of insured, insurer "has no
    greater rights against a third party" than the insured had;
    insurer "was on constructive notice of the provisions of
    [insured's] contract [with third party] because it occupies
    the shoes of its insured.").
    -57-
    would  not  remove the  NPDES permit  issue from  the case.27
    Regardless of whether any of the remedies provided in the CWA
    would be available to Dubois in light of his asserted failure
    to provide proper  notice of  his intent to  sue, this  court
    would still have the authority  and the obligation to decide,
    under NEPA, whether an NPDES permit is required in this case.
    See  Keating v.  FERC, 
    927 F.2d 616
    ,  624 (D.C.  Cir. 1991).
    This  is because, as  noted supra,  NEPA requires  the Forest
    Service to identify in  its EIS all federal permits  that the
    27.  Nor is RESTORE precluded from pursuing its claims on the
    ground that it  did not  notify defendants of  its intent  to
    bring suit.  RESTORE was an intervenor, merely joining a suit
    that was already  in esse; it did not  bring a new suit.   As
    such,  RESTORE was not required  to notify Loon  Corp. of its
    intent to  bring suit.    We need  look no  further than  the
    statutory  language itself:    "No action  may be  commenced"
    without  the requisite notice.  33 U.S.C.   1365(b).  RESTORE
    did not "commence" this action; it  intervened in an existing
    action.   Moreover, the purpose of  the notice requirement --
    to give  the parties  an opportunity to  resolve the  problem
    administratively or  to settle  the matter without  resort to
    the  courts,  before  the  parties  have assumed  adversarial
    positions brought about by litigation -- no longer applied at
    the  time RESTORE intervened in the ongoing suit.  Hence, the
    purpose of  the notice  requirement would  not  be served  by
    applying it to an intervenor like RESTORE.
    Nor  are  we faced  with  the  kind of  equitable
    considerations  discussed in  Hallstrom v.  Tillamook County,
    
    493 U.S. 20
    ,  29 (1989),  in holding  an  original plaintiff
    strictly  to the  notice  requirement.   Unlike the  original
    plaintiff, who has full  control over when to file  the suit,
    an  intervenor like RESTORE has no control over the timing of
    the initial  action.  Because  this action was  already being
    litigated on  an expedited schedule, RESTORE  could well have
    lost  the  opportunity to  protect  its interests  if  it had
    served  a notice  of intent to  sue and  then waited  60 days
    before intervening  in the  expedited case.   The balance  of
    equities here favors permitting RESTORE to pursue its claims.
    -58-
    project  needed in  order to  comply with  applicable federal
    law.   40 C.F.R.    1502.25(b).   There is  no question  that
    plaintiffs  have properly  invoked  the jurisdiction  of this
    court, pursuant to 28 U.S.C.   1331 (general federal question
    jurisdiction), to  challenge  defendants' failure  to  comply
    with  NEPA  in this  regard.   For  these reasons,  we reject
    defendants' jurisdictional argument and turn to the merits.
    B.   NPDES Permit
    B.   NPDES Permit
    Section 301(a) of the Clean Water Act prohibits the
    "discharge of  any pollutant" into navigable  waters from any
    "point  source" without an NPDES permit.  33 U.S.C.   1311(a)
    (1994).   Plaintiffs argue  that the Forest  Service violated
    Section 301(a) by  failing to obtain  an NPDES permit  before
    approving Loon's plan  to remove water from  the East Branch,
    use  it to pressurize and prevent  freezing in its snowmaking
    equipment, and then  discharge the used water into Loon Pond.
    Section 301(a)  prohibits the "discharge of  any pollutant by
    any person"  except as authorized pursuant to a permit issued
    under the  Act.   Id.; see  33 U.S.C.     1342, 1344  (1994);
    Commonwealth of P.R., 
    721 F.2d at 835
    .  The  term "discharge
    of  a pollutant" is defined as "any addition of any pollutant
    to  navigable waters  from any  point source."   33  U.S.C.
    1362(12)(A) (1994).  The definition of a "pollutant" includes
    "dredged  spoil, solid  waste, . .  . sewage, garbage,  . . .
    biological materials, .  . .  heat,  . .  . sand, .  . .  and
    -59-
    agricultural waste."  33 U.S.C.   1362(6) (1994).  "Navigable
    waters" is  defined as "the waters of the United States."  33
    U.S.C.    1362(7) (1994).   The district court  found and the
    parties agree that Loon Pond is a water of the United States,
    that  the  East Branch  water  discharged  from Loon  Corp.'s
    snowmaking pipes  into Loon Pond  is a  pollutant within  the
    meaning of the CWA,28 and that the pipe discharging the water
    into Loon Pond  is a  point source.   The question, then,  is
    whether  there is  an "addition"  of pollutants to  Loon Pond
    when  water containing  pollutants  is discharged  from  Loon
    Corp.'s snowmaking equipment into Loon Pond.
    The district  court answered  this question in  the
    negative.   The court reasoned that the intake water from the
    East Branch of the  Pemigewasset River and the water  in Loon
    Pond are  all part of "a singular  entity, 'the waters of the
    United States,'" and  therefore that "the bodies of water are
    not  to   be  considered  individually   in  this   context."
    Memorandum  and Order at 13.  Because it interpreted the East
    Branch  and  Loon  Pond to  be  part  of  the same  "singular
    entity,"  the court concluded that the transfer of water from
    the  East  Branch into  Loon  Pond  would not  constitute  an
    28.  It  contains  at least  the  same  pollutants that  were
    present  in the water from the East Branch before intake into
    the pipes.
    -60-
    "addition" into the Pond, at least if the pipes  added no new
    pollutants.29  
    Id.
    There is no basis  in law or fact for  the district
    court's "singular  entity" theory.  The error  in the court's
    reasoning  is highlighted by an  analogy the court  drew:  it
    hypothesized a pond in  which "we place a  pipe . . .  and we
    pump  the pond water from the bottom  to the surface.  No one
    would  reasonably  contend that  internal  pumping  causes an
    'addition' of  pollutants to  the pond.    Instead, we  would
    consider  the pumping  to be  a redistribution  of pollutants
    from one  part of the pond to  another."  Id. at  12.  Such a
    situation is not at all analogous to the instant case.  There
    is no barrier separating the water at the top of  a pond from
    the  water  at  the  bottom  of  the  same  pond;  chemicals,
    29.  This premise is a disputed issue.  Plaintiffs argue that
    allowing the water from  the East Branch to flow  through the
    pipes before discharge into Loon Pond results in the addition
    of not insignificant  amounts of oil and  grease.  Defendants
    dispute this, which ordinarily would result in a reversal of
    summary judgment on  this issue.  See Fed. R.  Civ. P. 56(c).
    Defendants argue,  however, that  plaintiffs failed  to raise
    this factual dispute before the  agency in timely fashion, so
    it  is not preserved for our review.  Plaintiffs respond that
    they  could  not  have  raised  this  dispute  prior  to  the
    publication  of the FEIS  because the Forest  Service did not
    even collect the  data regarding oil  and grease until  after
    issuing its decision  (the ROD).   We need  not resolve  this
    dispute;  we hold infra  that, even if  the pipes add  no new
    pollutants, the  transfer of  East Branch water  through Loon
    Corp.'s  privately owned  pipes and  its discharge  into Loon
    Pond constitutes  a point source  discharge of at  least some
    pollutants into the Pond,  thereby requiring an NPDES permit.
    Upon remand,  the parties are not  foreclosed from presenting
    their factual disputes to  the EPA if they decide  to contest
    the issuance of that permit.
    -61-
    organisms, and even heat are able to pass from the top to the
    bottom or vice versa, at rates determined only by the laws of
    science.
    In contrast, the transfer  of water or its contents
    from  the East Branch to Loon Pond would not occur naturally.
    This is more analogous to the example the district court gave
    from the opposite end of the spectrum:  where water is  added
    "from an external source"  to the pond and an NPDES permit is
    required.  Id.  As in this converse  example, the East Branch
    and Loon Pond are not the same body of water; the East Branch
    is indeed  a source  "external" to  Loon Pond.   We  can take
    judicial notice that the Pemigewasset River was for years one
    of the most  polluted rivers in  New England, the  repository
    for  raw  sewage from  factories and  towns.   It  emitted an
    overwhelming  odor  and  was  known  to  peel  the paint  off
    buildings  located on  its banks.   Yet,  under  the district
    court's theory,  even if  such conditions still  prevailed, a
    proposal to withdraw water from the Pemigewasset to discharge
    it into Loon Pond would be analogous to moving water from the
    top to the bottom of  a single pond; it would not  constitute
    an "addition" of pollutants "from an external source" because
    both the East Branch and Loon Pond are part of the "singular"
    waters of the United States.30  The district court apparently
    30.  Again,  we  leave  to  one  side  the  possibility  that
    additional pollutants, such as oil and grease, would be added
    when the water flowed through the  system of pipes.  If  that
    -62-
    would reach  the same  conclusion regardless of  how polluted
    the Pemigewasset  was or how pristine  Loon Pond was.   We do
    not believe Congress intended such an irrational result.
    The district court's analysis also ignores the fact
    that water  would pass  through Loon Corp.'s  privately owned
    pipes on  its way from the  East Branch to Loon  Pond.  Thus,
    nature  would not regulate --  and neither the Forest Service
    nor the court could know in advance -- whether any pollutants
    would be added to the  water as it passes through the  pipes.
    The district court concluded that the  East Branch water does
    not "lose[] its  status as  navigable waters" even  if it  is
    "commercially exploited," Memorandum and Order at 18, as long
    as  Loon  Corp.  does  not  "plan[]  to  add  any  additional
    pollutants  to  the East  Branch  water  that it  intends  to
    discharge into  Loon Pond."  Id.  at 10.  The  court does not
    indicate  whether anyone assures  compliance with  the "plan"
    that   no  pollutants   be   added  during   the   commercial
    exploitation, or if so  who makes that determination and  how
    it is  made, at  a  time when  the project  is  still just  a
    proposal and not yet  a fait accompli.  Cf.  Massachusetts v.
    Watt, 
    716 F.2d at 952
    .  The district court's  analysis would
    apply equally if the water passed through a paper mill on its
    way to Loon Pond,  instead of through snowmaking pipes.   And
    the analysis is equally unpersuasive in either  circumstance.
    were true, that alone would require an NPDES permit.
    -63-
    Either  way, the  water leaves  the domain  of nature  and is
    subject  to  private  control  rather  than   purely  natural
    processes.  As such, it has  lost its status as waters of the
    United States.
    Other  courts have  held  that an  NPDES permit  is
    required  before pollutants  may  be moved  from one  body of
    water of the United States to another.  See Dague  v. City of
    Burlington, 
    935 F.2d 1343
    , 1354-55  (2d Cir. 1991), rev'd  in
    part on other grounds, 
    505 U.S. 557
     (1992); Committee to Save
    Mokelumne  River v. East Bay  Mun. Util. Dist.,  
    13 F.3d 305
    ,
    308-09  (9th Cir. 1993), cert. denied, 
    115 S. Ct. 198
     (1994).
    The  Eleventh Circuit has held that such a permit is required
    in  order to move dredge  materials by a  point source within
    the same water  body.   United States v.  M.C.C. of  Florida,
    Inc., 
    772 F.2d 1501
    , 1506 (11th Cir. 1985).
    Even  the  Forest  Service  does  not  support  the
    district court's conclusion that mere transfers of water from
    one water body to  another, without more, never result  in an
    addition of pollutants to  waters of the United States.   The
    Forest Service  recognizes that "[i]t is  possible that water
    transferred between unrelated water bodies of different water
    quality would properly  be regarded as  losing its status  as
    'water [sic] of the United  States,'" requiring a Section 402
    permit.  Forest  Service Brief at 47.  We  agree.  The Forest
    Service qualifies this insight, however.  It argues that Loon
    -64-
    Corp.  "moves  water between  hydrologically  connected water
    bodies  containing water of  like quality"  which, therefore,
    does not "introduce pollutants  'from the outside world' into
    the receiving waters."  
    Id.
      Accordingly, the Forest  Service
    argues  no permit is required.   We disagree  with the Forest
    Service's qualification.
    First, there  is nothing in the  statute evincing a
    Congressional intent to distinguish between "unrelated" water
    bodies  and  related   or  "hydrologically  connected"  water
    bodies.    The  CWA simply  addresses  "any  addition of  any
    pollutant to  navigable waters  from any point  source."   33
    U.S.C.   1362(12)(A).  Nor  is the purpose of the  CWA served
    by means of  such a  distinction.  If  anything, the  purpose
    would be  better served by  a distinction between  de minimis
    transfers  of   water  and  transfers  which   add  some  not
    insignificant  amount of pollutants  to the  transferee water
    body.  But no such distinction appears in the statute, and to
    imply  one would  thrust some  agencies with no  expertise on
    environmental issues  into the  role of deciding  whether the
    CWA's environmental protections should even be considered.31
    31.  As discussed in Part  VII(C), infra, in another context,
    the Forest Service argues that it is the EPA, not the  Forest
    Service, that has the expertise and the congressional mandate
    to  determine whether  a proposed  project meets  state water
    quality standards.   We agree.   The availability  of EPA  to
    perform  this  task is  another  reason why  an  NPDES permit
    should  be obtained  before the  Forest Service  approves the
    Loon  Corp. expansion  plan.   See  note 32  and accompanying
    text, infra.
    -65-
    More    compellingly,    the    Forest    Service's
    "hydrological connectedness" proposal  ignores a  fundamental
    fact about  water:  the direction  of flow.  It  is true that
    Loon Pond and the  East Branch of the Pemigewasset  River are
    "hydrologically connected"  in the sense that  water from the
    Pond flows down and  eventually empties into the River.   But
    water from  the East  Branch certainly  does not flow  uphill
    into  Loon Pond, carrying  with it  the pollutants  that have
    undisputedly accumulated  in the East Branch  water from some
    of the other sources  of water entering the East  Branch from
    upstream.    Under  such  circumstances,   defendants  cannot
    credibly argue  that these water  bodies are so  related that
    the transfer  of water from the  East Branch to  Loon Pond is
    not an  "addition" of water  from one  of the "waters  of the
    United States"  to another.   We therefore reject  the Forest
    Service's "hydrological connectedness" proposal.
    Likewise,  we reject its  assertion, unsupported by
    the  record, that  in some  general sense  the two  bodies of
    water are  "of like  quality."   First, this  is the kind  of
    substantive  question  to  which  the  EPA  would  apply  its
    technical  expertise in  deciding whether  to issue  an NPDES
    permit  and what  conditions to  attach to  such a  permit in
    order  to protect  water  quality.   It  is not  the kind  of
    threshold  question that  the  Forest Service  or this  court
    -66-
    should address in deciding whether to  subject the Loon Corp.
    expansion proposal to the NPDES permitting process.
    Second,  the   Forest  Service  does   not  contest
    plaintiffs' assertion that there are at least some pollutants
    in the East  Branch that do not exist naturally in Loon Pond.
    The  Final EIS  itself noted  that the  East Branch  has been
    designated  by the  New Hampshire  legislature as  a  Class B
    Waterway,  a  lower  quality  designation than  the  Class  A
    quality rating  of Loon Pond.  JA, vol. II,  FEIS at 91.  The
    difference in classifications -- the East Branch as a Class B
    waterway,  Loon Pond as Class  A -- evinces  a higher quality
    level for the Pond than for the River, and  belies the Forest
    Service's assertion that the two bodies of water are "of like
    quality."
    Even  if the  East  Branch were  rated in  the same
    general class as Loon Pond (Class A), that would not mean the
    two bodies of water  were identical in quality, such  that an
    NPDES permit  would be unnecessary.  The East Branch contains
    different  organisms than  Loon  Pond,  inter  alia,  Giardia
    lambia.    Loon Pond  is also  colder  overall than  the East
    Branch, and its  lower depths are significantly  colder.  The
    two  bodies  of   water  also  have  different   chemistries,
    especially the  low level of  phosphorus in Loon  Pond, which
    affects  its  biological composition.    Nor  has the  Forest
    Service argued  that all such pollutants  would be eliminated
    -67-
    before any East  Branch water  would be pumped  up to  refill
    Loon  Pond after depletion  by Loon Corp.'s  snowmaking.  The
    Service  cannot say,  therefore, that  the discharge  of East
    Branch  water  into  Loon  Pond  would  not  result  in  "any
    pollutants"  being   added  to  the   Pond.    33   U.S.C.
    1362(12)(A).
    Aside  from the  difficulty of  defining a  general
    concept  such  as  "of  like quality,"  it  would  defeat the
    purpose  of  the  CWA's   permit  process  to  interpret  the
    statutory language "discharge of  any pollutant," 33 U.S.C.
    1311(a),  to be  implicitly qualified  by the  phrase "except
    when  the transferee body of water  is of like quality."  The
    Forest  Service  is simply  wrong  to  analogize the  present
    situation to  a dam that  merely accumulates the  same water,
    see National  Wildlife Fed'n v.  Gorsuch, 
    693 F.2d 156
    ,  175
    (D.C.  Cir. 1982),  or a  pump storage  facility  that stores
    water from  one  source in  a different  place, see  National
    Wildlife Fed'n v. Consumers  Power Co., 
    862 F.2d 580
    ,  589-90
    (6th Cir. 1988), as distinguished from moving different water
    from one  flowing water body into  another stationary, colder
    body.   We  cannot allow  such a  watering down  of Congress'
    clear statutory protections.
    We hold  that the Pemigewasset River  and Loon Pond
    are  two distinct "waters of the United States," and that the
    proposed transfer of  water from one to the other constitutes
    -68-
    an "addition."  Where,  as is undisputed here,  the discharge
    is through  a  point source  and  the intake  water  contains
    pollutants,  an  NPDES  permit   is  required.    The  Forest
    Service's determination  to the  contrary  was arbitrary  and
    capricious and not  in accordance with law.   See 5  U.S.C.
    706(2)(A).
    C.   Violation of State Water Quality Standards
    C.   Violation of State Water Quality Standards
    Plaintiff  Dubois claims  that state  water quality
    standards are violated because  of the quality of water  that
    would enter Loon Pond.  This water would come from one of two
    sources:  some of  it would come from snowmelt  that replaces
    the water that Loon Corp. has pumped out of Loon Pond to make
    snow; and  some would be water that Loon Corp. has taken from
    the East Branch for snowmaking  and then discharged into Loon
    Pond.    Dubois   contends  that   Loon  Corp.'s   snowmaking
    operations pose an impermissible  threat to Loon Pond because
    influxes  of  East  Branch  water  and  snowmelt --  the  two
    principal  sources of water to refill the Pond -- could alter
    the Pond's naturally occurring  pH, bacteria, oil and grease,
    and turbidity levels.
    On the merits of the water quality standards issue,
    Dubois  argues that  the CWA requires  states to  adopt water
    quality  standards which protect  against degradation  of the
    physical, chemical,  or biological attributes  of the state's
    waters.   33 U.S.C.     1251(a),  1313(d)(4)(B); 40 C.F.R.
    -69-
    131.12.   The greatest protection is  afforded to Outstanding
    Resource  Waters,  including  Loon   Pond,  as  to  which  no
    degradation  is permitted.   40  C.F.R.    131.12(a)(3); N.H.
    Code Admin. R. Env-Ws  437.06.  Dubois contends that  the ski
    resort's proposal to draw down  a significant amount of water
    changes the  physical structure of Loon  Pond; that refilling
    it with East Branch  water containing phosphorus (and through
    pipes that  might  contain oil  and  grease) or  with  acidic
    runoff would change the Pond's chemical composition; and that
    the  transfer  of  organisms   such  as  Giardia  lambia  and
    chemicals  such as phosphorus  into the Pond  would alter its
    biological  attributes.   Because we  hold infra  that Dubois
    cannot,  in  a  challenge   to  the  Forest  Service's  FEIS,
    collaterally  attack the state's  certification of compliance
    with state  water quality standards,  we need  not reach  the
    merits of the state water quality standards issue.
    Defendants  argued  in  the  district   court  that
    Dubois'  CWA claim  was not  properly presented,  that Dubois
    should  have raised  his  objections  by  exhausting  various
    administrative remedies and filing a timely appeal in the New
    Hampshire Supreme Court.  They argued that the federal agency
    (Forest Service) and the federal court lack the authority  to
    review   independently   and   determine   the   validity  of
    requirements  imposed under state law  or in a  state's   401
    certification, see 33 U.S.C.   1371(c)(2)(A) (1994), and that
    -70-
    such  authority  is expressly  delegated  to  the states,  33
    U.S.C.   1341(a) (1994).
    The district court agreed.  It held that, "[i]f the
    plaintiffs in this case were dissatisfied with the state's
    1341   certification,   they   could   have   challenged  the
    certification by exhausting state administrative remedies and
    filing  a  timely  challenge  in the  New  Hampshire  Supreme
    Court."  Memorandum and Order at 21-23.  That is true insofar
    as it goes.  The question, however, is  whether a state court
    action is the plaintiffs'  only recourse, or whether,  in the
    alternative, they had  a right to challenge in  federal court
    the federal agency's issuance of a federal permit in reliance
    on  the  state  certification,  where  the  basis  for  their
    challenge  is that  the  project fails  to  meet the  minimum
    standards of the federal Clean Water Act.
    Defendants may be correct  that the cases they rely
    upon hold that the state courts are the only fora in which to
    challenge  whatever requirements  the state adds,  beyond the
    minimum  required by the CWA.   Those cases  do not, however,
    deprive  the federal courts  of jurisdiction to  hear a claim
    that defendants have violated the  floor level of clean water
    requirements imposed by the CWA, i.e., the requirements which
    the state regulations share with the federal CWA.
    -71-
    The cases relied upon by the  defendants and by the
    district  court32  dealt  with  challenges  to   the  state's
    imposition of  more stringent  controls on a  project's water
    pollution effluent.  Such cases relied on the language of the
    CWA itself,  as well  as basic  principles of  federalism, to
    support their  holdings that the CWA  "empower[s]" the states
    "to set more stringent water quality standards than those set
    by the Act and its  attendant requirements" to prevent  water
    pollution.    Marathon  Dev.  Corp.,  867  F.2d  at  99;  see
    Commonwealth  of  P.R.,  
    721 F.2d at
    834  n.3;  Roosevelt
    Campobello,  
    684 F.2d at 1056
    .   However, the  states may not
    set  standards that are less  stringent than the  CWA's.  See
    Marathon  Dev. Corp.,  867 F.2d at  99.  Simply  put, the CWA
    provides  a federal  floor, not  a ceiling,  on environmental
    protection.   If a state seeks to  approve a standard that is
    less  stringent than  the federal  CWA's floor,  or  seeks to
    apply a standard  in a  way that is  otherwise invalid  under
    federal  law, then  federal agencies  and federal  courts are
    obligated to resolve  the application of  the federal CWA  in
    32.  They  rely  particularly  on  our  Roosevelt  Campobello
    decision, 
    684 F.2d at 1056
    , but also on Puerto Rico Sun  Oil,
    
    8 F.3d at 81
    ; United States v. Marathon Dev. Corp., 
    867 F.2d 96
    , 102 (1st Cir. 1989); Lake Erie Alliance for Protection of
    Coastal Corridor v. U.S.  Army Corps of Eng'rs, 
    526 F. Supp. 1063
    ,  1074  (W.D.Pa. 1981),  aff'd mem.,  
    707 F.2d 1392
     (3d
    Cir.), cert. denied, 
    464 U.S. 915
     (1983).  All of these cases
    involved  states imposing  more  stringent controls  on water
    pollution than required by federal law.
    -72-
    any case that  properly comes  before them.   See Keating  v.
    FERC, 
    927 F.2d at 624
    .
    The  Forest Service  asserts another  defense, also
    relied on by  the district court,  which carries more  force.
    Section 511(c)(2)(A)  of the  CWA precludes federal  agencies
    from invoking NEPA to authorize their review of "the adequacy
    of  any  certification under  section  [401]."   33  U.S.C.
    1371(c)(2)(A).  Dubois points  out that, in the circumstances
    of this  case, Section 511(c)(2)(A)  does not apply  when the
    discharge  of  pollutants in  question  is  not regulated  by
    effluent  limitations established  under CWA  Sections 301(b)
    and 302,  33 U.S.C.     1311(b) & 1312,  or by  an applicable
    standard of performance  under CWA Sections  306 and 307,  33
    U.S.C.    1316 & 1317.  Dubois  Brief at 27; see 33 U.S.C.
    1341(a).    Such  effluent  limitations   and  standards  are
    established  in NPDES permits  for point  source dischargers.
    33  U.S.C.    1311(b),  1312, 1316,  1317, 1362(11).   Dubois
    then tries  to bootstrap  the fact  that  the Forest  Service
    failed  to apply for an NPDES permit into a circumstance that
    renders Section  511(c)(2)(A) inapplicable.  Dubois  Brief at
    27-28.  His argument is without merit.
    It is true that the Forest Service was obligated to
    obtain an NPDES permit before permitting Loon Corp. to expand
    its  ski resort.    See Part  VII(B),  supra.   However,  the
    violation of  that statutory  obligation is a  separate issue
    -73-
    from the state water  quality standards issue.   For purposes
    of the  latter, the  fact  is that  there  do not  exist  any
    effluent limitations under CWA Sections 301(b) or 302 nor any
    standards of  performance under CWA Sections 306  or 307 that
    apply to  the discharge of  East Branch water  and pollutants
    into Loon Pond.  Therefore, whether or not the Forest Service
    actually   obtained  the   required  NPDES   permit,  Section
    511(c)(2)(A) applies, and  Dubois' challenge to the  adequacy
    of the state's Section  401 certification may not proceed  in
    this court.
    As the federal defendants argued in their brief and
    as we held in Roosevelt Campobello, 
    684 F.2d at 1056
    , Dubois'
    challenge  must be  addressed as  part of  EPA's "independent
    obligation to ensure that EPA-issued NPDES permits meet state
    water quality standards."  Forest Service Brief at 29; see 33
    U.S.C.     1311(b)(1)(C)  (1994).33   If,  upon  remand,  EPA
    determines  that a  permit  is appropriate,  with or  without
    33.  The availability of  EPA to perform this task is another
    reason supporting our holding in  Part VII(B), supra, that an
    NPDES permit is required.   See supra  note 30.  The  federal
    CWA  requires that  any state  certification ensure  that the
    minimal  federal  standards  have   been  adhered  to.    The
    government  is correct  that  the  Forest  Service  possesses
    neither  the  congressional  mandate  nor  the  expertise  to
    second-guess  state water  quality certifications.   But  EPA
    does; and the CWA envisions that EPA make those assurances in
    the context of deciding whether to issue an NPDES permit.
    -74-
    conditions or limitations,34 and if  plaintiffs disagree with
    EPA's  decision, then they may challenge such decision in any
    manner that is  available to them at the time.   But EPA, not
    the  Forest  Service,  is   the  proper  entity  to  evaluate
    compliance with state water quality standards.
    CONCLUSION
    CONCLUSION
    We affirm the district  court's denial of defendant
    Loon's  motion  to dismiss  plaintiff  Dubois'  complaint for
    failure to  meet his burden  of establishing his  standing to
    sue.
    We  reverse the  district court's grant  of summary
    judgment  in favor  of  defendants and  reverse the  district
    court's denial  of summary  judgment in favor  of plaintiffs,
    with
    34.  Whether  or not  the  NHDES certifies  that state  water
    quality  standards have  been  met, EPA  would  be "bound  to
    include in the federal permit 'any more stringent limitations
    .  . . established pursuant  to any State  law or regulations
    (under  authority preserved  by  section  510).'"   Roosevelt
    Campobello,   
    684 F.2d at 1056
       (quoting  33   U.S.C.
    1311(b)(1)(C)).
    -75-
    respect to
    (1) the NEPA/EIS issue relating to consideration of
    alternatives,
    (2) the supplemental EIS issue, and
    (3) the NPDES permit issue.
    We  affirm the  district court's  grant of  summary
    judgment  in  favor of  defendants  and  affirm the  district
    court's  denial of  summary  judgment in  favor of  plaintiff
    Dubois, with respect to the alleged violations of
    (1) Executive Order 11,990, and
    (2) state water quality standards under the CWA.
    Affirmed in part; reversed in part; remanded; costs
    Affirmed in part; reversed in part; remanded; costs
    on appeal awarded to plaintiffs.
    on appeal awarded to plaintiffs.
    -76-
    

Document Info

Docket Number: 96-1015

Filed Date: 12/19/1996

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (67)

Baker v. Carr , 82 S. Ct. 691 ( 1962 )

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Baltimore Gas & Electric Co. v. Natural Resources Defense ... , 103 S. Ct. 2246 ( 1983 )

International Union, United Automobile, Aerospace, & ... , 106 S. Ct. 2523 ( 1986 )

Lyng v. Northwest Indian Cemetery Protective Assn. , 108 S. Ct. 1319 ( 1988 )

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united-states-of-america-cross-appellant-and-state-of-florida-department , 772 F.2d 1501 ( 1985 )

seacoast-anti-pollution-league-and-audubon-society-of-new-hampshire-v , 598 F.2d 1221 ( 1979 )

northwest-indian-cemetery-protective-association-plaintiffs-v-r-max , 764 F.2d 581 ( 1985 )

commonwealth-of-massachusetts-and-conservation-law-foundation-of-new , 594 F.2d 872 ( 1979 )

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Warth v. Seldin , 95 S. Ct. 2197 ( 1975 )

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City of Burlington v. Dague , 112 S. Ct. 2638 ( 1992 )

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