Dubois v. Restore:

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
-5-
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-