Dubois v. US DOA, et al. 95-CV-50-B 11/2/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Roland C. Dubois, et al.

v. Civil No. 95-50-B

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

Service.

(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 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

(a), 1342(a) (West 1986 & Supp. 1995); (2) Loon's proposed

use of Loon Pond violates water guality standards established by

the State of New Hampshire pursuant 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"),

(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.1

1 Loon has moved to dismiss claiming that plaintiffs lack standing. Although standing presents a guestion of jurisdiction that ordinarily must be addressed before moving to a case's merits, I need not determine the standing of all of the plaintiffs if at least one plaintiff has standing to maintain each claim. Washington Legal Foundation v. Massachusetts Bar Found.,

(1st Cir. 1993) . In this case, RESTORE alleges that its members who live and work in the vicinity of the ski area will be harmed by the proposed expansion. It supports these allegations with affidavits from members who claim that they live in the town where Loon is located, use the town's water supply system, which relies in part on Loon Pond as a water source, and make regular recreational use of the area in which the expansion will occur. They also allege that they will be directly affected by "noise, water guality.

2 I. BACKGROUND

The Forest Service announced Loon's request to amend its

special use permit in January 1987. Loon originally proposed 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.2 The Forest Service also

taxes, conversion of forested areas, impacts of wildlife and a degradation of the visual quality of the town if Loon is allowed to expand." In light of these affidavits, RESTORE has standing to bring all of the claims at issue here. See Sandin v. Conner, 115 S. C t . 2293 (1995); Luian v. Na t '1 Wildlife Federation,

(1990); United States v. AVX Corp.,

(1st Cir. 1992) . Accordingly, I deny Loon's motion to dismiss.

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-

3 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

proposal 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

lands 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 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.

Woodstock Chamber of Commerce.

4 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.

5 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, 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 reguired 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

6 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.,

(1st Cir. 1988). Less well understood is the effect that the

burden of proof freguently has on the resolution of summary

judgment motions.

If the party moving for summary judgment has the burden of

proof at trial, the court will grant the motion only if: (1) the

moving party initially produces enough supportive evidence to

entitle the movant to judgment as a matter of law (i.e., no

reasonable jury could find otherwise even when construing the

evidence in the light most favorable to the nonmovant), and (2)

the nonmovant fails to produce sufficient responsive evidence to

raise a genuine dispute as to any material fact. Fitzpatrick v.

Citv of Atlanta,

, 1115-17 (11th Cir. 1993). By

7 contrast, if the nonmovant bears the burden of proof, the court

will grant the motion if: (1) the movant alleges that the

nonmovant lacks sufficient proof to support one or more elements

of her case, and (2) the nonmovant is unable to produce

sufficient responsive evidence to withstand a motion for judgment

as a matter of law. Id.; see also, Mesnick v. General Elec. Co.,

(1st Cir. 1991), cert, denied,

,

(1992). Thus, the amount and guality of the responsive evidence

that the nonmovant must produce to successfully resist a motion

for summary judgment will depend upon whether the nonmovant bears

the burden of proof at trial. Fitzpatrick, 2 F.3d at 1115-17.

Of course, if the parties agree on the material facts, the issues

presented concern pure guestions of law which can be resolved

without regard to the burden of proof.

With these standards in mind, I turn to the merits of the

cross-motions for summary judgment.

B. Clean Water Act Claim

Plaintiffs argue that the Forest Service violated the CWA by

allowing Loon to discharge East Branch water into Loon Pond without an NPDES permit.3

The CWA was enacted "to restore and maintain the chemical,

physical, and biological integrity of the Nation's waters."

(a) (West Supp. 1995). In pursuit of this broad

goal, the CWA assigns distinct enforcement roles to federal and

state governments. PUD No. 1 v. Washington Pep't of Ecology,

(1994). The federal government is responsible

for establishing and enforcing standards for certain "point

source"4 discharges under the NPDES permit program. See

, 1314 (West 1986 & Supp. 1995). The states,

subject to federal approval, are reguired to develop and

administer broad water guality and antidegradation standards that

One of the EPA's CWA regulations states that the operator rather than the owner of a discharge facility must obtain any reguired NPDES permit.

(b) (1994). The Forest Service relies on this regulation in asserting that it cannot be held liable for failing to reguire 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."

(14) (West Supp. 1995) . are intended to comprehensively address the adverse water quality

effects of both point, and non-point sources.

at § 1313.

The CWA specifies that an NPDES permit is required for any

action that will result in "the discharqe of any pollutant."

(a), 1342(a). In the context of the present

case, this phrase is defined in pertinent part as "any addition

of any pollutant to naviqable waters from any point source."

at § 1362(12). Plaintiffs and the Forest Service aqree that:

(1) both the East Branch and Loon Pond are "naviqable waters";

(2) the East Branch, like all naviqable waters, meets the CWA's

definition of "pollutant";5 and (3) the release of East Branch

water into Loon Pond throuqh Loon's snowmakinq equipment will

come "from" a "point source." Moreover, the record contains no

evidence suqqestinq that Loon plans to add any additional

pollutants to the East Branch water that it intends to discharqe

into Loon Pond. Thus, the parties' disaqreement about whether

Loon needs an NPDES permit centers on whether the discharqe of

5 The CWA defines pollutant broadly to include "dredqed spoil, solid waste, incinerator residue, sewaqe, qarbaqe, sewaqe sludqe, munitions, chemical wastes, bioloqical materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and aqricultural waste discharqed into water."

(6) (West 198 6).

10 East Branch water into Loon Pond will result in "any addition"

of pollutants to the "navigable waters."

In resolving this statutory construction guestion, I begin

by examining the disputed text in the context in which it

appears. Gwaltnev of Smithfield v. Chesapeake Bay Found.,

(1987). If the disputed language can have only one

plausible meaning, I ordinarily will proceed no further.

Ardestani v. INS,

(1991); American Tobacco

Co. v. Patterson,

(1982). However, if the text

is ambiguous, it may be appropriate to look to extrinsic sources

to aid my analysis. C f . Shannon v. United States, 114 S. C t .

2419, 2426 (1994) (noting Justices' differing views concerning

the usefulness of legislative history in statutory construction).

Alternatively, I may be reguired to follow one of several default

rules that reguire the resolution of ambiguities in a particular

way. See, e.g.. Chevron USA v. Natural Resources Defense

Council,

(1984) (court should defer to

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

11 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

pond. We all understand that we have added pollutants because we

have increased the total amount of pollutants in the pond. In

contrast, say we have the same pond, but instead of adding water

from an external source, we place a pipe in the pond and we pump

the pond water from the bottom to the surface. No one would

reasonably contend that internal pumping causes an "addition" of

pollutants to the pond. Instead, we would consider the pumping

to be a redistribution of pollutants from one part of the pond to

another. Neither side disputes this understanding of the term.

Nevertheless, if I substitute "navigable waters" for "pond" in

this example, and run the pipe from one navigable water body into

another, the dispute re-emerges. Thus, the guestion to resolve

is whether transferring water from the East Branch to Loon Pond

discharges water into the navigable waters from an external

source, as plaintiffs contend, or whether it merely moves water

from one part of the navigable waters to another, as defendants

12 argue.

Defendants understand "navigable waters" to refer

collectively to all of the waters of the United States. Thus,

they argue that the discharge of East Branch water into Loon Pond

by itself, cannot result in any addition of pollutants to

navigable waters because both the East Branch and Loon Pond are

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 reguired only if a

discharger adds pollutants to "navigable waters."

(12). "Navigable waters" is defined as "the waters of the

United States including territorial seas."

at § 1362(7)

(emphasis added). The definition of "navigable waters" as a

singular entity, "the waters of the United States," explains that

13 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

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,

(guoting Rubin v. United States,

(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

defendants needed an NPDES permit to release water discharged

from a reservoir through a point source into the navigable waters

because the defendants used the reservoir to collect runoff

containing pollutants from its mining operations.

(9th Cir. 1993), cert, denied sub nom., Members of the Cal.

Regional Water Quality Control v. Committee to Save the Mokelumne

River, 115 S. C t . 198 (1994); see also West Virginia Coal Ass'n

v. Reillv,

(S.D.W.Va. 1989) (mine runoff).

14 aff'd without op.,

(4th Cir. 1991). Similarly, in

Dague v. Burlington,

(2d Cir. 1991),

rev'd, in part, on other grounds,

(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.

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

C o .,

(6th Cir. 1988) (no addition unless pollutants

are added from an external source); see also National Wildlife

Fed'n v. Gorsuch,

, 165 (D.C. Cir. 1982).

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,

("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.

15 Co. v. American Train Dispatchers Ass'n,

(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 water­ body .

Water Quality Guidance for the Great Lakes System: 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

16 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, subseguent discharges of the

water from the snowmaking system into Loon Pond adds pollutants

to the navigable waters from an external source. This argument

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

17 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 v.

Riverside Bavview Homes, Inc.,

(1985), which

acknowledges that water need not be actually navigable to gualify

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."

(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

on at least one prior

occasion. Plaintiffs point to a portion of the proposed

regulations the EPA issued concerning water guality standards for

18 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."

, 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.6

(1995) (amending 40 C.F.R. Parts 9, 122, 123, 131

and adding 132). Moreover, the EPA's current position in this

case is that Loon's use of East Branch water will not reguire 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 of the statute itself and the EPA's regulations

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.

19 interpreting the statute.7

In summary, since the East Branch water drawn into Loon's

snowmaking system retains its status as navigable waters and Loon

will not add pollutants to those waters, its subseguent 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 reguired to obtain an NPDES permit to discharge East

Branch water into Loon Pond.

C. State Antidegradation and Water Quality Standards Claim.

Plaintiffs next argue that Loon's proposed use of Loon Pond

7 Plaintiffs also rely on dicta in the Sixth Circuit's opinion in Consumers Power. Although the Consumers Power court did state that water that is diverted by industrial operations for cooling purposes loses its status as part of the waters of the United States, the example chosen by the Court to illustrate this point involved the addition of pollutants to the intake water by the discharger.

. In the present case, there is no evidence that Loon will add pollutants to the East Branch water it will discharge into Loon Pond. Thus, the facts of this case are distinguishable from the dicta in Consumers Power. Finally, plaintiffs' citation to United States v. Law,

, (4th Cir. 1992), cert, denied, 113 S. C t . 1844 (1993), is also unpersuasive. In Law, the discharger operated a water treatment system. EPA regulations expressly provide that water drawn into such systems ceases to be part of the waters of the United States.

. 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 reguired here.

20 will violate New Hampshire's Antidegradation and Water Quality

standards.8

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 reguires the

applicant to obtain certification from state authorities that the

proposed activity will not violate state water guality standards.

(a)(1). Although the Forest Service obtained

the reguired 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.9

8 Loon Pond gualifies 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 "[n]ew 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."

.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 guality standards for grease, phosphorous, turbidity, and pH. See

.03.

9 Plaintiffs concede that they cannot base their water guality standards claim on the CWA's citizen suit provision. See Oregon Natural Resources Council v. United States Forest Serv. ,

21 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.

(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."

(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, 68

, 1056 (1st Cir. 1982); see also. New England Coalition

v. United States Nuclear Regulatory Comm'n,

(1st Cir. 1978) (NRC need not independently review the EPA's CWA

determinations when licensing a nuclear power plant). If the

(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."

(2) (A) (West 1977) .

22 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 control

council pursuant to RSA 21-0:14.");

-

0:14 (1988 & Supp. 1994) (providing that aggrieved persons may

appeal decisions of the council to state court pursuant to

);

(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

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 adeguacy of the FEIS and the

process by which it was prepared. Specifically, they argue that

the Forest Service violated NEPA because the FEIS does not

adeguately: (1) identify and discuss alternatives to the proposed

action; (2) describe the environment that would be affected by

23 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 reguirements 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,

(1989). Specifically, NEPA reguires that proposals for major

federal actions significantly affecting the guality of the human

environment must be accompanied by an EIS containing a "detailed

statement" describing:

(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

24 (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.

(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."

(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 proposed action so that reviewers may evaluate their comparative merits.

(c) Include reasonable alternatives not within the jurisdiction of the lead agency.

(d) Include the alternative of no action.

(e) Identify the agency's preferred alternative or alternatives, if one or more exists, in the draft statement, and identify such alternatives in the final statement unless another law prohibits the expression

25 of such a preference.

(f) Include appropriate mitigation measures not already included in the proposed action or alternative.

at § 1502.14. Third, the EIS must "succinctly" describe the

environment of the affected area and discuss both the direct and

indirect environmental effects of the listed alternatives. Id.

at §§ 1502.15, 1502.16. Finally, the agency must assess,

consider and respond in the final EIS to agency and public

comments on the DEIS. Id. at § 1503.4.

In meeting these obligations, an agency preparing an EIS

must employ what the Supreme Court has referred to as a "rule of

reason." See Marsh v. Oregon Natural Resources Council,

(1989) (agency should use rule of reason in deciding

whether to issue an SEIS) ; see also, Valiev Citizens for Safe

Env't v. Aldridge,

(1st Cir. 1989) (EIS must

contain a reasonable discussion of alternatives); Sierra Club v.

Marsh,

(1st Cir. 1992) (EIS must discuss

only "reasonably foreseeable" impacts). Norfolk v. United States

EPA,

(D. Mass. 1991), aff'd without op.

(1st Cir. 1992) (agency must reasonably respond to

public comments). Thus, an EIS need not identify every

conceivable alternative or evaluate highly speculative or

26 indefinite potential impacts. Vermont Yankee Nuclear Power Corp.

v. Natural Resources Defense Council,

(1978);

Sierra Club,

. Instead, it is sufficient if

the EIS contains "'such information as appears to be reasonably

necessary under the circumstances for evaluation of the

project.'"

at 767 (quoting Britt v. United States Army

Corps, of Engineers,

(2d Cir. 1985)).

A reviewing court may invalidate an EIS only if the agency's

actions are "'"arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with the law."'" Sierra Club,

(quoting Conservation Law Found, v. Secretary of the

Interior,

(1st Cir. 1989) (in turn quoting

(2)(A))). This standard is highly deferential

because decisions about matters such as whether a change in the

proposed action is significant enough to warrant the issuance of

an SEIS, whether a particular alternative is reasonable, and

whether a potential impact is speculative present "classic

example[s] of . . . factual dispute[s] the resolution of which

implicate[] substantial agency expertise." Oregon Natural

Resources Council,

; accord Sierra Club,

69. Thus, the reviewing court's standard of review will be

whether "the agency decision, in the context of the record, is

27 too 'unreasonable' (given its statutory and factual context) for

the law to permit it to stand." Sierra Club,

;

quoting Sierra Club v. Marsh,

(1st Cir. 1985).

With these general principles in mind, I turn to plaintiffs'

specific claims.

1. Duty to present and evaluate alternatives,

a. Alternative sites.

The Forest Service determined that Loon's purpose in

expanding is to "meet the increased demand for the recreational

experience traditionally provided at Loon and to plan for

projected growth in the number of skier visits to Loon." In

determining whether this purpose could be fulfilled by expanding

other ski areas, the Forest Service restricted its detailed

analysis of alternatives to the four other ski areas located in

the White Mountain National Forest ("WMNF").10 Plaintiffs argue

that the Forest Service violated NEPA by failing to also consider

the possibility of expanding other New England ski areas.

An FEIS's discussion of alternatives "need not extend [to

alternatives] beyond those reasonably related to the purposes of

10 These ski areas are Cannon, Waterville, Wildcat, and Attitash.

28 the project." Laguna Greenbelt, Inc. v. United States Dept, of

Transp.,

, 524 (9th Cir. 1994). Consistent with the

purpose of Loon's proposed expansion, the Forest Service decided

not to examine whether the demand for additional skiing could be

met through expansion at ski areas in Vermont because Vermont's

ski areas drew their skiers primarily from Connecticut and New

York, whereas Loon was attempting to satisfy the demand for

skiing in the Massachusetts and Southern New Hampshire markets.

It did not consider whether the demand could be met by expansion

at any of the approximately twenty other New Hampshire ski areas

that are not located in the WMNF because those ski areas did 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.

While plaintiffs plainly disagree with these conclusions, they

have not established that they were arbitrarily made. Therefore,

they did not provide a basis for invalidating the FEIS.

b. Alternative snowmaking water sources.

The plaintiffs next contend that the Forest Service

unreasonably failed to explore alternatives to using Loon Pond as

a water source for snowmaking. Plaintiffs guote excerpts from

letters sent to the Forest Service suggesting that it consider

29 requiring Loon to construct a water storage system rather than

use Loon Pond. In particular, Dubois suggested during the

comment period that Loon install water storage tanks under the

planned golf course. The Forest Service did not respond to any

suggestions for alternative water storage, but did include a

small storage pond as part of the snowmaking system in several of

the alternatives it considered.

Alternatives two and three included an artificial pond of

about one acre to be constructed near the base of the ski area.

The parties agree that the small pond would have mitigated the

demand for water from Loon Pond but would not have replaced Loon

Pond as the water source for snowmaking. The small pond was not

included in alternative six, the Forest Service now explains,

because the alternative's trail design did not require sediment

impoundment during construction and because there was no natural

drainage in the area where the trails were to be located. The

Forest Service also explains that it did not consider the

construction of underground storage tanks to be a reasonable

alternative both because they would have to be too large and

because their construction would produce adverse environmental

impacts. It also contends that additional ecological stress

would be put on the East Branch if it were used as Loon's sole

30 source for snowmaking water. Based on these concerns, the Forest

Service claims that a storage facility alternative would not

feasible.

NEPA reguires discussion of alternatives that are reasonable

and appropriate for the purpose proposed, but does not reguire

consideration of remote, speculative, fanciful, or hypothetical

alternatives. Valley Citizens,

. The Forest

Service considered a small pond in the context of a trail system

that made the pond practical, but concluded that constructing a

facility to replace Loon Pond was not a feasible alternative both

because of size and problems with water collection and use. The

plaintiffs have not shown that Dubois or any other commentator

offered specifics as to how to implement a suggested alternative

water storage system. Finding no evidence that undermines the

Forest Service's conclusion on this point, I conclude that the

Forest Service did not arbitrarily exclude consideration of water

storage facilities.

2. Duty to describe the environment to be affected and consider potential impacts.

Plaintiffs argue that the Forest Service failed to gather

enough data about Loon Pond to reasonably assess its current

condition and the impact of the planned expansion. Specifically,

31 they allege that the Forest Service failed to: (1) evaluate the

present condition of populations of open-water plants and animals

in Loon Pond; (2) test water from the East Branch and Loon Pond

for microscopic organisms and chemical content, including mercury

and acidity, by sampling water from each monthly for one year;

(3) inventory the plant species in the pond's littoral zone; (4)

determine the amount and types of sediments that would be exposed

to the air by drawdowns of the pond; (5) document the pond's

"limnological" cycles; and (6) determine to what extent the pond

is used by birds and animals. In addressing the plaintiff's

argument, I begin by describing the information that the Forest

Service did collect relevant to the pond's current condition.

According to the FEIS, Loon Pond is a steep-sided granite

bowl with a relatively small ring of shallow area around its

perimeter. It has approximately sixteen acres of surface area

and a maximum depth of sixty-five feet. It has an eight-foot

high concrete dam on one end. The pond has historically been

used both as a primary water source for the Town of Lincoln, and

as a snowmaking water source for Loon. As a result, its water

level fluctuates on average four to six feet per year. In 1989,

the pond was drawn down ten and one-half feet.

32 Water quality samples taken in 1988 showed that the pond's

pH levels were low during the spring, but became less acidic

after the spring runoff season. A 1951 survey of the pond's

vegetation characterized both its emergent and submerged

vegetation as "scant" and those conditions were found to have

persisted when the pond was again examined in 1988. Qualitative

sampling of the pond for invertebrates in 1988 revealed what the

FEIS characterized as a "healthy aquatic community." The pond

was again observed after the record ten and one-half foot

drawdown in 1989 and in 1991. On both occasions, the abundance

and position of aquatic plants were found to be similar to

conditions observed in 1988. Invertebrates and tadpoles were

also found to be abundant in the shallow area near the pond's

spillway in 1989. However, because of its low pH, the Forest

Service concluded that the pond does not provide a suitable

habitat for a self-sustaining fish population.

In arguing that the FEIS does not sufficiently describe Loon

Pond's current condition, plaintiffs rely heavily on a

hypothetical "worst case scenario" for the pond described by a

Forest Service scientist, Ron Buso, in a December 1987 letter to

a Forest Service hydrologist. Buso expressed three primary

concerns. First, he stated his belief that a drawdown would

33 destroy all plants and animals in the pond's littoral zone.

Second, although his impression was that sediments in the pond's

shore area were "course-mineral in character," he stated that if

those sediments turned out to be "fine mineral/organic" in

nature, the repeated freeze-drying and rewetting of the sediments

that would result when the pond was drawn down and refilled could

lead to "increases in turbidity (fine silts and clays?),

biological oxygen demand (organic ooze?), and dissolved

substances (e.g., metals?)." Third, he speculated that a twenty-

foot drawdown of the pond could make it more acidic if the pond

were refilled with strongly acidic spring runoff. If these

concerns turned out to be valid, Buso hypothesized the following

worst-case scenario:

After a 5-10 y r . span of 6-M draw-down and re-fill: (1) Loon Pond becomes more acidic, remaining below pH 5 year-round; (2) Metals in sediments (Al, Fe, Zn, Pb) become more abundant in their dissolved forms; (3) Nutrients released from sediments promote severe algal blooms; (4) Outflow water becomes murky, discolored, distasteful; (5) Oxygen demand at depth increase, fisheries potential is lost.

Plaintiffs contend that the Forest Service acted arbitrarily in

failing to gather more data concerning the pond's current

condition and in failing to address the potential adverse impact

34 Buso describes.

The administrative record does not contain a response to

Buso's letter and since the letter was not generated during the

public comment period on the DEIS, no response was reguired.11

Nevertheless, the Forest Service did respond to several similar

concerns expressed by other commentators. One commentator stated

that the Forest Service should conduct an invertebrate study of

the pond and the Forest Service responded by stating that

although its studies had not been exhaustive, they were

"completed to a level sufficient to allow a reasoned choice among

the alternatives in this final EIS." Other commentators

expressed concern over the impact on aguatic biology resulting

from repeatedly drawing down and refilling the pond. In

responding to these comments, the Forest Service relied on its

observations of the pond and its aguatic biology in 1988, 1989,

and 1991. Based upon these observations, it concluded that the

proposed drawdown

11 Even if the letter had been generated during the comment period, the Forest Service would not have been obligated to address Buso's speculations in the FEIS since NEPA does not reguire the evaluation of "worst case scenarios." Methow Valiev, 490 U.S. at 354-55.

35 [w]ould affect the same narrow shallow band of area around the pond that previous drawdowns have affected, including the 10.5-foot drawdown in 1989. This relatively simple ecosystem of this shallow band,, primarily aquatic plants and aquatic insects, have apparently not been adversely affected by past drawdowns based on their abundance during sampling in 1988 and 1989. Based on this information, it is doubtful this ecosystem would be affected by future drawdowns under this alternative. Shallow littoral areas were not available under present draw-down levels once the pond is frozen and this situation would not change. Somewhat less open water--deep habitat would be available than at present, but it is doubtful this type of habitat would be limiting to the pond's inhabitants.

In short, the Forest service concluded that the pond's

aquatic biology and water quality were not likely to be adversely

affected by the proposed expansion plan. It based these

conclusions on surveys of the pond and its plants and animals

before and after the significant drawdown in 1989. While, with

the benefit of hindsight, additional studies might have developed

additional information about the pond's current condition, the

Forest Service's description of the pond is adequate to support

its impact analysis.12

12 Dubois also submits affidavits from several scientists, purporting to show that additional testing was required to adequately assess the environmental impact of the project on Loon Pond. These opinions are not part of the administrative record here and were not offered to the Forest Service during the EIS process. Although I could consider extrinsic information such as

36 3. Response to public comments.

While preparing the FEIS, the Forest Service was obligated

to assess and respond to public comments.

(a).

The reguired response may be made by modifying the alternatives,

developing and evaluating a new alternative, supplementing,

improving, or modifying the previous analyses, making factual

corrections, or explaining "why the comments do not warrant

further agency response, citing the sources, authorities, or

reasons which support the agency's position and, if appropriate,

indicat[ing] those circumstances which would trigger agency

reappraisal or further response."

The plaintiffs challenge

the Forest Service's response to comments on the following

topics: (1) dissolved oxygen levels in Loon Pond; (2) Lincoln's

ability to meet is water supply needs; (3) cumulative impacts of

ski area development within the WMNF; (4) impact of traffic on

Route 112 east of Loon; (5) mitigation measures for Lincoln's

sewage lagoons; (6) impact of parking lot run-off. I address

each topic in turn.

this in order to clarify the administrative record, I do not find the affidavits helpful for that purpose. Valley Citizens,

60; accord Sierra Club,

; National Audubon Society v. United States Forest Serv.,

(9th Cir. 1994).

37 a. Dissolved oxygen levels in Loon Pond.

Plaintiffs challenge the Forest Service's response

to a concern expressed by the EPA about the potential for

depletion of dissolved oxygen in Loon Pond. The EPA raised the

issue in a letter dated October 13, 1988, reviewing "the second

draft of Chapter 3 and the first draft of Chapter 4 of the U.S.

Forest Service's EIS for the proposed Loon Mountain expansion

proj ect."

The regulation reguiring an agency to solicit comments

provides that "[a]fter preparing a draft environmental impact

statement and before preparing a final environmental impact

statement" the agency shall obtain comments from any federal

agency that has jurisdiction or expertise as to any involved

environmental impact and reguest comments from others.

(a) (1994). Agencies with particular expertise are

reguired to comment within the applicable time period.

at §§

1503.2, 1506.10. An agency issuing an FEIS is reguired to attach

"[a]11 substantive comments received on the draft statement" even

if the agency determines that individual response is not

necessary. Id. at § 1503.4(b). Since the EPA's statements

concerning dissolved oxygen were made prior to the issuance of

the DEIS, the Forest Service was not reguired to formally respond

38 in the FEIS. Further, the EPA's 1988 letter states that "[a]s in

the past, these do not necessarily represent our final comments

on the document and we will keep you informed of any additional

comments we may have." Since the EPA did not express this

concern again in its formal comments on the DEIS, the FEIS cannot

be faulted for failing to respond directly on the subject.13

b. Evaluation of Lincoln's water supply needs.

The plaintiffs contend that the Forest Service violated NEPA

by failing to respond to comments about Lincoln's water supply

needs that the EPA raised in a January 1993 letter. In essence,

the EPA letter expresses a disagreement with the way in which the

Forest Service analyzed the town's water needs separately from

the effects of the proposed project. Specifically, the EPA

letter expressed concern that the Forest Service should not

"approve a permit that will lead to a worsening of [Lincoln's

water supply] situation based on an assumption that a solution to

the town's current problems will be found."

13 As I have previously noted, the FEIS does respond to the somewhat more general concerns expressed by others that plant and animal life in the pond would be harmed if Loon and Lincoln were permitted to repeatedly draw the pond down by as much as twenty feet.

39 First, there is no dispute that the Forest Service addressed

the issue of Lincoln's water supply needs during the EIS process.

The issue was revisited in the Forest Service's decision to grant

the permit. The Forest Service also responded generally to

comments on the RDEIS about Lincoln's water system in the FEIS.

The 1993 letter was a comment on the FEIS, and conseguently could

not have been included in the response section of the FEIS.

Once an FEIS is prepared, guestions aimed at its sufficiency

reguire consideration of whether a supplement to the FEIS is

necessary.

(c). A supplement would have been

reguired in this case only if the EPA's 1993 letter showed that

the Forest Service had made substantial changes in the proposed

action relevant to environmental concerns, or if the letter

introduced "significant new circumstances or information relevant

to environmental concerns and bearing on the proposed action or

its impacts."

at § 1502.9(c)(1)(ii). That is not the case

here. Thus, the Forest Service's lack of response to the letter

was not in violation of its obligations under NEPA and the issues

raised in the letter were addressed during the EIS process,

c. Cumulative impacts.

The plaintiffs cite another section of the EPA's 1993 letter

in which the EPA disagreed with the Forest Service's conclusion

40 that the potential impacts on water supplies due to the demands

of any future expansion at other WMNF ski areas were not

cumulatively significant. Again, the plaintiffs expect a NEPA-

induced reply from the Forest Service. As discussed above,

because the 1993 letter responded to the FEIS, the relevant

guestion here is whether the Forest Service should have

supplemented the FEIS in response to the letter. The letter's

comment merely expresses disagreement with the Forest Service's

evaluative conclusion, but does not suggest circumstances that

would reguire a supplement. See

(c). Thus,

the Forest Service's silence following the EPA's letter on this

issue was not unreasonable.

d. Traffic on Route 112.

In a comment letter to the Forest Service, Dubois noted that

the RDEIS predicted that the expected traffic would strain Route

112 and that consideration of expanding the "traffic carrying

capacity" of the highway was underway. He then commented:

The RDEIS fails to adeguately assess the likely impact of the Loon Mountain development alternatives on this highway. Information on the likelihood that Loon development will reguire expansion of Highway 112 should be made now before the project is approved.

The Forest Service responded:

41 There are several options provided in Volume I pages 220-222 for safe access to and from Loon Mountain. None of them would involve altering Highway 112 between Conway, NH and the Loon Mountain access road. Those options include widening and improving ramps on and off Interstate 93, construction of the South Mountain access road, and providing additional traffic turning lanes at the intersection of Highway 112 and Loon Mountain Road.

Plaintiffs now contend that the Forest Service's response

was inadeguate because it failed to address the potential for

traffic congestion on Route 112 east of Loon. If Dubois' comment

was intended to raise a guestion about the adeguacy of traffic

studies for the eastern portion of Route 112, he missed his mark.

His comment refers to the existing traffic studies in the RDEIS

and expresses concern that the highway would be expanded to

accommodate the traffic discussed there. The Forest Service

reasonably interpreted his comment to ask for clarification of

the expansion plans for Route 112 and responded accordingly. No

more was reguired.

e. Mitigation measures for Lincoln's sewage lagoons.

Dubois suggested two mitigation measures for the problem of

leaking sewage lagoons in Lincoln's wastewater treatment system:

reguire Loon to install synthetic liners in the lagoons to

prevent leakage; or reguire certification from the EPA, as well

as the state, that the lagoons are operating properly before

42 allowing construction to begin. The Forest Service discussed

Lincoln's wastewater treatment system and the problem of leaking

sewage lagoons in the FEIS. It responded to comments about the

leaking lagoons explaining that the alternatives under

consideration provide that "the proposed skiarea construction

would not begin prior to construction of the water treatment

plant and operation of the sewage systemin accord with state

law." The Forest Service also addressed the issue of whether the

state should be responsible for determining the acceptable level

of operation of the wastewater treatment system. In the ROD, the

Forest Service conditioned beginning construction in the

expansion area on "Lincoln's sewage system operating in

conformance with State reguirements." Although the Forest

Service never specifically answered Dubois' suggestion that Loon

install liners, it preempted the need for reguiring specific

mitigation measures by imposing a general reguirement that the

system must comply with all applicable state laws. I do not find

that the Forest Service's failure to respond to Dubois'

suggestion of reguiring liners was unreasonable.

f. Runoff from new parking areas.

The plaintiffs point to Dubois' comment concerning the

effect of runoff from the planned new parking area relative to

43 increasing the summer water temperatures in the East Branch and

adding heavy metal contaminants. He proposed that Loon be

reguired to mitigate these effects by collecting and treating all

runoff water. The plaintiffs argue that the Forest Service

failed to respond to Dubois' comment.

The Forest Service reported in the FEIS that "[c]ertain

heavy metals such as lead, zinc, copper, chromium, nickel, and

mercury are commonly found in urban runoff from parking lots and

roads" and that those contaminants would be likely to occur due

to the proposed development. In addition, the Forest Service

conceded that "[t]hese non-point sources would result in the

degradation of water guality if allowed to enter the stream,

which could violate the state's antidegradation standards." In

response, the Forest Service referred to its planned mitigation

measures including "buffer strips to ensure natural infiltration

and filtering before runoff reaches the river." In the ROD, the

Forest Service noted concerns about contamination of the East

Branch caused by runoff and other aspects of the expansion but

concluded that the reguirements of the Alteration of Terrain

Permits would prevent any significant impact.

Because the Forest Service both considered the concerns

raised by Dubois and addressed mitigation measures for the

44 potential impacts of parking lot runoff, the Forest Service's

failure to discuss his specific proposal was not unreasonable.

4. Requirements of Executive Order 11,990.

The parties agree the FEIS must comply with the dictates of

an executive order to satisfy NEPA reguirements. See City of

Waltham v. United States Postal Service,

(D.Mass. 1992), aff'd,

(1st Cir. 1993). They

disagree, however, as to whether the Forest Service adeguately

addressed the obligations imposed by Executive Order 11,990.

Exec. Order No. 11,990, 42 Fed.Reg. 26,961 (1977), reprinted as

amended in

(West 1994). Executive Order

11,990 reguires federal agency leadership and action to minimize

destructive effects and "to preserve and enhance the natural and

beneficial values of wetlands" when engaged in particular

activities affecting land use. Exec. Or. No. 11,990 § 1(a).

Specifically, the Executive Order directs that

each agency, 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.

Ex. Or. No. 11,990 § 2(a). Practicable, in this context, means

45 "capable of attainment within relevant, existing constraints."

National Wildlife Federation v. Adams,

(9th

Cir. 1980); accord County of Bergen v. Dole,

(D.C.N.J. 1985), aff'd without op.,

(3d Cir.

1986). These requirements serve to focus agency attention on

protecting wetland areas during the EIS process. See National

Wildlife Fed'n,

; Conservation Law Found, v.

Department of the Air Force,

(D.N.H. 1994).

The Executive Order does not prohibit action without an

appropriate finding, but directs that such actions are to be

avoided. National Wildlife Fed'n,

.

The plaintiffs assert that the Forest Service failed to find

that no practicable alternative to the use of Loon Pond existed

and that all practicable measures to minimize harm to Loon Pond

had been developed, and failed to consider appropriate factors

for evaluating measures for minimizing harm. In its decision,

the Forest Service stated that it had considered the Executive

Order but did not make specific findings under those

requirements.

To properly set the scope of practicable alternatives, it is

important to remember that Loon is presently using water from

Loon Pond for snowmaking under its existing permit and Lincoln

46 uses the pond as a primary municipal water source.14 The Forest

Service considered but rejected a suggested alternative of no

snowmaking because "snowmaking has become a necessity in eastern

skiing to assure a reasonable opening date and to provide skiing

during low natural snow years." Thus, the relevant guestion is

whether the Forest Service considered the existence of

practicable alternatives and mitigation measures for the

increased use of Loon Pond to meet expected snowmaking needs.15

The Forest Service considered the water guantities needed

for snowmaking in six alternative plans ranging from no action to

full expansion onto South Mountain. From those alternatives, it

chose alternative six, providing for limited expansion and water

withdrawal. The Forest Service concluded that snowmaking was a

necessary component of skiing at Loon and that using Loon Pond as

the water source with limitations on withdrawals was the best

14 Under a present agreement between Lincoln and Loon, Loon can drawdown the top eighteen inches of the pond for snowmaking and may take more as decided on a case by case basis. Currently, Lincoln uses Loon Pond as a primary municipal water source, but is planning a water treatment system to use the East Branch as the primary water source and rely on the pond only for emergency needs.

15 I will assume, without deciding, that authorizing an increased use of the pond would fall within the definition of "new construction" as used in the Executive Order.

47 alternative.

Plaintiffs again raise the alternative of using water

storage tanks. They argue in this context that the Forest

Service failed to meet the reguirements of the Executive Order

because it made no finding that water storage tanks or artificial

ponds were not practicable alternatives or mitigation measures.

In the process of choosing alternative six, the Forest Service

considered alternatives that included constructing a small pond.

As explained in a previous section, the Forest Service did not

consider construction of storage tanks to be a practicable

solution and found that the artificial ponds were not useful in

the trail configuration chosen in alternative six. I conclude

that a specific finding to that effect is unnecessary as the

reasons behind the Forest Service's decision meet the Executive

Order standard. In summary, the Forest Service's conclusion that

it had considered the reguirements of Executive Order 11,990 was

not arbitrary, despite the lack of specific findings, because the

necessary considerations were included in the EIS process.

5. Is a supplement reguired?

NEPA contemplates significant public involvement in the

information gathering process to produce an EIS.

(2)(C); 40 C.F.R. Parts 1502 & 1503; Methow Valiev Citizens,

48 490 U.S. at 349. Part of the process requires that EIS documents

be made available for public comment. Massachusetts v. Watt,

(1st Cir. 1983). Public comment is elicited only

in response to a DEIS, " [c]onsequently, an aqency's failure to

disclose a proposed action before the issuance of a final EIS

defeats NEPA's qoal of encouraqinq public participation in the

development of information during the decision makinq process."

Half Moon Bay Fishermans' Marketing Assoc, v. Carlucci,

, 508 (9th Cir. 1988). To insure that the EIS process will

come to an end, however, aqencies must produce a supplement only

if:

(i) The aqency makes substantial chanqes in the proposed action that are relevant to environmental concerns; or (ii) There are siqnificant new circumstances or information relevant to environmental concerns and bearinq on the proposed action or its impacts.

(c)(1); see also Oregon Natural Resources

Council,

.

The plaintiffs arque that the Forest Service was required to

supplement the RDEIS and allow public comment on alternative six

before it was selected. Also, the plaintiffs contend that the

Forest Service must now issue a supplement to the FEIS because

the pumpinq system described in alternative six has been replaced

49 with a different plan that will have significant environmental

effects. I address each issue in turn.

a. Opportunity to comment.

Instead of supplementing the RDEIS, the Forest Service

issued an FEIS that incorporated changes made in response to

comments on the RDEIS. It introduced and explained a new

preferred alternative comparing it to the five previously

considered alternatives. The Forest Service described

alternative six as a composite of several of the other

alternatives with a few changes made in response to public

comment. The Forest Service represented that the changes made in

alternative six, which were not previously considered in any of

the other alternatives, did not present new environmental

effects. The plaintiffs point to several differences between

alternative six and the previously considered alternatives, but

they do not show that any of the changes were substantial or

relevant to environmental concerns.

Plaintiff RESTORE also argues that a supplement is necessary

in response to the Forest Service's new ecological approach under

its New Perspectives program in managing the National Forests.

RESTORE did not explain why the New Perspectives program

constituted "new information [that] is sufficient to show that

50 the remaining action will 'affec[t] the quality of the human

environment' in a significant manner or to a significant extent

not already considered." Oregon Natural Resources Council,

(footnote and citation omitted).

First, according to RESTORE, the New Perspectives program

has been well known within the Forest Service since 1989.

Second, beyond providing its own opinion, RESTORE did not

demonstrate that the Forest Service failed to follow the New

Perspectives program or that a consideration of "ecosystem

management" under New Perspectives would make a significant

impact in the context of the Loon expansion project.

The Forest Service's decision to present alternative six in

the FEIS, rather than in a supplement to the RDEIS, is based on

its expertise in analyzing information relevant to the various

alternatives and comments. Thus, I defer to the Forest Service's

"informed discretion" that the FEIS was sufficient to provide the

necessary information for an informed decision to choose

alternative six and conclude that its decision was neither

arbitrary nor capricious. Oregon Natural Resources Council,

.

b. Change in the plan since the ROD.

In the ROD, the Forest Service described the approved

51 snowmaking and water pumping system as follows:

Features of the snowmaking system include: 1) Water from Loon Pond would continue to be pumped from the current location and the present pumping eguipment would be upgraded, providing water for snowmaking, rather than drilling through the side of the pond as proposed for other alternatives; 2) the up-mountain valving station and associated piping system would be expanded to handle the increased pumping; and 3) no snowmaking pond would be constructed in the Lift G area. Loon would maintain a minimum flow in Loon Pond Brook for Lincoln's water system either through the existing dam system when the pond is sufficiently full, or through the pumping system when the pond is low.

Limitations on water use for this alternative include: a 15-foot maximum drawdown of Loon Pond for snowmaking; a 5-foot reserve for a total drawdown of 20 feet for the Town of Lincoln; no withdrawals from the East Branch Pemigewasset River at flows less than 85 cfs.

The parties agree that the plan for pumping water from Loon Pond

has been changed from that described in the ROD. As described by

the parties with supporting materials, the current plan calls for

a new pumphouse at a new site on the pond and construction of a

new water withdrawal system at the edge of the pond.

Construction of the new facilities would reguire blasting,

dredging, and filling an area of the pond.

Neither Loon nor Lincoln can begin construction of the new

water pumping system without Forest Service approval. In July of

this year, the Forest Service rescinded its approval of the new

52 pumphouse and water withdrawal site, and has not yet decided what

action it may take in response to the requested change. At this

juncture, no Forest Service action on this issue exists for

review. Therefore, the plaintiffs' argument to require the

Forest Service to supplement to RDEIS is premature.16

III. CONCLUSION

The Forest Service's motion for summary judgment (document

no. 31) is granted. Loon's motion to dismiss (document no. 26)

and plaintiffs' motions for summary judgment (document nos. 46,

54 and 56) are denied.

SO ORDERED.

Paul Barbadoro United States District Judge November 2, 1995 cc: Roland Dubois Jed Callen, Esq. Melanie A. Williams, Esq. Joel D. Armstrong, Esq. T. David Plourde, Esq. Sylvia Quast, Esq.

Plaintiffs also raise several less significant arguments in opposing defendant's summary judgment motion. I reject these arguments without further discussion because I determine that they plainly lack merit.

53 Cindy Hill, Esq. Scott E. Hogan, Esq James L. Kruse, Esq