
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                              __________________________        Nos.  96-1015              96-1068                   ROLAND C. DUBOIS and RESTORE:  THE NORTH WOODS,                               Plaintiffs, Appellants,                                          v.                  DEPARTMENT OF AGRICULTURE, UNITED STATES, ET AL.,                      and LOON MOUNTAIN RECREATION CORPORATION,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET             The opinion of this Court is amended as follows:             Cover sheet:  Replace case number "96-1086" with "96-1068".                            United States Court Of Appeals                            United States Court Of Appeals                                For the First Circuit                                For the First Circuit                                ______________________        Nos.  96-1015              96-1068                   ROLAND C. DUBOIS and RESTORE:  THE NORTH WOODS,                               Plaintiffs, Appellants,                                          v.                   UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,                      and LOON MOUNTAIN RECREATION CORPORATION,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                                 ____________________            Roland C. Dubois pro se.                             ___ __            Cindy Ellen Hill for appellant RESTORE:  The North Woods.            ________________            Jeffrey  P. Kehne, Attorney, with whom Lois J. Schiffer, Assistant            _________________                      ________________        Attorney General, Sylvia Quast, John A. Bryson, Attorneys, Environment                          ____________  ______________        & Natural Resources Division, U.S. Department of Justice,  Washington,        DC,  Paul  M.  Gagnon,  United  States  Attorney,  T.  David  Plourde,             ________________                              __________________        Assistant United States  Attorney, Concord, NH, Wendy  M. John, Stuart                                                        ______________  ______        L.  Shelton,  Office  of  the  General  Counsel,  U.S.  Department  of        ___________        Agriculture,  Washington, DC,  and Leslie M.  Auriemmo, Office  of the                                           ___________________        General Counsel,  U.S. Department of Agriculture,  Milwaukee, WI, were        on  brief  for  appellees  U.S.  Department  of  Agriculture;   Daniel        Glickman, Secretary, U.S. Department of Agriculture; Jack Ward Thomas,        Chief, U.S. Forest Service; Robert Jacobs, Regional Forester,  Eastern        Region, U.S. Forest Service; Donna Hepp, Forest Supervisor, White         Mountain National Forest.            James  L. Kruse with  whom Gallagher,  Callahan &  Gartrell, P.A.,            _______________            ______________________________________        were on brief for appellee Loon Mountain Recreation Corporation.                                 ____________________                                  December 19, 1996                                 ____________________                                        - 3 -                      BOWNES,  Senior  Circuit  Judge.    The  defendant-                      BOWNES,  Senior  Circuit  Judge.                               ______________________            intervenor  Loon  Mountain   Recreation  Corporation   ("Loon            Corp.") operates a ski resort  in the White Mountain National            Forest in Lincoln,  New Hampshire.   In order  to expand  its            skiing facilities, Loon Corp. sought and received a permit to            do  so from  the  United States  Forest Service.1   Appellant            Roland Dubois sued the  Forest Service alleging violations of            the National  Environmental Policy Act ("NEPA"),  42 U.S.C.              4321, et seq., the Clean Water Act ("CWA"), 33 U.S.C.   1251,                  _______            et seq., the Administrative Procedure Act, 5 U.S.C.   501, et            _______                                                    __            seq. ("APA"), and Executive Order 11,990, 42 Fed. Reg. 26,961            ____            (1977),  reprinted as  amended in  42 U.S.C.A.    4321  (West                     ________________________            1994).    Appellant  RESTORE:  The  North  Woods  ("RESTORE")            intervened  as a  plaintiff claiming  violations of  the same            statutes, and appellee Loon  Corp. intervened as a defendant.            Dubois and RESTORE (collectively referred to as "plaintiffs")            and  the  Forest  Service  filed  cross-motions  for  summary            judgment, and  Loon moved  to dismiss.    The district  court            granted the Forest Service's  motion for summary judgment and            denied  the other  motions.   We affirm  in part,  reverse in            part, and remand.                                            ____________________            1.  The  Forest Service, its  parent organization, the United            States Department  of Agriculture,  and their agents  will be            collectively referred  to as "the  Forest Service" throughout            this opinion.                                         -4-                              I.   STATEMENT OF THE CASE                              I.   STATEMENT OF THE CASE                                   _____________________                      A. Facts                      A. Facts                         _____                      The White  Mountain National Forest  ("WMNF") is  a            public resource  managed by the United  States Forest Service            for  a wide  range  of competing  public  uses and  purposes,            including "outdoor recreation, range,  timber, watershed, . .            .  wildlife and fish purposes,"  16 U.S.C.    528 (1994), and            skiing,  16 U.S.C.   497(b) (1994).  Pursuant to the National            Forest Management Act of 1976, the Forest Service makes long-            term  plans to  coordinate  these competing  uses, 16  U.S.C.              1604(e)(1)   (1994),  and  issues   "special  use"  permits            authorizing private recreational  services on national forest            land, 36  C.F.R.    251.50-.65 (1995).   The Forest Service's            exercise of  its permitting authority is  legally constrained            by environmental  considerations emanating, inter  alia, from                                                        ___________            NEPA, the CWA, and Executive Order 11,990.                      Loon Pond is located in the WMNF at an elevation of            2,400 feet.  It has a  surface area of 19 acres, with shallow            areas around the perimeter  and a central bowl 65  feet deep.            It is unusual for  its relatively pristine nature.   There is            virtually no human activity within  the land it drains except            skiing  at the privately owned  Loon Mountain Ski  Area.  New            Hampshire  Department  of  Environmental  Services  ("NHDES")            regulations  classify  Loon  Pond  as a  Class  A  waterbody,            protected  by  demanding  water  quality  standards  under  a                                         -5-            variety of criteria, see  N.H. Code Admin. R.  Env-Ws 432.03,                                 ___            and  as  an  Outstanding  Resource  Water ("ORW"),  protected            against any  measurable long-term degradation  by the State's            anti-degradation   rules,  see   id.  437.06;  40   C.F.R.                                          ___   ___            131.12(a)(3) (1995).   It ranks in the  upper 95th percentile            of all lakes and ponds in northern New England for low levels            of  phosphorus, which  results  in limited  plant growth  and            therefore  high  water clarity  and  higher  total biological            production.  The pond supports a rich variety  of life in its            ecosystem.    Loon Pond  also constitutes  a major  source of            drinking water for the  town of Lincoln 1,600 feet  below it.            A dam  across the outlet  of the Pond  regulates the  flow of            water from the Pond to Lincoln's municipal reservoir.                      Loon Corp., defendant-intervenor  herein, owns  the            Loon Mountain  Ski Area, which  has operated since  the 1960s            not far from  Loon Pond.  Prior  to the permit  revision that            gave rise to this  litigation, Loon Corp. held a  special use            permit  to operate on  785 acres of  WMNF land.   That permit            allowed Loon Corp. to  draw water ("drawdown") for snowmaking            from Loon  Pond,  as well  as  from the  East Branch  of  the            Pemigewasset  River ("East  Branch")  and  from nearby  Boyle            Brook.  In order to use water from Loon Pond, Loon Corp. also            needed authorization from  the Town of Lincoln  and the State            of  New  Hampshire.    Beginning  in  1974,  Loon  Corp.  was            authorized to pump snowmaking water from Loon Pond down to 18                                         -6-            inches below full level.2  A 1988 amendment to this agreement            permitted drawdown below the  18-inch level on a case-by-case            basis.   Combined uses by  Lincoln and Loon  Corp. during the            period governed by these agreements typically caused four- to            six-foot fluctuations in the level of Loon Pond.                      In  addition to being used as a source of water for            snowmaking, Loon Pond has been the repository for disposal of            water  after it  is  pumped through  the snowmaking  system.3            This includes water that  originally came from Loon Pond,  as            well  as water that originated in the East Branch or in Boyle            Brook.   Approximately 250,000  gallons of East  Branch water            have  been  transferred into  Loon  Pond  each year  in  this            manner.    Obviously  the  water discharged  into  Loon  Pond            contains at  least the same  pollutants that were  present in            the  intake water.    Evidence in  the record  indicates that            intake water  taken from  the East Branch  contains bacteria,            other aquatic  organisms such as  Giardia lambia, phosphorus,            turbidity and heat.   Evidence was also introduced in  court,            but not available prior to the  issuance of the Environmental                                            ____________________            2.  The level of Loon Pond drops when Pond water  is used for            snowmaking, because  the Pond  does not receive  much natural            water through precipitation during the winter.            3.  In  order for  Loon  Corp. to  make  snow, it  must  pump            significantly more water through  the system than is actually            made into snow.   Passing this extra water through  the pipes            keeps them from freezing.  It also provides the pressure that            forces the artificial snow out through snowmaking jets.                                         -7-            Impact Statement ("EIS"), that oil and grease were present in            the discharge water, although their source was disputed.                        In 1986,  Loon Corp. applied to  the Forest Service            for an amendment to its special use permit to allow expansion            of  its facilities  within the  WMNF.   Pursuant to  NEPA, 42            U.S.C.     4332, the  Service developed  a  draft EIS,  and a            supplement  to the  draft.   Responding to  criticism  of the            adequacy  of those  documents,  the Forest  Service issued  a            revised draft  EIS ("RDEIS"), which was  published for public            comment.  The RDEIS  set forth five alternatives to  meet the            perceived demand for additional alpine skiing.  All five were            located at the Loon Mountain site.4                        Many   individuals   and  groups,   including  both            plaintiffs, filed comments pointing out various environmental            problems with each  alternative that  involved expanding  the            ski area.   One lengthy comment  from the U.S.  Environmental            Protection Agency ("EPA") expressed  its concern that the use            of  Loon Pond  for snowmaking  purposes would "use  Loon Pond            like a cistern" instead of treating it "with care" because it            is "acknowledged to be one of the rare high altitude ponds of            its size  in the  White Mountains."   Joint  Appendix ("JA"),                                            ____________________            4.  The Forest  Service's ten-year plan for  the WMNF, issued            in 1986, included  plans for  accommodating increased  demand            for downhill skiing.   It determined that it would  meet this            demand through  expansion of  existing ski areas  rather than            through the creation  of new ones.   It did  not discuss  the            possibility of  meeting the demand  through alternative sites            outside the national forest.                                         -8-            vol. II, Response to Public Comment on RDEIS at  A-78.  Other            commenters  suggested that  Loon Corp.  be required  to build            artificial  water storage  ponds, in  order to  eliminate the            problem  of depleting  Loon Pond  when withdrawing  water for            snowmaking as  well as  the problem  of adding  pollutants to            Loon Pond when discharging water into the Pond after use.                      During the EIS process, Ron Buso, a hydrologist for            the  WMNF,  expressed  concern  to   another  Forest  Service            hydrologist that the proposed drawdown of Loon Pond by twenty            feet  was likely  to have a  severe impact  on the  Pond.  He            explained that natural snowmelt in New Hampshire is extremely            acidic  and  that, as  a result  of  the planned  drawdown, a            substantial amount  of acidic  snowmelt would remain  in Loon            Pond, increasing the  Pond's acidity  by a factor  of two  to            three times  what it would  be without the  planned drawdown.            Without  the drawdown, Loon Pond  would be relatively full in            the spring, and much of the snowmelt  from surrounding higher            elevations  would glide over the surface of the Pond and down            the  mountain without  significantly mixing  with  other Loon            Pond water.   According to  Buso and a  number of  scientists            whose affidavits  were submitted  to the district  court, the            increase in the  Pond's acidity due  to the planned  drawdown            would change the chemistry of the Pond, cause toxic metals to                                         -9-            be released  from the sediment, and  kill naturally occurring            organisms.                      Without addressing  the issues raised  in the  Buso            memorandum or in  the comments suggesting  artificial storage            ponds, the Forest Service prepared a Final EIS ("FEIS").  The            FEIS added  a sixth alternative,  also on  the Loon  Mountain            site.   The new  alternative provided  for expansion of  Loon            Corp.'s  permit area by 581 acres and for the construction of            one  new lift and approximately  70 acres of  new ski trails,            changes designed  to accommodate 3,200  additional skiers per            day (from  the current 5,800 per  day).   The  Forest Service            deemed Alternative 6 as the preferred alternative.  Under it,            Loon  Corp. would more than  double the amount  of water used            for  snowmaking, from  67  million gallons  per  year to  138            million gallons.   Seventeen million gallons  of the increase            would be drawn from  the East Branch, and 54  million gallons            from  Loon Pond.  In  addition, Loon Corp.  was authorized to            draw the Pond down  for snowmaking by fifteen feet,  compared            to the current eighteen  inches.  The Forest  Service assumed            that the Town of Lincoln would need up  to an additional five            feet  of Pond water, making  a total of  twenty feet that the            Pond was  expected to be  drawn down  each year.   This would            constitute approximately 63%  of the Pond's water.   In March            1993, the Forest Service published a Record of Decision (ROD)            adopting Alternative 6.                                         -10-                      As  a  mitigation  measure  to  blunt  the  adverse            environmental  impact  on  Loon  Pond,  the   Forest  Service            required Loon Corp.  to pump  water from the  East Branch  to            Loon Pond  in December and May  of each year if  the Pond was            not otherwise full at those times.   In its FEIS, the  Forest            Service  recognized  that the  East  Branch  is a  relatively            unprotected  Class B  waterway under  New Hampshire  law, and            that  transfer of East Branch water to Loon Pond, a protected            Class A waterbody and  Outstanding Resource Water under state            and federal  law, would  introduce pollutants into  the Pond.            Accordingly, it  specified that this transfer  of East Branch            water  could  not occur  if  it  exceeded certain  levels  of            turbidity, bacteria, or oil and grease.  Neither the FEIS nor            the  ROD  set  any limits,  however,  on  the  level of  non-            bacterial organisms  such as Giardia lambia  or on pollutants            such as  phosphorus that  may be  present in the  transferred            water.  Nor  did the  FEIS indicate an  alternative means  of            refilling Loon Pond -- with clean water -- if conditions were            such  that the transfer of East Branch water would exceed the            specified  levels.5   It did,  however,  provide a  series of            restrictions and monitoring requirements for water levels and                                            ____________________            5.  As noted  supra, absent  some other method  of refilling,                          _____            the Pond would be refilled by the melting of acidic snow.                                         -11-            water  quality,  including daily  testing of  the transferred            water for turbidity, bacteria, and oil and grease.6                      Dubois and RESTORE appealed the ROD to the Regional            Forester and, thereafter, to the Chief of the Forest Service.            These appeals were  denied.   On March 16,  1994, the  Forest            Service  issued   a  special   use  permit  to   Loon  Corp.,            implementing the decision described in the ROD.                      B. Proceedings Below                      B. Proceedings Below                         _________________                      Plaintiff  Dubois filed a  complaint in  the United            States  District   Court  for  the   District  of  Columbia,7            challenging   the  Forest  Service's  approval  of  the  Loon            Mountain  expansion  project.    He  made  three  arguments.8            First, he argued that the Forest Service actions violated the            CWA  because they  would lead  to violations  of state  water            quality  standards which,  he  asserted, have  the effect  of            federal law because  they were approved  by the federal  EPA.            Second, he argued that the Forest Service  violated both NEPA                                            ____________________            6.  In  response  to  an  earlier  draft  EIS,  the  EPA  had            expressed the  following concern:    "While monitoring  plans            have  merit, they should not be considered a substitute for a            thorough evaluation  of a  project and its  potential impacts            prior  to action  approval."   JA, vol.  I, at  97; see  also                                                                _________            Massachusetts  v. Watt, 716 F.2d  946, 951-52 (1st Cir. 1983)            ______________________            (NEPA "requires  an EIS according  to its terms,"  before the            agency becomes "committed to  [a] previously chosen course of            action").            7.  The  case  was later  transferred  to  the United  States            District Court for the District of New Hampshire.            8.  Plaintiffs  made  other  arguments  below,  but  have not            pursued them on appeal.                                         -12-            and   Executive   Order  11,990   by   failing   to  consider            alternatives to the use  of Loon Pond and failing  to develop            adequate mitigation  measures.   Finally, he argued  that the            Forest Service violated the CWA, 33 U.S.C.   1311, by failing            to obtain a National  Pollutant Discharge Elimination  System            ("NPDES")  permit  before  approving Loon  Corp.'s  expansion            plans, which  entailed removing  water from the  East Branch,            using it to pressurize and prevent freezing in its snowmaking            equipment,  and then  discharging  the used  water into  Loon            Pond.  According to  Dubois, an NPDES permit was  required in            order  for Loon Corp. to discharge pollutants into Loon Pond,            including   the  discharge   from  Loon   Corp.'s  snowmaking            equipment.     Plaintiff RESTORE,  a membership organization,            intervened on behalf of its members to challenge the project.            RESTORE first  reiterated Dubois' claim that  an NPDES permit            was  required.  In addition,  RESTORE claimed that the Forest            Service violated  NEPA by  failing to prepare  a Supplemental            EIS  after  it  developed  Alternative  6  as  the  preferred            alternative.  According to RESTORE, this new alternative, not            specifically mentioned in the  previously published draft EIS            or  RDEIS,  contained  substantial changes  to  the  proposed            action  that  are relevant  to environmental  concerns, which            required   a  supplemental  EIS   under  NEPA   and  relevant            implementing regulations.   Finally, RESTORE  claimed that  a            supplemental  EIS was  required because the  Forest Service's                                         -13-            Final  EIS  failed  to  "rigorously explore  and  objectively            evaluate all  reasonable  alternatives" that  are capable  of            meeting  the stated goals of  the project, as  required by 40            C.F.R.   1502.14 (1995).  According to RESTORE, the  asserted            goal of meeting skier demand could have been met by expanding            ski  areas other than Loon, in  particular, ski areas located            outside the White Mountain National Forest.                      The parties cross-moved for summary judgment.  Loon            Corp.  intervened, and  moved to  dismiss on the  ground that            both plaintiffs  lacked standing.  The  district court denied            Loon Corp.'s motion to  dismiss, granted summary judgment for            the Forest  Service, and denied the plaintiffs' cross-motions            for summary judgment.                               II.   DUBOIS' STANDING9                               II.   DUBOIS' STANDING                                     ________________                      The ingredients of  standing are imprecise and  not            easily  susceptible to  concrete  definitions  or  mechanical            applications.  Allen v. Wright, 468 U.S. 737, 751 (1984).  In                           _______________            order to have standing to sue, a plaintiff must have "such  a            personal stake in the outcome of the controversy as to assure            that concrete adverseness which  sharpens the presentation of            issues  upon   which  the   court  so  largely   depends  for            illumination of difficult .  . . questions."  Baker  v. Carr,                                                          ______________            369 U.S. 186, 204 (1962).                                              ____________________            9.  Defendants  have abandoned  their challenge  to RESTORE's            standing.                                         -14-                      Standing consists of  both a constitutional  aspect            and  a  prudential  aspect.    The  constitutional  dimension            derives from the requirement that federal courts can act only            upon  a justiciable  case or controversy.   U.S.  Const. art.            III.  If a party lacks Article III standing to bring a matter            before the court, the court lacks subject matter jurisdiction            to decide the merits of the underlying case.  FW/PBS, Inc. v.                                                          _______________            City of Dallas, 493 U.S. 215, 231 (1990).            ______________                      To   satisfy   the   constitutional  component   of            standing, a plaintiff must have suffered an "injury in fact,"            i.e.,  an invasion of a legally protected interest.  Lujan v.            ____                                                 ________            Defenders of Wildlife, 504 U.S. 555, 560 (1992).  That injury            _____________________            must be "concrete and  particularized"; the latter term means            the injury must be personal  to the plaintiff.  Id. at  560 &                                                            ___            n.1.   It may  be  shared by  many others,  United States  v.                                                        _________________            Students  Challenging  Regulatory Agency  Procedures (SCRAP),            ____________________________________________________________            412  U.S.  669,  687-88 (1973),  but  may  not  be common  to            everyone, see Warth v. Seldin, 422 U.S. 490, 499 (1975).  The                      ___ _______________            injury must also be  "actual or imminent, not  conjectural or            hypothetical,"  Defenders  of  Wildlife,   504  U.S.  at  560                            _______________________            (quotation omitted), and it  must be "distinct and palpable,"            Warth,  422 U.S.  at  501.   The  latter requirement  may  be            _____            satisfied by environmental or aesthetic injuries.  See SCRAP,                                                               ___ _____            412  U.S. at  686; Sierra Club  v. Morton, 405  U.S. 727, 734                               ______________________            (1972).   The  injury need  not be  "significant";  a "small"                                         -15-            stake in the outcome will suffice, if it is "direct."  SCRAP,                                                                   _____            412 U.S. at 689 n.14.  In addition, the injury must be fairly            traceable to  the defendant's allegedly  unlawful conduct and            likely to be redressed by the requested relief.10   Defenders                                                                _________            of Wildlife, 504 U.S. at 560-61.            ___________                      The doctrine  of standing also  includes prudential            concerns  relating   to  the   proper  exercise   of  federal            jurisdiction.   Among these concerns is  the requirement that            "a plaintiff's  complaint fall  within the zone  of interests            protected  by the law invoked."  Allen,  468 U.S. at 751.  In                                             _____            addition, as a general rule, a plaintiff "must assert his own            legal  rights and  interests, and  cannot rest  his claim  to            relief on the  legal rights or  interests of third  parties."            Warth,  422   U.S.  at   499.    A   membership  organization            _____            constitutes an exception to this general rule: it  may assert            the claims of its members, provided  that one or more of  its            members   would  satisfy  the   individual  requirements  for                                            ____________________            10.  Violations of procedural  rights, such as  those created            by NEPA and CWA, receive "special" treatment when it comes to            standing.   "The person who  has been  accorded a  procedural            right to protect his concrete interests can assert that right            without meeting  all the normal standards  for redressability            and  immediacy."  Defenders of Wildlife, 504 U.S. at 572 n.7.                              _____________________            As  an example, the  Supreme Court points  to "the procedural            requirement  for an  environmental impact statement  before a            federal facility is constructed next door" to the plaintiffs.            Id. at 572.   The contrasting example -- where  the disregard            ___            of procedural requirements  would be held  not to impair  the                                                       ___            plaintiffs' concrete  interests -- is "persons  who live (and            propose  to live) at the  other end of  the country" from the            project.  Id. at 572 n.7.                      ___                                         -16-            standing in  his or her own  right.11  See UAW  v. Brock, 477                                                   ___ _____________            U.S. 274, 281-82 (1986).                      The  burden  falls  on  the  plaintiff  "clearly to            allege  facts  demonstrating that  he  is a  proper  party to            invoke" federal jurisdiction.   Warth, 422 U.S. at 518.   The                                            _____            plaintiff  must   "set  forth  reasonably   definite  factual            allegations,  either  direct or  inferential,  regarding each            material element needed to  sustain standing."  United States                                                            _____________            v.  AVX Corp., 962  F.2d 108, 115  (1st Cir.  1992).  "[E]ach            _____________            element must be supported in the same way as any other matter            on  which the plaintiff bears the burden of proof, i.e., with                                                               ____            the manner and degree of  evidence required at the successive            stages of  the litigation."  Defenders of  Wildlife, 504 U.S.                                         ______________________            at 561.  At the  pleading stage, "general factual allegations            of injury resulting from the defendant's conduct may suffice,            for  on  a motion  to  dismiss  we  'presum[e]  that  general            allegations embrace  those specific facts  that are necessary            to  support the  claim.'"   Id.  (quoting  Lujan v.  National                                        ___            __________________            Wildlife Federation, 497 U.S. 871, 889 (1990)).            ___________________                      The district  court denied  Loon Corp.'s  motion to            dismiss Dubois'  claims on  standing grounds, relying  on our                                            ____________________            11.  An association must meet two other requirements in order            to  have standing to sue:  the  interests that the suit seeks            to  vindicate must be germane to the objectives for which the            organization was  formed; and neither the  claim asserted nor            the relief  requested requires the personal  participation of            affected  individuals.   UAW  v.  Brock,  477  U.S. 274,  282                                     ______________            (1986).                                         -17-            precedent  in  Washington Legal  Found. v.  Massachusetts Bar                           ______________________________________________            Found., 993  F.2d 962, 971-72 (1st Cir. 1993).  In that case,            ______            we held that the court need not determine the standing of all            plaintiffs if at least one plaintiff has standing to maintain            each  claim.   The  district  court  found that  RESTORE  had            standing to bring all the claims at  issue in this case, and,            therefore,  that  the court  could  reach the  merits  of all            claims without  first addressing Dubois' standing.   We agree            that RESTORE would have  standing to raise, on behalf  of its            members, all the issues  in dispute in this litigation.   But            the  district  court  erred   in  concluding  that  it  could            therefore  reach  the  merits  of  all  claims,  because  the            district  court's premise  was incorrect:   RESTORE  did not,            even at the  district court level, raise  the issues relating            to  Executive  Order  11,990  and  the  state  water  quality            standards, which only Dubois is pursuing here.  The situation            is not, therefore, analogous to Washington Legal  Foundation;                                            ____________________________            if  Dubois has  no  standing, we  cannot  decide issues  that            RESTORE has never raised.                      We  find, however,  that  Dubois  does satisfy  all            requirements for standing to litigate  the claims he seeks to                                         -18-            pursue  on appeal.   His  second amended  complaint12 alleged            that                      [his] principal  residence from 1959-1977                      was in Lincoln, New  Hampshire.  [He] has                      returned  to  the Lincoln  area  at least                      once per year  -- and occasionally up  to                      twelve or  more times  per year --  since                      1977.    During  these  trips,  [he]  has                      visited relatives  and friends, collected                      botanical    samples    for    scientific                      analysis,  and  engaged  in  recreational                      activities in and around the WMNF and the                      Loon  Mountain  Ski  Area.    Plaintiff's                      interest     in     the    environmental,                      recreational and aesthetic quality of the                      WMNF  are and will  be adversely affected                      by the Defendants' actions  challenged in                      this Complaint.             Second Amended Complaint,    5.  The last sentence  is rather            conclusory, but  the  entire complaint,  taken together  with            inferences  reasonably drawn  from its  allegations, contains            sufficient  "reasonably  definite factual  allegations," AVX,                                                                     ___            962 F.2d at 115, to survive a motion to dismiss.                        "We  are mindful  that, under  the notice  pleading            requirements  of the  federal rules,  the allegations  of the                                            ____________________            12.  Dubois moved for leave to file a third amended complaint            and a reply brief.  The district court failed to rule on this            motion until after the court's jurisdiction was terminated by            the docketing of  RESTORE's appeal.  Dubois asked  this court            to clarify the status of this motion in light of the district            court's  order granting  Dubois'  post-judgment motion  under            Fed. R. Civ. P. 60(a) for clarification;  the court indicated            that it had intended to allow the third amended complaint and            the  reply brief,  but  did not,  due  to clerical  mistakes.            Docket Entry 79-b.  We need not decide Dubois' motion because            of  our decision on the  merits.  Resolving  the motion would            not, in any event, affect our decision on the standing issue,            because   the  third  amended   complaint  contains  language            identical to the second regarding standing.                                         -19-            complaint should be construed favorably to the complainant on            a motion to dismiss."  Papex Int'l Brokers v. Chase Manhattan                                   ______________________________________            Bank, 821 F.2d 883, 886 (1st  Cir. 1987).  Moreover, as noted            ____            supra,  at the  pleading  stage, "we  presum[e] that  general            _____            allegations embrace those specific  facts that are  necessary            to  support the claim."   Defenders of Wildlife,  504 U.S. at                                      _____________________            561 (quotation  omitted).   Further, the record  reveals that            the district court had adduced  additional information during            its consideration of the  standing issue.  See AVX,  962 F.2d                                                       ___ ___            at 114  n.6 (appellate court considering  standing issue went            beyond  the  complaint "in  a  record-wide  search for  facts            supporting" the  claim of  standing).  Dubois'  local counsel            represented  to the  court  that Dubois  continues to  return            "regularly,"  at  least annually,  to  his  parents' home  in            Lincoln; that he drinks  the water from the "Town  of Lincoln            water  supply that comes down from Loon Pond"; that he "walks            those  mountains" in the  WMNF.  Transcript  of Hearing, June            14, 1995, at 7-9.   The court expressed its  understanding of            Dubois' standing allegations as follows:                      Mr.   Dubois'  injury   in  fact   is  he                      periodically comes back  to the area  and                      enjoys  its natural  beauty  and will  be                      injured  by not being  able to experience                      its  natural beauty  if  the  project  is                      allowed  to go forward? . . .  It's not a                      case  of someone who's  simply saying I'm                      an environmentalist and I want to protect                      the    environment,    which    everybody                      presumably  has  an  interest  in  doing.                      It's somebody who  says I'm back  there a                      lot,  I drink  the  water a  lot, I'm  up                                         -20-                      there  in the  woods a  lot, and  this is                      going to hurt me.            Id. at 8, 12.            ___                      We think it useful to  compare the facts here  with            those  alleged in  AVX,  962 F.2d  at  116-17.   In  AVX, the                               ___                               ___            plaintiff organization had simply made conclusory allegations            that its "members have been and will continue to be harmed by            the releases  that [were] the subject  of [that] litigation";            its  "averment  [had]  no   substance:  the  members   [were]            unidentified; their  places of  abode [were] not  stated; the            extent and  frequency of any  individual use of  the affected            resources [was] left  open to surmise."   Id.  This court  in                                                      ___            AVX pointed to  the allegations  in SCRAP, 412  U.S. 669,  as            ___                                 _____            attenuated  as they  were, in  which "there was  a geographic            nexus;  all the  association's members  resided in  a single,            defined  metropolitan   area,   directly  affected   by   the            challenged action. . . .  In SCRAP, unlike [AVX], the claimed                                         _____          ___            environmental injury  was tied to the  particular pursuits of            particular persons."  AVX, 962 F.2d at 117.                                  ___                      The instant case, in  contrast with AVX, presents a                                                          ___            particular  person, whose  family  home is  located  squarely            within the geographical  area allegedly directly  affected by            the  proposed project,  who  visits the  area regularly,  who            drinks  the   water  which  will  allegedly   be  tainted  by            pollutants,  and  who  will  allegedly  be  deprived  of  his            environmental,  aesthetic and  scientific  interests in  ways                                         -21-            directly  tied to the project  he challenges.   These are the            types of interests which  the Supreme Court has held  -- when            asserted  by an organization such as RESTORE on behalf of its            members   --  satisfy  the  constitutional  requirements  for            standing.   See  SCRAP, 412  U.S. at  685-87; Sierra  Club v.                        ___  _____                        _______________            Morton, 405 U.S.  at 734-35 & n.8;  see also supra, note  10.            ______                              ________ _____            There  is certainly no reason  why an organization would have            standing to raise these interests  on behalf of its  members,            but an individual such  as Dubois would not have  standing to            raise the same interests on his own behalf.                      Thus, with the  degree of specificity  necessary at            the pleading stage, Dubois has articulated -- directly and by            inference  -- how  his personal  interests will  be adversely            affected  by the  Loon  expansion proposal.13   Finally,  his            injuries  are "likely to be  redressed" by the  relief he has            requested  in  the  complaint:   inter  alia,  an  injunction                                             ___________            against the project's proceeding.  See Defenders of Wildlife,                                               ___ _____________________            504 U.S. at 560-61.                                            ____________________            13.  Our analysis is not altered by the fact that three of            the parties filed cross-motions for summary judgment.  The            standing issue was raised only in Loon Corp.'s motion to            dismiss.  Where, as here, the defendants have not            contradicted the factual allegations concerning standing that            we deem adequate at the motion to dismiss stage, we will not            subject those allegations to a summary judgment level of            scrutiny in the absence of a motion for summary judgment on            the issue.  In these circumstances, "[t]he standing analysis            is no different, as a result of the case having proceeded to            summary judgment, than it would have been at the pleading            stage."  Simon v. Eastern Ky. Welfare Rights Org., 426 U.S.                     ________________________________________            26, 37 n.15 (1976).                                         -22-                      As  for the prudential standing requirements, there            is no dispute that the violations and injuries alleged in the            complaint  are the sort that NEPA, the CWA, and the Executive            Order were "specifically designed" to protect.  See Lujan  v.                                                            ___ _________            National Wildlife Federation, 497 U.S. at 886.  Moreover, our            ____________________________            discussion above related only to Dubois' own legal rights and            interests, not those  of third parties.  Accordingly, we find            that Dubois has standing  to litigate the claims he  seeks to            pursue on appeal.                              III.   STANDARD OF REVIEW                              III.   STANDARD OF REVIEW                                     __________________                      The   district   court's  order   granting  summary            judgment  is subject to de  novo review.   Borschow Hosp. and                                    ________           __________________            Medical Supplies v. Cesar Castillo, Inc., 96 F.3d 10, 14 (1st            ________________________________________            Cir. 1996);  Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st                         __________________________            Cir. 1992).  We independently weigh the merits of the summary            judgment motions  "without deference to the  reasoning of the            district court."   Hughes v.  Boston Mut. Life  Ins. Co.,  26                               _____________________________________            F.3d  264, 268 (1st Cir. 1994).  Accordingly, we must reverse            the court's grant  of summary  judgment unless  "there is  no            genuine issue  as to any material  fact and . .  . the moving            party is entitled to a judgment as a matter of law."  Fed. R.            Civ. P. 56(c).   In analyzing the issues, we  will review the            record in  the light most  favorable to the  non-movants, and            make all inferences in their favor.  Borschow, 96 F.3d at 14;                                                 ________                                         -23-            Petitti v. New England Tel. & Tel. Co., 909 F.2d  28, 31 (1st            ______________________________________            Cir. 1990).                      It is  well established that a  reviewing court may            not  set aside  administrative decisions "simply  because the            court is unhappy with  the result reached."  Baltimore  Gas &                                                         ________________            Elec.  Co.   v.  Natural  Resources  Defense   Council,  Inc.            _____________________________________________________________            ("NRDC"),  462 U.S.  87,  97 (1983)  (quoting Vermont  Yankee            ________                                      _______________            Nuclear Power Corp. v.  NRDC, 435 U.S. 519, 558 (1978)).  The            ____________________________            fundamental policy  questions are "appropriately  resolved in            Congress  and  in  the  state legislatures";  they  "are  not                                                                      ___            subject  to reexamination  in  the federal  courts under  the            guise  of  judicial  review  of agency  action."14    Vermont                                                                  _______            Yankee,  435  U.S.  at 558.    Courts  may  set aside  agency            ______            decisions "only  for  substantial procedural  or  substantive            reasons as mandated by statute."  Id.                                              ___                      The applicable statutes here  are NEPA and the CWA.            NEPA  requires  that the  agency take  a  "hard look"  at the            environmental consequences of a project before taking a major            action.  Baltimore  Gas, 462  U.S. at 97  (quoting Kleppe  v.                     ______________                            __________            Sierra Club,  427 U.S. 390, 410 n.21 (1976)).  It is the role            ___________            of the courts on  judicial review to ensure "that  this legal                                            ____________________            14.  For example,  in Vermont  Yankee, Congress had  made the                                  _______________            policy decision that the nation would try nuclear  power; the            Court refused  to second-guess that decision  in reviewing an            EIS pursuant to NEPA.  435 U.S. at 557-58.                                         -24-            duty  is  fulfilled."    Foundation  on  Economic  Trends  v.                                     ____________________________________            Heckler, 756 F.2d 143, 151 (D.C. Cir. 1985).              _______                      Congress,  in enacting  NEPA,  meant "to  insure  a            fully   informed  and  well-considered  decision."    Vermont                                                                  _______            Yankee,  435 U.S.  at  558.    But  NEPA  "does  not  mandate            ______            particular  results";  it  "simply prescribes  the  necessary            process."   Robertson v. Methow Valley  Citizens Council, 490                        ____________________________________________            U.S. 332, 350 (1989).  "If the  adverse environmental effects            of   the  proposed  action   are  adequately  identified  and            evaluated,  the  agency  is  not  constrained  by  NEPA  from            deciding that other values outweigh the environmental costs."            Id.; see  also Baltimore Gas,  462 U.S. at 97.   Thus, "[t]he            ___  _________ _____________            role of  the courts is simply  to ensure that  the agency has            adequately considered and disclosed the  environmental impact            of  its actions  and that  its decision  is not  arbitrary or                             ___            capricious."   Baltimore  Gas,  462 U.S.  at 97-98  (emphasis                           ______________            added).                        Like  NEPA, the  CWA  does not  articulate its  own            standard of review; therefore the appropriate scope of review            for both NEPA claims and CWA claims is the standard set forth            in the APA.  5 U.S.C.   706(2)(A) (1994); see Town of Norfolk                                                      ___ _______________            v. U.S. Army  Corps of  Engineers, 968 F.2d  1438, 1445  (1st            _________________________________            Cir. 1992);  Oregon Natural Resources Council  v. U.S. Forest                         ________________________________________________            Service, 834 F.2d 842, 851-52 (9th Cir. 1987).            _______                                         -25-                      Under the APA, "[t]he  reviewing court shall .  . .            hold  unlawful and  set  aside agency  action, findings,  and            conclusions found  to be  arbitrary, capricious, an  abuse of            discretion, or  otherwise not  in  accordance with  law."   5            U.S.C.   706(2)(A).   Errors of law are reviewed by the court            de novo.  5  U.S.C.   706 (1994) ("the reviewing  court shall            _______            decide all  relevant questions  of law");  Howard v. FAA,  17                                                       _____________            F.3d 1213, 1215 (9th Cir. 1994).                      On the  other hand, the  task of a  court reviewing            agency  action under  the  APA's "arbitrary  and  capricious"            standard, 5  U.S.C.    706(2), is "to  determine whether  the            [agency] has  considered the relevant factors and articulated                          _______________________________     ___________            a rational connection between the facts found and the  choice            _____________________            made."   Baltimore  Gas,  462 U.S.  at  105 (emphasis  added)                     ______________            (citations omitted);  see also  Motor Vehicle Mfrs.  Ass'n v.                                  ________  _____________________________            State  Farm  Mut. Auto.  Ins. Co.,  463  U.S. 29,  43 (1983);            _________________________________            Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419            ________________________________________________________            U.S. 281,  285-86 (1974); Citizens to  Preserve Overton Park,                                      ___________________________________            Inc. v. Volpe, 401  U.S. 402, 415-17 (1971).   If the  agency            _____________            decision was based on a consideration of the relevant factors            and  there has not been "a clear error of judgment," then the            ___            agency  decision was  not arbitrary  or capricious.   Overton                                                                  _______            Park,  401 U.S.  at 416;  Marsh v.  Oregon Natural  Resources            ____                      ___________________________________            Council, 490 U.S. 360, 378 (1989).              _______                                         -26-                      In State Farm,  the Supreme  Court offered  several                         __________            examples   of  circumstances  in   which  an   agency  action            "normally"  would  be  considered arbitrary  and  capricious:            situations  where "the  agency  has relied  on factors  which            Congress has not intended it  to consider, entirely failed to            consider  an  important aspect  of  the  problem, offered  an            explanation  for  its  decision  that  runs  counter  to  the            evidence before  the  agency, or  is so  implausible that  it            could not be ascribed to a difference in  view or the product            of agency expertise."  State Farm, 463 U.S. at 43.  These are                                   __________            merely "examples," Puerto  Rico Sun  Oil Co. v.  U.S. EPA,  8                               ______________________________________            F.3d 73, 77 (1st Cir. 1993); others could be recited as well.            Whether  reviewing an  EIS  or a  rulemaking proceeding,  the            "reviewing court  should not  attempt itself  to make  up for            such deficiencies; we may not supply a reasoned basis for the            agency's action that the agency itself has not given."  State                                                                    _____            Farm, 463 U.S. at  43 (citing SEC v. Chenery Corp.,  332 U.S.            ____                          ____________________            194, 196 (1947)).                      "While  this is  a highly  deferential  standard of            review,  it  is not  a  rubber  stamp."   Citizens  Awareness                                                      ___________________            Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d 284,            _______________________________________________            290 (1st  Cir. 1995).    Although "the  ultimate standard  of            review  is  a  narrow  one,"   the  court  must  undertake  a            "thorough,  probing, in-depth  review"  and a  "searching and                                         -27-            careful" inquiry into the  record.15  Overton Park,  401 U.S.                                                  ____________            at 415-16.   In order for  an agency decision  to pass muster            under  the   APA's  "arbitrary  and   capricious"  test,  the            reviewing court  must  determine  that  the  decision  "makes            sense."    Puerto Rico  Sun  Oil,  8 F.3d  at  77.   Only  by                       _____________________            "carefully reviewing the record  and satisfying [itself] that            the agency  has  made  a reasoned  decision"  can  the  court            "ensure  that  agency decisions  are  founded  on a  reasoned            evaluation  of the relevant factors."  Marsh, 490 U.S. at 378                                                   _____            (internal quotation omitted).                               IV.   THE NEPA/EIS ISSUE                               IV.   THE NEPA/EIS ISSUE                                     __________________                      The  National Environmental  Policy Act  (NEPA), 42            U.S.C.    4321 et seq., declares a  broad national commitment                           __ ____            to   protecting   and   promoting    environmental   quality.            Robertson, 490 U.S.  at 348; 42  U.S.C.   4331  (1994).   The            _________            primary mechanism for implementing NEPA is  the Environmental            Impact Statement (EIS).  42 U.S.C.   4332 (1994).  The EIS is            an  "action-forcing" procedure,  designed  "[t]o ensure  that            this  commitment is  infused  into the  ongoing programs  and            actions of the  Federal Government."  Robertson, 490  U.S. at                                                  _________            348 (quotation omitted).                                            ____________________            15.  We note that the two-step process articulated in Chevron                                                                  _______            U.S.A. v. NRDC, 467  U.S. 837, 842-43 (1984), does  not apply            ______________            here, because we are not reviewing an agency's interpretation            of the statute that it was directed to enforce.                                         -28-                      NEPA requires that an agency considering any action            that  would  have a  significant  impact  on the  environment            prepare  an EIS.  The EIS must contain a "detailed statement"                                                      ________            including, inter  alia,  the  environmental  impacts  of  the                       ___________            proposed  project,  and  all reasonable  alternatives  to the            project.    42  U.S.C.     4332(C)  (emphasis  added).     We            previously  emphasized  the   word  "detailed"  because   "it            connotes the careful,  reasoned and fully explained  analysis            which we think Congress  intended."  Silva v. Lynn,  482 F.2d                                                 _____________            1282,  1284 n.2 (1st Cir. 1973).  Thus, the EIS helps satisfy            NEPA's "twin aims":  to ensure  that the agency takes a "hard            look"  at the  environmental  consequences  of  its  proposed            action,  and   to  make  information  on   the  environmental            consequences available  to the  public, which may  then offer            its insight to  assist the  agency's decision-making  through            the  comment process.  See  Robertson, 490 U.S.  at 350, 356;                                   ___  _________            Baltimore Gas, 462  U.S. at 97.   The EIS thus "helps  insure            _____________            the integrity  of the process of decision," providing a basis            for  comparing  the  environmental  problems  raised  by  the            proposed  project  with  the  difficulties  involved  in  the            alternatives.  Silva v. Lynn, 482 F.2d at 1285.                           _____________                      A.  Consideration of Environmental Impacts                      A.  Consideration of Environmental Impacts                          ______________________________________                      In  its  EIS,  the  agency  must   "consider  every            significant aspect of the  environmental impact of a proposed            action,"  Baltimore  Gas, 462  U.S.  at  97 (quoting  Vermont                      ______________                              _______                                         -29-            Yankee, 435 U.S. at 553), and  "evaluate different courses of            ______            action,"  Kleppe, 427 U.S. at  410.  The  EIS's discussion of                      ______            environmental  impacts  "forms  the scientific  and  analytic            basis  for  the comparisons"  of  alternatives,  40 C.F.R.               1502.16 (1995), which  are "the heart" of  the EIS, id.  at                                                                  ___            1502.14; see  Part IV(B), infra.   The discussion  of impacts                     ___              _____            must  include both  "direct and  indirect effects  (secondary            impacts) of a proposed  project."  Sierra Club v.  Marsh, 976                                               _____________________            F.2d 763, 767 (1st Cir.  1992); 40 C.F.R.   1502.16(b).   The            agency need not speculate  about all conceivable impacts, but            it  must  evaluate  the  reasonably  foreseeable  significant            effects  of the proposed action.   Sierra Club  v. Marsh, 976                                               _____________________            F.2d  at 767.    In this  context, reasonable  foreseeability            means that "the impact is sufficiently likely to occur that a            person of  ordinary prudence would  take it  into account  in            reaching  a decision."  Id.  An environmental effect would be                                    ___            considered "too speculative" for inclusion  in the EIS if  it            cannot  be  described at  the time  the  EIS is  drafted with            sufficient specificity to make  its consideration useful to a            reasonable  decision-maker.    Id.  at  768.    Nevertheless,                                           ___            "[r]easonable  forecasting . . .  is . .  . implicit in NEPA,            and we must  reject any  attempt by agencies  to shirk  their            responsibilities   under  NEPA  by   labeling  any   and  all            discussion of  future environmental effects  as 'crystal ball                                         -30-            inquiry.'"  Scientists' Inst. for Pub. Info. v. Atomic Energy                        _________________________________________________            Comm'n, 481 F.2d 1079, 1092 (D.C. Cir. 1973).            ______                      Plaintiffs contended in the district court that the            Forest Service failed to adequately assess the impact of Loon            Corp.'s planned expansion on Loon  Pond.  Plaintiffs listed a            number  of specific  areas  of concern.   The  district court            found  the  Forest Service's  consideration  of environmental            impacts to be adequate, and plaintiffs have not appealed this            point.  Accordingly, we need not pursue this issue here.                            B.  Consideration of Alternatives                          B.  Consideration of Alternatives                              _____________________________                      "[O]ne  important  ingredient  of  an  EIS  is  the            discussion of  steps that  can be  taken to  mitigate adverse            environmental consequences" of a proposed action.  Robertson,                                                               _________            490 U.S.  at 351.   As  one aspect  of evaluating  a proposed            course of action under NEPA, the agency has a duty  "to study            all  alternatives that appear  reasonable and appropriate for            study . . .  , as well as significant  alternatives suggested            by other agencies or  the public during the comment  period."            Roosevelt Campobello Int'l Park  Comm'n v. United States EPA,            ____________________________________________________________            684  F.2d 1041,  1047 (1st  Cir. 1982)  (quotations omitted);            Valley Citizens for a  Safe Env't v. Aldridge, 886  F.2d 458,            _____________________________________________            462 (1st Cir. 1989); City of Carmel-By-The-Sea v. U.S.  Dept.                                 ________________________________________            of Transp., 95 F.3d 892, 903 (9th Cir. 1996).            __________                      As stated  in the Council  on Environmental Quality            ("CEQ") regulations implementing  NEPA, the consideration  of                                         -31-            alternatives  is  "the  heart  of  the  environmental  impact            statement."    40  C.F.R.     1502.14.    These  implementing            regulations   are   entitled   to    substantial   deference.            Robertson, 490 U.S. at 355 (citing Andrus v. Sierra Club, 442            _________                          _____________________            U.S.  347, 358 (1979)).  The regulations require that the EIS            "[r]igorously explore and objectively evaluate all reasonable            alternatives, and for alternatives which were eliminated from            detailed study, briefly discuss  the reasons for their having            been eliminated."  40 C.F.R.   1502.14(a).  It is "absolutely            essential  to  the NEPA  process  that  the decisionmaker  be            provided with a detailed and careful analysis of the relative            environmental merits and demerits  of the proposed action and            possible   alternatives,   a   requirement   that   we   have            characterized  as   'the  linchpin   of  the   entire  impact            statement.'"   NRDC  v. Callaway,  524 F.2d  79, 92  (2d Cir.                           _________________            1975)  (citation omitted);  see Silva  v. Lynn,  482  F.2d at                                        ___ ______________            1285;  All Indian Pueblo  Council v. United  States, 975 F.2d                   ____________________________________________            1437,  1444  (10th  Cir.   1992)  (holding  that  a  thorough            discussion  of  the  alternatives  is  "imperative").    "The            'existence of a viable  but unexamined alternative renders an            environmental impact statement  inadequate.'"  Resources Ltd.                                                           ______________            v.  Robertson, 35  F.3d 1300, 1307  (9th Cir.  1993) (quoting            _____________            Idaho Conservation League v. Mumma,  956 F.2d 1508, 1519 (9th            __________________________________            Cir. 1992)); see Grazing Fields Farm v. Goldschmidt, 626 F.2d                         ___ __________________________________            1068, 1072 (1st  Cir. 1980) (Even the existence of supportive                                         -32-            studies and memoranda contained in  the administrative record            but not incorporated in the EIS cannot "bring into compliance            with NEPA an EIS that by itself is inadequate.").  Because of            the  importance  of   NEPA's  procedural  and   informational            aspects,  if  the  agency  fails to  properly  circulate  the            required issues  for review  by interested parties,  then the            EIS is insufficient  even if the agency's actual decision was            informed and well-reasoned.  Grazing Fields Farm, 626 F.2d at                                         ___________________            1072;  see Massachusetts v. Watt, 716 F.2d 946, 951 (1st Cir.                   ___ _____________________            1983).                          C.   The Requisite Level of Detail                          C.   The Requisite Level of Detail                               _____________________________                      One purpose  of the EIS requirement  is to "provide            decisionmakers  with sufficiently detailed information to aid            in determining whether to proceed with the action in light of            its  environmental consequences."   Northwest  Resource Info.                                                _________________________            Ctr., Inc. v.  National Marine Fisheries Serv., 56 F.3d 1060,            ______________________________________________            1064 (9th Cir.  1995).   What level of  detail is  sufficient            depends  on the  nature  and scope  of  the proposed  action.            Valley  Citizens, 886 F.2d at  463; Mumma, 956  F.2d at 1520.            ________________                    _____            The discussion of environmental  effects of alternatives need            not  be  exhaustive.    "[W]hat is  required  is  information            sufficient to permit a reasoned choice of alternatives as far            as  environmental aspects are  concerned," All  Indian Pueblo                                                       __________________            Council, 975 F.2d at  1444 (quoting NRDC v. Morton,  458 F.2d            _______                             ______________            827, 836  (D.C. Cir.  1972)); see also  Carmel-By-The-Sea, 95                                          ________  _________________                                         -33-            F.3d  at  903,  information  sufficient  for  the  agency  to            "[r]igorously   explore   and   objectively   evaluate"   all            reasonable alternatives.  40  C.F.R.   1502.14(a); All Indian                                                               __________            Pueblo Council, 975 F.2d at 1444.            ______________                      The  courts  have  applied  "a rule  of  reason  in            determining  whether an  EIS contains  a reasonably  thorough            discussion  of  the  significant   aspects  of  the  probable            environmental  consequences."  Carmel-By-The-Sea,  95 F.3d at                                           _________________            899 (quotation  omitted); see  also Grazing Fields  Farm, 626                                      _________ ____________________            F.2d at 1074; Massachusetts v. Andrus, 594 F.2d 872, 884 (1st                          _______________________            Cir.  1979); cf. Marsh,  490 U.S. at  373 (supplemental EIS).                         ___ _____            One aspect  of this determination  is whether the  agency has            gone "beyond  mere assertions  and indicate[d] its  basis for            them."   Silva v. Lynn, 482  F.2d at 1287.   The agency "must                     _____________            'explicate fully its course of inquiry, its analysis  and its            reasoning.'"    Massachusetts  v.  Andrus, 594  F.2d  at  883                            _________________________            (quoting Silva v. Lynn, 482 F.2d at 1284-85).  The court must                     _____________            determine whether, in the context of the record, the agency's            decision  -- and the analysis on which  it is based -- is too            unreasonable for the law to  permit it to stand.  See  Sierra                                                              ___  ______            Club v.  Marsh, 976 F.2d at  769.  We apply a  rule of reason            ______________            because  courts should  not "fly  speck" an  EIS and  hold it            insufficient   based   on   inconsequential    or   technical            deficiencies.   Swanson v. U.S. Forest  Service, 87 F.3d 339,                            _______________________________            343 (9th Cir.  1996).  "The statute must be  construed in the                                         -34-            light  of reason  if  it is  not  to demand  what is,  fairly            speaking, not meaningfully possible.  . . .  But  implicit in            this  rule of  reason  is the  overriding  statutory duty  of            compliance  with impact  statement procedures to  the fullest            extent  possible."    Scientists'  Inst., 481  F.2d  at  1092                                  __________________            (quotations omitted).  The  agency must "squarely turn[]" all            "procedural corners" in its EIS.  Citizens Awareness Network,                                              __________________________            59 F.3d  at 290 (quoting Adams, 38 F.3d at 49).  The question                                     _____            whether a particular deficiency or combination  is sufficient            to  warrant holding  it  legally inadequate,  or  constitutes            merely  a  "fly  speck,"  is essentially  a  legal  question,            reviewable de novo.  Oregon Environmental Council v. Kunzman,                       _______   _______________________________________            817 F.2d 484, 493 (9th Cir. 1987).                        Applying these  standards to  the instant  case, we            conclude that the Forest  Service has not rigorously explored            all  reasonable alternatives,  in particular  the alternative            that Loon Corp. be required to build artificial water storage            ponds, instead of withdrawing  water for snowmaking from, and            discharging water  into, an "outstanding resource water" like            Loon Pond.   The adverse environmental impacts of  using Loon            Pond  were before  the agency,  and more  than one  commenter            proposed building artificial water storage  ponds, a proposal            that would, on its face, avoid some of those adverse impacts.            One such commenter, Paul Beaudin of the Lincoln  Committee of            Concerned  Citizens  (LCCC), enclosed  clippings  pointing up                                         -35-            "the  wisdom  of  [Loon Corp.'s]  need  to  enact the  LCCC's                                              ____            proposal for water  containment pond[s] high up on  the Boyle            Brook."  JA, vol. II, Response  to Public Comment on RDEIS at            A-12.   The  LCCC proposal itself,  made two  months earlier,            referred  to  a letter  from  the  National Ecology  Research            Center   recommending   consideration   of    water   storage            alternatives  other  than  Loon  Pond,  and  enclosed  a  map            indicating  where  up to  three  containment  ponds could  be            installed.   LCCC listed some nine  advantages, including the            cost-saving factor of  servicing two-thirds to  three-fourths            of Loon Corp.'s snowmaking system by gravity feed.16                      Instead of "rigorously explor[ing]" the alternative            of using artificial water storage units instead of Loon Pond,            the  Forest Service's  Final  EIS did  not  respond to  these            comments at all.   The agency did not in  any way explain its            reasoning  or  provide a  factual  basis for  its  refusal to            consider,  in general,  the  possibility of  alternatives  to            using  Loon  Pond   for  snowmaking,  or   LCCC's  reasonably                                            ____________________            16.  In addition to the Beaudin/LCCC proposal, plaintiff            Dubois' comments also suggested that Loon Corp. build            artificial water storage units, in his case underground.             This suggestion, requiring costly subterranean construction,            may be more facially vulnerable than Beaudin/LCCC's; it may            or may not alone have required an explicit response, however            brief.  But we need not address this question because we            reverse based on the Beaudin/LCCC proposal.                                         -36-            thoughtful proposal in  particular.17  This failure  violated            the Forest  Service's  EIS obligation  under  NEPA.   See  40                                                                  ___            C.F.R.   1502.9(b) (1995); 42 U.S.C.   4332(C)(iii) (1994).                      The  use  of artificial  storage  ponds  is not  so            facially implausible  that it can  be dismissed out  of hand.            The  Forest  Service,  on   another  occasion,  required  the            Sugarbush  Ski   Area  in  Vermont  to   construct,  for  its            snowmaking  operations, three artificial  water storage ponds            capable  of holding  123.5 million  gallons of water  on 22.9            acres of private land.  JA, vol. I, at 457, 465.  This is 73%            more  than the  71  million gallons  of  water that  the  ROD            estimates  would  be  withdrawn  from  Loon  Pond  under  the            approved  Loon  Mountain  expansion  project.    Beaudin/LCCC            proposed constructing three similar  ponds in the Boyle Brook            area high up Loon Mountain.  In addition, the record contains            evidence  that Loon Corp. owns  365 acres of  private land at            the base of the  ski area, where similar storage  ponds could            be constructed,  and that  such ponds  could  be filled  with            water from the East Branch, which is typically high enough in            the spring to contribute to flooding in downstream areas.                                            ____________________            17.  Aside from its preservation argument, see Part IV(D),                                                       ___            infra, the Forest Service merely argues that the LCCC            _____            proposal was made to Loon Corp. before the RDEIS was            published.  However, the Forest Service does not suggest that            Beaudin's comment letter -- responding to the Forest            Service's RDEIS -- did not fairly refer to the prior LCCC            proposal, or that this proposal was unknown to the Service.                                         -37-                      Our  conclusion is buttressed by NEPA's requirement            that an agency consider and an EIS discuss "steps that can be            taken to mitigate the adverse environmental consequences"  of            a proposed project.   See Robertson,  490 U.S. at 351.   Even                                  ___ _________            though  there  is no  requirement  that  the agency  reach  a            particular substantive  result, such as  actually formulating            and  adopting a  complete  mitigation plan,  the agency  must            discuss "the extent to which adverse effects can be avoided,"            i.e., by mitigation measures, "in sufficient detail to ensure            ____            that  environmental consequences have been fairly evaluated."            Id. at 352.  This duty  -- coupled with the comments alerting            ___            the agency  to the  environmental consequences of  using Loon            Pond  for  snowmaking  and suggesting  the  containment  pond            solution -- required the Forest Service to seriously consider            this alternative and to explain its reasoning if  it rejected            the proposal.                      Nor can  the Forest Service claim  that its failure            to consider  an alternative to using Loon Pond for snowmaking            was a de minimis  or "fly speck" issue.  The record indicates                  __________            serious adverse consequences to Loon Pond if it is used "as a            cistern,"  to use  EPA's  words, and  at  least a  reasonable            probability that  the use  of artificial storage  ponds could            avoid  those  consequences.   The  existence  of this  non-de                                                                       __            minimis "viable but unexamined alternative renders [the  Loon            _______            EIS] inadequate."  See Resources, Inc., 35 F.3d at 1307.                               ___ _______________                                         -38-                      After the matter  had proceeded  to court,  counsel            for  the Forest Service  argued that  constructing artificial            storage  ponds large  enough to  serve as  an alternative  to            using Loon Pond would not be a viable alternative for reasons            that were  conclusorily stated.  The  district court accepted            this  argument.    But  this  "post  hoc  rationalization  of                                           _________            counsel" cannot overcome the agency's failure to consider and            address in  its FEIS the alternative  proposed by commenters.            State  Farm, 463 U.S. at 50; see Burlington Truck Lines, Inc.            ___________                  ___ ____________________________            v. United States, 371 U.S. 156, 168 (1962); NRDC v. U.S. EPA,            ________________                            ________________            824 F.2d  1258, 1286  n.19 (1st  Cir. 1987).   Such  post hoc                                                                 ________            rationalizations are inherently suspect, and in any event are            no substitute for the agency's following statutorily mandated            procedures.   As  noted supra,  even if  the agency's  actual                                    _____            decision  was a reasoned one,  the EIS is  insufficient if it            does  not  properly discuss  the  required  issues.   Grazing                                                                  _______            Fields Farm, 626 F.2d at 1072.            ___________                      In  sum,   how  "probing"  an   investigation  NEPA            requires   of  alternatives  depends  on  the  circumstances,            including  the  nature  of  the  action  at  issue.    Valley                                                                   ______            Citizens, 886 F.2d at 463.  Thus, the reviewing court must be            ________            flexible in evaluating the depth of analysis to require in an            EIS,  because,  while  NEPA  "does  not   mandate  particular            results,"  it does  require that  the agency  have adequately            identified   and   evaluated   a    project's   environmental                                         -39-            consequences.  Robertson, 490  U.S. at 350.   "NEPA's success                           _________            in large part arises from the use of legal concepts [that are            flexible] such as 'reasonableness' and 'adequacy' that permit            courts to adapt it successfully to so many different kinds of            circumstances   surrounding  so   many  different   kinds  of            governmental decisions."  Valley Citizens, 886 F.2d at 463.                                      _______________                      Although in  Valley Citizens we found  the agency's                                   _______________            analysis of alternatives "brief but  adequate,"  886 F.2d  at            462, the contrast with  the instant case is instructive.   In            Valley  Citizens, we found that  nothing in the  record or in            ________________            comments on the  draft "point[ed] out any inaccuracy"  in the            agency's cost "descriptions" or in its "discussions" of other            non-environmental considerations.   Id.  In  contrast, in the                                                ___            instant  case, the  final  EIS contains  no "description"  or                                                     __            "discussion" whatsoever  as to  why an alternative  source of            water  such as an artificially  created storage pond would be            impractical.  The agency  has discretion to balance competing            concerns  and  to  choose  among alternatives,  but  it  must            legitimately  assess  the   relative  merits  of   reasonable            alternatives before making its decision.                        After a searching and  careful review of the record            in the instant  case, we  are not convinced  that the  Forest            Service's decision  was founded  on a reasoned  evaluation of            the  relevant factors,  Marsh, 490  U.S. at  378, or  that it                                    _____            articulated a rational connection between the facts found and                                         -40-            the  choice made, Baltimore Gas, 462  U.S. at 105.  Hence, it                              _____________            acted  arbitrarily and capriciously  in granting Loon Corp.'s            special use  permit for the  expanded ski resort.   Moreover,            because the  Forest Service  did not satisfy  the requirement            that  it "rigorously  explore and  objectively  evaluate" all            reasonable  alternatives,18  40   C.F.R.     1502.14(a),  its            decision was not in  accordance with law.19   See 5 U.S.C.                                                             ___            706(2)(A).                             D.   The Preservation Issue                             D.   The Preservation Issue                                  ______________________                      The Forest Service argues that plaintiffs have  not            preserved  their argument  that the  agency should  have more            seriously considered,  as an  alternative to Loon  Pond, some            other source  for water and some other  location to discharge                                            ____________________            18.  In addition to  the question of  an alternative to  Loon            Pond as a source of water or  as a discharge point, plaintiff            RESTORE  has  raised a  second issue  regarding alternatives.            RESTORE  asserts   that  the   Forest  Service  should   have            considered alternative sites for the entire  project, outside            of the White Mountain  National Forest.   The  district court            found that  such alternative  sites were not  appropriate for            study because  some draw from different markets and others do            not offer the same type of skiing experience as the  WMNF ski            areas which have more terrain, higher mountains, more natural            snow, and better facilities  than their counterparts  outside            the WMNF.  We agree.            19.  Dubois also notes that the  FEIS failed to disclose what            he  claims are  numerous  violations of  state water  quality            standards,  which "renders the FEIS unacceptable under NEPA."            Dubois  Brief  at  16  n.11; see  Northwest  Indian  Cemetery                                         ___  ___________________________            Protective Ass'n v. Peterson, 764  F.2d 581, 587-88 (9th Cir.            ____________________________            1985),  rev'd  on other  grounds sub  nom. Lyng  v. Northwest                    __________________________________ __________________            Indian  Cemetery Protective Ass'n, 485 U.S.  439 (1988).  For            _________________________________            discussion of the issue of state water quality standards, see                                                                      ___            Part VII(C), infra.                         _____                                         -41-            the effluent from Loon Corp.'s snowmaking pipes.  It contends            that plaintiffs failed adequately to raise  their contentions            during the public comment period,  so they waived their right            to  pursue  these challenges  on  their merits.    The Forest            Service argues  that, "[i]f commenters could require agencies            to   undertake  detailed   comparative  analyses   merely  by            asserting   the   superiority   of   an   alternative   site,            configuration  or  method, only  the imaginations  of project            opponents  would limit the length of EISs and the duration of            the  NEPA process."  Forest Service Brief at 53.  Raising the            specter of catastrophe only  obfuscates the real issues here:            whether the Forest Service adequately considered alternatives            to  using Loon Pond as a vehicle for Loon Corp.'s snowmaking,            with adequacy based on the reasonableness and practicality of            the alternatives, and  whether the Forest Service  adequately            explained   in  its   FEIS  why   it  decided   against  such            alternatives.                      The Forest Service  relies on Roosevelt Campobello:                                                    ____________________            "In order to preserve an alternatives issue for review, it is            not enough  simply to  make a facially  plausible suggestion;            rather, an  intervenor must  offer tangible evidence  that an                                                                       __            alternative  site  might  offer  a   substantial  measure  of            _________________            superiority  as a site."   684 F.2d at  1047 (emphasis added)            (quotation  omitted).    The  Forest  Service's  reliance  on            Roosevelt  Campobello  is  misplaced.   That  case,  and  the            _____________________                                         -42-            precedents it relied on,  dealt with a claim that  the agency            had not considered all appropriate alternative sites on which                                                           _____            to locate  a particular  project.   Obviously, the  number of            potential  locations  for any  project  is  infinite, and  an            agency  cannot   be  expected  to  consider  seriously  every            possible  location before  approving  a project.   In  such a            context,  the  agency  is  only  required  to  consider  "all            alternatives which were  feasible and reasonably apparent  at            the time of drafting the EIS."  Id.;  see also Seacoast Anti-                                            ___   ________ ______________            Pollution League v. Nuclear Regulatory Comm'n, 598 F.2d 1221,            _____________________________________________            1229 (1st  Cir.  1979) (Agency  need  not "ferret  out  every            possible   alternative,  regardless   of   how  uncommon   or            unknown.") (quoting Vermont Yankee, 435 U.S. at 551).                                   ______________                      The  situation  in  the   instant  case  is  wholly            different.  It is one thing to ask whether there are "known,"            "feasible," alternative  sites on which to  locate a project,                                     _____            and a different matter  to ask whether the Forest  Service in            the instant case should  have considered an alternative means                                                                    _____            of implementing the expansion of the Loon Mountain Ski Area -            -  a  particular  means  of  operation  that  would  do  less            environmental damage -- without  changing the site to another            state or  another mountain.    Here, the  Forest Service  was            alerted by commenters to  the alternative of using artificial            storage  ponds instead of Loon Pond for snowmaking;  but even            without  such  comments,  it  should  have  been  "reasonably                                         -43-            apparent" to the  Forest Service,  Roosevelt Campobello,  684                                               ____________________            F.2d at 1047, not "unknown," Seacoast  Anti-Pollution League,                                         _______________________________            598 F.2d at 1229, that such an alternative existed.                      In the instant case,  at least two commenters, Paul            Beaudin of LCCC and plaintiff  Dubois, provided notice to the            Forest  Service,  informing  it  of the  substance  of  their            proposed alternative.   Though  not detailed,  these comments            submitted  in response  to  the Forest  Service's RDEIS  made            clear that the commenters  thought the agency should consider            some alternative source  of water  other than  Loon Pond  and            some  alternative place to  discharge the water  after it had            gone  through the snowmaking pipes.  They argued that such an            alternative would reduce the negative environmental impact on            Loon Pond from depleting the  pond's water and from refilling            the pond with polluted  water either from the East  Branch or            from  acidic  snowmelt.   Dubois  explicitly  and Beaudin  by            reference suggested  the possibility of  new man-made storage            units  to accomplish  these goals.   These  comments provided            sufficient notice to "alert[]  the agency" to the alternative            being proposed and the  environmental concern the alternative                                         -44-            might  address.20   See  Seacoast Anti-Pollution  League, 598                                ___  _______________________________            F.2d at 1229 (quoting Vermont Yankee, 435 U.S. at 553).                                    ______________                      Because the comments to  the EIS were sufficient to            notify the agency of the potential alternatives, see Adams v.                                                             ___ ________            U.S. EPA, 38  F.3d 43, 52 (1st Cir. 1994), the district court            ________            erred in concluding that plaintiffs were required to "offer[]            specifics  as to  how  to implement  a suggested  alternative            water storage system."   Memorandum  and Order at  31.   Such            "specifics" are not required.   As we reasoned in  Adams, the                                                               _____            purpose  of public  participation  regulations is  simply "to            provide notice" to  the agency, not to "present  technical or            precise   scientific   or   legal  challenges   to   specific            provisions" of the document  in question.  Adams, 38  F.3d at                                                       _____            52.   "It would be  inconsistent with the  general purpose of            public participation regulations  to construe the regulations            strictly."  Id.                         ___                      Moreover, NEPA  requires the  agency to try  on its            own to  develop alternatives that will  "mitigate the adverse            environmental   consequences"   of   a    proposed   project.                                            ____________________            20.  In Adams v.  U.S. EPA, 38  F.3d 43  (1st Cir. 1994),  we                    __________________            held that a plaintiff had sufficiently raised his proposal at            the agency level by stating in his comment:  "The EPA has not            carried out the intent of Congress in relation to the [Act in            question, citing specific statutory provisions]."   Adams, 38                                                                _____            F.3d at 52.  This court  held that that reference -- together            with other comments discussing  the detrimental impact of the            proposed project on beaches and marine life -- was sufficient            to "alert[]  the EPA to  [his] concern that  the EPA had  not            adequately complied with the [statutory] mandates."  Id.                                                                  ___                                         -45-            Robertson,  490 U.S. at 351.  "In respect to alternatives, an            _________            agency must on its own initiative study all alternatives that                        _____________________            appear reasonable and appropriate for  study at the time, and            must also  look into other significant  alternatives that are            called to its attention  by other agencies, or by  the public            during  the  comment  period   afforded  for  that  purpose."            Seacoast Anti-Pollution  League, 598  F.2d at  1230 (emphasis            _______________________________            added).21    Particularly  given  this directive,  the  alert            furnished by  Beaudin  and Dubois  required  exploration  and            discussion   by  the   Forest  Service   of  the   idea  that            environmental  damage   might  be  reduced  by   the  use  of            artificial storage ponds instead  of Loon Pond for snowmaking            purposes.  Therefore, the district court should have rejected            the  Forest   Service's  argument   that  Dubois   failed  to            adequately preserve the issue of alternatives.                                V.   SUPPLEMENTAL EIS                                V.   SUPPLEMENTAL EIS                                     ________________                      Plaintiffs   also   appeal  the   district  court's            conclusion that  the Forest  Service was not  required, under            NEPA,  to  prepare a  supplemental EIS.    The question  of a            supplemental EIS is premised on the dual purposes of the EIS:                                            ____________________            21.  In deciding whether an agency has adequately studied all            reasonable alternatives, a reviewing  court may consider "the            extent   and  sincerity  of  the  opponents'  participation."            Seacoast Anti-Pollution League, 598  F.2d at 1231.  Here,  it            ______________________________            is  apparent from  the record  that Dubois  has treated  this            matter  seriously, not as  "a game," id. at  1229; he has not                                                 ___            "played dog  in  the  manger  with respect  to  alerting  the            agency"  to  his views  regarding  alternatives,  id., in  an                                                              ___            effort to "scuttle" the project, id. at 1231.                                             ___                                         -46-            to  assure that  the  public who  might  be affected  by  the            proposed  project  be fully  informed  of  the proposal,  its            impacts and all major points of  view; and to give the agency            the benefit of informed comments and suggestions as it  takes            a "hard look" at  the consequences of proposed actions.   See                                                                      ___            Robertson,  490  U.S.  at  349,  356;  40  C.F.R.     1502.1,            _________            1502.9(a) (1995).                        An agency "shall"  prepare a  supplemental EIS  if,            after  issuing  its latest  draft  EIS,  "[t]he agency  makes            substantial changes in the  proposed action that are relevant            to  environmental  concerns."   40  C.F.R.    1502.9(c)(1)(i)            (1995).   The  use  of the  word  "shall" is  mandatory,  not            precatory.   It creates a duty  on the part of  the agency to            prepare a supplemental EIS if substantial changes from any of            the  proposed  alternatives  are  made and  the  changes  are            relevant  to environmental concerns.   See Marsh, 490 U.S. at                                                   ___ _____            372.   Thus,  as explained by CEQ, an  additional alternative            that  has not been disseminated previously in a draft EIS may            be adopted in  a final EIS,  without further public  comment,            only  if   it  is  "qualitatively  within   the  spectrum  of            alternatives  that  were  discussed"   in  the  prior  draft;            otherwise  a supplemental  draft is needed.   See  Forty Most                                                          ___            Asked  Questions Concerning CEQ's  NEPA Regulations,  46 Fed.            Reg. 18026, # 29b (1981).                                          -47-                      Plaintiffs  argue  that  the  project  proposed  as            Alternative 6, appearing for the first time in the Final EIS,            embodies "substantial  changes" from any  of the alternatives            proposed  in  the prior  drafts of  the  EIS, and  that those            changes  are "relevant  to environmental  concerns."   See 40                                                                   ___            C.F.R.   1502.9(c)(1)(i).  Therefore, plaintiffs assert that,            by  not describing  Alternative 6  in a  supplemental  EIS --            which would give the  public an opportunity to comment  on it            and  give the Forest Service the benefit of those comments in            its consideration of the environmental impact of  Alternative            6 --  the  Forest  Service  collided  with  both  the  public            information and the  agency guidance objectives of  NEPA.  In            response, defendants argue that plaintiffs' interpretation of            the  previously discussed alternatives  is incorrect, because            Alternative  6  is  merely  a   scaled-down  modification  of            Alternative  2 which, as proposed in two phases in the RDEIS,            would  have been  far larger  and far  more intrusive  on the            environment than the new preferred Alternative 6.  Plaintiffs            reply that only Phase I and not Phase II of Alternative 2 was            seriously considered and analyzed prior to the development of            Alternative  6 in  the  final EIS.22    Defendants deny  this            assertion.                                            ____________________            22.  Plaintiffs point  to  several instances  where the  FEIS            stated that further environmental analysis would be conducted            in the future  if and  when Loon Corp.  sought permission  to            proceed with Phase II.                                         -48-                      We conclude, based on the record in this case, that            a supplemental  EIS was required.   The scope of  review of a            reviewing  court  is  the  APA's  "arbitrary  and capricious"            standard.   Marsh, 490 U.S.  at 375-76; see  Part III, supra.                        _____                       ___            _____            The  Court  in  Marsh   was  especially  deferential  to  the                            _____            "informed  discretion of  the responsible  federal agencies,"            due to the  "high level of  technical expertise" required  in            that case  to analyze  the relevant documents  regarding soil            composition  and  a  dam's  impact  on downstream  turbidity.            Marsh, 490 U.S. at  377, 379.  In the  instant case, however,            _____            nothing  in  the FEIS  indicates  that  any such  technically            complex scientific  analysis would  be required in  order for            this  court  to  determine  that  Alternative  6  involves  a            "substantial  change"  from  the   prior  proposals  at  Loon            Mountain.                      Alternative 6, adopted by the Forest Service as its            preferred alternative in the final EIS, does not fall "within            the   spectrum  of  alternatives"  that  were  considered  in            previous drafts, even if  Phase II of Alternative 2  had been            adequately analyzed prior to the FEIS.  Alternative 6 entails            a different  configuration of  activities and  locations, not            merely   a   reduced  version   of   a  previously-considered            alternative.   Phase II  of Alternative 2  proposed expanding            the ski area primarily on land that is not within the current            permit area; in  contrast, Alternative 6 squeezes much of its                                         -49-            expansion into that current permit area.  To accomplish this,            Alternative  6  widens existing  trails  so  as to  eliminate            buffers  that  currently  separate   the  trails.    It  also            envisions a 28,500-square-foot base lodge facility within the            existing permit  area.   And it  develops ski  trails, access            roads  and lifts on land that the prior alternatives had left            as  a  woodland  buffer between  the  old  ski  area and  the            proposed expansion area.   These are substantial changes from            the previously-discussed alternatives, not mere modifications            "within the spectrum" of those prior  alternatives.  It would            be  one thing  if  the  Forest  Service  had  adopted  a  new            alternative that was actually  within the range of previously            considered alternatives,  e.g., simply reducing the  scale of                                      ____            every  relevant particular.   It  is quite  another thing  to            adopt  a proposal  that is  configured differently,  in which            case  public commenters might have  pointed out, if given the            opportunity --  and the  Forest Service might  have seriously            considered  --   wholly  new   problems  posed  by   the  new            configuration  (even if  some of  the  environmental problems            present in the prior alternatives have been eliminated).                      Nor  can it  be  said that  these  changes are  not            "relevant to  environmental concerns."  They  could very well            have environmental  impacts that  the Forest Service  has not            yet considered,  simply based on their  more compact physical            location.   Indeed,  the RDEIS  said the  Forest  Service had                                         -50-            considered    expansion    alternatives   such    as   "other            configurations  on  the  existing  permit  area,"  but  these            alternatives "were eliminated  from detailed analysis because            they were not reasonable or feasible alternatives."  JA, vol.            I,  at 145-46.  Moreover, the plan selected, Alternative 6 in            the FEIS, would require that four million gallons  more water            be  withdrawn  annually  for snowmaking,  compared  with  the            closest alternative among the five  previously given detailed            consideration.   Whether or not  viewed in the  graphic terms            described  by  plaintiff  RESTORE  --  four  million  gallons            annually is  enough water  "to create  a lake  the size  of a            football field more than eleven  feet deep," RESTORE Brief at            33  --  this change  can be  expected  to have  a significant            enough  effect on  the environment  that additional  analysis            through a supplemental EIS would be required.   Cf. Roosevelt                                                            ___ _________            Campobello, 684 F.2d at 1055 (requiring a supplemental EIS to            __________            consider newly completed studies  regarding the small risk of            a major oil spill).  We conclude, based on the record in this            case, that Alternative 6 entails substantial changes from the            previously   proposed   actions   that   are    relevant   to            environmental concerns, and that   the Forest Service did not            present  those changes to the  public in its  FEIS for review            and comment.   Accordingly,  the Forest Service's  failure to            prepare a supplemental EIS was arbitrary and capricious.                             VI.   EXECUTIVE ORDER 11,990                             VI.   EXECUTIVE ORDER 11,990                                   ______________________                                         -51-                      Plaintiffs  contend  that   the  Forest   Service's            failure  to adequately  consider alternatives  to the  use of            Loon Pond and failure to develop adequate mitigation measures            violates  Executive Order  11,990,  as  well  as NEPA.    The            district court rejected this argument on essentially the same            grounds as the NEPA argument.                        On  appeal,  the   government  contends  that   the            Executive  Order  is not  enforceable,  at  least by  private            parties, because NEPA did  not confer rulemaking authority on            the President.  Plaintiffs argue that  the Executive Order is            accorded  the  full   force  and  effect  of  a   statute  or            regulation,  enforceable   under  the  APA.     We  have  not            previously decided this precise issue, nor need we decide  it            now.                      Even   assuming  that   the   Executive  Order   is            enforceable  under  the   APA,  it  does  not  apply  to  the            circumstances of this case.  The Executive  Order states that            federal agencies,                      to  the  extent permitted  by  law, shall                      avoid undertaking or providing assistance                      for new construction located  in wetlands                      unless the  head of the  agency finds (1)                      that there is no  practicable alternative                      to  such construction,  and (2)  that the                      proposed action  includes all practicable                      measures  to  minimize  harm to  wetlands                      which may result from such use.            Exec. Order No.  11,990,   2.  There is  no dispute that Loon            Pond  is a "wetland."   The Forest Service, however, contends                                         -52-            that the Loon Corp.  expansion plan does not  constitute "new            construction."      The   Executive   Order    defines   "new            construction" to include  "draining, dredging,  channelizing,            filling, diking, impounding, and related activities."  Id.,                                                                     ___            7(b).  Dubois claims that the use of Loon Pond as a source of            water for snowmaking and the discharge of used water from the            snowmaking  pipes into  Loon Pond  constitute "draining"  and            "filling" within the meaning of   7(b).                      We  agree with  the  Forest Service  that the  mere            expansion of a previously ongoing withdrawal of water from or            addition of  water to  a reservoir ordinarily  does not  fall            within the ambit of  the Executive Order's "new construction"            requirement.23   This  conclusion  is dictated  by the  plain            meaning  of the  phrase  "new construction,"  which does  not            ordinarily  encompass  the  mere  expansion   of  an  ongoing            activity,   unless  that  activity  itself  constituted  "new            construction."     Likewise,  in  common   usage,  the  words            "draining" and "filling"  generally refer to  activities that            eliminate a wetland to  convert it to another use, not to the            expansion  of  an activity  that  already  adds  water to  or                                            ____________________            23.  It  is conceivable, of  course, that an  expansion of an            already existing activity could fall within the ambit of  the                                      _____            Executive Order's "new construction" requirement.  This could            occur if  the expansion  effectuated a qualitative  change in            the nature of the  activity, rather than a  mere quantitative            enlargement of that activity.  On the record before us in the            instant case, we cannot say that plaintiffs have demonstrated            such a qualitative change.                                         -53-            withdraws  water  from  an existing  pond.    Our reading  is            buttressed  by common sense:  one would not ordinarily think,            without  more,  that a  federal  agency  operating a  dam  on            federal land would  be required, by  the Executive Order,  to            issue  notices and make findings every time water is added to            or  withdrawn from the dam (assuming that the dam has already            met all legal requirements to begin operation).                      Applying  the foregoing  analysis of  the Executive            Order to the record in the instant case, we conclude that the            situation  here  is  more akin  to  an  expansion of  ongoing            activities than to  "new construction."  The town  of Lincoln            is already  using Loon Pond as  a source of town  water.  And            Loon  Corp. has been using the Pond  as a source of water for            snowmaking, to  a depth of four  to six feet on  the average.            It is true  that the extent  of this intrusion  is less  than            would  be  the  case  under  the  proposed  expansion.    But            plaintiffs   did   not  challenge   these  currently-existing            intrusions, and  they have  not demonstrated a  factual basis            for their  conclusion that  there is something  qualitatively            "new" about the  proposed drawdown.  Thus, the  proposed Loon            Corp.  expansion project  --  by drawing  down a  substantial            additional amount of  water from Loon  Pond and refilling  it            with  East Branch  water or  with acidic  runoff --  does not            satisfy  the  definition  of  "new  construction"  within the            meaning of Executive Order 11,990, even though it constitutes                                         -54-            a major  action with  significant impact on  the environment,            triggering NEPA's EIS requirements.                          VII.   THE CLEAN WATER ACT ISSUES                          VII.   THE CLEAN WATER ACT ISSUES                                 __________________________                      The Clean Water Act (CWA) was "a bold and  sweeping            legislative initiative,"  United  States v.  Commonwealth  of                                      ___________________________________            P.R.,  721 F.2d 832, 834 (1st Cir. 1983), enacted to "restore            ____            and maintain the chemical, physical, and biological integrity            of the Nation's waters."   33 U.S.C.   1251(a) (1994).  "This            objective incorporated  a broad, systemic view of the goal of            maintaining and improving water quality:  as the House Report            on the legislation put it, 'the word "integrity" . . . refers            to a condition in which the natural structure and function of            ecosystems [are]  maintained.'"   United States  v. Riverside                                              ___________________________            Bayview Homes, Inc.,  474 U.S. 121, 132  (1985) (quoting H.R.            ___________________            Rep. No. 92-911, at 76 (1972)).  In contrast to  NEPA's focus            on  process,  the  CWA  is  substantive,  focusing  upon  the            "integrity of  the Nation's Waters, not  the permit process."            Massachusetts v. Watt, 716 F.2d at 952 (quoting Weinberger v.            _____________________                           _____________            Romero-Barcelo, 456 U.S. at 314).             ______________                      The  most important  component  of the  Act is  the            requirement that an NPDES permit be obtained, Commonwealth of                                                          _______________            P.R., 721 F.2d at 834; see 33 U.S.C.   1342  (1994), which we            ____                   ___            discuss in Part VII(B), infra.  In addition, the CWA requires                                    _____            states to adopt water quality standards which protect against            degradation   of  the   physical,  chemical,   or  biological                                         -55-            attributes  of  the state's  waters.   33 U.S.C.     1251(a),            1313(d)(4)(B) (1994);  40 C.F.R.    131.12 (1995).   This  is            discussed in  Part VII(C),  infra.24   Before turning  to the                                        _____            merits of these  issues, however, we  must first address  the            defendants' jurisdictional arguments.                      A.   Jurisdictional Issues                      A.   Jurisdictional Issues                           _____________________                      As  a threshold  matter, defendants  argue that  we            need not  address  the merits  of plaintiffs'  claim that  an            NPDES permit  was required,  because the court  lacks subject            matter jurisdiction.  Defendants  argue that the NPDES permit            issue  is not  properly raised  because plaintiffs  failed to            provide  notice  of  their  intentions to  sue  Loon  Corp.25            Defendants contend that Section  505(b) of the CWA "prohibits            citizen  plaintiffs from  filing [suit  to enforce  the CWA's            NPDES  permit requirement] until at least  60 days after they            have provided notice of their intent  to sue" to EPA, to  the            State  in which the  alleged violation occurred,  and to "any                                            ____________________            24.  The  third major  aspect  of  the  CWA  is  the  use  of            industry-specific  effluent standards to  control the quality            of effluent  that can  be attained using  available pollution            control technology.  33 U.S.C.    1311, et seq.  This  aspect                                                    _______            of the CWA is not in issue in this litigation.            25.  The Forest Service also asserts  that no claim can stand            against it as a defendant  because EPA regulations place  the            responsibility   for  obtaining   an  NPDES  permit   on  the            "operator"  of  a covered  activity;  the  Forest Service  is            merely  the owner  of the  land on  which the  activity takes            place.  This argument is unavailing:  if an NPDES permit were            required,  as plaintiffs  contend,  then  the Forest  Service            should  not have granted a  special use permit  to Loon Corp.            until the NPDES permit had been obtained.                                         -56-            alleged  violator"  of the  standard,  limitation,  or order.            Forest  Service  Brief at  37; see  33  U.S.C.    1365 (b)(1)                                           ___            (1994).  It is undisputed, however, that Dubois, the original            plaintiff, did provide  notice to the  Forest Service of  his            intent to sue.   The  Forest Service was  the only  defendant            that he did sue; and he alleged only that the Forest Service,            not Loon Corp., had  violated federal statutes, including the            CWA, in approving Loon Corp.'s expansion plan.   The district            court therefore  had jurisdiction to hear  Dubois' claim that            the Forest Service had approved the  project illegally by not            ensuring that  an NPDES  permit was obtained.   His  properly            raised NEPA claim subsumed the CWA claim.26                      Thus,  even  if Loon  Corp.'s  lack  of notice  did            deprive us  of jurisdiction  to hear  Dubois' claim  that the            Forest  Service violated  the  CWA by  failing to  require an            NPDES permit  before approving  the special use  permit, this                                            ____________________            26.  Thereafter, Loon Corp. chose to intervene in the action            in order to protect its business interests.  When Loon Corp.            voluntarily intervened in an ongoing action, it "step[ped]            into the shoes" of the original defendants -- who were            properly before the court -- insofar as the 60-day notice is            concerned.  Kitlutsisti v. ARCO Alaska, Inc., 592 F. Supp.                        ________________________________            832, 842 (D. Alaska 1984), vacated as moot, 782 F.2d 800 (9th                                       _______________            Cir. 1986); cf. E.H. Ashley & Co. v. Wells Fargo Alarm                        ___ ______________________________________            Servs., 907 F.2d 1274, 1277 (1st Cir. 1990) (When insurer, as            ______            subrogee, steps into shoes of insured, insurer "has no            greater rights against a third party" than the insured had;            insurer "was on constructive notice of the provisions of            [insured's] contract [with third party] because it occupies            the shoes of its insured.").                                         -57-            would  not  remove the  NPDES permit  issue from  the case.27            Regardless of whether any of the remedies provided in the CWA            would be available to Dubois in light of his asserted failure            to provide proper  notice of  his intent to  sue, this  court            would still have the authority  and the obligation to decide,            under NEPA, whether an NPDES permit is required in this case.            See  Keating v.  FERC, 927  F.2d 616,  624 (D.C.  Cir. 1991).            ___  ________________            This  is because, as  noted supra,  NEPA requires  the Forest                                        _____            Service to identify in  its EIS all federal permits  that the                                            ____________________            27.  Nor is RESTORE precluded from pursuing its claims on the            ground that it  did not  notify defendants of  its intent  to            bring suit.  RESTORE was an intervenor, merely joining a suit            that was already  in esse; it did not  bring a new suit.   As                              _______            such,  RESTORE was not required  to notify Loon  Corp. of its            intent to  bring suit.    We need  look no  further than  the            statutory  language itself:    "No action  may be  commenced"                                                               _________            without  the requisite notice.  33 U.S.C.   1365(b).  RESTORE            did not "commence" this action; it  intervened in an existing            action.   Moreover, the purpose of  the notice requirement --            to give  the parties  an opportunity to  resolve the  problem            administratively or  to settle  the matter without  resort to            the  courts,  before  the  parties  have assumed  adversarial            positions brought about by litigation -- no longer applied at            the  time RESTORE intervened in the ongoing suit.  Hence, the            purpose of  the notice  requirement would  not  be served  by            applying it to an intervenor like RESTORE.                        Nor  are  we faced  with  the  kind of  equitable            considerations  discussed in  Hallstrom v.  Tillamook County,                                          ______________________________            493  U.S. 20,  29 (1989),  in holding  an  original plaintiff            strictly  to the  notice  requirement.   Unlike the  original            plaintiff, who has full  control over when to file  the suit,            an  intervenor like RESTORE has no control over the timing of            the initial  action.  Because  this action was  already being            litigated on  an expedited schedule, RESTORE  could well have            lost  the  opportunity to  protect  its interests  if  it had            served  a notice  of intent to  sue and  then waited  60 days            before intervening  in the  expedited case.   The balance  of            equities here favors permitting RESTORE to pursue its claims.                                         -58-            project  needed in  order to  comply with  applicable federal            law.   40 C.F.R.    1502.25(b).   There is  no question  that            plaintiffs  have properly  invoked  the jurisdiction  of this            court, pursuant to 28 U.S.C.   1331 (general federal question            jurisdiction), to  challenge  defendants' failure  to  comply            with  NEPA  in this  regard.   For  these reasons,  we reject            defendants' jurisdictional argument and turn to the merits.                      B.   NPDES Permit                      B.   NPDES Permit                           ____________                      Section 301(a) of the Clean Water Act prohibits the            "discharge of  any pollutant" into navigable  waters from any            "point  source" without an NPDES permit.  33 U.S.C.   1311(a)            (1994).   Plaintiffs argue  that the Forest  Service violated            Section 301(a) by  failing to obtain  an NPDES permit  before            approving Loon's plan  to remove water from  the East Branch,            use  it to pressurize and prevent  freezing in its snowmaking            equipment, and then  discharge the used water into Loon Pond.            Section 301(a)  prohibits the "discharge of  any pollutant by            any person"  except as authorized pursuant to a permit issued            under the  Act.   Id.; see  33 U.S.C.     1342, 1344  (1994);                              ___  ___            Commonwealth of P.R., 721  F.2d at 835.  The  term "discharge            ____________________            of  a pollutant" is defined as "any addition of any pollutant            to  navigable waters  from any  point source."   33  U.S.C.              1362(12)(A) (1994).  The definition of a "pollutant" includes            "dredged  spoil, solid  waste, . .  . sewage, garbage,  . . .            biological materials, .  . .  heat,  . .  . sand, .  . .  and                                         -59-            agricultural waste."  33 U.S.C.   1362(6) (1994).  "Navigable            waters" is  defined as "the waters of the United States."  33            U.S.C.    1362(7) (1994).   The district court  found and the            parties agree that Loon Pond is a water of the United States,            that  the  East Branch  water  discharged  from Loon  Corp.'s            snowmaking pipes  into Loon Pond  is a  pollutant within  the            meaning of the CWA,28 and that the pipe discharging the water            into Loon Pond  is a  point source.   The question, then,  is            whether  there is  an "addition"  of pollutants to  Loon Pond            when  water containing  pollutants  is discharged  from  Loon            Corp.'s snowmaking equipment into Loon Pond.                      The district  court answered  this question in  the            negative.   The court reasoned that the intake water from the            East Branch of the  Pemigewasset River and the water  in Loon            Pond are  all part of "a singular  entity, 'the waters of the                                                        ___            United States,'" and  therefore that "the bodies of water are            not  to   be  considered  individually   in  this   context."            Memorandum  and Order at 13.  Because it interpreted the East            Branch  and  Loon  Pond to  be  part  of  the same  "singular            entity,"  the court concluded that the transfer of water from            the  East  Branch into  Loon  Pond  would not  constitute  an                                            ____________________            28.  It  contains  at least  the  same  pollutants that  were            present  in the water from the East Branch before intake into            the pipes.                                         -60-            "addition" into the Pond, at least if the pipes  added no new            pollutants.29  Id.                           ___                      There is no basis  in law or fact for  the district            court's "singular  entity" theory.  The error  in the court's            reasoning  is highlighted by an  analogy the court  drew:  it            hypothesized a pond in  which "we place a  pipe . . .  and we            pump  the pond water from the bottom  to the surface.  No one            would  reasonably  contend that  internal  pumping  causes an            'addition' of  pollutants to  the pond.    Instead, we  would            consider  the pumping  to be  a redistribution  of pollutants            from one  part of the pond to  another."  Id. at  12.  Such a                                                      ___            situation is not at all analogous to the instant case.  There            is no barrier separating the water at the top of  a pond from            the  water  at  the  bottom  of  the  same  pond;  chemicals,                                            ____________________            29.  This premise is a disputed issue.  Plaintiffs argue that            allowing the water from  the East Branch to flow  through the            pipes before discharge into Loon Pond results in the addition            of not insignificant  amounts of oil and  grease.  Defendants            dispute this, which ordinarily would result in a reversal of            summary judgment on  this issue.  See Fed. R.  Civ. P. 56(c).                                              ___            Defendants argue,  however, that  plaintiffs failed  to raise            this factual dispute before the  agency in timely fashion, so            it  is not preserved for our review.  Plaintiffs respond that            they  could  not  have  raised  this  dispute  prior  to  the            publication  of the FEIS  because the Forest  Service did not            even collect the  data regarding oil  and grease until  after            issuing its decision  (the ROD).   We need  not resolve  this            dispute;  we hold infra  that, even if  the pipes add  no new                              _____            pollutants, the  transfer of  East Branch water  through Loon            Corp.'s  privately owned  pipes and  its discharge  into Loon            Pond constitutes  a point source  discharge of at  least some            pollutants into the Pond,  thereby requiring an NPDES permit.            Upon remand,  the parties are not  foreclosed from presenting            their factual disputes to  the EPA if they decide  to contest            the issuance of that permit.                                         -61-            organisms, and even heat are able to pass from the top to the            bottom or vice versa, at rates determined only by the laws of                      __________            science.                        In contrast, the transfer  of water or its contents            from  the East Branch to Loon Pond would not occur naturally.            This is more analogous to the example the district court gave            from the opposite end of the spectrum:  where water is  added            "from an external source"  to the pond and an NPDES permit is            required.  Id.  As in this converse  example, the East Branch                       ___            and Loon Pond are not the same body of water; the East Branch            is indeed  a source  "external" to  Loon Pond.   We  can take            judicial notice that the Pemigewasset River was for years one            of the most  polluted rivers in  New England, the  repository            for  raw  sewage from  factories and  towns.   It  emitted an            overwhelming  odor  and  was  known  to  peel  the paint  off            buildings  located on  its banks.   Yet,  under  the district            court's theory,  even if  such conditions still  prevailed, a            proposal to withdraw water from the Pemigewasset to discharge            it into Loon Pond would be analogous to moving water from the            top to the bottom of  a single pond; it would not  constitute            an "addition" of pollutants "from an external source" because            both the East Branch and Loon Pond are part of the "singular"            waters of the United States.30  The district court apparently                                            ____________________            30.  Again,  we  leave  to  one  side  the  possibility  that            additional pollutants, such as oil and grease, would be added            when the water flowed through the  system of pipes.  If  that                                         -62-            would reach  the same  conclusion regardless of  how polluted            the Pemigewasset  was or how pristine  Loon Pond was.   We do            not believe Congress intended such an irrational result.                      The district court's analysis also ignores the fact            that water  would pass  through Loon Corp.'s  privately owned            pipes on  its way from the  East Branch to Loon  Pond.  Thus,            nature  would not regulate --  and neither the Forest Service            nor the court could know in advance -- whether any pollutants            would be added to the  water as it passes through the  pipes.            The district court concluded that the  East Branch water does            not "lose[] its  status as  navigable waters" even  if it  is            "commercially exploited," Memorandum and Order at 18, as long            as  Loon  Corp.  does  not  "plan[]  to  add  any  additional            pollutants  to  the East  Branch  water  that it  intends  to            discharge into  Loon Pond."  Id.  at 10.  The  court does not                                         ___            indicate  whether anyone assures  compliance with  the "plan"            that   no  pollutants   be   added  during   the   commercial            exploitation, or if so  who makes that determination and  how            it is  made, at  a  time when  the project  is  still just  a            proposal and not yet  a fait accompli.  Cf.  Massachusetts v.                                                    ___  ________________            Watt, 716 F.2d at  952.  The district court's  analysis would            ____            apply equally if the water passed through a paper mill on its            way to Loon Pond,  instead of through snowmaking pipes.   And            the analysis is equally unpersuasive in either  circumstance.                                            ____________________            were true, that alone would require an NPDES permit.                                         -63-            Either  way, the  water leaves  the domain  of nature  and is            subject  to  private  control  rather  than   purely  natural            processes.  As such, it has  lost its status as waters of the            United States.                        Other  courts have  held  that an  NPDES permit  is            required  before pollutants  may  be moved  from one  body of            water of the United States to another.  See Dague  v. City of                                                    ___ _________________            Burlington, 935 F.2d 1343, 1354-55  (2d Cir. 1991), rev'd  in            __________                                          _________            part on other grounds, 505 U.S. 557 (1992); Committee to Save            _____________________                       _________________            Mokelumne  River v. East Bay  Mun. Util. Dist.,  13 F.3d 305,            ______________________________________________            308-09  (9th Cir. 1993), cert. denied, 115 S. Ct. 198 (1994).                                     ____________            The  Eleventh Circuit has held that such a permit is required            in  order to move dredge  materials by a  point source within                                                                   ______            the same water  body.   United States v.  M.C.C. of  Florida,            ________                _____________________________________            Inc., 772 F.2d 1501, 1506 (11th Cir. 1985).            ____                      Even  the  Forest  Service  does  not  support  the            district court's conclusion that mere transfers of water from            one water body to  another, without more, never result  in an            addition of pollutants to  waters of the United States.   The            Forest Service  recognizes that "[i]t is  possible that water            transferred between unrelated water bodies of different water            quality would properly  be regarded as  losing its status  as            'water [sic] of the United  States,'" requiring a Section 402            permit.  Forest  Service Brief at 47.  We  agree.  The Forest            Service qualifies this insight, however.  It argues that Loon                                         -64-            Corp.  "moves  water between  hydrologically  connected water            bodies  containing water of  like quality"  which, therefore,            does not "introduce pollutants  'from the outside world' into            the receiving waters."  Id.  Accordingly, the Forest  Service                                    ___            argues  no permit is required.   We disagree  with the Forest            Service's qualification.                      First, there  is nothing in the  statute evincing a            Congressional intent to distinguish between "unrelated" water            bodies  and  related   or  "hydrologically  connected"  water            bodies.    The  CWA simply  addresses  "any  addition of  any            pollutant to  navigable waters  from any point  source."   33            U.S.C.   1362(12)(A).  Nor  is the purpose of the  CWA served            by means of  such a  distinction.  If  anything, the  purpose            would be  better served by  a distinction between  de minimis                                                               __ _______            transfers  of   water  and  transfers  which   add  some  not            insignificant  amount of pollutants  to the  transferee water            body.  But no such distinction appears in the statute, and to            imply  one would  thrust some  agencies with no  expertise on            environmental issues  into the  role of deciding  whether the            CWA's environmental protections should even be considered.31                                            ____________________            31.  As discussed in Part  VII(C), infra, in another context,                                               _____            the Forest Service argues that it is the EPA, not the  Forest            Service, that has the expertise and the congressional mandate            to  determine whether  a proposed  project meets  state water            quality standards.   We agree.   The availability  of EPA  to            perform  this  task is  another  reason why  an  NPDES permit            should  be obtained  before the  Forest Service  approves the            Loon  Corp. expansion  plan.   See  note 32  and accompanying                                           ___            text, infra.                  _____                                         -65-                      More    compellingly,    the    Forest    Service's            "hydrological connectedness" proposal  ignores a  fundamental            fact about  water:  the direction  of flow.  It  is true that            Loon Pond and the  East Branch of the Pemigewasset  River are            "hydrologically connected"  in the sense that  water from the            Pond flows down and  eventually empties into the River.   But                       ____            water from  the East  Branch certainly  does not flow  uphill                                                                   ______            into  Loon Pond, carrying  with it  the pollutants  that have            undisputedly accumulated  in the East Branch  water from some            of the other sources  of water entering the East  Branch from            upstream.    Under  such  circumstances,   defendants  cannot            credibly argue  that these water  bodies are so  related that            the transfer  of water from the  East Branch to  Loon Pond is                                   ____                  __            not an  "addition" of water  from one  of the "waters  of the            United States"  to another.   We therefore reject  the Forest            Service's "hydrological connectedness" proposal.                      Likewise,  we reject its  assertion, unsupported by            the  record, that  in some  general sense  the two  bodies of            water are  "of like  quality."   First, this  is the kind  of            substantive  question  to  which  the  EPA  would  apply  its            technical  expertise in  deciding whether  to issue  an NPDES            permit  and what  conditions to  attach to  such a  permit in            order  to protect  water  quality.   It  is not  the kind  of            threshold  question that  the  Forest Service  or this  court                                         -66-            should address in deciding whether to  subject the Loon Corp.            expansion proposal to the NPDES permitting process.                        Second,  the   Forest  Service  does   not  contest            plaintiffs' assertion that there are at least some pollutants            in the East  Branch that do not exist naturally in Loon Pond.            The  Final EIS  itself noted  that the  East Branch  has been            designated  by the  New Hampshire  legislature as  a  Class B            Waterway,  a  lower  quality  designation than  the  Class  A            quality rating  of Loon Pond.  JA, vol. II,  FEIS at 91.  The            difference in classifications -- the East Branch as a Class B            waterway,  Loon Pond as Class  A -- evinces  a higher quality            level for the Pond than for the River, and  belies the Forest            Service's assertion that the two bodies of water are "of like            quality."                      Even  if the  East  Branch were  rated in  the same            general class as Loon Pond (Class A), that would not mean the            two bodies of water  were identical in quality, such  that an            NPDES permit  would be unnecessary.  The East Branch contains            different  organisms than  Loon  Pond,  inter  alia,  Giardia                                                    ___________            lambia.    Loon Pond  is also  colder  overall than  the East            Branch, and its  lower depths are significantly  colder.  The            two  bodies  of   water  also  have  different   chemistries,            especially the  low level of  phosphorus in Loon  Pond, which            affects  its  biological composition.    Nor  has the  Forest            Service argued  that all such pollutants  would be eliminated                                 ___                                         -67-            before any East  Branch water  would be pumped  up to  refill            Loon  Pond after depletion  by Loon Corp.'s  snowmaking.  The            Service  cannot say,  therefore, that  the discharge  of East            Branch  water  into  Loon  Pond  would  not  result  in  "any            pollutants"  being   added  to  the   Pond.    33   U.S.C.               1362(12)(A).                      Aside  from the  difficulty of  defining a  general            concept  such  as  "of  like quality,"  it  would  defeat the            purpose  of  the  CWA's   permit  process  to  interpret  the            statutory language "discharge of  any pollutant," 33 U.S.C.                                                ___            1311(a),  to be  implicitly qualified  by the  phrase "except            when  the transferee body of water  is of like quality."  The            Forest  Service  is simply  wrong  to  analogize the  present            situation to  a dam that  merely accumulates the  same water,                                                              ____            see National  Wildlife Fed'n v.  Gorsuch, 693  F.2d 156,  175            ___ ____________________________________            (D.C.  Cir. 1982),  or a  pump storage  facility  that stores            water from  one  source in  a different  place, see  National                                                            ___  ________            Wildlife Fed'n v. Consumers  Power Co., 862 F.2d 580,  589-90            ______________________________________            (6th Cir. 1988), as distinguished from moving different water            from one  flowing water body into  another stationary, colder            body.   We  cannot allow  such a  watering down  of Congress'            clear statutory protections.                      We hold  that the Pemigewasset River  and Loon Pond            are  two distinct "waters of the United States," and that the            proposed transfer of  water from one to the other constitutes                                         -68-            an "addition."  Where,  as is undisputed here,  the discharge            is through  a  point source  and  the intake  water  contains            pollutants,  an  NPDES  permit   is  required.    The  Forest            Service's determination  to the  contrary  was arbitrary  and            capricious and not  in accordance with law.   See 5  U.S.C.                                                            ___            706(2)(A).                      C.   Violation of State Water Quality Standards                      C.   Violation of State Water Quality Standards                           __________________________________________                      Plaintiff  Dubois claims  that state  water quality            standards are violated because  of the quality of water  that            would enter Loon Pond.  This water would come from one of two            sources:  some of  it would come from snowmelt  that replaces            the water that Loon Corp. has pumped out of Loon Pond to make            snow; and  some would be water that Loon Corp. has taken from            the East Branch for snowmaking  and then discharged into Loon            Pond.    Dubois   contends  that   Loon  Corp.'s   snowmaking            operations pose an impermissible  threat to Loon Pond because            influxes  of  East  Branch  water  and  snowmelt --  the  two            principal  sources of water to refill the Pond -- could alter            the Pond's naturally occurring  pH, bacteria, oil and grease,            and turbidity levels.                      On the merits of the water quality standards issue,            Dubois  argues that  the CWA requires  states to  adopt water            quality  standards which protect  against degradation  of the            physical, chemical,  or biological attributes  of the state's            waters.   33 U.S.C.     1251(a),  1313(d)(4)(B); 40 C.F.R.                                            -69-            131.12.   The greatest protection is  afforded to Outstanding            Resource  Waters,  including  Loon   Pond,  as  to  which  no            degradation  is permitted.   40  C.F.R.    131.12(a)(3); N.H.            Code Admin. R. Env-Ws  437.06.  Dubois contends that  the ski            resort's proposal to draw down  a significant amount of water            changes the  physical structure of Loon  Pond; that refilling            it with East Branch  water containing phosphorus (and through            pipes that  might  contain oil  and  grease) or  with  acidic            runoff would change the Pond's chemical composition; and that            the  transfer  of  organisms   such  as  Giardia  lambia  and            chemicals  such as phosphorus  into the Pond  would alter its            biological  attributes.   Because we  hold infra  that Dubois                                                       _____            cannot,  in  a  challenge   to  the  Forest  Service's  FEIS,            collaterally  attack the state's  certification of compliance            with state  water quality standards,  we need  not reach  the            merits of the state water quality standards issue.                      Defendants  argued  in  the  district   court  that            Dubois'  CWA claim  was not  properly presented,  that Dubois            should  have raised  his  objections  by  exhausting  various            administrative remedies and filing a timely appeal in the New            Hampshire Supreme Court.  They argued that the federal agency            (Forest Service) and the federal court lack the authority  to            review   independently   and   determine   the   validity  of            requirements  imposed under state law  or in a  state's   401            certification, see 33 U.S.C.   1371(c)(2)(A) (1994), and that                           ___                                         -70-            such  authority  is expressly  delegated  to  the states,  33            U.S.C.   1341(a) (1994).                        The district court agreed.  It held that, "[i]f the            plaintiffs in this case were dissatisfied with the state's               1341   certification,   they   could   have   challenged  the            certification by exhausting state administrative remedies and            filing  a  timely  challenge  in the  New  Hampshire  Supreme            Court."  Memorandum and Order at 21-23.  That is true insofar            as it goes.  The question, however, is  whether a state court            action is the plaintiffs'  only recourse, or whether,  in the                                       ____            alternative, they had  a right to challenge in  federal court            the federal agency's issuance of a federal permit in reliance            on  the  state  certification,  where  the  basis  for  their            challenge  is that  the  project fails  to  meet the  minimum            standards of the federal Clean Water Act.                      Defendants may be correct  that the cases they rely            upon hold that the state courts are the only fora in which to            challenge  whatever requirements  the state adds,  beyond the                                                        ____   ______            minimum  required by the CWA.   Those cases  do not, however,            deprive  the federal courts  of jurisdiction to  hear a claim            that defendants have violated the  floor level of clean water                                               _____            requirements imposed by the CWA, i.e., the requirements which                                             ____            the state regulations share with the federal CWA.                                  _____                                         -71-                      The cases relied upon by the  defendants and by the            district  court32  dealt  with  challenges  to   the  state's            imposition of  more stringent  controls on a  project's water                           ______________            pollution effluent.  Such cases relied on the language of the            CWA itself,  as well  as basic  principles of  federalism, to            support their  holdings that the CWA  "empower[s]" the states            "to set more stringent water quality standards than those set            by the Act and its  attendant requirements" to prevent  water            pollution.    Marathon  Dev.  Corp.,  867  F.2d  at  99;  see                          _____________________                       ___            Commonwealth  of  P.R.,  721   F.2d  at  834  n.3;  Roosevelt            ______________________                              _________            Campobello,  684 F.2d at 1056.   However, the  states may not            __________            set  standards that are less  stringent than the  CWA's.  See                                                                      ___            Marathon  Dev. Corp.,  867 F.2d at  99.  Simply  put, the CWA            ____________________            provides  a federal  floor, not  a ceiling,  on environmental            protection.   If a state seeks to  approve a standard that is            less  stringent than  the federal  CWA's floor,  or  seeks to            apply a standard  in a  way that is  otherwise invalid  under            federal  law, then  federal agencies  and federal  courts are            _______            obligated to resolve  the application of  the federal CWA  in                                            ____________________            32.  They  rely  particularly  on  our  Roosevelt  Campobello                                                    _____________________            decision, 684 F.2d at 1056, but also on Puerto Rico Sun  Oil,                                                    ____________________            8 F.3d  at 81; United States v. Marathon Dev. Corp., 867 F.2d                           ____________________________________            96, 102 (1st Cir. 1989); Lake Erie Alliance for Protection of                                     ____________________________________            Coastal Corridor v. U.S.  Army Corps of Eng'rs, 526  F. Supp.            ______________________________________________            1063,  1074  (W.D.Pa. 1981),  aff'd mem.,  707 F.2d  1392 (3d                                          __________            Cir.), cert. denied, 464 U.S. 915 (1983).  All of these cases                   ____________            involved  states imposing  more  stringent controls  on water            pollution than required by federal law.                                         -72-            any case that  properly comes  before them.   See Keating  v.                                                          ___ ___________            FERC, 927 F.2d at 624.            ____                      The  Forest Service  asserts another  defense, also            relied on by  the district court,  which carries more  force.            Section 511(c)(2)(A)  of the  CWA precludes federal  agencies            from invoking NEPA to authorize their review of "the adequacy            of  any  certification under  section  [401]."   33  U.S.C.              1371(c)(2)(A).  Dubois points  out that, in the circumstances            of this  case, Section 511(c)(2)(A)  does not apply  when the            discharge  of  pollutants in  question  is  not regulated  by            effluent  limitations established  under CWA  Sections 301(b)            and 302,  33 U.S.C.     1311(b) & 1312,  or by  an applicable            standard of performance  under CWA Sections  306 and 307,  33            U.S.C.    1316 & 1317.  Dubois  Brief at 27; see 33 U.S.C.                                                            ___            1341(a).    Such  effluent  limitations   and  standards  are            established  in NPDES permits  for point  source dischargers.            33  U.S.C.    1311(b),  1312, 1316,  1317, 1362(11).   Dubois            then tries  to bootstrap  the fact  that  the Forest  Service            failed  to apply for an NPDES permit into a circumstance that            renders Section  511(c)(2)(A) inapplicable.  Dubois  Brief at            27-28.  His argument is without merit.                        It is true that the Forest Service was obligated to            obtain an NPDES permit before permitting Loon Corp. to expand            its  ski resort.    See Part  VII(B),  supra.   However,  the                                ___                _____            violation of  that statutory  obligation is a  separate issue                                         -73-            from the state water  quality standards issue.   For purposes            of the  latter, the  fact  is that  there  do not  exist  any            effluent limitations under CWA Sections 301(b) or 302 nor any            standards of  performance under CWA Sections 306  or 307 that            apply to  the discharge of  East Branch water  and pollutants            into Loon Pond.  Therefore, whether or not the Forest Service            actually   obtained  the   required  NPDES   permit,  Section            511(c)(2)(A) applies, and  Dubois' challenge to the  adequacy            of the state's Section  401 certification may not proceed  in            this court.                        As the federal defendants argued in their brief and            as we held in Roosevelt Campobello, 684 F.2d at 1056, Dubois'                          ____________________            challenge  must be  addressed as  part of  EPA's "independent            obligation to ensure that EPA-issued NPDES permits meet state            water quality standards."  Forest Service Brief at 29; see 33                                                                   ___            U.S.C.     1311(b)(1)(C)  (1994).33   If,  upon  remand,  EPA            determines  that a  permit  is appropriate,  with or  without                                            ____________________            33.  The availability of  EPA to perform this task is another            reason supporting our holding in  Part VII(B), supra, that an                                                           _____            NPDES permit is required.   See supra  note 30.  The  federal                                        ___ _____            CWA  requires that  any state  certification ensure  that the            minimal  federal  standards  have   been  adhered  to.    The            government  is correct  that  the  Forest  Service  possesses            neither  the  congressional  mandate  nor  the  expertise  to            second-guess  state water  quality certifications.   But  EPA            does; and the CWA envisions that EPA make those assurances in            the context of deciding whether to issue an NPDES permit.                                         -74-            conditions or limitations,34 and if  plaintiffs disagree with            EPA's  decision, then they may challenge such decision in any            manner that is  available to them at the time.   But EPA, not            the  Forest  Service,  is   the  proper  entity  to  evaluate            compliance with state water quality standards.                                      CONCLUSION                                      CONCLUSION                                      __________                      We affirm the district  court's denial of defendant            Loon's  motion  to dismiss  plaintiff  Dubois'  complaint for            failure to  meet his burden  of establishing his  standing to            sue.                      We  reverse the  district court's grant  of summary            judgment  in favor  of  defendants and  reverse the  district            court's denial  of summary  judgment in favor  of plaintiffs,            with                                             ____________________            34.  Whether  or not  the  NHDES certifies  that state  water            quality  standards have  been  met, EPA  would  be "bound  to            include in the federal permit 'any more stringent limitations            .  . . established pursuant  to any State  law or regulations            (under  authority preserved  by  section  510).'"   Roosevelt                                                                _________            Campobello,   684  F.2d   at  1056   (quoting  33   U.S.C.               __________            1311(b)(1)(C)).                                         -75-            respect to                       (1) the NEPA/EIS issue relating to consideration of            alternatives,                       (2) the supplemental EIS issue, and                       (3) the NPDES permit issue.                       We  affirm the  district court's  grant of  summary            judgment  in  favor of  defendants  and  affirm the  district            court's  denial of  summary  judgment in  favor of  plaintiff            Dubois, with respect to the alleged violations of                       (1) Executive Order 11,990, and                       (2) state water quality standards under the CWA.                      Affirmed in part; reversed in part; remanded; costs                      Affirmed in part; reversed in part; remanded; costs                      ___________________________________________________            on appeal awarded to plaintiffs.            on appeal awarded to plaintiffs.            _______________________________                                         -76-
