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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 521 U.S. 1119

## Text

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

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i
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?

ii
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

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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).

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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.

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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

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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

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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).

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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

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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.

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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.

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- 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.

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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

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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

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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

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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

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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 >

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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.

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Via nb itige ttathed Sack ST slot eit

LRAT ek ade Ns Fle A Beanie Deuces Oh ae eles

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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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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)

ee CT

Soe GaP Ta Se MEAL eee eae We ae

Sida

2d idee eee

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.

nn a se as eR

EP IER NS RS ODS Nu Ow. I

Be, STAT Te

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

Sla
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

te eee ee ee
Sy ee ee eT Oe

53a

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 306 or 307 that apply to the discharge of East
Branch water and pollutants into Loon Pond. Therefore, whether
or not the Forest Service actually obtained the required NPDES
permit, Section 51 1(c)(2)(A) applies, and Dubois’ challenge to
the adequacy of the state’s Section 401 certification may not
proceed in this court.

As the federal defendants argued in their brief and as we
held in Roosevelt Campobello, 684 F.2d at 1056, Dubois’
challenge must be addressed as part of EPA’s “independent
obligation to ensure that EPA-issued NPDES permits meet state
water quality standards.” Forest Service Brief at 29; see 33

U.S.C. § 1311(b)(1)(C) (1994).* If, upon remand, EPA

33. The availability of EPA to perform this task is another reason
Supporting our holding in Part VII(B), supra, that an NPDES permit is
required. See supra, note 30. The federal CWA requires that any state
Certification ensure that the minimal federal standards have been adhered to.
The government is correct that the Forest Service POssesses neither the

(Cont'd)

58a

Appendix A

determines that a permit is appropriate, with or without
conditions or limitations, * and if plaintiffs disagree with EPA’s
decision, then they may challenge such decision in any manner
that is available to them at the time. But EPA, not the Forest
Service, is the proper entity to evaluate compliance with state
water quality standards.

CONCLUSION

We affirm the district court’s denial of defendant Loon’s
motion to dismiss plaintiff Dubois’ complaint for failure to meet
his burden of establishing his standing to sue.

We reverse the district court’s grant of summary judgment
in favor of defendants and reverse the district court’s denial of

summary judgment in favor of plaintiffs, with respect to

(1) the NEPA/EIS issue relating to consideration of
alternatives, .

(2) the supplemental EIS issue, and

(3) the NPDES permit issue.

(Cont'd)

congressional mandate nor the expertise to second-guess state water quality
certifications. But EPA does; and the CWA envisions that EPA make those
assurances in the context of deciding whether to issue an NPDES permit.

34. Whether or not the NHDES certifies that state water quality
standards have been met, EPA would be “bound to include in the federal
permit ‘any more stringent limitations . . . established pursuant to any State
law or regulations (under authority preserved by section 510).’” Roosevelt
Campobello, 684 F.2d at 1056 (quoting 33 U.S.C. § 1311(b)(1)(C)).

59a
Appendix A

grant of summary judgment
rm the district court’s denial of

summary judgment in favor of plaintiff Dubois, with respect to
the alleged violations of

(1) Executive Order 11,990, and

(2) state water quality standards under the CWA.

60a
APPENDIX B — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT
ENTERED FEBRUARY 13, 1997

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

Nos. 96-1015
96-1068

ROLAND C. DUBOIS and RESTORE: THE NORTH WOODS,
Plaintiffs, Appellants,
v.

UNITED STATES DEPARTMENT OF AGRICULTURE, ET
AL., and LOON MOUNTAIN RECREATION CORPORATION,

Defendants, Appellees.
ORDER OF COURT
Entered: February 13, 1997

1. The petition for rehearing by Defendant-Appellee Loon
Mountain is denied.

2. In response to Defendant-Appellee United States
Department of Agriculture’s petition for rehearing the following
changes will be made in the opinion:

(a) On page 53, footnote 25, delete the last
sentence and substitute therefor the
following:

6la
Appendix B

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.
without ensuring that Loon Corp.
obtain the NPDES permit.

(b) On page 70, line 3, substitute the words
“Loon Corp.” for the words “the Forest
Service”:

(c) On page 70 delete the first Sentence of
the Paragraph beginning on line 6 and
substitute therefor the following:

It is true that the Forest Service was
obligated to assure itself that an
NPDES permit was obtained before
permitting Loon Corp. to €xpand its
ski resort.

3. In light of this order we do not think Appellant Dubois’
petition for a limited rehearing requires any response.

By the Court:

s/ William H. Ng
Clerk.

[ccMessrs: Dubois, Kruse, Kehne, Slavitt, Kidd, Bryson, Callen,
Plourde, Armstrong, Hogan, Ms”s Williams, Quast, Hill]

62a

APPENDIX C — MEMORANDUM AND ORDER OF THE
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
FILED NOVEMBER 23, 1995

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Civil No. 95-50-B
Roland C. Dubois, et al.
v.

U. S. Department of Agriculture, et al.

MEMORANDUM AND ORDER

Loon Mountain Recreation Corporation (“Loon”) operates
a Ski area in northern New Hampshire. Because part of the ski
area is located in the White Mountain National Forest, Loon’s
operations require a special use permit issued by the United
States Forest Services. 16 U.S.C.A. § 497(b) (West Supp. 1995).
In 1986, Loon asked the Forest Service to amend the permit to
allow it to expand. After several years of review, the Forest
Service issued a Record of Decision (“ROD”) in 1993, approving
a revised version of Loon’s expansion plan.

Plaintiff Roland Dubois filed this action seeking to compel
the Forest Service to revoke any permits and approvals issued
under the ROD and to enjoin Loon from proceeding with its
expansion plan. Dubois has been joined in his claims by
intervenor RESTORE: The North Woods (“RESTORE”), an
environmental organization. Plaintiffs’ principle contentions are
that: (1) the ROD violates the Clean Water Act (“CWA”) because

63a

Appendix C

it would permit Loon to discharge water from the East Branch
of the Pemigewasset river into Loon Pond without a National
Pollutant Discharge Elimination System (“NPDES”) permit, see
33 U.S.C.A. §§ 1311 (a), 1342(a) (West 1986 & Supp. 1995);
(2) Loon’s Proposed use of Loon Pond violates water quality

to the CWA, see N.H. Code Admin. R. Env-Ws 430-440 (1991):
and (3) the Forest Service violated the National Environmental
Policy Act (“NEPA”), 42 U.S.C.A. § 4332 (West 1994), in
Preparing the Environmental Impact Statement (“EIS”) for the
project. The matter is before me on the parties’ cross-motions
for summary judgment.!

I. BACKGROUND

The Forest Service announced Loon’s request to amend its
Special use permit in January 1987. Loon originally proposed

1. Loon has moved to dismiss claiming that plaintiffs lack standing.
Although Standing presents a question of jurisdiction that Ordinarily must be

to dismiss.

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Appendix C

to expand onto an additional 930 acres of the White Mountain
National Forest. Because of the project’s scope, the Forest
Service determined in January 1988 that it would prepare an
EIS before acting on Loon’s request. Thereafter, the Forest
Service entered into a memorandum of understanding with
representatives of various federal, state, and local agencies to
form a Joint Review Committee to review the public’s comments
and recommendations during the EIS process.* The Forest
Service also hired a contractor to prepare the EIS working under
the Forest Service’s direction but at Loon’s expense.

In February 1989, the Forest Service released a Draft EIS
(“DEIS”) that discussed three alternative development plans in
detail after eliminating other suggested alternatives. Loon’s
proposai was to expand in two phases. During the first phase,
Loon proposed to construct three new lifts, thirteen new trails,
an up-mountain lodge on Forest Service land, and a new
snowmaking system that would significantly increase the ski
area’s use of Loon Pond as a water source. During the second
phase, Loon proposed to construct four more lifts and sixteen
additional trails. Other developments would also occur on
adjacent private iands during both phases of the project. The
other two alternatives studied in detail were no action and a
limited development alternative implementing only the first

2. The “formal” members of the committee were: North Country
Council; Town of Lincoln; New Hampshire Council on Resources and
Development; United States Environmental Protection Agency, Region I;
United States Fish and Wildlife Service; Loon Mountain recreation
Corporation; Lakes Region Planning Commission; and White Mountain
National Forest. The “informal” members of the committee included national
groups such as the Sierra Club; state environmental groups such as the Society
for the Protection of New Hampshire Forests; New Hampshire administrative
agencies; the Town of Plymouth; and the Lincoln-Woodstock Chamber of
Commerce.

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Appendix C

phase of Loon’s Proposal. The Forest Service issued a
Supplement to the DEIS in November 1989 to respond to
concerns arising from the unusually low water levels observed
in the East Branch during the previous winter.

In January 1991, the Forest Service replaced the DEIS with
a Revised DEIS (“RDEIS”). The RDEIS covered the same topics
but added new information about alternatives and about the
project’s cumulative impacts. The RDEIS identified five
alternatives: (1) no action; (2) Loon’s Proposal; (3) limited
development implementing only the first phase of Loon’s
Proposal with additional limitations on water withdrawals for
snowmaking; (4) limited development with a smaller permit area
of 320 acres; and (5) limited expansion within the existing permit
area.

After another period of public comment, the Forest Service
released a Final EIS (“FEIS”) in November 1992. The FEIS
included a new alternative that, in the words of the Forest
Service, “consolidates and refines elements of all the other five
alternatives.” The sixth alternative would allow Loon to improve
its existing facilities and expand onto 581 acres of additional
Forest Service land. In the existing permit area, Loon would
widen established trails, add several new trails and one new lift,
and improve existing lifts and restaurant facilities. In the new
permit area, Loon would add a new lift and nine new trails. A
new base lodge and an additional parking lot would be
constructed on private land at the base of the new lift.

The sixth alternative would also allow Loon to significantly
expand its existing snowmaking system. Over time, Loon would
install new snowmaking pipes and extend snowmaking to all
trails, both in the existing permit area, and in the new permit
area. Although Loon would continue to use the East Branch,

66a

Appendix C

Boyle Brook, and Loon Pond as water sources for its
snowmaking operations, Loon Pond would become its principle
water source. Under this alternative, Loon would be permitted
to draw the pond down by as much as fifteen feet for
snowmaking, and the Town of Lincoln, which uses the pond as
a source for drinking water, would be permitted to draw the
pond down by as much as five additional feet. As a mitigation
measure, Loon would be required to refill the pond by May first
of each year with water pumped though its snowmaking system
from the East Branch. The alternative would also impose other
restraints on Loon’s use of water from the East Branch and Loon
Pond.

The Forest Service issued its ROD approving Loon’s permit
application on March 1, 1993. The decision authorizes “an
expansion of the ski area both within the existing permit area
and into an adjacent area of National Forest System lands known
as South Mountain . . . as described in Alternative 6 in the Final
EIS and later in the [ROD].” Plaintiffs commenced this action
after exhausting administrative remedies.

Ii. DISCUSSION

A. The Summary Judgment Standard

It is axiomatic that a court does not find facts in ruling on a
motion for summary judgment. Instead, the court construes the
evidence in the light most favorable to the nonmovant and
determines whether the moving party is entitled to judgment as
a matter of law. Oliver v. Digital Equip. Corp., 846 F.2d 103,
105 (ist Cir. 1988). Less well understood is the effect that the
burden of proof frequently has on the resolution of summary
judgment motions.

67a

Appendix C

With these standards in mind, I turn to the merits of the
cross-motions for Summary judgment.

B. Clean Water Act Claim

3. One of the EPA’s CWA regulations states that the operator rather
(Cont'd)

68a

Appendix C

The CWA was enacted “to restore and maintain the
chemical, physical, and biological integrity of the Nation’s
waters.” 33 U.S.C.A. § 1251(a) (West Supp. 1995). In pursuit
of this broad goal, the CWA assigns distinct enforcement roles
to federal and state governments. PUD No. I v. Washington Dep't
of Ecolegy, 114 S. Ct. 1900, 1905 (1994). The federal
government is responsible for establishing and enforcing
standards for certain “point source’* discharges under the
NPDES permit program. See 33 U.S.C.A. §§ 1311, 1314 (West
1986 & Supp. 1995). The states, subject to federal approval, are
required to develop and administer broad water quality and
antidegradation standards that are intended to comprehensively
address the adverse water quality effects of both point, and non-
point sources. /d. at § 1313.

The CWA specifies that an NPDES permit is required for
any action that will result in “the discharge of any pollutant.”
33 U.S.C.A. §§ 1311(a), 1342(a). In the context of the present
case, this phrase is defined in pertinent part as “any addition of
any pollutant to navigable waters from any point source.” /d. at

(Cont'd)

than the owner of a discharge facility must obtain any required NPDES permit.
40 C.F.R. § 122.21(b) (1994). The Forest Service relies on this regulation in
asserting that it cannot be held liable for failing to require Loon to obtain an
NPDES permit even if Loon, as the discharger, is obligated to obtain a permit.
Since I determine that plaintiffs’ CWA claim lacks merit, I need not address
the Forest Service's argument.

4. The CWA defines a “point source” as “any discernible, confined and
discrete conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other floating craft, from which
pollutants are or may be discharged.” 33 U.S.C.A. § 1362(14) (West Supp.
1995).

69a

Appendix C

§ 1362(12). Plaintiffs and the Forest Service agree that: (1) both
the East Branch and Loon Pond are “navigable waters”; (2) the
East Branch, like all navigable waters, meets the CWA’s
definition of “pollutant”:;> and (3) the release of East Branch
water into Loon Pond through Loon’s snowmaking equipment
will come “from” a “point source.” Moreover, the record contains
no evidence Suggesting that Loon plans to add any additional!
pollutants to the East Branch water that it intends to discharge
into Loon Pond. Thus, the parties’ disagreement about whether
Loon needs an NPDES permit centers on whether the discharge
of East Branch water into Loon Pond will result in “any addition”
of pollutants to the “navigabie waters.”

In resolving this statutory construction question, | begin by
examining the disputed text in the context in which it appears.
Gwaltney of Smithfieid vy, Chesapeake Bay Found., 484 U.S. 49,
56 (1987). If the disputed language can have only one plausible
meaning, I ordinarily will proceed no further. Ardestani y. INS,
502 U.S. 129, 135-36 (1991); American Tobacco Co. y.
Patterson, 456 U.S. 63, 68 (1982). However, if the text is
ambiguous, it may be appropriate to look to extrinsic sources to
aid my analysis. Cf Shannon v, United States, 114 §. Ct. 2419,
2426 (1994) (noting Justices’ differing views concerning the
usefulness of legislative history in Statutory construction).
Alternatively, I may be required to follow one of several default
rules that require the resolution of ambiguities in a particular
way. See, e.g., Chevron USA y, Natural Resources Defense
Council, 467 U.S. 837, 843-45 ( 1984) (court should defer to

5. The CWA defines pollutant broadly to include “dredged spoil, solid
waste, incinerator residue, Sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat, wrecked
or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and
agricultural waste discharged into water.” 33 U.S.C.A. § 1362(6) (West 1986).

70a

Appendix C

agency's reasonable interpretation of ambiguous statute within
the agency’s regulatory domain).

Although the parties suggest that their disagreement
concerns the meaning of “addition,” it really hinges on the
meaning of “navigable waters.” “Addition” is not defined in the
CWA. However, it is commonly understood to mean the act of
combining one thing with another in a way that results in an
increase in what was originally there. See Random House
Unabridged Dictionary 22-23 (2d ed. 1987). To illustrate the
point, say we have a pond containing pollutants and we release
water containing pollutants from an external source into the
navigable waters and the discharge will not increase pollutants
in the navigable waters as a whole. Plaintiffs disagree and instead
contend that the statutory reference to navigable waters should
be deemed to refer to specific bodies of navigable water. Thus,
they argue that releasing East Branch water into Loon Pond
constitutes an addition of pollutants into navigable waters
because the East Branch and Loon Pond are each separate
navigable bodies of water and East Branch water contains
pollutants.

The principal flaw in plaintiffs’ argument is that it is
incompatible with the text they rely on to support their claim.
The CWA specifies that an NPDES permit is required only if a
discharger adds pollutants to “navigable waters.” 33 U.S.C.A.
§ 1362(12). “Navigable waters” is defined as “the waters of the
United States including territorial seas.” Jd. at § 1362(7)
(emphasis added). The definition of “navigable waters” as a
singular entity, “the waters of the United States,” explains that
the bodies of water are not to be considered individually in this
context. This use of a definition of “navigable waters” that does
not differentiate among separate water bodies can only be

T7la

Appendix C

understood to refer to “navigable waters” in a collective sense.
Because plaintiffs’ interpretation is incompatible with the text’s
plain meaning, I must reject it unless this case presents one of
the “rare and exceptional circumstances” in which a contrary
legislative intent is clearly expressed. Ardestani, 502 U.S. at
135 (quoting Rubin v, United States, 449 U.S. 424, 430 (1981)).

Plaintiffs have not identified anything in the CWA’s
legislative history to support their interpretation, and the Cases
they rely on are unhelpful. In Committee to Save Mokelumne
River v. East Bay Mun. Util. Dist., the court determined that the

containing pollutants from its mining operations. 13 F.3d 305,
308 (9th Cir. 1993), cert. denied sub nom., Members of the Cal.

Coal Ass'n vy, Reilly, 728 F. Supp. 1276 (S.D. W.Va. 1989) (mine
runoff), aff'd without op., 932 F.2d 964 (4th Cir. 1991). Similarly,
in Dague vy. Burlington, 935 F.2d 1343, 1354-1355 (2d Cir. 1991),
rev'd, in part, on other grounds, 505 U.S. 557 (1992), the court
held that the defendant needed an NPDES permit to release water
through a culvert into a marshy area because the defendant was
releasing pollutants from its landfill into the water passing
through the culvert. Jd. In each case, the court properly
concluded that the discharger needed an NPDES permit, because
the discharge added pollutants to the navigable waters from an
external source. See National Wildlife Fed’n v, Consumers Power
Co., 862 F.2d 580 (6th Cir. 1988) (no addiiion unless pollutants
are added from an external source); see also National Wildlife
Fed’n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982).

72a

Appendix C

Plaintiffs also argue that I must defer to what they contend
is the EPA’s contrary interpretation of “navigable waters.” I reject
this argument for two reasons. First, while I will defer to
reasonable agency interpretations of ambiguous statutes, such
deference is unwarranted in cases such as this where the statute's
meaning is plain. Chevron, 467 U.S. at 842-43 (“If the intent of
Congress is clear, that is the end of the matter; for the court as
well as the agency, must give effect to the unambiguously
expressed intent of Congress.”); Norfolk & W.R. Co. v. American
Train Dispatchers Ass'n, 499 U.S. 117 (1991). Second, the EPA
statement plaintiffs rely on does not support their interpretation.
The statement is contained in a “Supplementary Information
Document” the EPA issued in March 1995 in connection with
the development of water quality rules for the Great Lakes
System. The document provides, in pertinent part, that:

EPA believes that the pivotal fact for
determining whether an addition has taken
place for purposes of Section 402 of the CWA
is simply whether a pollutant is physically
moved from outside of the waterbody into
the waterbody by the discharger via a point
source. In EPA’s view, the appropriate
analytical scope for answering this question
need go no further than the end of a facility’s
discharge pipe. If, immediately prior the
discharge activity, the pollutant was not
contained in waters of the United States, then
the release of the pollutant into the waterbody
is quite logically an “addition” of that
pollutant to the waterbody.

Water Quality Guidance for the Great Lake System;

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Appendix C

Supplementary Information Document (SID) at 355 (March
1995). Notwithstanding plaintiffs’ contrary argument, this
statement merely describes the EPA’s Position that the addition
of water containing pollutants from outside the waters of the
United States into those waters qualifies as an addition of
pollutants regardless of whether the water was once part of the
waters of the United States. It in no way supports plaintiffs’
different contention that the transfer of water from one body of
water into another adds pollutants to the navigable waters.

Plaintiffs next argue that water drawn into Loon’s pumping
and snowmaking system loses its Status as part of the navigable
waters. Therefore, they contend, subsequent discharges of the
water from the snowmaking system into Loon Pond adds
pollutants to the navigable waters from an external source. This
argment is based on two related contentions. First, plaintiffs
contend that water cannot be part of the navigable waters when
it is rendered non-navigable by being confined in Loon’s
snowmaking pipes. Second, they argue that water loses its status
as part of the navigable waters when Loon uses it to operate its
snowmaking system. For the reasons I describe below, neither
contention is persuasive.

To the extent that plaintiffs base their argument on the
assumption that water cannot be part of the navigable waters
unless it is actually navigable, their argument is inconsistent
with both the text of the CWA and Supreme Court precedent.
As I previously noted, the term “navigable waters” is defined
broadly as “the waters of the United States.” Thus, the Statutory
definition does not restrict the term’s scope in the manner
plaintiffs suggest. More importantly, plaintiffs’ argument is
foreclosed by the Supreme Court’s opinion in United States y.
Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985), which

74a

Appendix C

acknowledges that water need not be actually navigable to
qualify as part of the navigable waters under the CWA.

Plaintiffs’ argument that water loses its status as part of the
navigable waters if it is commercially exploited fairs no better.
The CWA’s definition of navigable waters contains no such
limitation and the EPA’s regulations implementing the CWA
define “waters of the United States” to include any water from
“intrastate lakes, rivers, streams ... [w]hich are used or could
be used for industrial purposes by industries in interstate
commerce.” 40 C.F.R. § 122.21 (1994). Thus, the defining
regulation contradicts plaintiffs’ argument as it expressly
provides that water does not lose its status as waters of the United
States simply because it is exploited for a commercial purpose.

Plaintiffs argue that the EPA has taken a position contrary
to the one expressed in 40 C.F.R. § 122.21 on at least one prior
occasion. Plaintiffs point to a portion of the proposed regulations
the EPA issued concerning water quality standards for the Great
Lakes System in which the agency stated “[o]nce water is
removed for use in industrial operations, it has lost its character
as waters of the United States and the discharge must be
governed by appropriate conditions in an NPDES permit.” 58
Fed. Reg. 20802, 20956 (proposed April 16, 1993). While the
EPA statement supports plaintiffs’ interpretation, it was not
incorporated in the EPA’s final regulations on the subject.® 60
Fed. Reg. 15366 (1995) (amending 40 C.F.R. Parts 9, 122, 123,

6. The Supplementary information Document issued in connection with
the EPA's rulemaking on the issue reaffirms the EPA’s position that the release
of intake water into the navigable waters adds pollutants to those waters if
the intake water was not part of the waters of the United States immediately
prior to the discharge. It does not, however, discuss the EPA’s statement in
the proposed regulations that intake water loses its status as part of the
navigable waters if it is commercially exploited. SID at 355.

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Appendix C

131 and adding 132), Moreover, the EPA’s current Position in
this case is that Loon’s use of East Branch water will not require
an NPDES permit. Letter from John P. DeVillars, Regional
Administrator, EPA, to New Hampshire Congressional
Delegation, et al. (May 5, 1995). Under these circumstances, I
decline to adopt an interpretation of “navigable waters” that is
inconsistent with both the text or the statute itself and the EPA’s
regulations interpreting the statute.7

Loon will not add pollutants to those waters, its subsequent
release of East Branch water into Loon Pond adds no pollutants
to the navigable waters within the meaning of the CWA.
Therefore, Loon is not required to obtain an NPDES permit to
discharge East Branch water into Loon Pond.

Consumers Power. Finally, plaintiffs’ citation to United States v. Law, 979
F.2d 977, (4th Cir. 1992), cert. denied, 113 S. Ct. 1844 (1993), is also

regulations expressly provide that water drawn into such systems ceases to
be part of the waters of the United States. 40 C.E.R. § 122.21. Thus, while the
court correctly determined in Law that the release of intake water containing
pollutants from a water treatment system adds pollutants to the navigable
waters, that case does not in any way support the plaintiffs’ argument that a
similar result is required here.

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Appendix C

C. State Antidegradation and Water Quality Standards
Claim.

Plaintiffs next argue that Loon’s proposed use of Loon Pond
will violate New Hampshire’s Antidegradation and Water Quality
standards.*

When, as in this case, an applicant for a federal permit
proposes to undertake an activity that “may result in any
discharge into the navigable waters,” the CWA requires the
applicant to obtain certification from state authorities that the
proposed activity will not violate state water quality standards.
33 U.S.C.A. § 1341(a)(1). Although the Forest Service obtained
the required state certification, plaintiffs apparently contend that
the certification was improperly granted and, therefore, the
Forest Service violated the Administrative Procedures Act
(“APA”) by accepting the certification.?

8. Loon Pond qualifies as an “outstanding resource water” under New
Hampshire’s antidegradation regulations. N.H. Code Admin. R. Env-Ws
437.06(a) (1991). These regulations prohibit “[nJew or increased discharges
of pollutants to such waters are prohibited unless the petitioner can prove to
the division, in accord with the state’s antidegradation implementation policy,
that the discharge is for the express purpose and intent of maintaining or
enhancing the water resource and its beneficial use.” Jd. at 437.06(b). Plaintiffs
argue that Loon’s plan will violate this regulation by adding pollutants to
Loon Pond. They also argue that the plan will violate the state’s water quality
standards for grease, phosphorous, turbidity, and pH. See id. at 432.03.

9. Plaintiffs concede that they cannot base their water quality standards
claim on the CWA’s citizen suit provision. See Oregon Natural Resources
Council v. United States Forest Serv., 834 F.2d 842, 859 (9th Cir. 1987).
Instead, they contend that the Forest Service’s acceptance of an erroneous
state certification violates the APA because it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.A.
§ 706(2)(A) (West 1977).

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Appendix C

The fatal flaw in the plaintiffs’ argument is that it is based
on the incorrect assumption that the Forest Service must
independently determine whether the proposed activity will
comply with state water quality requirements. The CWA
expressly delegates to the states the duty to determine whether
a proposed activity will violate state water quality standards.
33 U.S.C.A. § 1341(a). Moreover, the CWA specifies that a
federal permitting authority is not authorized by NEPA to review
“the adequacy of any certification under section 1341.” 33
U.S.C.A. § 1371(c)(2)(A) (West 1986). Relying on these
provisions, the First Circuit has determined that “federal courts
and agencies are without authority to review the validity of
requirements imposed under state law or in a State’s [§ 1341]
certification.” Roosevelt Campobello Int’l Park Comm’n v.
United States EPA, 684 F.2d 1041, 1056 (1st Cir. 1982); see
also, New England Coalition v. United States Nuclear Regulatory
Comm'n, 582 F.2d 87, 98-99 (Ist Cir. 1978) (NRC need not
independently review the EPA’s CWA determinations when
licensing a nuclear power plant). If the plaintiffs in this case
were dissatisfied with the state’s § 1341 certification, they could
have challenged the certification by exhausting state
administrative remedies and filing a timely challenge in the New
Hampshire Supreme Court. See N.H. Code Admin. R. Env-Ws
415.14 (1991) (“Any person aggrieved by a final decision of the
division on application pursuant to these rules may appeal the
decision to the water supply and pollution contro! council
pursuant to RSA 21-0:14.”); N.H. Rev. Stat. Ann. § 21-0:14
(1988 & Supp. 1994) (providing that aggrieved persons may
appeal decisions of the council to state court pursuant to N.H.
Rev. Stat. Ann. § 541); N.H. Rev. Stat. Ann. § 541:6 (1974)
(authorizing aggrieved party to appeal to the New Hampshire
Supreme Court within thirty days after a petition for rehearing
is denied or a decision following a rehearing). However, they

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Appendix C

are not entitled to circumvent these procedures by raising their
claim for the first time in federal court.

D. National Environmental Policy Act Claims

Plaintiffs also challenge the adequacy of the FEIS and the
process by which it was prepared. Specfically, they argue that
the Forest Service violated NEPA because the FEIS does not
adequately: (1) identify and discuss alternatives to the proposed
action; (2) describe the environment that would be affected by
the proposed action; (3) consider the proposed action’s
environmental impact; and (4) respond to public comments
concerning the proposed action. They also contend that the
Forest Service violated NEPA by failing to provide notice and
an opportunity for public comment on the selected alternative
and by violating an executive order barring any federal assistance
for new construction in wetlands areas unless the agency
involved determines that there are no practicable alternatives to
the proposed action. Before discussing the merits of these claims,
I review NEPA’s relevant requirements and the standard of
review that guides my analysis.

NEPA establishes certain “action forcing” procedures that
were designed to insure that agency decisionmakers collect,
analyze, and disseminate to the public detailed information
concerning the environmental impact of proposed actions.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349
(1989). Specifically, NEPA requires that proposals for major
federal actions significantly affecting the quality of the human
environment must be accompanied by an EIS containing a
“detailed statement” describing:

(i) the environmental impact of the proposed

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Appendix C

action, (ii) any adverse environmental effects
which cannot be avoided should the proposal
be implemented, (iii) alternatives to the
Proposed action, (iv) the relationship
between local short-term uses of man’s
environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable
commitments of resources which would be
involved in the Proposed action should it be
implemented.

42 U.S.C.A. § 4332(2)(C).

NEPA’s implementing regulations Provide more specific
guidance concerning the EIS process. First, an agency must
prepare both a DEIS and an FEIS. It must also prepare an SEIS
at either stage if, among other things, “[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) ¢ 1994).
Second, the agency must

(a) Rigorously 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.

(b) Devote substantial treatment to each
alternative considered in detail including the
Pr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0493%3A1. Public record. Not legal advice.