Dubois v. US Dept, of Agriculture CV-95-50-B 06/30/95
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Roland Dubois, et al.
v. Civil No. 95-50-B
U. S. Dept, of Agriculture, et al.
O R D E R
The United States Forest Service has approved a plan by Loon
Mountain Recreation Corporation to improve and expand a ski area
it operates in part on federal land. Roland Dubois argues that
the Forest Service acted illegally in approving Loon's expansion
plans because: (1) the approval violates the Clean Water Act
("CWA") by allowing Loon to discharge water taken from the East
Branch of the Pemigewasset River into Loon Pond without first
obtaining a National Pollution Discharge Elevation System
("NPDES") permit, see, e.g., 33 U.S.C.A. § 1342; (2) the approval
violates state water guality standards because it permits Loon to
degrade the guality of Loon Pond; and (3) the Environmental
Impact Statement ("EIS") prepared by the Forest Service to
evaluate Loon's proposal failed to comply with the National
Environmental Policy Act ("NEPA"), 42 U.S.C.A. § 4332. In his
current motion, Dubois seeks to preliminarily enjoin the Forest Service from authorizing Loon to proceed with its expansion
plans.
Dubois is not entitled to a preliminary injunction unless he
can establish that he is likely to prevail on one or more of his
claims for relief. See Narraqansett Indian Tribe v. Guilbert,
934 F.2d 4, 5 (1st Cir. 1991). For reasons that I will describe
briefly below and in greater detail in a future memorandum
opinion, I conclude that Dubois is unlikely to succeed on the
merits of any of these claims.
First, Loon does not need an NPDES permit in order to
discharge water from the East Branch into Loon Pond. An NPDES
permit is reguired only when the activity in guestion will result
in the "discharge of any pollutant." 33 U.S.C.A. § 1342(a)(1).
The CWA defines "discharge of a pollutant" as "any addition of
any pollutant to navigable waters from any point source." 33
U.S.C.A. § 1362. Loon's proposal does not reguire an NPDES
permit because pumping water from the East Branch into Loon Pond
diverts and combines navigable waters rather than adds any
pollutant to said waters from an external source. See National
Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 589 (6th
Cir. 1988); National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 177
(D.C. Cir. 1982). Since Loon does not propose "any addition" of
2 any pollutant to Loon Pond, it need not obtain an NPDES permit.
Second, the Forest Service did not act illegally in
concluding that Loon's proposed use of the pond would comply with
New Hampshire's water guality standards. The CWA reguires each
state to develop and administer comprehensive water guality
standards. 33 U.S.C.A. § 1313. If an applicant for a federal
permit proposes an activity that may result in "any discharge
into navigable waters," the applicant must obtain a certification
from state authorities that the proposed activity will not
violate state water guality standards. 33 U.S.C.A. § 1341(a).
The federal permitting authority is not authorized to review the
adeguacy of a certification pursuant to this section even if the
agency is reguired to prepare an environmental impact statement
before issuing the permit. 33 U.S.C.A. § 1371(c)(2)(A); see
generally. New England Coalition on Nuclear Pollution v. United
States Nuclear Regulatory Comm'n, 582 F.2d 87, 98 (1st Cir. 1978)
(citing § 1371(c)(2)(A) and concluding that NEPA did not reguire
the NRC to independently review the adeguacy of conclusions
committed by law to the special expertise of another federal
agency); Roosevelt Campobello Int'l Park Comm'n v. United States
ERA, 684 F.2d 1041, 1057 (1st Cir. 1982) (citing § 1371(c) (2) and
concluding that the EPA lacked authority to review the adeguacy
3 of conditions imposed by the state in issuing a CWA
certification). Instead, challenges to the validity or adeguacy
of state certifications must be made in state court. Roosevelt
Campobello, 684 F.2d at 1057. In the present case, the New
Hampshire Department of Environmental Services certified that the
proposed use of Loon Pond would not violate New Hampshire's water
guality standards and that certification went unchallenged in
state court. Thus, the Forest Service did not act unlawfully in
relying on the state's certification.
Finally, Dubois has not demonstrated that he is likely to
succeed on his claim that the Forest Service prepared an
inadeguate EIS. Dubois argues that the EIS is deficient because:
(1) it fails to include certain information that the Forest
Service needed to properly evaluate the proposal's effect on the
aguatic biology of Loon Pond; and (2) the EIS fails to identify
and assess reasonable alternatives presented during the review
process. Given the relatively forgiving standard under which
such claims are judged, see generally, Valiev Citizens for a Safe
Environment v. Aldridge, 886 F.2d 458, 459-60 (1st Cir. 1989),
neither argument rises to the level of a NEPA violation.
The EIS concludes that the pond's ecosystem will not change
significantly if Loon is allowed to proceed with its proposal
4 "since the pond ecosystem is relatively simple, is comprised of
common organisms and the area most affected would be the shallow,
narrow ring around the margin of the pond that has been subject
to past fluctuations." The Forest Service bases this conclusion
on data from several sources including water samples taken from
the pond in 1988, a sampling of invertebrates from the pond's
narrow band of shallow water, observations of the pond at various
times including the period following the 10.5-foot drawdown of
the pond in 1989, and historical information concerning other
regular drawdowns. Dubois suggests that this information should
have been supplemented with additional studies. While it is
always possible to identify additional data that might have been
collected to more thoroughly examine a potential impact, the
record does not establish that the information Dubois claims is
missing was reasonably necessary to a reasoned evaluation of the
potential impact of the project on the aguatic biology of Loon
Pond. Therefore, the failure to include this information in the
EIS does not violate NEPA.
NEPA also reguires that an agency "rigorously explore and
objectively evaluate all reasonable alternatives, and for
5 alternatives which were eliminated from detailed study, briefly
discuss the reasons for their having been eliminated." 40 C.F.R.
§ 1502.14(a). Dubois argues that the Forest Service unreasonably
failed to explore alternative sites for water storage. He notes
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Dubois v. US Dept, of Agriculture CV-95-50-B 06/30/95
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Roland Dubois, et al.
v. Civil No. 95-50-B
U. S. Dept, of Agriculture, et al.
O R D E R
The United States Forest Service has approved a plan by Loon
Mountain Recreation Corporation to improve and expand a ski area
it operates in part on federal land. Roland Dubois argues that
the Forest Service acted illegally in approving Loon's expansion
plans because: (1) the approval violates the Clean Water Act
("CWA") by allowing Loon to discharge water taken from the East
Branch of the Pemigewasset River into Loon Pond without first
obtaining a National Pollution Discharge Elevation System
("NPDES") permit, see, e.g., 33 U.S.C.A. § 1342; (2) the approval
violates state water guality standards because it permits Loon to
degrade the guality of Loon Pond; and (3) the Environmental
Impact Statement ("EIS") prepared by the Forest Service to
evaluate Loon's proposal failed to comply with the National
Environmental Policy Act ("NEPA"), 42 U.S.C.A. § 4332. In his
current motion, Dubois seeks to preliminarily enjoin the Forest Service from authorizing Loon to proceed with its expansion
plans.
Dubois is not entitled to a preliminary injunction unless he
can establish that he is likely to prevail on one or more of his
claims for relief. See Narraqansett Indian Tribe v. Guilbert,
934 F.2d 4, 5 (1st Cir. 1991). For reasons that I will describe
briefly below and in greater detail in a future memorandum
opinion, I conclude that Dubois is unlikely to succeed on the
merits of any of these claims.
First, Loon does not need an NPDES permit in order to
discharge water from the East Branch into Loon Pond. An NPDES
permit is reguired only when the activity in guestion will result
in the "discharge of any pollutant." 33 U.S.C.A. § 1342(a)(1).
The CWA defines "discharge of a pollutant" as "any addition of
any pollutant to navigable waters from any point source." 33
U.S.C.A. § 1362. Loon's proposal does not reguire an NPDES
permit because pumping water from the East Branch into Loon Pond
diverts and combines navigable waters rather than adds any
pollutant to said waters from an external source. See National
Wildlife Fed'n v. Consumers Power Co., 862 F.2d 580, 589 (6th
Cir. 1988); National Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 177
(D.C. Cir. 1982). Since Loon does not propose "any addition" of
2 any pollutant to Loon Pond, it need not obtain an NPDES permit.
Second, the Forest Service did not act illegally in
concluding that Loon's proposed use of the pond would comply with
New Hampshire's water guality standards. The CWA reguires each
state to develop and administer comprehensive water guality
standards. 33 U.S.C.A. § 1313. If an applicant for a federal
permit proposes an activity that may result in "any discharge
into navigable waters," the applicant must obtain a certification
from state authorities that the proposed activity will not
violate state water guality standards. 33 U.S.C.A. § 1341(a).
The federal permitting authority is not authorized to review the
adeguacy of a certification pursuant to this section even if the
agency is reguired to prepare an environmental impact statement
before issuing the permit. 33 U.S.C.A. § 1371(c)(2)(A); see
generally. New England Coalition on Nuclear Pollution v. United
States Nuclear Regulatory Comm'n, 582 F.2d 87, 98 (1st Cir. 1978)
(citing § 1371(c)(2)(A) and concluding that NEPA did not reguire
the NRC to independently review the adeguacy of conclusions
committed by law to the special expertise of another federal
agency); Roosevelt Campobello Int'l Park Comm'n v. United States
ERA, 684 F.2d 1041, 1057 (1st Cir. 1982) (citing § 1371(c) (2) and
concluding that the EPA lacked authority to review the adeguacy
3 of conditions imposed by the state in issuing a CWA
certification). Instead, challenges to the validity or adeguacy
of state certifications must be made in state court. Roosevelt
Campobello, 684 F.2d at 1057. In the present case, the New
Hampshire Department of Environmental Services certified that the
proposed use of Loon Pond would not violate New Hampshire's water
guality standards and that certification went unchallenged in
state court. Thus, the Forest Service did not act unlawfully in
relying on the state's certification.
Finally, Dubois has not demonstrated that he is likely to
succeed on his claim that the Forest Service prepared an
inadeguate EIS. Dubois argues that the EIS is deficient because:
(1) it fails to include certain information that the Forest
Service needed to properly evaluate the proposal's effect on the
aguatic biology of Loon Pond; and (2) the EIS fails to identify
and assess reasonable alternatives presented during the review
process. Given the relatively forgiving standard under which
such claims are judged, see generally, Valiev Citizens for a Safe
Environment v. Aldridge, 886 F.2d 458, 459-60 (1st Cir. 1989),
neither argument rises to the level of a NEPA violation.
The EIS concludes that the pond's ecosystem will not change
significantly if Loon is allowed to proceed with its proposal
4 "since the pond ecosystem is relatively simple, is comprised of
common organisms and the area most affected would be the shallow,
narrow ring around the margin of the pond that has been subject
to past fluctuations." The Forest Service bases this conclusion
on data from several sources including water samples taken from
the pond in 1988, a sampling of invertebrates from the pond's
narrow band of shallow water, observations of the pond at various
times including the period following the 10.5-foot drawdown of
the pond in 1989, and historical information concerning other
regular drawdowns. Dubois suggests that this information should
have been supplemented with additional studies. While it is
always possible to identify additional data that might have been
collected to more thoroughly examine a potential impact, the
record does not establish that the information Dubois claims is
missing was reasonably necessary to a reasoned evaluation of the
potential impact of the project on the aguatic biology of Loon
Pond. Therefore, the failure to include this information in the
EIS does not violate NEPA.
NEPA also reguires that an agency "rigorously explore and
objectively evaluate all reasonable alternatives, and for
5 alternatives which were eliminated from detailed study, briefly
discuss the reasons for their having been eliminated." 40 C.F.R.
§ 1502.14(a). Dubois argues that the Forest Service unreasonably
failed to explore alternative sites for water storage. He notes
his suggestion that Loon build underground water storage tanks
and also refers to other general suggestions that alternatives
for water storage be explored. The Forest Service responds that
it did not consider the construction of huge underground storage
tanks to be a reasonable alternative both because of size and in
light of the likely environmental impact of the construction
process and the use of only East Branch water for snowmaking.
NEPA reguires discussion of alternatives that are reasonable
and appropriate for the purpose proposed, but does not reguire
consideration of remote, speculative, fanciful or hypothetical
alternatives. Valley Citizens, 886 F.3d at 461. Dubois has not
shown that he or any other commentator offered specifics as to
how to implement a suggested alternative water storage system.
Given the Forest Service's concerns about the feasibility of
Dubois' suggestion, the omission of that alternative does not
invalidate the EIS.
6 CONCLUSION
For the foregoing reasons plaintiff's motion for a
preliminary injunction (document no. 12) is denied.
SO ORDERED.
Paul Barbadoro United States District Judge
June 30, 1995
cc: Roland C. Dubois, pro se Jed Callen, Esg. Melanie Aureilia Williams, Esg. Joel Demetrius Armstrong, Esg. T. David Plourde, Esg. Sylvia Quast, Esg. Jonathan McNeal, Esg. James Kruse, Esg.