

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                            

Nos.  96-1015
  96-1068

       ROLAND C. DUBOIS and RESTORE:  THE NORTH WOODS,

                   Plaintiffs, Appellants,

                              v.

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

                    Defendants, Appellees.
                                         

                         ERRATA SHEET

 The opinion of this Court is amended as follows:

 Cover sheet:  Replace case number "96-1086" with "96-1068".

                United States Court Of Appeals                            United States Court Of Appeals
                    For the First Circuit                                For the First Circuit
                                          

Nos.  96-1015
  96-1068

       ROLAND C. DUBOIS and RESTORE:  THE NORTH WOODS,

                   Plaintiffs, Appellants,

                              v.

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

                    Defendants, Appellees.
                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

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

                            Before

                     Selya, Circuit Judge,                                                     

          Coffin and Bownes, Senior Circuit Judges.                                                              
                                         

Roland C. Dubois pro se.                                   
Cindy Ellen Hill for appellant RESTORE:  The North Woods.                            
Jeffrey  P. Kehne, Attorney, with whom Lois J. Schiffer, Assistant                                                                   
Attorney General, Sylvia Quast, John A. Bryson, Attorneys, Environment                                                      
&amp; Natural Resources Division, U.S. Department of Justice,  Washington,
DC,  Paul  M.  Gagnon,  United  States  Attorney,  T.  David  Plourde,                                                                             
Assistant United States  Attorney, Concord, NH, Wendy  M. John, Stuart                                                                              
L.  Shelton,  Office  of  the  General  Counsel,  U.S.  Department  of                   
Agriculture,  Washington, DC,  and Leslie M.  Auriemmo, Office  of the                                                              
General Counsel,  U.S. Department of Agriculture,  Milwaukee, WI, were
on  brief  for  appellees  U.S.  Department  of  Agriculture;   Daniel
Glickman, Secretary, U.S. Department of Agriculture; Jack Ward Thomas,
Chief, U.S. Forest Service; Robert Jacobs, Regional Forester,  Eastern
Region, U.S. Forest Service; Donna Hepp, Forest Supervisor, White 

Mountain National Forest.
James  L. Kruse with  whom Gallagher,  Callahan &amp;  Gartrell, P.A.,                                                                             
were on brief for appellee Loon Mountain Recreation Corporation.

                                         

                      December 19, 1996
                                         

                            - 3 -

          BOWNES,  Senior  Circuit  Judge.    The  defendant-                      BOWNES,  Senior  Circuit  Judge.                                                     

intervenor  Loon  Mountain   Recreation  Corporation   ("Loon

Corp.") operates a ski resort  in the White Mountain National

Forest in Lincoln,  New Hampshire.   In order  to expand  its

skiing facilities, Loon Corp. sought and received a permit to

do  so from  the  United States  Forest Service.1   Appellant

Roland Dubois sued the  Forest Service alleging violations of

the National  Environmental Policy Act ("NEPA"),  42 U.S.C.  

4321, et seq., the Clean Water Act ("CWA"), 33 U.S.C.   1251,                         

et seq., the Administrative Procedure Act, 5 U.S.C.   501, et                                                                         

seq. ("APA"), and Executive Order 11,990, 42 Fed. Reg. 26,961                

(1977),  reprinted as  amended in  42 U.S.C.A.    4321  (West                                             

1994).    Appellant  RESTORE:  The  North  Woods  ("RESTORE")

intervened  as a  plaintiff claiming  violations of  the same

statutes, and appellee Loon  Corp. intervened as a defendant.

Dubois and RESTORE (collectively referred to as "plaintiffs")

and  the  Forest  Service  filed  cross-motions  for  summary

judgment, and  Loon moved  to dismiss.    The district  court

granted the Forest Service's  motion for summary judgment and

denied  the other  motions.   We affirm  in part,  reverse in

part, and remand.

                                                    

1.  The  Forest Service, its  parent organization, the United
States Department  of Agriculture,  and their agents  will be
collectively referred  to as "the  Forest Service" throughout
this opinion.

                             -4-

                  I.   STATEMENT OF THE CASE                              I.   STATEMENT OF THE CASE                                                        

          A. Facts                      A. Facts                              

          The White  Mountain National Forest  ("WMNF") is  a

public resource  managed by the United  States Forest Service

for  a wide  range  of competing  public  uses and  purposes,

including "outdoor recreation, range,  timber, watershed, . .

.  wildlife and fish purposes,"  16 U.S.C.    528 (1994), and

skiing,  16 U.S.C.   497(b) (1994).  Pursuant to the National

Forest Management Act of 1976, the Forest Service makes long-

term  plans to  coordinate  these competing  uses, 16  U.S.C.

  1604(e)(1)   (1994),  and  issues   "special  use"  permits

authorizing private recreational  services on national forest

land, 36  C.F.R.    251.50-.65 (1995).   The Forest Service's

exercise of  its permitting authority is  legally constrained

by environmental  considerations emanating, inter  alia, from                                                                   

NEPA, the CWA, and Executive Order 11,990.

          Loon Pond is located in the WMNF at an elevation of

2,400 feet.  It has a  surface area of 19 acres, with shallow

areas around the perimeter  and a central bowl 65  feet deep.

It is unusual for  its relatively pristine nature.   There is

virtually no human activity within  the land it drains except

skiing  at the privately owned  Loon Mountain Ski  Area.  New

Hampshire  Department  of  Environmental  Services  ("NHDES")

regulations  classify  Loon  Pond  as a  Class  A  waterbody,

protected  by  demanding  water  quality  standards  under  a

                             -5-

variety of criteria, see  N.H. Code Admin. R.  Env-Ws 432.03,                                    

and  as  an  Outstanding  Resource  Water ("ORW"),  protected

against any  measurable long-term degradation  by the State's

anti-degradation   rules,  see   id.  437.06;  40   C.F.R.                                                   

131.12(a)(3) (1995).   It ranks in the  upper 95th percentile

of all lakes and ponds in northern New England for low levels

of  phosphorus, which  results  in limited  plant growth  and

therefore  high  water clarity  and  higher  total biological

production.  The pond supports a rich variety  of life in its

ecosystem.    Loon Pond  also constitutes  a major  source of

drinking water for the  town of Lincoln 1,600 feet  below it.

A dam  across the outlet  of the Pond  regulates the  flow of

water from the Pond to Lincoln's municipal reservoir.

          Loon Corp., defendant-intervenor  herein, owns  the

Loon Mountain  Ski Area, which  has operated since  the 1960s

not far from  Loon Pond.  Prior  to the permit  revision that

gave rise to this  litigation, Loon Corp. held a  special use

permit  to operate on  785 acres of  WMNF land.   That permit

allowed Loon Corp. to  draw water ("drawdown") for snowmaking

from Loon  Pond,  as well  as  from the  East Branch  of  the

Pemigewasset  River ("East  Branch")  and  from nearby  Boyle

Brook.  In order to use water from Loon Pond, Loon Corp. also

needed authorization from  the Town of Lincoln  and the State

of  New  Hampshire.    Beginning  in  1974,  Loon  Corp.  was

authorized to pump snowmaking water from Loon Pond down to 18

                             -6-

inches below full level.2  A 1988 amendment to this agreement

permitted drawdown below the  18-inch level on a case-by-case

basis.   Combined uses by  Lincoln and Loon  Corp. during the

period governed by these agreements typically caused four- to

six-foot fluctuations in the level of Loon Pond.

          In  addition to being used as a source of water for

snowmaking, Loon Pond has been the repository for disposal of

water  after it  is  pumped through  the snowmaking  system.3

This includes water that  originally came from Loon Pond,  as

well  as water that originated in the East Branch or in Boyle

Brook.   Approximately 250,000  gallons of East  Branch water

have  been  transferred into  Loon  Pond  each year  in  this

manner.    Obviously  the  water discharged  into  Loon  Pond

contains at  least the same  pollutants that were  present in

the  intake water.    Evidence in  the record  indicates that

intake water  taken from  the East Branch  contains bacteria,

other aquatic  organisms such as  Giardia lambia, phosphorus,

turbidity and heat.   Evidence was also introduced in  court,

but not available prior to the  issuance of the Environmental

                                                    

2.  The level of Loon Pond drops when Pond water  is used for
snowmaking, because  the Pond  does not receive  much natural
water through precipitation during the winter.

3.  In  order for  Loon  Corp. to  make  snow, it  must  pump
significantly more water through  the system than is actually
made into snow.   Passing this extra water through  the pipes
keeps them from freezing.  It also provides the pressure that
forces the artificial snow out through snowmaking jets.

                             -7-

Impact Statement ("EIS"), that oil and grease were present in

the discharge water, although their source was disputed.  

          In 1986,  Loon Corp. applied to  the Forest Service

for an amendment to its special use permit to allow expansion

of  its facilities  within the  WMNF.   Pursuant to  NEPA, 42

U.S.C.     4332, the  Service developed  a  draft EIS,  and a

supplement  to the  draft.   Responding to  criticism  of the

adequacy  of those  documents,  the Forest  Service issued  a

revised draft  EIS ("RDEIS"), which was  published for public

comment.  The RDEIS  set forth five alternatives to  meet the

perceived demand for additional alpine skiing.  All five were

located at the Loon Mountain site.4  

          Many   individuals   and  groups,   including  both

plaintiffs, filed comments pointing out various environmental

problems with each  alternative that  involved expanding  the

ski area.   One lengthy comment  from the U.S.  Environmental

Protection Agency ("EPA") expressed  its concern that the use

of  Loon Pond  for snowmaking  purposes would "use  Loon Pond

like a cistern" instead of treating it "with care" because it

is "acknowledged to be one of the rare high altitude ponds of

its size  in the  White Mountains."   Joint  Appendix ("JA"),

                                                    

4.  The Forest  Service's ten-year plan for  the WMNF, issued
in 1986, included  plans for  accommodating increased  demand
for downhill skiing.   It determined that it would  meet this
demand through  expansion of  existing ski areas  rather than
through the creation  of new ones.   It did  not discuss  the
possibility of  meeting the demand  through alternative sites
outside the national forest.

                             -8-

vol. II, Response to Public Comment on RDEIS at  A-78.  Other

commenters  suggested that  Loon Corp.  be required  to build

artificial  water storage  ponds, in  order to  eliminate the

problem  of depleting  Loon Pond  when withdrawing  water for

snowmaking as  well as  the problem  of adding  pollutants to

Loon Pond when discharging water into the Pond after use.

          During the EIS process, Ron Buso, a hydrologist for

the  WMNF,  expressed  concern  to   another  Forest  Service

hydrologist that the proposed drawdown of Loon Pond by twenty

feet  was likely  to have a  severe impact  on the  Pond.  He

explained that natural snowmelt in New Hampshire is extremely

acidic  and  that, as  a result  of  the planned  drawdown, a

substantial amount  of acidic  snowmelt would remain  in Loon

Pond, increasing the  Pond's acidity  by a factor  of two  to

three times  what it would  be without the  planned drawdown.

Without  the drawdown, Loon Pond  would be relatively full in

the spring, and much of the snowmelt  from surrounding higher

elevations  would glide over the surface of the Pond and down

the  mountain without  significantly mixing  with  other Loon

Pond water.   According to  Buso and a  number of  scientists

whose affidavits  were submitted  to the district  court, the

increase in the  Pond's acidity due  to the planned  drawdown

would change the chemistry of the Pond, cause toxic metals to

                             -9-

be released  from the sediment, and  kill naturally occurring

organisms.

          Without addressing  the issues raised  in the  Buso

memorandum or in  the comments suggesting  artificial storage

ponds, the Forest Service prepared a Final EIS ("FEIS").  The

FEIS added  a sixth alternative,  also on  the Loon  Mountain

site.   The new  alternative provided  for expansion of  Loon

Corp.'s  permit area by 581 acres and for the construction of

one  new lift and approximately  70 acres of  new ski trails,

changes designed  to accommodate 3,200  additional skiers per

day (from  the current 5,800 per  day).   The  Forest Service

deemed Alternative 6 as the preferred alternative.  Under it,

Loon  Corp. would more than  double the amount  of water used

for  snowmaking, from  67  million gallons  per  year to  138

million gallons.   Seventeen million gallons  of the increase

would be drawn from  the East Branch, and 54  million gallons

from  Loon Pond.  In  addition, Loon Corp.  was authorized to

draw the Pond down  for snowmaking by fifteen feet,  compared

to the current eighteen  inches.  The Forest  Service assumed

that the Town of Lincoln would need up  to an additional five

feet  of Pond water, making  a total of  twenty feet that the

Pond was  expected to be  drawn down  each year.   This would

constitute approximately 63%  of the Pond's water.   In March

1993, the Forest Service published a Record of Decision (ROD)

adopting Alternative 6.

                             -10-

          As  a  mitigation  measure  to  blunt  the  adverse

environmental  impact  on  Loon  Pond,  the   Forest  Service

required Loon Corp.  to pump  water from the  East Branch  to

Loon Pond  in December and May  of each year if  the Pond was

not otherwise full at those times.   In its FEIS, the  Forest

Service  recognized  that the  East  Branch  is a  relatively

unprotected  Class B  waterway under  New Hampshire  law, and

that  transfer of East Branch water to Loon Pond, a protected

Class A waterbody and  Outstanding Resource Water under state

and federal  law, would  introduce pollutants into  the Pond.

Accordingly, it  specified that this transfer  of East Branch

water  could  not occur  if  it  exceeded certain  levels  of

turbidity, bacteria, or oil and grease.  Neither the FEIS nor

the  ROD  set  any limits,  however,  on  the  level of  non-

bacterial organisms  such as Giardia lambia  or on pollutants

such as  phosphorus that  may be  present in the  transferred

water.  Nor  did the  FEIS indicate an  alternative means  of

refilling Loon Pond -- with clean water -- if conditions were

such  that the transfer of East Branch water would exceed the

specified  levels.5   It did,  however,  provide a  series of

restrictions and monitoring requirements for water levels and

                                                    

5.  As noted  supra, absent  some other method  of refilling,                               
the Pond would be refilled by the melting of acidic snow.

                             -11-

water  quality,  including daily  testing of  the transferred

water for turbidity, bacteria, and oil and grease.6

          Dubois and RESTORE appealed the ROD to the Regional

Forester and, thereafter, to the Chief of the Forest Service.

These appeals were  denied.   On March 16,  1994, the  Forest

Service  issued   a  special   use  permit  to   Loon  Corp.,

implementing the decision described in the ROD.

          B. Proceedings Below                      B. Proceedings Below                                          

          Plaintiff  Dubois filed a  complaint in  the United

States  District   Court  for  the   District  of  Columbia,7

challenging   the  Forest  Service's  approval  of  the  Loon

Mountain  expansion  project.    He  made  three  arguments.8

First, he argued that the Forest Service actions violated the

CWA  because they  would lead  to violations  of state  water

quality  standards which,  he  asserted, have  the effect  of

federal law because  they were approved  by the federal  EPA.

Second, he argued that the Forest Service  violated both NEPA

                                                    

6.  In  response  to  an  earlier  draft  EIS,  the  EPA  had
expressed the  following concern:    "While monitoring  plans
have  merit, they should not be considered a substitute for a
thorough evaluation  of a  project and its  potential impacts
prior  to action  approval."   JA, vol.  I, at  97; see  also                                                                         
Massachusetts  v. Watt, 716 F.2d  946, 951-52 (1st Cir. 1983)                                  
(NEPA "requires  an EIS according  to its terms,"  before the
agency becomes "committed to  [a] previously chosen course of
action").

7.  The  case  was later  transferred  to  the United  States
District Court for the District of New Hampshire.

8.  Plaintiffs  made  other  arguments  below,  but  have not
pursued them on appeal.

                             -12-

and   Executive   Order  11,990   by   failing   to  consider

alternatives to the use  of Loon Pond and failing  to develop

adequate mitigation  measures.   Finally, he argued  that the

Forest Service violated the CWA, 33 U.S.C.   1311, by failing

to obtain a National  Pollutant Discharge Elimination  System

("NPDES")  permit  before  approving Loon  Corp.'s  expansion

plans, which  entailed removing  water from the  East Branch,

using it to pressurize and prevent freezing in its snowmaking

equipment,  and then  discharging  the used  water into  Loon

Pond.  According to  Dubois, an NPDES permit was  required in

order  for Loon Corp. to discharge pollutants into Loon Pond,

including   the  discharge   from  Loon   Corp.'s  snowmaking

equipment.     Plaintiff RESTORE,  a membership organization,

intervened on behalf of its members to challenge the project.

RESTORE first  reiterated Dubois' claim that  an NPDES permit

was  required.  In addition,  RESTORE claimed that the Forest

Service violated  NEPA by  failing to prepare  a Supplemental

EIS  after  it  developed  Alternative  6  as  the  preferred

alternative.  According to RESTORE, this new alternative, not

specifically mentioned in the  previously published draft EIS

or  RDEIS,  contained  substantial changes  to  the  proposed

action  that  are relevant  to environmental  concerns, which

required   a  supplemental  EIS   under  NEPA   and  relevant

implementing regulations.   Finally, RESTORE  claimed that  a

supplemental  EIS was  required because the  Forest Service's

                             -13-

Final  EIS  failed  to  "rigorously explore  and  objectively

evaluate all  reasonable  alternatives" that  are capable  of

meeting  the stated goals of  the project, as  required by 40

C.F.R.   1502.14 (1995).  According to RESTORE, the  asserted

goal of meeting skier demand could have been met by expanding

ski  areas other than Loon, in  particular, ski areas located

outside the White Mountain National Forest.

          The parties cross-moved for summary judgment.  Loon

Corp.  intervened, and  moved to  dismiss on the  ground that

both plaintiffs  lacked standing.  The  district court denied

Loon Corp.'s motion to  dismiss, granted summary judgment for

the Forest  Service, and denied the plaintiffs' cross-motions

for summary judgment.

                   II.   DUBOIS' STANDING9                               II.   DUBOIS' STANDING                                                     

          The ingredients of  standing are imprecise and  not

easily  susceptible to  concrete  definitions  or  mechanical

applications.  Allen v. Wright, 468 U.S. 737, 751 (1984).  In                                          

order to have standing to sue, a plaintiff must have "such  a

personal stake in the outcome of the controversy as to assure

that concrete adverseness which  sharpens the presentation of

issues  upon   which  the   court  so  largely   depends  for

illumination of difficult .  . . questions."  Baker  v. Carr,                                                                        

369 U.S. 186, 204 (1962).  

                                                    

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

                             -14-

          Standing consists of  both a constitutional  aspect

and  a  prudential  aspect.    The  constitutional  dimension

derives from the requirement that federal courts can act only

upon  a justiciable  case or controversy.   U.S.  Const. art.

III.  If a party lacks Article III standing to bring a matter

before the court, the court lacks subject matter jurisdiction

to decide the merits of the underlying case.  FW/PBS, Inc. v.                                                                         

City of Dallas, 493 U.S. 215, 231 (1990).                          

          To   satisfy   the   constitutional  component   of

standing, a plaintiff must have suffered an "injury in fact,"

i.e.,  an invasion of a legally protected interest.  Lujan v.                                                                         

Defenders of Wildlife, 504 U.S. 555, 560 (1992).  That injury                                 

must be "concrete and  particularized"; the latter term means

the injury must be personal  to the plaintiff.  Id. at  560 &amp;                                                               

n.1.   It may  be  shared by  many others,  United States  v.                                                                         

Students  Challenging  Regulatory Agency  Procedures (SCRAP),                                                                        

412  U.S.  669,  687-88 (1973),  but  may  not  be common  to

everyone, see Warth v. Seldin, 422 U.S. 490, 499 (1975).  The                                         

injury must also be  "actual or imminent, not  conjectural or

hypothetical,"  Defenders  of  Wildlife,   504  U.S.  at  560                                                   

(quotation omitted), and it  must be "distinct and palpable,"

Warth,  422 U.S.  at  501.   The  latter requirement  may  be                 

satisfied by environmental or aesthetic injuries.  See SCRAP,                                                                        

412  U.S. at  686; Sierra Club  v. Morton, 405  U.S. 727, 734                                                     

(1972).   The  injury need  not be  "significant";  a "small"

                             -15-

stake in the outcome will suffice, if it is "direct."  SCRAP,                                                                        

412 U.S. at 689 n.14.  In addition, the injury must be fairly

traceable to  the defendant's allegedly  unlawful conduct and

likely to be redressed by the requested relief.10   Defenders                                                                         

of Wildlife, 504 U.S. at 560-61.                       

          The doctrine  of standing also  includes prudential

concerns  relating   to  the   proper  exercise   of  federal

jurisdiction.   Among these concerns is  the requirement that

"a plaintiff's  complaint fall  within the zone  of interests

protected  by the law invoked."  Allen,  468 U.S. at 751.  In                                                  

addition, as a general rule, a plaintiff "must assert his own

legal  rights and  interests, and  cannot rest  his claim  to

relief on the  legal rights or  interests of third  parties."

Warth,  422   U.S.  at   499.    A   membership  organization                 

constitutes an exception to this general rule: it  may assert

the claims of its members, provided  that one or more of  its

members   would  satisfy  the   individual  requirements  for

                                                    

10.  Violations of procedural  rights, such as  those created
by NEPA and CWA, receive "special" treatment when it comes to
standing.   "The person who  has been  accorded a  procedural
right to protect his concrete interests can assert that right
without meeting  all the normal standards  for redressability
and  immediacy."  Defenders of Wildlife, 504 U.S. at 572 n.7.                                                   
As  an example, the  Supreme Court points  to "the procedural
requirement  for an  environmental impact statement  before a
federal facility is constructed next door" to the plaintiffs.
Id. at 572.   The contrasting example -- where  the disregard               
of procedural requirements  would be held  not to impair  the                                                          
plaintiffs' concrete  interests -- is "persons  who live (and
propose  to live) at the  other end of  the country" from the
project.  Id. at 572 n.7.                         

                             -16-

standing in  his or her own  right.11  See UAW  v. Brock, 477                                                                    

U.S. 274, 281-82 (1986).

          The  burden  falls  on  the  plaintiff  "clearly to

allege  facts  demonstrating that  he  is a  proper  party to

invoke" federal jurisdiction.   Warth, 422 U.S. at 518.   The                                                 

plaintiff  must   "set  forth  reasonably   definite  factual

allegations,  either  direct or  inferential,  regarding each

material element needed to  sustain standing."  United States                                                                         

v.  AVX Corp., 962  F.2d 108, 115  (1st Cir.  1992).  "[E]ach                         

element must be supported in the same way as any other matter

on  which the plaintiff bears the burden of proof, i.e., with                                                                   

the manner and degree of  evidence required at the successive

stages of  the litigation."  Defenders of  Wildlife, 504 U.S.                                                               

at 561.  At the  pleading stage, "general factual allegations

of injury resulting from the defendant's conduct may suffice,

for  on  a motion  to  dismiss  we  'presum[e]  that  general

allegations embrace  those specific facts  that are necessary

to  support the  claim.'"   Id.  (quoting  Lujan v.  National                                                                         

Wildlife Federation, 497 U.S. 871, 889 (1990)).                               

          The district  court denied  Loon Corp.'s  motion to

dismiss Dubois'  claims on  standing grounds, relying  on our

                                                    

11.  An association must meet two other requirements in order
to  have standing to sue:  the  interests that the suit seeks
to  vindicate must be germane to the objectives for which the
organization was  formed; and neither the  claim asserted nor
the relief  requested requires the personal  participation of
affected  individuals.   UAW  v.  Brock,  477  U.S. 274,  282                                                   
(1986).

                             -17-

precedent  in  Washington Legal  Found. v.  Massachusetts Bar                                                                         

Found., 993  F.2d 962, 971-72 (1st Cir. 1993).  In that case,                  

we held that the court need not determine the standing of all

plaintiffs if at least one plaintiff has standing to maintain

each  claim.   The  district  court  found that  RESTORE  had

standing to bring all the claims at  issue in this case, and,

therefore,  that  the court  could  reach the  merits  of all

claims without  first addressing Dubois' standing.   We agree

that RESTORE would have  standing to raise, on behalf  of its

members, all the issues  in dispute in this litigation.   But

the  district  court  erred   in  concluding  that  it  could

therefore  reach  the  merits  of  all  claims,  because  the

district  court's premise  was incorrect:   RESTORE  did not,

even at the  district court level, raise  the issues relating

to  Executive  Order  11,990  and  the  state  water  quality

standards, which only Dubois is pursuing here.  The situation

is not, therefore, analogous to Washington Legal  Foundation;                                                                        

if  Dubois has  no  standing, we  cannot  decide issues  that

RESTORE has never raised.

          We  find, however,  that  Dubois  does satisfy  all

requirements for standing to litigate  the claims he seeks to

                             -18-

pursue  on appeal.   His  second amended  complaint12 alleged

that

          [his] principal  residence from 1959-1977
          was in Lincoln, New  Hampshire.  [He] has
          returned  to  the Lincoln  area  at least
          once per year  -- and occasionally up  to
          twelve or  more times  per year --  since
          1977.    During  these  trips,  [he]  has
          visited relatives  and friends, collected
          botanical    samples    for    scientific
          analysis,  and  engaged  in  recreational
          activities in and around the WMNF and the
          Loon  Mountain  Ski  Area.    Plaintiff's
          interest     in     the    environmental,
          recreational and aesthetic quality of the
          WMNF  are and will  be adversely affected
          by the Defendants' actions  challenged in
          this Complaint. 

Second Amended Complaint,    5.  The last sentence  is rather

conclusory, but  the  entire complaint,  taken together  with

inferences  reasonably drawn  from its  allegations, contains

sufficient  "reasonably  definite factual  allegations," AVX,                                                                        

962 F.2d at 115, to survive a motion to dismiss.  

          "We  are mindful  that, under  the notice  pleading

requirements  of the  federal rules,  the allegations  of the

                                                    

12.  Dubois moved for leave to file a third amended complaint
and a reply brief.  The district court failed to rule on this
motion until after the court's jurisdiction was terminated by
the docketing of  RESTORE's appeal.  Dubois asked  this court
to clarify the status of this motion in light of the district
court's  order granting  Dubois'  post-judgment motion  under
Fed. R. Civ. P. 60(a) for clarification;  the court indicated
that it had intended to allow the third amended complaint and
the  reply brief,  but  did not,  due  to clerical  mistakes.
Docket Entry 79-b.  We need not decide Dubois' motion because
of  our decision on the  merits.  Resolving  the motion would
not, in any event, affect our decision on the standing issue,
because   the  third  amended   complaint  contains  language
identical to the second regarding standing.

                             -19-

complaint should be construed favorably to the complainant on

a motion to dismiss."  Papex Int'l Brokers v. Chase Manhattan                                                                         

Bank, 821 F.2d 883, 886 (1st  Cir. 1987).  Moreover, as noted                

supra,  at the  pleading  stage, "we  presum[e] that  general                 

allegations embrace those specific  facts that are  necessary

to  support the claim."   Defenders of Wildlife,  504 U.S. at                                                           

561 (quotation  omitted).   Further, the record  reveals that

the district court had adduced  additional information during

its consideration of the  standing issue.  See AVX,  962 F.2d                                                              

at 114  n.6 (appellate court considering  standing issue went

beyond  the  complaint "in  a  record-wide  search for  facts

supporting" the  claim of  standing).  Dubois'  local counsel

represented  to the  court  that Dubois  continues to  return

"regularly,"  at  least annually,  to  his  parents' home  in

Lincoln; that he drinks  the water from the "Town  of Lincoln

water  supply that comes down from Loon Pond"; that he "walks

those  mountains" in the  WMNF.  Transcript  of Hearing, June

14, 1995, at 7-9.   The court expressed its  understanding of

Dubois' standing allegations as follows:

          Mr.   Dubois'  injury   in  fact   is  he
          periodically comes back  to the area  and
          enjoys  its natural  beauty  and will  be
          injured  by not being  able to experience
          its  natural beauty  if  the  project  is
          allowed  to go forward? . . .  It's not a
          case  of someone who's  simply saying I'm
          an environmentalist and I want to protect
          the    environment,    which    everybody
          presumably  has  an  interest  in  doing.
          It's somebody who  says I'm back  there a
          lot,  I drink  the  water a  lot, I'm  up

                             -20-

          there  in the  woods a  lot, and  this is
          going to hurt me.

Id. at 8, 12.               

          We think it useful to  compare the facts here  with

those  alleged in  AVX,  962 F.2d  at  116-17.   In  AVX, the                                                                    

plaintiff organization had simply made conclusory allegations

that its "members have been and will continue to be harmed by

the releases  that [were] the subject  of [that] litigation";

its  "averment  [had]  no   substance:  the  members   [were]

unidentified; their  places of  abode [were] not  stated; the

extent and  frequency of any  individual use of  the affected

resources [was] left  open to surmise."   Id.  This court  in                                                         

AVX pointed to  the allegations  in SCRAP, 412  U.S. 669,  as                                                     

attenuated  as they  were, in  which "there was  a geographic

nexus;  all the  association's members  resided in  a single,

defined  metropolitan   area,   directly  affected   by   the

challenged action. . . .  In SCRAP, unlike [AVX], the claimed                                                           

environmental injury  was tied to the  particular pursuits of

particular persons."  AVX, 962 F.2d at 117.                                     

          The instant case, in  contrast with AVX, presents a                                                             

particular  person, whose  family  home is  located  squarely

within the geographical  area allegedly directly  affected by

the  proposed project,  who  visits the  area regularly,  who

drinks  the   water  which  will  allegedly   be  tainted  by

pollutants,  and  who  will  allegedly  be  deprived  of  his

environmental,  aesthetic and  scientific  interests in  ways

                             -21-

directly  tied to the project  he challenges.   These are the

types of interests which  the Supreme Court has held  -- when

asserted  by an organization such as RESTORE on behalf of its

members   --  satisfy  the  constitutional  requirements  for

standing.   See  SCRAP, 412  U.S. at  685-87; Sierra  Club v.                                                                         

Morton, 405 U.S.  at 734-35 &amp; n.8;  see also supra, note  10.                                                              

There  is certainly no reason  why an organization would have

standing to raise these interests  on behalf of its  members,

but an individual such  as Dubois would not have  standing to

raise the same interests on his own behalf.

          Thus, with the  degree of specificity  necessary at

the pleading stage, Dubois has articulated -- directly and by

inference  -- how  his personal  interests will  be adversely

affected  by the  Loon  expansion proposal.13   Finally,  his

injuries  are "likely to be  redressed" by the  relief he has

requested  in  the  complaint:   inter  alia,  an  injunction                                                        

against the project's proceeding.  See Defenders of Wildlife,                                                                        

504 U.S. at 560-61.

                                                    

13.  Our analysis is not altered by the fact that three of
the parties filed cross-motions for summary judgment.  The
standing issue was raised only in Loon Corp.'s motion to
dismiss.  Where, as here, the defendants have not
contradicted the factual allegations concerning standing that
we deem adequate at the motion to dismiss stage, we will not
subject those allegations to a summary judgment level of
scrutiny in the absence of a motion for summary judgment on
the issue.  In these circumstances, "[t]he standing analysis
is no different, as a result of the case having proceeded to
summary judgment, than it would have been at the pleading
stage."  Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.                                                             
26, 37 n.15 (1976).

                             -22-

          As  for the prudential standing requirements, there

is no dispute that the violations and injuries alleged in the

complaint  are the sort that NEPA, the CWA, and the Executive

Order were "specifically designed" to protect.  See Lujan  v.                                                                         

National Wildlife Federation, 497 U.S. at 886.  Moreover, our                                        

discussion above related only to Dubois' own legal rights and

interests, not those  of third parties.  Accordingly, we find

that Dubois has standing  to litigate the claims he  seeks to

pursue on appeal.

                  III.   STANDARD OF REVIEW                              III.   STANDARD OF REVIEW                                                       

          The   district   court's  order   granting  summary

judgment  is subject to de  novo review.   Borschow Hosp. and                                                                         

Medical Supplies v. Cesar Castillo, Inc., 96 F.3d 10, 14 (1st                                                    

Cir. 1996);  Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st                                                   

Cir. 1992).  We independently weigh the merits of the summary

judgment motions  "without deference to the  reasoning of the

district court."   Hughes v.  Boston Mut. Life  Ins. Co.,  26                                                                    

F.3d  264, 268 (1st Cir. 1994).  Accordingly, we must reverse

the court's grant  of summary  judgment unless  "there is  no

genuine issue  as to any material  fact and . .  . the moving

party is entitled to a judgment as a matter of law."  Fed. R.

Civ. P. 56(c).   In analyzing the issues, we  will review the

record in  the light most  favorable to the  non-movants, and

make all inferences in their favor.  Borschow, 96 F.3d at 14;                                                         

                             -23-

Petitti v. New England Tel. &amp; 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 &amp;                                                                         

Elec.  Co.   v.  Natural  Resources  Defense   Council,  Inc.                                                                         

("NRDC"),  462 U.S.  87,  97 (1983)  (quoting Vermont  Yankee                                                                         

Nuclear Power Corp. v.  NRDC, 435 U.S. 519, 558 (1978)).  The                                        

fundamental policy  questions are "appropriately  resolved in

Congress  and  in  the  state legislatures";  they  "are  not                                                                         

subject  to reexamination  in  the federal  courts under  the

guise  of  judicial  review  of agency  action."14    Vermont                                                                         

Yankee,  435  U.S.  at 558.    Courts  may  set aside  agency                  

decisions "only  for  substantial procedural  or  substantive

reasons as mandated by statute."  Id.                                                 

          The applicable statutes here  are NEPA and the CWA.

NEPA  requires  that the  agency take  a  "hard look"  at the

environmental consequences of a project before taking a major

action.  Baltimore  Gas, 462  U.S. at 97  (quoting Kleppe  v.                                                                         

Sierra Club,  427 U.S. 390, 410 n.21 (1976)).  It is the role                       

of the courts on  judicial review to ensure "that  this legal

                                                    

14.  For example,  in Vermont  Yankee, Congress had  made the                                                 
policy decision that the nation would try nuclear  power; the
Court refused  to second-guess that decision  in reviewing an
EIS pursuant to NEPA.  435 U.S. at 557-58.

                             -24-

duty  is  fulfilled."    Foundation  on  Economic  Trends  v.                                                                         

Heckler, 756 F.2d 143, 151 (D.C. Cir. 1985).                     

          Congress,  in enacting  NEPA,  meant "to  insure  a

fully   informed  and  well-considered  decision."    Vermont                                                                         

Yankee,  435 U.S.  at  558.    But  NEPA  "does  not  mandate                  

particular  results";  it  "simply prescribes  the  necessary

process."   Robertson v. Methow Valley  Citizens Council, 490                                                                    

U.S. 332, 350 (1989).  "If the  adverse environmental effects

of   the  proposed  action   are  adequately  identified  and

evaluated,  the  agency  is  not  constrained  by  NEPA  from

deciding that other values outweigh the environmental costs."

Id.; see  also Baltimore Gas,  462 U.S. at 97.   Thus, "[t]he                                        

role of  the courts is simply  to ensure that  the agency has

adequately considered and disclosed the  environmental impact

of  its actions  and that  its decision  is not  arbitrary or                                

capricious."   Baltimore  Gas,  462 U.S.  at 97-98  (emphasis                                         

added).  

          Like  NEPA, the  CWA  does not  articulate its  own

standard of review; therefore the appropriate scope of review

for both NEPA claims and CWA claims is the standard set forth

in the APA.  5 U.S.C.   706(2)(A) (1994); see Town of Norfolk                                                                         

v. U.S. Army  Corps of  Engineers, 968 F.2d  1438, 1445  (1st                                             

Cir. 1992);  Oregon Natural Resources Council  v. U.S. Forest                                                                         

Service, 834 F.2d 842, 851-52 (9th Cir. 1987).                   

                             -25-

          Under the APA, "[t]he  reviewing court shall .  . .

hold  unlawful and  set  aside agency  action, findings,  and

conclusions found  to be  arbitrary, capricious, an  abuse of

discretion, or  otherwise not  in  accordance with  law."   5

U.S.C.   706(2)(A).   Errors of law are reviewed by the court

de novo.  5  U.S.C.   706 (1994) ("the reviewing  court shall                   

decide all  relevant questions  of law");  Howard v. FAA,  17                                                                    

F.3d 1213, 1215 (9th Cir. 1994).

          On the  other hand, the  task of a  court reviewing

agency  action under  the  APA's "arbitrary  and  capricious"

standard, 5  U.S.C.    706(2), is "to  determine whether  the

[agency] has  considered the relevant factors and articulated                                                                         

a rational connection between the facts found and the  choice                                 

made."   Baltimore  Gas,  462 U.S.  at  105 (emphasis  added)                                   

(citations omitted);  see also  Motor Vehicle Mfrs.  Ass'n v.                                                                         

State  Farm  Mut. Auto.  Ins. Co.,  463  U.S. 29,  43 (1983);                                             

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419                                                                    

U.S. 281,  285-86 (1974); Citizens to  Preserve Overton Park,                                                                         

Inc. v. Volpe, 401  U.S. 402, 415-17 (1971).   If the  agency                         

decision was based on a consideration of the relevant factors

and  there has not been "a clear error of judgment," then the               

agency  decision was  not arbitrary  or capricious.   Overton                                                                         

Park,  401 U.S.  at 416;  Marsh v.  Oregon Natural  Resources                                                                         

Council, 490 U.S. 360, 378 (1989).                     

                             -26-

          In State Farm,  the Supreme  Court offered  several                                   

examples   of  circumstances  in   which  an   agency  action

"normally"  would  be  considered arbitrary  and  capricious:

situations  where "the  agency  has relied  on factors  which

Congress has not intended it  to consider, entirely failed to

consider  an  important aspect  of  the  problem, offered  an

explanation  for  its  decision  that  runs  counter  to  the

evidence before  the  agency, or  is so  implausible that  it

could not be ascribed to a difference in  view or the product

of agency expertise."  State Farm, 463 U.S. at 43.  These are                                             

merely "examples," Puerto  Rico Sun  Oil Co. v.  U.S. EPA,  8                                                                     

F.3d 73, 77 (1st Cir. 1993); others could be recited as well.

Whether  reviewing an  EIS  or a  rulemaking proceeding,  the

"reviewing court  should not  attempt itself  to make  up for

such deficiencies; we may not supply a reasoned basis for the

agency's action that the agency itself has not given."  State                                                                         

Farm, 463 U.S. at  43 (citing SEC v. Chenery Corp.,  332 U.S.                                                              

194, 196 (1947)).

          "While  this is  a highly  deferential  standard of

review,  it  is not  a  rubber  stamp."   Citizens  Awareness                                                                         

Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284,                                                           

290 (1st  Cir. 1995).    Although "the  ultimate standard  of

review  is  a  narrow  one,"   the  court  must  undertake  a

"thorough,  probing, in-depth  review"  and a  "searching and

                             -27-

careful" inquiry into the  record.15  Overton Park,  401 U.S.                                                              

at 415-16.   In order for  an agency decision  to pass muster

under  the   APA's  "arbitrary  and   capricious"  test,  the

reviewing court  must  determine  that  the  decision  "makes

sense."    Puerto Rico  Sun  Oil,  8 F.3d  at  77.   Only  by                                            

"carefully reviewing the record  and satisfying [itself] that

the agency  has  made  a reasoned  decision"  can  the  court

"ensure  that  agency decisions  are  founded  on a  reasoned

evaluation  of the relevant factors."  Marsh, 490 U.S. at 378                                                        

(internal quotation omitted).

                   IV.   THE NEPA/EIS ISSUE                               IV.   THE NEPA/EIS ISSUE                                                       

          The  National Environmental  Policy Act  (NEPA), 42

U.S.C.    4321 et seq., declares a  broad national commitment                                  

to   protecting   and   promoting    environmental   quality.

Robertson, 490 U.S.  at 348; 42  U.S.C.   4331  (1994).   The                     

primary mechanism for implementing NEPA is  the Environmental

Impact Statement (EIS).  42 U.S.C.   4332 (1994).  The EIS is

an  "action-forcing" procedure,  designed  "[t]o ensure  that

this  commitment is  infused  into the  ongoing programs  and

actions of the  Federal Government."  Robertson, 490  U.S. at                                                           

348 (quotation omitted).

                                                    

15.  We note that the two-step process articulated in Chevron                                                                         
U.S.A. v. NRDC, 467  U.S. 837, 842-43 (1984), does  not apply                          
here, because we are not reviewing an agency's interpretation
of the statute that it was directed to enforce.

                             -28-

          NEPA requires that an agency considering any action

that  would  have a  significant  impact  on the  environment

prepare  an EIS.  The EIS must contain a "detailed statement"                                                              

including, inter  alia,  the  environmental  impacts  of  the                                  

proposed  project,  and  all reasonable  alternatives  to the

project.    42  U.S.C.     4332(C)  (emphasis  added).     We

previously  emphasized  the   word  "detailed"  because   "it

connotes the careful,  reasoned and fully explained  analysis

which we think Congress  intended."  Silva v. Lynn,  482 F.2d                                                              

1282,  1284 n.2 (1st Cir. 1973).  Thus, the EIS helps satisfy

NEPA's "twin aims":  to ensure  that the agency takes a "hard

look"  at the  environmental  consequences  of  its  proposed

action,  and   to  make  information  on   the  environmental

consequences available  to the  public, which may  then offer

its insight to  assist the  agency's decision-making  through

the  comment process.  See  Robertson, 490 U.S.  at 350, 356;                                                 

Baltimore Gas, 462  U.S. at 97.   The EIS thus "helps  insure                         

the integrity  of the process of decision," providing a basis

for  comparing  the  environmental  problems  raised  by  the

proposed  project  with  the  difficulties  involved  in  the

alternatives.  Silva v. Lynn, 482 F.2d at 1285.                                        

          A.  Consideration of Environmental Impacts                      A.  Consideration of Environmental Impacts                                                                

          In  its  EIS,  the  agency  must   "consider  every

significant aspect of the  environmental impact of a proposed

action,"  Baltimore  Gas, 462  U.S.  at  97 (quoting  Vermont                                                                         

                             -29-

Yankee, 435 U.S. at 553), and  "evaluate different courses of                  

action,"  Kleppe, 427 U.S. at  410.  The  EIS's discussion of                            

environmental  impacts  "forms  the scientific  and  analytic

basis  for  the comparisons"  of  alternatives,  40 C.F.R.   

1502.16 (1995), which  are "the heart" of  the EIS, id.  at                                                                     

1502.14; see  Part IV(B), infra.   The discussion  of impacts                                           

must  include both  "direct and  indirect effects  (secondary

impacts) of a proposed  project."  Sierra Club v.  Marsh, 976                                                                    

F.2d 763, 767 (1st Cir.  1992); 40 C.F.R.   1502.16(b).   The

agency need not speculate  about all conceivable impacts, but

it  must  evaluate  the  reasonably  foreseeable  significant

effects  of the proposed action.   Sierra Club  v. Marsh, 976                                                                    

F.2d  at 767.    In this  context, reasonable  foreseeability

means that "the impact is sufficiently likely to occur that a

person of  ordinary prudence would  take it  into account  in

reaching  a decision."  Id.  An environmental effect would be                                       

considered "too speculative" for inclusion  in the EIS if  it

cannot  be  described at  the time  the  EIS is  drafted with

sufficient specificity to make  its consideration useful to a

reasonable  decision-maker.    Id.  at  768.    Nevertheless,                                              

"[r]easonable  forecasting . . .  is . .  . implicit in NEPA,

and we must  reject any  attempt by agencies  to shirk  their

responsibilities   under  NEPA  by   labeling  any   and  all

discussion of  future environmental effects  as 'crystal ball

                             -30-

inquiry.'"  Scientists' Inst. for Pub. Info. v. Atomic Energy                                                                         

Comm'n, 481 F.2d 1079, 1092 (D.C. Cir. 1973).                  

          Plaintiffs contended in the district court that the

Forest Service failed to adequately assess the impact of Loon

Corp.'s planned expansion on Loon  Pond.  Plaintiffs listed a

number  of specific  areas  of concern.   The  district court

found  the  Forest Service's  consideration  of environmental

impacts to be adequate, and plaintiffs have not appealed this

point.  Accordingly, we need not pursue this issue here.  

              B.  Consideration of Alternatives                          B.  Consideration of Alternatives                                                           

          "[O]ne  important  ingredient  of  an  EIS  is  the

discussion of  steps that  can be  taken to  mitigate adverse

environmental consequences" of a proposed action.  Robertson,                                                                        

490 U.S.  at 351.   As  one aspect  of evaluating  a proposed

course of action under NEPA, the agency has a duty  "to study

all  alternatives that appear  reasonable and appropriate for

study . . .  , as well as significant  alternatives suggested

by other agencies or  the public during the comment  period."

Roosevelt Campobello Int'l Park  Comm'n v. United States EPA,                                                                        

684  F.2d 1041,  1047 (1st  Cir. 1982)  (quotations omitted);

Valley Citizens for a  Safe Env't v. Aldridge, 886  F.2d 458,                                                         

462 (1st Cir. 1989); City of Carmel-By-The-Sea v. U.S.  Dept.                                                                         

of Transp., 95 F.3d 892, 903 (9th Cir. 1996).                      

          As stated  in the Council  on Environmental Quality

("CEQ") regulations implementing  NEPA, the consideration  of

                             -31-

alternatives  is  "the  heart  of  the  environmental  impact

statement."    40  C.F.R.     1502.14.    These  implementing

regulations   are   entitled   to    substantial   deference.

Robertson, 490 U.S. at 355 (citing Andrus v. Sierra Club, 442                                                                    

U.S.  347, 358 (1979)).  The regulations require that the EIS

"[r]igorously explore and objectively evaluate all reasonable

alternatives, and for alternatives which were eliminated from

detailed study, briefly discuss  the reasons for their having

been eliminated."  40 C.F.R.   1502.14(a).  It is "absolutely

essential  to  the NEPA  process  that  the decisionmaker  be

provided with a detailed and careful analysis of the relative

environmental merits and demerits  of the proposed action and

possible   alternatives,   a   requirement   that   we   have

characterized  as   'the  linchpin   of  the   entire  impact

statement.'"   NRDC  v. Callaway,  524 F.2d  79, 92  (2d Cir.                                            

1975)  (citation omitted);  see Silva  v. Lynn,  482  F.2d at                                                          

1285;  All Indian Pueblo  Council v. United  States, 975 F.2d                                                               

1437,  1444  (10th  Cir.   1992)  (holding  that  a  thorough

discussion  of  the  alternatives  is  "imperative").    "The

'existence of a viable  but unexamined alternative renders an

environmental impact statement  inadequate.'"  Resources Ltd.                                                                         

v.  Robertson, 35  F.3d 1300, 1307  (9th Cir.  1993) (quoting                         

Idaho Conservation League v. Mumma,  956 F.2d 1508, 1519 (9th                                              

Cir. 1992)); see Grazing Fields Farm v. Goldschmidt, 626 F.2d                                                               

1068, 1072 (1st  Cir. 1980) (Even the existence of supportive

                             -32-

studies and memoranda contained in  the administrative record

but not incorporated in the EIS cannot "bring into compliance

with NEPA an EIS that by itself is inadequate.").  Because of

the  importance  of   NEPA's  procedural  and   informational

aspects,  if  the  agency  fails to  properly  circulate  the

required issues  for review  by interested parties,  then the

EIS is insufficient  even if the agency's actual decision was

informed and well-reasoned.  Grazing Fields Farm, 626 F.2d at                                                            

1072;  see Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir.                                            

1983).

              C.   The Requisite Level of Detail                          C.   The Requisite Level of Detail                                                            

          One purpose  of the EIS requirement  is to "provide

decisionmakers  with sufficiently detailed information to aid

in determining whether to proceed with the action in light of

its  environmental consequences."   Northwest  Resource Info.                                                                         

Ctr., Inc. v.  National Marine Fisheries Serv., 56 F.3d 1060,                                                          

1064 (9th Cir.  1995).   What level of  detail is  sufficient

depends  on the  nature  and scope  of  the proposed  action.

Valley  Citizens, 886 F.2d at  463; Mumma, 956  F.2d at 1520.                                                     

The discussion of environmental  effects of alternatives need

not  be  exhaustive.    "[W]hat is  required  is  information

sufficient to permit a reasoned choice of alternatives as far

as  environmental aspects are  concerned," All  Indian Pueblo                                                                         

Council, 975 F.2d at  1444 (quoting NRDC v. Morton,  458 F.2d                                                              

827, 836  (D.C. Cir.  1972)); see also  Carmel-By-The-Sea, 95                                                                     

                             -33-

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

"[r]igorously   explore   and   objectively   evaluate"   all

reasonable alternatives.  40  C.F.R.   1502.14(a); All Indian                                                                         

Pueblo Council, 975 F.2d at 1444.                          

          The  courts  have  applied  "a rule  of  reason  in

determining  whether an  EIS contains  a reasonably  thorough

discussion  of  the  significant   aspects  of  the  probable

environmental  consequences."  Carmel-By-The-Sea,  95 F.3d at                                                            

899 (quotation  omitted); see  also Grazing Fields  Farm, 626                                                                    

F.2d at 1074; Massachusetts v. Andrus, 594 F.2d 872, 884 (1st                                                 

Cir.  1979); cf. Marsh,  490 U.S. at  373 (supplemental EIS).                                  

One aspect  of this determination  is whether the  agency has

gone "beyond  mere assertions  and indicate[d] its  basis for

them."   Silva v. Lynn, 482  F.2d at 1287.   The agency "must                                  

'explicate fully its course of inquiry, its analysis  and its

reasoning.'"    Massachusetts  v.  Andrus, 594  F.2d  at  883                                                     

(quoting Silva v. Lynn, 482 F.2d at 1284-85).  The court must                                  

determine whether, in the context of the record, the agency's

decision  -- and the analysis on which  it is based -- is too

unreasonable for the law to  permit it to stand.  See  Sierra                                                                         

Club v.  Marsh, 976 F.2d at  769.  We apply a  rule of reason                          

because  courts should  not "fly  speck" an  EIS and  hold it

insufficient   based   on   inconsequential    or   technical

deficiencies.   Swanson v. U.S. Forest  Service, 87 F.3d 339,                                                           

343 (9th Cir.  1996).  "The statute must be  construed in the

                             -34-

light  of reason  if  it is  not  to demand  what is,  fairly

speaking, not meaningfully possible.  . . .  But  implicit in

this  rule of  reason  is the  overriding  statutory duty  of

compliance  with impact  statement procedures to  the fullest

extent  possible."    Scientists'  Inst., 481  F.2d  at  1092                                                    

(quotations omitted).  The  agency must "squarely turn[]" all

"procedural corners" in its EIS.  Citizens Awareness Network,                                                                        

59 F.3d  at 290 (quoting Adams, 38 F.3d at 49).  The question                                          

whether a particular deficiency or combination  is sufficient

to  warrant holding  it  legally inadequate,  or  constitutes

merely  a  "fly  speck,"  is essentially  a  legal  question,

reviewable de novo.  Oregon Environmental Council v. Kunzman,                                                                        

817 F.2d 484, 493 (9th Cir. 1987).  

          Applying these  standards to  the instant  case, we

conclude that the Forest  Service has not rigorously explored

all  reasonable alternatives,  in particular  the alternative

that Loon Corp. be required to build artificial water storage

ponds, instead of withdrawing  water for snowmaking from, and

discharging water  into, an "outstanding resource water" like

Loon Pond.   The adverse environmental impacts of  using Loon

Pond  were before  the agency,  and more  than one  commenter

proposed building artificial water storage  ponds, a proposal

that would, on its face, avoid some of those adverse impacts.

One such commenter, Paul Beaudin of the Lincoln  Committee of

Concerned  Citizens  (LCCC), enclosed  clippings  pointing up

                             -35-

"the  wisdom  of  [Loon Corp.'s]  need  to  enact the  LCCC's                                                  

proposal for water  containment pond[s] high up on  the Boyle

Brook."  JA, vol. II, Response  to Public Comment on RDEIS at

A-12.   The  LCCC proposal itself,  made two  months earlier,

referred  to  a letter  from  the  National Ecology  Research

Center   recommending   consideration   of    water   storage

alternatives  other  than  Loon  Pond,  and  enclosed  a  map

indicating  where  up to  three  containment  ponds could  be

installed.   LCCC listed some nine  advantages, including the

cost-saving factor of  servicing two-thirds to  three-fourths

of Loon Corp.'s snowmaking system by gravity feed.16

          Instead of "rigorously explor[ing]" the alternative

of using artificial water storage units instead of Loon Pond,

the  Forest Service's  Final  EIS did  not  respond to  these

comments at all.   The agency did not in  any way explain its

reasoning  or  provide a  factual  basis for  its  refusal to

consider,  in general,  the  possibility of  alternatives  to

using  Loon  Pond   for  snowmaking,  or   LCCC's  reasonably

                                                    

16.  In addition to the Beaudin/LCCC proposal, plaintiff
Dubois' comments also suggested that Loon Corp. build
artificial water storage units, in his case underground. 
This suggestion, requiring costly subterranean construction,
may be more facially vulnerable than Beaudin/LCCC's; it may
or may not alone have required an explicit response, however
brief.  But we need not address this question because we
reverse based on the Beaudin/LCCC proposal.

                             -36-

thoughtful proposal in  particular.17  This failure  violated

the Forest  Service's  EIS obligation  under  NEPA.   See  40                                                                     

C.F.R.   1502.9(b) (1995); 42 U.S.C.   4332(C)(iii) (1994).

          The  use  of artificial  storage  ponds  is not  so

facially implausible  that it can  be dismissed out  of hand.

The  Forest  Service,  on   another  occasion,  required  the

Sugarbush  Ski   Area  in  Vermont  to   construct,  for  its

snowmaking  operations, three artificial  water storage ponds

capable  of holding  123.5 million  gallons of water  on 22.9

acres of private land.  JA, vol. I, at 457, 465.  This is 73%

more  than the  71  million gallons  of  water that  the  ROD

estimates  would  be  withdrawn  from  Loon  Pond  under  the

approved  Loon  Mountain  expansion  project.    Beaudin/LCCC

proposed constructing three similar  ponds in the Boyle Brook

area high up Loon Mountain.  In addition, the record contains

evidence  that Loon Corp. owns  365 acres of  private land at

the base of the  ski area, where similar storage  ponds could

be constructed,  and that  such ponds  could  be filled  with

water from the East Branch, which is typically high enough in

the spring to contribute to flooding in downstream areas.

                                                    

17.  Aside from its preservation argument, see Part IV(D),                                                          
infra, the Forest Service merely argues that the LCCC                 
proposal was made to Loon Corp. before the RDEIS was
published.  However, the Forest Service does not suggest that
Beaudin's comment letter -- responding to the Forest
Service's RDEIS -- did not fairly refer to the prior LCCC
proposal, or that this proposal was unknown to the Service.

                             -37-

          Our  conclusion is buttressed by NEPA's requirement

that an agency consider and an EIS discuss "steps that can be

taken to mitigate the adverse environmental consequences"  of

a proposed project.   See Robertson,  490 U.S. at 351.   Even                                               

though  there  is no  requirement  that  the agency  reach  a

particular substantive  result, such as  actually formulating

and  adopting a  complete  mitigation plan,  the agency  must

discuss "the extent to which adverse effects can be avoided,"

i.e., by mitigation measures, "in sufficient detail to ensure                

that  environmental consequences have been fairly evaluated."

Id. at 352.  This duty  -- coupled with the comments alerting               

the agency  to the  environmental consequences of  using Loon

Pond  for  snowmaking  and suggesting  the  containment  pond

solution -- required the Forest Service to seriously consider

this alternative and to explain its reasoning if  it rejected

the proposal.

          Nor can  the Forest Service claim  that its failure

to consider  an alternative to using Loon Pond for snowmaking

was a de minimis  or "fly speck" issue.  The record indicates                            

serious adverse consequences to Loon Pond if it is used "as a

cistern,"  to use  EPA's  words, and  at  least a  reasonable

probability that  the use  of artificial storage  ponds could

avoid  those  consequences.   The  existence  of this  non-de                                                                         

minimis "viable but unexamined alternative renders [the  Loon                   

EIS] inadequate."  See Resources, Inc., 35 F.3d at 1307.                                                  

                             -38-

          After the matter  had proceeded  to court,  counsel

for  the Forest Service  argued that  constructing artificial

storage  ponds large  enough to  serve as  an alternative  to

using Loon Pond would not be a viable alternative for reasons

that were  conclusorily stated.  The  district court accepted

this  argument.    But  this  "post  hoc  rationalization  of                                                    

counsel" cannot overcome the agency's failure to consider and

address in  its FEIS the alternative  proposed by commenters.

State  Farm, 463 U.S. at 50; see Burlington Truck Lines, Inc.                                                                         

v. United States, 371 U.S. 156, 168 (1962); NRDC v. U.S. EPA,                                                                        

824 F.2d  1258, 1286  n.19 (1st  Cir. 1987).   Such  post hoc                                                                         

rationalizations are inherently suspect, and in any event are

no substitute for the agency's following statutorily mandated

procedures.   As  noted supra,  even if  the agency's  actual                                         

decision  was a reasoned one,  the EIS is  insufficient if it

does  not  properly discuss  the  required  issues.   Grazing                                                                         

Fields Farm, 626 F.2d at 1072.                       

          In  sum,   how  "probing"  an   investigation  NEPA

requires   of  alternatives  depends  on  the  circumstances,

including  the  nature  of  the  action  at  issue.    Valley                                                                         

Citizens, 886 F.2d at 463.  Thus, the reviewing court must be                    

flexible in evaluating the depth of analysis to require in an

EIS,  because,  while  NEPA  "does  not   mandate  particular

results,"  it does  require that  the agency  have adequately

identified   and   evaluated   a    project's   environmental

                             -39-

consequences.  Robertson, 490  U.S. at 350.   "NEPA's success                                    

in large part arises from the use of legal concepts [that are

flexible] such as 'reasonableness' and 'adequacy' that permit

courts to adapt it successfully to so many different kinds of

circumstances   surrounding  so   many  different   kinds  of

governmental decisions."  Valley Citizens, 886 F.2d at 463.                                                     

          Although in  Valley Citizens we found  the agency's                                                  

analysis of alternatives "brief but  adequate,"  886 F.2d  at

462, the contrast with  the instant case is instructive.   In

Valley  Citizens, we found that  nothing in the  record or in                            

comments on the  draft "point[ed] out any inaccuracy"  in the

agency's cost "descriptions" or in its "discussions" of other

non-environmental considerations.   Id.  In  contrast, in the                                                   

instant  case, the  final  EIS contains  no "description"  or                                                       

"discussion" whatsoever  as to  why an alternative  source of

water  such as an artificially  created storage pond would be

impractical.  The agency  has discretion to balance competing

concerns  and  to  choose  among alternatives,  but  it  must

legitimately  assess  the   relative  merits  of   reasonable

alternatives before making its decision.  

          After a searching and  careful review of the record

in the instant  case, we  are not convinced  that the  Forest

Service's decision  was founded  on a reasoned  evaluation of

the  relevant factors,  Marsh, 490  U.S. at  378, or  that it                                         

articulated a rational connection between the facts found and

                             -40-

the  choice made, Baltimore Gas, 462  U.S. at 105.  Hence, it                                           

acted  arbitrarily and capriciously  in granting Loon Corp.'s

special use  permit for the  expanded ski resort.   Moreover,

because the  Forest Service  did not satisfy  the requirement

that  it "rigorously  explore and  objectively  evaluate" all

reasonable  alternatives,18  40   C.F.R.     1502.14(a),  its

decision was not in  accordance with law.19   See 5 U.S.C.                                                                

706(2)(A).

                 D.   The Preservation Issue                             D.   The Preservation Issue                                                        

          The Forest Service argues that plaintiffs have  not

preserved  their argument  that the  agency should  have more

seriously considered,  as an  alternative to Loon  Pond, some

other source  for water and some other  location to discharge

                                                    

18.  In addition to  the question of  an alternative to  Loon
Pond as a source of water or  as a discharge point, plaintiff
RESTORE  has  raised a  second issue  regarding alternatives.
RESTORE  asserts   that  the   Forest  Service  should   have
considered alternative sites for the entire  project, outside
of the White Mountain  National Forest.   The  district court
found that  such alternative  sites were not  appropriate for
study because  some draw from different markets and others do
not offer the same type of skiing experience as the  WMNF ski
areas which have more terrain, higher mountains, more natural
snow, and better facilities  than their counterparts  outside
the WMNF.  We agree.

19.  Dubois also notes that the  FEIS failed to disclose what
he  claims are  numerous  violations of  state water  quality
standards,  which "renders the FEIS unacceptable under NEPA."
Dubois  Brief  at  16  n.11; see  Northwest  Indian  Cemetery                                                                         
Protective Ass'n v. Peterson, 764  F.2d 581, 587-88 (9th Cir.                                        
1985),  rev'd  on other  grounds sub  nom. Lyng  v. Northwest                                                                         
Indian  Cemetery Protective Ass'n, 485 U.S.  439 (1988).  For                                             
discussion of the issue of state water quality standards, see                                                                         
Part VII(C), infra.                              

                             -41-

the effluent from Loon Corp.'s snowmaking pipes.  It contends

that plaintiffs failed adequately to raise  their contentions

during the public comment period,  so they waived their right

to  pursue  these challenges  on  their merits.    The Forest

Service argues  that, "[i]f commenters could require agencies

to   undertake  detailed   comparative  analyses   merely  by

asserting   the   superiority   of   an   alternative   site,

configuration  or  method, only  the imaginations  of project

opponents  would limit the length of EISs and the duration of

the  NEPA process."  Forest Service Brief at 53.  Raising the

specter of catastrophe only  obfuscates the real issues here:

whether the Forest Service adequately considered alternatives

to  using Loon Pond as a vehicle for Loon Corp.'s snowmaking,

with adequacy based on the reasonableness and practicality of

the alternatives, and  whether the Forest Service  adequately

explained   in  its   FEIS  why   it  decided   against  such

alternatives.

          The Forest Service  relies on Roosevelt Campobello:                                                                        

"In order to preserve an alternatives issue for review, it is

not enough  simply to  make a facially  plausible suggestion;

rather, an  intervenor must  offer tangible evidence  that an                                                                         

alternative  site  might  offer  a   substantial  measure  of                             

superiority  as a site."   684 F.2d at  1047 (emphasis added)

(quotation  omitted).    The  Forest  Service's  reliance  on

Roosevelt  Campobello  is  misplaced.   That  case,  and  the                                 

                             -42-

precedents it relied on,  dealt with a claim that  the agency

had not considered all appropriate alternative sites on which                                                                

to locate  a particular  project.   Obviously, the  number of

potential  locations  for any  project  is  infinite, and  an

agency  cannot   be  expected  to  consider  seriously  every

possible  location before  approving  a project.   In  such a

context,  the  agency  is  only  required  to  consider  "all

alternatives which were  feasible and reasonably apparent  at

the time of drafting the EIS."  Id.;  see also Seacoast Anti-                                                                         

Pollution League v. Nuclear Regulatory Comm'n, 598 F.2d 1221,                                                         

1229 (1st  Cir.  1979) (Agency  need  not "ferret  out  every

possible   alternative,  regardless   of   how  uncommon   or

unknown.") (quoting Vermont Yankee, 435 U.S. at 551).                                                 

          The  situation  in  the   instant  case  is  wholly

different.  It is one thing to ask whether there are "known,"

"feasible," alternative  sites on which to  locate a project,                                          

and a different matter  to ask whether the Forest  Service in

the instant case should  have considered an alternative means                                                                         

of implementing the expansion of the Loon Mountain Ski Area -

-  a  particular  means  of  operation  that  would  do  less

environmental damage -- without  changing the site to another

state or  another mountain.    Here, the  Forest Service  was

alerted by commenters to  the alternative of using artificial

storage  ponds instead of Loon Pond for snowmaking;  but even

without  such  comments,  it  should  have  been  "reasonably

                             -43-

apparent" to the  Forest Service,  Roosevelt Campobello,  684                                                                   

F.2d at 1047, not "unknown," Seacoast  Anti-Pollution League,                                                                        

598 F.2d at 1229, that such an alternative existed.

          In the instant case,  at least two commenters, Paul

Beaudin of LCCC and plaintiff  Dubois, provided notice to the

Forest  Service,  informing  it  of the  substance  of  their

proposed alternative.   Though  not detailed,  these comments

submitted  in response  to  the Forest  Service's RDEIS  made

clear that the commenters  thought the agency should consider

some alternative source  of water  other than  Loon Pond  and

some  alternative place to  discharge the water  after it had

gone  through the snowmaking pipes.  They argued that such an

alternative would reduce the negative environmental impact on

Loon Pond from depleting the  pond's water and from refilling

the pond with polluted  water either from the East  Branch or

from  acidic  snowmelt.   Dubois  explicitly  and Beaudin  by

reference suggested  the possibility of  new man-made storage

units  to accomplish  these goals.   These  comments provided

sufficient notice to "alert[]  the agency" to the alternative

being proposed and the  environmental concern the alternative

                             -44-

might  address.20   See  Seacoast Anti-Pollution  League, 598                                                                    

F.2d at 1229 (quoting Vermont Yankee, 435 U.S. at 553).                                                  

          Because the comments to  the EIS were sufficient to

notify the agency of the potential alternatives, see Adams v.                                                                         

U.S. EPA, 38  F.3d 43, 52 (1st Cir. 1994), the district court                    

erred in concluding that plaintiffs were required to "offer[]

specifics  as to  how  to implement  a suggested  alternative

water storage system."   Memorandum  and Order at  31.   Such

"specifics" are not required.   As we reasoned in  Adams, the                                                                    

purpose  of public  participation  regulations is  simply "to

provide notice" to  the agency, not to "present  technical or

precise   scientific   or   legal  challenges   to   specific

provisions" of the document  in question.  Adams, 38  F.3d at                                                            

52.   "It would be  inconsistent with the  general purpose of

public participation regulations  to construe the regulations

strictly."  Id.                            

          Moreover, NEPA  requires the  agency to try  on its

own to  develop alternatives that will  "mitigate the adverse

environmental   consequences"   of   a    proposed   project.

                                                    

20.  In Adams v.  U.S. EPA, 38  F.3d 43  (1st Cir. 1994),  we                                      
held that a plaintiff had sufficiently raised his proposal at
the agency level by stating in his comment:  "The EPA has not
carried out the intent of Congress in relation to the [Act in
question, citing specific statutory provisions]."   Adams, 38                                                                     
F.3d at 52.  This court  held that that reference -- together
with other comments discussing  the detrimental impact of the
proposed project on beaches and marine life -- was sufficient
to "alert[]  the EPA to  [his] concern that  the EPA had  not
adequately complied with the [statutory] mandates."  Id.                                                                     

                             -45-

Robertson,  490 U.S. at 351.  "In respect to alternatives, an                     

agency must on its own initiative study all alternatives that                                             

appear reasonable and appropriate for  study at the time, and

must also  look into other significant  alternatives that are

called to its attention  by other agencies, or by  the public

during  the  comment  period   afforded  for  that  purpose."

Seacoast Anti-Pollution  League, 598  F.2d at  1230 (emphasis                                           

added).21    Particularly  given  this directive,  the  alert

furnished by  Beaudin  and Dubois  required  exploration  and

discussion   by  the   Forest  Service   of  the   idea  that

environmental  damage   might  be  reduced  by   the  use  of

artificial storage ponds instead  of Loon Pond for snowmaking

purposes.  Therefore, the district court should have rejected

the  Forest   Service's  argument   that  Dubois   failed  to

adequately preserve the issue of alternatives.

                    V.   SUPPLEMENTAL EIS                                V.   SUPPLEMENTAL EIS                                                     

          Plaintiffs   also   appeal  the   district  court's

conclusion that  the Forest  Service was not  required, under

NEPA,  to  prepare a  supplemental EIS.    The question  of a

supplemental EIS is premised on the dual purposes of the EIS:

                                                    

21.  In deciding whether an agency has adequately studied all
reasonable alternatives, a reviewing  court may consider "the
extent   and  sincerity  of  the  opponents'  participation."
Seacoast Anti-Pollution League, 598  F.2d at 1231.  Here,  it                                          
is  apparent from  the record  that Dubois  has treated  this
matter  seriously, not as  "a game," id. at  1229; he has not                                                    
"played dog  in  the  manger  with respect  to  alerting  the
agency"  to  his views  regarding  alternatives,  id., in  an                                                                 
effort to "scuttle" the project, id. at 1231.                                                

                             -46-

to  assure that  the  public who  might  be affected  by  the

proposed  project  be fully  informed  of  the proposal,  its

impacts and all major points of  view; and to give the agency

the benefit of informed comments and suggestions as it  takes

a "hard look" at  the consequences of proposed actions.   See                                                                         

Robertson,  490  U.S.  at  349,  356;  40  C.F.R.     1502.1,                     

1502.9(a) (1995).  

          An agency "shall"  prepare a  supplemental EIS  if,

after  issuing  its latest  draft  EIS,  "[t]he agency  makes

substantial changes in the  proposed action that are relevant

to  environmental  concerns."   40  C.F.R.    1502.9(c)(1)(i)

(1995).   The  use  of the  word  "shall" is  mandatory,  not

precatory.   It creates a duty  on the part of  the agency to

prepare a supplemental EIS if substantial changes from any of

the  proposed  alternatives  are  made and  the  changes  are

relevant  to environmental concerns.   See Marsh, 490 U.S. at                                                            

372.   Thus,  as explained by CEQ, an  additional alternative

that  has not been disseminated previously in a draft EIS may

be adopted in  a final EIS,  without further public  comment,

only  if   it  is  "qualitatively  within   the  spectrum  of

alternatives  that  were  discussed"   in  the  prior  draft;

otherwise  a supplemental  draft is needed.   See  Forty Most                                                             

Asked  Questions Concerning CEQ's  NEPA Regulations,  46 Fed.

Reg. 18026, # 29b (1981). 

                             -47-

          Plaintiffs  argue  that  the  project  proposed  as

Alternative 6, appearing for the first time in the Final EIS,

embodies "substantial  changes" from any  of the alternatives

proposed  in  the prior  drafts of  the  EIS, and  that those

changes  are "relevant  to environmental  concerns."   See 40                                                                      

C.F.R.   1502.9(c)(1)(i).  Therefore, plaintiffs assert that,

by  not describing  Alternative 6  in a  supplemental  EIS --

which would give the  public an opportunity to comment  on it

and  give the Forest Service the benefit of those comments in

its consideration of the environmental impact of  Alternative

6 --  the  Forest  Service  collided  with  both  the  public

information and the  agency guidance objectives of  NEPA.  In

response, defendants argue that plaintiffs' interpretation of

the  previously discussed alternatives  is incorrect, because

Alternative  6  is  merely  a   scaled-down  modification  of

Alternative  2 which, as proposed in two phases in the RDEIS,

would  have been  far larger  and far  more intrusive  on the

environment than the new preferred Alternative 6.  Plaintiffs

reply that only Phase I and not Phase II of Alternative 2 was

seriously considered and analyzed prior to the development of

Alternative  6 in  the  final EIS.22    Defendants deny  this

assertion.

                                                    

22.  Plaintiffs point  to  several instances  where the  FEIS
stated that further environmental analysis would be conducted
in the future  if and  when Loon Corp.  sought permission  to
proceed with Phase II.

                             -48-

          We conclude, based on the record in this case, that

a supplemental  EIS was required.   The scope of  review of a

reviewing  court  is  the  APA's  "arbitrary  and capricious"

standard.   Marsh, 490 U.S.  at 375-76; see  Part III, supra.                                                                        

The  Court  in  Marsh   was  especially  deferential  to  the                                 

"informed  discretion of  the responsible  federal agencies,"

due to the  "high level of  technical expertise" required  in

that case  to analyze  the relevant documents  regarding soil

composition  and  a  dam's  impact  on downstream  turbidity.

Marsh, 490 U.S. at  377, 379.  In the  instant case, however,                 

nothing  in  the FEIS  indicates  that  any such  technically

complex scientific  analysis would  be required in  order for

this  court  to  determine  that  Alternative  6  involves  a

"substantial  change"  from  the   prior  proposals  at  Loon

Mountain.

          Alternative 6, adopted by the Forest Service as its

preferred alternative in the final EIS, does not fall "within

the   spectrum  of  alternatives"  that  were  considered  in

previous drafts, even if  Phase II of Alternative 2  had been

adequately analyzed prior to the FEIS.  Alternative 6 entails

a different  configuration of  activities and  locations, not

merely   a   reduced  version   of   a  previously-considered

alternative.   Phase II  of Alternative 2  proposed expanding

the ski area primarily on land that is not within the current

permit area; in  contrast, Alternative 6 squeezes much of its

                             -49-

expansion into that current permit area.  To accomplish this,

Alternative  6  widens existing  trails  so  as to  eliminate

buffers  that  currently  separate   the  trails.    It  also

envisions a 28,500-square-foot base lodge facility within the

existing permit  area.   And it  develops ski  trails, access

roads  and lifts on land that the prior alternatives had left

as  a  woodland  buffer between  the  old  ski  area and  the

proposed expansion area.   These are substantial changes from

the previously-discussed alternatives, not mere modifications

"within the spectrum" of those prior  alternatives.  It would

be  one thing  if  the  Forest  Service  had  adopted  a  new

alternative that was actually  within the range of previously

considered alternatives,  e.g., simply reducing the  scale of                                          

every  relevant particular.   It  is quite  another thing  to

adopt  a proposal  that is  configured differently,  in which

case  public commenters might have  pointed out, if given the

opportunity --  and the  Forest Service might  have seriously

considered  --   wholly  new   problems  posed  by   the  new

configuration  (even if  some of  the  environmental problems

present in the prior alternatives have been eliminated).

          Nor  can it  be  said that  these  changes are  not

"relevant to  environmental concerns."  They  could very well

have environmental  impacts that  the Forest Service  has not

yet considered,  simply based on their  more compact physical

location.   Indeed,  the RDEIS  said the  Forest  Service had

                             -50-

considered    expansion    alternatives   such    as   "other

configurations  on  the  existing  permit  area,"  but  these

alternatives "were eliminated  from detailed analysis because

they were not reasonable or feasible alternatives."  JA, vol.

I,  at 145-46.  Moreover, the plan selected, Alternative 6 in

the FEIS, would require that four million gallons  more water

be  withdrawn  annually  for snowmaking,  compared  with  the

closest alternative among the five  previously given detailed

consideration.   Whether or not  viewed in the  graphic terms

described  by  plaintiff  RESTORE  --  four  million  gallons

annually is  enough water  "to create  a lake  the size  of a

football field more than eleven  feet deep," RESTORE Brief at

33  --  this change  can be  expected  to have  a significant

enough  effect on  the environment  that additional  analysis

through a supplemental EIS would be required.   Cf. Roosevelt                                                                         

Campobello, 684 F.2d at 1055 (requiring a supplemental EIS to                      

consider newly completed studies  regarding the small risk of

a major oil spill).  We conclude, based on the record in this

case, that Alternative 6 entails substantial changes from the

previously   proposed   actions   that   are    relevant   to

environmental concerns, and that   the Forest Service did not

present  those changes to the  public in its  FEIS for review

and comment.   Accordingly,  the Forest Service's  failure to

prepare a supplemental EIS was arbitrary and capricious. 

                VI.   EXECUTIVE ORDER 11,990                             VI.   EXECUTIVE ORDER 11,990                                                         

                             -51-

          Plaintiffs  contend  that   the  Forest   Service's

failure  to adequately  consider alternatives  to the  use of

Loon Pond and failure to develop adequate mitigation measures

violates  Executive Order  11,990,  as  well  as NEPA.    The

district court rejected this argument on essentially the same

grounds as the NEPA argument.  

          On  appeal,  the   government  contends  that   the

Executive  Order  is not  enforceable,  at  least by  private

parties, because NEPA did  not confer rulemaking authority on

the President.  Plaintiffs argue that  the Executive Order is

accorded  the  full   force  and  effect  of  a   statute  or

regulation,  enforceable   under  the  APA.     We  have  not

previously decided this precise issue, nor need we decide  it

now.

          Even   assuming  that   the   Executive  Order   is

enforceable  under  the   APA,  it  does  not  apply  to  the

circumstances of this case.  The Executive  Order states that

federal agencies,

          to  the  extent permitted  by  law, shall
          avoid undertaking or providing assistance
          for new construction located  in wetlands
          unless the  head of the  agency finds (1)
          that there is no  practicable alternative
          to  such construction,  and (2)  that the
          proposed action  includes all practicable
          measures  to  minimize  harm to  wetlands
          which may result from such use.

Exec. Order No.  11,990,   2.  There is  no dispute that Loon

Pond  is a "wetland."   The Forest Service, however, contends

                             -52-

that the Loon Corp.  expansion plan does not  constitute "new

construction."      The   Executive   Order    defines   "new

construction" to include  "draining, dredging,  channelizing,

filling, diking, impounding, and related activities."  Id.,                                                                        

7(b).  Dubois claims that the use of Loon Pond as a source of

water for snowmaking and the discharge of used water from the

snowmaking  pipes into  Loon Pond  constitute "draining"  and

"filling" within the meaning of   7(b).

          We  agree with  the  Forest Service  that the  mere

expansion of a previously ongoing withdrawal of water from or

addition of  water to  a reservoir ordinarily  does not  fall

within the ambit of  the Executive Order's "new construction"

requirement.23   This  conclusion  is dictated  by the  plain

meaning  of the  phrase  "new construction,"  which does  not

ordinarily  encompass  the  mere  expansion   of  an  ongoing

activity,   unless  that  activity  itself  constituted  "new

construction."     Likewise,  in  common   usage,  the  words

"draining" and "filling"  generally refer to  activities that

eliminate a wetland to  convert it to another use, not to the

expansion  of  an activity  that  already  adds  water to  or

                                                    

23.  It  is conceivable, of  course, that an  expansion of an
already existing activity could fall within the ambit of  the                                           
Executive Order's "new construction" requirement.  This could
occur if  the expansion  effectuated a qualitative  change in
the nature of the  activity, rather than a  mere quantitative
enlargement of that activity.  On the record before us in the
instant case, we cannot say that plaintiffs have demonstrated
such a qualitative change.

                             -53-

withdraws  water  from  an existing  pond.    Our reading  is

buttressed  by common sense:  one would not ordinarily think,

without  more,  that a  federal  agency  operating a  dam  on

federal land would  be required, by  the Executive Order,  to

issue  notices and make findings every time water is added to

or  withdrawn from the dam (assuming that the dam has already

met all legal requirements to begin operation).

          Applying  the foregoing  analysis of  the Executive

Order to the record in the instant case, we conclude that the

situation  here  is  more akin  to  an  expansion of  ongoing

activities than to  "new construction."  The town  of Lincoln

is already  using Loon Pond as  a source of town  water.  And

Loon  Corp. has been using the Pond  as a source of water for

snowmaking, to  a depth of four  to six feet on  the average.

It is true  that the extent  of this intrusion  is less  than

would  be  the  case  under  the  proposed  expansion.    But

plaintiffs   did   not  challenge   these  currently-existing

intrusions, and  they have  not demonstrated a  factual basis

for their  conclusion that  there is something  qualitatively

"new" about the  proposed drawdown.  Thus, the  proposed Loon

Corp.  expansion project  --  by drawing  down a  substantial

additional amount of  water from Loon  Pond and refilling  it

with  East Branch  water or  with acidic  runoff --  does not

satisfy  the  definition  of  "new  construction"  within the

meaning of Executive Order 11,990, even though it constitutes

                             -54-

a major  action with  significant impact on  the environment,

triggering NEPA's EIS requirements.

              VII.   THE CLEAN WATER ACT ISSUES                          VII.   THE CLEAN WATER ACT ISSUES                                                           

          The Clean Water Act (CWA) was "a bold and  sweeping

legislative initiative,"  United  States v.  Commonwealth  of                                                                         

P.R.,  721 F.2d 832, 834 (1st Cir. 1983), enacted to "restore                

and maintain the chemical, physical, and biological integrity

of the Nation's waters."   33 U.S.C.   1251(a) (1994).  "This

objective incorporated  a broad, systemic view of the goal of

maintaining and improving water quality:  as the House Report

on the legislation put it, 'the word "integrity" . . . refers

to a condition in which the natural structure and function of

ecosystems [are]  maintained.'"   United States  v. Riverside                                                                         

Bayview Homes, Inc.,  474 U.S. 121, 132  (1985) (quoting H.R.                               

Rep. No. 92-911, at 76 (1972)).  In contrast to  NEPA's focus

on  process,  the  CWA  is  substantive,  focusing  upon  the

"integrity of  the Nation's Waters, not  the permit process."

Massachusetts v. Watt, 716 F.2d at 952 (quoting Weinberger v.                                                                         

Romero-Barcelo, 456 U.S. at 314).                           

          The  most important  component  of the  Act is  the

requirement that an NPDES permit be obtained, Commonwealth of                                                                         

P.R., 721 F.2d at 834; see 33 U.S.C.   1342  (1994), which we                                      

discuss in Part VII(B), infra.  In addition, the CWA requires                                         

states to adopt water quality standards which protect against

degradation   of  the   physical,  chemical,   or  biological

                             -55-

attributes  of  the state's  waters.   33 U.S.C.     1251(a),

1313(d)(4)(B) (1994);  40 C.F.R.    131.12 (1995).   This  is

discussed in  Part VII(C),  infra.24   Before turning  to the                                             

merits of these  issues, however, we  must first address  the

defendants' jurisdictional arguments.

          A.   Jurisdictional Issues                      A.   Jurisdictional Issues                                                

          As  a threshold  matter, defendants  argue that  we

need not  address  the merits  of plaintiffs'  claim that  an

NPDES permit  was required,  because the court  lacks subject

matter jurisdiction.  Defendants  argue that the NPDES permit

issue  is not  properly raised  because plaintiffs  failed to

provide  notice  of  their  intentions to  sue  Loon  Corp.25

Defendants contend that Section  505(b) of the CWA "prohibits

citizen  plaintiffs from  filing [suit  to enforce  the CWA's

NPDES  permit requirement] until at least  60 days after they

have provided notice of their intent  to sue" to EPA, to  the

State  in which the  alleged violation occurred,  and to "any

                                                    

24.  The  third major  aspect  of  the  CWA  is  the  use  of
industry-specific  effluent standards to  control the quality
of effluent  that can  be attained using  available pollution
control technology.  33 U.S.C.    1311, et seq.  This  aspect                                                           
of the CWA is not in issue in this litigation.

25.  The Forest Service also asserts  that no claim can stand
against it as a defendant  because EPA regulations place  the
responsibility   for  obtaining   an  NPDES  permit   on  the
"operator"  of  a covered  activity;  the  Forest Service  is
merely  the owner  of the  land on  which the  activity takes
place.  This argument is unavailing:  if an NPDES permit were
required,  as plaintiffs  contend,  then  the Forest  Service
should  not have granted a  special use permit  to Loon Corp.
until the NPDES permit had been obtained.

                             -56-

alleged  violator"  of the  standard,  limitation,  or order.

Forest  Service  Brief at  37; see  33  U.S.C.    1365 (b)(1)                                              

(1994).  It is undisputed, however, that Dubois, the original

plaintiff, did provide  notice to the  Forest Service of  his

intent to sue.   The  Forest Service was  the only  defendant

that he did sue; and he alleged only that the Forest Service,

not Loon Corp., had  violated federal statutes, including the

CWA, in approving Loon Corp.'s expansion plan.   The district

court therefore  had jurisdiction to hear  Dubois' claim that

the Forest Service had approved the  project illegally by not

ensuring that  an NPDES  permit was obtained.   His  properly

raised NEPA claim subsumed the CWA claim.26

          Thus,  even  if Loon  Corp.'s  lack  of notice  did

deprive us  of jurisdiction  to hear  Dubois' claim  that the

Forest  Service violated  the  CWA by  failing to  require an

NPDES permit  before approving  the special use  permit, this

                                                    

26.  Thereafter, Loon Corp. chose to intervene in the action
in order to protect its business interests.  When Loon Corp.
voluntarily intervened in an ongoing action, it "step[ped]
into the shoes" of the original defendants -- who were
properly before the court -- insofar as the 60-day notice is
concerned.  Kitlutsisti v. ARCO Alaska, Inc., 592 F. Supp.                                                        
832, 842 (D. Alaska 1984), vacated as moot, 782 F.2d 800 (9th                                                      
Cir. 1986); cf. E.H. Ashley &amp; Co. v. Wells Fargo Alarm                                                                  
Servs., 907 F.2d 1274, 1277 (1st Cir. 1990) (When insurer, as                  
subrogee, steps into shoes of insured, insurer "has no
greater rights against a third party" than the insured had;
insurer "was on constructive notice of the provisions of
[insured's] contract [with third party] because it occupies
the shoes of its insured.").

                             -57-

would  not  remove the  NPDES permit  issue from  the case.27

Regardless of whether any of the remedies provided in the CWA

would be available to Dubois in light of his asserted failure

to provide proper  notice of  his intent to  sue, this  court

would still have the authority  and the obligation to decide,

under NEPA, whether an NPDES permit is required in this case.

See  Keating v.  FERC, 927  F.2d 616,  624 (D.C.  Cir. 1991).                                 

This  is because, as  noted supra,  NEPA requires  the Forest                                             

Service to identify in  its EIS all federal permits  that the

                                                    

27.  Nor is RESTORE precluded from pursuing its claims on the
ground that it  did not  notify defendants of  its intent  to
bring suit.  RESTORE was an intervenor, merely joining a suit
that was already  in esse; it did not  bring a new suit.   As                                     
such,  RESTORE was not required  to notify Loon  Corp. of its
intent to  bring suit.    We need  look no  further than  the
statutory  language itself:    "No action  may be  commenced"                                                                        
without  the requisite notice.  33 U.S.C.   1365(b).  RESTORE
did not "commence" this action; it  intervened in an existing
action.   Moreover, the purpose of  the notice requirement --
to give  the parties  an opportunity to  resolve the  problem
administratively or  to settle  the matter without  resort to
the  courts,  before  the  parties  have assumed  adversarial
positions brought about by litigation -- no longer applied at
the  time RESTORE intervened in the ongoing suit.  Hence, the
purpose of  the notice  requirement would  not  be served  by
applying it to an intervenor like RESTORE.

            Nor  are  we faced  with  the  kind of  equitable
considerations  discussed in  Hallstrom v.  Tillamook County,                                                                        
493  U.S. 20,  29 (1989),  in holding  an  original plaintiff
strictly  to the  notice  requirement.   Unlike the  original
plaintiff, who has full  control over when to file  the suit,
an  intervenor like RESTORE has no control over the timing of
the initial  action.  Because  this action was  already being
litigated on  an expedited schedule, RESTORE  could well have
lost  the  opportunity to  protect  its interests  if  it had
served  a notice  of intent to  sue and  then waited  60 days
before intervening  in the  expedited case.   The balance  of
equities here favors permitting RESTORE to pursue its claims.

                             -58-

project  needed in  order to  comply with  applicable federal

law.   40 C.F.R.    1502.25(b).   There is  no question  that

plaintiffs  have properly  invoked  the jurisdiction  of this

court, pursuant to 28 U.S.C.   1331 (general federal question

jurisdiction), to  challenge  defendants' failure  to  comply

with  NEPA  in this  regard.   For  these reasons,  we reject

defendants' jurisdictional argument and turn to the merits.

          B.   NPDES Permit                      B.   NPDES Permit                                       

          Section 301(a) of the Clean Water Act prohibits the

"discharge of  any pollutant" into navigable  waters from any

"point  source" without an NPDES permit.  33 U.S.C.   1311(a)

(1994).   Plaintiffs argue  that the Forest  Service violated

Section 301(a) by  failing to obtain  an NPDES permit  before

approving Loon's plan  to remove water from  the East Branch,

use  it to pressurize and prevent  freezing in its snowmaking

equipment, and then  discharge the used water into Loon Pond.

Section 301(a)  prohibits the "discharge of  any pollutant by

any person"  except as authorized pursuant to a permit issued

under the  Act.   Id.; see  33 U.S.C.     1342, 1344  (1994);                                      

Commonwealth of P.R., 721  F.2d at 835.  The  term "discharge                                

of  a pollutant" is defined as "any addition of any pollutant

to  navigable waters  from any  point source."   33  U.S.C.  

1362(12)(A) (1994).  The definition of a "pollutant" includes

"dredged  spoil, solid  waste, . .  . sewage, garbage,  . . .

biological materials, .  . .  heat,  . .  . sand, .  . .  and

                             -59-

agricultural waste."  33 U.S.C.   1362(6) (1994).  "Navigable

waters" is  defined as "the waters of the United States."  33

U.S.C.    1362(7) (1994).   The district court  found and the

parties agree that Loon Pond is a water of the United States,

that  the  East Branch  water  discharged  from Loon  Corp.'s

snowmaking pipes  into Loon Pond  is a  pollutant within  the

meaning of the CWA,28 and that the pipe discharging the water

into Loon Pond  is a  point source.   The question, then,  is

whether  there is  an "addition"  of pollutants to  Loon Pond

when  water containing  pollutants  is discharged  from  Loon

Corp.'s snowmaking equipment into Loon Pond.

          The district  court answered  this question in  the

negative.   The court reasoned that the intake water from the

East Branch of the  Pemigewasset River and the water  in Loon

Pond are  all part of "a singular  entity, 'the waters of the                                                           

United States,'" and  therefore that "the bodies of water are

not  to   be  considered  individually   in  this   context."

Memorandum  and Order at 13.  Because it interpreted the East

Branch  and  Loon  Pond to  be  part  of  the same  "singular

entity,"  the court concluded that the transfer of water from

the  East  Branch into  Loon  Pond  would not  constitute  an

                                                    

28.  It  contains  at least  the  same  pollutants that  were
present  in the water from the East Branch before intake into
the pipes.

                             -60-

"addition" into the Pond, at least if the pipes  added no new

pollutants.29  Id.                              

          There is no basis  in law or fact for  the district

court's "singular  entity" theory.  The error  in the court's

reasoning  is highlighted by an  analogy the court  drew:  it

hypothesized a pond in  which "we place a  pipe . . .  and we

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

would  reasonably  contend that  internal  pumping  causes an

'addition' of  pollutants to  the pond.    Instead, we  would

consider  the pumping  to be  a redistribution  of pollutants

from one  part of the pond to  another."  Id. at  12.  Such a                                                         

situation is not at all analogous to the instant case.  There

is no barrier separating the water at the top of  a pond from

the  water  at  the  bottom  of  the  same  pond;  chemicals,

                                                    

29.  This premise is a disputed issue.  Plaintiffs argue that
allowing the water from  the East Branch to flow  through the
pipes before discharge into Loon Pond results in the addition
of not insignificant  amounts of oil and  grease.  Defendants
dispute this, which ordinarily would result in a reversal of
summary judgment on  this issue.  See Fed. R.  Civ. P. 56(c).                                                 
Defendants argue,  however, that  plaintiffs failed  to raise
this factual dispute before the  agency in timely fashion, so
it  is not preserved for our review.  Plaintiffs respond that
they  could  not  have  raised  this  dispute  prior  to  the
publication  of the FEIS  because the Forest  Service did not
even collect the  data regarding oil  and grease until  after
issuing its decision  (the ROD).   We need  not resolve  this
dispute;  we hold infra  that, even if  the pipes add  no new                                   
pollutants, the  transfer of  East Branch water  through Loon
Corp.'s  privately owned  pipes and  its discharge  into Loon
Pond constitutes  a point source  discharge of at  least some
pollutants into the Pond,  thereby requiring an NPDES permit.
Upon remand,  the parties are not  foreclosed from presenting
their factual disputes to  the EPA if they decide  to contest
the issuance of that permit.

                             -61-

organisms, and even heat are able to pass from the top to the

bottom or vice versa, at rates determined only by the laws of                                

science.  

          In contrast, the transfer  of water or its contents

from  the East Branch to Loon Pond would not occur naturally.

This is more analogous to the example the district court gave

from the opposite end of the spectrum:  where water is  added

"from an external source"  to the pond and an NPDES permit is

required.  Id.  As in this converse  example, the East Branch                          

and Loon Pond are not the same body of water; the East Branch

is indeed  a source  "external" to  Loon Pond.   We  can take

judicial notice that the Pemigewasset River was for years one

of the most  polluted rivers in  New England, the  repository

for  raw  sewage from  factories and  towns.   It  emitted an

overwhelming  odor  and  was  known  to  peel  the paint  off

buildings  located on  its banks.   Yet,  under  the district

court's theory,  even if  such conditions still  prevailed, a

proposal to withdraw water from the Pemigewasset to discharge

it into Loon Pond would be analogous to moving water from the

top to the bottom of  a single pond; it would not  constitute

an "addition" of pollutants "from an external source" because

both the East Branch and Loon Pond are part of the "singular"

waters of the United States.30  The district court apparently

                                                    

30.  Again,  we  leave  to  one  side  the  possibility  that
additional pollutants, such as oil and grease, would be added
when the water flowed through the  system of pipes.  If  that

                             -62-

would reach  the same  conclusion regardless of  how polluted

the Pemigewasset  was or how pristine  Loon Pond was.   We do

not believe Congress intended such an irrational result.

          The district court's analysis also ignores the fact

that water  would pass  through Loon Corp.'s  privately owned

pipes on  its way from the  East Branch to Loon  Pond.  Thus,

nature  would not regulate --  and neither the Forest Service

nor the court could know in advance -- whether any pollutants

would be added to the  water as it passes through the  pipes.

The district court concluded that the  East Branch water does

not "lose[] its  status as  navigable waters" even  if it  is

"commercially exploited," Memorandum and Order at 18, as long

as  Loon  Corp.  does  not  "plan[]  to  add  any  additional

pollutants  to  the East  Branch  water  that it  intends  to

discharge into  Loon Pond."  Id.  at 10.  The  court does not                                            

indicate  whether anyone assures  compliance with  the "plan"

that   no  pollutants   be   added  during   the   commercial

exploitation, or if so  who makes that determination and  how

it is  made, at  a  time when  the project  is  still just  a

proposal and not yet  a fait accompli.  Cf.  Massachusetts v.                                                                         

Watt, 716 F.2d at  952.  The district court's  analysis would                

apply equally if the water passed through a paper mill on its

way to Loon Pond,  instead of through snowmaking pipes.   And

the analysis is equally unpersuasive in either  circumstance.

                                                    

were true, that alone would require an NPDES permit.

                             -63-

Either  way, the  water leaves  the domain  of nature  and is

subject  to  private  control  rather  than   purely  natural

processes.  As such, it has  lost its status as waters of the

United States.  

          Other  courts have  held  that an  NPDES permit  is

required  before pollutants  may  be moved  from one  body of

water of the United States to another.  See Dague  v. City of                                                                         

Burlington, 935 F.2d 1343, 1354-55  (2d Cir. 1991), rev'd  in                                                                         

part on other grounds, 505 U.S. 557 (1992); Committee to Save                                                                         

Mokelumne  River v. East Bay  Mun. Util. Dist.,  13 F.3d 305,                                                          

308-09  (9th Cir. 1993), cert. denied, 115 S. Ct. 198 (1994).                                                 

The  Eleventh Circuit has held that such a permit is required

in  order to move dredge  materials by a  point source within                                                                         

the same water  body.   United States v.  M.C.C. of  Florida,                                                                         

Inc., 772 F.2d 1501, 1506 (11th Cir. 1985).                

          Even  the  Forest  Service  does  not  support  the

district court's conclusion that mere transfers of water from

one water body to  another, without more, never result  in an

addition of pollutants to  waters of the United States.   The

Forest Service  recognizes that "[i]t is  possible that water

transferred between unrelated water bodies of different water

quality would properly  be regarded as  losing its status  as

'water [sic] of the United  States,'" requiring a Section 402

permit.  Forest  Service Brief at 47.  We  agree.  The Forest

Service qualifies this insight, however.  It argues that Loon

                             -64-

Corp.  "moves  water between  hydrologically  connected water

bodies  containing water of  like quality"  which, therefore,

does not "introduce pollutants  'from the outside world' into

the receiving waters."  Id.  Accordingly, the Forest  Service                                       

argues  no permit is required.   We disagree  with the Forest

Service's qualification.

          First, there  is nothing in the  statute evincing a

Congressional intent to distinguish between "unrelated" water

bodies  and  related   or  "hydrologically  connected"  water

bodies.    The  CWA simply  addresses  "any  addition of  any

pollutant to  navigable waters  from any point  source."   33

U.S.C.   1362(12)(A).  Nor  is the purpose of the  CWA served

by means of  such a  distinction.  If  anything, the  purpose

would be  better served by  a distinction between  de minimis                                                                         

transfers  of   water  and  transfers  which   add  some  not

insignificant  amount of pollutants  to the  transferee water

body.  But no such distinction appears in the statute, and to

imply  one would  thrust some  agencies with no  expertise on

environmental issues  into the  role of deciding  whether the

CWA's environmental protections should even be considered.31

                                                    

31.  As discussed in Part  VII(C), infra, in another context,                                                    
the Forest Service argues that it is the EPA, not the  Forest
Service, that has the expertise and the congressional mandate
to  determine whether  a proposed  project meets  state water
quality standards.   We agree.   The availability  of EPA  to
perform  this  task is  another  reason why  an  NPDES permit
should  be obtained  before the  Forest Service  approves the
Loon  Corp. expansion  plan.   See  note 32  and accompanying                                              
text, infra.                       

                             -65-

          More    compellingly,    the    Forest    Service's

"hydrological connectedness" proposal  ignores a  fundamental

fact about  water:  the direction  of flow.  It  is true that

Loon Pond and the  East Branch of the Pemigewasset  River are

"hydrologically connected"  in the sense that  water from the

Pond flows down and  eventually empties into the River.   But                           

water from  the East  Branch certainly  does not flow  uphill                                                                         

into  Loon Pond, carrying  with it  the pollutants  that have

undisputedly accumulated  in the East Branch  water from some

of the other sources  of water entering the East  Branch from

upstream.    Under  such  circumstances,   defendants  cannot

credibly argue  that these water  bodies are so  related that

the transfer  of water from the  East Branch to  Loon Pond is                                                           

not an  "addition" of water  from one  of the "waters  of the

United States"  to another.   We therefore reject  the Forest

Service's "hydrological connectedness" proposal.

          Likewise,  we reject its  assertion, unsupported by

the  record, that  in some  general sense  the two  bodies of

water are  "of like  quality."   First, this  is the kind  of

substantive  question  to  which  the  EPA  would  apply  its

technical  expertise in  deciding whether  to issue  an NPDES

permit  and what  conditions to  attach to  such a  permit in

order  to protect  water  quality.   It  is not  the kind  of

threshold  question that  the  Forest Service  or this  court

                             -66-

should address in deciding whether to  subject the Loon Corp.

expansion proposal to the NPDES permitting process.  

          Second,  the   Forest  Service  does   not  contest

plaintiffs' assertion that there are at least some pollutants

in the East  Branch that do not exist naturally in Loon Pond.

The  Final EIS  itself noted  that the  East Branch  has been

designated  by the  New Hampshire  legislature as  a  Class B

Waterway,  a  lower  quality  designation than  the  Class  A

quality rating  of Loon Pond.  JA, vol. II,  FEIS at 91.  The

difference in classifications -- the East Branch as a Class B

waterway,  Loon Pond as Class  A -- evinces  a higher quality

level for the Pond than for the River, and  belies the Forest

Service's assertion that the two bodies of water are "of like

quality."

          Even  if the  East  Branch were  rated in  the same

general class as Loon Pond (Class A), that would not mean the

two bodies of water  were identical in quality, such  that an

NPDES permit  would be unnecessary.  The East Branch contains

different  organisms than  Loon  Pond,  inter  alia,  Giardia                                                               

lambia.    Loon Pond  is also  colder  overall than  the East

Branch, and its  lower depths are significantly  colder.  The

two  bodies  of   water  also  have  different   chemistries,

especially the  low level of  phosphorus in Loon  Pond, which

affects  its  biological composition.    Nor  has the  Forest

Service argued  that all such pollutants  would be eliminated                                    

                             -67-

before any East  Branch water  would be pumped  up to  refill

Loon  Pond after depletion  by Loon Corp.'s  snowmaking.  The

Service  cannot say,  therefore, that  the discharge  of East

Branch  water  into  Loon  Pond  would  not  result  in  "any

pollutants"  being   added  to  the   Pond.    33   U.S.C.   

1362(12)(A).

          Aside  from the  difficulty of  defining a  general

concept  such  as  "of  like quality,"  it  would  defeat the

purpose  of  the  CWA's   permit  process  to  interpret  the

statutory language "discharge of  any pollutant," 33 U.S.C.                                                   

1311(a),  to be  implicitly qualified  by the  phrase "except

when  the transferee body of water  is of like quality."  The

Forest  Service  is simply  wrong  to  analogize the  present

situation to  a dam that  merely accumulates the  same water,                                                                  

see National  Wildlife Fed'n v.  Gorsuch, 693  F.2d 156,  175                                                    

(D.C.  Cir. 1982),  or a  pump storage  facility  that stores

water from  one  source in  a different  place, see  National                                                                         

Wildlife Fed'n v. Consumers  Power Co., 862 F.2d 580,  589-90                                                  

(6th Cir. 1988), as distinguished from moving different water

from one  flowing water body into  another stationary, colder

body.   We  cannot allow  such a  watering down  of Congress'

clear statutory protections.

          We hold  that the Pemigewasset River  and Loon Pond

are  two distinct "waters of the United States," and that the

proposed transfer of  water from one to the other constitutes

                             -68-

an "addition."  Where,  as is undisputed here,  the discharge

is through  a  point source  and  the intake  water  contains

pollutants,  an  NPDES  permit   is  required.    The  Forest

Service's determination  to the  contrary  was arbitrary  and

capricious and not  in accordance with law.   See 5  U.S.C.                                                               

706(2)(A).

          C.   Violation of State Water Quality Standards                      C.   Violation of State Water Quality Standards                                                                     

          Plaintiff  Dubois claims  that state  water quality

standards are violated because  of the quality of water  that

would enter Loon Pond.  This water would come from one of two

sources:  some of  it would come from snowmelt  that replaces

the water that Loon Corp. has pumped out of Loon Pond to make

snow; and  some would be water that Loon Corp. has taken from

the East Branch for snowmaking  and then discharged into Loon

Pond.    Dubois   contends  that   Loon  Corp.'s   snowmaking

operations pose an impermissible  threat to Loon Pond because

influxes  of  East  Branch  water  and  snowmelt --  the  two

principal  sources of water to refill the Pond -- could alter

the Pond's naturally occurring  pH, bacteria, oil and grease,

and turbidity levels.

          On the merits of the water quality standards issue,

Dubois  argues that  the CWA requires  states to  adopt water

quality  standards which protect  against degradation  of the

physical, chemical,  or biological attributes  of the state's

waters.   33 U.S.C.     1251(a),  1313(d)(4)(B); 40 C.F.R.   

                             -69-

131.12.   The greatest protection is  afforded to Outstanding

Resource  Waters,  including  Loon   Pond,  as  to  which  no

degradation  is permitted.   40  C.F.R.    131.12(a)(3); N.H.

Code Admin. R. Env-Ws  437.06.  Dubois contends that  the ski

resort's proposal to draw down  a significant amount of water

changes the  physical structure of Loon  Pond; that refilling

it with East Branch  water containing phosphorus (and through

pipes that  might  contain oil  and  grease) or  with  acidic

runoff would change the Pond's chemical composition; and that

the  transfer  of  organisms   such  as  Giardia  lambia  and

chemicals  such as phosphorus  into the Pond  would alter its

biological  attributes.   Because we  hold infra  that Dubois                                                            

cannot,  in  a  challenge   to  the  Forest  Service's  FEIS,

collaterally  attack the state's  certification of compliance

with state  water quality standards,  we need  not reach  the

merits of the state water quality standards issue.

          Defendants  argued  in  the  district   court  that

Dubois'  CWA claim  was not  properly presented,  that Dubois

should  have raised  his  objections  by  exhausting  various

administrative remedies and filing a timely appeal in the New

Hampshire Supreme Court.  They argued that the federal agency

(Forest Service) and the federal court lack the authority  to

review   independently   and   determine   the   validity  of

requirements  imposed under state law  or in a  state's   401

certification, see 33 U.S.C.   1371(c)(2)(A) (1994), and that                              

                             -70-

such  authority  is expressly  delegated  to  the states,  33

U.S.C.   1341(a) (1994).  

          The district court agreed.  It held that, "[i]f the

plaintiffs in this case were dissatisfied with the state's   

1341   certification,   they   could   have   challenged  the

certification by exhausting state administrative remedies and

filing  a  timely  challenge  in the  New  Hampshire  Supreme

Court."  Memorandum and Order at 21-23.  That is true insofar

as it goes.  The question, however, is  whether a state court

action is the plaintiffs'  only recourse, or whether,  in the                                           

alternative, they had  a right to challenge in  federal court

the federal agency's issuance of a federal permit in reliance

on  the  state  certification,  where  the  basis  for  their

challenge  is that  the  project fails  to  meet the  minimum

standards of the federal Clean Water Act.

          Defendants may be correct  that the cases they rely

upon hold that the state courts are the only fora in which to

challenge  whatever requirements  the state adds,  beyond the                                                                     

minimum  required by the CWA.   Those cases  do not, however,

deprive  the federal courts  of jurisdiction to  hear a claim

that defendants have violated the  floor level of clean water                                                    

requirements imposed by the CWA, i.e., the requirements which                                                 

the state regulations share with the federal CWA.                                       

                             -71-

          The cases relied upon by the  defendants and by the

district  court32  dealt  with  challenges  to   the  state's

imposition of  more stringent  controls on a  project's water                                         

pollution effluent.  Such cases relied on the language of the

CWA itself,  as well  as basic  principles of  federalism, to

support their  holdings that the CWA  "empower[s]" the states

"to set more stringent water quality standards than those set

by the Act and its  attendant requirements" to prevent  water

pollution.    Marathon  Dev.  Corp.,  867  F.2d  at  99;  see                                                                         

Commonwealth  of  P.R.,  721   F.2d  at  834  n.3;  Roosevelt                                                                         

Campobello,  684 F.2d at 1056.   However, the  states may not                      

set  standards that are less  stringent than the  CWA's.  See                                                                         

Marathon  Dev. Corp.,  867 F.2d at  99.  Simply  put, the CWA                                

provides  a federal  floor, not  a ceiling,  on environmental

protection.   If a state seeks to  approve a standard that is

less  stringent than  the federal  CWA's floor,  or  seeks to

apply a standard  in a  way that is  otherwise invalid  under

federal  law, then  federal agencies  and federal  courts are                   

obligated to resolve  the application of  the federal CWA  in

                                                    

32.  They  rely  particularly  on  our  Roosevelt  Campobello                                                                         
decision, 684 F.2d at 1056, but also on Puerto Rico Sun  Oil,                                                                        
8 F.3d  at 81; United States v. Marathon Dev. Corp., 867 F.2d                                                               
96, 102 (1st Cir. 1989); Lake Erie Alliance for Protection of                                                                         
Coastal Corridor v. U.S.  Army Corps of Eng'rs, 526  F. Supp.                                                          
1063,  1074  (W.D.Pa. 1981),  aff'd mem.,  707 F.2d  1392 (3d                                                    
Cir.), cert. denied, 464 U.S. 915 (1983).  All of these cases                               
involved  states imposing  more  stringent controls  on water
pollution than required by federal law.

                             -72-

any case that  properly comes  before them.   See Keating  v.                                                                         

FERC, 927 F.2d at 624.                

          The  Forest Service  asserts another  defense, also

relied on by  the district court,  which carries more  force.

Section 511(c)(2)(A)  of the  CWA precludes federal  agencies

from invoking NEPA to authorize their review of "the adequacy

of  any  certification under  section  [401]."   33  U.S.C.  

1371(c)(2)(A).  Dubois points  out that, in the circumstances

of this  case, Section 511(c)(2)(A)  does not apply  when the

discharge  of  pollutants in  question  is  not regulated  by

effluent  limitations established  under CWA  Sections 301(b)

and 302,  33 U.S.C.     1311(b) &amp; 1312,  or by  an applicable

standard of performance  under CWA Sections  306 and 307,  33

U.S.C.    1316 &amp; 1317.  Dubois  Brief at 27; see 33 U.S.C.                                                               

1341(a).    Such  effluent  limitations   and  standards  are

established  in NPDES permits  for point  source dischargers.

33  U.S.C.    1311(b),  1312, 1316,  1317, 1362(11).   Dubois

then tries  to bootstrap  the fact  that  the Forest  Service

failed  to apply for an NPDES permit into a circumstance that

renders Section  511(c)(2)(A) inapplicable.  Dubois  Brief at

27-28.  His argument is without merit.  

          It is true that the Forest Service was obligated to

obtain an NPDES permit before permitting Loon Corp. to expand

its  ski resort.    See Part  VII(B),  supra.   However,  the                                                        

violation of  that statutory  obligation is a  separate issue

                             -73-

from the state water  quality standards issue.   For purposes

of the  latter, the  fact  is that  there  do not  exist  any

effluent limitations under CWA Sections 301(b) or 302 nor any

standards of  performance under CWA Sections 306  or 307 that

apply to  the discharge of  East Branch water  and pollutants

into Loon Pond.  Therefore, whether or not the Forest Service

actually   obtained  the   required  NPDES   permit,  Section

511(c)(2)(A) applies, and  Dubois' challenge to the  adequacy

of the state's Section  401 certification may not proceed  in

this court.  

          As the federal defendants argued in their brief and

as we held in Roosevelt Campobello, 684 F.2d at 1056, Dubois'                                              

challenge  must be  addressed as  part of  EPA's "independent

obligation to ensure that EPA-issued NPDES permits meet state

water quality standards."  Forest Service Brief at 29; see 33                                                                      

U.S.C.     1311(b)(1)(C)  (1994).33   If,  upon  remand,  EPA

determines  that a  permit  is appropriate,  with or  without

                                                    

33.  The availability of  EPA to perform this task is another
reason supporting our holding in  Part VII(B), supra, that an                                                                
NPDES permit is required.   See supra  note 30.  The  federal                                                 
CWA  requires that  any state  certification ensure  that the
minimal  federal  standards  have   been  adhered  to.    The
government  is correct  that  the  Forest  Service  possesses
neither  the  congressional  mandate  nor  the  expertise  to
second-guess  state water  quality certifications.   But  EPA
does; and the CWA envisions that EPA make those assurances in
the context of deciding whether to issue an NPDES permit.

                             -74-

conditions or limitations,34 and if  plaintiffs disagree with

EPA's  decision, then they may challenge such decision in any

manner that is  available to them at the time.   But EPA, not

the  Forest  Service,  is   the  proper  entity  to  evaluate

compliance with state water quality standards.

                          CONCLUSION                                      CONCLUSION                                                

          We affirm the district  court's denial of defendant

Loon's  motion  to dismiss  plaintiff  Dubois'  complaint for

failure to  meet his burden  of establishing his  standing to

sue.

          We  reverse the  district court's grant  of summary

judgment  in favor  of  defendants and  reverse the  district

court's denial  of summary  judgment in favor  of plaintiffs,

with 

                                                    

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

                             -75-

respect to 

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

alternatives, 

          (2) the supplemental EIS issue, and 

          (3) the NPDES permit issue. 

          We  affirm the  district court's  grant of  summary

judgment  in  favor of  defendants  and  affirm the  district

court's  denial of  summary  judgment in  favor of  plaintiff

Dubois, with respect to the alleged violations of 

          (1) Executive Order 11,990, and 

          (2) state water quality standards under the CWA.

          Affirmed in part; reversed in part; remanded; costs                      Affirmed in part; reversed in part; remanded; costs                                                                         

on appeal awarded to plaintiffs.            on appeal awarded to plaintiffs.                                           

                             -76-
