Petition for Writ of Certiorari — Loon Mountain Recreation Corp. v. Dubois

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Supreme Court, U.S.

\ FILED

961539 MAR 28 1997

No. ggrice OF THE CLERK

In The

Supreme Court of the United States

ak eae

October Term, 1996

LOON MOUNTAIN RECREATION CORPORATION,

Petitioner,

VS.

ROLAND C. DUBOIS and RESTORE: THE NORTH WOODS,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit

PETITION FOR A WRIT OF CERTIORARI

EVAN SLAVITT

Counsel of Record

KIM GOSLANT

CAROL DIDGET

HINCKLEY, ALLEN & SNYDER

Attorneys for Petitioner

One Financial Center

Boston, Massachusetts 02111

(617) 345-9000

: utz

70826 (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 M naga

QUESTIONS PRESENTED FOR REVIEW

1. Does withdrawal and return of water to the same body

of water of the United States without addition of any pollutants

constitute a point source discharge requiring a permit under the

Clean Water Act?

2. Does transfer of water without addition of any pollutants

from one water of the United States to another constitute a point

source discharge requiring a permit under the Clean Water Act?

3. Does the National Environmental Policy Act require

review of additional mitigation alternatives when the agency

has determined that the planned mitigation completely

ameliorates any consequential environmental harm?

4. When all of the components of a selected alternative

under the National Environmental Policy Act have been fully

analyzed and considered, does the law require separate

consideration of such alternative sub hoc nomine?

LIST OF INTERESTED PARTIES

Petitioner:

Loon Mountain Recreation Corporation

(No parents or subsidiaries)

Respondents:

Roland C. Dubois

Restore: The North Woods

Other Parties:

The National Forest Service of the United

States Department of Agriculture

TABLE OF CONTENTS

Page

Questions Presented for Review ..........+005-0005 i

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Reasons for Granting the Writ ............-eeeeees 8

I. A CWA Permit Is Not Required for Withdrawal

and Return of Water From a Single Water Body,

or Transfer of Water Between Two Bodies of Water

That Constitute “Waters of the United States,”

When the Withdrawal and Return Does

Not Introduce any Pollutants. .............. 8

Contents

Circuit Courts Interpret Differently Whether

the Withdrawal of Water From and Return of

Water to a Single Water Body Without

Adding Pollutants Triggers the CWA’s

NPDES Requirements. ........cceeess

Circuit Courts Interpret Differently Whether

the Transfer of United States Waters Is a

Discharge of Pollutants If No Pollutants Are

Introduced During the Transfer Process ..

This Split at the Circuit Level Results in

Substantial Costs to Ski Areas,

Municipalities, Power Plants, and Water

Suppliers Nationwide and Subjecis Those

Same Entities to Unnecessary Inequities at

ne FOGGIA EVE 6c cc es hc ce ee cnseeses

Il. An Agency Is Not Required Under NEPA to

Consider Additional Mitigation Alternatives When

No Additional Mitigation Is Necessary. ......

II. When Every Element of a Project Alternative Is

Considered as a Part of Other Alternatives,

Further NEPA Analysis of the Final Alternative

SE PEE TOMONENYS So cosas rv eecdeadeenesats

Conclusion

Page

Contents

TABLE OF CITATIONS

Cases Cited: Page

Appalachian Power Co. v. Train, 545 F.2d 1351 (4th

Che, TSP) sic aeen caves Kouba he sese teens 11

Association Concerned About Tomorrow, Inc. v. Dole,

610 F. Supp. 1101 (N.D. Tex. 1985) .........--- 21

Avoyelles v. Marsh, 715 F.2d 897 (Sth Cir. 1983) .... 13

Bettis v. Town of Ontario, 800 F. Supp. 1113 (W.D.N.Y.

SORT Cc cc tank evss ve tes ud enna setenv eee ewet 9, 14

California v. Block, 690 F.2d 753 (9th Cir. 1982) .... 24

City of Carmel-By-The-Sea v. United States Dep't of

Transp., 95 F.3d 892 (9th Cir. 1996) ........--+- 18

Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.

FOOTE ok ici awe seeks cece he eee rea eeinaes 14

Davison v. Dep’t of Defense, 560 F. Supp. 1019 (S.D.

Chie F962) cis cues secencnsnedsvneecenrs sea 19

Del-AWARE Unltd., Inc. v. Pennsylvania DER, 508 A.2d

348 (Pa. 1986) ....ccrcccccevcvsscsccscascnes 14

Dubois v United States Dep't of Agriculture, Civil No.

95-50-B (D.N.H. Nov. 2, 1995) .....-eeeeeevees ]

——

Contents

Page

Dubois vy. United States Dep't of Agriculture, 102 F.3d

ESES CSU GA OO? 0 ka shies a bnessa keeckwwaee I

Environmental Defense Fund v. Hoffman, 566 F.2d 1060

(SIN Ce. SPREE sacs cioes vaaanicagelescnasee 19

Environmental Defense Fund v. Marsh, 651 F.2d 983 (5th

CW, EOD a iden ew eceee ecient 21

Half Moon Bay Fishermans’ Mktg. Ass'n v. Carlucci, 857

Te ae COU Gh BOUT we e's p neke we eanreseeeean 23

Headwaters, Inc. v. Bureau of Land Management, 914

6 8374 CO Oe, TOR cisedcicksroewre ces 21

Missouri ex rel. Ashcroft v. Dep’t of the Army, 672 F.2d

Save COC GO, PAGE i baie d eakaea das ca bones 1]

National Wildlife Federation v. Consumers Power Co.,

S62 F.26 SHO (6th Che. 19GB) 9 isicss cits ccwnke on 8, 11, 12

National Wildlife Federation v. Gorsuch, 693 F.2d 156

GAG, GAR, TRE i isie ii eke eeeeanen 8, 9, 10, 11, 12, 14

Pennsylvania Protect Our Water & Envtl. Resources, Inc.

v. Appalachian Regional Comm'n, 574 F. Supp.

Sas CG: FU RPOEE bch v cas wee) denwctsenabes 19, 23

Robertson v. Methow Valley Citizens Council, 490 U.S.

Dae CIPEED vc cvverendsClicneb er pepe weaceran 19

vil

Contents

Page

Rybachek v. United States EPA, 904 F.2d 1276 (9th Cir.

PGE cacccecccasbeVaxee cdcebnessiee cadtenecs 12

Sierra Club v. Froehlke, 816 F.2d 205 (5th Cir. 1987)

Ci ss wal awake ws 064 £40804 04 50 eee NTRS 22

Sierra Club v. Marsh, 744 F. Supp. 352 (D. Me. 1989)

CCU eL a Lei cebu hbase ew bbe cev avebet ceimash eee 22

United States v. Florida, 772 F.2d 1501 (11th Cir. 1985)

Eee ide heh de a wN No SO EEM PENN MER AS een 13

United States v. Sinclair Oil Co., 767 F. Supp. 200 (D.

CO SE i eb cdabser i Cenebaceb ens Gest drnwan 13

Valley Citizens For A Safe Environmeni v. Aldridge, 886

Pe ASS {ik Ce: TOG) ide devi cn cedes dee ba ven 21

Vermont Yankee Nuclear Power Corp. v. Natural

Resources Defense Council, Inc., 435 U.S. 519

$4 fo PPO Re ee Peery ere ee TT ee 20, 21

West Branch Valley Flood Protection Ass'n v. Stone, 820

F, Supp. 1 (D.D.C. 1993) .....cceececeecnees 19, 22, 23

Statutes Cited:

S USL. OSU MG. vcncacciwcccuvesiveseseees l

16 U.S.C. § AGT(D) 2. cccccveccccvcvccveeceenses 4

vill

Contents

Page

BP Mable BEBO) sbnene sds sub eeKueneereveaxs l

et Ach, Bee Ae Si ions dad oo eed ee eR ]

AP in Se SOT nh Re SS kD 044 ban Kh Ea eS 9

Oe Wee SMEG. SRST T UN Oe cheeks Hea ae es CHa ek 9

SE A IMUATE 6 AN Res KOS ERE EA Ta eeepc 9

BO WiAan WE SPURS 6 ie WRCKESARR AW e ESS Naeeens 9

Ce Us B Aaee EEO: 6 iS RESIN RE ea I

Other Authorities Cited:

PAs EF ES EERE) A TAETEe ew COR DEN Cee e Rees 21

Oe Se Te COURT bs ode dave ass Rowengeeeeees 20

118 Cong. Rec. 9124-25 (daily ed. Oct. 4, 1972) .... 9

H.R. Rep. No. 92-911, 92d Cong. 2d Sess. 131 (1972) é

H.R. Rep. No. 92-1465, 92d Cong. 2d Sess. 144 (1972)

EOE E OL OET Ce, ey EE GT OP Dee oP bey hap ares 9

Daniel R. Mandelker, NEPA Law and Litigation §§ 9.05,

Se Se SEED as Spee 5S d webs ene ees 21

Contents

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the First Circuit Dated December 19,

BE cua kha sbavk set creda sAReNeRheeRCey gee

Appendix B — Order of The United States Court of

Appeals for the First Circuit Entered February 13,

Of GRE awe Dey pene E yy fe et ne ee ey

Appendix C — Memorandum and Order of the United

States District Court for the District of New

Hampshire Filed November 23, 1995 .........-+.

Appendix D — Relevant Statutes .......---sseeees

Appendix E — Relevant Regulations ...........+--

Page

60a

OPINIONS BELOW

The opinion of the court below, Dubois v. United States

Department of Agriculture, 102 F.3d 1273 (1st Cir. 1996), is

annexed hereto as Appendix A. The modification ordered after

Petitions for Rehearing is annexed hereto as Appendix B. The

opinion of the United States District Court for the District of

New Hampshire, Dubois v. United States Department of

Agriculture, Civil No. 95-50-B (D.N.H. November 2, 1995), is

annexed hereto as Appendix C.

STATUTES INVOLVED

Excerpts of the relevant statutes are annexed hereto as

Appendix D.

REGULATIONS INVOLVED

Excerpts of the relevant regulations are annexed hereto as

Appendix E.

STATEMENT OF JURISDICTION

The judgment of the Appeals Court was issued on December

19, 1996, and requests by the parties for rehearing were granted

in part and denied in part on February 13, 1997. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254(1).

The underlying District Court case arose under the National

Environmental Policy Act, 42 U.S.C. § 4331 et seq.; the

Administrative Procedures Act, 5 U.S.C. § 501 et seq.; and the

Clean Water Act, 33 U.S.C. § 1251 et seq.

STATEMENT OF THE CASE

A. Procedural History.

Roland Dubois initiated this matter in June, 1994, by filing

a complaint against the Forest Service, an agency within the

United States Department of Agriculture (the “Forest Service”),

in the District Court for the District of Columbia. He alleged in

his original complaint that the Forest Service violated the

National Environmental Policy Act (“NEPA”) and the

Administrative Procedures Act (“APA”) by issuing its Record

of Decision (“ROD”) granting Loon Mountain Recreation

Corporation’s (“Loon”) application to expand its ski operations

in the White Mountain National Forest (the “National Forest’)

in Lincoln, New Hampshire. Dubois also claimed that the

expanded operations would violate state antidegradation

standards and the federal Clean Water Act (“CWA”). The First

Amended Complaint and Application for Injunctive Relief

named the same government defendants, but contained no CWA

claims.

The proceeding was transferred to the United States District

Court for the District of New Hampshire in February, 1995.

Dubois then filed a Second Amended Complaint and Application

for Injunctive Relief, claiming the Forest Service violated the

CWA by authorizing Loon’s snowmaking operations. He

asserted no claim against Loon.

In March, 1995, RESTORE: The North Woods

(“RESTORE”) intervened as a plaintiff asserting the same

claims. Shortly thereafter, Loon intervened. The parties filed

cross motions for summary judgment. The District Court

disposed of the cross motions for summary judgment in its

Memorandum and Order of November 2, 1995. Appendix C.'

1. Following the hearing on the motions for summary judgment, Dubois

(Cont'd)

In doing so the District Court granted to the Forest Service

summary judgment on DuBois and Restore's NEPA, CWA, and

state water quality standard claims.

On December 19, 1996, the United States Court of Appeals

for the First Circuit partially reversed the District Court’s

dismissal, holding that a Supplemental Environmental Impact

Statement under NEPA was required for the development

alternative chosen, and that the Forest Service was required to

obtain a permit under the CWA for certain discharges from

Loon’s snowmaking system into Loon Pond. Appendix A.

Both Loon and the Forest Service filed timely motions for

rehearing. Dubois also filed a conditional request for rehearing.

On February 13, 1997, the Court of Appeals modified its

December 19 decision to state that Loon, not the Forest Service,

was required to obtain the permit in question, but otherwise

denied the requests for a rehearing. Appendix B. The Court of

Appeals subsequently denied motions by Loon to stay issuance

of its mandate to the District Court, and to recall the issuance

of that mandate, while Loon prepared its Petition for a Writ of

Certiorari.

(Cont'd)

filed a supplemental brief on water quality issues. On June 24, 1995, he also

filed a motion to amend, seeking leave to pursue a third amended complaint.

The proposed complaint, filed only thirty days after Loon’s intervention,

named Loon as a defendant for the first time. It claimed that Loon’s

snowmaking operations violate the CWA. The District Court did not rule on

Dubois’ motion to amend. Dubois filed his Notice of Appeal on December

28, 1995, and on the same day moved the District Court for a ruling on the

motion to amend. The District Court issued an order allowing Dubois’ Motion

to Amend on January 22, 1996, but not until after the appeal was docketed

and the record was certified.

B. Statement of Facts.

Loon, a New Hampshire corporation, operates the Loon

Mountain Ski Area in Lincoln, New Hampshire. Loon began

its downhill ski operation over thirty years ago. It has grown

and developed into a major destination resort, winning

recognition as New Hampshire's most popular ski resort, and

contributing significantly to the economic well-being of its host

town and the State of New Hampshire.

Since part of the ski area is located in the National Forest,

Loon has been operating under a permit issued by the Forest

Service in 1976 pursuant to the National Forest Ski Area Permit

Act, 16 U.S.C. § 497(b). The permit authorized development

of the ski area to its present configuration, with some additional

expansion of facilities. It also authorized construction in 1978

of Loon’s current snowmaking operation, which involves

pumping water from the East Branch of the Pemigewasset River

(the “East Branch”), from Boyle Brook, and from Loon Pond

and transferring water from the East Branch to Loon Pond.’

To address conditions of overcrowding and congestion, and

to respond to changes in ski area technology and market demand,

Loon applied to the Forest Service in November, 1986, for an

amendment to its permit allowing for a phased expansion of the

ski area. The plan contemplated improvements in existing areas

to more safely accommodate skiers, replacement of two lifts

with a high speed “quad” lift, installation of new trails serviced

by the quad, and the upgrade of snowmaking facilities with

expanded coverage. It also contemplated expansion of

operations onto additional National Forest land previously

designated for that purpose.

2. Such transfers are made in order to minimize the net drawdown from

Loon Pond and to mitigate the impact of water withdrawal on Loon Pond.

oo pti ell

Loon’s plan was consistent with and pursuant to the White

Mountain National Forest Land and Resource Management Plan

(“Forest Plan”), which has been a key part of the winter

recreation history of New England. The Forest Plan encourages

further development of recreational opportunities through private

enterprise, and recognizes the importance of downhill skiing as

a vital, component of public outdoor recreation in New

Hampshire. The Forest Plan expressly contemplated expansion

of existing ski areas onto adjacent National Forest land set aside

and reserved for such purpose.

Over the next seven years, the proposed expansion was

examined extensively in the NEPA process. In addition to the

Draft Environmental Impact Statement (“EIS”) completed in

1989, the Forest Service prepared a Supplemental EIS (1989),

a Revised Draft EIS (1991), and a Final EIS (1992). Public

comments were accepted and a formal advisory committee was

convened. At each stage, the Forest Service examined each

aspect of the alternatives before it on an aspect-by-aspect basis.

Thus, for example, the water use implications of each alternative

then before the Forest Service were analyzed, compared, and

contrasted. The Forest Service also examined all mitigation

alternatives for each alternative up to the point at which all

material environmental impacts of such alternative were fully

mitigated or avoided.

The Forest Service issued its ROD on March 1, 1993. It

approved a revised version of Loon’s expansion plan based on a

combination of aspects of previously examined alternatives and

granted a new forty-year permit (the “Permit”) to replace the

one scheduled to expire in 2006. Subject to Forest Service

approval of plans and extensive mitigation measures, the Permit

allowed Loon to proceed with the so-called Sixth Alternative

(“Alternative 6”), representing a consolidation and refinement

of elements of five other alternatives and a significantly reduced

level of development, involving only one-half of the National

Forest land previously allocated for potential expansion.

The Permit allowed some expansion of Loon’s snowmaking

operation to encompass the additional trails but left materially

unchanged the system for pumping and transferring water.

Snowmaking on existing ski terrain was to continue using water

from the East Branch, Boyle Brook, and Loon Pond.’ Extensive

testing and monitoring were to continue, and stringent

limitations to protect the environment were imposed. Under

both the former and new permits Loon’s snowmaking and water

transfer facilities were designed to ensure that only Class A

quality water from the East Branch enters Loon Pond, a

state-designated Class A body of water. Water drawn from the

river is tested daily by Loon to check its quality.

In the snowmaking process, water is pumped through the

main line to a mid-slope valve station and to an upper mountain

compressor house; it is distributed from these locations to

various parts of the mountain for snowmaking, or, from the

compressor house, to recharge Loon Pond. Water also is drawn

from Loon Pond for upper mountain snowmaking. A valve on

each hydrant in the snowmaking system controls the flow of

3. Since 1974, Loon facilities also have been an integral part of Lincoln's

public water delivery system. Loon and the Town have had an agreement,

approved by the Forest Service, allowing Loon to use Loon Pond water for

snowmaking; Loon personne! monitor the level of Loon Pond and operate

equipment there to ensure sufficient flow to and water resources for the Town.

Following an unusually dry year in 1988-89 when the Pond was drawn down

10.5 feet, Loon and the Town revised their agreement, allowing Loon to install

a new siphon at the Pond to accommodate a drawdown of 15 feet. In 1990,

the New Hampshire legislature encouraged further development by expressly

authorizing Loon to take water for snowmaking from the East Branch and

from Loon Pond, subject to federal, state, and town permits and agreements.

N.H. Session Laws, Chapter 239:2 (1990).

shat cece al

fae taticleoy ieey See AOE ieee

water to the nozzle of a snow gun. Compressed air is delivered

to hydrants through a system wholly separate from the water

distribution system, and air is mixed with water only at the nozzle

to produce snow. All of the water that is mixed with air at the

nozzle is used for snowmaking and is discharged from the

nozzle. When a hydrant is closed, the residual water that has

been mixed with air is forced out through the nozzle and a check

valve prevents residual water from returning to the snowmaking

system, causing all remaining air-mixed water in the hydrant

stem to drain onto the ground. The non-air-mixed water

remaining in the water distribution pipes, however, is drained

back to its source. As evidence before the Forest Service and

the District Court reflects,‘ none of the water that drains back

or that is pumped through the system and directed into Loon

Pond is mixed with air or otherwise subjected or exposed to

intervening use, change, additives, or contaminants of any kind.°

4. The First Circuit mentions the possibility of oil and grease being

present in the pipes, but the opinion did not rely on that hypothetical

possibility. Appendix A, Op. at 47a n.29. No oil and grease were found by

the Forest Service or the District Court.

5. The State of New Hampshire was satisfied that the expanded

operations, as subjected to complex mitigation measures, would not adversely

affect the water quality and beneficial use of Loon Pond, and thus would not

violate state antidegradation rules. On December 22, 1993, the state issued a

Section 401 Water Quality Certificate for these expanded operations, under

its EPA-approved certification process.

REASONS FOR GRANTING THE WRIT

A CWA PERMIT IS NOT REQUIRED FOR

WITHDRAWAL AND RETURN OF WATER FROM A

SINGLE WATER BODY, OR TRANSFER OF WATER

BETWEEN TWO BODIES OF WATER THAT

CONSTITUTE “WATERS OF THE UNITED STATES,”

WHEN THE WITHDRAWAL AND RETURN DOES NOT

INTRODUCE ANY POLLUTANTS.

The instant case is one of several causing a split among the

circuit courts regarding whether a CWA — also called a National

Pollutant Discharge Elimination System (“NPDES”) — permit

is required (1) to withdraw and return water to the same water

body without addition of any pollutants; or (2) to transfer water

without addition of any pollutants from one body of water of

the United States to another via a point source. The Court of

Appeals for the First Circuit held that, because “the East Branch

and Loon Pond are not the same body of water” and because

“the transfer of water or its contents from the East Branch to

Loon Pond would not occur naturally,” a permit was required.

Appendix A, Op. at 48a. It further stated that, even if the water

were returned to the same body from which it was withdrawn,

Appendix A, Op. at 50a, the discharge of water from the

snowmaking system into Loon Pond required a permit under

the CWA. This decision is inconsistent with the Environmental

Protection Agency’s (the “EPA”) historical administrative

practice and determination that NPDES permits are not needed

in such instances, as well as some — but not all — case law

holding that the addition of pollutants is the critical determinant

of whether an NPDES permit is required for that process. See

National Wildlife Federation v. Consumers Power Co., 862 F.2d

580, 583-90 (6th Cir. 1988); National Wildlife Federation v.

alate oral

Sabah Mattiaad aig astet Oa a abl NEP Vth SRAM heh Bink AE OA RAND

Gorsuch, 693 F.2d 156, 171-75 (D.C. Cir. 1982); Bettis v. Town

of Ontario, 800 F. Supp. 1113, 1119 (W.D.N.Y. 1992).

Accordingly, Supreme Court review is essential not only to

coordinate law among the circuits but also to determine core

issues under the CWA that affect or could affect, inter alia, every

ski facility, municipal water supply, and hydroelectric plant in

the United States.

The CWA governs any discharge of pollutants into navigable

waters of the United States. 33 U.S.C. §§ 1311 and 1362(12).

“Navigable waters” for purposes of NPDES are “the waters of

the United States.” 33 U.S.C. § 1362(7). It is unclear whether

Congress intended to regulate waters from one body designated

“waters of the United States” transferred back to that same body

or to another. Appendix C, D. Ct. Op. at 70a. See Legislative

History of the CWA, 33 U.S.C. § 1362(7) at H.R. Rep. No.

92-911, 92d Cong. 2d Sess. 131 (1972); H.R. Rep. No. 92-1465,

92d Cong., 2d Sess. 144 (1972); 118 Cong. Rec. 9124-25 (daily

ed. Oct. 4, 1972). According to the congressional statement of

purpose, however, the CWA was designed to restore and maintain

the chemical, physical and biological integrity of the Nation’s

waters, 33 U.S.C. § 1251(a), thereby indicating a general

purpose to protect such waters from man-made pollution, not

from each other.

A. Circuit Courts Interpret Differently Whether the

Withdrawal of Water From and Return of Water to a

Single Water Body Without Adding Pollutants Triggers

the CWA’s NPDES Requirements. —

In the case below, the District Court decision did not focus

on the withdrawal and return of water to the same water body.

This critical issue first arose in the First Circuit. Even this

decision, however, failed to fully analyze the issue and arrived

at its conclusion after circuitous reasoning. The First Circuit's

decision turns on the idea that once water leaves the “domain of

nature” it becomes a discharge if later returned to its source,

even if returned unchanged. Whether any pollutants were added

to the water or whether the water was affected was immaterial

according to the court’s decision.

This issue is a matter of controversy among the appellate

courts, with a split of three or four circuits on either side of the

issue. For example, in National Wildlife Federation v. Gorsuch,

693 F.2d 156 (D.C. Cir. 1982), the dam holding back waters of

a certain river in a reservoir was deemed a “point source” under

the CWA. The Court of Appeals for the District of Columbia

decided, however, that certain dam-induced water quality

changes did not constitute “discharges of pollutants” under the

CWA, and therefore dam operators were not required to obtain

NPDES permits. The court deferred to the EPA’s view that water

quality effects® evident in reservoirs and river water downstream

of dams are not pollutants as defined in the CWA. The Gorsuch

Court affirmed the EPA’s interpretation of the statute, which it

described as “a natural reading, both on its face and in light of

the legislative history.” /d. at 174. The court reasoned that, had

Congress wanted to apply the NPDES system to all pollution

released, it would not have kept the restriction to “added

pollutants.” Jd. at 176.

In short, under Gorsuch, the NPDES permitting process is

implicated only if the point source adds the pollutant into

navigable water from the “outside world.” Jd. at 165, 174-75.

While the facility in some circumstances can be a point source,

“the point or nonpoint character of pollution is established when

the pollutant first enters navigable water, and does not change

when the polluted water later passes through the dam from one

6. Such effects include low dissolved oxygen, concentration of dissolved

minerals and nutrients, water temperature cnanges, and sediment release.

COE

body of navigable water (the reservoir) to another (the

downstream river).” Id. at 175. Under the Gorsuch analysis, if

no pollutants are added by Loon’s pumping system, return of

water to the sources would raise no permit issue.

The Gorsuch decision essentially incorporated the Fourth

Circuit’s reasoning in Appalachian Power Co. v. Train, 545 F.2d

1351 (4th Cir. 1976). That court held that “(t]he Act prohibits

only the addition of any pollutant to navigable waters from a

point source. Those constituents occurring naturally in the

waterways or occurring as a result of other industrial discharges,

do not constitute an addition of pollutants by a plant through

which they pass.” Appalachian Power, 545 F.2d at 1377

(emphasis added). See also Missouri ex rel. Ashcroft v. Dep't of

the Army, 672 F.2d 1297 (8th Cir. 1982). A contrary rule would

preclude the EPA from defining pollutant to exclude beneficial

water quality changes, a limitation on EPA’s considerable

authority and discretion under the CWA. Gorsuch, 693 F.2d at

173, 182; see Consumers Power, 862 F.2d at 585.

The Sixth Circuit came to similar conclusions in National

Wildlife Federation v. Consumers Power Co., 862 F.2d 580 (6th

Cir. 1988). It held that the Ludington hydroelectric facility was

not required to obtain an NPDES permit to continue its practice

of using water to generate power and subsequently dump the

water and entrained fish into Lake Michigan. At the Ludington

facility six pumps move Lake Michigan water through hundreds

of feet of pipe, through large penstocks, into a manmade

reservoir. To generate power, water released from the reservoir

passes through turbines and then is released back into Lake

Michigan. During normal operations, large quantities of fish

and other aquatic organisms are drawn into the system

(“entrained”) and destroyed. The remains, along with fish and

organisms that survive, are dumped back into the Lake. There

was no doubt in Consumers Power that entrains constituted

“biological materials” and were thus “pollutants” as defined in

the Act. Nevertheless, the Court held that “movement of

pollutants already in the water is not an ‘addition’ of pollutants

to navigable waters of the United States.” Consumers Power,

862 F.2d at 580-81 (emphasis added).’

The Consumers Power court affirmed the EPA’s historical

position that there is no “addition” unless a source “‘physically

introduces a pollutant into water from the outside world.” Jd. at

584. Since the entrained fish originated in the Lake, they did

not enter the Lake from the “outside world,” Jd. at 581, 584-85,

and movement of the polluting biological material into a different

body of water through a massive pumping and turbine system

does not trigger NPDES. The dead fish, indeed, changed the

quality of the receiving water, just as storage dams were found

in Gorsuch to transform the essential character of the water for

its biological inhabitants. Consumers Power, 862 F.2d at 585.

Nevertheless, since the facility did not create the fish which

became entrained in the generating process, it caused no

“addition” of a pollutant. Jd. at 585-86.

On the other hand, the First Circuit, in its opinion in this

case, joins at least three other circuits in finding that the mere

withdrawal and replacement of that very same water requires

an NPDES permit. The court held that withdrawal and

replacements were no different than transfers to a different body

of water and also required an NPDES permit. Appendix A, Op.

at 50a. By doing so this Circuit joins the Fifth, Ninth and

Eleventh Circuits in holding that NPDES permits are required

for withdrawals and replacements, even without an addition to

the water or ecosystem. See Rybachek v. United States EPA,

904 F.2d 1276, 1285 (9th Cir. 1990) (“[E]ven if the material

7. Turbine generating waters are distinguished from operational

wastewaier which contain pollutants from outside the power generating

system. Discharge of the latter is subject to NPDES. /d. at 582.

crtinpnntcecceesedel

discharged originally comes from the streambed itself, such

resuspension may be interpreted to be an addition of a pollutant

under the Act.”); United States v. Florida, 772 F.2d 1501, 1506

(11th Cir, 1985) (Following Avoyelles and the “broad objectives”

of the CWA, the Eleventh Circuit held that the “word ‘addition’

as used in the definition of the term ‘discharge,’ may reasonably

be understood to include ‘redeposit’.”); Avoyelles v. Marsh, 715

F.2d 897, 923 (Sth Cir. 1983). See also United States v. Sinclair

Oil Co., 767 F. Supp. 200, 204 (D. Ore. 1990) (holding that an

NPDES permit was necessary if the defendant redeposited

certain indigenous materials into the river).

B. Circuit Courts Interpret Differently Whether the Transfer

of United States Waters Is a Discharge of Pollutants If

No Pollutants Are Introduced During the Transjer

Process.

Similar issues are implicated when courts examine the

slightly different issue of whether the CWA requirements are

triggered when water is transferred from one body of water of

the United States to another. This question is closely linked to

the first in that (i) the same elements of the CWA apply; (ii) no

pollutants are added during the transfer; and (iii) courts, within

each circuit, use the same means of analysis. As a result, on

this issue as well there are significant discrepancies in the law

between circuits.

In the instant case, the United States District Court for the

District of New Hampshire upheld the EPA’s position as stated

before it by the United States Department of Justice that a

NPDES permit would not be required to mix waters of the United

States, regardless of their relative water quality, because there

was no intervening use of the water causing it to lose its status

as waters of the United States.* The District Court determined

8. This is not to say that different bodies and portions of waters of the

(Cont'd)

that, since Loon added nothing to the water in the transfer

process, the mere transfer of the water from one body of water

of the United States to another did not subject Loon to CWA

permitting requirements. Appendix C, D. Ct. Op. at 75a.

The First Circuit, however, inserted a heretofore unknown

distinction into its analysis under the CWA. Reasoning that

since the waters of the United States from which the water was

drawn were “distinct” from the water to which it was transferred,

the proposed transfer constitutes an “addition” and requires an

NPDES permit. Appendix A, Op. at 53a. This analysis is

consistent with a Second Circuit holding that a railroad culvert

between the two bodies of water of the United States through

which water passed was a point source and thus the discharger

was subject to the CWA. Dague v. City of Burlington, 935 F.2d

1343 (2d Cir. 1991). Thus, it found a city liable for unpermitted

discharges. See also Del-AWARE Unitd., Inc. v. Pennsylvania

DER, 508 A.2d 348 (Pa. 1986).

As with the withdrawal and replacement of water, certain

courts have held that the transfer of water from one body of

water of the United States to another does not require an NPDES

permit. A District Court in New York, for example, held that

“water itself, ... is not a pollutant. Simply moving water from

once place to another . . . does not constitute the discharge of a

pollutant under the Act.” Bettis v. Town of Ontario, 800 F. Supp.

1113, 1119 (W.D.N.Y. 1992) (citation omitted).

(Cont'd)

United States are completely unprotected. Such water quality issues are

regulated by state water quality antidegradation laws and regulations for

which, as here, an NPDES permit is not required. See also Gorsuch, 693

F.2d at 171-73. Congress “explicitly chose not to completely federalize water

pollution control, but instead directed the states to establish their own pollution

control programs under EPA oversight.” /d. at 178.

C. This Split at the Circuit Level Results in Substantial

Costs to Ski Areas, Municipalities, Power Plants, and

Water Suppliers Nationwide and Subjects Those Same

Entities to Unnecessary Inequities at the Federal Level.

It is of considerable national importance that this Court

review the application and interpretation of the CWA in the

situations discussed above. First, as enumerated supra, the

Courts of Appeals have set diverging precedents with no majonty

rule or reconcilation in sight. As such, at present, a ski resort or

any other entity replacing or transferring water would not be

subject to the Clean Water Act if located in some parts of the

United States, but that same activity in New Hampshire would

be subject to CWA permitting requirements. These resulting

discrepancies in the treatment of identical entities are contrary

to the purpose of consistent enforcement of the environmental

laws and their resulting economic impact. Within the First

Circuit, for example, its decision is likely to have a major adverse

impact on the ski industry in three states in New England —

Massachusetts, New Hampshire and Maine — compared to

neighboring Vermont and New York.

Indeed, the interpretation now governing in New Hampshire

and throughout the First Circuit and several other Circuits, set

in the instant case, marks a radical departure from the traditional

concepts and analysis of the CWA which affect a myriad of

entities other than ski facilities. Specifically, the First Circuit

has decreed that any water which “leaves the domain of nature”

is subject to regulation under the CWA. Appendix A, Op. at

49a. This broad interpretation would affect businesses,

municipalities, public works, and individuals, none of whom

currently have NPDES permits. For example, almost every water

supply facility releases some water back to its source as part of

its routine operations. All hydroelectric facilities enclose water

for some period as do flood control dams or spillways. Most

fire departments on a coast or near a river have one or more

fire-fighting barges that would require permits. Without review

from this Court to clarify the reading from the CWA, the

aforementioned entities may be forced to apply, perhaps

unnecessarily, for permits, invest unnecessary amounts of time

and money, and perhaps cease operations in an effort to comply

when Congress never anticipated nor intended that all of these

entities be subject to the NPDES requirements. In addition this

would impose a large regulatory burden on an understaffed EPA

and on state agencies which will, in turn, result in lengthy

permitting delays. Without review by this Court, great expense

and injustice to a broad base of public, commercial, and

individual entities could result and the law of the federal appeals

courts will remain unsettled.

Il.

AN AGENCY IS NOT REQUIRED UNDER NEPA TO

CONSIDER ADDITIONAL MITIGATION ALTER-

NATIVES WHEN NO ADDITIONAL MITIGATION IS

NECESSARY.

Whether the courts can require examination of further

mitigation alternatives once mitigation is deemed satisfactory

in a full NEPA process has important federal policy implications

for NEPA reviews. It is likely to arise again in similar factual

situations, but evade meaningful judicial review because of the

cost and expense of the NEPA process and the comparative rarity

of full-fledged NEPA appeals. In the instant case, the Circuit

Court’s decision on this issue is an unwarranted expansion and

extension of NEPA procedures that will have a nationwide effect.

In its NEPA proceedings, the Forest Service considered the

return of water from Loon’s snowmaking system as a means of

mitigating the impact of incremental water withdrawal on Loon

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;

Pond, and deemed this mitigation measure fully and completely

satisfactory. Nevertheless, the Circuit Court determined that,

by failing to consider the use of holding ponds as a possible

mitigation measure, the Forest Service had “not vigorously

explored all reasonable alternatives.” Appendix A, Op. at 27a,

28a-30a. In essence, the Circuit Court found that, merely

because such measures had been suggested during the public

comment period, the Forest Service was bound to consider them.

In the Court's view, the Forest Service’s failure to do so rendered

the ROD fatally defective. In reaching its conclusion, the First

Circuit diverged from other circuit law, and expanded and

misread NEPA.

The First Circuit correctly noted that, in exploring projects,

an agency is required to review all reasonable alternatives to a

project. The cases so holding, however, focus exclusively on

the projects themselves and not on the mitigation measures for

each alternative project. It is this point that distinguishes

requirements of examining all reasonable alternatives to a

proposed project from examining all alternatives to mitigation

of the effects of that project. The purpose served by looking at

all project alternatives is clear: any project is likely to have

many impacts that can only be understood by a thorough review

of all possible project alternatives and impacts. In contrast,

consideration of alternatives for mitigation is necessary only

up to the point at which the impact is resolved. If an agency

were considering a project that did not involve incremental water

discharges and had no other adverse water quality impacts, for

example, no mitigation concerning water discharges would need

to be considered. No one would suggest that the process was

inadequate if it failed to consider all mitigation alternatives that

could be implemented; such a review would be unnecessary to

accomplish the “no adverse impacts” goals of NEPA.

That same analysis applies when mitigation is deemed

satisfactory. It is, in essence, the same as if no adverse impact

occurred at all. Once adverse impacts are satisfactorily

mitigated, no further alternatives need be examined. To take a

medical analogy, once the disease is cured, the doctor’s job is

done. The doctor may still have other medicines in his or her

bag, but there is no need to explore their use and it would be

pointless and economically wasteful to do so.

Applying this point to the specific context of the present

case, there is no dispute that the suggested holding ponds are

exclusively mitigation measures.? Appendix A, Op. at 29a. In

this case, the project was the additional skiing development.

That project has certain environmental impacts. The purpose of

NEPA is to examine which impacts are adverse. For these

impacts, and only the adverse impacts, NEPA required that the

Forest Service explore mitigation to reduce or eliminate those

adverse impacts. Ultimately, however, the focus of the NEPA

process is to explore the project and its alternatives; mitigation

actions are purely derivative and are only necessary to the extent

that a proposed project has adverse impacts.

This distinction between project alternatives and derivative

mitigation measures, has been implicitly recognized in NEPA

decisions in circuits around the country, but has not been

expressly stated as such. See City of Carmel-By-The-Sea v.

United States Dep’t of Transportation, 95 F.3d 892, 908-09 (9th

Cir. 1996) (holding that a final EIS “adequately proposes a

mitigation plan for Monterey Pines in Hatton Canyon” where

the plan “would mitigate the impact to the native Monterey pine

forest to a non-significant level through replacement of trees

removed with plantings of the same genetic stock”) (quoting

9. It is, of course, possible to envision another situation in which the

project proponent seeks to create a pond as a “project” for fishing or recreation.

In that event, the NEPA process would explore the pond’s impact and then

determine what mitigation, if any, was appropriate.

28 le PA SE

relevant portion of the record); Environmental Defense Fund v.

Hoffman, 566 F.2d 1060, 1071 (8th Cir. 1977) (upholding

adequacy of final EIS that discussed mitigation plan adopted by

Congress for water channelization project); Pennsylvania Protect

Our Water & Envtl. Resources, Inc. v. Appalachian Regional

Comm’n, 574 F. Supp. 1203, 1227 (M.D. Pa. 1982) (holding

that mitigation plan that offset adverse impacts to wetlands was

adequate for purposes of NEPA); Davison v. Department of

Defense, 560 F. Supp. 1019, 1029-31 (S.D. Ohio 1982)

(upholding adequacy, for NEPA purposes, of mitigation

measures proposed by Air Force for controlling noise associated

with conversion of airport from military to civilian use). Cf.

West Branch Valley Flood Protection Ass'n v. Stone, 820 F. Supp.

1, 8 (D.D.C. 1993) (“NEPA does not require that a complete

mitigation plan be actually formulated and incorporated into

the EIS. Consequently, as long as the mitigation measures

discussed in the EIS are sufficient to demonstrate a realistic

look by the agency at the adverse impacts of the project, the

agency is free to finally adopt a modified mitigation plan.”)

(citing Robertson v. Methow Valley Citizens Council, 490 U.S.

332, 352-53 (1989)).

In this light, the First Circuit's decision conflicts with the

majority view of the circuits that have spoken on this issue. As

a result, there is a conflict in law that cannot be reconciled.

Just as important, it puts project proponents — and the United

States — in an untenable situation. NEPA must be applied

consistently. This divergence defeats such uniformity and,

therefore, inhibits fair review and analysis of projects in different

parts of the country. Indeed, it puts projects that cross circuit

lines in an unsolvable dilemma.

20-

Ill.

WHEN EVERY ELEMENT OF A PROJECT

ALTERNATIVE IS CONSIDERED AS A PART OF OTHER

ALTERNATIVES, FURTHER NEPA ANALYSIS OF THE

FINAL ALTERNATIVE IS NOT NECESSARY.

The degree to which — and the form in which — an agency

must consider various project alternatives under NEPA has not

been firmly established by the circuit courts. Without guidance

from this Court, agencies will, in light of the First Circuit’s

decision in the present matter, be left to wonder about the extent

to which each part of an alternative must be considered or

reconsidered. In the instant case, for example, the Forest Service

had exhaustively analyzed the components of the chosen

alternative (i.e., Alternative 6) in various other forms. On the

critical issues of water-withdrawal and discharge — as well as

visual impact, socio-economic impact, and impact on the flora

and fauna of South Mountain — Alternative 6 presented no new

issues. Nevertheless, the First Circuit found that the Forest

Service’s failure to review the elements of Alternative 6 in that

specific combination was insufficient. Such questions about the

sufficiency of an agency’s review of alternatives lie at the “heart

of the environmental impact statement,” 40 C.F.R. § 1502.14,

and, without the resolution of this substantial question, agencies

may feel compelled to examine the slightest permutation as a

new alternative, thereby unnecessarily protracting the already

long, burdensome, and expensive NEPA process.

Logic and common experience indicate that there are always

an infinite number of variations for even the simplest project.

NEPA does not require that the federal agency engaging in

review examine every conceivable variation of a project or

mitigation alternative. Vermont Yankee Nuclear Power Corp. v.

Natural Resources Defense Council, Inc., 435 U.S. 519, 551

he:

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(1978); Headwaters, Inc. v. Bureau of Land Management, 914

F.2d 1174, 1181 (9th Cir. 1990) (An agency’s “consideration of

alternatives is sufficient if it considers an appropriate range of

alternatives, even if it does not consider every reasonable

alternative.”). Instead, the agency is mandated to review

categories or classes of impacts and to compare and contrast

different types of impacts to evaluate the environmental impact

of any particular project. See generally Daniel R. Mandelker,

NEPA Law and Litigation §§ 9.05, 10.09 (2nd ed. 1994). Cf. 36

C.ER. § 219.12(f)(1) (Forest Service regulation requiring that,

in undertaking NEPA review for the preparation, revision, or

amendment of forest plans, the Forest Service must formulate

alternatives that are “distributed between the minimum resource

potential and the maximum resource potential to reflect to the

extent practicable the full range of major commodity and

environmental resource uses and values that could be produced

from the forest. Alternatives shall reflect a range of resource

outputs and expenditure levels.”). The variations that the agency

must consider, however, focus on qualitative, not quantitative,

differences. See Association Concerned About Tomorrow, Inc.

v. Dole, 610 F. Supp. 1101, 1114 (N.D. Tex. 1985) (“A mere

change in the quantity of land for a project does not alone

constitute a project change or basis for supplementing the EIS.

These changes must be viewed in terms of their environmental

impact.”) (citing Environmental Defense Fund v. Marsh, 651

F.2d 983, 993 (5th Cir. 1981)). Cf. Valley Citizens For A Safe

Environment v. Aldridge, 886 F.2d 458, 467 (ist Cir. 1989)

(Breyer, J.) (Air Force’s failure in project EIS to discuss impacts

associated with the release of between 50 to 75 tons per year of

nitrous oxide from cargo planes was not relevant for NEPA

purposes when considered in the larger environmental context

in which the project was being undertaken.).

In the case below, every element of Alternative 6 was well

within the spectrum of the various other alternatives fully

analyzed by the Forest Service. All elements of Alternative 6

were represented and analyzed in various other alternatives.

Thus, on the critical uses of water — withdrawal and discharge

— as well as visual impact, socio-economic impact, and impact

on the flora and fauna of South Mountain, Alternative 6 presented

no new mitigation alternative. The specific factors raised in the

First Circuit’s decision, Appendix A, Op. at 38a, had all been

fully analyzed and reviewed.

To focus on a specific example, there was a meaningful

difference between total annual snowmaking water demand of

193 million gallons as anticipated by Alternative 2 and either

the 134 million gallons of Alternative 3 or the 118 million gallons

of Alternative 4. Such large shifts from one class of impacts to

another reflect meaningful differences to the environment. Thus,

it can fairly be said that the snowmaking water demand of

Alternative 3 was not comprehended by Alternative 2, and

possibly not by Alternative 4.

In contrast, however, there was not a meaningful difference

between a water demand of 134 million gallons (Alternative 2)

and a water demand of 138 million gallons (Alternative 6). At

the level of analysis conducted by the Forest Service — which

is apparent from the ROD and not meaningfully challenged

before the courts below — such a variation (3%) is not

meaningful. Put another way, combing through the

administrative record, it would be impossible to point to any

evaluation, calculation, or analysis which would come out

differently based on that minimal increment. Cf. Sierra Club v.

Marsh, 744 F. Supp. 352, 367 (D. Me. 1989) (“For a

supplemental EIS to be required [for a project change], ‘new

circumstances must present a seriously different picture of the

environmental impact of the proposed project from what was

previously envisioned.’ ”) (quoting Sierra Club v. Froehlke, 816

F.2d 205, 210 (Sth Cir. 1987)) (emphasis in original); West

§ REGRETS SDR RN ES a

Rate Sen es

Branch Valley, 820 F. Supp. at 8-9 (Agency decisions not to divert

underground stream, to eliminate three of four proposed

pumping stations, to reduce diameter of holding ponds for

contaminated water from 48.2 to 21.7 acres, and to increase the

size of the pipes used to draw off water from the holding ponds,

all in connection with mitigation plans for project under NEPA

review, were “not such ‘substantial changes’ as to require

supplementation of the EIS.”); Pennsylvania Protect Our Water,

574 F. Supp. at 1226-27 (realignment of access road to serve

recreational project did not require preparation of supplemental

EIS even though the realignment affected certain small wetlands

areas). It is for that reason that the First Circuit’s suggestion

that a new alternative can be adopted only if it is a “miniature”

of a previously considered alternative, Appendix A, Op. at 38a,

misperceives the deference courts must give to the Forest

Service’s discretion and misapprehends NEPA procedure. As

NEPA procedures — the EIS process reviewed each alternative

at every stage on a topic-by-topic basis.

The First Circuit’s decision, therefore, contrasts sharply with

the guidance of other courts that have reviewed the NEPA

process. It also substantially changes the relationship between

the courts and the agencies. As a practical matter, almost every

ROD modifies the agency’s initial preferred alternative in some

fashion; under the logic of the First Circuit the courts will have

almost unfettered discretion to determine what necessitates full

NEPA review rather than deferring to the agency as is proper.

See Half Moon Bay Fishermans’ Marketing Ass'n v. Carlucci,

857 F.2d 505, 508-09 (9th Cir. 1988) (“ ‘[A]gencies must have

some flexibility to modify alternatives canvassed in the draft

EIS to reflect public input,’ without having to circulate a

supplemental draft EIS describing the proposed action. The

agency need not circulate a supplemental draft EIS if (1) ‘the

alternative finally selected by (the agency) was within the range

of alternatives the public could have reasonably anticipated (the

agency) to be considering,’ and (2) if ‘the public’s comments

on the draft EIS alternatives also apply to the chosen alternative

and inform (the agency) meaningfully of the public’s attitudes

toward the chosen alternative.’ ”) (emphasis added) (quoting

California v. Block, 690 F.2d 753, 771-72 (9th Cir. 1982)).

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue

on the stated questions.

Respectfully submitted,

EVAN SLAVITT

Counsel of Record

Kim Goslant

Carol Didget

HINCKLEY, ALLEN & SNYDER

Attorneys for Petitioner

One Financial Center

Boston, Massachusetts 02111

(617) 345-9000

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT DATED

DECEMBER 19, 1996

Nos. 96-1015

96-1086

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

ROLAND C. DUBOIS AND RESTORE: THE NORTH

WOODS,

Plaintiffs, Appellants,

UNITED STATES DEPARTMENT OF AGRICULTURE, ET

AL., and LOON MOUNTAIN RECREATION CORPORATION,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COUNT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge|

Before

Selya, Circuit Judge,

Coffin and Bownes, Senior Circuit Judges.

Appendix A

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, 7; 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

BOWNES, Senior Circuit Judge. The defendant-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.' Appellant Roland Dubois sued the Forest

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.

Appendix A

Service alleging violations of the National Environmental Policy

Act (“NEPA”), 42 U.S.C. § 4321, et seg., the Clean Water Act

(“CWA”), 33 U.S.C. § 1251, ef seq., the Administrative

Procedure Act, 5 U.S.C. § 501, et seqg., (“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.

I. STATEMENT OF THE CASE

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.

Appendix A

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 water body, protected by demanding water

quality standards under a 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 1,500 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

Appendix A

from Loon Pond down to 18 inches below full level. 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.’ 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 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

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.

Appendix A

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.‘

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”), * ol. 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

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.

Appendix A

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 draw down, 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 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

Appendix A

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.

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

Hamspshire law, and that transfer of East Branch water to Loon

Pond, a protected Class A water body 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.° It did,

however, provide a series of restrictions and monitoring

requirements for water levels and water quality, including daily

testing of the transferred water for turbidity, bacteria, and oil

and grease.°®

5. As noted supra, absent some other method of refilling, the Pond would

be refilled by the melting of acidic snow.

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

(Cont'd)

ai i a pt

je PU St Behl i iS RNR i Wate ace

kta

Appendix A

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

Plaintiff Dubois filed a complaint in the United States

District Court for the District of Columbia,’ challenging the

Forest Service’s approval of the Loon Mountain expansion

project. He made three arguments.* 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 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

(Cont'd)

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.

10a

Appendix A

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 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.

lla

Appendix A

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).

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. Jd. 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,”

9. Defendants have abandoned their challenge to RESTORE’s standing.

12a

Appendix A

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” 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.'° Defenders of Wildlife, 504 U.S. at 560-61.

The doctrine of standing also includes prudential relating

to the proper exercise of federal jurisdiction. Among these

concerns is the requirement that “a 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 standing in his or her own right."'

See UAW vy. Brock, 477 U.S. 274, 281-82 (1986).

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. Jd. 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. Jd. at 572 n.7.

11. An association must meet two other requirements in order to have

(Cont'd)

EA gS cee i

y 4

bee

Ele

13a

Appendix A

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 (ist

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.’ ” Jd. (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 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

(Cont'd)

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).

l4a

Appendix A

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 pursue on appeal.

His second amended complaint" 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

12. Dubois moved for leave to file a third amended complaint and a

reply brief. The district court failed to rvle 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.

15a

Appendix A

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, J 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

complaint should be construed favorably to the complainant on

a motion to dismiss.” Papex Int’! Brokers v. Chase Manhattan

Bank, 821 F.2d 883, 886 (ist 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 the “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

16a

Appendix A

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 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.” Jd. 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

17a

Appendix A

which will allegedly be tainted by pollutants, and who will

allegedly be deprived of his environmental, aesthetic and

scientific interests in ways 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."® 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.

As for the prudential standing requirements, there is no

dispute that the violations and injuries alleged in the complaint

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 wili 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).

18a

Appendix A

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.

Ill. 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.2¢ 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

(ist 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; 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

19a

Appendix A

federal courts under the guise of judicial review of agency

action.”’ Vermont Yankee, 435 U.S. at 558. Courts may set aside

agency decisions “only for substantial procedural or substantive

reasons as mandated by statute.” Jd.

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 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.” Jd.; 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).

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.

20a

Appendix A

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).

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).

In State Farm, the Supreme Court offered several examples

of circumstances in which an agency action “normally” would

21a

Appendix A

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 (ist 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 careful”’ inquiry into the record. Overton

Park, 40i 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).

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.

22a

- Appendix A

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).

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.

23a

Appendix A

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 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 (ist 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.” Jd. 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. Jd. at 768. Nevertheless,

“[rjeasonable 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 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

24a

Appendix A

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

“[(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 (Ist Cir. 1982)

(quotations omitted); Valley Citizens for a Safe Env’t v. Aldridge,

886 F.2d 458, 462 (Ist 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

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 “[rJigorously 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

25a

Appendix A

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 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

One purpose of the EIS requirement is to “provide decision

makers 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

26a

Appendix A

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 F.3d at 903, information sufficient for the agency

to “[rJigorously 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 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

27a

Appendix A

“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 “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. 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

(Cont'd)

28a

Appendix A

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 thoughtful proposal in particular.'’ 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

(Cont'd)

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.

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.

re 6

ew ee Pees >

29a

Appendix A

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.

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.” Jd. 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.

After the matter had proceeded to court, counsel for the

Forest Service argued that constructing artificial storage ponds

30a

Appendix A

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 environmentai

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]

3la

Appendix A

out any inaccuracy” in the agencies cost “descriptions” or in its

“discussions” of other non-environmente! considerations. Jd. 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 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,"* 40 C.F.R.

§ 1502.14(a), its decision was not in accordance with law."? See

5 U.S.C. § 706(2)(A).

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 we

(Cont'd)

32a

Appendix A

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 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

(Cont'd)

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.

ee ee a eRe mae

Pe Ee EN ee ey MON aa eee

Via nb itige ttathed Sack ST slot eit

LRAT ek ade Ns Fle A Beanie Deuces Oh ae eles

33a

Appendix A

F.2d at 1047 (emphasis added) (quotation omitted). The Forest

Service’s reliance on Roosevelt Campobello is misplaced. That

case, and the 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.” Jd.; see

also Seacoast Anti-Pollution League v. Nuclear Regulatory

Comm ’n, 598 F.2d 1221, 1229 (Ist 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 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

34a

Appendix A

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 might address.” 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

20. In Adams v. U.S. EPA, 38 F.3d 43 (ist 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.” /d.

—

35a

Appendix A

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.” Jd.

Moreover, NEPA requires the agency to try on its own to

develop alternatives that will “mitigate the adverse

environmental consequences” of a proposed project. 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).”' 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.

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.

36a

Appendix A

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: 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).

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

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Re ctr a ak ys Ee aS EA ee) nde a blll bed a ee,

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37a

Appendix A

to environmental concerns.” See 40 C.ER. § 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 6 is merely a scaled-down modification of

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.” Defendants deny this assertion.

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.

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.

38a

Appendix A

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 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

39a

Appendix A

location. Indeed, the RDEIS said the Forest Service had

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

4 a supplemental EIS to consider newly completed studies

regarding the small risk of a major oil spill). We conclude, based

i 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

j 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

Plaintiffs contend that the Forest Service’s failure to

adequately consider alternatives to the use of Loon Pond and

i 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.

DA a adele pe OI My sO RIDIN ADS IA I Mi Mesh oS

| 40a

Appendix A

On appeal, the government contends that the Executive

Order is not enforceable, at least by private parties, because

NEPA did not confer rule making 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 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.” Jd., § 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

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Appendix A

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.” 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 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-

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.

42a

Appendix A

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 a major action with

significant impact on the environment, triggering NEPA’s EIS

requirements.

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

91972)). 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

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Appendix A

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) (1994); 40 C.ER.

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

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.”* 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 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

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.

44a

Appendix A

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.”

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 would not remove the

NPDES permit issue from the case.”” Regardless of whether any

of the remedies provided in the CWA would be available to

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.”).

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

intervener, 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.

(Cont'd)

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45a

Appendix A

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 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.

(Cont'd)

§ 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 intervener 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 intervener 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.

46a

Appendix A

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. § 1311i(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. /d.; 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

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,”

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.

28. It contains at least the same pollutants that were present in the water

from the East Branch before intake into the pipes.

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47a

Appendix A

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 “addition” into the Pond, at least if the Pipes

added no new pollutants.29 Jd.

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

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.

48a

Appendix A

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,

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 1s

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.*° The

district court apparently would reach the same conclusion

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 were true, that alone would require an NPDES permit.

49a

Appendix A

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.” /d. 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 se who makes that determination and how it

is made, at 2 time when the Project is still just a proposal and

not yet a fait accompli. Cf. Massachusetts y. 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. 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

50a

Appendix A

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 “[iJt 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 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.” Jd. 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

— ae

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Appendix A

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.,*!

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

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.

52a

Appendix A

threshold question that the Forest Service or this court 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 lambda. 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 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

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Appendix A

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. § 131 I(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 y, Gorsuch, 693 F.2d 156,

175 (D.C. Cir. 1982), ora 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 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

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

54a

Appendix A

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. § 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 lambi 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)

O aed

55a

Appendix A

(1994), and that such authority is expressly delegated to the

States, 33 U.S.C. § 1341(a) (1994),

by the CWA, i.e., the requirements which the state regulations

share with the federal CWA.

The cases relied upon by the defendants and by the district

court® dealt with challenges to the state’s imposition of more

stringent controls on a Project’s water pollution effluent. Such

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 Dey, Corp., 867 F.2d 96, 102 (Ist Cir. 1989); Lake Erie Alliance

for Protection of Coastal Corridor v. U.S. Army Cores of Eng'rs, 526 F. Supp.

1063, 1074 (W.D.Pa. 1981), aff'd mem., 707 F.2d 1392 (3d Cir.), cert denied,

(Cont'd)

56a

Appendix A

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 attendent

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 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

(Cont'd)

464 U.S. 915 (1983). All of these cases involved states imposing more

stringent controls on water pollution than required by federal law.

57a

Appendix A

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 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

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